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HomeMy WebLinkAboutResolution - 999 - Release & Assignment - SWPSC - Transmission Pole Failures - 12/17/198133 1 DWR:cl RESOLUTION RESOLUTION 999 - 12/17/81 (See Reso. 838, 6/1.8/81 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 Release and Assignment between the City of .Lubbock and Southwestern Public Service Company, 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 i7tb day of D��ember ,1981. r 4BLL McALISTER, MAYOR ,ATTEST: Evelyn Ga fg , City a ary-Treasurer -APPROVED AS TO CONTENT: _� Carroll McDonald, birector of Electric Utilities APPROVED AS TO FORM: David W. Reagan, As i nt City Attorney RESPLUTION 999 - 12/17/81 �/• �!TY FFC,FFT.ARY TREASURER t (See Reso 838, 6/18/81) THE STATE OF TEXAS § COUNTY OF LUBBOCK § RELEASE AND ASSIGNMENT This Release and Assignment, executed by the City of Lubbock (City) and Southwestern Public Service Company (Company) WITNESSETH: I. On or about March 11, 1976, the City entered into an agree- ment with Hicks and Ragland Engineering Company, Inc. (Hicks/Ragland) regarding construction of the Holly Plant to Co-op Substation 138 KV Transmission Line as is shown by the original contract. II. Hicks/Ragland thereafter consulted with and relied upon the advice, services, and expertise of Dr. C.V.G. Vallabhan of Lub- bock, Texas regarding portions of the construction contract with the City and particularly the concrete supports designed and furnished for poles hereinafter described. III. On or about November 26, 1980 two large transmission poles included in the construction contract referred to and denominated as poles 19 and 20 fell to the ground. In addition, the struc- tural integrity of poles 17, 34, 37, 40 and 43 was thereafter questioned because of the failure of the concrete supports for such transmission poles. IV. Following such fall and discovery of instability of the support foundations of the poles, the City asserted its claim against Hicks/Ragland contending that its losses occasioned by the construction failures referred to were caused by errors in the design or other engineering work furnished by the engineer'Hicks/ Ragland with respect to the concrete supports for such poles; and, V. WHEREAS, the City and Buck entered into that certain remedial agreement, copy of which is attached hereto and marked Exhibit A; and, VI. WHEREAS, said remedial agreement has been in all things ful- filled and carried out; and, VII. , WHEREAS, the sums of money recited in said remedial agreement (Exhibit A) having been fully paid and the damages of Southwestern Public Service Company having been fully paid, the City of Lubbock and Southwestern Public Service Company each desire to release Hicks and Ragland Engineering Company, Inc. of any and all claims or liability arising by virtue of the failures described in Para- graph III hereof and the agreement hereinabove described, and further desire to assign to the said Hicks and Ragland Engineering Company, Inc., their successors and assigns any and all rights and claims of any kind whatsoever which they or either of them might have or have had against the said Hicks and Ragland Engineering Company, Inc. and/or Dr. C.V.G. Vallabhan on account of the losses caused by the failures above described; VIII. WHEREAS, Southwestern Public Service Company, Inc. having sustained damages as a result of the failures hereinabove described and having received payment in the amount of $8,311.71 for such damages, Southwestern Public Service Company, Inc. desires to release the City of Lubbock of any and all claims or liability arising by virtue of the failures hereinabove described. NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for and in consideration of the mutual covenants and agreements herein and other good and valuable consideration, we the undersigned hereby agree: A. The City of Lubbock and Southwestern Public Service Company, Inc. each does hereby fully and forever release and discharge the said Hicks and Ragland Engineering Company, Inc., their servants, agents, employees and liability carrier, of and from any and all liability of whatsoever nature in any way arising out of the hereinabove described transmission pole foundation support failures and said remedial agreement herein- above referred to, it being our intention only to release said Hicks/Ragland from any and all liability with respect to such failures and the losses occasioned thereby, without releasing Dr. C.V.G. Vallabhan. B. Southwestern Public Service Company, Inc. does hereby fully and forever release and discharge the said City of Lubbock, its servants, agents, and employees, of and from any and all liability of whatsoever nature in any way arising out of the hereinabove described transmission pole foundation support failures and the losses occasioned thereby, without releasing Dr. C.V.G. Vallabhan. C. The City of Lubbock and Southwestern Public Service Company, Inc. do hereby transfer and assign to Hicks and Ragland Engineering Company, Inc., their successors and assign.all of our right, title and interest in and to any and all causes of action or claims which we have or have had against Hicks and Ragland Engineering Company, Inc. and/or. C.V.G. Vallabhan of Lubbock, Texas, arising only out of the hereinabove described transmission pole foundation support failures and said remedial agreement with full right to main- tain an action and to settle, compromise or reassign such cause of action and to give a release in our names in full discharge of liability thereunder. D. Any action taken by assignee under this assignment may be in the name of the City of Lubbock and/or Southwestern Public Service Company but shall be at the sole expense of assignee who shall indemnify assignors as to any loss or expense occasioned by such action taken by assignee. Executed this 17th day of December 1981. ATTEST: BY C.l� Eve yn"Ga ga, C' Secretary -Treasure APP VED AS TO CONTENT: c Carro 1 McDonald, Director of Electric Utilities APPROVED AS TO FORM: 4�� C- ?