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HomeMy WebLinkAboutResolution - 2020-R0090 - Compromise Settlement Agreement & Release Of All Claims With Lubbock-Cooper ISD - 03/10/2020 Resolution No. 2020-R0090 Item No. 6.20 March 10, 2020 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 Compromise Settlement Agreement and Release of All Claims by and between the City of Lubbock and Lubbock-Cooper Independent School District, and all 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 on March 10, 2020 DANIEL M. POPE, MAYOR ATTEST: Ro Rebe ca Garza, City Sec eta APPROVED AS TO CONTENT: Jesica McEachern, Assistant City Manager APPROVED AS TO FORM: Amy L. S' eputy C' y Resolution No. 2020-R0090 STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS COUNTY OF LUBBOCK § COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is entered into by and between the CITY OF LUBBOCK, TEXAS (referred to as "the City"), and LUBBOCK-COOPER INDEPENDENT SCHOOL DISTRICT, ("the Claimant"). RECITALS WHEREAS, beginning on or about June 26, 2006, the Claimant and City entered into a Wholesale Wastewater Contract for the City to provide wastewater treatment services for the Claimant (referred to as "the Agreement"); and WHEREAS, the Agreement provided that a meter would be installed on Claimant's wastewater line to measure the amount of wastewater to be treated (the "Wastewater Meter"); and WHEREAS, the amount the claimant was charged by the City pursuant to the Agreement was calculated from a volume charge that was to be based upon the amount of volume measured by the Wastewater Meter, rather than by the volume measured by the water meter provided by the City for the Claimant pursuant to a separate agreement to provide potable water; and WHEREAS, the Wastewater Meter was to be read on a monthly basis and the amount charged monthly by the City pursuant to the Agreement was calculated based upon the amount of volume identified by such reading; and PAGE 1 OF 9 Claimant's Initials: �� WHEREAS, the Claimant alleges that since March 2008, the City charged claimant the wastewater volume based upon the water meter amounts and further charged claimant for a 6" Wastewater Meter rather than a 4" Wastewater Meter as was actually used by Claimant; and WHEREAS, the Claimant alleges that because of the above-described incorrect calculations, the City overcharged the Claimant that amounts due and owing pursuant to the Agreement; and WHEREAS, Claimant paid to the City the amounts that Claimant alleges were overcharges; and WHEREAS, the Agreement has expired and the City and Claimant have subsequently executed a new Interlocal Wholesale Wastewater Contract to provide wastewater treatment services for the Claimant on October 9, 2018 (the "New Agreement"); and WHEREAS, the City denies any liability to Claimant for any claim or cause of action, but is willing to settle all claims to avoid the inconvenience, distractions, uncertainties and expenses attendant to litigation and trial, and to buy peace, in exchange for the consideration and releases set forth below. 1. IN CONSIDERATION of a credit in firttue amounts due and owing pursuant to the New Agreement that the City grants to the claimant in the sum of SIXTY SEVEN THOUSAND FIVE HUNDRED SIXTY SIX and 08/100 DOLLARS ($67,566.08), Claimant does hereto enter into this Settlement Agreement and does hereby release, acquit, and forever discharge the CITY OF LUBBOCK, TEXAS, and its predecessors, successors, assigns, owners, City Council, officers, PAGE 2 OF 9 Claimant's Initials: `o officials, appointees, employees, directors, legal representatives, insurers, independent contractors, agents, heirs and attorneys (collectively included in any reference to "the City"), 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, of whatsoever kind or nature, whether heretofore or hereafter accruing, which Claimant now has or may hereafter have, whether known or unknown, incident to or arising out of the Wholesale Wastewater Contract for the City to provide wastewater treatment services for the Claimant. 2. Payment shall be made as a credit to future payments owed by Claimant pursuant to the New Agreement until such time the amount owed by Claimant pursuant to the agreement exceeds SIXTY SEVEN THOUSAND FIVE HUNDRED SIXTY SIX and 08/1.00 DOLLARS ($67,566.08), upon which time Claimant shall resume regular and timely payments of any charge due and owing pursuant to the Agreement. The above-described credit shall commence at the first bill due and owing pursuant to the Agreement after the City's receipt of this executed Release and Settlement Agreement, fully and properly executed by the Claimant. 3. