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HomeMy WebLinkAboutPR 15302: AGREEMENT WITH INTERCOASTAL GOLF, LLC, PLEASURE ISLAND COMMISSION & BRYAN JACKSONInteroffice MEMORANDUM To: Mayor, City Council, and City Manager From: Mark Sokolow, City Attorney ~`Z,~I ~-L:c~~-' Date: May 29, 2009 Subject: P. R. No. 15302; Council Meeting June 2, 2009 Attached is P. R. No. 15302 authorizing the City Manager to sign the Full and Final Release and Indemnity Agreement as it pertains to Intercoastal Golf, L.L.C., Pleasure Island Commission and Bryan Jackson. MTS:ts Attachment 1 z.pr15302_memo P. R. No. 15302 05/29/09 is RESOLIITION NO. A RESOLIITION AIITHORIZZNG THE CITY MANAGER TO SIGN THE FIILL AND FINAL RELEASE AND INDEMNITY AGREEMENT AS IT PERTAINS TO INTERCOASTAL GOLF, L.L.C., PLEASIIRE ISLAND COMMISSION AND BRYAN JACKSON WHEREAS, it is deemed in the best interests of the citizens to approve the Full and Final Release and Indemnity Agreement, attached hereto as Exhibit "A" NOW THEREFORE, BE IT RESOLVED BY THB CITY COIINCIL OF THE CITY OF PORT ARTHIIR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Manager is herein authorized to sign the Full and Final Release and Indemnity Agreement, attached hereto as Exhibit "A", as it pertains to the lawsuit entitled, Intercoastal Golf, L.L.C. vs. City of Port Arthur, Pleasure Island Commission, Jimmy Dike, Individually and Bryan Jackson, Individually. Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTHD AND APPROVED on this day of A.D., 2009, at a Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: Mayor z.pr15302 Councilmembers NOES: MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM: ~~ ~~~,~~ CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER z.pr15302 EXHIBIT "A" THE STATE OF TEXAS § COUNTY OF JEFFERSON § FULL AND FINAL RELEASE AND INDEMNITY AGREEMENT WHEREAS, on or about May 1, 2005, the PLEASURE ISLAND COMMISSION entered into an Operation and Maintenance Agreement with Bryan Jackson for the operation of The Palms at Pleasure Island Golf Course, located on Pleasure Island, in Port Arthur, Jefferson County, Texas; and WHEREAS, it is alleged that in April of 2006 INTERCOAST_AL GOLF, L.L.C. was formed and the managers named under this entity were Bryan Jackson, Boyd Herndon and Charles Ahlman. It is further alleged, on May 1, 2006, Bryan Jackson assigned his maintenance and operational duties pertaining to the golf course to INTERCOASTAL GOLF, L.L.C.; and WHEREAS, on or about September 21, 2006, Bryan Jackson was notified by the PLEASURE ISLAND COMMISSION that he was in default on their agreement. On October 3, 2006, Bryan Jackson informed the Commission in writing that he was unable to cure his default, he wished to waive his 30 day notice period, and stated "the Pleasure Island Commission can terminate my contract effective immediately." INTERCOASTAL GOLF, L.L.C. claims this was all done without the knowledge of the other directors of INTERCOASTAL GOLF, L.L.C.; and WHEREAS, on or after October 3, 2006, bfr. Jackson and his staff (including Mr. Ahhnan) were evicted from the Palms Golf Course by the PLEASURE ISLAND COMMISSION; and WHEREAS, the above recitals aze sometimes referred to in this agreement as the "Occurrence;" and WHEREAS, INTERCOASTAL GOLF, L.L.C. (sometimes referred to as "Plaintiff') instituted suit against the CITY OF PORT ARTHUR, PLEASURE ISLAND COMMISSION, JIMMY DIKE, fNDNIDUALLY and BRYAN JACKSON, INDNIDUALLY (sometimes referred to as "Defendants") in the 172ND Judicial District Court of Jefferson County, Texas, Cause No. E-179606, styled Intercoastal Golj, L.L.C. vs. City of Port Arthur, Pleasure Island Commission, Jimmy Dike, Individually and Bryan Jackson, Individually, (sometimes hereafter referred to as "The Lawsuit") claiming that (1) it was constructively evicted from the Palms Golf Course, (2) the property owner breached its implied warranty of suitability, and (3) the property owner breached the covenant of quiet enjoyment, and that it suffered damages from the action of the property owner, the PLEASURE ISLAND COMMISSION and others. INTERCOASTAL GOLF, L.L.C. has plead various causes of action against the Parties released herein, including unjust enrichment, fraud, conversion, conspiracy and damages, which aze more fully set forth in the Original and Amended Petitions of INTERCOASTAL GOLF, L.L.C., and are incorporated herein by reference for explanation only and informational purposes only the same as if set forth at length and do not limit the terms of this release; and said suit having been so filed and prosecuted on account of the resulting damages allegedly received by INTERCOASTAL GOLF, L.L.C.; and WHEREAS, bona fide disputes and controversies exist between the parties, both as to liability and the amount thereof, if any, and by reason of such disputes and controversies the undersigned desire to compromise and settle all claims and causes of action of any kind whatsoever which they have or might have arising out of the said occurrence; and WHEREAS, Defendants aze willing to pay, on behalf of themselves and the other parties hereby released, the sum of THIRTY THOUSAND AND NO/100 DOLLARS ($30,000.00) in compromise and settlement of such claim; and WHEREAS it is the desire of the undersigned, INTERCOASTAL GOLF, L.L.C., BOYD HERNDON, CHARLES AHLMAN, and CITY OF PORT ARTHUR, PLEASURE ISLAND 2 COMMISSION, JIMMY DIKE and BRYAN JACKSON to satisfy and extinguish all past, present and future claims and causes of action by or between the