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HomeMy WebLinkAboutR26-699160 RESOLUTION R26-699 A RESOLUTION AUTHORIZING THE CITY MANAGER EXECUTE A SETTLEMENT AND ASSIGNMENT OF CLAIMS WITH A SUBCONTRACTOR WHO PROVIDED WORK ON THE PLAINVIEW AQUATIC CENTER PROJECT. WHEREAS, City of Plainview entered into a written construction contract with USA Management, LLC d/b/a USA Construction, LLC ("USA Management") on or about January 17, 2019 (the "Contract") where USA Management was to act as prime contractor in constructing the Plainview Aquatic Center in Hale County, Texas ("Project"); and WHEREAS, USA Management hired the following subcontractor, Concrete Connection LLC., to perform certain construction work related to Project; and WHEREAS, the above named subcontractor satisfactorily provided labor and services for the Project and assert that USA Management was invoiced for the services provided by the subcontractor in the amounts outlined below but USA Management, to date, failed to pay the subcontractor for the services provided: Concrete Connection LLC - $4,000 WHEREAS, despite USA Management's failure to pay subcontractor for satisfactorily providing the services for the Project, the subcontractor continued to cooperate with and assist the City in completing the Project even after USA Management abandoned the job site so that the Project could be opened for public use by the citizens of Plainview in a timely manner; and WHEREAS, the City Council of the City of Plainview, recognizing the satisfactory work provided by the above referenced subcontractor and recognizing the additional work provided by such subcontractor so that the City of Plainview could open the Plainview Aquatic Center to the citizens of Plainview after USA Management stopped working on the Project, believes it to be in the best interest of the City of Plainview to settle the claims of the above referenced subcontractor by paying the amounts of the unpaid invoices and having the subcontractor assign their legal claims against USA Management to the City of Plainview; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, THAT: 1. The recitals outlined above are found to be true and correct and are hereby adopted. 2. In exchange for the above -mentioned contractors executing a settlement agreement and assignment of claims, the basic form of which is attached hereto and incorporated herein, the City Manager is authorized to remit to the subcontractor funds Resolution R26-699 Page 1 of 2 161 1 for the unpaid invoices of such subcontractor for work provided for the Project in the amounts referenced above. 3. The City Manager, after consultation with the City Attorney, may modify or amend the form of the settlement agreement and assignment of claims if requested by the subcontractor or their legal representatives so long as the substantive terms and amount paid to the subcontractor remain the same and the legal rights of the City of Plainview are protected. PASSED AND APPROVED this 14th day of April, 2026. Charles Stornes� Mayor ATTEST: &A-4J— Belinda Hinojosa, Secretary Resolution R26-699 Page 2 of 2 162 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is by and between the City of Plainview, Texas ("City"), a home -rule municipality and political subdivision of the State of Texas, and Concrete Connection, LLC ("Claimant"), a Texas limited liability company located at 2102 25th Street, Plainview, Texas 79072 (collectively referred to as the "Parties"). WITNESSETH WHEREAS, the City entered into a written construction contract with USA Management, LLC d/b/a USA Construction, LLC ("USA Management") on or about January 17, 2019 (the "Contract") through which USA Management was to act as prime contractor in constructing the Plainview Aquatic Center in Hale County, Texas (the "Project"); and WHEREAS, USA Management hired Claimant to perform certain construction work related to Project which included the following services: saw cutting and removal of the concrete to expose a 6" water line, doweling into the existing concrete, sand packing the existing hole, pouring 4,000 psi concrete, and finishing the surface of the new concrete; and WHEREAS, Claimant satisfactorily provided such services and asserts that USA Management was invoiced for the services provided by Claimant but USA Management, to date, has not paid Claimant for the services provided; and WHEREAS, the City denies any liability to Claimant for any claim or cause of action associated with the above -referenced matter but is willing to settle all claims to avoid the inconvenience, distractions, uncertainties, and expenses attendant to litigation and trial, in exchange for the consideration and releases set forth below. RECITALS NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties to this Settlement Agreement, the City and Claimant agree as follows: 1. The City hereby agrees to pay to Claimant, THREE THOUSAND NINE HUNDRED AND 00/100 DOLLARS ($3,900.00) for any and all claims, invoices, unpaid invoices, and damages allegedly made by the City or City's contractor, USA Management, to Claimant, and any associated or ancillary equipment or personal property owned by Claimant, and in any way related to or otherwise associated with the Project or the work the Claimant performed for the Project. 