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HomeMy WebLinkAboutPR 20876: FIRE STATIONS NO. 5 AND NO. 8 MEMORANDUM To: Mayor, City Council and City Manager From: Sherry Vital, Assistant City Attorney Date: May 30, 2019 Subject: P.R. 20876 Fire Stations No. 5 and No. 8 Summary Claremont Property Company performed demolition and mitigation work at Fire Stations No. 5 and No. 8 following Hurricane Harvey. As the fire stations were not covered by TML or managed through the Turnkey Recovery Program, Claremont Property Company invoiced the City directly. The National Flood Insurance Program (NFIP) paid the City of Port Arthur for the work performed by the Claremont Property Company. The Company has indicated they will accept the amount the City of Port Arthur received from NFIP and sign a Final Settlement Agreement and Release of Claims for the work performed and services rendered by their company which is detailed below: Fire Station No. 5 - $25,933.40 Fire Station No. 8 - $37,124.80 Dumpster Invoices - $ 8,888.22 Total: $71,946.42 P. R. No. 20876 05/29/19 spy RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A FINAL SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS BETWEEN CLAREMONT PROPERTY COMPANY AND THE CITY OF PORT ARTHUR FOR THE DEMOLITION AND MITIGATION OF FIRE STATIONS NO. 5 AND NO. 8 WHEREAS, the City of Port Arthur Fire Stations No. 5 and No. 8 were not covered by the Texas Municipal League (TML)for Hurricane Harvey damage; and WHEREAS, the City of Port Arthur received compensation from the National Flood Insurance Program (NFIP) for the necessary demolition and mitigation of Fire Stations No. 5 and No. 8; and WHEREAS, the Claremont Property Company performed the required demolition and mitigation necessary for damage recovery; and WHEREAS, the Claremont Property Company has agreed to settle all claims and release the City of Port Arthur in the amount of $71,946.42, as delineated in Exhibit "A" attached hereto. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That this Final Settlement Agreement and Release of Claims resolves all work and services rendered by Claremont Property Company for the City of Port Arthur for the necessary demolition and mitigation of Fire Stations No. 5 and No. 8 for the necessary demolition and mitigation of Fire Stations No. 5 and No. 8. Section 3. That the City Manager is hereby authorized to execute the Final Settlement Agreement and Release of Claims as delineated in Exhibit"A". Section 4. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of , A.D., 2019, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor: , Councilmembers: NOES: . Derrick Ford Freeman, Mayor ATTEST: Sherri Bellard City Secretary AP ROVED AS TO FORM: tiA/Zki Andliaitid / Val Tizeno City Attorney APPROVED FOR ADMINISTRATION: Rebecca Underhill Interim City Manager EXHIBIT "A" FINAL SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This Final Settlement Agreement and Release of Claims (the Agreement) is made and entered into on this the day of June, 2019, by and between Claimant, Claremont Property Company ("Claremont") and City of Port Arthur, ("CITY"), who are hereinafter collectively referred to as the Parties(the "Parties"). WHEREAS, CLAREMONT performed services at Port Arthur Fire Station #s 5 and 8 following Hurricane Harvey in 2017. CLAREMONT has not received compensation for their services. WHEREAS, the Parties wish to enter into a settlement agreement and to buy peace, and desire to compromise and settle all claims which they may have against each other upon the terms and provisions set forth herein; NOW, THEREFORE, in consideration of the above-stated premises, the promises and agreements contained herein and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows: 1. Consideration and Release. 1.1 In full payment, settlement and satisfaction of all claims alleged, or which could have been alleged, by CLAREMONT, concerning the subject matter thereof, the Parties agree to mutually release each other from any and all claims arising from the work performed by Claremont following Hurricane Harvey in 2017. 1.2 The City of Port Arthur will pay$71,946.42(seventy-one thousand,nine hundred forty- six dollars and forty-two cents) in exchange for this Final Settlement Agreement and Release of Claims. 1.3 For and in consideration of this Agreement, CLAREMONT, individually and collectively, hereby forever and completely release, acquit, and discharges THE CITY OF PORT ARTHUR, individually and collectively, their successors and representatives, from all claims, counterclaims, defenses, causes of action, liabilities, damages, costs and expenses, including attorneys'fees,of every kind and character,whether existing by statute or at common law,accrued or unaccrued, direct or contingent, known or unknown, arising out of or in any way asserted in or which might have been asserted in or which relate to,directly or indirectly,any and all claims and damages arising out of the work performed after Hurricane Harvey at Port Arthur Fire Station#s 5 and 8. 1.4 For and in consideration of this Agreement, THE CITY OF PORT ARTHUR, individually and collectively, hereby forever and completely release, acquit, and discharge CLAREMONT, individually and collectively, its successors, representatives and employees, from all claims, counterclaims, defenses, causes of action, liabilities, costs and expenses, including attorneys'fees,of every kind and character,whether existing by statute or at common law,accrued or unaccrued, direct or contingent, known or unknown,arising out of or in any way asserted in or which might have been asserted in or which relate to,directly or indirectly,any and all claims and damages arising out of the work performed after Hurricane Harvey at Port Arthur Fire Station#s 5 and 8. 1 1.5 It is the intent of the Parties to give the broadest release and discharge possible under the law and the provisions hereof should be interpreted so as to give effect to such intent. It is the intent of the Parties that each Party shall never be liable to the other Parties, or to any person or party asserting any claim on behalf of said Party,or to any other person or party,for any additional sums of money, including attorneys'fees and other costs and expenses of litigation,which relate to this Agreement and the Dispute,which are being fully resolved by this Release. 