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HomeMy WebLinkAboutResolution No. 2011-05 RESOLUTION NO. R2011-OS A RESOLUTION APPROVING A SETTLEMENT AGREEMENT IN THE CASE OF CITY OF FRIENDSWOOD YS. SOUTHWESTERN BELL TELEPHONE, LP DBA AT&T TEXAS, IN THE 333RD JUDICIAL DISTRICT COURT, HARRIS COUNTY, TEXAS; AUTHORIZING THE MAYOR AND CITY ATTORNEY TO EXECUTE THE SETTLEMENT AGREEMENT AND ALL DOCUMENTATION NECESSARY TO FINALIZE DISMISSAL OF THE CASE; PROVIDING THAT THIS RESOLUTION SHALL BECOME EFFECTIVE FROM AND AFTER ITS PASSAGE AND ADOPTION. � � � � � � � � � � WHEREAS, the installation of the facilities for the Clover Acres Drainage Project made it necessary that certain utilities, including telecommunications facilities, that were located in the public right of way be relocated or removed in order to accommodate the construction, repair, maintenance, removal and installation of the drainage improvements; and WHEREAS, specifically, the City located three ATT/SWB lines in the bottom of a subject ditch that interfered with the project and required relocation; and WHEREAS, in 2007, the City provided verbal and written notice to AT&T/SWB and its representatives regarding the need for removal and relocation of their facilities in order to accommodate the City's project; and WHEREAS, the City did not receive a response from AT&T and incurred delay damages and other damages as a result of taking measures necessary to abate the condition that interfered with the project and WHEREAS, the City of Friendswood initiated litigation to recover said damages; and WHEREAS, the litigation is styled the City of Friendswood vs. Southwestern Bell Telephone,LP dba AT&T Texas, in the 333`d Judicial District Court,Harris County,Texas; and WHEREAS, the City of Friendswood and Southwestern Bell Telephone, LP dba AT&T Texas have agreed to settle their differences and enter into a Settlement Agreement that would resolve the case; and WHEREAS, the City Council approves of the terms of the Settlement Agreement; now therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FRIENDSWOOD, TEXAS: Section 1: That the City Council of the City of Friendswood, Texas, hereby approves the terms of the settlement in the case of Ciry oJFriendswood vs. Southwestern Bell Telephone, LP dba AT&T Texas, in the 333`a Judicial District Court, Harris County, Texas. The terms of the Settlement Agreement are shown in Exhibit A, attached hereto and incorporated herein. Section 2: That the City Council of the City of Friendswood, Texas, hereby authorizes the Mayor and City Attorney to execute said Settlement Agreement and any and all documentation necessary to finalize dismissal of the case. Section 3: That this Resolution shall be in full force and effect from and after its passage and adoption. PASSED,APPROVED AND RESOLVED on this 7th day of February,2011. . � � David J.�S ith Mayor ATTEST: F R�ElyO � °� s� c� � �� � o � � v Melinda Welsh, TRMC City Secretary * * �+ y ��rF OF tE�P R2011-OS 2 Exhibit A ( R2011-05) CAUSE NO. 2010-26907 CITY OF FRIENDSWOOD, TEXAS, § IN THE DISTRICT COURT OF Plaintiff, § § �, § HARRIS COUNTY, TEXAS § SOUTHWESTERN BELL TELEPHONE § COMPANY, § Defendant. § 333rd JUDICIAL DISTRICT MEDIATED SETTLEMENT AGREEMENT The parties hereto agree that this lawsuit and all related claims and controversies between them are hereby settled in accordance with the following terms of this Mediated Settlement Agreement. 1. The parties acknowledge that bona fide disputes and controversies exist between them, both as to liability and the amount thereof, if any, and by reason of such disputes and controversies they desire to compromise and settle all claims and causes of action of any kind whatsoever which the parties have or may have arising out of the transaction or occurrence which is the subject of this litigation. It is further understood and agreed that this is a compromise of a disputed claim, and nothing contained herein shall be construed as an admission of liability by any party, all such liability being expressly denied. 2. Each signatory hereto hereby warrants and represents that: (a) Such person has authority to bind the party or parties for whom such person acts, subject to City of Friendswood City Council's approval. (b) The claims, suits, rights, and/or interest which are the subject matter hereto are owned by the party asserting same, have not been assigned, transferred or sold, and are free of any encumbrance. 