2. For the consideration set forth herein, the receipt and sufficiency of which is hereby acknowledged, Claimant: a. hereby forever and irrevocably, releases and acquits and discharges the City and it's respective officers, employees, council members, managers, directors, successors, assigns and legal representatives of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, whether statutorily provided or otherwise, expenses, services, actions, causes of action, or suit in equity, of whatsoever kind or nature, accrued as of the date of the execution of this Settlement Agreement, which the Claimant now has or may hereafter have, whether known or unknown, arising out of the activities outlined in the above recited matter or in any way related to the Project, and Settlement Agreement Concrete Connection, LLC Pagel of 5 163 b* agrees to assign and transfer to the City any and all claims, demands, liabilities, obligations, damages, actions, or causes of action of any kind and every nature whatsoever which Claimant has, has ever had, or may have in the future, whether known or unknown at the date of this Settlement Agreement, against USA Management or any other person or persons, whether jointly or severally, arising out of, or for, any loss, injury, or damage sustained by Claimant in connection with the Project including any claims which may be asserted in the lawsuit currently styled City of Plainview v. USA Management, LLC; Cause No. B44456-2209 in the 242nd Judicial District of Hale County and further agrees to evidence this assignment and transfer by executing an assignment of claims in favor of the City by written instrument in form satisfactory to the City. 3. Claimant hereby represents and warrants that Claimant alone owns the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement ("Claimed Rights"), and that Claimant, except as specifically outlined and provided for in this Settlement Agreement, has not transferred, conveyed, pledged, assigned, or made any other disposition of the Claimed Rights. The Claimant agrees to indemnify and hold harmless the City and its respective officers, employees, council members, managers, directors, successors, assigns and legal representatives from and against any and all costs, damages, liabilities, claims, demands, or causes of action and the reasonable and necessary costs, including attorneys' fees, incurred in the defense of any such claim of any person who claims an ownership, including any liens whether statutory or otherwise, in the Claimed Rights. 4. Claimant hereby declares that he fully understands the terms of the release outlined herein and voluntarily accepts the consideration outlined in this Settlement Agreement for the purposes of making full and final settlement of any and all the injuries, claims, damages, expenses, and inconvenience related to any claims that may be asserted by Claimant associated with the matter recited above. 5. The provisions of this Settlement Agreement may be pled as a full and complete defense to any action, lawsuit, or other proceeding, which may be instituted, prosecuted, or attempted for, upon, or in respect of any of the claims released hereby. The Claimant agrees that any such proceeding would cause irreparable injury to the City, and that any court of competent jurisdiction may enter an injunction restraining prosecution thereof. 6. The Claimant, by entering into this Settlement Agreement, acknowledges that this settlement is a compromise of a disputed claim as to the liability of the claims the Claimant was making against the City, including any claim the Claimant may have had regarding any attorney's fees Claimant may have incurred, and any payment made herein is not to be construed as an admission of liability by the City. 7. The Claimant agrees that the damages suffered by the City by reason of any breach of any provision of this Settlement Agreement shall include not only the amount of any judgment that may be rendered against the City or its respective officers, employees, council members, managers, directors, successors, assigns and legal representatives by reason of a breach of this Settlement Agreement, but shall also include all damages suffered by them, including the cost of attorney's fees and other costs and expenses of instituting, preparing, prosecuting, defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and costs to them of attorney's 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. 