1.6 The Parties represent and warrant that they are the sole owner(s)and holder(s) of the various claims and causes of action released herein and that he/she/they has/have not sold,assigned, conveyed or in any way transferred any of his/her/their rights in and to any of the claims and causes of action to any third party. 2.Covenant not to sue.The Parties further covenant that he/she/they, individually or collectively, will not initiate,participate in,file or assert any action,proceeding,lawsuit,claim or cause of action (whether common law, statutory, federal, legal or equitable)against the other Party for any event, transaction or occurrence related to or arising from the subject matter of the Disputes.This covenant not to sue is intended to have the broadest interpretation possible and shall absolutely prohibit the Parties from any further legal action against each other related to or arising from the Disputes. 3.Release of Any and All Claims.Following the full execution of this Agreement,the Parties will have released any and all claims they have against each other. 4. Compromise and Intention of Parties. It is expressly understood and agreed that the terms hereof are contractual in nature and not merely recitals and that the agreements and releases contained herein are made and given in order to compromise and settle doubtful and disputed claims. The Parties further agree, as among them, that this is a compromise, resolution and settlement of claims, including but not limited to all claims brought or that could have been brought as a result of the Dispute,primarily to avoid the uncertainty,time,trouble and expense of continued litigation and collection efforts, and that such compromise, resolution and settlement shall not be taken as an admission of liability but rather such liability has been expressly denied by all Parties, No promise or inducement has been offered except as set forth herein.This Agreement is executed without reliance upon any oral, written, express or implied representations, statements, promises, warranties,or other inducement of any nature or sort made by any person or party hereto other than as is expressly set forth herein. 5. Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the undersigned Parties and their respective heirs,executors,administrators,trustees and successors. 6.Governing Law and Venue.THIS AGREEMENT IS MADE AND ENTERED INTO IN THE STATE OF TEXAS AND SHALL IN ALL RESPECTS BE INTERPRETED, ENFORCED AND GOVERNED UNDER THE LAWS OF THE STATE OF TEXAS. Any future litigation regarding the Disputes or this Settlement Agreement shall be adjudicated in a court of law in Jefferson County,Texas. The language in all parts of the Agreement shall be in all cases construed as a whole according to its meaning and not strictly for or against any Party. 7.Voluntary Agreement.Each of the Parties acknowledges that this Agreement has been executed freely and voluntarily, without economic compulsion and with full knowledge of its legal significance and consequences. 8. Severability. This agreement is intended to be severable. If any term, covenant, condition or provision hereof is illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall not affect the legality,validity or enforceability of the remaining parts of this Agreement. 2 9. Counterparts. This Agreement may be executed in counterparts or with detachable signature pages and shall constitute one agreement, binding upon all the Parties as if all the Parties signed the same document. 10. Headings. The headings used in this Agreement are intended solely for the convenience of reference and should not in any manner amplify, limit, modify or otherwise be used in the interpretation of any of the provisions of the Agreement. 11. Authority. Each person executing this Agreement as an agent or in a representative capacity warrants that he or she is dilly authorized to do so. 12. Entire Agreement. This Agreement embodies, merges and integrates all prior and current agreements and understandings of the Parties and may not be clarified, modified, changed or amended except in writing signed by each and every one of the signatories hereto or their other authorized representatives. 13. Survival. All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the execution and delivery of any other document or instrument referred to herein. 14. Further acts. In addition to the acts recited in this Agreement, the Parties agree to perform or cause to be performed on the date of this Agreement or thereafter any and all such further acts as may be reasonably necessary to consummate the transactions contemplated hereby. 15. Counsel. The Parties acknowledged that they have had the opportunity to obtain, and have obtained, advice on the terms of this Agreement from independent legal counsel retained to represent them in this matter. EXECUTED as of the date first above written. Claremont Property Company by Keeley Megarity CITY OF PORT ARTHUR by Rebecca Underhill, Interim City Manager 3 ACKNOWLEDGMENT THE STATE OF TEXAS § § COUNTY OF JEFFERSON § BEFORE ME, the undersigned Notary Public, on this day personally appeared Keeley Megarity on behalf of Claremont Property Company, known to me to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that he executed the same as the act and deeds of the City of Port Arthur, for the purposes and considerations therein expressed, and in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of , 2019. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS THE STATE OF TEXAS § § COUNTY OF JEFFERSON § BEFORE ME, the undersigned Notary Public, on this day personally appeared Rebecca Underhill,Interim City Manager on behalf of the City of Port Arthur,known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deeds of the City of Port Arthur, for the purposes and considerations therein expressed,and in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE,this day of ,2019. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS 4