undersigned relating to the Palms Golf Course, for purposes of avoiding the uncertainties and expense of further litigation, and it is expressly contracted between the parties hereto that such action shall not be or constitute any admission of liability whatsoever. NOW THEREFORE KNOW ALL MEN BY THESE PRESENTS: That Plaintiff, INTERCOASTAL GOLF, L.L.C., joined herein by BOYD HERNDON and CHARLES AHLMAN (hereinafter called "Claimants" or "Plaintiff'), for and in consideration of the total sum of THIRTY THOUSAND AhID NO/100 DOLLARS ($30,000.00) and other valuable consideration in hand paid by and/or on behalf of CITY OF PORT ARTHUR, PLEASURE ISLAND COMMISSION, JIMMY DIKE, BRYAN JACKSON the TEXAS MUNICIPAL LEAGUE INTERGOVERNMENTAL RISK POOL and their respective predecessors, successors, employees, directors, officers, shazeholders, employers, heirs, executors, administrators, assigns, legal representatives, agents, subsidiaries, divisions, subdivisions, sister companies, affiliates, controlled corporations, partners, partnerships, pazent corporations, predecessor corporations, directors, representatives, servants, insurers, underwriters, and attorneys, including but not limited to the law firm of CALVERT EAVES CLARKS & STEELY, L.L.P. and MEHAFFY WEBER, P.C. (hereinafter all called "Parties Released"), the receipt and sufficiency of which is hereby acknowledged and confessed, have ACQUITTED, RELEASED, and FOREVER DISCHARGED, and by these presents do For Claimants and for Claimants' heirs, spouses, children, pazents, executors, administrators, successors, estates, beneficiaries, and assigns, hereby ACQUIT, RELEASE, and FOREVER DISCHARGE [he parties released, who might be liable, of and from any and all liability, claims, demands, damages, attorneys' fees, costs, actions, causes of actions, or suits in equity, of 3 whatsoever kind or nature whether heretofore or hereafter accruing or whether Claimants now have or may hereafter have same or whether same is now known or not known to the Claimants, for or because of any matter or thing done, admitted, or suffered damages of any kind, debts, liens, liabilities, causes of action of whatsoever nature, whether in law or in equity, in contract or in tort, by statute or a[ common law, as well as any other character or kind of action now held or owned by Claimants, in whole or in part, which Claimants may now have or may hereafter claim to hold or possess, known or unknown, presently existing or which might ever accrue to Claimants in the future, of whatever nature, on account of, growing out of, related to or concerning, whether directly or indirectly, proximately or remotely, any and all injuries or damages sustained by Claimants or alleged to have been sustained by Claimants. This release includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occumng due to the Occurrence, which was raised or could have been raised, including, but not limited to, all claims, demands, causes of actions of any nature, whether in contract or in tort, or arising out of, under or by virtue of any statute or regulation, that are recognized by law or that may be created or recognized in the future by any manner, including, without limitation, by statute, regulation, or judicial decision, for past, present and future damage or loss, or remedies of any kind that aze now recognized by law or that may be created or recognized in the future in any manner, including without limitation, by statute, regulation or judicial decision, including but not limited to the following: all actual damages, all exemplary and punitive damages, all penalties of any kind or statutory damages, including, but not limited to, any claims for fraudulent inducement, bad faith, unfair claims or settlement practices, unconscionable settlement, failure or insufficiency of consideration, or any other related claim. Claimants hereby declare that Claimants fully understand the terms of this settlement and 4 voluntarily accept the above-stated sum for the purpose of making full and final settlement of any and all injuries, damages, expenses, and inconvenience. Further, the Parties Released ACQUITTED, RELEASED, and FOREVER DISCHARGED, and by these presents do for the Parties Released and their heirs, spouses, children, pazents, executors, administrators, successors, estates, beneficiaries, and assigns, hereby ACQUIT, RELEASE, and FOREVER DISCHARGE the Claimants, who might be liable, of and from any and all liability, claims, demands, damages, attorneys' fees, costs, actions, causes of actions, or suits in equity, of whatsoever kind or nature whether heretofore or hereafter accruing or whether the Parties Released now have or may hereafter have same or whether same is now known or not known to the Parties Release, for or because of any matter or thing done, admitted, or suffered damages of any kind, debts, liens, liabilities, causes of action of whatsoever nature, whether in law or in equity, in contract or in tort, by statute or at common law, as well as any other character or kind of action now held or owned by the Parties Released, in whole or in part, which the Parties Released may now have or may hereafter claim to hold or possess, known or unknown, presently existing or which might ever accrue to the Parties Released in the future, of whatever nature, on account of, growing out of, related to or concerning, whether directly or indirectly, proximately or remotely, any and all injuries or damages sustained by the Parties Released or