HomeMy WebLinkAboutRes 2009-09-02 Faizal Moosa Compromise Settlement Agreement.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2009-09-02
A RESOLUTION OF THE CITY OF ANNA, TEXAS, AU"rHORIZING SETTLEMENT OF
THE LITIGATION STYLED CITY OF ANNA, TEXAS V. FAIZAL MOOSA,
INDIVIDUALL Y; AND AFSHAN MOOSA, INDIVIDUALLY, CAUSE NO. 401-03415
2008 FILED IN THE 401 8T DISTRICT COURT, COLLIN COUNTY, TEXAS;
APPROVING THE SETTLEMENT OF ALL CLAIMS, CAUSES OF ACTIONS AND
DISPUTES IN SAID LAWSUIT; AUTHORIZING AND RATIFYING THE MAYOR'S
EXECUTION OF THE SETTLEMENT AGREEMENT; AUTHORIZING THE CITY
MANAGER AND THE ATTORNEYS OF WOLFE, TIDWELL & McCOY, LLP TO ACT
ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS AND TO
TAKE OTHER ACTIONS NECESSARY TO FINALIZE THE FULL SETTLEMENT OF
SAID LAWSUIT.
WHEREAS, the City Council ("Council") of the City of Anna, Texas ("City") recognizes
that the City, filed the above-referenced lawsuit to recover monies owed under a
Promissory Note; and
WHEREAS, the City Council recognizes that the Parties to the above-referenced
lawsuit desire to settle the matter and have reached a Compromise Settlement
Agreement and Promissory ("Agreement") (attached hereto as Exhibit 1 and
incorporated by reference for all purposes); and
WHEREAS, the City Council recognizes that the Parties agreed to and 'filed with the
Court in the above-referenced matter PLAINTIFF CITY OF ANNA, TEXAS'S AND
DEFENDANTS FAIZAL MOOSA'S AND AFSHAN MOOSA'S AGREED MOTION FOR
ENTRY OF FINAL JUDGMENT requesting the Court to enter an Agreed Final
Judgment in favor of the City ; and
WHEREAS, the City Council recognizes that the Agreement between the Parties
resolves all remaining claims, causes of actions and disputes in the above-referenced
lawsuit and it should be approved and the Mayor's execution of same should be
authorized and approved, as set forth herein.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS:
Section 1. The recitals set forth above are incorporated herein by reference as if fully
set forth for all purposes.
Section 2. The Agreement settling all claims, causes of actions and disputes of the
litigation styled City ofAnna, Texas v. Faizal Moosa, Individually; and Afshan Moosa,
Res. 2009-{)9-()2 Settlement of Litigation Moosa.doc Page 1012
Individually, Cause No.401-03415-2008 in the 401 st District Court, Collin County, Texas
is hereby approved and the Mayor's execution of the Agreement is hereby authorized,
ratified and approved.
Section 3. The City Manager and attorneys at Wolfe, Tidwell & McCoy, LLP are hereby
authorized to execute all documents in a form approved by attorneys at Wolfe, Tidwell &
McCoy, LLP and to take all other actions necessary to finalize, act under, and enforce
the Agreement.
PASSED AND APPROVED by the City Council of the City of Anna, Texas this the 8th
day of September, 2009.
ATrEST:
Res. 2009-09-02 Settlement of Litigation Moosa.doc Page 2 of2 09-08-09
CAUSE NO. 401-03415-2008
CITY OF ANNA, TEXAS § IN THE DISTRICT COURT
Plaintiff, §
v.
§
§ 401 ST JUDICIAL DISTRICT
§
FAIZAL MOOSA, Individually; and §
AFSHAN MOOSA, Individually, § COLLIN COUNTY, TEXAS
Defendants. §
COMPROMISE SETTLEMENT AGREEMENT
BACKGROUND
The Parties in this Lawsuit desire to enter into this Agreement with the
understanding that: (1) the Parties will file an Agreed Motion for Entry of Final Judgment
and submit to the Court a Agreed Final Judgment in accordance with said motion that
the City take judgment against Faizal Moosa and Afshan Moosa, jOintly and severally, in
the amount of $37,000 plus costs of court, prejudgment and post-judgment interest, and
reasonable and necessarY attorney fees; and (2) the City will refrain from abstracting
and from filing the Agreed Final Judgment and from taking any other action to execute
on the Agreed Final Judgment provided that it receives payment in the amount of
$37,000 according to the payment schedule set forth in a Promissory Note and the
other terms set forth therein (the form of which is attached as Exhibit A).
