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HomeMy WebLinkAboutPR 13848: ENTERGY GULFinteroffice MEMORANDUM To: Mayor, City Council & City Manager From: Mark T. Sokolow, City Attorney ~ ~b~~f~ Subject: P. R. No. 13848 Council Meeting October 24, 2006 Date: October 20, 2006 Attached is P. R. No. 13848 authorizing the City Manager to execute a Release and Settlement Agreement with Entergy Gulf States, Inc. MTS:ts Attachment cc: VIA FACSIMILE (512) 474-2507 Mr. Dan Lawton THE LAWTON LAW FIRM z .pr13848 .memo P. R. No. 13848 10/20/06 ts RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A RELEASE AND SETTLEMENT AGREEMENT WITH ENTERGY GULF STATES, INC. WHEREAS, it is deemed in the best interests of the citizens to execute a Release and Settlement Agreement with Entergy Gulf States, Inc., in substantially the same form as attached hereto as Exhibit ~A". WHEREAS, 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 the City Manager, is authorized to execute a Release and Settlement Agreement with Entergy Gulf States, Inc., in substantially the same form as attached hereto as Exhibit ~A". Section 3. That a copy of the caption of this Resolution be spread upon the Minutes o[ the City Council. READ, ADOPTED AND APPROVED on this __ day of , A.D., 2006, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: pz. 13848 AYES: Mayor Councilmembers ' ; NOES: MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY APPROVED FOR ADMINISTRATION~ CITY MANAGER pz.13848 EXHIBIT "A" pz.13848 STATE OF TEXAS COUNTY OF JEFFERSON RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is executed effective this __ day of October, 2006, by and among the City of Port Arthur, a municipality incorporated in the State of Texas ("Port Arthur") and Entergy Gulf States, Inc., individually, and for purposes of this Agreement, as representative of Entergy Corporation, Entergy Services, Inc. and all other associated and affiliated entities (all of which shall be collectively referred to as "Entergy"). The City of Port Arthur and Entergy will be collectively referred to as the "Parties". WHEREAS, in 1964 the Parties entered into an agreement in which Entergy is obligated to make certain franchise fee payments to the City of Port Arthur hereinafter sometimes referred to as the "1964 Agreements'. WHEREAS, the Parties entered into a new Agreement, which became effective February 1, 2006 sometimes referred to as the "2006 Agreement". WHEREAS, the payments under the 2006 Agreement are referred to in this Agreement as the portion of the payment that would have been made under the 1964 Agreement if it were not terminated ("Base Payments") and the portion of the payment made under the 2006 Agreement for which a municipal franchise fee surcharge was required ("Incremental Payment"); WHEREAS, a disagreement has arisen between the Parties as to whether the payments required under the 1964 Agreement are payments to compensate the City for EGSI's use of the rights of way for the 12 months ending on June 30 of the year in which the payment is made or compensation for EGSI's use of the City's rights of way for the twelve months beginning July 1 of the year in which the payment is made which has sometimes been referred to as the "timing of payments" or the "pre/post payment" issue which is further set out in Joseph Domino's January 30, 2006 letter to Mayor Ortiz, with the attached January 27, 2006 L. Richard Westerburg's letter to Dan Lawton. WHEREAS, the Parties have agreed to settle all claims and rights regarding the above "timing of payments" or the "pre/post payment" issue. NOW THEREFORE, in consideration of the performance of the promises and conditions contained herein, the adequacy of which hereby being acknowledged, the Parties hereby agree as follows: 1. Consideration. As good and valuable consideration for the execution of this Release as it pertains to the payment of franchise fees, Entergy has agreed to amend the payment terms contained in Section 9 of the 2006 Agreement consistent with Ordinance Number __ entitled An Ordinance Amending Franchise Number 04-51 Granted Entergy Gulf States, Inc. Both Parties herein agree that all payments made pursuant to the 1964 Agreement and the payments to be made each September 1 pursuant to Ordinance Number __ entitled An Ordinance Amending Franchise Number 04-51 Granted Entergy Gulf States, Inc. are and will be prepayments or payments made to compensate Port Arthur for the twelve months beginning July 1 of the year in which the payment is made. 2. Release. The City of Port Arthur, through its designated representatives and pursuant to the authority granted it from the duly authorized elected official body, for the consideration herein noted, does hereby execute this Release and Settlement Agreement and completely and forever -2- releases and discharges Entergy, its subsidiaries, affiliated corporations, shareholders, officers, directors, agents and employees from any and all claims, demands, suits, judgments or executions and payments of any kind, sort or description, known or unknown, which the Parties may at any time have had, may now have or may ever have, arising out of, concerning, or relating to the "timing of payments" or the "pre/post payment" issue under the 1964 Agreement and the Base Payment under the 2006 Agreement. 3. Governing Law. This Agreement shall be governed and interpreted pursuant to the laws of the State of Texas. 4. Multiple Counterparts. Multiple counterparts of this Agreement shall be executed by the Parties, each of which shall be considere, d the original. 5. Due Authorization. The signatory executing below hereby represents and warrants that he has been duly authorized and empowered to execute this Agreement for the consideration herein named. 6. Savings Clause. In the event any part of this Agreement shall be held to be invalid and unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. IN WITNESS HEREOF, the Parties, having represented to one another that they have carefully read the foregoing terms of this Agreement, that they know the contents of this Agreement, that they have consulted with their respective attorneys prior to signing this Agreement regarding its legal effect, that they have the authority to execute this Agreement, and that they have undertaken to sign this Agreement as their own respective free act and having -3- declared their intention to be bound contractually by all such terms and conditions, do hereby execute and deliver this Agreement effective the date and year first above written. SIGNED AND AGREED TO on this the __ day of ., 2006. CITY OF PORT ARTHUR By: STEPHEN FITZGIBBONS, CITY MANAGER SUBSCRIBED AND SWORN to before me, the undersigned authority, on the __ day of October 2006 by [NAME]. Notary Public, State of Texas My Commission Expires: SIGNED AND AGREED TO on this the __ day of ,2006. ENTERGY GULF STATES, INC., as representative of Entergy Corporation, Entergy Services, Inc. and all other associated and affiliated entities By: SUBSCRIBED AND SWORN to before me, the undersigned authority, on the __ day of 2006 by Notary Public, State of Texas My Commission Expires: -4-