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HomeMy WebLinkAboutResolution - 2024-R0307 - Compromise Settlement Agreement, Trumble Steel Erectors - 07/09/2024Resolution No. 2024-R0307 Item No. 6.10 July 9, 2024 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, Release, and Indemnity Agreement with Trumble Steel Erectors, Inc. d/b/a Trumble Crane and Rigging, and related documents. Said Agreement is attached hereto and incorporated herein as though set forth fully herein in detail, and any documents related thereto. Passed by the City Council this 9th day of July, 2024. NNW MA&I- /11ta. i ATTEST: Courtney Paz, City S APPROVED AS TO CONTENT: Joel Iv , irector dlectry2lihties APPROVED AS TO FORM: Keli Awan, LP& eneral Counsel Resolution No. 2024-R0307 CITY OF LUBBOCK, Plaintiff, VS. CAUSE NO. DC-2024-CV-0165 TRUMBLE STEEL ERECTORS, INC. D/B/A TRUMBLE CRANE AND RIGGING, § IN THE DISTRICT COURT OF § § LUBBOCK COUNTY, TEXAS § 237TH DISTRICT COURT Defendant. CONFIDENTIAL SETTLEMENT, RELEASE AND INDEMNITY AGREEMENT THIS CONFIDENTIAL SETTLEMENT, RELEASE, and INDEMNITY AGREEMENT is entered into on its date of execution by and between Plaintiff CITY OF LUBBOCK and Defendant TRUMBLE STEEL ERECTORS, INC. D/B/A TRUMBLE CRANE AND RIGGING for good and valuable considerations, the receipt of which is hereby acknowledged, the Parties (as defined below) agree as follows: I. DEFINITIONS a. "City" or "Plaintiff' shall refer to City of Lubbock. b. "Trumble" or "Defendant" shall refer to Trumble Steel Erectors, Inc. d/b/a Trumble Crane and Rigging. c. The "Drop Event" shall refer to the incident made the basis of this lawsuit in which the gas -powered turbine generator was dropped. d. The "Turbine" refers to the gas -powered turbine generator made the basis of this lawsuit. e. The "Contract" refers to the alleged oral contract made the basis of Plaintiff's breach of contract claim. f. The "Lawsuit" shall mean the lawsuit bearing Cause No. DC-2024-CV-0165 which is styled City of Lubbock v. Trumble Steel Erectors, Inc. d1bla Trumble Crane and Rigging, which is pending in the 2371h Judicial District Court of Lubbock County, Texas. g. The "Agreement" shall mean this Confidential Settlement Release and Indemnity Agreement. h. "All Claims" means all existing and future claims, demands, complaints, actions and causes of action, known or unknown, asserted or unasserted, whether owned or obtained through assignment, for all existing and future damages and remedies that arise out of or are related to the Contract the Drop Event or could have been brought in any court, tribunal, or forum, in this or any other jurisdiction, in the United States of America or anywhere else, related directly or indirectly to the transactions and occurrences set forth in the Lawsuit. Under this definition, "All Claims" includes but is not limited to all claims, counterclaims, demands, lawsuits, obligations, losses, costs, expenses, remedies, and causes of action of any nature, whether in tort, contract, intentional act, or arising under or by virtue of any judicial decision, statute, regulation, ordinance, or rule, for past, present, and future injuries, property or economic damage, business interruption damages, and for all other losses and damages of any kind, including but not limited to, all actual damages, exemplary and punitive damages (if any), penalties of any kind and prejudgment and post judgment interest, costs, and attorney's fees. "All Claims" further includes but is not limited to all elements of damages, remedies, and claims, demands, and causes of action that are now recognized by law or that may be created or recognized in the future, including without limitation, creation or recognition by statute, regulation, ordinance, rule, or judicial decision. "All Claims" further includes but is not limited to any claims for subrogation, attorney's fees, liens, workers' compensation of any and all kind, subrogation interests, punitive damages, negligence, gross negligence (if any), negligent hiring, negligent entrustment, strict liability, products liability, breach of warranty, property damage, knowing conduct, intentional conduct, and any other possible claims or causes of action, as well as any and all liability for damages, penalties, loss of benefits of any kind, punitive or exemplary damages of any kind (if any), attorney's fees, court costs, and maintenance, prejudgment interest of any kind, post judgment interest of any kind, or any other possible claims for damages, past, present, or future, known or unknown, fixed or contingent, and whether or not asserted against any of the Parties herein, arising out of or resulting from any claims or causes of action asserted in the Lawsuit or which arise under the Contract. Notwithstanding anything herein to the contrary, the term "All Claims" shall not be construed so as to encompass or include claims or damages held by or sustained by the City of Lubbock other than those occasioned by the Drop Event as described in the lawsuit. H. SETTLEMENT AGREEMENT AND RELEASE The Parties agree as follows: A. MUTUAL RELEASES AND DISCHARGE 1. Release by City of Lubbock In consideration of this Agreement (as well as the releases contained therein), the Plaintiff hereby completely releases, forever discharges and holds harmless Trumble from All Claims as defined herein, any and all past, present, or future claims, demands, obligations, actions, suits, causes of action, rights, damages, whether based in tort, contract, statutory action, or other theory �Df recovery, known or unknown, fixed or contingent, liquidated or unliquidated whether or not asserted, arising from or related to the Drop Event or which would arise from the Contract :including all damages, whether for compensatory or punitive damages (if any) which City of :Lubbock now has or which may hereafter accrue or otherwise be acquired. Notwithstanding anything herein to the contrary, this release shall not be construed so as to encompass or include claims or damages held by or sustained by the City of Lubbock other than those occasioned by the Drop Event as described in the lawsuit. 