HomeMy WebLinkAboutResolution - 2047 - Compromise & Settlement Agreement - Appain - Paving Improvements, 58Th & Indiana - 06/14/1985JWF:cl
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 an Agreement of Compromise and Settlement related to
reconstruction of paving improvements at the 58th Street and Indiana Avenue
intersection, said Agreement to be entered into by and between said City
(as owner) and Appian Corporation (as Contractor), attached herewith 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 / day of I , 1985.
ATTEST:
anette Boyd, city secreeary
APPROVED AS TO CONTENT:
J# BOrtram, Assistant City Manager
fo velopment Services
APPROVED AS TO FORM:
' �1 V,,fCA
th Full.ingim, ssistant
—r
CV Attorney
F
NO. 84-507719
CITY OF LUBBOCK § IN THE 140TH JUDICIAL
VS. § DISTRICT COURT OF LUBBOCK
APPIAN CORPORATION § COUNTY, TEXAS
AND ST. PAUL FIRE AND MARINE §
INSURANCE COMPANY §
COMPROMISE AND SETTLEMENT AGREEMENT
Comes now the City of Lubbock hereinafter called "City",
Plaintiff in the above entitled and numbered cause, and Appian
Corporation, hereinafter called "Appian" is a Defendant, and
said parties acting by and through their respective officers and
attorneys hereunto duly authorized, do hereby contract and agree
as follows:
That none of the parties hereto admit any liability in the
premises by execution of this instrument, and all parties hereto
desire to compromise and settle the matters and issues before the
Court in this cause, and all parties desire to buy their peace in
the litigation and jointly seek dismissal of this Cause upon the
terms and conditions as hereinafter set forth:
(1) Appian agrees to tear out the paving improvements
existing at the intersection of 58th Street and Indiana
Avenue and remove the same from the premises and
replace the paving improvements in accordance with the
plans and specifications for such intersection in the
original contract entered into for the 1983 Maintenance
Repair Program Contract 'C" entered into by and between
City and Jake Diel Dirt & Paving, Inc. (the predecessor
of what is now known as Appian Corporation being one
and the same corporate entity except for such change of
name from Jake Diel Dirt & Paving, Inc. to Appian
Corporation).
(2) The operation of tearing out the paving improvements
and replacing such improvements shall be completed by
Appian between the dates of June 1, 1985 and August 15,
1985 so the intersection will be reconstructed when the
public schools of the Lubbock Independent School
District are not in regular session, and so the public
convenience will be better served.
(3) Appian agrees to furnish at its cost new surety
performance and payment bonds in the amount of $120,000
in accordance with Article 5160, V.A.C.S., to cover the
reconstruction in favor of the City to secure it as the
owner of such intersection reconstruction improve-
ments.
(4) Appian shall obtain from the Trustee for the Estate of
the Bankrupt Concrete Design & Construction, Inc. a
full release in writing in favor of the City of Lubbock
of all claims to retainage funds held by the City
against which claims have been made by said Bankrupt,
said full release to forma part of a Compromise and
Settlement Agreement between Appian and the Trustee for
said Bankruptcy which shall be approved by the Bank-
ruptcy Judge in Bankruptcy Cause No. #5-84-50147 in the
Lubbock division of the United States District Court
for the United States District Court for the Northern
District of Texas. Appian shall furnish to City said
full and complete release together with a copy of the
Court Order approving such compromise and settlement.
Appian shall also furnish to City complete and full
releases of any claim of Associated Supply Company,
Inc. and Abbott and Company against retainage funds
held by the City under said 1983 Maintenance Repair
Program Contract "C". After such releases are received
by the City from the Trustee for Bankrupt Concrete
Design & Construction, Inc. (with Court approval as
aforesaid), and Associated Supply Company, Inc., and
Abbott and Company, and then after all matters are
cleared up as regards such claims the City of Lubbock
shall deposit in escrow for the use and benefit of
Appian the sum of $35,000.00, which is the sum
determined by the Board of Arbitration in an
Arbitration proceeding between Appian and City to be
the amount of the cost of replacing the 58th and
Indiana Avenue intersection to be borne by the City of
Lubbock out of a total cost to replace such inter-
section amounting to $120,000.00, such deposit to be
deposited with City's depository bank, Texas Commerce
Bank of Lubbock, N.A. (as escrow agent) conditioned
that such $35,000.00 plus interest accrued thereon will
be released to Appian when City furnishes a statement
to said Bank that the paving improvements (as re-
constructed) at the 58th Street and Indiana Avenue
intersection have been completed and passed the
inspection of the City of Lubbock Engineering Depart-
ment and such improvements have been accepted for the
said intersection by the City Council of the City of
Lubbock. Appian's share of $85,000.00 cost to be borne
by it in replacing the said intersection under the
Arbitration Award is to be met by Appian reconstructing
the intersection.
