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Home My WebLink About48-84 RESOLUTION!! 1•• RESOLUTION NO. 48-84 k A RESOLUTION AUTHORIZING THE MAYOR.AND CITY CLERK TO EXECUTE A SETTLEMENT AGREEMENT WITH MICRODATA CORPORATION. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute a settlement agreement with Microdata Corporation. A copy of the settlement agreement authorized for execution hereby is attached hereto, marked Exhibit "A", and made a part hereof. PASSED AND APPROVED this 3rd day of April, 1984. • „--*---771:77...17 ..c.•-•„:„ ik•i A r f.j.,, ,..., :2 0"• - t' A - . $ .. . P 4; -• „ l : P 't:7-tili lil..-1"). ) . r' I i .. 71:-...---;•-' : .6; . 'in • .^ • t "MrAST.:" APPROVED: Mayor Clerk • .••• .•*.1 cow 485 MICROFILMED COMPROMISE SETTLEMENT AND MUTUAL RELEASE AGREEMENT Agreement made as of this 2nd day of May, 1984, between MICRODATA CORPORATION, a corporation organized and existing under the laws of the State of Missouri and having its principal place of business at 17481 Red Hill Avenue, Irvine, California 92714 (hereinafter referred to as "MICRODATA"), and the CITY OF FAYETTEVILLE, ARKANSAS, a municipal corporation organized and existing under the laws of the State of Arkansas which is situated in Washington County, Arkansas and is a city of the first class with a city manager form of government (hereinafter referred to as "FAYETTEVILLE"). WITNESSETH WHEREAS, on or about April 15, 1980, McIlroy Bank & Trust Company, Fayetteville, Arkansas, purchased a Microdata REALITY 8000 Computer System (hereinafter referred to as the "MICRODATA COMPUTER SYSTEM") for the benefit of FAYETTEVILLE, and the MICRODATA COMPUTER SYSTEM was installed in buildings owned by FAYETTEVILLE, including the Administrative Building owned by FAYETTEVILLE and has been operated and used exclusively by FAYETTEVILLE since approximately November 10, 1980; and • • WHEREAS, FAYETTEVILLE has filed a cause of action for, inter alia, deceit and breach of warranty against MICRODATA for alleged defects in the MICRODATA COMPUTER SYSTEM entitled "City of Fayetteville, Arkansas vs. Microdata Corporation," No. 83-5076, in the United States District Court for the Western District of Arkansas, Fayetteville Division, which cause of action is currently pending (hereinafter referred to as the "ACTION"); and WHEREAS, MICRODATA and FAYETTEVILLE have agreed to a compromise settlement of all of their respective claims against each other, whether asserted or unasserted in the ACTION, upon the terms and conditions hereinafter set forth and desire to dismiss the ACTION with prejudice as to all parties; and WHEREAS, MICRODATA and FAYETTEVILLE have agreed to a mutual release of all of their respective claims against each other, whether asserted or unasserted in the ACTION, upon the terms and conditions hereinafter set forth; NOW THEREFORE, for and in consideration of the • covenants, agreements and consideration hereinafter set forth, MICRODATA and FAYETTEVILLE agree as follows: -2- 1. MICRODATA,agrees to pay to FAYETTEVILLE the sum of Seven Thousand Five Hundred Dollars ($7,500) in the form of a check made payable to the CITY OF FAYETTEVILLE, ARKANSAS, receipt of which is hereby acknowledged by FAYETTEVILLE. 2. Immediately upon execution of this Agreement, MICRODATA and FAYETTEVILLE agree to take all necessary actions to dismiss the ACTION with prejudice as to all parties and all claims and, by and through their respective attorneys of record, to execute and cause the Court to enter a Stipulated Order of Dismissal of the ACTION, substantially in the same form as Exhibit A hereto. that: FAYETTEVILLE represents and warrants to MICRODATA a. FAYETTEVILLE is a duly organized and validly existing municipal corporation under the laws of the State of Arkansas and is a city of the first class with the city manager form of government, with full power and authority to enter into and consummate the matters set forth in this Agreement; -3- • The Mayor and City Clerk of FAYETTEVILLE have the full power and authority to enter into and consummate the matters set forth in this Agreement on behalf of FAYETTEVILLE; and The execution and delivery of this Agreement and the consummation of the matters set forth in this Agreement have been duly authorized by all required action on behalf of FAYETTEVILLE, and this Agreement constitutes a legal, valid and binding obligation of FAYETTEVILLE which is enforceable against FAYETTEVILLE in accordance with its terms. 