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HomeMy WebLinkAboutResolution - 2020-R0381 - Release of Liability and Final Settlement Agreement, Estate of Kenneth Michael RiceResolution No. 2020-RO381 Item No. 6.21 October 27, 2020 RESOLUTION WHEREAS, Lubbock Power & Light is the municipally owned electric utility of the City of Lubbock ("LP&L"); WHEREAS, the City of Lubbock made a claim against the Executor, Robert Timothy Rice ("Executor") and the Estate of Kenneth Michael Rice ("Estate") for damages incurred arising out of an airplane collision involving Kenneth Michael Rice on or about February 4, 2015, which resulted in damages to LP&L infrastructure (the "Incident"); WHEREAS, such claim regarding the Incident was filed in the case styled as In the Matter of The Estate of Kenneth Michael Rice, deceased, Cause No. 2015- 778,651, proceeding in the County Court of Lubbock County, Texas regarding the Incident ("Claim"); WHEREAS, the Executor and Estate deny liability related to the Claim; WHEREAS, The City of Lubbock, LP&L, the Executor, and the Estate have agreed to mutually settle and compromise the Claim; WHEREAS, LP&L, through outside counsel, has resolved the Claim in the attached Release of Liability and Final Settlement Agreement Between LP&L/City of Lubbock and the Executor; NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby approves that certain Release of Liability and Final Settlement Agreement Between LP&L/City of Lubbock and the Executor, as attached hereto and incorporated herein as though set forth fully herein in detail, and accepts payment of consideration provided therein in the amount of one hundred forty-five thousand dollars ($145,000.00) to resolve the Claim. BE IT FURTHER 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 that certain Release of Liability and Final Settlement Agreement Between LP&L/City of Lubbock and the Executor, as attached hereto and incorporated herein as though set forth fully herein in detail, on behalf of the City of Lubbock. Passed by the City Council this 27th day of October, 2020. Daniel M. Pope, Mayor ATTEST: 4 �Jp 4 1 - �)c ' Rebec -a Garza, City Secr ar APPROVED AS TO CONTENT: M, Blair McGinnis, Chief Operating Officer APPROVED AS TO FORM: LP&L General Counsel RESOLUTION WHEREAS, Lubbock Power & Light is the municipally owned electric utility of the City of Lubbock ("LP&L"); WHEREAS, the City of Lubbock made a claim against the Executor, Robert Timothy Rice ("Executor") and the Estate of Kenneth Michael Rice ("Estate") for damages incurred arising out of an airplane collision involving Kenneth Michael Rice on or about February 4, 2015, which resulted in damages to LP&L infrastructure (the "Incident'); WHEREAS, such claim regarding the Incident was filed in the case styled as In the Matter of The Estate of Kenneth Michael Rice, deceased, Cause No. 2015- 778,651, proceeding in the County Court of Lubbock County, Texas regarding the Incident ("Claim"); WHEREAS, the Executor and Estate deny liability related to the Claim; WHEREAS, The City of Lubbock, LP&L, the Executor, and the Estate have agreed to mutually settle and compromise the Claim; WHEREAS, LP&L, through outside counsel, has resolved the Claim in the attached Release of Liability and Final Settlement Agreement Between LP&L/City of Lubbock and the Executor; NOW, THEREFORE BE IT RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT the Electric Utility Board of the City of Lubbock hereby approves that certain Release of Liability and Final Settlement Agreement Between LP&LlCity of Lubbock and the Executor, as attached hereto and incorporated herein as though set forth fully herein in detail, and accepts payment of consideration provided therein in the amount of one hundred forty-five thousand dollars ($145,000.00) to resolve the Claim. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT the Chairman of the Electric Utility Board is hereby authorized and directed to execute that certain Release of Liability and Final Settlement Agreement Between LP&LlCity of Lubbock and the Executor, as attached hereto and incorporated herein as though set forth fully herein in detail, on behalf of the Electric Utility Board of the City of Lubbock. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT this resolution shall be null and void if the City Council of the City of Lubbock does not approve a similar resolution approving the Release of Liability and Final Settlement Agreement Between LP&L/City of Lubbock and the Executor within thirty (30) days of this resolution. Passed by the Electric Utility Board this 20th day of October, 2020. Dan Odom, Chairman ATTEST: Greg T or, Bo ecretary APPROVED AS TO CONTENT: Blair McGinnis, Chief Operating Officer APPROVED AS TO FORM: JeSrroh, LP&L General Counsel Cause No. 2015-778,651 IN THE MATTER OF § § IN THE COUNTY COURT THE ESTATE OF § OF KENNEM MICHAEL RICE, § DECEASED § LUBBOCK COUNTY, TEXAS RELEASE OF 1JABUJTY AND FINAL ffTTLZMWMAGR1ZhMNT §ZnMLZMAMOFLUB1KWXANDTflEEXECUWR This RELEASE OF LIABIO Y AND FINAL SETT LE DENT AGREENUM (the "Agreement") is