3. The consideration to be given for this settlement is as follows: Settlement Amount: $70,000.00 U.S. Dollars Paid by: Southwestern Bell Telephone Co. d/b/a AT&T Texas Payable to: Citv of Friendswood Date to be paid: Twent�(20� days notice to defense counsel of approval by Citv of Friendswood Citv Council Form of payment: Settlement check from Southwestern Bell Telephone Co. d1b/a AT&T Texas 4. The above styled and numbered case shall be resolved by: Non-suit with prejudice, with attorney's fees and costs taxed a ag inst party incurrin� same. 5. Mutual release: The parties agree to release, discharge, from any and all claims, demands or suits, known, unknown, fixed or contingent, liquidated or unliquidated whether or not asserted in the above case, as of this date, arising from or related to the events and transactions which are the subject matter of this case, without any exceptions, except for the performance of the terms of this settlement agreement. 6. The mutual release runs to the benefit of all attorneys, agents, employees, officers, directors, shareholders and partners of the parties, without any exceptions. 7. Settlement documents to be drafted: Nonsuit prepared by Donna K. Gray Date documents to be delivered to other parties: Upon receipt of pavment The parties and their counsel agree to cooperate with each other in the drafting and execution of such additional documents are reasonably requested or required to implement the provisions and spirit of this settlement agreement, but notwithstanding such additional documents the parties confirm that this is written settlement agreement as contemplated by Section 154.071 of the Texas Civil Practice and Remedies Code. 8. This agreement shall be performable in Harris County, Texas, construed in accordance with the law of the state of Texas and shall be enforceable: (a) This agreement may be filed with the Court and will be enforceable under Rule 11 of the Texas Rules of Civil Procedure. The confidentiality of the mediation is hereby waived for the purpose of such filing and enforcement. 9. This agreement shall also be enforceable as a contract. The confidentiality of the mediation is hereby waived for the purpose of enforcing this contract. 10. The original of this agreement shall be delivered to Donna K. Gray. Any copy of the original of this agreement shall be considered an original for all purposes. 11. If one or more disputes arise with regard to the interpretation and/or performance of this Agreement or any of its provisions, the parties agree to attempt to resolve same with John Coselli, the Mediator, who facilitated this settlement. If litigation is brought to construe or enforce this Agreement, the prevailing party shall be entitled to recover attorney's fees, as well as court costs and expenses, including the cost of the mediation. CN.2010-26907;City of Friendswood v. Southwestern Bell Telephone Company Mediated Settlement Agreement 2 12. All signatories to the Settlement Agreement agree that they have not accepted any legal or other professional advice from the Mediator, and although the Mediator has provided a basic outline of this Settlement Agreement to the parties' counsel as a courtesy to facilitate the final resolution of this dispute, the parties and their counsel have thoroughly reviewed such outline and have, where necessary, modified it to conform to the requirements of their agreement. All signatories to the Settlement Agreement hereby release the Mediator from any and all responsibility axising from the drafting of this settlement Agreement, and by signing this Settlement Agreement acknowledge that they, or their attorneys, have been advised by the Mediator in writing that this Settlement Agreement should be independently review by counsel before executing the Agreement. 13. MEDIATED SETTLEMENT AGREEMENT: EACH PARTY UNDERSTANDS AND AGREES THAT THIS AGREEMENT IS NOT REVOCABLE. AGREED this 12th day of January, 2011. CN.2010-26907;City of Friendswood v. Southwestern Bell Telephone Company Mediated Settlement Agreement 3