• 1994 Settlement Agreement

    This Agreement is made and executed as of this 1st day of July, 1994, by and between the F. O. Birmingham Memorial Land Trusts (the "Trusts") and the Wylie Independent School District ("WISD"). The Trusts and WISD are sometimes collectively refereed to herein as the "Parties" or individually as a "Party."

    For and In Consideration of the mutual covenants, rights, and obligations set forth in this Agreement, the benefits to be derived therefrom, and other good and valuable consideration, the receipt and the sufficiency of which both parties acknowledge and confess, the Parties agree as follows:

    1. Statement. Prior to the beginning of each school year (September 1), WISD shall submit to the Trusts the statement required by paragraph 24 of the respective Trusts, in the form attached hereto as Exhibit "A".
    2. Earnings Estimate. By April 1 of each calendar year the Trusts shall provide WISD in writing with their best estimate of net income which will be available for distribution from the Trusts to WISD during the next school year (September 1 through August 31). This estimate is not binding upon the Trusts and may be revised upward or downward at any time as appropriate under the circumstances. The Trusts will notify WISD in writing as to any revisions to the estimate as soon as practical after the revisions are made by the Trusts.
    3. Application Process. Subject to the terms of the Trusts, and in particular, but not by way of limitation, Section 26 of the 1940 Trust and Section 27 of the 1950 Trust, the Trusts will fund net income from the Trusts to WISD in accordance with the terms of the Trusts pursuant to the application process provided in this Section 3, as same may be amended or modified from time to time pursuant to Section 11 of this Agreement.
      1. Application. Prior to the beginning of each school year, WISD shall submit to the Trusts an application or applications requesting funding of "covered courses" under the terms of the Trusts, in the form attached hereto as Exhibit "B" or substantially similar form (the "Application Form".)

        All applications shall request funding for one (1) school year only. The Application Form shall remain consistent with the requirements set forth by the United States Office of Education standards for federal grants under Title I and Title II, as same may be amended from time to time and as set forth in the publications listed in Section 5 of this Agreement.

      2. Approval/Disapproval. Within a reasonable time after receipt of an application or applications made pursuant to Subsection 3.A. above, the Trusts shall notify WISD in writing on the forms attached hereto as Exhibit "C-1" or "C-2," as appropriate, or substantially similar forms (the "Response Forms"), as to the application(s) which are approved and the extent to which and the time(s) at which same shall be funded and any applications(s) which are not approved, together with the reasons for disapproval. Any application(s) approved but not funded shall be returned to WISD at the conclusion of the pertinent school year.
    4. Funding. Funding for approved courses shall be disbursed to WISD by the Trusts in accordance with the funding schedules on the Response Forms, and all funds shall be accounted for by WISD through Separate Fund Accounting in accordance with Bulletin 679, Texas Education Accounting System. All subsequent applications submitted by WISD shall be first funded from the Carryover Fund, then from current net income distributed from the Trusts to WISD. Any funds remaining in the Carryover Fund for more than one (1) year (September 1 to August 31) shall be contributed by WISD to the Trusts.
    5. Accounting. It is the intent of the parties that the accounting for and reporting of Trust funds shall be in accordance with accounting procedures employed in connection with federal grant and Texas Education Agency programs. The United States General Accounting Office ("GAO") imposes various accounting requirements on federal agencies and their grants; the Office of Management and Budget ("OMB") refines these requirements and provides specific guidance to federal agencies. Tab 420 of the Federal Grants Management Handbook provides the basic tools for grantee accounting requirements.

      This Agreement incorporates those requirements as well as GAO's Accounting Principles and Standards for Federal Agencies, OMB Circular A-102, Uniform Administrative Requirements for Assistance to State and Local Governments, OMB Circular A-110, Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations, the Single Audit Act of 1984 and OMB