In consideration of the mutual promises and obligations set forth in this
Agreement, the Parties agree as follows:
AGREEMENT
Definitions
1. "Agreement" means this Compromise Settlement Agreement.
2. "Court" means the 401 s1 District Court, Collin County, Texas.
3. "Defendants" mean Faizal Moosa ("Faizal") and Afshan Moosa ("Afshan").
4. "Lawsuit" means the suit bearing the style and cause number shown above
and the contents of the Parties' live pleadings in said suit.
5. "Parties" mean Defendants and the City of Anna, Texas ("City") (unless
otherwise provided or stated, each individually referred to as "Party" and
collectively referred to as "Parties").
COMPROMISE SETTLEMENT AGREEMENT I
Exhibit 1 )PAGE 1 OF 7 "
6. "Promissory Note" means the instrument attached hereto as Exhibit A in which
Defendants, jointly and severally, agree to pay the City in the principal amount
of $37,000 over a 36 month period.
Settlement Payment and Payment Schedule
7. In consideration for the mutual promises set forth herein, Defendants agree to
pay the City the sum of $37,000 ("Settlement Payment") in accordance with
the terms of the Promissory Note.
8. This Agreement shall not be effective unless and until the Defendants have
delivered: (1) this Agreement, fully executed by Defendants before a notary
public, with the Defendants' original signatures; and (2) the fully executed
Promissory Note with the Defendants' original signatures placed as indicated
therein. The Defendants shall deliver these documents to:
Clark McCoy
Wolfe, Tidwell & McCoy, LLP
2591 Dallas Parkway, Suite 205
Frisco, Texas 75034
Delivery of Documents
9. The Defendants agree that in exchange for the City's promises set forth in
this Agreement, the Defendants assent to the terms of and agree to deliver
the following documents for filing and submission to the Court for its
consideration: (1) "PLAINTIFF CITY OF ANNA, TEXAS'S AND
DEFENDANTS FAIZAL MOOSA'S AND AFSHAN MOOSA'S AGREED
MOTION FOR ENTRY OF FINAL JUDGMENT" with the content and in the
form attached hereto as Exhibit B.; and (2) "AGREED FINAL JUDGMENT"
with the content and in the form attached hereto as Exhibit C.
10. The Defendants further agree to sign and submit additional documents as
may be necessary and to otherwise cooperate to fully effectuate the terms of
this Agreement and the resolution of the Lawsuit.
Release of Claims
11. For the consideration stated in this Agreement, the City releases Defendants
from all past and present claims, counterclaims, proceedings, demands,
lawsuits, actions and causes of action-whether arising in contract, tort, equity
or any other theory of law and whether known or unknown-relating in any
way to any incident or event occurring at any time before all Parties have fully
COMPROMISE SETTLEMENT AGREEMENT
PAGE20F7
executed this Agreement and Defendants have fully executed the Promissory
Note.
12. In exchange for the Defendants' promises hereunder and provided that the
City timely receives all payments that are due or become due to the City
under the Promissory Note, the City agrees that it will refrain from filing in any
jurisdiction's property records department, the Agreed Final Judgment entered
by the Court in this Lawsuit-provided that said Agreed Final Judgment as
entered by the Court has the content and is in the form of the Agreed Final
Judgment attached to this Agreement as Exhibit C-and will further refrain
from taking any other steps to execute on or otherwise enforce the money
judgment and any and all amounts awarded therein, including but not limited to
costs of court, prejudgment and post-judgment interest, and attorney fees, all
as set forth in more detail in Exhibit C.
