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Home My WebLink AboutResolution - 2016-R0043 - Settlement Agreement With Prime Time Investments - 01/28/2016Resolution No. 2016-R0043 Item No. 5.23 January 28, 2016 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, the Compromise Settlement Agreement and Release of all Claims (the "Settlement Agreement'), by and between the City of Lubbock, Texas and Prime Time Investments, LLC, said Settlement Agreement being attached hereto and incorporated herein as though set forth fully herein in detail, and any documents related thereto. Passed by the City Council of the City of Lubbock this 2 Wr day of January, 2016. —-L12A,-` ATTEST: Jim FGerlt, MAYOR I3RO TEM V J�- Rebekca Garza Citv Secretar} APPROVED AS_TO CONTENT: C:: eilHutcson, Director of Human Resources and Risk Management APPROVED AS TO FORM: 4L(�� Richard Casner, General Counsel Lubbock Power & Light JAMEY LANEY PHILLIPS jameyp@sbcglob,it.net CITY OF LUBBOCK ATTN: LAINEY MORRISON 1625 13" STREET LUBBOCK, TEXAS 79401 PHILLIPS & MCLAREN, L.L.P. ATTORNEYS AT LAW 2708 82ND STREET LUBBOCK,TEXAS79423 TELEPHONE(806)788-0609 TELECOPY (806) 785-2521 January 19, 2016 RE: CITY OF LUBBOCK CLAIM NO. 15-C-114 TPS CLAIMS NO. 20150070000120 Dear Ms. Morrison: GARY R. MCLAREN gmclaren@sbcglobal.net Per the instruction of Richard Salce, Claims Representative, Texas Political Subdivisions JSIF, enclosed please find the original Compromise Settlement Agreement And Release Of All Claims signed by my client, Prime Time Investments, LLC, regarding the above -referenced claim. Thank you for your cooperation in this matter. GRM1cjh Enclosure Resolution No. 2016-R0043 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims (the "Settlement Agreement") is entered into between the City of Lubbock, Texas (the "City) and Prime Time Investments, LLC, a Delaware limited liability company (the "Claimant"). RECITALS WHEREAS, on or about January 19, 2015, Lubbock Power & Light, the City's municipally owned electric utility, was performing work related to electric transmission and distribution infrastructure, wherein an electric outage occurred (the "Activities"); and WHEREAS, the Claimant alleges that the Activities caused certain damage (the "Damage") to the Claimant, including, without limitation, Claimant's property and other operations; and WHEREAS, the City denies any liability to the Claimant for any claim or cause of action, including the Damage, but is willing to settle all claims to avoid the inconveniences, distractions, uncertainties and expenses attendant to litigation and trial, in exchange for the consideration, releases and indemnities set forth below. IN CONSIDERATION of the payment by the City to the Claimant, of the sum of Fifty Thousand and No/100 Dollars ($50,000.00), receipt and sufficiency of which is hereby acknowledged, Claimant does hereto enter into this Settlement Agreement and does hereby release, acquit and forever discharge the City, and its respective predecessors, successors, assigns, owners, City Council, Electric Utility Board Members, managers, employees, directors, legal representatives, insurers, independent contractors, agents and attorneys (collectively, the "Releasees"), of and from any and all liability, claims, demands, damages, attorneys' fees, costs, liens, whether statutorily provided or otherwise, expenses, services, actions, causes of action, or suits in equity, for whatsoever kind of nature, whether heretofore or hereafter accruing, which Claimant now has or may hereafter have, whether known or unknown, for or because of any matter or thing done, admitted or suffered as a result of the Activities, including without limitation, the Damage. 2. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising out of, related to, or occurring due to, the Activities, including, but not limited to, all claims, demands, causes of actions of any nature, whether in 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 exemplary and punitive damages, all penalties of any kind or statutory damages. Claimant hereby declares that it fully understands the terms of this Settlement Agreement and voluntarily accepts the above stated consideration for the purposes of making full and final settlement of any and all the injuries, damages, expenses, and inconveniences above mentioned, and the providing of the indemnities set forth below. 3. This Settlement Agreement may be plead 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. 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. RamarLompromise Settlement Agreement Page 2 of 8 4. Claimant agrees that the damages suffered by the Releasees or other entities protected by this Settlement Agreement by reason of any breach of any provisions of this Settlement Agreement shall include not only the amount of any judgment that may be rendered against said Releasees, or any of them, by reason of a breach of this Settlement Agreement, but shall also include all damages suffered by them, including the cost of attorneys' fees and other costs and expenses of instituting, preparing, prosecuting, or defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and the costs to them of attorneys' fees, and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action to recover damages resulting from the breach of this Settlement Agreement, whether taxable or otherwise. 