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Home My WebLink AboutResolution - 891 - Release & Settlement Agreement - Page & Wirtz Co - Electrical Fire, Civic Center - 08_13_1981PVC; 4 DWR:cl RESOLUTION 891 - 8/13/81 j i 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 Release and Settlement Agreement between the City of Lubbock and Page and Wirtz Construc- tion Company, attached herewith 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 13th day of August ,1981. t�z;'�Aj ;1w MILL McALISTER, MAYOR ATTEST:_ Evelyn Gaf ga, City Sec a y-Treasurer APPROVED AS TO CONTENT: � 2l�Ci 4e- Carroll McDonald, -Director of Electric Utilities APPROVED AS /TO' FORM: David W. Reagan, ss tant City Attorney RESOLUTION 891 - 8/13/81 if 6iCRFTARY-TRFASURER No. 88,432 PAGE & WIRTZ CONSTRUCTION § IN THE 237TH DISTRICT COURT COMPANY § VS. § OF THE CITY OF LUBBOCK, ET AL § LUBBOCK COUNTY, TEXAS RELEASE AND SETTLEMENT AGREEMENT WHEREAS, on or about November 30, 1976 at the Civic Center, central plant, Lubbock, Texas, while under construction with Plaintiff PAGE & WIRTZ CONSTRUCTION COMPANY being the general contractor, DEAVER & VICKERY COMPANY a subcontractor, and the CITY OF LUBBOCK as owner, an electrical explosion and fire occurred at the central plant. The proximate cause of which Plaintiff alleges was the negligence of the CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT, DEAVER & VICKERY COMPANY and the further negligence and defective product allegedly supplied by WESTINGHOUSE SUPPLY COMPANY. All of which resulted in this cause of action being filed by PAGE & WIRTZ CONSTRUCTION COMPANY (hereafter sometimes referred to as PAGE & WIRTZ) against DEAVER & VICKERY COMPANY (hereafter sometimes referred to as DEAVER & VICKERY), WESTINGHOUSE SUPPLY COMPANY (hereafter sometimes referred to as WESTINGHOUSE) and the CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT (hereafter sometimes collectively referred to as LUBBOCK), and in which the Defendants filed cross actions against each other and which suit went to trial on March 23, 1981, before a jury which returned its verdict on March 26, 1981, which was duly accepted and on which the Court subsequently rendered a judgment on April 24, 1981, against all Defendants and in favor of PAGE & WIRTZ: WHEREAS, PAGE & WIRTZ and LUBBOCK desire to compromise and settle all claims and controversies between them; NOW, THEREFORE, KNOW ALL MEN by these presents that PAGE & WIRTZ, for and in consideration of the sum of $73,250.00 in hand paid by or on behalf of LUBBOCK, the receipt of which is hereby acknowledged and for the further consideration of the promise of LUBBOCK not to appeal from the above mentioned judgment, PAGE & WIRTZ does hereby release THE CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT, the insurer of said Defendants, the officers, directors, agents, servants and employees of said Defendant and insurer, and any and all parties, firms, corporations, or persons in privity with either of them, of and from all actions, causes of actions, claims, demands, damages, expenses, costs of court, property damage and liability of any nature whatsoever on account of or in any way growimg out of the above described occurrence or its results in the above styled and numbered cause, whether liability or damage is known or unknown, and further agrees for the same consideration, that the said judgment be and hereby is released insofar as it is against THE CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT. It is further understood and agreed that this release and settlement agreement in no way releases or affects Plaintiff's claims, causes of action, judgment or relationship between PAGE & WIRTZ AND WESTINGHOUSE. PAGE & WIRTZ specifically reserves out its cause of action and judgment against WESTINGHOUSE from this release and settlement agreement. In further consideration of the sums paid and promise made by LUBBOCK, PAGE & WIRTZ agrees to indemnify and save harmless THE CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT from any and all liabilities, demands, damages, expenses, cost of court, suits, actions, or causes of actions and attempts or efforts to enforce or satisfy any judgment against LUBBOCK now in existence or which may come into existence hereafter by WESTINGHOUSE, or DEAVER & VICKERY or both or any person, firm,corporation, entity, in privity with them, for any reason, because of the occurrence made the basis of this suit. It is understood that PAGE & WIRTZ will not be liable