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Home My WebLink AboutResolution - 2002-R0393 - Settlement Agreement - Stewart & Stevenson Energy Products, Inc. - 09/26/2002f RESOLUTION Resolution No. 2002-RO393 September 26, 2002 Item No. 25a 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 Stewart & Stevenson Energy Products, Inc. aka S&S Energy Products, Inc., a Division of GE Packaged Power, Inc., in Cause No. 2001-513945, The City of Lubbock, Texas and The West Texas Municipal Power Agency vs. Stewart & Stevenson Energy Products, Inc. aka S&S Energy Products, Inc., a Division of GE Packaged Power, Inc., and Energas, a Division of Atmos Energy, attached hereto, 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 26th day of September '2002. ATTEST: T — LL J-4�� ):�-- R��eliibCCecca Garza, City Secretary APPROVED AS TO CONTENT: Paul Thompson, Director of Electric Utilities APPROVED AS TO FORM: r Matt w L. Wade Assistant City Attorney 1:/cityatt/matt/settlement resolution — GE 9-2002 Resolution No. 2002—RO393 September 26, 2002 Item No. 25a CAUSE NO. 2001-513,945 THE CITY OF LUBBOCK, TEXAS § IN THE DISTRICT COURT OF and THE WEST TEXAS MUNICIPAL § POWER AGENCY, § Plaintiffs § V. § STEWART & STEVENSON ENERGY § LUBBOCK COUNTY, TEXAS PRODUCTS, INC. a/k/a S&S ENERGY § PRODUCTS, INC., a Division of § GE PACKAGED POWER, INC., and § ENERGAS, a Division of ATMOS § ENERGY, § Defendants. § 99"' JUDICIAL DISTRICT RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("the Agreement") is by and between the following Parties: The City of Lubbock, Texas ("Lubbock") and the West Texas Municipal Power Agency ("WTMPA") (hereinafter collectively referred to as "Plaintiffs"), and Stewart & Stevenson Energy Products, Inc. a/k/a S&S Energy Products, Inc., a Division of GE Packaged Power, Inc. (hereinafter referred to as "GE"). WHEREAS, WTMPA and GE entered into a Contract on or about 30 June 1998 for the sale and installation of industrial equipment at Lubbock's Massengale Power Station in Lubbock, Texas (the "Contract Work"); and WHEREAS, the Contract Work involved the sale and installation of a combustion turbine and heat recovery system (the "Equipment"); and WHEREAS, a dispute arose between Plaintiffs and GE concerning the performance of the Contract Work and payment for the Contract Work; and WHEREAS, Plaintiffs claimed that GE was responsible for alleged delays in the performance of the Contract Work, for alleged damages to the Equipment and for alleged deficiencies Page 1 of 7 in the operation and performance of the Equipment; and WHEREAS, Plaintiffs filed a lawsuit entitled The City of Lubbock Texas and the West Texas Municipal Power Agency versus Stewart & Stevenson Energy Products Inc a/k/a S&S Energy Products, Inc., a Division of GE Packaged Power Inc. and Energas a Division of ATMOS Energy, bearing Cause No. 2001-513,945 on the docket of the District Court of Lubbock County, Texas, 99h Judicial District (the "Litigation"); and WHEREAS, GE has denied and continues to deny any and all liability to Plaintiffs in connection with the Litigation, the Equipment and Contract Work; and WHEREAS, GE claimed that Plaintiffs were responsible for unpaid invoices concerning the Contract Work and for additional damages attributable to delays caused by Plaintiffs in connection with the Contract Work; and WHEREAS, GE made claims in the Litigation for the aforementioned unpaid invoices and additional damages (the "GE Counterclaims"); and WHEREAS, Plaintiffs have denied and continue to deny any and all liability to GE to for the GE Counterclaims; and WHEREAS, the Parties to this Agreement desire to avoid the vexation and expense involved in a protracted trial of these disputed claims and desire to amicably compromise, settle and dispose of all possible claims and counterclaims between them in the aforementioned Litigation or which otherwise have been or could have been asserted in connection with the Contract Work and the Equipment; and WHEREAS, the Parties to this Agreement agree that the consideration for this Agreement is accepted by Plaintiffs in full satisfaction of all claims they may have against GE in connection with the Contract Work and the Equipment. NOW THEREFORE, for and in consideration of the total sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 ($150,000.00) ("the Payment"), the receipt and sufficiency of Page 2 of 7 which is acknowledged and confessed through GE's payment of said sum within five (5) days of Plaintiffs' signing of this Agreement, Plaintiffs, on behalf of themselves, their agents, successors, assigns, representatives, and insurers and underwriters at interest (including, but not limited to, CNA Insurance Company and Continental Casualty Company) do hereby release, acquit and forever discharge GE and all of GE's parent, subsidiary and affiliated companies or organizations, and all of their insurers, and underwriters at interest, and all of their agents, servants, employees and representatives from any and all claims, demands and causes of action of every kind and character whatsoever in connection with the Contract Work and the Equipment, whether known or unknown, and whether arising in contract, warranty or tort or arising under any statute or regulation of any country or any State, including but not limited to any and all claims, demands and causes of action for property damage, liquidated damages, consequential damages (including, but not