HomeMy WebLinkAbout1989-07-31-0130PM-Executivef '
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89 JUL 28 rill 9: 35
BR.AZOS COUNTY ~w
BRYAN. TEXAS
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AGENDA
BRAZOS COUNTY COMMISSIONERS' COURT MEETING
MONDAY, JULY 31, 1989, 1:30 P.M.
1. Executive Session to discuss litigation 6252-17(2)(e). ~
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2.• Consider and take action on Executive Session.
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3. Adjourn.
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COMMISSIONERS' COURT
SPECIAL MEETING
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JULY 31, 1989
A special meeting of the Commissioners' Court of Brazos `
'County, Texas was held in the CommissionersI -Courtroom in the
Courthouse in Bryan, Brazos County, Texas, beginning at 1:32 pm.
ion Monday, July 31, 1989, with the following members of the
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Court present: ;
R. J. Holmgreen, County Judge, Presiding;
l Gary Norton, Commissioner of Precinct 1;
1; Walter Wilcox, Commissioner of Precinct 2;
i1 Randy Sims, Commissioner of Precinct 3;
Milton Turner, Commissioner of Precinct 4;
it Frank Boriskie, County Clerk. i
The following citizens and officials were in attendance:
` Bea Green Secretary to Commissioners
W. R. Vance Vance, Bruchez and Goss
The County Judge opened the meeting and at 1:32 p.m.
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,announced the meeting closed to the public so that the Court
;,could meet in closed executive session to discuss litigation.
At 1:37 p.m, the County Judge announced the meeting open to
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the public. On motion by Commissioner Turner, seconded by
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,Commissioner Norton, the Court voted unanimously to authorize the
;County Judge to execute the final agreement with Utley James,
General Contractor for the remodeling and construction of the
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Courthouse. Commissioner Norton thanked Mr. Vance for all his
help.
There being no further business to come before the Court,
;,the meeting was adjourned.
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The foregoing minutes have been examined and approved in
open Court this Lite aa-001 day of , 19-, ire
Bryan, Brazos County, Texas.
R. J. to mgreen
County Judge
Palter Wilcox
Commissioner, Precinct 2
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Milton Turner
Commissioner,'Precinct 4
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Commiss ~4 er, Precinct 3
Frank Boris e
County Clerk
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Gary N on
Comma loner, Precinct 1
SETTLEMENT AGREEMENT AND ML1 MAL RELEASE
The parties to this Settlement Agreement and Mutual Release are County of
Brazos, Texas ('Brazos'), Utley James of Texas, Inc. ("Utley James', Aetna Casualty and
Surety Company ("Aetna"), Jack W. Cumpton and Associates, Inc. ("Cumpton and Asso-
ciates') and Jack W. Cumpton ("Cumpton'
WHEREAS, Utley James had a certain contract for the modifications and additions
to the Brazos County Courthouse; and
WHEREAS, Aetna, as Surety, furnished a performance bond for the faithful comple-
tion of said contract; and
WHEREAS, in approximately November of 1987, Brown Engineering and Testing,
Inc. ("Brown Engineering") filed its Original Petition in Cause No. 30,576-361 in the 361st
Judicial District Court of Brazos County, Texas complaining of Utley James and Aetna
concerning certain contract and construction matters related to the Brazos County Court-
house Project; and
WHEREAS, Utley James and Aetna have filed Answers denying the claims of Brown
Engineering; and
WHEREAS, Brown Engineering thereafter sued the County of Brazos, Cumpton and
Associates and Cumpton; and
WHEREAS, Brazos subsequently crosscWmed against Utley James and Aetna for
matters more fully recited in the crossclaim; and
WHEREAS, all matters involving the alleged claim of Brown Engineering were
thereafter resolved; and
WHEREAS, certain claims remained between the parties to this Settlement Agree-
ment as more fully recited in the pleadings of the said cause; and
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WHEREAS, approximately $41,197.97 (Forty-One Thousand One Hundred Ninety-
Seven and 97/100 Dollars) in contract funds remains in the hands of Brazos; and
WHEREAS, all of the above parties desire to compromise and settle all claims,
causes of action, rights, obligations, and/or disputes which they may have one against the
other, as specifically set out as in Paragraphs 2, 3 and 4 below, they have now AGREED as
follows:
1. Brazos is to keep and retain the above-referenced $41,197.97 (Forty-One
Thousand One Hundred Ninety-Seven and 97/100 Dollars) as consideration for settlement
of all of its claims against Utley James and Aetna.
