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HomeMy WebLinkAboutResolution - 2016-R0013 - Settlement Agreement For Morgan Lee - 01/14/2016No. 2016-R0013 No. 6.16 14, 2016 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 for and on behalf of the City of Lubbock, a Compromise Settlement Agreement and Release of all Claims in Cause No. 2015-515,597, 72nd District Court of Lubbock County, Texas, styled MICHELE LEE, Individually and STEPHEN LEE, Individually and as Representative of the ESTATE of MORGAN LEE v. the CITY OF LUBBOCK, TEXAS, and related documents. 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 City Council. Passed by the City Council on January 14 2016 .: MITMW L'Vi/z MAYOR Garza, AS TO CONTENT: C`/ Leisa Hutcheson, Director of Human Resources and Risk Management APPROVED AS TO FORM: JefffiarAelf, Assistant City Attorney vw:ccdocs/RES.Senlement Agrmt-Lee, Michele & Stephen December 1, 2015 Resolution No. 2016-R0013 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is entered into by and between the City of Lubbock ("City"), and MICHELE LEE, Individually and STEPHEN LEE, Individually and as Representative of the ESTATE of MORGAN LEE, ("Claimants"). RECITALS WHEREAS, on or about August 13, 2014, Morgan Lee was driving a vehicle that was struck by a vehicle driven by a City of Lubbock employee at near the intersection of Clovis Highway and the frontage road of North Loop 289; and WHEREAS, Morgan Lee was fatally injured as a result of this accident; and WHEREAS, the Claimants allege that the driver of the City vehicle was negligent in operating this vehicle and was partially at fault; and WHEREAS, Claimants filed a lawsuit against the City of Lubbock in Lubbock County in Cause No. 2015-515,597; and WHEREAS, the City denies any liability to Claimants for any claim or cause of action, 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. 1. IN CONSIDERATION of the payment by the City of the sum of TWO HUNDRED FIFTY THOUSAND and No/100 Dollars ($250,000.00), Claimants do hereto enter into this Settlement Agreement and do hereby release, acquit, and forever discharge the driver of the City's vehicle, 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, including but not limited to any hospital, medical, insurance, Medicare or Medicaid 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 Claimants now have or may hereafter have, whether known or unknown, arising from the motor vehicle accident on or about August 13, 2014, with the City vehicle. 2. Claimants hereby agree that they are responsible for any outstanding liens, claims, or rights of subrogation that may now or hereafter exist arising out of or relating to this occurrence including, but not limited to, Medicare liens. 3. The City agrees to make payment within fourteen (14) days after this Settlement Agreement is executed by all parties. The City will issue a check payable to "Burke Law Firm Trust Account". 4. The parties agree that no portion of the settlement monies are being paid for punitive or exemplary damages or in consideration for any confidentiality agreement which may be contained in the Settlement Agreement between the parties. The parties further agree that even though all of Claimants' claims are being released as well as all elements of damages alleged within such claims, all of the settlement monies are being paid and received in consideration for Morgan Lee's alleged personal injuries or sickness within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended. 2 5. 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, 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. Claimants 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 above mentioned. 6. 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 Claimants 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. 7. The Claimants agree that the damages suffered by the City, 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 3 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 attorneys' 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 attorneys' fees and all other costs and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion, or action or action to recover damages resulting from the breach of this Settlement Agreement, whether taxable or otherwise. 8. Claimants 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 they have not transferred, conveyed, pledged, assigned or made any other disposition of the Claimed Rights. Claimants 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 attorneys' 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, interests, demands, actions, or causes of action, obligations, or any other matter covered by this Settlement Agreement. 13 9. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the Claimants, 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 matters 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 no 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 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 5 Claimants assume 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. Claimants, by entering into this Settlement Agreement, acknowledge that this settlement is a compromise of a disputed claim as to the liability of the Releasees for the Claimants' 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 acknowledge and agree 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 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. EXECUTED this 14th 3 day of January 2915. 2016 CLAI ANT: 1)6&dt� MI LE LEE CLAIMANT: STE HEN LEE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF MORGAN LEE STATE OF TEXAS COUNTY OF LUBBOCK Before me, the undersigned authority, personally appeared MICHELE LEE, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed. EEm, zKARMEN KI%PAIRICK 10NN50N+•= Notary PublicStateoflexosMy Commission Expires „'a" March 27. 2019 pe Notary Public, 9tate of TeMs 7 6`➢�IIt�L�T��.V•C. COUNTY OF LUBBOCK Before me, the undersigned authority, personally appeared STEPHEN LEE, Individually and as Representative of the ESTATE of MORGAN LEE, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same for the purposes and consideration therein expressed. E§5"' ,., o�+� KARMEN KIRKPAiRfCK JOHNSON Notary Public, S to of Teh Nolary Public. State of lexas fMy Commission Expires •�,p�ihk Match 27, 2019 CITY OF LUBBOCK By: Gl . Roberoitson, Mayor ��uRFKE December 18, 2015 Jeff Hartsell ASSISTANT CITY ATTORNEY P.O. Box 2000 Lubbock, Texas 79457 317 Locust Abilene, Texas 79602 Ph: 325-677-4777 Fax: 325-677-4711 Re: Cause No. 2015-515,597; Michele Lee, et. al. v. The City of Lubbock, Texas; In the 72nd Judicial District Court of Lubbock County, Texas Dear Jeff, Enclosed please find four original signature copies of the signed Compromise Settlement Agreement and Release of All Claims in the above -referenced matter. I previously provided an electronic copy along with our Tax Id. No. and a corresponding W-9. If there is something more you need to get this matter on the agenda, approved and wrapped up, please let me know. I appreciate your time and attention in this matter. Yours truly, BURKE LAW FIRM KDP/ enclosures