entered into effective day of October, 2020, (the "Effective Date"), by and between ROBERT TIMOTHY RI (the "Executor"), individually and as reprasetive of the Estate of Kenneth Michael Rice (the "Estate"), and the CITY OF LUBBOCK and the City of LubboWs municipally owned electric utility, Lubbock Power & Light (the "City"}, collectively hereinafter re%rred to as the "Parties." Parties include the Parties and their reqm3five PfinciPals, agents, servants, employees, attorneys, consultants, experts, predecessors, gym, assigns, affiliates, estates, devisees, heirs, HMD1 WCHELE JEFFREYS. HALEY MICHELLE RICE, DOBY HAYDE RICE, and HOLLY ELIZABETH BEARDEN. (each individually, and referred to collectively as the `Beneficiaries"); owners, board members, council members, partners, members, managers, directors, personal representatives, and anyone in privity therewith. RECITALS WHEREAS, Robert Timothy Rice has been named as Executor of the Estate of Kenneth Michael Rice, herein, and has received Letters Testamentary. WHEREAS, the City made a claim against the Executor and the Estate of Kenneth Michael Rice for damages incurred arising out of an airplane collision involving Kenneth bdichael Rice on or about February 4, 2015, in Lubbock County, Texas. WHEREAS, the Executor filed a rejection of the claim made by the City in this matter on July 9, 2020. WHEREAS, the CiVs deadline for filing a suit on its rejected claim was October 7, 2020, but was extended by agreement of the Parties to December 7, 2020. WHEREAS, the Parties engaged in negotiations regarding the claim made by the City and reached an agreement in principle on September 18, 2020, subject to approval by the Electric Utility Board of the City of Lubbock and the City Council. Release of LiabiNty and Final Settlement Agreement Between LML(Ciry of Lubbock w d the Executor of the Rice Estate Page 1 WHEREAS, this Agreement, and the won hereof, does not, and is not intended to be, construed to be, or is not an admission of any fault or wrongdoing by or on behalf of Executor or the Estate, all such claims having been expressly dented heretofore, and each Party continues to deny the same; and WHEREAS, all provisions of this Agreement are contractual in nature, and not mew recitals only; WHEREAS, the purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release of all claims, as set forth herein. NOW THEREFORE, for good and valuable considerationy the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The City will accept the total sum of One Hundred and Forty -Five Thousand No/1fl0 Dollars ($145,000.00) as full and final settlement of its claim with this amount to be paid to the City by the Executor pursuant to the dismissal of the claim entered by the court, in full, complete, and sufficient. consideration of all the City's claims, such sum to be paid within 21 days of execution of this Agreement; 2. Sufficiency of consideration for this Areement is acknowledged. RELEASE OF ALL CLAMS 3. For and in consideration of the premises and covenants contained in this Agreement and for other valuable consideration, the receipt and adequacy of which are hereby acknowledged pursuant to the terms and conditions contained in this Agreement, the City, together with all those claiming by, through, or under them, fully and forever release, acquit, discharge Robert Timothy Rice individually and as the Executor of the Estate of Kenneth Michael Rice, and the Estate, and all of their affiliates, related or owned business entities, predecessors, successors, assigns, estates, devisees, heirs (including, but not limited to Heidi Michele Jeffreys, Haley Micbelle Rice, Doby Hayde Rice, and Holly Elizabeth Bearden), principals, agents, servants, employees, ambomWs, consultants, experts, owners, board members, council members, partners, members, managers, directors, personal representatives, insurance carriers, independent conaactars, offeers, directors, and anyone in privity therewith from all manners of claims„ actions and causes of action, suits, chosen in action, contracts, covenants, bonds, bills, debts, dines, sums of money, rentals, commissions, judgments, w=utions, damages, expeuses, penalties, charges, demands and rights whatsoever, in law or in equity, based on any theory whatsoever, whether known or unknown, now existing and/or which may hereafter accrue in the City's favor by reason of any facts existing as o€the date hereof; whether known or unknown, including but not limited to, any and all claims of the City and all of its affiliates which have been or could have been asserted against the Executor, the Estate, and others referred to in this paragraph in any matter relating in any way to the airplane collision involving Kenneth Michael Rice on or about February 4, 2015, in Lubbock County, Texas. Release of Liability and Final Settlement Agreement Between LMLICity of Lubbock and the Executor of the Rice Estate Page 2 4. The City acknowledges that this is a full and final settlement so that neither they nor anyone claiming under them will be entitled to any additional or other recovery for any cause whatsoever wising in any way from the ch c: umstances made the basis of their abovo-mentioned claim. 