13. The City shall be fully relieved of its obligations described in paragraph12,
above, should the Defendants fail to timely satisfy any of their obligations
under this Agreement or the PromiSSOry Note.
14. The Parties specifically reserve their right to later pursue claims, if any, for
breach of this Agreement, the Promissory Note.
Warranties
15. Every Party warrants to every other Party that they have full authority to
execute this Agreement and that they have not assigned or transferred any
rights or remedies that they are releasing in this Agreement.
Governing Law and Venue
16. In the case that any dispute should arise regarding this Agreement or any of
its provisions, the Parties agree that its terms and provisions are to be
construed solely in accordance with the laws of the State of Texas, and that
any lawsuit which involves this Agreement or Promissory Note (directly or
indirectly), may only be filed and litigated in a court of competent jurisdiction
in Collin County.
COMPROMISE SETTLEMENT AGREEMENT
PAGE30F 7
Additional Documents
17. The Parties agree to cooperate fully and to execute any and all
supplementary documents and to take all additional actions which may be
necessary or appropriate to give full force and effect to the basic terms and
intent of this Agreement.
Entire Agreement, Successors in Interest and Conflict of Agreements
18. This Agreement and the Promissory Note contains the entire agreement and
understanding between the Parties, is contractual and not mere recital, and
shall be binding upon and inure to the benefit of the Parties.
Advice of Counsel
19. The Parties have had full opportunity to obtain assistance and advice of
independent legal counsel throughout the negotiations leading to this
Agreement. and they have read this Agreement and fully understand the
meaning and effect of this Agreement. The Agreement has been jointly
drafted and is not to be more strictly construed against one party than
another.
Modifications
20. This Agreement cannot be changed or terminated unless by its own terms or
by a subsequent agreement in writing that is personally signed by all the
Parties.
Invalid provisions
21. If any part of this Agreement is for any reason found to be invalid, illegal, or
unenforceable, all other parts nevertheless remain valid, legal and
enforceable.
Headings
22. The headings to the provisions of this Agreement are solely for the
convenience of reference and are not to be construed as terms of this
Agreement.
COMPROMISE SETTLEMENT AGREEMENT
PAGE40F7
No Other Representations
23. Other than the written representations made in this Agreement, there are no
other representations related to this Agreement and the Parties do not rely on
any other representations, oral or written, in executing this Agreement.
-REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
COMPROMISE SETTLEMENT AGREEMENT
PAGE 5 OF7
SIGNATURES AND ACKNOWLEDGEMENTS:
CITY OF ANNA
Date of Signature: _____
Darren Driskell, Mayor
On Behalf of the City of Anna, Texas
BEFORE ME, the undersigned authority, on this day personally appeared Darren
Driskell, on behalf of the City of Anna, Texas, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that: "My
name is Darren Driskell. I have read the foregoing instrument, and I fully understand its
content. I represent it to be a fact that the statements contained therein are true and
correct, and that I have signed the same freely and voluntarily, and execute the same
for the purposes and consideration therein expressed and none other."
ACKNOWLEDGED AND SWORN TO BEFORE ME THIS THE _~__ DAY
OF 2009.
Notary Public -State of Texas
-REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
COMPROMISE SETTLEMENT AGREEMENT
PAGE 60F7
ED AND SWORN TO BEFORE ME THIS THE
KARRI L BERTRAND
My Commls&lon Expires
March 19. 2011
FAIZAL MOO~A. .
~~~~ Date of Signature: [. Jfj.01
BEFORE ME, the undersigned authority, on this day personally appeared Faizal
Moosa, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that: "My name is Faizal Moosa. I have read the
foregoing instrument, and I fully understand its content. I represent it to be a fact that
the statements contained therein are true and correct, and that I have signed the same
freely and voluntarily, and execute the same for the purposes and consideration therein
expressed and none other."
