1992-135e:\updocs\smattset.o
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AND AUTH-
ORIZING THE CITY MANAGER TO EXECUTE A RELEASE IN THE MATTER OF R.C.
SMALL & ASSOCIATES, INC. V. THE CITY OF DENTON, TEXAS; AND DECLaR-
ING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the attached Mutual Release of Claims in the
matter of R.C. Small & Associates, Inc. v. The city of Denton,
Texas, providing for the settlement and compromise of the litiga-
tion now pending between the parties in the 68th District Court,
Dallas County, Texas, Cause No. 91-3088-C is approved in accordance
with its terms, and the City Manager is hereby authorized to
execute same on the city's behalf.
SECTION II. That this ordinance shall become effective immedi-
atel~ upon its passage and. approv,a~ ~
PASSED AND APPROVED this the/~ day of , 1992.
BOB CASTLEBERRY, MAYOR/ ~
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEC~AL-EORM:
DEBPJ~ A. DRAyOVITCH~.~TY ATTORNEY
STATE OF TEXAS
COUNTY OF DENTON
NO. 91-3088-C
R.C. SMALL & ASSOCIATES, INC. § IN THE DISTRICT COURT
VS. § 68TH JUDICIAL DISTRICT
THE CITY OF DENTON, TEXAS § DALLAS COUNTY, TEXAS
MUTUAL RELEASE OF CLAIMS
THIS AGREEMENT, hereinafter referred to as the "release", is
by and between R.C. Small & Associates, Inc., hereinafter referred
to as "Small", and the City of Denton, Texas, hereinafter referred
to as "City". This release concerns claims arising out of the
construction of the Martin Luther King, Jr. Recreation Center,
located in Denton, Texas, hereinafter referred to as "building".
WHEREAS, City and Small entered into an agreement for the
construction of the building; and
WHEREAS, during the course of the building's construction and
afterwards, certain problems arose which City attributed to
construction defects and non-conformance with the construction
contract; and
WHEREAS, City and Small unsuccessfully attempted to resolve
these problems without litigation; and
WHEREAS, City refused to pay the final retainage until the
problems were resolved; and
WHEREAS, On March 15, 1991, Small filed the above styled and
numbered lawsuit, still pending in the 68th District Court of
Dallas County, Texas, to collect this retainage; and
Mutual Release of Claims - Page 1
WHEREAS, city counterclaimed in the same lawsuit for damages
arising out of claimed construction defects, non-conformance with
the contract specifications and deceptive trade practices; and
WHEREAS, city and Small, while denying the validity of the
charges made by the other, understand that the claims asserted
between them are doubtful and in dispute and have settled such
disputes by compromise to avoid litigation and buy peace; and
WHEREAS, City has agreed to pay Small $18,000 of the disputed
retainage in settlement of this lawsuit; and
WHEREAS, both parties agree to accept this settlement and to
release the other from all claims raised in the lawsuit; and
WHEREAS, bona fide disputes and controversies exist between
the parties bo'th as to liability and the amount thereof, if any,
and by reason of such disputes and controversies the parties hereto
desire to compromise and settle this particular lawsuit, and intend
that the full terms and conditions of this mutual release be set
forth in this agreement;
NOW, THEREFORE, for and in consideration of the premises and
the mutual promises and covenants herein contained, and for other
good and valuable consideration in the form of city's payment to
Small the sum of Eighteen Thousand Dollars ($18,000.00), the
receipt and sufficiency of which is hereby acknowledged by Small,
both parties above named, for their predecessors, successors,
assigns, heirs, executors, administrators, and legal representa-
tives this day release and by these presents do release, acquit,
and forever discharge the other and its predecessors, assigns,
Mutual Release of Claims - Page 2
heirs, executors, administrators, and legal representatives, from
any and all claims which were raised or could have been raised
against each other by the parties to and in the above referenced
lawsuit, except for the rights specifically reserved herein.
