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HomeMy WebLinkAboutResolution 23-37 termination Michael Singer Artist ContractTOWN OF WESTLAKE RESOLUTION 23-37 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING A TERMINATION OF AGREEMENT WITH THE ARTIST, MICHAEL SINGER, FOR A PUBLIC ART INSTALLATION PROJECT WITHIN THE COMMUNITY. WHEREAS, the Westlake Town Council, has experienced significant delays with the art project accomplishments; and WHEREAS, the Town Council has discontinued the art installations and supports termination of the agreement; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF WESTLAKE ACADEMY: SECTION 1: That, all matters stated in the recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That, the Town Council of the Town of Westlake, hereby authorizes the Town Manager to terminate the contract with Michael Singer (artist) for a public art installation. SECTION 3: If any portion of this resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 12th DAY OF JUNE 2023. Sean C. Kilbride, Mayor Res 23-37 Page I of 2 ATTEST: �.4� Amy M. Piukana, Town Secretary APPROVED AS TO FORM: L. Stanton Lowry, Town Attorney Res 23-37 Page 2 of 2 SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered between TOWN OF WESTLAKE, TEXAS ("WESTLAKE") and SINGER STUDIO LLC ("SINGER STUDIO") as of the date of the final signature below. The latest date of the two dated signatures shall serve as the effective date of this Agreement. WESTLAKE and SINGER STUDIO may sometimes be collectively referred to as the 'Parties" within this Agreement. RECITALS Whereas, on November 10, 2021, SINGER STUDIO entered a contract to perform work for WESTLAKE (the "Contract'), designing a public work of art to be placed in the median of Solana Boulevard (the "Work") otherwise referred to as "Cross Timbers" (the "Project'); and Whereas, a dispute arose between WESTLAKE and SINGER STUDIO concerning the progress of the Project (the "Dispute"); and Whereas, on November 10, 2022, WESTLAKE ordered SINGER STUDIO to stop Work and later attempted to terminate the Contract; and Whereas, on January 20, 2023, SINGER STUDIO submitted a written offer to settle its Claim associated with the purported termination (the "Claim"); and Whereas, the Parties do hereby represent and warrant that this Agreement is being made purely upon a compromise basis to avoid further trouble, litigation, and expense among the Parties concerning certain portions of the Disputes; and Whereas, upon execution of this Agreement, the Parties agree that the Contract shall from the date of this Agreement be considered null and void and have no further binding effect, whatsoever, on WESTLAKE or SINGER STUDIO; and Whereas, the Parties now wish to evidence their settlement of the Claim, and Disputes as set forth herein. NOW, THEREFORE, for and in consideration of the promises, covenants, releases and other agreements and representations stated in this Agreement, the Parties have agreed and do hereby agree as follows: AGREEMENT 1. Terms of Settlement:. The Parties agree that for the consideration set forth herein, WESTLAKE will close-out the Contract by making payment to SINGER STUDIO the total sum of Thirty -Two Thousand Nine Hundred Forty -Three dollars and zero cents ($32,943.00), which is to be made within thirty (30) days after approval of this Agreement, by WESTLAKE, in full and final settlement of the SINGER STUDIO Claim relating to the Contract and any other claims between the Parties as further set forth herein to include these paragraphs 1, 2 and a As additional consideration for the full and final settlement contained in this Agreement the Parties agree to the following terms: (1) any termination of SINGER STUDIO by WESTLAKE is a termination for convenience and not a termination for cause and WESTLAKE agrees that SINGER STUDIO did not default in any manner on any of its contractual duties; (2) all business disparagement, whether Settlement Agreement - Page 1 current or future, ceases; (3) WESTLAKE understands and acknowledges that the contracted deliverables are not complete and agrees that it will not utilize, advance, reproduce, or transmit any of SINGER STUDIO's work product for any purpose; (4) there will be no further claims, demands, disputes, or causes of action of any kind, whether now existing or arising in the future, known or unknown, asserted or unasserted, fixed or contingent, legal, equitable, or otherwise between WESTLAKE and SINGER STUDIO arising from or relating to the Work, the Project, or the Contract and completion of the terms of this Agreement including the payment discussed herein shall conclude any and all obligations between the Parties; and (5) SINGER STUDIO will as set forth herein produce, through its counsel to WESTLAKE's counsel, copies of communications it has relating to the Project between it and the WESTLAKE staff, consultant Robin Mccaffery and Mesa Planning Group (which delivery shall occur no later than sixty (60) days after SINGER STUDIO's receipt of the payment provided hereunder), in full and final settlement of the Claim and Dispute as set forth within this Agreement. 