ACK~~ED AND SWORN TO BEFORE ME THIS THE J1fr'-DAY
OF (;W;rFl-2009. ,11 ~.A '~. ~~
, KARRI L BERTRAND Notary Public -State of TexaS---My comml$slOn Expire,
March 19. 2011
~4'i4flOf'V"'~ AFSt-WHj~bIfP"''''''''~'''''''''''''~
Date of Signature: «.J{.01
Afshan Moosa
BEFORE ME, the undersigned authority, on this day personally appeared Afshan
Moosa, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that: "My name is Afshan Moosa. I have read the
foregoing instrument, and I fully understand its content. I represent it to be a fact that
the statements contained therein are true and correct. and that I have signed the same
freely and voluntarily. and execute the same for the purposes and consideration therein
expressed and none other."
COMPROMISE SETTLEMENT AGREEMENT
PAGE 7 OF7
Promissory Note
$37,000.00 Anna, Collin County, Texas August __, 2009
FOR VALUE RECEIVED, FAIZAL MOOSA and AFSHAN MOOSA (hereafter, "Makers") jointly
and severally, promise to pay $37,000 to the City of Anna, Texas (hereafter, "Holder"), in the form
of cashier's or certified checks delivered to: ATTN: City Manager, P.O. Box 776, Anna, Texas
75409, or at such other place as Holder hereof may from time to time deSignate in writing, the
principal sum of $37,000, with 0% interest accruing on the unpaid principal from October 1,2009
until paid in full. The aforementioned principal sum represents monies owed to Holder for valuable
consideration the receipt and sufficiency of which is hereby acknowledged by Makers.
Principal payments are payable in monthly installments over a period of 36 months, due on or
before the first day of each month until paid in full (and not to be received by the Holder later than
the tenth day of each month), with the first such payment to be made on or before October 1,
2009. The first 35 payments shall be in the amount of $1,027.78 and the final payment shall be in
the amount of $1,027.70 Further, if Makers determine that any monthly installment cannot for any
reason be made in accordance with the terms of this Promissory Note, they shall immediately
contact the Holder to request arrangements for payment of said installment that are satisfactory to
Holder. Any such arrangements are at the sole discretion of holder and any such arrangements
made between Holder and Makers that conflict in any way with the terms of this Promissory Note
(unless made in writing and signed by all parties hereto) shall not in any way diminish or waive
Holder's right to enforce its rights under this PromiSSOry Note.
This PromiSSOry Note may, in whole or in part, be prepaid without penalty before the maturity date
hereof.
Should Makers default under or otherwise breach this Promissory Note and not cure said
default or breach on or before the tenth day after Holder gives Makers written notice thereof,
by personal delivery or certified mailing, the remaining principal and 6% interest or the highest
interest rate allowable by law on the remaining principal owing shall, at the option of Holder,
shall become immediately due and payable to Holder. Notice shall be deemed given on the
date of personal delivery or date of mailing, whichever applies. No delay or failure in giving
notice of said default or breach shall constitute a waiver of the right of Holder to exercise said
right in the event of a subsequent or continuing default or breach. Furthermore, in the event of
such default or breach, Makers promises to pay Holder all collection and/or litigation costs
incurred, including reasonable attorney fees and court costs, whether judgment is rendered or
not and whether demand therefore is made or not.
This Promissory Note has been entered into and shall be performed in Collin County, Texas, and
I ExhlbllA )
PAGE 1 OF2
or regulations of the United States. Any claims or disputes concerning this Promissory Note shall
at the soJe election of Holder, be adjudicated in Collin County, Texas.
SIGNATURES OF MAKERS:
Date of Signature FaizaIMOO~~
BEFORE ME, the undersigned authority, on this day personally appeared FAIZAL
MOOSA, known to me to be the person whose name is subscribed to the foregoing instrument,
and acknowledged to me that: "My name is FAIZAL MOOSA. I have read the foregoing
instrument, and I fully understand its contents. I represent it to be a fact that the statements
contained therein are true and correct, and that I have signed the same freely and voluntarily,
and execute the same for the purposes and consideration therein expressed and none other."
SUBSCRIBED AND SWORN to before me this __day of August, 2009.