It is further understood and agreed that this mutual release
extends only to parties to the lawsuit referenced above, as
specifically set forth herein. Nothing herein contained shall be
construed as a release of any other person or entity, and all
claims, demands and causes of action which City or Small may claim
against any other person or entity, including specifically the
architects and engineers responsible for the design of the
building, are hereby expressly reserved.
It is expressly understood and agreed that the terms hereof
are contractual and not merely recitals and that the agreements
herein contained and the consideration transferred is to compromise
doubtful and disputed claims, avoid litigation, and buy peace, and
that no payments made nor releases or consideration given shall be
construed as an admission of liability, all liability being
expressly denied.
The parties hereto mutually and simultaneously by these
presents authorize and direct their respective attorneys to execute
and deliver for entry such instruments as may be necessary to
obtain dismissal of the above-mentioned litigation, with prejudice
to the rights of both parties.
city warrants that the person signing on its behalf has read
this Agreement and fully understands it to be a mutual release, and
Mutual Retease of Claims - Page 3
further warrants that said person is of legal age, is legally
competent to execute this Agreement, has legal authority to sign
this document on behalf of the City of Denton, Texas, and does so
of his or her own free will and accord without reliance on any
representation of any kind or character not expressly set forth
herein.
Small warrants that the person signing on its behalf has read
this Agreement and fully understands it to be a mutual release, and
further warrants that said person is of legal age, is legally
competent to execute this Agreement, has legal authority to sign
this document on behalf of Small, and does so of his or her own
free will and accord without reliance on any representation of any
kind or character not expressly set forth herein.
R.C. Small and Associates, Inc. City of Denton, Texas
~,c~ ~,o~ , ~ Manager
APPROVED AS TO LEGAL FORM:
Debra Adami Drayovitch,
city Attorney
city of Denton, Texas
stev~h-i~i-'k~nnedy
Attorney for R.C. Small and Associates, Inc.
Mutual Re[ease of Claims - Page 4
STATE OF TEXAS
COUNTY OF DENTON
BEFORE ME , the undersigned, a Notary Public in and for said
County and State, on this day personally appeared Lloyd V. Harrell,
known to me to be the person who executed the foregoing instrument
and acknowledged to me that he executed the same for the purposes
and consideration therein expressed; that he executed the same as
his free and voluntary act and deed after having it fully explained
to him, and after having read it fully, and after realizing the
effect thereof to be a mutual release between the city of Denton,
Texas and R.C. Small and Associates, Inc., for the limited matter
or thing dealt with in the foregoing instrument; and that the same
was executed by him without any threat, force, fraud, duress, or
representation of any kind by any person whomsoever; and that he
had the legal authority to bind the City of Denton, Texas to such
an agreement; and that at the time of execution of the release,
Lloyd V. Harrell 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 instrument and of understanding the significance of his acts.
GIVEN under my hand and seal of office this ~day of
h0tan~Public l~and for Denton
.~A~ I County Texas
Mutual Re[ease of Ctaims - Page 5
STATE OF TEXAS
. . .W~c~ F~e$~d eot~
BEFORE ME , the undersigned, a Notary Public in and for sal~
County and State, on this day personally appeared ~obazt C. S~all,~
known to me to be the person who executed the foregoing instrument
and acknowledged to me that he executed the same for the purposes
and consideration therein expressed; that he executed the same as
his free and voluntary act and deed after having it fully explained
to him, and after having read it fully, and after realizing the
effect thereof to be a mutual release between the city of Denton,
Texas and R.C. Small and Associates, Inc., for the limited matter
or thing dealt with in the foregoing instrument; and that the same
was executed by him without any threat, force, fraud, duress, or
representation of any kind by any person whomsoever; and that he
had the legal authority to bind R.C. Small & Associates, Inc. to
such an agreement; and that at the time of execution of the
release, Robert C. Small 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 instrument and of understanding the significance of his acts.
~/~day
_~_~IVEN under my hand and seal of office this of __
~ , 1992.
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Mutual Release of Claims - Page 6