to indemnify LUBBOCK for Attorneys' fees on retrial. It is further understood and agreed that this Release and Settlement Agreement does not settle or release and in -2- no way affects the claims, causes of action or liability alleged in Cause No. 88,985 in the 237th District Court of Lubbock County, Texas, styled "WILLIAM D. TAYLOR VS. CITY OF LUBBOCK AND LUBBOCK POWER & LIGHT AND WESTINGHOUSE SUPPLY COMPANY, A DIVISION OF WESTINGHOUSE ELECTRIC CORPORATION," or the third party action filed by the City of Lubbock against Page & Wirtz Construction Company; in addition, the said indemnity and hold harmless agreement of the preceeding paragraph has no application to said suit described above in this paragraph. It is finally understood and agreed that LUBBOCK shall pay all costs of court it has incurred in its name, and that as between PAGE & WIRTZ and LUBBOCK all other costs of court, whether now incurred or incurred in the future, shall be paid by PAGE & WIRTZ unless otherwise adjudged against some other party to the case, but in no event shall be paid by LUBBOCK. In executing this Release and Settlement Agreement, Plaintiff agrees that the settlement and compromise of'this disputed claim is in no way to be considered as an admission of liability and LUBBOCK expressly denies liability, but this settlement is made in order to avoid further litigation and make peace. It is understood that this is the full, final and absolute settlement of any and all claims held, owned or possessed by PAGE & WIRTZ in any capacity whatsoever; and said PAGE & WIRTZ represents that its officer and representative have read and understood the above and foregoing Release and Settlement Agree- ment and every word of it. It is also further agreed between DEAVER & VICKERY AND THE CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT that each of them hereby waives any and all claims which each may have against the other whether for contribution or indemnity arising out of this suit No. 88,432 as styled first written in the heading of this document. EXECUTED this, the 13th day of August 1981. PAGE & WIRTZ CONSTRUCTION COMPANY By: �_GC \, THE CITY OF LUBBOCK AND LUBBOCK POWER AND L . 1; 1 By: Bill McAlister, Mayor DEAVER & VICKERY COMPANY By: II�L�/ , ltCe APPROVED: JONES, TROUT, FLYGARE, MOODY & BROWN P.O. Box 2426 Lubbock, Texas 79408 (806) 65-8851 A(6ku By: ames L. arton State Bar of Texas I.D. No. 21243500 ATTORNEYS FOR PAGE & WIRTZ CONSTRUCTION COMPANY JOHN C. ROSS, JR. CITY ATTORNEY State Bar No. 17303000 P.O. Box 2000 Lubbock, Texas 79457 By: awes P. Brewster IVIL TRIAL ATTORNEY S a Bar of Texas I.D. No. 02970000 ( 6) 762-6411, ext. 2215 ATTORNEYS FOR CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT CARR, EVANS, FOUTS & HUNT P.O. Box 2585 Lubbock, Texas 79408 (806) 765-7491 By : Donald M. Hunt State Bar of Texas I.D. No:10284000 ATTORNEYS FOR DEAVER & VICKERY COMPANY -4- THE STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, on this day personally appeared , known to me to be t e person whose name is subscribed to the foregoing instru- ment and acknowledged to me that the same was the act and deed of the said —PAGE & WIRTZ CONSTRUCTION COMPANY, and that he executed the same a-s--the act of such corporation for the purposes and cons-icleratd.oil, therein expressed, and in the capacity therein stated. GIVEN UDDER MY HAND AND SEAL OF OFFICE this the 14th day of A„gj�Gt� 1981. y ub ic, Lu oc County, Texas My Commission Expires: 1127/84 THE STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME,,th�,�nd s' ed authority, on this day personally appeared , c , known to me to be the person whose name is subscribed tot�ieoregoing instru- ment and acknowledged to me that the same was the act and deed of the said CITY OF LUBBOCK AND LUBBOCK POWER AND LIGHT, and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. dl— GIVEN UNDER MY HAND AND SEAL OF OFFICE this the IS day of ' 1981. Notait-y-Public, L 0 ck County, Texas My Commission Expires: g THE STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, on this day personally appeared , known to me to be the person whose name is su scribe to t e oregoing instru- ment and acknowledged to me that the same was the act and deed of the said DEAVER & VICKERY COMPANY, and that he executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the 18th day of Aucqust , 1981. Notary Public, Lubbock County, Texas My Commission Expires: 00017 $1 hFA AN• MABRY "Y puMi; . 9titr tf TeRaS —5— ' M,y Cumm ss�on Eip�r¢r 6/2Z/85