2. Release by Trumble In consideration of this Agreement (as well as the releases contained therein), Trumble hereby completely releases, forever discharges and holds harmless City of Lubbock from All Claims as defined herein, any and all past, present, or future claims, demands, obligations, actions, suits, causes of action, rights, damages, whether based in tort, contract statutory action, or other theory of recovery, known or unknown, fixed or contingent, liquidated or unliquidated whether or not asserted, arising from or related to the Drop Event or which arise from the Contract including all damages, whether for compensatory or punitive (if any) which Trumble now has or which may hereafter accrue or otherwise be acquired and all claims asserted by Trumble against City of Lubbock in the Lawsuit. This Release does not extend to other projects between Trumble and City of Lubbock. 3. No release for Breach of this Agreement Notwithstanding the releases contained in Section II of the Agreement, the Parties do not release each other for claims arising out of one Party's breach of this Agreement. In the event Defendant breach this Agreement by failing to perfonn its payment obligations set forth in II(B) Of this Agreement, Trumble shall pay to the City any legal fees incurred in the enforcement of this .Agreement. 4. Releases Given Voluntarily It is understood and agreed that these releases are being given voluntarily by the Parties .and are not based upon any representations or statements of any kind made by any other Party, their attorneys, agents, representatives, or employees as to the merits, legal liability, or value of the claims in the Lawsuit. The provision of any state, federal, local or territorial law or statute providing in substance that releases shall not extend to claims, demands, injuries, or damages which are unknown or unsuspected to exist at the time to the person executing such release are hereby expressly waived, after full consultation with counsel to the extent permissible by law. B. PAYMENTS For and in consideration of Plaintiff entering into this Agreement, and for the release, discharge and the other agreements contained herein, Defendant agrees to pay the Plaintiff the total sum of ONE MILLION AND ONE HUNDRED THOUSAND DOLLARS AND ZERO CENTS ($1,100,000) (the "Settlement Amount"). The payment of the Settlement Amount is due on or before July 12, 2024. It is acknowledged by the Parties that no portion of the proceeds paid under this agreement represent exemplary or punitive damages or statutory damages, not pre judgment or post judgment interest. C. DISMISSAL WITH PREJUDICE Plaintiff, for the consideration specified in this Agreement, agrees to dismiss the Lawsuit with prejudice thereby releasing any claims which Plaintiff may have or could have at any time in the future against Defendant in any case arising out of the Contract or the Drop Event made the basis of this lawsuit. All costs shall be borne by the party incurring the same. D. DISPUTED CASE All Parties agree that the liability of the Defendant is expressly denied, and that the payment of the consideration recited herein for this Agreement is not to be considered an admission of liability on the part of the Defendant. Rather, such consideration is paid to compromise disputed claims, avoid the expense and uncertainties of litigation and to buy peace. All liability is expressly denied. The Parties further represent and warrant that no other person or entity has any interest in the claims referred to in this Settlement Agreement, and that they have not sold, assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of action referred to in this Agreement and the Parties further agree that they will not seek contribution, subrogation, or indemnification from any of the Parties or the Parties' insurers as a result of the Contract or the Drop Event. 2024. E. EFFECTIVE DATE This Settlement, Release, and Indemnity Agreement shall become effective on July 12, F. LACK OF PROVIDING TAX CONSEQUENCES The Defendant has not made any representations regarding any tax consequences related to this settlement. G. MISCELLANEOUS PROVISIONS This Agreement contains the entire agreement between the Parties with regard to the matters set forth herein and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each. This Agreement shall be interpreted, governed by, and construed in accordance with the laws of the State of Texas, without giving effect to conflicts of laws. This Agreement supersedes all prior agreements, oral or written, made with respect to the subject matter hereof, and it contains the entire agreement of the parties. The Parties agree that the legal doctrines of mutual and unilateral mistake shall not apply to the interpretation of this Agreement. Notwithstanding the provisions set forth in Section II(A)(4) of this Agreement, each party hereto shall bear all attorney's fees, expert fees, court costs, and any other expenses arising from or relating to the actions of its own counsel, the Lawsuit, the Agreement or any matter or document referred to herein. This Agreement may be executed in multiple original counterparts, each of which may be treated as an original. DocuSign Envelope ID: 394ABB26-ABBA-4D78-88C4-4FE412479623 Executed this ith day of July , 2024. 4 o1�i'-�L`tJ Representative of of Lubbock. Executed this 1st day of 3 ul Y , 2024. cc Igoe y: t tiwab 'rumble Crane and Rigging