alleged to have been sustained by the Parties Released. This release includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring due to the Occurrence, which was raised or could have been raised, including, but not limited to, all claims, demands, causes of actions of any nature, whether in contract or in tort, or arising out of, under or by virtue of any statute or regulation, that are recognized by law or that may be created or recognized in the future by any manner, including, without limitation, by 5 statute, regulation, or judicial decision, for past, present and future damage or loss, or remedies of any kind that aze now recognized by law or that may be created or recognized in the future in any manner, including without limitation, by statute, regulation or judicial decision, including but not limited to the following: al] actual damages, all exemplary and punitive damages, all penalties of any kind or statutory damages, including, but not limited to, any claims for fraudulent inducement, bad faith, unfair claims or settlement practices, unconscionable settlement, failure or insufficiency of consideration, or any other related claim. The Parties Released hereby declare that the Parties Released fully understand the terms of this settlement and voluntarily pay the above-stated sum for the purpose of making full and final settlement of any and all injuries, damages, expenses, and inconvenience. Claimants and the Parties Released understand and agree that this Full and Final Release and Indemnity Agreement includes, withoui limitation, the release of all rights or claims they may have against each other under any Federal or State Statute or law, Federal or State Constitution, including the Texas Civil Code, the Texas Revised Statutes, and any other law, whether compensation or tort, federal or state, civil or maritime, whether at law, in equity, or under any contract or policy of insurance which might afford Claimants or the Parties Released a claim or cause of action against any of Claimants or the Parties Released and all other persons or companres. Claimants have brought claims in the above-referenced causes to recover damages as a result of the Occurrence. The Parties Released have alleged certain offsets to Claimant's alleged damages. The consideration mentioned above is accepted by the Claimants, INTERCOASTAL GOLF, L.L.C., joined herein by BOYD HERNDON and CHARLES AHLMAN, in full compromise and settlement of all claims and causes of actions against the Parties Released for all 6 damages being asserted in said lawsuit or which might have been asserted in said lawsuit, or hereafter, including, without limitations, claims for actual damages, claims for punitive damages, that have been or could have been asserted in said suit or hereafter, and for all property damage being asserted by them in said suit or which might have been asserted in said suit, or hereafter, including but not limited to loss of use of property, including, without limitations, claims for actual damages, claims for punitive damages, and other actions that have been or could have been asserted in said suit or hereafter, and Claimants agree that a judgment in favor of the Parties Released may be entered in said lawsuits and any subsequent suit denying Claimants any recovery from the Parties Released. The Claimants and the Parties Released intend this Release to be as broad and comprehensive as possible so that neither Claimants or the Parties Released shall ever be liable, directly or indirectly, to each other, their beneficiaries, executors, administrators, heirs, successors, assigns, legal representatives, or any other person, firm or corporation claiming by, through, or on behalf of Claimants or the Parties Released regazding the above-referenced property. This agreement may be pleaded as a full and complete defense to any action, suit, or other proceeding which may be instituted, prosecuted, or attempted for, upon, or in respect to any of the claims released hereby. Claimants and the Parties Released agree that any such proceeding would cause inepazable injury to the party against whom it is brought and [hat any court of competent jurisdiction may enter an injunction restraining prosecution thereof. Further, it is understood and agreed this is a full and complete Release, and includes a release of all claims for all damages of any kind or character, including by way of illustration, but not by way of limitation, claims for damages for the following: actual damages, exemplary damages, increased damages for aggravated circumstances, property damages, suffering, mental anguish, psychological damages, grief, loss of society, loss of inheritance, loss of wages or profits, loss of 7 wage earning capacity, and any other type of damages that aze measurable in money, whether included within the foregoing enumeration or not, including any claims for damages to accrue in the future from any cause and regardless of whether specified within the categories enumerated above, whether known or anticipated at this time or otherwise. It is the intention of the parties executing this Release that the same shall be as general as possible and that same shall cover every conceivable contingency that has arisen, might arise in the future, or may have arisen in the past, whether known or unknown at this time. In further consideration hereof, the Claimants, agree for themselves, their heirs, successors, beneficiaries, assigns, legal representatives, and