4. FAYETTEVILLE, on behalf of itself and its officers, directors, stockholders, servants, employees, attorneys, agents, assigns, representatives and successors, hereby fully releases and forever discharges MICRODATA, and its officers, directors, stockholders, servants, employees, attorneys, all or any manner of rights, equity, of whatever kind or agents, assigns, representatives and successors, from claims nature, and actions, in law or in whether known or unknown, whether now existing or hereinafterarising, which FAYETTEVILLE, and its above-mentioned agents, representatives, successors and assigns, ever had, now have or may have hereafter against MICRODATA, and its above-mentioned agents, representatives, -4-. • successors and assigns,. arising from or relating in any manner .i. I 0 v I* to any act, cause, matter•or thing, including without limitation: , 1 • a. The ACTION; and b. The MICRODATA COMPUTER SYSTEM and any maintenance or other services provided by or on behalf of MICRODATA related thereto. MICRODATA and FAYETTEVILLE agree that the terms of this Paragraph 4 of this Agreement shall include and cover all divisions and affiliated corporations of MICRODATA and that affiliated corporations as used herein shall mean and include all corporations whose majority of voting stock is owned or controlled, directly or indirectly, by MICRODATA or a subsidiary of MICRODATA. MICRODATA and FAYETTEVILLE further agree that the terms of this Paragraph 4 of this Agreement are not intended to include and cover any Standard Maintenance Agreement in effect between MICRODATA and FAYETTEVILLE at the date of this Agreement and any rights, claims or actions arising from or related in any manner to any such Standard Maintenance Agreement. 5. MICRODATA, directors, stockholders, assigns, representatives on behalf of itself and its officers, servants, employees, attorneys, agents, and successors, hereby fully releases -5- • • and forever discharges FAYETTEVILLE, and its officers, directors, stockholders, servants, employees, attorneys, agents, assigns, representatives and successors, from all or any manner of rights, claims and actions, in law or in equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which MICRODATA, and its above-mentioned agents, representatives, successors and assigns, ever had, now had or may have hereafter against FAYETTEVILLE, and its above-mentioned agents, representatives, successors and assigns, arising from or relating in any manner to any act, cause, matter or thing, including without limitation: a. The ACTION; and b. The MICRODATA COMPUTER SYSTEM and any maintenance or other services provided by or on behalf of MICRODATA related thereto. MICRODATA and FAYETTEVILLE further agree that the terms of this Paragraph 5 of this Agreement are not intended to include and cover any Standard Maintenance Agreement in effect between MICRODATA and FAYETTEVILLE at the date of this Agreement and any rights, claims or actions arising from or related in any manner to any such Standard Maintenance Agreement. -6- • 6. This Agreement is a compromise and settlement of each and every act, matter, cause or thing specified in Paragraphs 4 and 5 of this Agreement and is not intended and shall not constitute or be construed as an 'admission of the 1; truth or correctness of any allegation against any party in the , 7 ACTION or of liability on the part of MICRODATA or FAYETTEVILLE, and of their respective above-mentioned agents, representatives, successors and assigns, any such liabililty being expressly denied. Neither this Agreement nor any of its terms shall be admitted into evidence or alluded to in any civil, criminal or administrative action whatsoever, except as may be necessary to consummate or enforce this Agreement. 