(5) The release of the 5% retainage in the amount of
$36,791.60 under the contract and the release of
$25,649.18 ($24,366.72 plus 5% retainage in amount of
$1,282.46) unpaid to Appian on Estimate No.7 shall be
released to Appian upon the following matters being
accomplished before such release:
(A) Release of Claims by Concrete Design and Con-
struction, Inc., Associated Supply Company, Inc.,
and Abbott and Company as hereinabove set forth.
(B) Completion of the reconstruction paving improve-
ments at the 58th Street and Indiana Avenue
intersection and acceptance of such paving
improvements by the City Council of the City of
Lubbock.
(C) Resolution of the matter of responsibility for
paving reconstruction on the following streets
which has been requested of Appian by the City of
Lubbock, such resolution being by settlement and
compromise, Arbitration, or judicial determination
as regards the matter of reconstruction res-
ponsibility, to -wit:
-2-
J -.
r
Indiana Avenue at 62nd Street
West 1/2 of Indiana Ave. from 65th Place to 66th Street
Indiana Avenue from 34th to 35th Street
21st Street from Indiana Avenue to Memphis Avenue
24th Street from Peoria Avenue East
Memphis Avenue from 50th Street to 200 feet north of
50th Street.
The areas of such streets being in dispute and requiring
resolution between Appian and the City are shown on the plats
attached hereto collectively and made a part hereof as Exhibit A.
This agreement shall be carried out as expeditiously as
possible under its terms by Appian, City, and after both said
parties have executed the agreement it shall become effective as
to both said parties, and both said parties shall join in a joint
motion to dismiss this cause, and, if approved by the court, an
executed copy of this Agreement shall be attached to the Order
for Dismissal of the Cause with Prejudice, and subject to the
approval of the Court the Court Cost of this suit shall be borne,
one/half each by Appian and City.
Executed in Triplicate each executed copy of which shall
have the dignity of an original this "mac day of
1985.
AP IAN CORPORATION CITY OF UBBOCK
By: GC�4ae.-e,�
Warner Lawson, President
By:
Donald L. Davis,
S.B.N. 05482400
Smith & Davis, P.C.
Attorneys for Appian
Corporation
-3-
By*
George Carpenter
Mayor fro -Tem
By: c-
hn C. Ross, Jr.
S.B.N. 17303000
City Attorney of
City of Lubbock
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Bond 41650-60-087199
STATMMY MPMMNC6 BOND PORSULY: TO ARSICZ 5160
OF TEM REVISED CIVIL STATURES 0? TExAS AS
• AMMED BY
` ACTS OF TAS 56TH IBGISIATURE . REG__ SESSION, 1959
KNOW ALL MR BY THESE PRESENTS, that APPIAN CORPORATION
(Hereinafter called the Principal (s), as Principal (s), and
EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
(hereinafter called the •Surety(s), as Surety(s) are held and fi=mly bound unto .
the City of Lubbock (hereinafter' -called the Obligee-), in the amauat ofCMT,
HUNDRED TWENTY THOUSAND AND NO/100 Dollars
($120,000. 00 ) Lawful money of the United States for the: payment whereof,
the said Principal and Surety bind themselves, and their heirs, administrators,
executors, successors and assigns, jointly and severally, firmly by these presents
WHEREAS, the.Priacipal has entered into a certain written contract with
the Obligee, dated the14_day of Jae 198", to
Reconstruct pavinl_'imyrovements at the 513th Street and Indiana Avenue intersection
in accordance with plans and specifications. contained in contract between Principal ani
pct C
and said principal under the law is required before eo®encing the work provided
for in said contrast to execute a bond in the amount of said contract which
contract is hereby referred to and pade a part hereof as fully and to the same
extent as if.copied at length herein.