representatives of our estate not to assert, aid, or abet any further claims against the Parties Released on behalf of or by, through, or under them and agree, when called upon by any of the Parties Released, to release any past or future claims against any of the Parties Released, arising directly or indirectly, from the Occurrence and its consequences. The aforementioned consideration is accepted by the Claimants in full satisfaction of all damages to the Claimants, individually and in all capacities arising out of the Occurrence. The payment of said sum by the Parties Released herein is not to be construed as an admission of liability, which has been denied. Further, as consideration for the monies described herein, Claimants and their attorneys warrant, represent, and guarantee there are no outstanding claims or liens of any character in any way arising out of this Occurrence other than the claim of Ingersol-Rand Financial Services/Club Car which is anticipated to be extinguished from the proceeds of this settlement. Claimants state that they have not assigned any portion of their claims against Defendants to any person, firm or corporation nor promised to assign any portion of their claim against Defendants; Claimants further warrant, represent, and guazantee that there is no existing or former spouse, parent, child, 8 or guazdian, or other person, firm, corporation, or other entity with any potential claim for damages as a result of the Occurrence and that Claimants are the only persons or entities entitled to receive any compensation for the damages, and the Occurrence above-described or set forth in the pleadings in the litigation referenced herein. In consideration of the money paid by the Parties Released, Claimants guarantee that henceforth the Parties Released shall never be liable for any sum of money whatsoever in any matter arising out of or in any way connected, either directly or indirectly, with the lawsuit filed by Claimants and that the Parties Released shall never be liable to Claimants or to anyone claiming indemnity or contribution, claiming subrogation rights or liens, claiming an assignment of claims or causes of action arising out of these manners, or claiming in any manner or procedure by, through, or under Claimants, for any sum whatsoever in any manner arising out of or in any way connected, directly or indirectly, with the Occurrence above-described and any consequences thereof. CLAIMANTS FURTHER AGREE TO INDEMNIFY AND HOLD HARMLESS PARTIES RELEASED FROM ANY AND ALL SUCH CLAIMS, DEMANDS, CAUSES OF WHATSOEVER NATURE WHICH MAY HAVE BEEN OR MAY HEREAFTER BE ASSERTED BY ANY SUCH EXISTING OR FORMER SPOUSE, PARENT, CHILD, OR GUARDIAN, OR OTHER PERSON, FIItM, CORPORATION, OR OTHER ENTITY ARISING OUT OF OR RESULTING FROM OR IN ANY MANNER CONNECTED TO OR RESULTING FROM THE OCCURRENCE ABOVE- DESCRIBED, EVEN IF CAUSED BY THE SOLE NEGLIGENCE OR NEGLIGENCE OF THE PARTIES RELEASED. It is understood, acknowledged, and agreed that the guazantees or warranties and representations contained in this Release are a necessary condition precedent to this settlement, and without such guarantees no money would have been paid by the Parties Released to Claimants herein. 9 TO PROTECT THE PARTIES RELEASED, .RAID IN CONSIDERATION OF THE AFORESAID SUM, CLAIMANTS, FOR THEMSELVES, THEIR HEIItS, EXECUTORS, ADMINISTRATORS, AND ASSIGNS, CONTRACT TO PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS EACH AND ALL OF THE PARTIES RELEASED FROM ANY AND ALL CLAIMS, DEMAAIDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, LIABILITIES, AND/OR LOSSES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR CONTRIBUTION, COMMON LAW INDEMNITY, OR INDEMNITY BASED ON CONTRACT, OF WHATSOEVER NATURE OR CHARACTER, INCLUDING CLAIMS ASSERTING NEGLIGENT CONDUCT OF THE PARTIES RELEASED THAT MAY HAVE BEEN OR WHICH MIGHT BE HEREINAFTER ASSERTED BY CLAIMANTS OR ANYONE, NATURAL OR CORPORATE, INCLUDING ANY PERSON, FIRM, CORPORATION, OR INSURANCE COMPANI', CLAIMING BY, THROUGH, OR UNDER CLAIMANTS, ARISING, DIRECTLY OR INDIRECTLY, FROM THE CAUSES OF ACTION RELEASED HEREIN AND/OR THE OCCURRENCE. IT IS EXPRESSLY UNDERSTOOD THAT THIS PROMISE OF INDEMNITY SHALL BE VALID, BINDING, AND IN EFFECT WITHOUT REGARD TO FAULT AND SPECIFICALLY (BUT WITHOUT LIMITATION) WITHOUT REGARD TO LEGAL RESPONSIBILITY, IF ANY, OF THE PARTIES RELEASED. THIS INDEMNITY AGREEMENT IS VALID, BINDING, AND IN EFFECT EVEN IF THE EVENT OCCURRED AS A RESULT OF THE SOLE NEGLIGENCE OF ONE OR MORE OF THE PARTIES RELEASED. IN THE EVENT OF THE PROSECUTION OR ASSERTION OF ANY CLAIM RELEASED OR PURPORTEDLY RELEASED HEREIN OR OF ANY FURTHER CLAIM BY ANYONE FOR DAMAGE, DEBT, LIEN, CHARGE, JUDGMENT, EXECUTION, PENALTY, ATTORNEYS' FEES, COSTS, EXPENSES, INDEMNITY, OR CONTRIBUTION DERNED FROM, BY, io THROUGH, OR UNDER THE CLAIMANTS (INCLUDING, BUT NOT LIMITED TO, A DIRECT ACTION, CROSS-ACTION, THIItD-PARTY ACTION, OR A CLAIM FOR CONTRIBUTION, COMMON LAW INDEMNITY, INDEMNITY BASED ON CONTRACT OF WHATSOEVER NATURE OR CHARACTER, Iii ICLUDING CLAIVi IS ASSERTING NEGLIGENT CONDUCT OF THE PARTIES RELEASED OR INDEMNITY BECAUSE OF CLAIMANTS' ASSERTION OF A CLAIM AGAINST SOME OTHER PARTY), CLAIMANTS CONTRACT TO INDEMNIFY AND HOLD HARMLESS EACH AND ALL OF THE PARTIES RELEASED FROM ALL SUMS ASSERTED PLUS THE PARTIES' COSTS, EXPENSES, AND REASONABLE ATTORNEYS' FEES. THIS PROMISE OF INDEMNITY SHALL ALSO APPLY TO ANY CLAIMS ASSERTED IN THIS ACTION OR ANY SUBSEQUENT ACTION, BY, THROUGH, OR UNDER CLAIMANTS, BY