8. 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. 9. The terms of this Settlement Agreement shall inure to the benefit of and be binding upon the Parties and their legal representatives, successors, or assigns. Settlement Agreement Page 2 of 5 Concrete Connection, LLC 164 10. All signatories to this Settlement Agreement hereby represent and warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 11. This Settlement Agreement and the attached exhibits state the entire agreement of the parties with respect to the matters discussed herein and supersede all prior or contemporaneous oral or written understandings, agreements, statements, or promises. 12. If any provision of this Settlement Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstances, the remainder of this Settlement Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. 13. No amendment, modification, or alteration of the terms of this Settlement Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Settlement Agreement, and duly executed by both Parties. 14. Nothing in this Settlement Agreement shall be construed to provide any rights or benefits whatsoever to any party other than the City and Claimant and this Settlement Agreement, without limitation, shall not be construed and does not waive any claim or cause of action either the City or Claimant may have against USA Management. 15. The Parties to this Settlement Agreement acknowledge and agree that they have obtained whatever legal representation and advice as they have deemed appropriate in entering into this Settlement Agreement. 16. The Parties each state that this Settlement Agreement, including the foregoing release, has been carefully read and each party understands the contents thereof and has signed the same as their own respective free act, and has not been influenced in making this settlement by any representative of a party or parties released. 17. It is further understood that the provisions of this Settlement Agreement are contractual and not mere recitals, and that the laws of the State of Texas shall govern this Settlement Agreement and that venue for any action arising out of or related to this Settlement Agreement and the claims associated therewith shall lie exclusively in Hale County. CLAIMAINT: Concrete Connection, LLC Carla Sells, Managing Member Date: Brantlee Sells, Managing Member Date: [acknowledgements follow] Settlement Agreement Page 3 of 5 Concrete Connection, LLC 165 1 STATE OF TEXAS COUNTY OF HALE Before me, the undersigned authority, personally appeared Carla Sells, Managing Member of Concrete Connection, LLC, 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. Notary Public for the State of Texas STATE OF TEXAS COUNTY OF HALE Before me, the undersigned authority, personally appeared Brantlee Sells, Managing Member of Concrete Connection, LLC, 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. Notary Public for the State of Texas [signature page follows] Settlement Agreement Concrete Connection, LLC Page 4 of 5 ASSIGNEE: City of Plainview, Texas Ted Chancellor, City Manager Date: STATE OF TEXAS COUNTY OF HALE Before me, the undersigned authority, personally appeared Ted Chancellor, City Manager of the City of Plainview, Texas, 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. Notary Public for the State of Texas 1 1 1 Settlement Agreement Concrete Connection, LLC Page 5 of 5 167 ASSIGNMENT OF CLAIMS This Assignment of Claims (this "Assignment") is made on this the day of 2025, by and between Concrete Connection, LLC ("Assignor"), a Texas limited liability company located at 2102 25th Street, Plainview, Texas 79072, and the City of Plainview, Texas ("Assignee" or "City"), a home -rule municipality and political subdivision of the State of Texas. RECITALS WHEREAS, Assignee entered into a written construction contract with USA Management, LLC d/b/a USA Construction, LLC ("USA Management") on or about January 17, 2019 (the "Contract") through which USA Management was to act as prime contractor in constructing the Plainview Aquatic Center in Hale County, Texas (the "Project"); and WHEREAS, USA Management hired Assignor to perform certain construction work related to the Project which included the following services: saw cutting and removal of the concrete to expose a 6" water line, doweling into the existing concrete, sand packing the existing hole, pouring 4,000 psi concrete, and finishing the surface of the new concrete; and WHEREAS, Assignor satisfactorily provided such services and asserts that USA Management was invoiced for the services provided by Assignor but USA Management, to date, has not paid Assignor for the services provided; WHEREAS, in spite of USA Management's failure to pay Assignor for satisfactorily providing the services outlined above, Assignor