Notary Public -State of Texas
Afghan ~-== Date of Signature
BEFORE ME, the undersigned authority. on this day personally appeared AFSHAN
MOOSA, known to me to be the person whose name is subscribed to the foregOing instrument,
and acknowledged to me that: "My name is AFSHAN MOOSA. I have read the foregOing
instrument, and I fully understand its contents. I represent it to be a fact that the statements
contained therein are true and correct, and that r have signed the same freely and voluntarily,
and execute the same for the purposes and consideration therein expressed and none other."
SUBSCRIBED AND SWORN to before me this __day of August, 2009.
Notary Public -State of Texas
PAGE 2 OF 2
CAUSE NO. 401-03415-2008
CITY OF AN NA, TEXAS § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 401 8T JUDICIAL DISTRICT
§
FAIZAL MOOSA, Individually; and §
AFSHAN MOOSA, Individually, § COLLIN COUNTY. TEXAS
Defendants. §
PLAINTIFF CITY OF ANNA, TEXAS'S AND DEFENDANTS FAlZAL MOOSA'S AND
AFSHAN MOOSA'S AGREED MOTION FOR ENTRY OF FINAL JUDGMENT
Plaintiff City of Anna, Texas ("City") together with Defendants Faizal Moosa and
Afshan Moose (collectively "Defendants") jOintly this Agreed Motion for Entry of Final
Judgment requesting the Court to enter the below findings of fact:
(a) The Parties entered into a Compromise Settlement Agreement and Release of
Claims ("CSA")and Defendants executed a Promissory Note in favor of the City.
Under the Promissory Note, Defendants promised to pay $50,000 during a period
of 18 months with the initial payment due June 1, 2007.
(b) Defendants failed to make a single timely payment in violation of the Promissory
Note. Some payments were made, but each was late. Defendants, after multiple
notices of default from the City, made certain payments but have failed to make a
payment since April, 2008.
(c) Defendants have defaulted on the Promissory Note. As a result of Defendants'
breach of the Promissory Note due to nonpayment, there is now due and owing
from Defendants to the City the unpaid principal balance of the Promissory Note,
PLAINTIFF CITY OF ANNA, TEXAS'S AND DEFENDANTS FA.ZAL MOOSA'S AND AFSHAN
MOOSA'S AGREED MO'nON FOR ENTRY OF FINAL JUDGMENT
PAGE 1 OF3
( ExhibitS I
together with the lesser of 6% interest or the highest interest rate allowable by
law.
(d) On January 16, 2008, the City made proper written demand to Defendants for (1)
the remaining principal amount due; (2) interest on the remaining principal
amount calculated at the lesser of 6% interest or the highest interest rate
allowable by law; and (3) attorney fees and costs expended in collecting the debt.
(e) Defendants breached the CSA and Promissory Note.
(f) The City is entitled to its reasonable costs and attorney and paralegal fees and
pre-judgment and post judgment interest as provided by law.
(g) Because of Defendants' breach, the entire amount Defendants now owe, jointly
and severally, to the City is $45,749.11, which includes the unpaid principal in the
amount of $37,000.00, prejudgment interest in the amount of $3,570.25, costs of
court in the amount of $551.36, and reasonable and necessary attorney fees in
the amount of $4,627.50.
The Parties respectfully request that this Court enter an Agreed Final Judgment
setting out the above findings of facts and entering judgment against the Defendants
according to the amounts set forth in paragraph (g), above.
PLAINTIFF CITY OF ANNA, TEXAS'S AND DEFENDANTS FAiZAL MOOSA'S AND AFSHAN
MOOSA'S AGREED MOTION FOR ENTRY OF FINAL JUDGMENT
PAGE20F3
Respectfully submitted,
WOLFE, TIDWELL & MCCOY, LlP
2591 Dallas Parkway I Suite 205
Frisco, Texas 75034
972.712.3530 telephone
972.712.3540 facsimile
By: ~~~~___________________________________
Clark McCoy
State Bar No. 90001803
COlVEN & TRANI P.C.