2 SINGER STUDIO: SINGER STUDIO agrees that upon full execution of this Agreement that it shall receive payment from WESTLAKE in the sum of Thirty -Two Thousand Nine Hundred Forty -Three dollars and zero cents ($32,943.00). SINGER STUDIO acknowledges and understands that WESTLAKE's authorized representative has agreed to recommend acceptance of this Agreement to WESTLAKE's Town Council. SINGER STUDIO acknowledges, understands, and agrees to the other terms of consideration set forth in paragraph 1 of the Agreement. SINGER STUDIO understands that WESTLAKE's authorized representative has agreed to present this Agreement to the WESTLAKE Town Council at either the next regularly scheduled meeting or may call a special council meeting with a meeting to be held no later than July 1, 2023. SINGER STUDIO understands that it will not receive payment until thirty (30) days after the Agreement is approved by WESTLAKE. Once the Agreement is executed and provided to SINGER STUDIO, SINGER STUDIO will provide the communications referred to in paragraph 1 relating to the Project between it and WESTLAKE staff, consultant Robin McCaffery and Mesa Planning Group, to its counsel to be held in trust until such time as payment has been received after which SINGER STUDIO's counsel will produce the correspondence to WESTLAKE's Town Attorney, which delivery shall occur no later than sixty (60) days after SINGER STUDIO's receipt of the payment provided hereunder. SINGER STUDIO agrees that contingent upon the successful completion of the terms and provisions of this Agreement, including but not limited to SINGER STUDIO's receipt of $32,943.00 from WESTLAKE, which, if paid, shall be considered good and valuable consideration, that SINGER STUDIO shall fully and finally release, waive and discharge WESTLAKE, as well as WESTLAKE's Town Council members, agents, and employees from and against any and all obligations, liabilities, claims, costs, expenses, demands, debts, controversies, damages, and causes of action of any kind or nature, regardless of whether fixed or contingent, known or unknown, which it may now have, or may hereafter have, arising out of or related to the Claim, the Dispute, the Contract, or any Work that SINGER STUDIO performed on the Project with the exception of claims specifically reserved in this Agreement. SINGER STUDIO expressly reserves any claims or causes of action, if any, relating to or arising from any breach of this Agreement by WESTLAKE. Further, nothing contained in this Agreement waives or releases any defenses or counterclaims that SINGER STUDIO might assert against any claim or causes of action made by WESTLAKE against SINGER STUDIO for an alleged breach of this Agreement. 3 WESTLAKE: WESTLAKE agrees that upon full approval and execution of this Agreement that it shall make payment to SINGER STUDIO in the sum of Thirty -Two Thousand Nine Hundred Forty -Three dollars and zero cents ($32,943.00). WESTLAKE's authorized representative agrees to submit this Agreement to the WESTLAKE Town Council for acceptance with a recommendation for approval of this Agreement as a compromise and as a full and final Settlement Agreement - Page 2 settlement of SINGER's Claim against WESTLAKE and all other claims between the Parties as recited herein. WESTLAKE acknowledges, understands, and agrees to the other terms of consideration set forth in paragraph 1 of the Agreement to include but not limited to the requirement for WESTLAKE to cease all business disparagement against SINGER STUDIO. WESTLAKE's authorized representative agrees to present this Agreement to the WESTLAKE Town Council at either the next regularly scheduled meeting or may call a special council meeting with a meeting to be held no later than July 1, 2023. WESTLAKE agrees that it will make payment to SINGER STUDIO within thirty (30) days after the Agreement is approved by WESTLAKE. WESTLAKE understands and agrees that once the Agreement is executed and provided to SINGER STUDIO, SINGER STUDIO will provide the communications to SINGER STUDIO's counsel, who once advised by SINGER STUDIO that SINGER STUDIO has received payment will then produce to WESTLAKE's Town Attorney the communications referred to in paragraph 1 relating to the Project between it and WESTLAKE staff, consultant Robin Mccaffery and Mesa Planning Group, which delivery shall occur no later than sixty (60) days after SINGER STUDIO's receipt of the payment provided hereunder. WESTLAKE agrees that contingent upon the successful completion of the terms and provisions of this Agreement, including but not limited to WESTLAKE'S payment to SINGER STUDIO of $32,943.00, which, if paid, shall be considered good and valuable consideration and upon receipt of the communications from SINGER STUDIO's attorney, that WESTLAKE shall fully and finally release, waive and discharge SINGER STUDIO, as well as SINGER STUDIO's officers, members, agents, and employees from and against any and all obligations, liabilities, claims, costs, expenses, demands, debts, controversies, damages, and causes of action of any kind or nature, regardless of whether fixed or contingent, known or unknown, which it may now have, or may hereafter have, arising out of or related to the Claim, the Dispute, the Contract, or any Work that SINGER STUDIO performed on the Project with the exception of claims specifically reserved in this Agreement. WESTLAKE expressly reserves any claims or causes of action, if any, relating to or arising from any breach of this Agreement by SINGER STUDIO. Further, nothing contained in this Agreement waives or releases any defenses or counterclaims that WESTLAKE might assert against any claim or causes of action made by SINGER STUDIO against WESTLAKE for an alleged breach of this Agreement. 