NOW; THEREPME, THE CONDITION OF THIS OBLIGATIOA IS SUCH, that if the
said Principal shall faithfully perform the work in accordance with the plans,
specifications and contract, documents, then this obligation shall be void;
otherwise to remain in full force and effect. .
PROV'IMD, HOWEVER, that this bond is executed, pursuant to the provisions
j
`•
of -Article 5160 of *the Revised Civil S,Aatutgs'of Texas as amended by Acts
of the 56th Legislature, rAgular session 19591 and all liabilities on this
bond shall be determined in accordance with -the provisions of said article
to the same extent as if it were copied at iength herein.
IN WITNESS WHEREOF, the said Principel(s) and Surety(s) have signed.
and scaled this instrument this—day of
EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
Surety
Attorney=ln-Fact Title)
Barbara .Snodgrass
I
APPTAN .nRPORATTON
Princi al
By: ;4
Warner Lawson (Title) president
By.
(Title)
By:
(Title)
The undersigned surety company represents that it duly qualified to
do business in Texas, and hereby designates .Tack Brown
_an agent resident in Lubbock County to whom any
requisite notices may be delivered and on whom service of process may be had in
matters arising out of such suretyship.
EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
Surety
*By:
Attorney -In -Fact O (Title)
Barbara Snodgrass
Approved as to ram.
City of Lubbock
Byt JAWA
ity Attorney
*Note: If signed by an officer of the Surety Company there must be On file a
cer'tffied extract from the by-laws showing that this person has authority to
sign such obligation. If signed by an Attorney in Fact, we must have copy of
power of'attorney for our files.
Performance Bond - Page 2
No. 216-064- . 0 0 2 8 4
EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the EMPLOYERS INSURANCE OF WAUSAU A Mutual Company, a corporation duly organized and existing under
the laws of the State of Wisconsin, and having its principal office in the City of Wausau, County of Marathon, State of
Wisconsin, has made, constituted and appointed, and does by these presents make, constitute and appoint
Barbara Snodgrass
its true and lawful attorney-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute,
seal, acknowledge and deliver ANY OR ALL BONDS, UNDERTAKINGS, RECOGNIZANCES OR OTHER WRITTEN
OBLIGATIONS IN THE NATURE THEREOF. NOT TO EXCEED THE PENAL SUM OF FIVE MILLION
DOL:oin—d
($�,orpoora�tionthe�reby
Y
Z
0 the as fully and to the same extent as if such bonds were signed by the President, sealed with
Uj the corporate seal of the corporation and duly attested by its secretary hereby ratifying and confirming all that the said
Z attorney-in-fact may do in the premises.
This power of attorney is granted pursuant to the following resolution adopted by the Board of Directors of said Company at a
ir meeting duly called andheld on the 18th day of May, 1973, which resolution is still in effect:
j. "RESOLVED, that the President and any Vice President — elective or appointive — of EMPLOYERS INSURANCE OF
Q- WAUSAU A Mutual Company be, and that each of them hereby is, authorized to execute powers of attorney qualifying
Q the attorney named in the given power of attorney to execute on behalf of EMPLOYERS INSURANCE OF WAUSAU A
H Mutual Company bonds, undertakings and all contracts of suretyship; and that any secretary or assistant secretary be,
O and that each or any of them hereby is, authorized to attest the execution of any such power of attorney, and to attach
Z thereto the seal of EMPLOYERS INSURANCE OF WAUSAU A Mutual Company:'
Cn "FURTHER RESOLVED, that the signatures of such officers and the seal of EMPLOYERS INSURANCE OF WAUSAU
W A Mutual Company may be affixed to any such power of attorney or to any certificate relating thereto by facsimile, and
O any such power of attorney or certificate bearing such facsimile signatures and facsimile seal shall be valid and binding
0 upon the EMPLOYERS INSURANCE OF WAUSAU A Mutual Company when so affixed and in the future with respect
Zto any bond, undertaking or contract of suretyship to which it is attached."
w IN WITNESS WHEREOF, EMPLOYERS INSURANCE OF WAUSAU A Mutual Company has caused these presents to be
R W signed by the vice president and attested by its assistant secretary, and its corporate seal to be hereto affixed this 1st day
V H of June '19 83.
