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HomeMy WebLinkAboutResolution - 2013-R0457 - Compromise Settlement Agreement & Release Of All Claims - Eva Montez - 12/19/2013RESOLUTION 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.2012-504,461,237th District Court of Lubbock County,Texas,styled Eva Montez v. 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 December 19,2013 . ATTEST: >JL&C*L*c.-£ Rebscca Garza, City Secretary APPROVED AS TO CONTENT: ;y Whiter-Assistant City ManagerQuincy APPROVED AS TO FORM: Jeff Hartsell,Chief Litigation Attorney vw:ccdocs/RES.Settlement Agrmt-Eva Montez December 9,2013 ROBERTSON,MAYOR 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 Defendant, City of Lubbock, ("City"), and Eva Montez, the ("Claimant".) RECITALS WHEREAS, on or about November 6, 2010, Claimant was walking in the 300 Block of Boston Avenue in Lubbock, Texas when she stepped in a 4-5 foot hole caused by the City when it had removed a pole earlier that year ("Activities"); and WHEREAS, the Claimant alleges that the City was negligent in not filling the hole or warning her about its existence; and WHEREAS, Claimant filed suit in the 237th District Court of Lubbock County, Texas, styled Cause No. 2012-504,461; Eva Montez v. City of Lubbock, Texas; and WHEREAS, the City denies any liability to Claimant 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 to the Claimant, of the sum of EIGHTY THOUSAND and No/100 Dollars ($80,000.00), plus court costs, mediation fees and prejudgment interest not to exceed the sum of TEN THOUSAND and no/100 Dollars ($10,000), 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, including but not limited to any hospital, medical, insurance, Medicare or Medicaid liens, workers compensation, 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 Claimant now has or may hereafter have, whether known or unknown, arising out of the Activities, admitted or suffered as of, or related to, the Claim or Activities. 2. The City shall make payment by three (3) separate checks. One check shall be made by check payable to "Eva Montez and her attorney Fred Bowers" in the amount of Seventy One Thousand Six Hundred Twenty and no 100ths Dollars ($71,620.00). The second check will be made payable to ACS Recovery Service in the amount of Seventeen Thousand and no 100ths Dollars ($17,000.00). The third check will be made payable to AmeriBen in the amount of Three Hundred Thirty and no 100ths Dollars ($330.00). These checks will be sent to Plaintiff's attorney after this Settlement Agreement is signed by all parties. 3. Claimant hereby agrees to pay any outstanding liens, claims, or rights of subrogation that may now or hereafter exist arising out of or relating to this occurrence, other than the amount paid by the City to ACS Recovery Services and AmeriBen as referenced in paragraph 2. 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, 2 r . 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. Claimant hereby declares that she 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. 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 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 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, 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, 3 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. 7. Claimant hereby represents and warrants that she, and she 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 she 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 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. 8. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the Claimant, Releasees, and her heirs, 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 Claimant assumes 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. R 17. Claimant, 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 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. 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. Each party further 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. 20. 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. 21. The parties agree that after payment has been delivered to the Claimant's attorney that the Claimant's attorney will sign the attached "Agreed Motion to Dismiss" which is attached hereto and incorporated herein and labeled Exhibit "A". 101 day of ae-c4-enikV,-2013. EXECUTED this % "" y CLAIMANT: EVA MONTEZ STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared EVA MONTEZ, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed expressed. for the purposes and consideration therein A4a-4\- 110 SUSM =S�Wsw otary Public TIn_Nobly PubNc, y Commission expires: �jl Ll CommWW Eow 07-1M14 CITY OF LUBBOCK By: G?X1. ROBERTSON, Mayor 7