      Circulars A-128, Audits of State and Local Governments, and A-133, Audits of Institutions of Higher Education and Other Non-Profit Organizations, as same are amended or supplemented from time to time.
    6. Conciliation-Mediation-Arbitration. The Conciliation-Mediation-Arbitration procedures set forth below shall apply only to disagreements between the Parties over whether courses which are the subject of applications submitted for funding by WISD pursuant to this Agreement are "covered courses" under the Trusts, the following dispute resolution procedures shall be followed:
      1. Conciliation. The courses in dispute shall in immediately submitted to the Conciliation Committee (the "Committee"), which shall be comprised of one (1) Trustee from the Trusts, the Executive Director of the Trusts, one (1) Trustee of WISD, the Superintendent of WISD, and Robby Collins ("Collins"), Educational Consultant, or if Collins is not available or refuses to serve, one (1) other impartial person agreeable to the Parties, with the latter person to serve as Presiding Committee Member. The Committee shall meet no later than ten (10) days after the Trusts or WISD demands such a meeting in writing. A Committee member may attend meetings of the Committee by telephone if attendance in person is not practical. The function of the Committee is to attempt to resolve any disagreements between the Parties regarding "covered courses" and to submit its proposed resolution, if any, to the Trusts and WISD for ratification. The Committee shall have no power to impose a resolution to the dispute on either Party, but only to attempt to resolve the disagreements. In the event the dispute is not resolved through the Committee procedure within ten (10) days of the Committee's first meeting on the dispute, either party may declare the dispute subject to mediation.
      2. Mediation. If a dispute over "covered courses" cannot be resolved through the Committee procedure set forth in Subsection 6.A. above, then prior to any other proceeding the parties will endeavor to settle the dispute in an amicable manner through mediation under the applicable provisions of Section 154.001 et seq., Texas Civil Practice and Remedies Code (except that referral to mediation by a court is not required), as supplemented by the Rules for Mediation promulgated by the Association of Attorney Mediators. Within ten (10) days of the declaration that the dispute is subject to mediation, the Parties shall mutually agree upon a member of the Association of Attorney Mediators to act as the mediator. The mediator shall be selected within ten (10) days of the declaration that the dispute is subject to mediation. If the Parties cannot agree on a mediator, the Parties will jointly request the Association of Attorney Mediators to appoint the mediator. The mediation will be scheduled within twenty (20) days following the selection of the mediator and will take place as soon as possible.
      3. Arbitration.
        1. Submission to Arbitration. If a dispute over "covered courses" is not resolved through the mediate procedure set forth in Subsection 6.B. above, the dispute shall be resolved by arbitration under the auspices of the Dallas, Texas, office of the American Arbitration Association ("AAA") pursuant to the terms of this Agreement and the Commercial Arbitration rules of AAA (the "Arbitration Rules"). This Agreement shall govern to the extent, if any, that the Arbitration Rules conflict with this Agreement. There shall be one (1) arbitrator unless the Trusts and WISD mutually agree to a panel of three (3) arbitrators. Attorneys fees, costs and fees charged by AAA and/or the arbitrator(s) will be borne by the Parties which incur same.
        2. Eligible Arbitrators. Within thirty (30) days from the date of this Agreement, the Trusts and WISD shall mutually agree on a list of eight (8) arbitrators who will be eligible to hear and decide arbitration cases arising under this Agreement (the "Eligible Arbitrators"). The Eligible Arbitrators will be chosen from AAA' s current list of commercial arbitrators and must reside in the Dallas-Fort Worth Metroplex. When the Eligible Arbitrators are selected, the Trusts and WISD will submit the list to AAA for its use in accordance with this Agreement. The Trusts and WISD may revise the list of Eligible Arbitrators by mutual agreement at any time. If an Eligible Arbitrator dies, becomes incapacitated or ceases to appear on AAA's list of commercial arbitrators, such person shall be removed from the list of Eligible Arbitrators and replaced by another person from AAA's list of commercial arbitrators by mutual agreement of the Trusts and WISD. The Trusts and WISD will provide AAA with any revised list of Eligible Arbitrators promptly after it is promulgated.
        3. Arbitration Procedure. If an impasse is declared in mediation, the Trusts or WISD may begin the arbitration process by making a demand for arbitration pursuant to the Arbitration Rules. The arbitration hearing shall be held at a mutually acceptable place in Collin County, Texas and must be held no less than thirty (30) nor more than sixty (60) days from the date of the demand for arbitration. The demand for arbitration shall state, in addition to other matters required by the Arbitration Rules, three (3) dates for the hearing which are mutually convenient to the Trusts and WISD (which dates shall conform to the timetable set forth in the preceding sentence), the location of the arbitration hearing and the number of arbitrators requested. Upon receipt of the demand for arbitration, AAA will choose an arbitrator or a panel of arbitrators, as appropriate, from the list of Eligible Arbitrators, establish the place, date and time for the hearing (which shall be one of the dates stated in the demand for arbitration unless none of the Eligible Arbitrators are available on those dates) and notify the parties in writing as to the name(s), address(es) and telephone number(s) of the arbitrator(s) and the place, date and time of the hearing. If none of the Eligible Arbitrators are available on any of the hearing dates stated in the demand for arbitration, the Parties will agree on another date within the timetable established above in this Subsection 6.C. on which an Eligible Arbitrator is available. At least ten (10) days prior to the hearing, the Parties will disclose to each other in writing the names and addresses of the persons they intend to call as witnesses at the hearing (including expert witnesses) and a summary of the anticipated testimony of any expert witnesses and provide each other with copies of any documents which they intend to use as evidence at the hearing. The arbitrator(s) shall make the award and notify the Parties in writing of same within thirty (30) days of the hearing. In the event a panel of three (3) arbitrator(s) hears a case pursuant to this Agreement, the decision of a majority of the arbitrator(s) shall govern. The arbitrator(s) shall be required to state in writing at the time of the award the reasons for the award. The arbitrator(s) may not include costs and attorneys fees as part of the relief granted in the award. Either Party may maintain a suit in Texas District Court sitting in Collin County, Texas, to enforce the award of the arbitrator(s).
    7. Notices. All notices, requests, consents, and other communications under this Agreement shall be in writing and shall be deemed to have been delivered on the date personally delivered or the date deposited in the United States Mail, postage prepaid, by certified mail, return receipt requested, or telegraphed and confirmed, or faxed and confirmed, if addressed to the respective Parties as follows:
    8. If to Trust F.O. Birmingham Memorial Land Trusts
      P.O. Box 546
      Wylie, Texas 75098
      If to WISD Superintendent, Wylie Independent School District
      P.O. Box 490
      Wylie, Texas 75098
      FAX: 972-442-5368

      Either Party hereto may designate a different address by providing written notice of such new address to the other Party.

    9. Waiver. A waiver by the Trusts or WISD of a breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver of any subsequent or continuing breach of this Agreement by the waiving Party.
    10. No Amendment of Court Orders or Trusts. This Agreement is not intended to alter or amend any court orders entered in litigation between the Parties or the terms of the Trusts.
    11. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties, including any successors in interest.
    12. Amendments or Modifications. This Agreement may be amended or modified only by an instrument in writing executed by the Parties.
    13. Governing Law; Venue. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Texas, as they may apply, and venue for any proceeding relating to this Agreement shall be in Collin County, Texas.
    14. Counterparts. This Agreement may be executed in any number of counterparts. All counterparts, when signed by all required signatories, shall constitute originals for all purposes.

    Executed as of the day first set forth above.