5420 LBJ Freeway, Suite 300
LB 18
Dallas, Texas 750240-6271
972.788.5300 telephone
972.770.2156 facsimile
By: ~_____~~_______________________
Thomas J. Colven, III
State Bar No. 04629300
PLAINTIFF CITY OF ANNA, TEXAS'S AND DEFENDANTS FAIZAL MOOSA'S AND AFSHAN
MOOSA'S AGREED MOTION FOR ENTRY OF FINAL JUDGMENT
PAGE 3 OF 3
CAUSE NO. 401-03415~2008
CITY OF ANNA, TEXAS § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 401 8T JUDICIAL DISTRICT
§
FAIZAL MOOSA, Individually; and §
AFSHAN MOOSA, Individually, § COLLIN COUNTY, TEXAS
Defendants. §
AGREED FINAL JUDGMENT
Plaintiff City of Anna, Texas together with Defendants Faizal Moosa and Afshan
Moosa jointly filed Plaintiff City of Anna, Texas's and Defendants Faizal Moosa's and
Afshan Moosa's Agreed Motion for Entry of Final Judgment ("Agreed Motion"). After
careful consideration of the Agreed Motion and the papers on file with the Court, the
Court makes the following factual findings:
(a) The Parties entered into a Compromise Settlement Agreement and Release of
Claims (ClCSA")and Defendants executed a Promissory Note in favor of the City.
Under the Promissory Note, Defendants promised to pay $50,000 during a period
of 1 a months with the initial payment due June 1, 2007.
(b) Defendants failed to make a single timely payment in violation of the Promissory
Note. Some payments were made, but each was late. Defendants, after multiple
notices of default from the City, made certain payments but have failed to make a
payment since April, 2008.
(c) Defendants have defaulted on the Promissory Note. As a result of Defendants'
breach of the Promissory Note due to nonpayment, there is now due and owing
AGREED FINAL JUDGMENT
( ExhlbilC JPAGE 1 OF3
from Defendants, jointly and severally, to the City the unpaid principal balance of
the Promissory Note, together with the lesser of 6% interest or the highest
interest rate allowable by law.
(d) On January 16,2008, the City made proper written demand to Defendants for (1)
the remaining principal amount due; (2) interest on the remaining principal
amount calculated at the lesser of 6% interest or the highest interest rate
allowable by law; and (3) attorney fees and costs expended in collecting the debt.
(e) Defendants breached the CSA and Promissory Note and their breach caused
Plaintiff to suffer damages as set forth herein.
(f) The City is entitled to its reasonable costs and attorney and paralegal fees and
pre-judgment and post judgment interest as provided by law, in the amount of
$4,627.50.
(g) Because of Defendants' breach, the entire amount Defendants now owe, jointly
and severally, to the City is $45,749.11, which includes the unpaid principal in the
amount of $37,000.00, prejudgment interest in the amount of $3.570.25, costs of
court in the amount of $551.36, and reasonable and necessary attorney fees in
the amount of $4,627.50.
Further, and in accordance with the Agreed Motion, the Court ORDERS,
ADJUDGES and DeCREES that:
1. Judgment Is hereby ORDERED against Defendants Faizal Moosa and
Afshan Moosa, and that Faizal Moosa and Afshan Moosa are jOintly and severally liable
to the City I in the amount of $45,749.11.
AGREED FINAL JUDGMENT
PAGE 2 OF 3
The Court ORDERS, ADJUDGES and DECREES that all relief as to any party
not expressly granted in this Final Judgment is hereby denied.
This Final Judgment is entered by the Court on the day of
____________, 2009.
AGREED:
WOLFE, TIDWELL & MCCOY, LLP
2591 Dallas Parkway, Suite 205
Frisco, Texas 75034
972.712.3530 telephone
972.712.3540 facsimile
By: ~~~~_____________
Clark McCoy
State Bar No. 90001803
PRESIDING JUDGE
COLVEN & TRAN, P.C.
5420 LBJ Freeway, Suite 300
LB 18
Dallas, Texas 750240-6271
972.788.5300 telephone
972.770.2156 facsimile
By: ~_~~_____________
Thomas J. Colven, III
State Bar No. 04629300
AGREED FINAL JUDGMENT
PAGE 3 OF 3