Z ��/� 4110
°EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
V /
Y. By
FarnswortVice President
ZAttest:
cc
QO D. J. Borrell Assistant Secretary
STATE OF WISCONS )
)8s.
O COUNTY OF MARATHON )
CC On this 1st day of June 19 83 , before me personally came
W
O R. D. Farnsworth to me known, who being by me duly sworn, did depose
nO and say that he is a vice president of the EMPLOYERS INSURANCE OF WAUSAU A Mutual Company, the corporation
described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said
J instrument is such corporate seal and that it was so affixed by order of the Board of Directors of said corporation and that he
Q signed his name thereto by like order.
> IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year herein first above
H
written.
O
Z
cn Donna Lutzow Notary Public
C/) NOTARY PUBLIC
= STATE OF WISCONSIN
MY COMMISSION IS PERMANENT
STATE OF WISCONSIN ) CERTIFICATE
CITY OF WAUSAU ) ss.
COUNTY OF MARATHON )
I, the undersigned, assistant secretary of EMPLOYERS INSURANCE OF WAUSAU A Mutual Company, a Wisconsin
corporation, do hereby certify that the foregoing and attached power of attorney, WHICH MUST CONTAIN A
VALIDATING STATEMENT PRINTED IN THE MARGIN THEREOF IN RED INK, remains in full force and has
not been revoked; and furthermore that the resolution of the Board of Directors set forth in the power of attorney is still in force.
Signed and sealed in the City of Wausau, Marathon County State of Wisconsin, this % � day
of 944fnL
27) jy
SEA D. J. Borrell Assistant Secretary
NOTE: IF YOU HAVE ANY QUESTIONS REGARDING THE VALIDITY OR WORDING OF THIS POWER OF
ATTORNEY, CALL TOLL FREE (800) 826-1661. (IN WISCONSIN, CALL (800) 472-0041).
Bond ;'1650-60-087199
-:y• STATUTOILY PAYHSNT BOND PORSUM TO ARTICIE 5160
r OF THE REVISED CIVIL STATMS OF TEM
AS AMENDED BY.
ACTS OF TEEI 56Th LBGISIATURE, BEGUTAR SESSION.
1959
KNOW ALL NEN BY THESE PRESENTS, that APPIA►N CORPORATION
(hereinafter called the Principal (s)', as Principal (s) , and
EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
(hereinafter called the Surety (a), as Surety (s), are held and firmly bound
unto the City of Lubbock (hereinafter called- the Obligee), in the amount of
ONE HuNpEEp TwEN= THousAND ANT) Nohon------------------- DOLlars
($120.000.00 ) lawful money of the United States for the-'paymeat .
whereof, the said p#ncipal and Surety bind themselves, and their heirs,
• administrat ors,.executors, successors and assigns, jointly and severally,
firmly by these presents.
WEEREAS, the Principal has entered into a certain written contract with
the Obligee, dated the. .h day of ,Trop ` 19 to
• Reconstruct Raying imp vPat the 59th Strppt nnti Tndinnn Avpniio- IntPrcPrtinn
in arr-nrdne—P with p],`nc 2inr1.snPtiffr.2t;QnS contained in _contract betweenPrincinal and
_CitX of Lubbock dated April 14. 1983 fir 198 rnintPnnnrP RPi n;r prngrnm-'nntrart �tC".
and said principal under the law is required before commencing the work provided
for in said contract to execute a bond in the amount of said contract which
contract is hereby referred to and made a part hereof as fully and to the same
extent as if copied at length herein.
