HomeMy WebLinkAboutResolution - 2004-R0597 - Letter Agreement Resolving Disputed Issues To Line A-1 Of Civil Action Case - 12_16_2004Resolution No. 2004—RO597
December 16, 2004
Item No. 38A
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the City Council of the City of Lubbock ratifies and approves the Letter
Agreement resolving the remaining disputed issues relating to Line A-1 in United
States District Court for the Northern District of Texas, Lubbock Division, Civil
Action No. 5-03CV0269-C, Barnard Construction Co. Inc. v. City of Lubbock,
Texas. Said Letter Agreement is attached hereto and incorporated in this Resolution
as if fully set forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 16th day of December 2004.
"IA /
ARCM O GAL, MAYOR
ATTEST:
Rebecca Garza, City Secretary
APIOVED AS TO CONTENT AND FORM:
uml 'LIAA!�e4-<
Anita Burgess, City Addhey
Lc: city att / Linda / Barnard ratification
December 8, 2004
Resolution No. 2004—RO597
December 16, 2004
Item No. 38A
Office of the City Attorney
P.Q. Box 2000 • 1625 13th Street
Lubbock, Texas 79457
(806) 775-2222 • Fax (806) 775-3307
December 6, 2004
Via Hand -Delivery:
The Honorable Sam R. Cummings
United States District Judge
C-210 George H. Mahon Federal Building
1205 Texas Avenue
Lubbock, Texas 79401-4002
Re: Cause No. 5-03CV0269-C, Barnard Construction Company, Inc. v. The
City of Lubbock, Texas
To the Honorable Judge of this Court:
The parties have reached a settlement in the above -referenced case as it pertains
to the issues set for trial on December 6, 2004. These issues related only to whether the
City owed additional monies for rock on Line A-1.
The Court had previously entered an Order on September 28, 2004 ruling that the
contract between the parties did not require the City to pay for rock on Lines other than
Line A-1. The parties have not reached an Agreement as to that matter.
The attached letter agreement anticipates severance of Line A-1 issues and the
entry of an appropriate Order by the Court allowing the Plaintiff to pursue an appeal
regarding matters set forth in the Judge's Order of September 28, 2004.
If the Court has any questions, please contact me at 775-2213.
Respectfully,
Anita Burgess
City Attorney
cc: David R. Langston
Stephen K. Yungblut
MULLIN HOARD & BROWN, L.L.P.
Resolution No. 2004-RO597
DAVID MULLIN
ATTORNEYS AT LAW
HOAROWN
STEJOHN
1500 BROADWAY, SUITE 700
JOHN M. BROWN
M. B
DAVID R. LANGSTON
LUBBOCK, TEXAS 79401
DONALD M. HUNT
(806) 765-7491
JEFFREY E. RITrER
FAX (806) 765-0553
DANNY M.NEEDHAM
DON D.SUNDERLAND
JOHN S. IRWIN
MAILING ADDRESS:
LATRELLE BRIGHT JOY
P. O. BOX 2585
JOS. MILLER
LUBBOCK, TEXAS 79408-2585
K. MERRrrT
HNNY K.
JOHNNY
JOEL R HOME
JOHN G. TURNER M
www.mullinhoard.com
VINCENTE. NOWAKI
E-mail Address: iclif ambba.com
ROBERT R BELL
OBER
MICHAEL D. HICKS
BRAD A. CHAPMAN
MAU S.LOGSDON
December 6, 2004
Anita E. Burgess, City Attorney
Jeff Hartsell, Supervising Attorney
Linda Chamales, Supervising Attorney
P.O. Box 2000
Lubbock, Texas 79457
speewl c uam
WARLiCK CARR
JOHN MOZOLA. P.C.
JIMMY L ROSS
JEFFREY C. VOILES
ROBERT SIDORSKY-
WOLFPUCKM
WALTER T. PRICE. IV
DAVID A. KELLY. JIL
CLINT R. LATHAM
DARRELLI.OUTHRIE
LAWRENCE M. DOSS
MOLLY A_ MANNM
JANA G. CLIPT
MICHAEL B. FRANKLIN
BRAD D. MCCALL
JONI K. PAUL
IV ANDRBW STEWART
ALISON R SANDERS
KEVINT. WAKLEY
ELIZABETH LYONS
4khruned in New Ywt only
VIA HAND DELIVERY
Re: Civil Action No. 5-03CV0269-C; Barnard Construction Company, Inc. v. The City
of Lubbock, Texas, In the U.S. District Court for the Northern District of Texas,
Lubbock Division
Dear Counselors:
The purpose of this letter is to set forth the terms of a settlement between the City of
Lubbock ("City") and Barnard Construction Company, Inc. ("BCCI'� to resolve the remaining
disputed issues relating to Line A-1 in the above -captioned lawsuit. The terms of the settlement
which have been reached between the City and BCCI are as follows:
1. The parties agree that this settlement pertains only to Line A-1 and constitutes a full
and final settlement regarding Line A-1.
2. The amount of rock excavated by BCCI on Line A-1 and not paid for by the City is
agreed to be in the total amount of 880.41 cubic yards.
3. The City shall pay to BCCI the total sum of $176,082.00, and such sum shall bear
prejudgment interest in accordance with applicable law, at the rate of five percent
(5%) per annum from August 14, 2002, which said sum equals $20,478.58 as of
December 10, 2004, with a per diem in the amount of $24.12 accruing every day
thereafter until paid.
4. The parties shall ask the Court by December 15, 2004 to sever the settled portion of
the above referenced litigation regarding Line A-1 and enter an appropriate Order.
Amarillo Office:
500 S Taylor
Suite 800, LB 213
Amarillo, TX 79101
(806)372-5050
Fax (806) 372-5086
New York Office:
945 Third Ave
21 st Floor
New York, New York 10022
(212)223-4150
Fax (212) 223-4153
f
Ms. Burgess, Mr. Hartsell,
and Ms. Chamales
December 6, 2004
Page 2
5. Upon entry of the Court's Order to resolve the amount owing BCCI on Line A -I, the
City shall wire transfer to BCCI the agreed sum due and owing on Line A-1 in full
and final settlement of all issues in the lawsuit relating to payment for rock on Line
A- I .
6. Each party agrees to bear its own expenses and fees associated with the litigation
including, but not limited to, attorneys' fees, filing fees, costs and any other expenses
of the litigation.
7. The parties retain all of their respective legal rights as to the remainder of the
litigation, including, but not limited to, the right to file a motion for judgment as a
matter of law, all appropriate post judgment motions, and the full rights to appeal the
balance of the issues in the litigation as they pertain to the asserted rights of BCCI to
be paid for the balance of the rock excavated on the lines outside of Line A -I which
are the subject of this lawsuit.
8. The parties shall cooperate in the drafting of a settlement agreement based upon the
terms in this letter agreement.
Provided that the terms and provisions set forth above correctly state the agreement to
settle the disputed issues relating to Line A-1, 1 would ask that you sign a copy of this letter in
the space provided below and return it to us.
Very truly yours,
David R. Langston
Agreed to this day of December, 2004�._
THE CITY OF LUBBOCK, TEXAS
By: L., L g! . :��,
Anita E. Burgess, City Attorney