WAY OF DIRECT ACTION, CROSS-ACTION, OR THIRD-PARTY ACTION, INCLUDING ANY CLAIM THAT MAY ARISE IN THE FUTURE OUT OF THE OCCURRENCE REFERRED TO ABOVE. FURTHER, AS PART OF THE CONSIDERATION FOR THE PAYMENT OF THE ABOVE-MENTIONED SUM OF MONEY, CLAIMANTS, INTERCOASTAL GOLF, L.L.C., JOINED HEREIN BY BOYD HERNDON, CHARLES AHLMAN, SPECIFICALLY AGREE TO AND DO HEREBY INDEMNIFY AND HOLD HARMLESS EACH AND ALL OF THE PARTIES RELEASED FROM ANY DAMAGES OF ANY NATURE WHATSOEVER CLAIMED OR AWARDED THEREIN WHICH MIGHT BE BROUGHT BY ANY PERSON CLAIMING BY, THROUGH, OR UNDER THEM. N ADDITION, CLAIMANTS AGREE TO PROMPTLY PAY AND REIMBURSE ANY AND ALL ATTORNEYS' FEES, COURT COSTS, AND EXPENSES INCURRED BY THE PARTIES RELEASED THAT MIGHT BE EXPENDED TO ENFORCE ANY SUCH INDEMNITY AGREEMENT. THIS INDEMNITY AND HOLD HARMLESS AGREEMENT 11 SPECIFICALLY APPLIES TO, BUT IS NOT LIMITED TO, ANY INDIVIDUAL WHO IS OR CLAIMS TO BE THE SPOUSE OF THE CLAIMANTS AiNID ANY INDNIDUAL WHO IS OR CLAIMS TO BE THE CHILD OF THE CLAIMANTS. It is understood and acknowledged and agreed by the Claimants and the Parties Released that the said sum so paid by and on behalf of the Parties Released, as set out above, is a FULL AND FINAL RELEASE AND SATISFACTION of all claims that Claimants or the Parties Released now have or may hereafter assert by reason of the Occurrence referenced herein. Accordingly, it is further understood, acknowledged and agreed by the Claimants that an Agreed Final Take Nothing Judgment dismissing all claims will be entered in cause of action No. E- 179606, styled Intercaast Golj, L.L.C. vs. City of Port Arthur, Pleasure Island Commission, Jimmy Dike, Individually and Bryan Jackson, Individually; filed in the District Court of Jefferson County, Texas, 172ND Judicial District. In order to carry out the purposes of this Release, which is that the Parties Released shall never be required to spend any more monies because of matters arising out of this lawsuit or claims by the Claimants, and in further consideration of the sum aforementioned, the Claimants, for themselves, their heirs, executors, administrators, and assigns do hereby assign, sell, transfer, convey, and set over to the Parties Released such portions of Claimants' actions, causes of actions, claims, demands, damages, and costs as are found to have been caused by the Parties Released. Further, if any other claims exist as to the Parties Released, whether released herein or not, whether foreseeable or unforeseeable, Claimants hereby assign those claims in full to the Parties Released, or any other claims for damages which are measurable in money, whether included within the foregoing enumeration or not, including any claim for damages to accrue in the future from any cause, whether known or anticipated at this time or otherwise, and regardless of whether specified within the categories enumerated above arising out of the Occurrence. 12 Claimants hereby assign all claims or causes of action they now have or may hereafter have against any third party arising out of [he aforementioned Occurrence and/or The Lawsuit to TEXAS MUNICIPAL LEAGUE INTERGOVERNMENTAL RISK POOL. It is also understood and agreed this is a FULL AND FINAL RELEASE AND DISCHARGE of Claimants and the Parties Released, their agents, servants, employees, heirs, successors, insurers, and assigns, though not expressly named herein, from any matter or thing dealt with herein, and [hat said Release may be pleaded by Claimants or the Parties Released as an absolute and final baz to any and all suits now pending or that may hereafter be pending or prosecuted by Claimants or the Parties Released, or Claimants' or the Parties Released's estate, heirs, or beneficiaries or anyone claiming by, through or under Claimants or the Parties Released or claiming by way of subrogation, indemnity, or contribution. As a further consideration for said payment, Claimants expressly warrant and represent that they are over the age of eighteen (IS) years and competent to execute this Release; that they are able to read and write the English language; that they have secured counsel in this matter; that discussed this agreement with their attorney; that they understand all matters mentioned herein; that Claimants, in executing this Release, have relied solely and completely on their own judgment, belief and knowledge of the nature, extent, and duration of the injuries and damages, as well as the liability questions involved, and have only relied on their own understanding and the advice of counsel in making this settlement; that they have not been influenced to any extent whatsoever in making this Release by any representations or statements regarding such damages or liability questions, or any other matters, made by Parties Released or by any person representing or acting by them, including, but not limited to, any individual or attorney employed by the Parties Released; that they fully understand that this Release is a FULL AND FINAL SETTLEMENT of all claims arising out of the alleged Occurrence to the Parties Released; that 13 this Agreement contains the entire agreement between the parties; and that the terms hereof are contractual and have legal force and effect and are not a mere recital. It is further understood and agreed that the Parties Released do not admit any wrongful conduct or liability whatever, under any theory of law, to the Claimants, or to any person, firm, or corporation by reason of the Occurrence mentioned, liability therefore being