2. Brazos, Cumpton and Associates and Cumpton, for themselves, their heirs,
executors, successors, assigns and legal representatives agree and do hereby release, acquit,
and discharge, Utley James and Aetna from any and all claims, causes of action, rights
and/or remedies which it has or may have, known or unknown, against the parties released
pursuant to this paragraph, their heirs, executors, predecessors, successors, assigns, employ-
ees, legal representatives, and/or agents. In further consideration, Brazos does hereby
release, discharge and acquit Aetna of any and all claims of any nature, including warran-
ties and guarantees, which it may have against Aetna's Surety bond covering Utley James
of Texas, Inc., as Principal, for that certain contract dated November 22, 1985, for Modifi-
cations and Additions to the Brazos County Courthouse.
3. Utley James and Aetna, for themselves, their heirs, executors, successors,
assigns and legal representatives agree and do hereby release, acquit, and discharge Brazos
County, Cumpton and Associates, and Cumpton from any and all claims, causes of action,
rights and/or remedies which they have or may have, known or unknown against the
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parties released pursuant to this paragraph, their heirs, executors, predecessors, successors,
assigns, employees, legal representatives, and/or agents, including, but not limited to, any
claims, lien rights, or other rights which they may have.
4. Brazos agrees that it will not institute any action or suit at law or in equity
against Utley James or Aetna, nor institute, prosecute, or voluntarily aid in the institution
or prosecution of any claims, demands, actions, or causes of action for injuries, damages,
costs, loss of service, expenses, or compensation for or on account of any damage, loss or
injury, to persons and/or property, whether developed or undeveloped, resulting or to
result, known or unknown, past, present or future, arising out of, in connection with,
related to, or pertaining to the litigation or to the performance of the contract between
Utley James and Brazos. Further, in the event Brazos breaches this covenant by institut-
ing, prosecuting, or voluntarily aiding in the institution or prosecution of any action, suit,
or demand, for the claims and causes of action alleged or that might have been alleged in
• the litigation, then it will be liable to Utley James or Aetna for all damages, including
without limitation costs of Court and attorney's fees sustained or incurred by Utley James
or Aetna in settlement or defense of such action, suit, claim, demand, or cause of action,
and Brazos shall indemnify and hold Utley James or Aetna harmless from all such dam-
ages.
Likewise, Utley James and Aetna agree that they will not institute any action or suit
at law or in equity against Brazos nor institute, prosecute, or voluntarily aid in the institu-
tion or prosecution of any claims, demands, actions, or causes of action for injuries, dam-
ages, costs, loss of services, expenses, or compensation for or on account of any damage,
loss or injury, to persons and/or property, whether developed or undeveloped, resulting or
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to result, known or unknown, past, present or future, arising out of, in connection with,
related to, or pertaining to the litigation or to the contract. Further, in the event Utley
James or Aetna breaches this covenant by instituting, prosecuting, or voluntarily aiding in
the institution or prosecution of any action, suit, claim, demand, or cause of action as
described above, the party breaching the covenant will be liable to Brazos for all damages,
including without limitation costs of Court and attorney's fees sustained or incurred by
Brazos in settlement or defense of such action, suit, claim, demand, or cause of action, and
shall indemnify and hold Brazos harmless from all such damages.
5. Notwithstanding any of the above, the parties hereto expressly reserve a!1
claims, rights and defenses for unknown latent defects hereafter discovered in modifications
and additions to the Brazos County Courthouse performed by Utley James and its subcon-
tractors. Additionally, in no event do the parties hereto intend to enlarge or expand their
respective rights and obligations under the Original Contract, bond or under State law.
6. All parties to this Agreement who are parties to Cause No. 30,576-361
pending in the 361st Judicial District Court of Brazos County, Texas, agree that a Take-
Nothing Judgment of all claims which any of those parties have, one against the other in
that case shall be submitted to the Court in the form attached as Exhibit "A" to this Settle-
ment Agreement and Mutual Release and that counsel for each party will sign the Take-
Nothing Judgment in the form attached as Exhibit "A" to this Settlement Agreement and
Mutual Release for submission to the Court following execution of this Settlement Agree-
ment and Mutual Release by all parties.
