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HomeMy WebLinkAboutResolution - 2002-R0469 - Settlement Agreement - Gelber And Associates, Corp. - 10_24_2002Resolution No. 2002 RO469 October 24, 2002 Item No. 36 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a settlement agreement with Gelber and Associates, Corp., which is attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this 24th day of October 2002. Marc McDoug , Mayor ATTEST: Q6e,t -C is, --v-- Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Paul thompson, Director of Electric Utilities APPROVED AS TO FORM: A� Matthew L. ade Assistant City Attorney 11cityatt/matt/settlement resolution — gelber 10-2002 Resolution No. 2002-RO469 October 24, 2002 Item No. 36 SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS This Settlement Agreement and Mutual Release of all Claims (hereinafter referred to as the "Settlement Agreement") is entered into by and between the City of Lubbock (hereinafter referred to as the "City") and Gelber & Associates Corp. (hereinafter referred to as "Gelber") RECITALS WHEREAS, the City entered into a Professional Services Contract with Gelber for fuel management consulting services associated with the City's municipally owned electric utility, Lubbock Power & Light (hereinafter referred to as the "Contract"); and WHEREAS, the City terminated the Contract with Gelber on January 23, 2002, effective February 28, 2002; and WHEREAS, Gelber provided natural gas risk management and related services to the City under the Contract that Gelber contends created substantial savings and value for the City; and WHEREAS, Gelber submitted a claim, as evidenced by invoice and letter from Gelber, to the City on May 31, 2002 setting forth amounts that Gelber contends it is owed for services performed under the Contract; and WHEREAS, the City denies any and all liability to Gelber, contractual or otherwise, for any claim or cause of action, but in an effort to avoid the inconvenience, distractions, uncertainties and expenses attendant to litigation and trial, has agreed to enter into this Settlement Agreement with Gelber subject to the terms and conditions as outlined below: NOW THEREFORE, 1. IN CONSIDERATION of the payment by the City to Gelber, of the sum of One Hundred and Five Thousand and 00/100 dollars ($105,000.00), Gelber does hereto enter into this Page 1 Settlement Agreement and does hereby release, acquit and forever discharge the City, its respective predecessors, successors, assigns, owners, City Council, partners, members, managers, employees, directors, legal representatives, insurers, independent contractors, agents and attorneys (the "City Releasees"), of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, whether statutorily provided or otherwise, expenses, services, actions, causes of action, or suit in equity, for whatsoever kind or nature, whether heretofore or hereafter accruing, which Gelber now has or may hereafter have, whether known or unknown, for or because of any matter arising out of the Contract or any incident related thereto. 2. In consideration of the mutual promises contained in this Settlement Agreement, the City does hereby release, acquit and forever discharge Gelber, its respective predecessors, successors, assigns, owners, managers, employees, directors, legal representatives, insurers, independent contractors, agents and attorneys (the "Gelber Releasees"), of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, whether statutorily provided or otherwise, expenses, services, actions, causes of action, or suit in equity, for whatsoever kind or nature, whether heretofore or hereafter accruing, which the City now has or may hereafter have, whether known or unknown, for or because of any matter arising out of the Contract or any incident related thereto. 3. Payment shall be made by one check payable to "Gelber and Associates and their attorney, David Zdunkewicz," within five (5) business days after the City receives copies of this Settlement Agreement executed by both parties. 4. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring due to the Contract or any incident related thereto, including, but not limited to, all claims, demands, causes of actions of any nature, Page 2 whether in contract or in tort, or arising out of, under or by virtue of any statute or regulation, that are recognized by law or that may be created or recognized in the future by any manner, including, without limitation, by statute, regulation, or judicial decision, for past, present and future damage or loss, or remedies of any kind that are now recognized by law or that may be created or recognized in the future by any manner, and including but not limited to the following: all actual damages, all exemplary and punitive damages, all penalties of any kind or statutory damages. Each party hereby declares that they fully understand the terms of this Settlement Agreement and voluntarily accept the consideration in this Settlement Agreement for the purposes of making full and final settlement of any and all the injuries, damages, expenses, and inconvenience above mentioned. 5. This Settlement Agreement may be pled as a full and complete defense to any action, suit, or other proceeding which may be instituted, prosecuted or attempted for, upon, or in respect of any of the claims released hereby. Gelber and the City each agree that any such proceeding would cause irreparable injury to the party against whom it is brought and that any court of competent jurisdiction may enter an injunction restraining prosecution thereof. 6. Each party hereto agrees that the damages suffered by the other, and persons, firms, corporations, or other entities protected by this Settlement Agreement by reason of any breach of any provision of this Settlement Agreement shall include not only the amount of any judgment that may be rendered against said party, persons, firms, corporations, or other entities, or any of them, by reason of a breach of this Settlement Agreement, but shall also include all damages suffered by them, including the cost of attorneys' fees and other costs and expenses of instituting, preparing, prosecuting, or defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and the costs to them of attorneys' fees, Page 3 and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action to recover damages resulting from the breach of this Settlement Agreement, whether taxable or otherwise. 