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HomeMy WebLinkAboutResolution - 2006-R0301 - Settlement Agreement - Ramon - Cause No. 2006-822,387 - 06_26_2006Resolution No. 2006-RO301 June 26, 2006 Item No. 5.4 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 a Settlement Agreement in Cause No. 2006- 822,387. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of this Council. Passed by the City Council this 26th ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Xf�eeAaz:::��� LeeAnn Dumbauld, City Manager APPROVED AS TO FORM: 1-k 2k4ccs"s Matthew L. Wade, Assistant City Attorney as/ccdocs/RamonSet.Agree. Res. June 22, 2006 day of .Tune '2006. DAVID A. MILLER, MAYOR Resolution No. 2006-RO301 June 26, 2006 Item No. 5.4 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agre6ment") is entered into by, between, and among the City of Lubbock (the "City"), Rosa Ramon, and Nemicio Ramon, by and through his appointed attorney -in -fact, Rosa Ramon (collectively, the "Ramons"). RECITALS WHEREAS, the City instituted a condemnation action for a portion of certain real property owned by the Ramons and located at 802 Avenue S, Lubbock, Texas, and more particularly described in full as Lot One (1), Block Twenty -Nine (29), Overton Addition to the City of Lubbock, Lubbock County, Texas according to the map, plat, and/or dedication thereof recorded in Volume 18, Page 610, Deed Records, Lubbock County, Texas, Volume 19, Page 56, Deed Records, Lubbock County, Texas, and Volume 19, Page 568, Deed Records, Lubbock County, Texas (the "Property"); WHEREAS, the Ramons have alleged that the City, in violation of the Ramons' rights, discontinued water, sewer, and utility service to the Property prior to the institution of said condemnation action; WHEREAS, all parties are willing to settle all claims, and resolve all matters between them in connection with the Property, including the conveyance of a portion thereof, to avoid the inconvenience, distractions, uncertainties, and expenses attendant to litigation and trial, in exchange for the consideration and releases set forth below. 1. IN CONSIDERATION of the payment by City to the Ramons of the sum of TWENTY-SIX THOUSAND SEVEN HUNDRED FIFTY and NO/100 DOLLARS ($26,750.00), the Ramons do enter into this Settlement Agreement and do hereby release, acquit, and forever discharge the City, its respective predecessors, successors, assigns, owners, City Council, partners, members, managers, employees, directors, legal representatives, insurers, independent contractors, agents, and attorneys (the "Releasees") 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, whether heretofore or hereafter accruing, which the Ramons now have or may hereafter have, whether known or unknown, arising out of the activities of City or otherwise arising in connection with the Property, suffered as of, or related to, or accruing prior to the execution of this Settlement Agreement, including any and all associated activities related thereto. 2. Payment shall be made by check in the amount of TWENTY-SIX THOUSAND SEVEN HUNDRED FIFTY and NO/100 DOLLARS ($26,750.00), payable to Nemicio Ramon, Rosa Ramon, and Harold Pigg. The check will be delivered after this Settlement Agreement is executed by all parties. 3. The Ramons agree to convey, in fee simple, the North twenty-five feet (25') of the Property to the City within five (5) business days of executing this Settlement Agreement. The Ramons further agree to secure and/or execute any additional instruments that may be required, in the sole discretion of the City, to effectuate the purposes of this Settlement Agreement, as well as to convey to the City the unencumbered fee simple interest in and to the North twenty-five feet (25') of the Property. 4. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring due to this incident referenced herein 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. The Ramons hereby declare that they fully understand the terms of this Settlement Agreement, and voluntarily accept the above stated sum for the purposes of making full and final settlement of any and all the injuries, damages, expenses, and inconvenience to them or the Property above mentioned, as well as fair compensation and consideration for the portion of the Property herein agreed to be conveyed. 5. This Settlement Agreement may be pled 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. The Ramons agree 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. 6. The Ramons agree that the damages suffered by the City, LP&L, and persons, firms, corporations, or other entities protected by this Settlement Agreement 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 said City, LP&L, persons, firms, corporations, or other entities, 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 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. Settlement Agreement, Ramon Page 2 of 6 7. The Ramons hereby represent and warrant that they and they alone, own the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement (the "Claimed Rights"), and that the Ramons have not transferred, conveyed, pledged, assigned, or made any other disposition of the Claimed Rights. The Ramons agree to indemnify and hold harmless the Releasees from and against any and all claims, demands, or causes of action and the reasonable and necessary costs, including attorney's fees, incurred in the defense of any such claim that any person who claims an ownership, including any liens whether statutory or otherwise, in the Claimed Rights or any other matter covered by this Settlement Agreement. 8. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the City, its legal representatives, successors, or assigns. 9. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 10. 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. 11. 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. 12. 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. 13. This Settlement Agreement has been and shall be construed to have been drafted by all parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 14. 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. 15. Each party has consulted with whatever consultants, attorneys, or other advisors each deems appropriate concerning the effect of this Settlement Agreement, and the Ramons assume the risk arising from not seeking further or additional consultation with such advisors. 16. Each party 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 asserted rights released by this Settlement Agreement. 17. The Ramons, by entering into this Settlement Agreement, acknowledge that this settlement is a compromise of a disputed claim as to the liability of the Releasees Settlement Agreement, Ramon Page 3 of 6 for the Ramons' injuries and damages, if any, and the payment 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. 18. All parties to this Settlement Agreement acknowledge and agree that they have obtained legal representation and advice, as they have deemed appropriate in entering into this Settlement Agreement. 19. The Ramons shall be solely responsible for any and all federal, state or local income taxes, if any, associated with this Settlement Agreement. 20. Each party further states 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. 21. 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 in Lubbock County. EXECUTED this 26th day of June , 2006. (the remainder of this page intentionally left blank) Settlement Agreement, Ramon Page 4 of 6 (�� C-1-2, 4=21 Rosa Ramon, Individually cz� '4' (��? (�a� Nemicio Ramon, by and through-@sO Attorney -in -Fact, Rosa Ramon STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared Rosa Ramon, individually and by proper authority as Attorney -in -Fact for Nemicio Ramon, known to me to be the person whose names are subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed. Y"" lot ANGELIA MANER Notary Public, State of Texas My Commission Expires �o�o September 30, 2009 Notary Pub is for the State of Texas Settlement Agreement, Ramon Page 5 of 6 CITY OF LUBBOCK ir•'I��fl '/ Printed Name: David A. Miller Title: mayor STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared DAVID A. MILLER, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that s/he executed the same for the purposes and consideration therein expressed. LINDA A. HART :. Notary Public, State of Texas - [S My Commission Expires June 30, 2007 Not6ry Public for thd State of Texas APPROVE AS TO FORM AND CONTENT: e HAROLD PIGG Attorney for Ramons MI HELL SATTERWHITE Attorney for City of Lubbock Settlement Agreement, Ramon Page 6 of 6