NOW, THEREME, THE CONDITION OF THIS OBLiCATION IS SUCH, that if the
said Principal shall pay all claimants supplying labor and material to .him or a
sub -contractor in the prosecution. of the work provided for in said contract,
then, this obligation shall be void; •otherwise to remain in full force and effect;
PROVIDED, HOWEVER, that this -bond is executed pursuant to the provisions
of .Article 5160 of the Revised Civil Statutes of Texas as amended by Acts of the
56th Legislature, Regular Session, 1959, and all liabilities on -this bond shall
be determined in accordance with the provisions of said Article to the same
extent as if it were copied at length herein.
IN WITNESS VUREOF, the said Principal (s) and Surety (s) have signed
and sealed this instrument this 14th dap of Time_ . 19 85-
EZ:4PLOYERS INSURANCE OF WAUSAU A Mutual Comaan
Surety
�o-Bp
._ �ittoxr�ley-`Yn-Fact (itle)
Y' Barbara.'Snodgrass
APPIAN CORPORA TION
Principal
By: _
Warner Lawson (Title) president
By:
(Title)
By:
(Title)
The undersigned surety company represents that it is duly qualified -to
do business in Texas, and hereby designates Jack Brown
in agent resident in Lubbock County to
whom any requisite notices may be delivered and on whom service of process may
be had In matters arising out'of such suretyship.
EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
Surety
eBy, (Title)
Attorney—In—Fact
Barbara Snodgrass
Approved as to form:
City of Lubbock
By: rAd
ty Attorney
*Note: If signed by an officer of the Surety Company there must be on file a '
certified extract from the by-laws showing that this person has authority to sign
such Obligation. If signed by an Attorney in Fact, we must have copy of power of
attorney for our files.
Payment Bond - Page 2
No. 216-064- - 0 0 2 8 9
EMKICNERS INSURANCE OF WAUSAU A Mutual Company
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the EMPLOYERS INSURANCE OF WAUSAU A Mutual Company, a corporation duly organized and existing under
the laws of the State of Wisconsin, and having its principal office in the City of Wausau, County of Marathon, State of
Wisconsin, has made, constituted and appointed, and does by these presents make, constitute and appoint
Barbara Snodgrass
its true and lawful attorney-in-fact, with full power and authority hereby conferred in its name, place and stead, to execute,
seal, acknowledge and deliver ANY OR ALL BONDS, UNDERTAKINGS, RECOGNIZANCES OR OTHER WRITTEN
OBLIGATIONS IN THE NATURE THEREOF. NOT TO EXCEED THE PENAL SUM OF FIVE MILLION
DOLLARS ($5,000,000
Y
Z
D o ind the corporation thereby as fully and to the same extent as if such bonds were signed by the President, sealed with
W the corporate seal of the corporation and duly attested by its secretary hereby ratifying and confirming all that the said
Z attorney-in-fact may do in the premises.
This power of attorney is granted pursuant to the following resolution adopted by the Board of Directors of said Company at a
cr Q meeting duly called and. held on the 18th day of May, 1973, which resolution is still in effect:
"RESOLVED, that the President and any Vice President — elective or appointive — of EMPLOYERS INSURANCE OF
W WAUSAU A Mutual Company be, and that each of them hereby is, authorized to execute powers of attorney qualifying
d the attorney named in the given power of attorney to execute on behalf of EMPLOYERS INSURANCE OF WAUSAU A
Q Mutual Company bonds, undertakings and all contracts of suretyship; and that any secretary or assistant secretary be,
~ and that each or any of them hereby is, authorized to attest the execution of any such power of attorney, and to attach
Z thereto the seal of EMPLOYERS INSURANCE OF WAUSAU A Mutual Company:'
(n "FURTHER RESOLVED, that the signatures of such officers and the seal of EMPLOYERS INSURANCE OF WAUSAU
OA Mutual Company may be affixed to any such power of attorney or to any certificate relating thereto by facsimile, and
0 any such power of attorney or certificate bearing such facsimile signatures and facsimile seal shall be valid and binding
upon the EMPLOYERS INSURANCE OF WAUSAU A Mutual Company when so affixed and in the future with respect
to any bond, undertaking or contract of suretyship to which it is attached."
Z IN WITNESS WHEREOF, EMPLOYERS INSURANCE OF WAUSAU A Mutual Company has caused these presents to be
Wsigned by the vice president and attested by its assistant secretary, and its corporate seal to be hereto axed this1st_day
(� < of June 19 83.