4. Representations. The Parties represent and warrant to each other as follows: (a) The Parties are the sole and lawful owners of all right, title, and interest in and to all the respective claims released in this Agreement, and have not assigned any right, title, or interest in or to any claim to any other person or entity. (b) The Parties are represented by legal counsel of their own choosing regarding the subject matter of this Agreement, and no Party is relying on any representation, statement or advice of the other Party or its counsel in entering into this Agreement except as otherwise expressly stated in this Agreement. (c) SINGER STUDIO and its representative is duly authorized to execute, deliver, and perform this Agreement. WESTLAKE and its representative have been duly authorized by WESTLAKE's council to execute, deliver, and perform this Agreement. 5 Non -Admission. The Parties acknowledge and agree that this Agreement compromises the Claim and the Dispute among and between the Parties as set forth herein, and the exchange of consideration and the releases in this Agreement shall not constitute or be construed as an admission of liability by any of the Parties. Settlement Agreement - Page 3 6 Dispute Resolution. This Agreement shall be governed by the laws of the State of Texas. Any disputes arising out of or related to this Agreement shall be resolved exclusively in a state court of competent jurisdiction in Tarrant County, Texas and nowhere else. h any dispute relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, expenses, and costs in addition to other relief to which it may prove it is entitled. 7. Miscellaneous. As both Parties are represented by counsel and the terms of this Agreement have been thoughtfully and voluntarily negotiated by the Parties, this Agreement shall not be construed against any Party for the benefit of any other Party based on an assertion of superior bargaining power, adhesion, duress, sovereign immunity, or any similar theory. a Confidentiality. The Parties agree that the terms and conditions contained within this Agreement shall be considered confidential and shall not be released by either party unless: (1) disclosure is necessary to enforce the Agreement, or (2) a party is required to release the terms and conditions of this Agreement by operation of law, judicial process or government rule, legislation, ordinance, ruling or statute. h addition to the foregoing, the Parties may disclose the terms and conditions of this Agreement to their respective legal counsel, Board members, auditors, corporate officers, directors, employees, agents, and shareholders as needed to effectuate the terms of this Agreement. 0 Entire Agreement. This Agreement contains the entire, integrated agreement among the Parties and supersedes all other negotiations, understandings, or agreements, whether written or oral, regarding the settlement of the Claim related to the Project and the Dispute as set forth herein. This Agreement cannot be modified except in a written instrument signed by all Parties. W oral modification will be binding. W waiver of any term or condition of this Agreement shall be valid unless made in writing by the Party sought to be charged with such waiver. A waiver by a Party in one specific instance shall not be deemed a waiver of any subsequent right to enforce such term or condition in any other instance. 10. Severance. If any term or part of this Agreement is held to be invalid or unenforceable for any reason, such term shall be reformed or severed, and the remaining terms of this Agreement shall be enforced to the fullest extent permitted by law. 11. Execution. This Agreement may be executed by the Parties n multiple counterparts, each of which taken together shall constitute one instrument. A facsimile or electronic copy of the signatures of the Parties shall have equal dignity and be of the same force and effect as original signatures. This Agreement shall be binding and shall inure to the benefit of the heirs, executors, administrators, successors -in -interest and assigns of the Parties. The signature of each party's representative below is an affirmative representation that the person signing this Agreement has the authority to bind the party to this Agreement. This Agreement shall be effective as of the last date specified in conjunction with the signatures of the Parties below but shall not be effective or binding until signed by all Parties. Settlement Agreement - Page 4 SINGER STUDIO LLC By: - 7 Name: Title: FI.-A e STATE OF t�i<=>. "C" 01 § couNTY of \Cj -I.h BEFORE ME, the undersigned authority, a Notary Public in and for the said County and State, on this day personally appeared _ Y::.'.S,-.;.., i!""f... ,. , known to me to be the person whose name is subscribed to the foregoing instrument, and n his or her capacity as r- of SINGER STUDIO LLC, acknowledged to me that he or she executed eth same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of 2023. , ry Public - State of My Commission Expires: ' I L-. Settlement Agreement - Page 5 Notary Public State of Florida AL Laquiara F Moreland My Commission HH 306497 1:95111= Expires 8129/2026 TOWN OF WESTLAKE, TEXAS B y : Name: � Cam_ `; l b 6 cAe- _ STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the said County and State, on this day personally appeared Se�� _C, �\bcCd-, _, known to me or proven through valid picture identification, to be the person whose name is subscribed to the foregoing instrument, and in his or her individual capacity, acknowledged to me that he or she executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, Notary Public - SvIlle of Texas My Commission Expires:_JI (LLaS Settlement Agreement - Page 6 this the _L j day of _ ) 2023. AMY MELINDA PIUIUNA' Notary ID #126Commission 66373 Expires My Cornmissfon Expires February 16, 2025