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except in a writing signed by any party affected by such amendment or modification.
8. By its signature below, each party to this Agreement acknowledges and agrees
that it has had an opportunity to review the terms of this Agreement, that it has executed
this Agreement after an opportunity to consult with counsel of their own choosing, and that
they have executed this Agreement for and in consideration of the agreements recited
herein.
This Settlement Agreement and Mutual Release may be executed in multiple
originals and is effective as to each party who executes it or accepts consideration under
the Agreement.
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7. This Settlement Agreement and Mutual Release constitutes and is intended
be th b
to e entire agreement etween the parties and may not be modified or amended,
AGREED AND APPROVED:
COUNTY OF BRAZOS, TEXAS
By:~
R. J. LMGREEN
Its: COUNTY JUDGE, BRAZOS COUNTY
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UTLEY JAMES OF TEXAS, INC.
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AETNA CASUALTY AND SURETY
COMPANY
BY. L.
(Ny~me)
Its: D Cis 4 Af ~f~1l~o,C (~oAzu :rwvT
(Title)
JACK W. CUMPTON AND ASSOCIATES,
INC.
B~
JA W. CUMPTON
It • PR IDENT
W. CUMPTON, Individual]
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STATE OF
COUNTY OF
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally
appeared R. J.,HOLMGREEN, who, after being duly sworn, on his oath
stated that he is the Presiding County Judge of Brazos County,
Texas and that he has authority to enter into this Settlement
Agreement and Mutual Release on behalf of Brazos County and has
done so for the considerations and recitals stated therein.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority,
on this the /5j. day of , 1989 to certify which
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witness my official hand and seal of office.
CAROL PALMER
Mk y Vuncc Sta'c of Texas
f.'; Currr,s:+~1E,rrc;Vjy 16 1373
VOL 1Z PAGE
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NOTARY PUBLIC IN AND FOR THE STATE
OF
Notary's Printed Name:
My Commission Expires: VA1jf3'
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STATE OF 441
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COUNTY OF '27 19
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally
appeared A:0 s L ~,v6~1 who, after being duly
sworn, on his oath stated that he is the
of Utley James of Texas, Inc. and that _he has authority to enter
into this Settlement Agreement and Mutual Release on behalf of
Utley James of Texas, Inc. and has done so for the considerations
and recitals stated therein.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority,
on this the 7 '7- day of 1989 to certify which
witness my official hand and seal of office.
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NOTARY PUBLIC IN AND FOR E STATE
4tidlY~f OF 49 X2 i 7-
l• ;Z.No ry's Printed Name:
LLB . 4. i.U inl6Tc=~J
My Commission Expires: & i3
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STATE OF Ayw
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COUNTY of Al,;xr e je
BEFORE 11k, THE UNDERSIGNED AUTHORITY, on this' day personally
appeared who, after being duly
sworn, on his oath stated that _he is the 6j,,,d (r/i,," &0- 111jac 1;
of Aetna Casualty and Surety Company and that _he has authority to
enter into this Settlement Agreement and Mutual Release on behalf
of Aetna Casualty and Surety Company and has done so for the
considerations and recitals stated therein.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority,
on this the jSIV- day of i , 1989 to certify which 441, g 1/,f witness my official hand and seal of office.
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NOTARY PUBLIC IN AND FOR THE- STATE
OF (,aA A.- , ri ra f
Notary's Printed Name:
/V10,P1 Ei✓F A. LEA.v
My Commission Expires:
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STATE OF ISX AS
COUNTY OF JeAZ~S
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally
appeared JACK W. CUMPTON, who, after being duly sworn, on his oath
stated that he is the President of Jack W. Cumpton and Associates,
Inc. and that he has authority to enter into this Settlement
Agreement and Mutual Release on behalf' of Jack W. Cumpton and
Associates, Inc. and has done so for the considerations and
recitals stated therein.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority,
on this the day of U , 1989 to certify which
witness my official hand and seal of office.
Y P&
NOT Y PUBLIC IN AND FOR TH STATE
7-•2XQS
crt~ rye
j-{PJ~ Notary's Printed Name
4TF '(~~,~J iHERRATTA 1L AEA11
M'a+wro~titv~a
Commustm faE1M jAluq► 27.