Z
�`U^) , ° " EMPLOYERS INSURANCE OF WAUSAU A Mutual Company
� VJ ��OAtOA�t, i
SEAL lr
,� By
QU- R. D. Farnswort Vice President
ZAttest:
cr
QO D. J. Borrell Assistant Secretary
STATE OF WISCONS )
O ) ss.
COUNTY OF MARATHON )
cc W
On this 1st day of Jun, 19 83 , before me personally came
�? R. D. Farnsworth to me known, who being by me duly sworn, did depose
CL and say that he is a vice president of the EMPLOYERS INSURANCE OF WAUSAU A Mutual Company, the corporation
0 described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal and that it was so affixed by order of the Board of Directors of said corporation and that he
< signed his name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year herein first above
Q
< written.
O
Z
Donna Lutzow Notary Public
NOTARY PUBLIC
STATE OF WISCONSIN
= MY COMMISSION IS PERMANENT
STATE OF WISCONSIN ) CERTIFICATE
CITY OF WAUSAU ) ss.
COUNTY OF MARATHON )
I, the undersigned, assistant secretary of EMPLOYERS INSURANCE OF WAUSAU A Mutual Company, a Wisconsin
corporation, do hereby certify that the foregoing and attached power of attorney, WHICH MUST CONTAIN A
VALIDATING STATEMENT PRINTED IN THE MARGIN THEREOF IN RED INK, remains in full force and has
not been revoked; and furthermore that the resolution of the Board of Directors set forth in the power of attorney is still in force.
Signed and sealed in the City of Wausau, Marathon County State of Wisconsin, this l % day
of - , 195
9, ZMA4&
uy4
MOAN/f
;SEA D. J. Borrell Assistant Secretary
NOTE: IF YOU HAVE ANY QUESTIONS REGARDING THE VALIDITY OR WORDING OF THIS POWER OF
ATTORNEY, CALL TOLL FREE (800) 826-1661. (IN WISCONSIN, CALL (800) 472-0041).
JWF:cl
ESCROW AGREEMENT
This Agreement made this � day of �GC/�rc� , 1985,
by and between Texas Commerce Bank of Lubbock, N.A., hereinafter
called "Bank" and the City of Lubbock, a home rule municipality,
herein called "City", said parties do hereby contract and agree
as follows:
1. City herewith tenders to the Bank its check in the
amount of $35,000.00 for deposit in an escrow interest bearing
account for the use and benefit of Appian Corporation whose
principal office is located in the City of Hereford, Texas under
the terms and conditions as hereinafter stated.
2. Bank shall hold said deposit of $35,000.00 in said
interest bearing account until such time as it shall receive a
written statement from the City that the paving improvements (as
reconstructed) at the 58th Street and Indiana Avenue intersection
have been completed and passed the inspection of the City
Engineering Department and such improvements have been accepted
for the said intersection by the City Council of the City of
Lubbock, and upon receipt of said statement from the City Bank
shall disburse said $35,000.00 deposit plus any accrued interest
thereon to Appian Corporation whose address is P.O. Box 1110,
Hereford, Texas 79045.
3. If the Bank does not receive such written statement as
set forth in numbered Section (2) next -above by January 1, 19869
then in that event Bank shall disburse said $35,000.00 deposit
plus any accrued interest thereon in accordance with written
instructions received from City.
4. City shall promptly pay to Bank any usual and customary
charges for Bank's services under this Escrow Agreement as
requested by Bank.
i
r"
Ir
a
a
R
t
5. This Agreement shall be performable in the City of
Lubbock, Lubbock County, Texas.
Executed in duplicate this day of
1985, each duplicate being considered an original.
TEXAS COMMERCE BANK CITY OF LUBBOCK
OF LUBBOCK, N.A.