continued to cooperate with and assist the City in completing the Project after USA Management abandoned the job site so that the Project could be opened for public use by the citizens of Plainview in a timely manner; NOW THEREFORE, ASSIGNOR AND ASSIGNEE AGREE AS FOLLOWS: AGREEMENT 1. For the sum of ONE HUNDRED AND 00/100 DOLLARS ($100.00) and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor assigns and transfers to Assignee any and all claims, demands, liabilities, obligations, damages, actions, or causes of action of any kind and every nature whatsoever which Assignor has, has ever had, or may have in the future, whether known or unknown at the date of this Assignment, against USA Management, LLC d/b/a USA Construction, LLC, or any other person or persons, whether jointly or severally, arising out of, or for, any loss, injury, or damage sustained by Assignor in connection with the Project ("Claims") including all Claims that may be asserted in the lawsuit currently styled City of Plainview v. USA Management, LLC, Cause No. B44456-2209 in the 242nd Judicial District of Hale County. 2. Assignor represents and warrants that: (a) Assignor has not previously transferred, assigned or pledged Assignor's Claims; and (b) Assignor has the full power and authority to transfer Assignor's Claims under the terms of this Assignment. 3. Assignor appoints Assignee and Assignee's legal representatives and assigns, with power to demand and receive satisfaction of the Claims, and, at Assignee's expense, in the name of Assignor take whatever legal action may be necessary to enforce the Claims. 4. Assignor shall do, execute, acknowledge, and deliver all such further acts, assignments, and other documents reasonably requested by Assignee to fulfill the terms of this Assignment and necessary to pursue the Claims during the time such Claims are held by Assignee. Assignment of Claims Page 1 of 4 Concrete Connection, LLC •e 5. Assignee and Assignor agree that: (a) the assignment of Claims by Assignor as contemplated in this Assignment is not to be construed as an admission or acknowledgment of liability, under legal or equitable doctrines, on the part of Assignor or Assignee; and (b) no person or entity may utilize this Assignment or the consideration received pursuant to this Assignment as evidence of any admission of liability. 6. This assignment is without recourse, and Assignor does not guarantee payment of the Claims. Assignor agrees, however, that in the event any payment under the Claims is made to Assignor, Assignor will promptly transmit such payment to Assignee. 7. This Assignment shall bind and inure to the benefit of the parties and their respective successors and assigns. 8. If any provision of this Assignment is found to violate any statute, regulation, rule, or order or decree of any governmental authority, court, agency, or exchange, such invalidity shall not be deemed to affect any other provision of this Assignment. If any provision is deemed invalid, it should be enforced to the maximum extent allowed by law. If such enforcement is not possible, the invalid provision should be deemed deleted to the minimum extent necessary to cure the violation. 9. Assignor acknowledges and agrees that they have obtained whatever legal representation and advice as they have deemed appropriate in entering into this Assignment. 10. This agreement shall be exclusively governed by and construed according to the laws of the State of Texas and that any conflicts of law rule requiring reference to the laws of another jurisdiction shall be disregarded. The Assignor and Assignee agree that any lawsuit to enforce or construe this agreement shall lie exclusively in Hale County, Texas. Assignment of Claims Concrete Connection, LLC ASSIGNOR: Concrete Connection, LLC Carla Sells, Managing Member Date: Brantlee Sells, Managing Member Date: [acknowledgements follow] Page 2 of 4 1 169 1 1 STATE OF TEXAS COUNTY OF HALE Before me, the undersigned authority, personally appeared Carla Sells, Managing Member of Concrete Connection, LLC, 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. Notary Public for the State of Texas STATE OF TEXAS COUNTY OF HALE Before me, the undersigned authority, personally appeared Brantlee Sells, Managing Member of Concrete Connection, LLC, 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. Notary Public for the State of Texas [signature page follows] Assignment of Claims Page 3 of 4 Concrete Connection, LLC 170 ASSIGNEE: City of Plainview, Texas Ted Chancellor, City Manager STATE OF TEXAS § COUNTY OF HALE § Before me, the undersigned authority, personally appeared Ted Chancellor, City Manager of the City of Plainview, Texas, 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. Assignment of Claims Concrete Connection, LLC Notary Public for the State of Texas Page 4 of 4 1 1 1