specifically denied; that this settlement is being made purely on a compromise basis by the Parties Released, to rid themselves of vexatious litigation in regazd thereto. IT IS FURTHER UNDERSTOOD AND AGREED THAT THIS FULL AND FINAL RELEASE AND INDEMNITY AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. To procure payment of said sum, the Claimants, hereby declare that no representations about the nature and extent of said damages made by any attorney, or agent of any Parties Released, nor any representations regazding the nature and extent of legal damages or financial responsibility of any of the Parties Released, have induced any of them to make this settlement; that this settlement is fully declared by each of them to be a fair and reasonable settlement and compromise of the aforementioned injuries, disabilities, or damages. This Agreement states the entire agreement of the parties with respect to the matters discussed herein, and supersedes all prior or contemporaneous oral or written understandings, agreements, statements, or promises. This Agreement may not be amended or modified in any respect except by a written instrument duly executed by all of the parties to this Agreement. If this Agreement does not become effective for any reason, it shall be deemed negotiation for settlement purposes only and will not be admissible in evidence or usable for any purposes whatsoever. to Claimants hereby represent and warrant that they have not transferred, conveyed, pledged, assigned, or made any other disposition of the claimed rights, interest, demands, actions, or causes of action, obligations, or any other matter covered by this Agreement. The terms of this Agreement shall inure to the benefit of, and be binding upon, the parties and their heirs, legal representatives, successors, or assigns. Any signatories to this Agreement hereby warrant that they have the authority to execute this Agreement and bind the respective parties. This Agreement has been and shall be construed to have been drafted by all the parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. If any portion or term of this Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected and shall remain fully in force and enforceable. Claimants have consulted with whatever consultants, attorneys, or other advisors they deem appropriate in connection with the effect of this Agreement and Claimants assume the risk arising from not seeking further or additional consultation with such advisors. Claimants assumes the risk of any mistake of fact or law with regazd to any aspect of this Agreement, the dispute described herein, or any asserted rights released by this Ageement. Claimants fully understand that said payment, settlement, and compromise is made to terminate further controversy respecting all claims for damages and expenses that they have heretofore asserted, or that they, or their personal representatives, might hereafter assert because of said occurrence. The Claimants agree that the damages suffered by any persons, firms, corporations, or other entities protected by this agreement by reason of any breach of any provision of this agreement shall include not only the amount of any judgment that may be rendered against said 15 persons, firms, corporations, or other entities, or any of them, by reason of a breach of this agreement, but shall also include all damages suffered by them, including the costs of attorneys' fees and other costs and expenses of instituting, preparing, prosecuting, or defending any action or suit resulting from a breach of this agreement, whether taxable or otherwise, and the costs to them of attomeys' fees, and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action to recover damages resulting from the breach of this agreement, whether taxable or otherwise. IT IS THE INTENT OF THIS DOCUMENT AND THE PARTIES HEREBY AGREE THAT: (1) CLAIMANTS AND THE PARTIES RELEASED WILL NEVER HAVE TO PAY ANYTHING ELSE; (2) THE PARTIES RELEASED ARE HEREBY GIVEN FULL INDEMNITY FOR ALL LIABILITY THEORIES INCLUDING THE NEGLIGENCE, SOLE NEGLIGENCE. AND GROSS NEGLIGENCE OF THE PARTIES RELEASED; (3) CLAIMANTS AND THE PARTIES RELEASED ARE TO BEAR THEIR OWN ATTORNEYS' FEES IN DEFENDING THIS ACTION EXCEPT AS OTHERWISE SPECIFIED HEREIN; (4) THROUGH SUCH ASSIGNMENT AND OTHER PROVISIONS THE INTENT OF THIS DOCUMENT IS TO CREATE A COMPLETE CII2CUITY ENDING ALL MONETARY EXPOSURE OF CLAIMANTS AND' THE PARTIES RELEASED. CLAIMANTS AFFIRMATNELY STATE THAT NO GOVERNMENTAL AGENCY HAS A RIGHT TO RECOVER OR SUBROGATE ANY CLAIM AGAINST ANY PARTY RELEASED HEREIN, UNDER ANY RECOVERY ACT PROVIDED BY FEDERAL OR STATE LAW. THE CLAIMANTS, BEFORE SIGNING BELOW, DECLARE THAT THEY HAVE READ ALL OF THIS FULL AND FINAL RELEASE AND INDEMNITY AGREEMENT BEFORE SIGNING THE SAME OR HAVE HAD THIS DOCUMENT READ, AND 16 UNDERSTAND THAT IT IS A FULL, FINAL, AND COMPLETE RELEASE AND SETTLEMENT; THAT THEY HAVE MADE AN 1NDENLVITY AGREEMENT TO PROTECT THE PARTIES RELEASED FROM CLAIMS MADE AGAINST THEM BY OTHER PERSONS THAT MIGHT ARISE IN THE FUTURE OR HAVE ARISEN FROM THE CII2CUMSTANCES OF THE LITIGATION REFERENCED HEREIN AND THAT CLAIMANTS WILL NOT GET ANY MORE MONEY FROM THE PARTIES RELEASED ON ACCOUNT OF THE OCCURRENCE, FACTS, P.ND CIRCUMSTANCES ABOVE- RECITED. As further consideration for this Full and Final Release and Indemnity Agreement, it is expressly understood by Claimants that the Defendants in the above referenced litigation, namely PLEASURE ISLAND COMMISSION, CITY OF