BY:
ITS: GEORGE CARPE ER
Title or Position MAYOR 0 -TEM
Vice President &Cash r
ATTEST:
Ran tte Boyd
City Secretary
-2-
WAIVER OF LIEN
THE STATE OF TEXAS §
COUNTY OF LUBBOCK
The undersigned contracted with CONCRETE DESIGN & CONSTRUCTION, INC.
in connection with certain improvements to real property located in Lubbock
County, Texas, and owned by the city of Lubbock, which improvements are
described as follows: furnishing of labor and materials in connection with
1983 Maintenance and Repair Contract C.
In consideration of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged and
confessed, the undersigned does hereby waive and release any mechanic's
lien or materialman's lien or claims of lien that the undersigned has on
the above mentioned project and the improvements which the undersigned has
or hereafter has on the above-mentioned real property on account of any
labor performed or materials furnished or to be furnished or labor performed
and materials furnished by the undersigned pursuant,to the above-mentioned
contract or any constitutional lien that the undersigned may have.
ASSOCIATED SUPPLY COMPANY, NC.
By:
".B-._-Ta]Brax"'WR]-ZG*ffT,. V P esident
SWORN TO AND SUBSCRIBED BEGORE ME, on this ��ay of ,
1985, to certify which witness my hand and seal of office.
Notary Public, State of Texas
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
IN RE:
CONCRETE DESIGN & ® CASE NO. 584-50147
CONSTRUCTION, INC.,
DEBTOR
APPLICATION TO COMPROMISE CONTROVERSY
TO THE HONORABLE JUDGE BRISTER:
Comes now Floyd D. Holder, Jr., Trustee, and moves the Court
approve a compromise with Appian Corporation and would show the
Court as follows:
I.
A dispute exists regarding the amounts owed Appian by the
Debtor and the amounts owed the Debtor by Appian, but it appears
even by the Debtor's schedules more is owed to Appian.than to the
Debtor.
II.
Certain funds are being held by the City of Lubbock as
retainage against a contract by Appian Corporation and which has
been the subject of arbitration. It appears that the City of
Lubbock will continue to hold the funds unless and until Appian
Corporation and Concrete Design can resolve their competing
claims.
III.
Trustee and Appian Corporation have agreed that in return
for the sum of $7,500.00 paid to Trustee by Appian Corporation
and further in return for Appian Corporation's agreement to file
or assert no claim against the estate in bankruptcy of Concrete
Design, then the Debtor, Concrete Design, will relinquish all
claims against Appian Corporation and assign to Appian Corpora-
tion any claim or right it may have against the retainage held by
the City of Lubbock.
IV.
Trustee considers that the foregoing agreement would result
in greater benefit for the other creditors of the estate than
could be achieved through litigation.
WHEREFORE, PREMISES CONSIDERED, Trustee prays that after
notice and hearing the Court approve the foregoing agreement.
RESPECTFULLY SUBMITTED,
FLOYD . HOL15ER, JR. Ir
805 Metro Tower, 1220 Broadway
Lubbock, Texas 79401
Phone (806) 763-9296
State Bar No. 09832500
TRUSTEE
CERTIFICATE OF SERVICE
Service of the foregoing Appl'cation to Compromise Contro-
versy was made on this day of April, 1985, by
hand -delivering a copy to the .S. Trustee, Northern District,
1205 Texas, Room 108, Lubbock, Texas 79401; and by mailing a copy
to Don Davis, attorney for Appian Corporation, P.O. Box 1191,
Hereford, Texas 79045; Mr. John Ross, City of Lubbock, P.O. Box
2000, Lubbock, Texas 79452; Ms. Deborah Penner, attorney for
Debtor, P.O. Box 65166, Lubbock, Texas 79464; and Mr. Tom Pitts,
attorney for Plains National Bank, P.O. Drawer 6170, Lubbock,
Texas 79493. �� A A A n
D Df HOLDER, JR.
RELEASE OF CLAIM OF RETAINAGE FUNDS HELD BY THE CITY OF
WHEREAS, Concrete Design & Construction, Inc., herein called
"CDC", contracted with Appian Corporation to furnish labor and
materials in connection with the 1983 Maintenance and Repair
Contract C for the City of Lubbock and particularly for the
reconstruciton paving done at the 58th Street and Indiana Avenue
intersection under said contract, and CDC filed a claim with the
City of Lubbock against retainage funds held by the City of
Lubbock; NOW THEREFORE:
In consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt
of which is acknowledged and confessed, the undersigned Trustee
in Bankruptcy for CDC in Bankruptcy Case No. 5-84-50147 in the
United State District Court for the Northern Distict of Texas,
Lubbock Division, on behalf of CDC does hereby relinquish and
quitclaim any and all claims it may have or could assert against
said retainage funds held by the City of Lubbock by reason of the
filing of any claim by CDC against said funds of whatsoever kind
or nature:
EXECUTED THIS DAY OF s :�4_e , 1985.
