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HomeMy WebLinkAboutContract 49214 Sol rr� 2 CITY SECRETARY, a q�. CONTRACT NO._ N Nr- MUTUAL RELEASE AND SETTLEMENT AGREEMENT Q Cl1Y FORT`Nl3P% T Mutual Release and Settlement Agreement (the "Agreement") is made and entered into by OE C"yja lfybet the City of Fort Worth (the "City") and the Fort Worth Botanical Society, Inc. (the "FW For purposes of this Agreement, the City and FWBS are referred to individually as a"Party" Ol 6 1. ectively, as the"Parties." WHEREAS, the City and FWBS are parties to Fort Worth City Secretary Contract ("CSC") Number 32788, as amended and renewed by CSC Nos. 35186, 32788-A2, 32788-A3, and 32788-R1A4 (the"Prior Agreement"); WHEREAS, pursuant to the Prior Agreement, the FWBS maintains a special restricted account, titled "Botanic Garden Special Account," managed by the FWBS and used solely for the operation, expansion and improvement of the Fort Worth Botanic Garden (the"Special Account"); WHEREAS, the parties negotiated that certain Amended and Restated Agreement between the FWBS and the City to replace the Prior Agreement(the"Amended and Restated Agreement"); WHEREAS, prior to execution of the Amended and Restated Agreement, FWBS transferred $299,181.47 from the Special Account to a FWBS Account contending such amount represented a repayment on a previous loan (the"Transfer"); WHEREAS, the City disputes the basis for the Transfer, contending that the amounts previously provided by FWBS were provided as budgeted expenses related to a Botanic Garden project and not a loan (the"Dispute"); and WHEREAS, the Parties have reached a settlement of the Dispute and desire to document that settlement as reflected herein. NOW, THEREFORE, for and in consideration of the foregoing recitals and the mutual agreements contained herein, the sufficiency of which is hereby acknowledged and confessed, the Parties do hereby covenant and agree as follows: 1. Effective Date. This Agreement becomes effective upon the date that it is signed by both Parties(the"Effective Date"). 2. Transfer of Funds. Within one (1) business day of the Effective Date, FWBS shall transfer $244,676.22 to the Special Account (specifically, to Wells Fargo Account No. ending in 1485- Checking), which funds shall be subject to the terms and conditions of the Prior Agreement until such time as the City executes the Amended and Restated Agreement at which point the funds will be subject to the Amended and Restated Agreement. 3. Computers. Within three (3) business days of the funds transfer addressed in Paragraph 2, the City will deliver to FWBS the two Toshiba Satellite Radius laptop computers (serial numbers 7E317910C and 7E317940C) in the City's possession previously utilized by FWBS for its operations. 4. Execution of the Amended and Restated Agreement. Within three (3) business days of the funds transfer addressed in Paragraph 2, the City shall execute the Amended and Restated Agreement that was executed on April 28, 2017 by FWBS with the agreed upon amendments to sections 10.01, 10.03, and 12.01(e) as reflected in the redline agreement provided by counsel for the City to counsel for FWBS via email on May 5, 2017 and attached hereto as Exhibit A. OFFICIAL RECORD MUTUAL RELEASE AND SETTLEMENT AGREEMENT CITY SECRETARTA E 1 FT.WORTH,TX 5. Mutual Releases. In consideration of this Agreement and for other good and valuable consideration, the sufficiency of which is hereby acknowledged and confessed, subject to the exceptions in Paragraph 6, each Party and their officers, representatives, successors, and assigns (the "Releasing Parties"), does hereby fully, finally, completely, generally, and forever release, discharge, and relinquish the other Party and its respective officers, directors, elected officials, current and former employees, agents, attorneys, successors, assigns, and heirs (the"Released Parties") from any and all claims, actions, demands, liens, and causes of action of whatever kind or character, at law or in equity, whether known or unknown, present or future, liquidated or unliquidated, asserted or unasserted,joint or several, matured or unmatured, direct, indirect, or derivative, fixed or contingent, that the Releasing Parties have or might claim to have against the Released Parties related to the Dispute. 