7. Each of Gelber and the City hereby represents and warrants that it, and it alone, owns the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement (the "Claimed Rights"), and that it has not transferred, conveyed, pledged, assigned or made any other disposition of the Claimed Rights. Each party agrees to indemnify and hold harmless the City Releasees or the Gelber Releasees, as applicable, from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorney's fees, incurred in the defense of any such claim that any person who claims an ownership in the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement. 8. Each of Gelber and the City hereby warrants and represents that it has no knowledge of and it has not paid or agreed to pay any outstanding liens, claims or rights of subrogation arising out of or relating to claims asserted by such party. Each of Gelber and the City agrees that the other is not responsible for any outstanding liens, claims or rights of subrogation and that each of Gelber and the City, to the extent permitted by law, will indemnify the other and hold each other harmless from any such claims, liens or rights of subrogation. 9. This Settlement Agreement shall inure to the benefit of, and be binding upon, Gelber, it's heirs, partners, legal representatives, successors or assigns, and the City's heirs, legal representatives, successors or assigns. 10. To the extent permitted by law, including but not limited to Chapter 552 of the Texas Government Code, this Settlement Agreement and the terms of this Settlement Agreement Page 4 shall be held in the strictest confidence by the City and Gelber and it is further understood that (i) the terms of this Settlement Agreement will not be disclosed to any third parties, except as otherwise required or allowed by law or when necessary to enforce the terms of this Settlement Agreement, (ii) any alleged events or circumstances that gave rise to the City's decision to terminate the Contract will not be disclosed to any third parties, except as otherwise required or allowed by law or when necessary to enforce the terms of this Settlement Agreement, (iii) the reasons for the City's decision to terminate the Contract will not be disclosed to any third parties, except as otherwise required or allowed by law or when necessary to enforce the terms of this Settlement Agreement, and (iv) the City's opinion of the nature and quality of the services performed by Gelber under the Contract will not be disclosed to any third parties, except as otherwise required or allowed by law or when necessary to enforce the terms of this Settlement Agreement. It is further understood that this section is not intended and does not prohibit any elected official of the City from making any public comments to which they would otherwise be entitled to make under law. 11. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 12. This Settlement Agreement states the entire agreement of the parties with respect to the matters discussed herein, and supersedes all prior or contemporaneous oral or written understandings, agreements, statements or promises. 13. This Settlement Agreement may not be amended or modified in any respect except by a written instrument duly executed by all of the parties to this Settlement Agreement. Page 5 14. If this Settlement Agreement does not become effective for any reason, it shall be deemed negotiations for settlement purposes only and will not be admissible in evidence or usable for any purposes whatsoever. 15. This Settlement Agreement shall be construed to have been drafted by all the parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 16. If any portion of this Settlement Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Settlement Agreement shall not be affected and shall remain fully in force and enforceable. 17. Each party has consulted with whatever consultants, attorneys or other advisors they deem appropriate concerning the effect of the Settlement Agreement and each party assumes the risk arising from not seeking further or additional consultation with such advisors. 18. Each party assumes the risk of any mistakes of facts or law with regard to any aspect of the Settlement Agreement, the dispute described herein, or any asserted rights released by the Settlement Agreement. 19. Each party to this Settlement Agreement acknowledges and agrees that they have obtained legal representation and advice as they have deemed appropriate in entering into this Settlement Agreement. 20. Each party further states that they have read this Settlement Agreement and understand the contents thereof and have signed the same as their own free act and have not been influenced in making this Settlement Agreement by any representative of a party or parties released. Page 6 21. It is further understood that the provisions of this Settlement Agreement are contractual and not mere recitals and that this Settlement Agreement shall be governed by and will be construed by the laws of the State of Texas. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. 22. This Settlement Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. SIGNED this 3V day of _�ac; b6e f , 2002. Art Gelber Gelber & Associates Corp. STATE OF TEXAS § COUNTY OF HARRIS § Before me, the undersigned authority, personally appeared Art Gelber, known to me 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. SUBSCRIBED AND SWORN TO BEFORE ME on this 3 t day of N,etRX,.s , 2002. Notary Public, in and for the State of Texas Page 7 SIGNED this 24th STATE OF TEXAS COUNTY OF LUBBOCK day of innyur City of Lubbock This instrument was acknowledged before me on the 2 5 day of r , 2002, by Marc McDougal, Mayor of the City of Lubbock, on behalf of said City. 4), SUBSCRIBED AND SWORN TO BEFORE ME on this �.a _ day of Q cl- o b,? it , 2002. �CELIA 1P EBB�- N0 Notary Public, in and for the State of Texas • o3-Qi-2�?C48 APPROVED AS TO FORM: David A. Zdunkewicz Attorney for Gelber & Associates Corp. Ma ew L. Wade Attorney for the City of Lubbock Page 8 AUSTIN DALLAS LONDON LOS ANGELES NEW YORK THE WOODLANDS WASHINGTON, D.C. Via Federal Express Matthew Wade City of Lubbock P.O. Box 2000 1625 13th Street Lubbock, Texas 79457 ANDMWS & KURTH L.L.P. ATTORNEYS 600 TRAVIS, SUITE 4200 HOUSTON, TEXAS 77002 November 1, 2002 TELEPHONE: 713.220.4200 FAC S I M I L E: 713.220.4285 DAVID A. ZDUNKEWICZ DIRECT: 713.220.4128 DIRECT FAX: 713.238.7106 email: dzdunkewfcz@akllp.com Re: Settlement Agreement and Mutual Release of All Claims by and between The City of Lubbock and Gelber & Associates Corp. Dear Matt: Enclosed is the original fully executed settlement agreement and release, and a copy of the Resolution of the City Council for your files. If you should have any questions or comments regarding the enclosed, please do not hesitate to call me. 2395:bc Enclosure Yours very truly, d" - �- k-,\ - David A. Zdunkewicz HOU:2082353.1