Res 093-98 7/7/1998RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE A
COMPROMISE AND SETTLEMENT AGREEMENT WITH
BUCHANAN CONSTRUCTION COMPANY; FINDING AND
DETERMINING THAT THE MEETING AT WHICH THIS
RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS
REQUIRED BY LAW.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS,
TEXAS:
SECTION 1. That the Mayor be and is hereby authorized to execute a
Compromise and Settlement Agreement with Buchanan Construction Company for the
construction of the Multi- Purpose Events Center Agricultural Complex, in accordance
with the terms and conditions of said Compromise and Settlement Agreement, attached
hereto and made a part hereof for all purposes.
SECTION 2. It is hereby officially found and determined that the meeting at
which this resolution was passed was open to the public as required by law.
PASSED AND APPROVED this the 7th day of July, 1998.
MAYO
f
ATTEST:
COMPROMISE AND SETTLEMENT A REEMENT
This Compromise and Settlement Agreement ( "Agreement ") is made this day by the parties
upon the following terms:
The parties to this Agreement ( "Parties ") are:
a. The City of Wichita Falls, Wichita County, Texas ( "City"); and,
b. Buchanan Construction Co., a Texas corporation, whose business office is located
at 104 Armada (rear), Lakeside City, Texas 76308 -5701 (`Buchanan').
RECITALS
City and Buchanan entered into a construction contract ( "Contract ") for the construction of
the MPEC Agricultural Complex ( "Project "). City has made certain complaints to and about.
Buchanan and its workmanship on elements of the roof and other elements of the Project as described
in March 4, 1998 FaxMemo from Project Architect, Ralph Perkins, to Kay Yeager, Chairperson of
MPEC Committee ( "Complaints "). City has withheld from payments due or to become due to
Buchanan on the Project the sum of $4500.00 as retainage ( "Retainage ") for performance of
warranty and other work.
City and Buchanan have caused certain investigations to be made as the cause(s) and
foundation(s) for the Complaints, and certain disputes and disagreements have developed between
City and Buchanan with respect to the liabilities and responsibilities of the respective parties for
remediation of the Complaints ( "Disputes and Controversies ").
Bona fide Disputes and Controversies exist between the parties, both as to liability and the
amount thereof, if any, and by reason such Disputes and Controversies the parties hereto desire to
compromise and settle all claims and causes of action of every kind whatsoever, whether known or
unknown, which any party has now or may have in the future against the other party hereto arising
out of the Contract and the Project except Unknown Latent Defects and intend that the full terms and
conditions of the compromise and settlement be set forth in this Agreement.
COMPROMISE AND SETTLEMENT
For and in consideration of the covenants herein, the parties settle and compromise all matters
of dispute between them as follows:
COMPROMISE AND SETTLEMENT AGREEMENT
1. Payment and Release - Buchanan to Citv_. Contemporaneous with the execution of
this agreement, Buchanan agrees to pay to City the sum of $2517.03 and does hereby waive,
relinquish, release and discharge to, of and for City any claim to further payment under the contract
including the Retainage. City agrees to accept such payment and release in complete and final
discharge of Buchanan from any and all obligations to City under the contract.
2. Release - City to Buchanan. In consideration of the foregoing payment, City has, and
by these presents does hereby, release, acquit and forever discharge Buchanan from all claims, causes
of action, damages, demands, obligations, liabilities, suits and attorney's fees, of whatsoever nature,
whether known or unknown, in any manner claimed, owned, held or possessed by City or arising out
of or resulting from the above recited Disputes and Controversies and the Contract SAVE AND
EXCEPT any future claims arising out of unknown latent defects, if any, in the Work under the
Contract for the Project ("Unknown Latent Defects "), it being intended to release all claims of every
kind which City may have against those hereby released, whether or not previously asserted in
litigation or otherwise, except for Unknown Latent Defects and Buchanan's obligations arising
hereunder. City warrants and represents to Buchanan that it has no knowledge of any latent defectsin
the Work on the Project.
3. Contractual Langtiage. The parties agree that the language contained in this
Agreement is not merely recital, but is contractual.
4. Entire Aareern . It is understood and agreed that this Agreement contains the entire
agreement between the parties and supersedes any and all prior agreements, arrangements or
understandings between the parties relating to the subject matter of this Agreement. There exist no
oral understandings, statements, promises or inducements which are not contained within or which
are contrary to the terms of this Agreement. This Agreement cannot be changed or terminated orally.
Warranties of Parties. All parties warrant to each other as follows:
a. That they have read this Agreement and fully understand it;
b. That the persons executing this Agreement on behalf of a Municipal or
business corporation are each duly authorized to execute this Agreement, and
that they do so on their own free will and accord, without reliance upon any
representation of any kind or character not expressly set forth herein;
c. That they have consulted with an attorney of their own choice and
selection before executing this Agreement, and that such attorney has
explained the content, effect and meaning of this document.
6. Governing Law. This Agreement shall be construed under and in accordance with the
laws of the State of Texas, and all obligations of the parties created hereunder are performable in
Wichita County, Texas.
COMPROMISE AND SETTLEMENT AGREEMENT Page 2
7. No .Strict Construction. This Agreement shall not be strictly construed against any
party hereto.
8. Successors and Assitzris. The provisions of this Agreement shall inure to the benefit
of and bind the parties and their respective heirs, representatives, successors and assigns.
9. Counterpart s. This Agreement is prepared and executed in multiple counterparts, each
of which shall be deemed to be an original.
10. No Admission of Liability. It is agreed and understood that this is a compromise and
settlement of doubtful and disputed claims and defenses; that this Agreement is not to be construed
as an admission of any liability on the part of any party hereby released as to liability or the amount
of any damages claimed; but rather all parties expressly deny liability therefor and this Agreement is
entered into by the parties to avoid further claim and/or litigation, litigation expense, and to buy
peace.
THIS IS A LEGAL DOCUMENT. DO NOT SIGN BEFORE READING AND WITHOUT
THE ADVICE AND CONSENT OF LEGAL COUNSEL.
Signed on the respective dates set out to the side of each signature.
CITY:
Dater (�1� City of Wichita Falls, Texas
Its
BUCHANAN:
Date: C
� 1� Cf� Buchanan Construction Co.
By: 6c, /"I,"—
,(Jay/Buchanan, President
COMPROMISE AND SETTLEMENT AGREEMENT Page 3