6. Matters Excepted from The Scope of This Release. Notwithstanding any provisions of this Agreement to the contrary, the releases provided in Paragraph 5 will not release or discharge any right of the Parties to enforce and/or seek damages for violation of any of the terms, covenants, representations, warranties and/or indemnities contained in this Agreement or the obligations arising under the Amended and Restated Agreement or the Prior Agreement (except as those obligations under the Prior Agreement directly related to the Dispute). 7. Parties' Warranties and Representations. As partial consideration for this Agreement, each Party hereto makes the following representations, warranties, and covenants to the other Party, each of which will be deemed material(and each Party in executing, delivering, and consummating this Agreement has relied and will rely upon the correctness and completeness of such representations, warranties,and covenants notwithstanding independent investigation, if any): i. That the individuals executing the Agreement on behalf of each respective Party have been by said Party or will be as of the Effective Date fully authorized and empowered to execute the Agreement and thereby bind each respective Party hereto; ii. That the Parties are the sole owners of all rights, demands, liens, causes of action, and claims that are the subject matter of this Agreement, or that any and all other owners of such rights, demands, liens, causes of action, and claims are also a party to this Agreement, and there is no limitation or impairment of the right of the Parties to enter into this Agreement; iii. That the Parties have carefully reviewed this Agreement, understand its terms, and have sought and obtained independent legal advice with respect to the negotiation and preparation of this Agreement; iv. That no representation,promise, or agreement which is not herein expressed has been made to it related to its execution of this Agreement, and that such Party is not relying upon any representation, promise, or agreement of any other Party or the agent of the other Party which were not expressed herein; V. That the consideration herein is not to be considered as an admission of any liability by either Party; and vi. That each Party hereby waives any claim that the Party may have to set aside this Agreement because such Party had insufficient knowledge in connection with any and all of the claims released as part of this Agreement, or that material information has been withheld from such Party prior to entering into this Agreement. The warranties and representations in this Paragraph 7 shall survive the execution and performance of this Agreement. 8. Final and Entire Agreement. Each Party acknowledges that it has read this Agreement in its entirety before signing it, and it has consulted with counsel of its own choosing concerning the effect of this Agreement, is fully satisfied with the advice received from counsel relating to the issues involved and the claims released herein, and fully understands that this Agreement constitutes a full, final, MUTUAL RELEASE AND SETTLEMENT AGREEMENT PAGE 2 and complete release and settlement of any and all claims released by the Releasing Parties in Paragraph 5. This Agreement represents the final and entire agreement between the Parties as to the Dispute and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral or written agreements of the Parties. There are no unwritten oral agreements between the Parties. 9. Severability. In the event than any provision of this Agreement is held void,voidable, or unenforceable,the remaining portions shall remain in full force and effect. 10. Governing Law and Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United states District Court for the Northern District of Texas— Fort Worth Division. This Agreement, including all exhibits, shall be construed in accordance with the laws of the State of Texas. 11. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. 12. Governmental Powers and Immunities. It is understood that by execution of this Agreement,the City does not waive or surrender any of its governmental powers or immunities. IN WITNESS WHEREOF, the parties have executed this Agreement in multiples in Tarrant County, Texas as of the dates set forth below. CITY OF FORT WORTH FORT WORTH BOTANICAL SOCIET NC. ByY14, By: uk= Alanis Harvey Yama ata Assistant City Manager President �7 Date: CO a't(v a'0 l Date: �uE•l� 26 LZt� t AP�ROV — AS TO FORM AND LEGALITY: �✓ yler F. Zllachll Assistant City Attorney o AT E FOR?- � of a J. Kayser U `� 2 * `yF OFFICIAL RECORD CITY SECRETARY MUTUAL RELEASE AND SETTLEMENT AGREEMENT ff.WOVH,WE Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name of Employee/Signature Title This form is N/A as No City Funds are associated with this Contract Printed Name Signature