7. MICRODATA and FAYETTEVILLE each agree, warrant and represent that they have carefully read the contents of this Agreement, and that, in executing this Agreement, they do so with full knowledge of any rights which they may have, that they have received independent legal advice from their respective attorneys of record with respect to the matters set forth herein and that they freely have signed this Agreement without reliance upon any agreement, promise, statement or representation by or on behalf MICRODATA and FAYETTEVILLE, or their respective attorneys of record, except as set forth in this Agreement. -7-. ,• • • 8. FAYETTEVILLE expressly stipulates and agrees, in consideration of the aforesaid payment, to indemnify, hold harmless and defend MICRODATA, and its officers, directors, stockholders, servants, employees, attorneys, agents, assigns, representatives and successors, against loss from any claim, demand or action, in law or in equity, arising from or in any ,way relating to the MICRODATA COMPUTER SYSTEM, any maintenance or other services provided by or on behalf of MICRODATA related thereto or the ACTION that may hereafter at any time be made by or on behalf of McIlroy Bank & Trust Company, Fayetteville, Arkansas, or its agents, representatives, successors or assigns, or by any claimant deriving their or its claims from or through McIlroy Bank & Trust Company, against MICRODATA, or its above-mentioned agents, representatives, successors and assigns, and to indemnify and pay to MICRODATA all costs, expenses, attorney's fees, liabilities and obligations of any kind or nature whatsoever to which MICRODATA is or hereafter may be subject as a result of the matters set forth hereinabove. FAYETTEVILLE and MICRODATA further agree that this indemnity does not require payment as a condition precedent to recovery by MICRODATA against FAYETTEVILLE under this indemnity. • 9. The statements'and representations contained in this Agreement are to be considered contractual in nature and not merely recitations of fact. -8- • • • • 10. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective agents, successors, legal representatives and assigns forever. 11. MICRODATA and FAYETTEVILLE agree that the laws of the State of Arkansas shall govern this Agreement in all respects, including, without limitation, matters,of construction, validity, enforcement and 'interpretation. 12. This Agreement shall not be amended, altered, modified or otherwise changed except in writing executed by all of the parties hereto and expressly stating that it is an amendment of this Agreement. 13. This Agreement contains the entire agreement between MICRODATA and FAYETTEVILLE with respect to the matters described herein and, as such, supersedes and cancels any prior understandings and agreements of MICRODATA and FAYETTEVILLE with respect to such matters. -9- IN WITNESS WHEREOF, MICRODATA and FAYETTEVILLE have • executed this agreement'in two (2) originals as of the date first written above. State of California County of Orange ) ) ) SS 4. MICRODATA CORPORATION Czweette„--- MD On this 2 -- day of May, in the year 19841 before me personally appeared koNALD •100PSOL) , personally known to me to be the person who executed the within instrument as Coefo4AIS CO4TeLLER-0n behalf of the corporation therein named and acknowledged to me that the corporation executed it. seset-saaageseftemeet_e_aa„e„cmoser-04 OFFICIAL SEAL WILLIAM G NEWMAN NOTARY PUBLIC - CALIFORNIA ORANGE COUNTY My comm. expires AUG 23, 1935 State of Arkansas L County .- —• /4,1:4. -1-, --iwr ..->t..--- NOn'this 2,4 day of May, in the year 1984, before me _ .., cL, ,e-- - i .-:-./,perw:tallytapbeared /6.',1,,./ f Woeir4 and CW.0.61.1(; ,-..pirisOn..11y known to me to be the person who egre7the with n 17--4iiitr6p.e&as.:Mayor and City Clerk, respectively, on behalf of clkhe'mufiiceipall±corporation therein named and acknowledged to me -toit .the ppiiipal corporation executed it. ) ) ) CITY Notary OF FAYETTEV LLE, ARKANSAS ;; • ..z,b .:5r -v. .7 "e• 1 g _ -- : •• 7 4. .0."-• 4....-.:41/ eft" -. •••-: : SS -10- N • • tary