D. L R, R.,
Trustee as Aforesaid
RELINQUISHMENT OF ALL CLAIMS TO APPIAN CORPORATION AND ASSIGNMENT
TO APPIAN CORPORATION OF CLAIM ON RETAINAGE FUNDS HELD BY THE
CITY OF LUBBOCK:
WHEREAS, Concrete Design & Construction, Inc., herein called
"CDC", contracted with Appian Corporation to furnish labor and
materials in connection with the 1983 Maintenance and Repair
Contract C for the City of Lubbock and particularly for the
reconstruction paving done at the 58th Street and Indiana Avenue
intersection under said contract, and CDC filed a claim with
the City of Lubbock against retainage funds held by the City of
Lubbock; NOW THEREFORE:
In consideration of the sum of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, receipt of
which is acknowledged and confessed, the undersigned Trustee in
Bankruptcy for CDC in Bankruptcy Case No. 5-85-50147 in the
United States District Court for the Northern District of Texas,
Lubbock Division, on behalf of CDC does hereby relinquish all
claims against Appian Corporation and hereby assigns to Appian
Corporation any claim or right CDC has against said retainage
held by the City of Lubbock.
EXECUTED THIS 12-- DAY OF
Y LD R, JR.,
Trustev as aforesaid.
RELEASE
1985.
COMES now the Appian Corporation and in consideration of Ten
and No/100 Dollars ($10.00) and other good and valuable con-
sideration, receipt of which is hereby acknowledged, Appian
Corporation in its capacity as assignee of CDC as aforesaid
does hereby relinquish and quitclaim unto the City of Lubbock,
Texas, a home rule municipality, any and all claims or rights
Appian Corporation may have or could assert against said funds
held by the City of Lubbock by reason of the filing of any claim
by CDC against said funds of whatsoever kind or nature which were
hereinabove assigned by CDC to Appian Corporation.
EXECUTED THIS p(�� DAY OF �UA1E , 1965.
ATTEST:
Secretary
-2-
APPIAN CORPORATION
B Y :A)04��
Warner Lawson, President
` P Nei
W. B. ABBOTT AND CO.
gG•
PHONE 006 1 763.0613
CONTRACTORS 1616-ZNOSTREET
P. 0. Box Ses
LUBBOCK. TEXAS 79408
March 28, 1985
Appian Corp.
P.O. Box 1110
Hereford, Texas
Attention Paul Mason
Re: Indiana Ave. Improvements, City of Lubbock, Texas
Dear Sirs,
10
This letter is to notify you that the accoun r e ui b
Jimmy Fikes of Concrete Design has been closed si ovember 11, 1985.
Enclosed you will find a copy of the letter which was sen
interested parties at that time.
Sincerely yours,
K.D. A ott, Sr.
Owner
Nuvember 11, 1983
St. Pau]. Fite and Marine
P.O. Box 9336
Amarillo, TX 79105
Pe: Indiana Ave. Tmprovements, City of Lubbock, Texas 1
Dear Sirs:
This letter is to acknowledge receipt of $2,909.00 for
equipment rented by Jimrrjy Fikes of Concrete Design. We recieved
a check from Appian Corporation for the full amdUnt on November
4, 1983. i.Che check was an advance from Appian Corp. to Concrete
Design.
Sincerely ,yours,
K.U. Abbott, Sr.
ainer.
cc: Appian Corp.
Box ].10
Hereford, TX -prime contractor .
Jirmny Fi.kes
Concrete Design
3608 57th
Lubbock, TX -sub -contractor
City of Lubbock
P.C. Box 2000 .
Lubbock, TX 79457
Better Business Bureau
1015 15th
Lubbock, X 79403