5. Claimant hereby represents and warrants to the City that (i) all actions necessary to authorize the execution of this Settlement Agreement by Claimant have been validly taken by Claimant and that the party executing this Settlement Agreement for and on behalf of the Claimant has the authority to execute this Settlement Agreement and bind Claimant to all terms and provisions hereof; (ii) it solely owns any and all of the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement (the "Claimed Rights"), free and clear of any liens, rights or claims of subrogation or any other third party right or claim, and that it has not received any insurance proceeds related to, or transferred, conveyed, pledged, assigned or made any other disposition of, the Claimed Rights; and (iii) it is duly authorized to conduct business in the State of Texas and that this Settlement Agreement is valid and enforceable against Claimant in accordance with the terms hereof. CLAIMANT SHALL AND DOES HEREBY INDEMNIFY AND SAVE HARMLESS, THE RELEASEES FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT Ramar-Compromise Settlement Agreement Page 3 of 8 LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, RELATED TO THE PERFORMANCE OR OMISSIONS UNDER THIS SETTLEMENT AGREEMENT, AND/OR BREACH OF ANY OF THE TERMS AND PROVISIONS OF THIS SETTLEMENT AGREEMENT, INCLUDING WITHOUT LIMITATION, THE REPRESENTATIONS AND WARRANTIES HEREOF. 6. The terms of this Agreement shall inure to the benefit of, and be binding upon, the Claimant, Releasees and their legal representatives, successors and assigns. 7. 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. 8. 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. 9. 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. 10. This Settlement Agreement has been and shall be construed to have been drafted by all the parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 11. 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 fully in force and enforceable. 12. Claimant has consulted with whatever consultants, attorneys or other advisors it 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. RamarLomprom w Settlement Agreement Page 4 of 8 13. Claimant 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 rights released by this Settlement Agreement. 14. Claimant, by entering into this Settlement Agreement, acknowledges that this settlement is a compromise of a disputed claim as to the liability of the Releasees for the Claimant's injuries and damages, if any, and the consideration made herein is not to be construed as an admission of liability on the part of the Releasees. It is understood that the existence of any liability or wrongdoing has been, and continues to be, expressly denied by the Releasees. 15. Each party to this Settlement Agreement acknowledges and agrees that they have obtained legal representation and advice as they have deemed appropriate in entering into this Settlement Agreement. 16. Claimant represents that this Settlement Agreement, including the foregoing release, has been carefully read and Claimant understands the contents thereof and has signed the same as its own free act and has not been influenced in making this settlement by any representative of a party or parties released. 17. It is farther understood that the provisions of this Settlement Agreement are contractual and not mere recitals and that this Settlement Agreement shall be governed by the laws of the State of Texas. 18. This Settlement Agreement shall be null and void and of no force and effect unless its execution is approved by the Electric Utility Board and the City Council of the City on or before January 29, 2016. EXECUTED and effective this 28th day of January 2016. Ramar-Compromise Settlement Agreement Page 5 of 8 PRIME TIME INVESTMENTS, LLC, a Delaware limited liability company By: 1e�4 �- Name: c Title: C Fi STATE OF TEXAS COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared Kell \ V-eVr , L FD of Prime Time Investments LLC„ a Delaware limited liability company, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 2011.6 SUBSCRIBED AND SWORN TO BEFORE ME on this 1�'day of Ind, `��\��1lLIAMS �''•', �"E��II/�/i�UC �i„' �/ J �xv P aet .. % Notary Public, in and for the State of Texas :o J}"9rE OF :' cla EXPtR' '� 0 7- 11 Woo' Ramar-Compromise Settlement Agreement Pugs 6 of 8 CITY OF LUBBOCK Jim(iGerlt, MAYOR PRO TEM CitvxOf Lubbock ATTEST: Retieca Garza City Secreta APPRO ED AS TO CO NT: eisa utcheson, Director of Human Resources and Risk Management APPROVED AS TO FORM: C4— AK'e_! Richard Casner, General Counsel Lubbock Power & Light STATE OF TEXAS COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared Glen C. Robertson, Mayor of the City of Lubbock, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN TO BEFORE ME on 2016. 2 `6 .PFtYn pU., F9�� eu r0 c1Li 0-. a 9 OF r' Pap 7 of 8 in and for the State i CITY OF LUBBOCK, acting by and through z LubhocL oc Po er &Light 0 — David McCalla, Director of Electric Utilities APPROVED AS TO CONTENT: -�2 David McCalla, Director of Electric Utilities APPROVED AS TO FORM: � Richard Casner, General Counsel STATE OF TEXAS COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared David McCalla, in his capacity of Director of Electric Utilities for Lubbock Power & Light, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. 201 Ramar-Compromise Settlement Agreement Page 8 of 8