limited to, lost revenue, lost profits, or increased costs of power production), incidental damages, costs and expenses incident to delays, economic losses of any nature; attorney's fees, interest, litigation costs and expenses, exemplary or punitive damages, and from any and all other losses and damages of every kind and character whatsoever which have accrued in connection with the Contract Work and the Equipment. It is expressly understood that Plaintiffs' release of the above claims does not extend to any claims or demands that Plaintiffs have against Energas, a Division of ATMOS Energy ("Energas") that have been made in the Litigation. Plaintiffs reserve all claims and demands against Energas. As a further part of the Consideration for this Agreement, Plaintiffs, to the fullest extent permitted by law, agree to indemnify and hold harmless GE from and against any and all claims, demands or causes of action that may hereafter be brought by or through Plaintiffs for costs, expenses or damages incurred in connection with the Contract Work or the Equipment regardless of whether such claims, demand or causes of action arise out of the sole or concurrent negligence, breach of contract or warranty on the part of GE. Neither this Agreement nor the Payment is intended as an admission of fault or liability Page 3 of 7 on the part of GE in connection with the Contract Work or the Equipment. GE has denied and continues to deny that it was at fault or is liable in any way with respect to the claims made against it in the Litigation, or any costs, expenses or damages allegedly incurred by Plaintiffs in connection with the Contract Work or the Equipment. To the contrary, the Payment is given solely for the purpose of avoiding litigation and buying peace. As a further part of the Consideration for this Agreement, GE hereby releases Plaintiffs and all of their parent, subsidiary or affiliated companies or organizations, and all of their insurers and underwriters at interest, agents, servants, employees and representatives from any and all claims, demands and causes of action whatsoever in connection with the Contract Work and the Equipment, whether known or unknown, and whether arising in contract, warranty or tort, or arising under any statute or regulation of any country or state, including, but not limited to, claims for unpaid invoices, delay damages, lost contract bonus opportunities, and costs or expenses for extra work arising out of the performance of the Contract Work, attorneys fees, interest, litigation costs and expenses, exemplary or punitive damages; and from any and all other losses and damages of every kind and character whatsoever which have accrued in connection with the Contract Work or Equipment. As a further part of the Consideration for this Agreement, Plaintiffs expressly warrant and represent that they are the proper parties to advance the claims they have made in the Litigation; that they are legally competent to execute the Agreement and that they have not assigned, pledged or otherwise sold or transferred any right, title, interest or claims arising from the Contract Work or the Equipment to anyone other than their attorneys. As a further part of the Consideration for this Agreement, Plaintiffs and GE agree that contemporaneously with the signing of this Agreement, they will cause to be filed in the Litigation all papers and pleadings necessary to have the claims made against GE and the GE Counterclaims against Plaintiffs dismissed with prejudice, each party to bear its own costs and expenses. Plaintiffs acknowledge that they have fully informed themselves of the terms and Page 4 of 7 conditions of this Agreement and that they have been counseled by attorneys of their own choosing. Plaintiffs further acknowledge that they fully understand the effects of the Agreement and that no promise or representation of any kind has been made to them by any of the parties to the Agreement or by anyone acting for them, except as expressed herein. Signed this 26th day of September , 2002. �k-)( "T "LODI� -�ar rYna�l CITY OF LUBBOCK LM Authorized Representative WEST TEXAS MUNICIPAL POWER AGENCY B Y- Authorizee Representative Page 5 of 7 STATE OF l 5-xAS COUNTY OF 4j4-e,f30ci--- nn BEFORE ME, the undersigned authority, on this day, personally came and appeared At2-C l ' M�' DO US A 4, , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he is the MA Yb,2 for the City of Lubbock, Texas, that he had the authority to execute said instrument on behalf of the City of Lubbock, Texas, and that he executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this a6- day of ,5r -P? Pj8FP , 2002. A.) 4-4-1 NOTARY PUBLIC My commission expires: Q3--®/-9002 CELIA WEBB Nalwy Public, SW9 at Tom My CctWft*n Expire" NIFF111111111191 "Mir a�t•zu� Page 6 of 7 STATE OF TC- )(0, 5 COUNTY OF U b aC I\ BEFORE ME, the undersigned authority, on this day, personally came and appeared �'4 kc J known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he is the OA 0 j'/1 M a A for the West Texas Municipal Power Agency, that he had the authority to execute said instrument on behalf of the West Texas Municipal Power Agency, and that he executed said instrument for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this n n day of l iCf� p e ( , 2002. NOTARY PUBLIC My commission expires: G� SARv PUe ' DONNA JUSTICE * *€ Notary Public, State of Texas `•<sr Py My Commission Expires 1-24-2004 Page 7 of 7