PORT ARTHUR, JIMMY DIKE and BRYAN JACKSON release any claims of any kind or chazacter they might have against 1NTERCOASTAL GOLF, L.L.C., BOYD HERNDON and/or CHARLES AHLMAN related to the circumstances pertaining to the management contract for the Palms Golf Course on Pleasure Island referenced in the pleadings in this litigation, including any entitlement to offset, reimbursement, damages or other compensation. Accordingly, the PLEASURE ISLAND COMMISSION, CITY OF PORT ARTHUR, JIMMY DIKE and BRYAN JACKSON mutually release any and all claims of any kind or chazacter they might have against INTERCOASTAL GOLF, L.L.C., BOYD HERNDON and/or CHARLES AHLMAN relating to the circumstances pertaining to the management contract for the Palms Golf Course on Pleasure Island referenced in the pleadings in this litigation, including any entitlement to offset, reimbursement, damages, attorneys' fees, costs, debts, claims for specific performance, actual damages, penalties or statutory damages, including any claim they might have against the aforesaid under any federal statute or law, federal or state constitution, I7 including the Texas Civil Code, the Texas Revised Statutes, and any other law, whether compensation or tort, federal or state, and whether at law, in equity, or otherwise. The PLEASURE ISLAND COMMISSION, CITY OF PORT ARTHUR, JIMMY DII{E and BRYAN JACKSON are not agreeing to indemnify the Claimants/Plaintiffs in this matter. BRYAN JACKSON releases any claim known or unknown he has related in any way [o him being a principal in INTERCOASTAL GOLF, L.L.C. and any claim known or unknown against CHARLES AHLMAN and BOYD HERNDON and any claim to any part of the settlement funds being paid by PLEASURE ISLAND COMMISSION, CITY OF PORT ARTHUR, JIMMY DIICE and BRYAN JACKSON to INTERCOASTAL GOLF, L.L.C. of Z S ~Y1 C INTERCOA AL GOLF, L.L.C., Plaintiff/Claimant ~ ~ ~i ri; ~ ~ ' ~ ; ~; BOYD HERNDOI~, Plaintiff/Claimant HARLES AHLMAN, Plaintiff/Claimant By: i.- i <~ PLEASURE ISLAND COMMISSION By: CITY OF PORT ARTHUR 18 r ~ ~ 7IM DIKE B JA KSON t9 THE STATE OF TEXAS § COUNTY OF JEFFERSON § n ~~~ EFO ME, the undersigned authority, on this day personally appeared (^/ yi }~ ~ ~n~y)1L`~'1 ,known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement on behalf of INTERCOASTAL GOLF, L.L.C., and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed; that he/she executed the same as his/her free act and deed after having it fully explained to him/her and after realizing the effect thereof to be a full and final discharge and release of all parties named herein, for any matter or thing dealt with in said instrument; and that the same was executed by him/her without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that a[ the time of execution of the said Release he/she was completely sober, sane and capable of understanding the character of his/her acts and deeds, and was in complete charge of all of his/her faculties and capable of executing this Release and of understanding the significance of his/her acts. ~l~L~ By: t INTERCOA AL GOLF, L.L.C. GIVEN UNDER MY G1 , 2009. _= ~~~~'^~~ Janney Gordon 5; i Noiary Public, State of Te `~~ `~My Commission Expires 020 My Commission Expires: HAND AND SEAL OF OFFICE this / ~ day of 'ATE OF TEXAS Typed or Printed Name of Notary 20 THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared BOYD HERNDON, known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement, and acknowledged to me that he executed the same for the purposes and consideration therein expressed; that he executed the same as his free act and deed after having it fully explained to him and after realizing the effect thereof to be a full and final dischazge and release of all parties named herein, for any matter or thing dealt with in said instrument; and that the same was executed by him without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that at the time of execution of the said Release he was completely sober, sane and capable of understanding the character of his acts and deeds, and was in complete charge of all of his faculties and capable of executing this Release and of understanding the significance of his acts. A /GL~ ;l ~. ; . ~ .- ~ BOYD HERND N: GIVE UNDER MY HAND AND SEAL OF OFFICE this 1 V day of M~y,~`L(~~ , 2009. ~~ ~ ~ Y ail, , NOTARY PUBLIC, STATE OF JAS My Commission Expires: ~ ~~i~~~i~ ~' ~'~ ~ ~ Typed or Printed Name of Notary •~,v"' ~°~wi,~,_ s..:. -MICHELLE LANDRY - ~ MY COMMISSION EXPIRES ';?;,~= September 19, 2010 21 THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared CHARLES AHLMAN, known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement, and acknowledged to me that he executed the same for the purposes and consideration therein expressed; that he executed the same as his free act and deed after having it fully explained to him and afrer realizing the effect thereof to be a full and final discharge and release of all parties named herein, for any matter or thing dealt with in said instrument; and that the same was executed by him without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that at the time of execution of the said Release he was completely sober, sane and capable of understanding the character of his acts and deeds, and was in complete charge of all of his faculties and capable of executing this Release and of understanding the significance of his acts. jr~~- ARLES AHLMA GNEN UNDER MY HAND AND SEAL OF OFFICE this ~_ day of .