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring in connection with the Wholesale Wastewater Contract for the City to provide wastewater treatment services for the Claimant prior to the date of execution of this Compromise Settlement Agreement and Release of All Claims, including, but not limited to, all claims, demands, causes of actions of any nature, whether in PAGE 3 OF 9 Claimant's Initials: a 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 exemplaiy and punitive damages, all penalties of any kind or statutory damages, and any attorney's fees. Claimant hereby acknowledges and accepts the terms of this Settlement Agreement and voluntarily accepts the above stated sum for the purposes of malting 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. The Claimant agrees 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. The Claimant agrees that the damages suffered by the City, 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 City, 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, PAGE 4 OF 9 Claimant's Initials: a including the cost of attorneys' fees and other costs and expenses of instituting, preparing,prosecuting, defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and costs to thein of attorneys' fees and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action or action to recover damages resulting from the breach of this Settlement Agreement, whether taxable or otherwise. 7. Claimant 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. To the extent allowed by law, Claimant agrees to indemnify and hold harmless the City from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorneys' fees, incurred in the defense of any such claim that any person or entity claiming an ownership, including any liens whether statutory or otherwise, in the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement. S. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the Claimant, the City and any of their respective shareholders, owners, officers, employees, sub-contractors and any of their heirs, legal representatives, successors or assigns. PAGE 5 OF 9 Claimant's Initials: 9. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 10. 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. 11. 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. 12. 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. 13. This Settlement Agreement has been and shall be construed to have been drafted by all parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 14. If any portion or term 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 frilly in force and enforceable. 15. Each party has consulted with whatever consultants, attorneys or other advisors each deems appropriate concerning the effect of this Settlement Agreement and Claimant assumes the risk arising from not seeking further- or additional consultation with such advisors. PAGE 6 OF 9 Claimant's Initials: 16. Each party assumes the risk of any mistake of fact or law with regard to any aspect of this Settlement Agreement, the dispute described herein, or any asserted rights released by this Settlement Agreement. 17. Claimant, by entering into this Settlement Agreement, acknowledge that this settlement is a compromise of a disputed claim as to the liability of the City for the Claimant's injuries and damages, if any, and the payment made herein is not to be construed as an admission of liability on the part of the City. It is understood that the existence of any liability or wrongdoing has been, and continues to be, expressly denied by the City. 18. All parties to this Settlement Agreement acknowledge and agree that they have obtained legal representation and advice, as they have deemed appropriate in entering into this Settlement Agreement. 19. Each party further state that this Settlement Agreement, including the foregoing release, has been carefully read and each party understands the contents thereof and has signed the same as their own respective free act and has not been influenced in making this settlement by any representative of a party or parties released. 20. It is further understood that the provisions of this Settlement Agreement are contractual and not mere recitals and that the laws of the State of Texas shall govern this Settlement Agreement. [EXECUTED BY THE PARTIES ON THE FOLLOWING PAGES. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. PAGE 7 OF 9 Claimant's Initials: EXECUTED this 1()th day of March , 2020. FOR THE CITY OF LUBBOCK,TX. -L-- v DANIEL M. POPE, AAYOR ATTEST: P.0�� 0 RebeVca Garza, City Secre ry APPROVED AS TO CON T- J esica Mc achern, Assistan anager APPROVED AS TO FORM: Amyepu City Attorne PAGE 9 OF 9 Claimant's initials: 49 Y - 1 EXECUTED this 2 day of rl4r.4q , 2020. FOR THE LUBBOCK-COOPER INDEPENDANT SCHOOL DISTRICT. A4.1.1/ KEITH BRYANT, SUPERINTENDENT ATTEST: W �4 0,4y a, Sec=•e{ury APPROVED AS TO CONTENT: APPROVED AS TO FORM: [EXECUTED BY THE CITY OF LUBBOCK ON THE FOLLOWING PAGE. REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.) PAGE 8 OF 9 Claimant's Initials: 4r