HomeMy WebLinkAboutResolution - 2011-R0562 - Full And Final Release, Inddemnity, And Hold Harmless Agreement - 12/14/2011Resolution No. 2011-RO562
December 14, 2011
Item No. 5.19
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, a Full and Final Release, Indemnity and
Hold Harmless Agreement for the consideration of the sum of $41,000.00, by and
between the City of Lubbock and Grimes & Associates, Consulting Engineers, L.P.; and
Nautilus Insurance Company, and related documents. Said Agreement is attached hereto
and incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council this December 14 , 2011.
ATTEST:
Rebe ca Garza, City Secretark.)
APPROVED AS TO FORM:
r
TOM MARTIN, MAYOR
sj/cedocs/Sam/Resolutions/RES.Ab eement-Grimes & Assoc.
Nov. 22, 2011
FULL AND FINAL RELEASE, INDEMNITY
AND HOLD HARMLESS AGREEMENT
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned, THE CITY OF LUBBOCK (hereinafter referred to as "Releasor"),
by and through its authorized representative, Tom Martin, Mayor of the City of Lubbock, with
legal capacity to bind the Releasor, for the consideration of the sum of FORTY-ONE
THOUSAND AND NO/100 ($41,000.00) DOLLARS paid by or on behalf of Grimes &
Associates, Consulting Engineers, L.P.; Joe Grimes, individually, and as CEO and General
Partner; Albert Moffitt, individually, and as employee and Architect of Grimes & Associates,
Consulting Engineers, L.P.; and Nautilus Insurance Company (hereinafter referred to as
"Releasees") within 30 days of Releasor signing this agreement, by these presents for itself and
for and on behalf of its heirs, executors, administrators and assigns, hereby ACQUIT, RELEASE
AND FOREVER DISCHARGE Releasees, and its officers, employees, directors, and each of its
successors and predecessors in interest, and its attorneys and insurers, including Berkley
Specialty Underwriting Managers, LLC and Nautilus Insurance Company (solely in the capacity
of insurers for Releasees), of and from any and all claims, demands, debts, liens, causes of
action, or liabilities, at law or in equity, in contract or in tort, by statute or at common law, as
well as any other character or kind of action now held or owned by us, in whole or in part, which
Releasor may now have or may hereafter claim to hold or possess, on account of, growing out of,
related to, or concerning, any and all injuries or damages (known, unknown, consequential,
liquidated, or unliquidated) sustained by Releasor or alleged to have been sustained by Releasor
(past, present or future) as a result of professional services, work, plans and specifications,
contracted to be performed by Releasees for Releasor at the Buddy Holly Center, Lubbock,
Texas, in response to City of Lubbock Request for Proposals for "Repair Roof Tiles at Buddy
Holly Center," RFP #08 -741 -DD, Contract #8730, Project Number 92144.8304.20000; under
Architecture/Engineering Services Contracts and amendments thereto of July 5, 2007; April 9,
2008; July 23, 2007; April 28, 2008; May 9, 2007; Project Manual dated June 11, 2008 for Job
No. 07069; and City of Lubbock RFP #08 -741 -DD, Contract #8730; involving the inspecting,
evaluating, repair and restoration of the roof of the Buddy Holly Center, Lubbock, Texas.
This Release includes any claims by, through, or under Releasor against Releasees for
any and all vicarious liability of LYDICK HOOKS ROOFING COMPANY; ARMKO
INDUSTRIES, INC; TALON/LPE; and/or any other subcontractor or contractor who has or will.
perform work and/or services on the Buddy Holly Center roof for detection, analysis or repair of
roof leaks.
The undersigned, Tom Martin, as Mayor of the City of Lubbock, hereby represents and
warrants that the City Council of the City of Lubbock has expressly approved the settlement that
is being entered into herein and the Release being executed herein, that the City of Lubbock
authorized this settlement on 14th day of December, 2011, and that he has express authority
to enter into this Release and approve this settlement. Attached to this Release is a copy of the
documents reflecting the approval of the City Council of the City of Lubbock to this settlement.
The said document is attached hereto as Exhibit "A" and incorporated herein by reference the
same as if fully set forth at length herein.