~Q, ~~ , 2009. `~ "~"~'~~~, Janney Gordon ~ I - Notary Public, State of Texas ~ ~ ~' __= My Commission Expires 02-04-2071 ~ RY P BLIC. ~aTE My Commission Expires: Typed or Printed Name of Notary 2z THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement on behalf of PLEASURE ISLAND COMMISSION, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed; that he/she executed the same as his/her free act and deed after having it fully explained to him/her and after realizing the effect thereof to be a full and final discharge and release of all parties named herein, for any matter or thing dealt with in said instrument and that [he same was executed by him/her without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that at the time of execution of the said Release he/she was completely sober, sane and capable of understanding the character of his/her acts and deeds, and was in complete charge of all of his/her faculties and capable of executing this Release and of understanding the significance of his/her acts. By: , PLEASURE ISL ND COMMISSION GIVEN UNDER MY HAND AND SEAL OF OFFICE this ~, day of iIl .2009. oaen Hruaa MY COMMISSION E7(PIHES Oc4~6er 19,1D12 OTARY PUBL C, STATE OF TEXAS My Commission Expires: l I ~ - I ~- ~ ~~ Typed or Printed Name of Notary 23 THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement on behalf of CITY OF PORT ARTHUR, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed; that he/she executed the same as his/her free act and deed after having it fully explained to him/her and after realizing the effect thereof to be a full and final discharge and release of all parties named herein, for any matter or thing dealt with in said instrument; and that the same was executed by him/her without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that at the time of execution of the said Release he/she was completely sober, sane and capable of understanding the character of his/her acts and deeds, and was in complete charge of all of his/her faculties and capable of executing this Release and of understanding the significance of his/her acts. By: CITY OF PORT ARTHUR GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of 2009. My Commission Expires: NOTARY PUBLIC, STATE OF TEXAS Typed or Printed Name of Notary za THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared JIMMY DIKE, known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement, and acknowledged to me that he executed the same for the purposes and consideration therein expressed; that he executed the same as his free act and deed after having it fully explained to him and after realizing the effect thereof to be a full and final dischazge and release of all parties named herein, for any matter or thing dealt with in said instrument; and that the same was executed by him without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that at the time of execution of the said Release he was completely sober, sane and capable of understanding the character of his acts and deeds, and was in complete charge of all of his faculties and capable of executing this Release and of understanding the significance of his acts. _ f ~ JIMM IKE GIVEN UNDER MY HAND AND SEAL OF OFFICE this ~ day of 2009. a ~ DANk FU11iA _ `~ MY CO~iAI5510N EX%RES f` ocfobert3, a712 NOT RY PUBLIC, S ATE OF TEXAS My Commission Expires: I '~~~ ~~~~ I 1 ~'I I I Typed or Printed Name of Notary zs THE STATE OF TEXAS § COUNTY OF JEFFERSON § BEFORE ME, the undersigned authority, on this day personally appeared BRYAN JACKSON, known to me to be the person who executed the foregoing Full and Final Release and Indemnity Agreement, and acknowledged to me that he executed the same for the purposes and consideration therein expressed; that he executed the same as his free act and deed after having it fully explained to him and after realizing the effect thereof to be a full and final discharge and release of all parties named herein, for any matter or thing dealt with in said instrument; and that the same was executed by him without any persuasion, promise, threat, force, duress, fraud or representation of any kind by any person whomsoever; and that at the time of execution of the said Release he was completely sober, sane and capable of understanding the character of his acts and deeds, and was in complete charge of all of his faculties and capable of executing this Release and of understanding the significance of his acts. R AN CKSO UNDER MY HAND . 2009. SUZ.4NNE E. fiENNIGAN Notary Pu61ic. State of Texas My Commission Expues Aptii 11, 2010 AND SEAL OF OFFICE this ~ day of CA Y P LIC, OF TEXAS My Commission Expires: Typed or Printed Name of Notary 26 ATTORNEY CERTIFICATION I certify that I am the attorney of record for INTERCOASTAL GOLF, L.L.C. in the lawsuit described in the foregoing Release. I have read the foregoing release to an authorized representative of INTERCOASTAL GOLF, L.L.C., fully explained to him/her the legal effect thereof, and afrer such explanation he/she was fully satisfied to release these claims and executed same upon my advice, recommendations and consent. In consideration of the inclusion of my name as attorney on the drafr, I join in the execution of this instrument and release any claim I might have for my law firm and myself, and acknowledge that all attorneys' fees and expenses in connection with the above-mentioned action have been fully paid, settled and satisfied. WELLER, GREEN, TOUPS & TERRELL, L.L.P. By: Mr. Mitchell A. Toups Ms. Carrie H. Cody P.O. Box 350 Beaumont, Texas 77704-0350 27