5. The City is not aware of any claims, liens, payment obligations, or subrogation rights that now exist or that were created as a result of the incidents giving rise to the CWS above - mentioned claim. AUTHORIZATIONS b. Lubbock Power & Light represents that this release has been My authorized by the Electric Utility Board of Lubbock Power & Light. 7. The City of Lubbock repr+eseSts that this release has been fully authorized by the Lubbock City Council. 8. The City of Lubbock and Lubbock Power & Light have agreed to provide copies of such resolutions authorizing such release. kITA. ; All; 4. The City covenants, promises, and represents that it has not transf red, asked, conveyed, or encumbered this cause of action to any other person or entity nor does any other person or entity have any claim or right to the claims or causes of actions that the City has made against the Executor and the Estate. AUSCELLANEOUS PROVISIONS 10. Tea Law to Aaah►. This Agreement shall be construed under and in accordance with the laws of the State of Texas and is performable in Lubbock County, Texas. 11. Parties B nn . This Agreement shall be binding on and inure to the benefit ofthe Parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns except as otherwise provided herein. 12. LuW Constrnctlon. In any case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceebility shall not affect any other provisions thereof and this Agreement shall be oonstrued as if such invalid, illegal, or unenforceable provision had never been contained herein to the extent such change does not alter the intent of the Agreement. 13. Prior Ao*ememts SuaMg&_& This Agreement supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement, and contains all ofthe covenants and agmemens between the Parties with respect to the subject matter. Each Party to this contract acknowledges that no reprosentations, inducements, promises or agreements, orally or otherwise, have been Release of Liability and FTnal Settlement Agreement Between LP&VCdy of Lubbock and the Executor of the Rice Estate Page 3 made by any Party, or anyone acting on behalf of any Party, that are not set forth in this Agreement, and that no agreement, statement, or promise not contained in this Agreement shall be valid or binding. 14. NeAdmfisasione. It is understood and agreed that this Agreement is the compromise of an existing dispute and is not intended to be construed as an admission of liability on the part of any Party hereto. 15. AclmowledEach Party hereto aclmowledges that helshelit has read and wderstands the effect of this Agreement and executes this Agreement of his&w is own fm will and accord for the purposes and considerations set forth. 16. Multiole Counterparts. This Agmment may be executed in multiple counterparts, each of which, when executed, shall constitute but one and the same document. 17. JWatly Drafted-, Constrnclion�, It is further understood and expressly agreed that this Agreement was drafted jointly by the attorneys for all Parties, and it is expressly agreed that neither this Agreement nor any of the documents executed in connection herewith shall ever be construed against any Party hereto on the basis of who dratted the documents. IS. TO THE EXTENT PERMITTED BY LAW, THE CITY AGREES TO INDEMNEFY, DEFEND AND HOLD HARMLESS THE PARTIES RELEASED FOR ANY AND ALL LOSSES, CLAM, DEMANDS, OR CAUSES OF ACTION, AND ANY DAMAGES, JUDGMENTS, FEES, EXPENSES, COST$ (INCLUDING IIV'f'EREST) OF ANY NATURE WHATSOEVER PAID AND INCURRED AS A RESiJIaT OF ANY BREACH OF THESE COVENANTS.. Azza"aG UJ J.IYU"Sw YIsJ J-sr" i ►M566"IMI" J15l ooll/o/" Between LP&UCIty of Luhbaek and the Executor of du Rke Estate Page 4 The City of Lubbock, acting by and though the City Council Daniel M. Pope, Mayor ATTEST: Q lbo. L Becky Omnk City Sec APPROVE TO J Atkftw% City Manager AP FORM: Chad Weaver, City Attomey The City of Lubbock, acting by and though the Electric Utility Board ATTEST: Greg T or, §Wd Secretary OVED AS CO ; t David McCalla, Director of Electric Utilities APPROVED AS TO FORM: Jilq4 S Lubbock Power & Light crosel Release of Liability and PYnal Settlement Agreement Between LP&LAI:* ofUbW w d the Executor of the Rice Estate Page 5 Robert vtuothy ce, Executor of -the Estate of Kenneth Michael Rice APPROVED as reflected by the signatures of legal counsel for the Parties below: KERBY & WADE, P.C. P.O. Box 65150 Lubbock Texas 79464 Telephone: (806) 793-7600 Facsimile: (906) 793-6882 Email: cwade@ttlawyers.com By: P" � -- Carrie Wade Bar No. 24054580 Attorneys for the City of Lubbock LAW OFFICES OF ROBIN M. GREEN 1001 Main Street, Suite 204 Lubbock, Texas 79401 Telephone: (806) 749-3030 Facsimile: (806) 3344 Email: green nlaw.com By: Robin M. Green Bar No. 08369000 Attomeys for the Estate of Kenneth Michael Rice and Robert Timothy Rice, Executor Release ofLiability and Final Settlement Agreement Between LMUCtty of Lubbock and the Executor of the Rice Estate Page 6