My Commission Expires:
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STATE OF Texa sA~
COUNTY OF ~l rL W
BEFORE ME, THE UNDERSIGNED AUTHORITY, on this day personally
appeared JACK W. CUMPTON, known to me to be the person whose name
is subscribed to the foregoing Settlement 'Agreement and Mutual
Release and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority,
on this the / `S - day of , , 1989 to certify which
witness my official hand and se 1 of office.
(NOT
*PUBLIC AN AFOR THE TATE
% C1
Notary's Printed NdJllH ;RAT[AK RCAD t~s
0~ n1P~~, Commltitton EQUU ~i°uuf
My Commission Expires:
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APPROVED:
VANCE, BRUCHE & GOSS
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BY s
WILLIAM R. VANCE, SBT #20478000
3131 Briarcrest Drive, Suite 200
Bryan, Texas 77802
(409) 776-2244
ATTORNEYS FOR COUNTY OF BRAZOS, TEXAS
LAW OFFICES OF DAVID N. WILLIAMS
BY: .w-l~2iQ
SET #05252300
1 01 Heigh vd., Suite 200
S D. Crxas77008
ouston, T (713) 880-3007 / 868-4321
T 0RRNEYS FOR UTLEY JAMES OF TEXAS, INC.
and AETNA CASUALTY AND SURETY COMPANY
0' Q
K . CUMPTON, PRO SE
4 O S. Texas Avenue, Suit 202
Bryan, exas 77802
JACK W. CUMPTON AND ASSOCIATES, INC. and
JACK W. CUMPTON
DATA\RELEASE\MUTUAL\3025-001.1
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NO. 30.576-361 SEP 19 lanq
TRAVIS E. NELSON. CIST. CLERK
BROWN ENGINEERING AND TESTING, * IN THE DISTRI OURIV ETXTV•T1
INC. d/b/a RESCO RESTAURANT AND * e r c0 oo„ti
SUPPLY * f
* BRAZOS CO TY, T E Xt)LE~
VS. * ~
* Ate O'clOck__ ht
UTLEY JAMES OF TEXAS, INC.,
ET AL * 361ST JUDICIAL
TARE-NOTHING JUDGMENT
BE IT REMEMBERED MVIS E NEL;M ".IST Ciu:7
that on this day came on o be hemx*o, 1,13
parties, by and through their respective counsel,9yo= p o se `-and` moo;
announced to the Court that the parties had settled and compromised
all disputes and claims in this case and that they desired that a
Judgment be entered that each party have and take nothing by its
claims, counterclaims, cross-claims and third-party claims against
any other party or parties. The Court having considered the
announcement of the parties has determined that a Take-Nothing
Judgment should be entered in this cause.
It is therefore ORDERED, ADJUDGED and DECREED that Brazos
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County, Texas have and take nothing by virtue of its claims against
Utley James of Texas, Inc. and Aetna Casualty and Surety Company;
It is further ORDERED, ADJUDGED and DECREED that Aetna
Casualty and Surety Company have and take nothing by virtue of its
claims, counterclaims, cross-claims and third-party claims against
Brazos County, Texas, Jack W. Cumpton and Associates, Inc. and Jack
W. Cumpton;
It is further ORDERED, ADJUDGED and DECREED that all costs of
Court shall be borne by and taxed against the party incurring same.
SIGNED this the day of ~ / 1989.
Honorable Carolyn L•. Ruffino
Presiding Judge of the
361st Judicial District Court
of Brazos County, Texas
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AGREED AND APPROVED:
VANCE, BRUCHEZ & GOSS
/ X?)
BY:
40 ~
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WILLIAM R. VANCE, SBT #20478000
3131 Briarcrest Drive, Suite 200
Bryan, Texas 77802
(409) 776-2244
ATTORNEYS FOR COUNTY OF BRAZOS, TEXAS
LAW OFFICES,OF D-AV-1D N. WILLIAMS
BY.
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S D. ES, SBT #05252300
O1 ig Blvd., Suite 200
ous on, Texas 77008
(713 880-3007 / 868-4321
T 0RRNEYS FOR UTLEY JAMES OF TEXAS, INC.
and AETNA CASUALTY AND SURETY COMPANY
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JAC W. CUMPTON, PRO SE
JACK CUMPTON AND ASSOCIATES, INC. and
JACK W. CUMPTON
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DATA\PLEADING\ORDERS\3025-001.1
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