• CAUSE NO. 199-1004-89

    November 10, 1989(amp)

    1. Parties.

      The parties to this Compromise Settlement Agreement (the "Agreement") are WYLIE INDEPENDENT SCHOOL DISTRICT, acting by and through its duly elected Board of Trustees ("WISD") and the Board of Trustees of the F. O. BIRMINGHAM MEMORIAL LAND TRUSTS (the "Land Board").

    2. Recitals.
      1. The F. O. BIRMINGHAM MEMORIAL LAND TRUSTS (the "Trusts") are two (2) in number. The Trusts were created by T. F. Birmingham and wife, Hattie A. Birmingham, as settlors, in 1940 and 1950, respectively, by means of written trust indentures.
      2. The Trusts relate to the subjects of "manual training", "domestic economy", "advanced American History and Chemistry" (the "Covered Curricula") in the public schools which are within the jurisdiction of WISD, subject to the specific terms and conditions of the Trusts.
      3. A dispute has arisen between WISD and the Land Board relative to various matters involving the Trusts.
      4. WISD filed suit against the members of the Land Board in their representative and individual capacities in Cause No. 199-1004-89, styled Wylie Independent School District v. Charles T. Trimble, et al, Trustees for the T. F. and Hattie Birmingham Trusts in the 199th Judicial District Court of Collin County, Texas (the "Lawsuit"), in which WISD has made various claims against the Land Board and its members. The Land Board answered the Lawsuit, denying the material allegations made by WISD and denying any liability to WISD.
      5. WISD and the Land Board have agreed to compromise and settle the Lawsuit on specified terms and conditions. The purpose of this Agreement is to set forth the terms of the settlement to which the parties have agreed.


    3. Terms and Covenants.
    4. NOW, THEREFORE, for and in consideration of the mutual terms and covenants set forth herein, the parties agree as follows:

      1. Within fourteen (14) days of the execution of this Agreement by all parties, the Land Board shall pay to WISD from the net income of the Trusts the sum of $444,163.00. WISD accepts the sum (in addition to the sum of $92,730.13 previously received) in full and final satisfaction of the Land Board's distribution under the Trusts to WISD for WISD'S 1988-89 fiscal year. The amount paid to WISD by the Land Board pursuant to Section C. 1. was established through the process of negotiation with a view toward settling the Lawsuit.

        The parties, therefore, understand and acknowledge that neither party agrees with the method by which or the rationale through which either party arrived at calculating, justifying or accepting the amount set forth in this Agreement; neither party's execution and performance under this Agreement constitutes an express or implied acceptance of or acquiescence in the method or the calculations or justifications for the amounts paid hereunder, and neither party is bound by the rationale of the other party or of itself in calculating or justifying the funds paid hereunder.

        Accordingly, neither the amount paid and accepted hereunder nor the rationale through which any party arrived at calculating, justifying or accepting such amount shall constitute or be construed as precedent for the amount of payments made, if any, subsequent to 1988-1989.

      2. Contemporaneous with the receipt of the payment provided in Section C.1. above, WISD, through counsel, will move the Court to dismiss the Lawsuit with prejudice as to all named Defendants. WISD authorizes it attorney, D. Ronald Reneker, to enter into and approve an appropriate Motion for Non-Suit with Prejudice and Order on Motion for Non-Suit with Prejudice in the Lawsuit.

        The respective parties hereto will pay their respective portions of the costs of court each incurred, and each party shall pay its own attorney's fees.

        In connection with the dismissal of the Lawsuit with prejudice, the parties hereby stipulate that the issues of what courses or expenditures should be funded by the Land Board for WISD fiscal year subsequent to 1989-90 was not litigated in the Lawsuit.
      3. Contemporaneous with the payment provided in Section C.1., WISD and the Land Board have agreed on the accounting system to be used by WISD to account for expenditure of funds distributed by the Land Board for the (Covered Curricula) for WISD'S 1989-90 fiscal year and subsequent fiscal years.

        WISD shall provide the Land Board a quarterly accounting of expenditures of funds distributed by the Land Board to WISD for the Covered Curricula, and said accounting shall be due by the 15th of the month immediately following.

      4. WISD shall re-pay to the Trusts the sum of $150,000.00, representing a loan WISD received from the Trusts in 1975, in four (4) equal annual installments of $37,500.00 each, without interest, with the first installment being due and payable on or before August 31, 1990 and an equal installment due on or before the same day of each year thereafter until the balance of $150,000.00 is paid in full.

        In the event WISD fails to timely pay an annual installment as provided above, the Land Board may, in its sole discretion, deduct the amount of the accrued annual payment(s) from current or future disbursements to WISD.

      5. The Land Board presently operates on a calendar fiscal year. Beginning in 1989, the Land Board will give WISD an annual accounting of the Trusts in the form provided by the Texas Trust Code. Such accounting will be as of December 31 and shall be mailed to WISD on or before March 15 next following the end of the subject fiscal year.
      6. WISD, through its Board of Trustees, and the Land Board will agree on and issue a press release regarding the settlement of the Lawsuit (the "Press Release") and submit the Settlement Agreement for publication in the local newspapers.
      7. This Agreement is the only Agreement between the parties relative to the settlement of this Lawsuit. There are no oral or side agreements relative to the settlement of the Lawsuit. This Agreement may be amended only by an instrument in writing, approved by the written consent of the WISD Board of Trustees and the Land Board.
      8. The parties agree the terms and provisions of this Agreement are not to be construed more strictly against any party to this Agreement, and it is the intention of all parties to this Agreement that its terms and provisions will be construed as having the plain meaning of the terms used therein.
      9. In entering into this Agreement, the parties acknowledge they have been provided with sufficient time and opportunity to fully study the facts of this action and have not relied in any way upon any representations or statements made pertaining to the matters involved in this action by any of the other parties, or by any person, attorneys or other individuals employed or retained by the parties.

        The parties acknowledge they have been represented by attorneys throughout the negotiations leading to this Agreement, and they have consulted with their attorneys regarding the meaning and effect of this Agreement.

      10. This Agreement shall be governed by and construed in accordance with Texas law, subject to the provisions of Section C. 8. above.
      11. This Agreement has been made by the parties for the purpose of avoiding the inconvenience, expense and uncertainty that would necessarily result from further litigation between the parties.
      12. Each party hereto acknowledges he has read and understands the effect of the above and foregoing Agreement and executes the same of his own free will and accord for the purposes of consideration set forth.
      13. This Agreement is executed in multiple counter-parts, each of which, when fully executed, shall constitute an original for all purposes.