� Jo n C. Ross, Jr. City Attorney ATTEST: THE CITY 0 UBBO r BY cALISTER, MAYOR SOUTHWESTERN PUBLIC SERVICE COMPANY .BY BY STATE OF TEXAS § .cl773 COi'\TY OF LUBBOCK REMEDIAL ASREEZ1Et7 This Remedial Agreement entered•'into by and between the City of Lubbock, herein called "City", and J. k'. Buck Construction Co., Inc., herein called "Contractor". WITNESSETH hnEREAS, the City and the Contractor entered into a contract on the 8th Cay of May, 1980, for :.he construction of a 138 KV transmission line from the Holly Plant to Co-op Substation; and WHEREAS, on November 26, 1980, two large transmission poles erected pur- sUant to the aforementioned contract and identified in said contract as poles 619 and #20 fell to the ground; and WHEREAS, subsequent investigation of these transmission pole failures revealed that a question existed also as to the structural integrity of trans- m-ssion poles V17, 34, 37, 40 and 43; and k*HEREAS, the consulting engineers retained by City on this construction project have prepared estimates on the cost of rhe necessary remedial work to complete this construction contract in accordance with its original terms; and WHEREAS, the consulting engineers have recommended that due to the com- plexity and scope of the remedial work necessary to complete this contract in accordance with its original terms that this remedial agreement be entered into between the parties so that the scope of the remedial work could be properly stated as well as the terms and conditions that pertain thereto; and WHEREAS, the City has called to the Contractor's attention the terms of .the•contract previously entered into between the parties dated May 8, 1980, and specifically Art. II, Secs. 3 and 6; and Art. V, Sec. 1, together with all other terms of the contract covering defects in the work from whatever cause under the contract; and k'Y.EREAS, both parties to .this Agreement agree with the need to undertake the remedial work which is the subject matter of this Agreement; and k''dEREAS, both parties to this Agreement agree that the terms of the original contract covering defects in work will be followed in undertaking the remedial work which is the subject matter of. -this Agreement subject to the specific terms herein set forth. EXHIBIT A t IOW THEREFORE, for and in consideration of the mutual covenants and pro- mises of the parties herein contained, and all other good and valuable con- sideration herein set forth, the parties hereto do agree as follows: 1. Repairs (a) Contractor shall undertake to make the necessary repairs to the 238 KV transmission line from Holly Plant to Co-op Substation as set forth in Exhibits A and B attached hereto and made a part of this contract for all purposes. (b) If during the repair procedures as set forth above, it becomes evident that additional repairs are necessary to complete the remedial work, then in such event the parties hereto will determine at such time the resolution of such additional work and if such will be for additional compensation. 2. Cost It is agreed between the perties that the total cost to undertake the repairs set forth in Exhibits A and B only, are as follows• (a) Exhibit A - $ 89,050.00 (b) Exhibit B - $ 19,745.00 It is further agreed that Contractor shall undertake said work for the total price of $108,795.00, payable at Lubbock, Texas, as herein provided. 3. Third Party (a) It is agreed and understood by both parties hereto that all monies to be paid Contractor for Contractor's work in effecting the repairs as set forth in Exhibits•A and B are to be paid to Contractor only after receipt by City of said funds from Hicks & Ragland Engineering Co., Inc. (b) It is further understood that the City will not be liable to the Contractor for payment of monies under this contract until such time as it has received the funds set forth in paragraph V2 of this Agreement. (c) It is further understood between the parties that the Contractor -2- will not commence work on the remedial repairs set forth in Exhibits A and B until such time as the Contractor has been officially notified in writing that it is in receipt of the funds set forth in paragraph P2 of- this Agreement and that said funds are being held in escrow for'Contractor. 4. Payment Upon receipt of the monies by City from Hicks and Ragland Engineering Company, or their insurance company, as aforementioned, and the execution of this Agreement by Contractor, the City agrees to pay Contractor for his work in effecting the remedial repairs set forth in said Exhibits A and B, the monies set forth in paragraph 742 of this Agreement as follows: (a) $29,115.00 to be paid Contractor immediately upon receipt of said funds by City. (b) $74,240.25 to be paid Contractor in accordance with the provisions for partial payment set forth in the original contract between the parties dated May 8, 1980, at Art. ill, Sec. 1, save and except that the retainage under this Agreement shall be only 5% of the total cost of this contract as set forth in paragraph V2 hereof. (c) $5,439.75 - this sum shall represent the retainage that City shall hold until such time as the work undertaken by Contractor has been accepted by City at which time this money shall be paid to Contractor. 5. Original Contract Save and except as herein set forth, the terms of the original con- tract between the parties shall govern the. relationship between the parties hereto and said original contract dated May 8, 1980, is hereby referred to as if fully set forth herein. It is expressly agreed that this Agreement is not in any manner a replacement or novation of said original contract between the City and Contractor, but is an addition setting forth the manner in which such remedial work is to be preformed. -3- 6. t.�arran ty The same warranty shall run in favor of City on the repair Mork which is the subject matter of this Agreement, as is set forth in the original contract between the parties in Art. II, Sec. 6. This Agreement shall become eff tive the'day and year below written. EXECUTED this day of ✓-- , 1951. ATTEST: l Evelyn Gaffga, tity c -Treasurer APPROVED AS TO CONTENT: , Carroll HcDonald, Director of Utilities Sales and Service APPROVED AS TO FORM: LL e Jon C. Ross, Jr., CityjAttorney ATTEST: CITY OF LUBBOCK, TEXAS BY BILL McALISTER, MY OR J. W. BUCK CONSTRUCTION CO., INC. BY -4-