It is understood and agreed that this is a FULL AND COMPLETE RELEASE of
Releasees and includes a release of all claims against Releasees for damages of any kind or
character, including by way of illustration, but not by way of limitation, claims for damages for
the following: actual damages sustained by Releasor; exemplary damages, past, present, and
future claims, demands, actions, and causes of action in any manner, arising out of professional
services, and any and all work, services, and/or products of Releasees, and any other type of
damages whether or not measurable in money, whether included within the foregoing
enumeration or not, including any claims for damages to accrue in the future from any cause,
whether known or anticipated at this time, or otherwise, and regardless of whether specified
within the categories enumerated above as it relates to work performed by Releasees in response
to City of Lubbock Request For Proposals for "Repair Roof Tiles at Buddy Holly Center." RFP
#08 -741 -DD, Contract #8730, Project Number 92144.8304.20000; under
Architecture/Engineering Services Contracts and amendments thereto of July 5, 2007; April 9,
2008; July 23, 2007; April 28, 2008; May 9, 2007; Project Manual dated June 11, 2008 for Job
No. 07069; and City of Lubbock RFP 908 -741 -DD, Contract 48730; involving the inspecting,
evaluating, repair and restoration of the roof of the Buddy Holly Center, Lubbock, Texas. It is
the intention of the parties executing this Release that the same shall be as general as possible,
and that same shall cover every conceivable contingency which might arise in the future or
which may have arisen in the past, whether known of unknown at this time.
Releasor warrants, represents, and guarantees the following: (1) that there are no
outstanding claims against Releasees of any character in any way arising out of the occurrences
made basis of this lawsuit other than the claims now being released and hereafter barred; (2)
Releasor states that it has not assigned any portion of its claim to any person, firm, or
corporation; and (3) Releasor further warrants, represents and guarantees that it is the only
person, firm, corporation, or governmental entity entitled to receive any compensation for the
damages and occurrences above described. In consideration of the money paid by Releasees,
Releasor guarantees that henceforth Releasees shall never be liable to Releasor because of the
assertion of claims released herein, subrogation rights, or liens, to anyone claiming an
assignment from Releasor, or to anyone claiming in any manner or procedure by, through or
under Releasor, for any sum whatsoever in any manner arising out of or in any way connected
with, directly or indirectly, the occurrences above described and any consequences thereof. It is
understood, acknowledged, and agreed that the guarantees contained in this paragraph are a
necessary condition precedent to this settlement, and without such guarantees no money would
have been paid by Releasees to Releasor herein.
As a further consideration of said payment, Releasor warrants that its undersigned
authorized representative is competent to execute this Release; that no promise or agreement
which is not herein expressed has been made to Releasor; that in executing this Release, Releasor
is not relying upon any statement or representation of Releasees, or on anv statement or
representation of Releasees or on any agent or servant of Releasees, but are relying upon its own
judgment, and that it fully understands that the same is a FUL AND FINAL SETTLEMENT OF
ALL CLAIMS AGAINST Releasees arising out of the alleged occurrences.
It is further understood and agreed that Releasees do not admit any negligence or liability
whatever, under any theory of law, to the Releasor, or to any person, firm, or corporation by
reason of the occurrences mentioned, liability therefore being specifically denied; that this
settlement is being made purely upon compromise basis by Releasees to rid themselves of
litigation in regard thereto, and that this Release shall never be used as evidence of liability of
Releasees in any suit or suits, claims or causes of action whatsoever except to enforce any term
herein.
RELEASOR HAS READ ALL OF THIS RELEASE BEFORE SIGNING THE SAME
AND UNDERSTANDS THAT IT IS A FULL, FINAL AND COMPLETE RELEASE AND
SETTLEMENT AND THAT RELEASOR WILL NOT RECEIVE ANY MORE MONEY
FROM RELEASEES ON ACCOUNT OF THE FACTS AND CIRCUMSTANCES
HERETOFORE RECITED.
THE RELEASOR, BY SIGNING BELOW, REPRESENTS, WARRANTS, AND
ACKNOWLEDGES THAT HE HAS READ AND UNDERSTANDS THIS AGREEMENT
AND EXECUTES THIS AGREEMENT AS HIS OWN AND THE CITY OF LUBBOCK'S
OWN FREE ACT AND DEED.
IN TESTIMONY WHEREOF, Releasor has executed this Release on this the 14th day
of December , 2011.
THESTATEOFTEXAS §
COUNTY OF LUBBOCK §
/ Mlw
TOM MARTIN, Mayor, City of Lubbock
Before me ff � lS i 43 archm on this date personally appeared TOM
MARTIN, Mayor and Authorized Representative of THE CITY OF LUBBOCK, known to me or
proved to me through his valid Texas Driver's License to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed the same for
the purposes and consideration therein expressed.
,A
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of
b�CE, , A.D. 2011.
Lua��WnkA
NOTARY PUBLIC in and for th
STATE OF TEXAS
ELISA SANCHEZ &VAcil e i
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My commission expires: 1— lot S—
ATTEST:
'Dj," -5x- -
Rebec a Garza, City Secret
APPROVED AS TO FORM:
Sam Medina, City mey
CityAtt/Litigation/CityPlaintiff/Grimes & Associates/Release Agreement
GRIMES & ASSOCIATES,
CONSULTING ENGINEERS, LP
P
rsiGrimes
dent, Gri Associates