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HomeMy WebLinkAboutResolution - 2002-R0154 - Settlement Agreement In Cause No 2001-512.791 - 04/25/2002Resolution No. 2002-RO154 April 25, 2002 Item No. 43 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. 2001-512,791. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 25th day of April , 2002. WINDY SIT ON, MAYOR ATTEST: P"A'Xo�� ---' ��� — Rebecca Garza, City Secretary ' APPROVED AS TO CONTENT: Z' 1� Bob Cass, City Manager APPROVED AS TO FORM: Jelffakell, trial Attorney ml/ccdocs/set. agree. res April 18, 2002 Resolution No. 2002-RO154 April 25, 2002 Item No. 43 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims (the "Settlement Agreement") is entered into between the City of Lubbock ("City"), and Mark Morales ("Claimant"). RECITALS WHEREAS, the Claimant applied for a position with the City of Lubbock Police Department; and WHEREAS, the Claimant alleges he received injuries while participating in the pursuit run; and WHEREAS, the Claimant alleges the City was negligent and responsible for his injuries; and WHEREAS, the Claimant filed suite in the 237th District Court of Lubbock County, Texas, styled Cause No. 2001-512,791, Mark Morales vs. the City of Lubbock, Texas; and WHEREAS, the City denies any liability to the Claimant for any claim or cause of action, but is willing to settle all claims to avoid the inconveniences, distractions, uncertainties and expenses attendant to litigation and trial, in exchange for the consideration and releases set forth below. IN CONSIDERATION of the payment by the City to the Claimant, of the sum of Sixty-nine Thousand One Hundred Fourteen and 551100 dollars ($69,114.55), Claimant does hereto enter into this Settlement Agreement and does 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, for whatsoever kind or nature, whether heretofore or hereafter accruing, which Claimant now has or may hereafter have, whether known or unknown, for or because of any matter arising out of this incident, admitted or suffered as a result of the incident. 2. The City also agrees to pay the Claimant costs of One Thousand Eight Hundred Eighty -Five and 45/100 dollars ($1885.45). 3. Payment shall be made by one check payable to "The Law Offices of Roberts and Burnett and Mark Morales," after the City receives signed copies of this Settlement Agreement. 4. This Settlement Agreement includes any transaction, occurrence, matter or thing whatsoever, whether known or unknown, arising or occurring due to this incident 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, Mark Morales: Settlement Agreement Page 2 of 9 March 18, 2002 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. Claimant hereby declares that he fully understands the terms of this Settlement Agreement and voluntarily accepts the above stated sum for the purposes of making full and final settlement of any and all the injuries, damages, expenses, and inconvenience above mentioned. 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 Claimant agrees 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 Claimant agrees that the damages suffered by the City, and persons, firms, corporations, or other entities protected by this Settlement Agreement by reason or 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, 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 Mark Morales: Settlement Agreement Page 3 of 9 March 18, 2002 attorneys' fees and other costs and expenses of instituting, preparing, prosecuting, or defending any action or suit resulting from a breach of this Settlement Agreement, whether taxable or otherwise, and the costs to them of attorneys' 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. 7. Claimant hereby represents and warrants that he, and he alone, owns 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 he has not transferred, conveyed, pledged, assigned or made any other disposition of the Claimed Rights. Claimant agrees 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 in the claimed rights, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement. Claimant hereby warrants and represents that he has no knowledge of and he has paid or agrees to pay any outstanding liens, claims or rights of subrogation arising out of or relating to claims asserted in his lawsuit. Claimant agrees that the City is not responsible for any outstanding liens, Mark Morales: Settlement Agreement Page 4 of 9 March 18, 2002 claims or rights of subrogation and that Claimant will indemnify the City and hold harmless from any such claims, liens or rights of subrogation 9. The terms of this Agreement shall inure to the benefit of, and be binding upon, the Claimant, Releasees, and their heirs, legal representatives, successors or assigns. 10. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 11. This Settlement Agreement states the entire agreement of the parties with respect to the maters discussed herein, and supersedes all prior or contemporaneous oral or written understandings, agreements, statements or promises. 12. 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. 13. 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. 14. 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 not force or effect. 15. If any portion or term of this Settlement Agreement is held unenforceable by a court of competent jurisdiction, the remainder of this Settlement Mark Morales: Settlement Agreement Page 5 of 9 March 18, 2002 Agreement shall not be affected and shall remain fully in force and enforceable. 16. Each party has consulted with whatever consultants, attorneys or other advisors each deems appropriate concerning the effect of this Settlement Agreement and Claimant assumes the risk arising from not seeking further or additional consultation with such advisors. 17. 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. 18. Claimant, by entering into this Settlement Agreement, acknowledges that this settlement is a compromise of a disputed claim as to the liability of the Releasees for the Claimant's 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. 19. All parties to this Settlement Agreement acknowledges and agrees that they have obtained legal representation and advice as they have deemed appropriate in entering into 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 have signed. the same as their own respective free act Mark Morales: Settlement Agreement Page 6 of 9 March 18, 2002 and have 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 this Settlement Agreement shall be governed by the laws of the State of Texas. Mark Morales: Settlement Agreement Page 7 of 9 March 18, 2002 EXECUTED this day of , 2002. CLAIMANT: MARK MORALES STATE OF TEXAS COUNTY OF LUBBOCK Before me, the undersigned authority, personally appeared Mark Morales, 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 ., h = KIM PADILLA My Commission expires: MY COMMISSION EXPIRES November 7, 2004 Mark Morales: Settlement Agreement Page 8 of 9 March 18, 2002 STATE OF TEXAS COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared Windy Sitton, 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. CELIA WEBB �• � fly Owmlis 03-0 2606 "�j )kela Notary Public My Commission ex ires: 03'_0t- 2O, ml/cityatt/jeff/settlement agreements/mark morales.settleagree Mark Morales: Settlement Agreement Page 9 of 9 March 18, 2002