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HomeMy WebLinkAboutResolution - 2012-R0448 - Compromise Settlement Agreement And Release Of All Claims - Robert Heinsch - 11/29/2012Resolution No. 2012-120448 November 29, 2012 Item No. 6-.11 RESOLUTION j 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. 2011-558,674, 237`x' District Court of Lubbock County, Texas, styled Robert S. Heinsch v. City of Lubbock, 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 November 29, 2012 ROORTSON, MAYOR ATTEST: Rebe a Garza, City Secre ry APPROVED AS TO CONTENT: Sam Medina, City Att rney vw:ccdocsfRES.Settlement Agrmt-Robert Reinsch November 12, 2012 Resolution No. 2012-Ra448 STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is enterein into by and� §etween the CITY OF LUBBOCK, TEXAS ("the City"), and ROBERT�N HELI-NSCH, ("the Claimant"). RECITALS WHEREAS, on or about October 23, 2009, Claimant was a pedestrian walking in a crosswalk when he was struck by a vehicle driven by a City of Lubbock employee, Ginger Hall; and WHEREAS, the Claimant alleges that the driver of the City vehicle was negligent in operating this vehicle; and WHEREAS, Claimant filed a claim with the City of Lubbock seeking damages and ultimately filed suit against the City for such damages; 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 of the sum of ONE HUNDRED THOUSAND and No/100 Dollars ($100,000.00), Claimant does hereto enter into this Settlement Agreement and does hereby release, acquit, and forever discharge Ginger Hall, the City of Lubbock, Texas, its respective predecessors, successors, assigns, owners, City Council, partners, members, PAGE 1 OF 7 CLAIMANT'S [WrIALS: 9—S-4— 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 Claimant now has or may hereafter have, whether known or unknown, arising from the motor vehicle accident on October 23, 2009, involving the City of Lubbock and its employee Ginger Hall. 2. Payment shall be made by check payable to Claimant's attorneys, "Sims, Hubbert -5 l ei and Wilson as attorneys for Robert Heinsch" 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 C6I*I91Iti-KA 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, 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 PAGE 2 OF 7 Ct,AIMANT'S IN]T[ALS: ws/k 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. 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, 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 PAGE 3 OF 7 CLAIMANT'S INITIALS: k4 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 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 his 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. PAGE 4 OF 7 CLAIMANT'S INITIALS, K-4 1 I. 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. 15. 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. 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 PAGE 5 OF 7 CLAIMANT'S INITIALS: 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 some 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. Upon payment of the ONE HUNDRED THOUSAND and No/l00 Dollars ($100,000.00) in monetary consideration set forth herein, the Claimant will dismiss his case against the City of Lubbock, Texas with prejudice. EXECUTED this _ 1 day of Q��2�n� 2012. FOR THE CLAIMANT: ROBERT &T&VfftHElN9CH STATE OF TEXAS § S )91W COUNTY OF LUBBOCK § PAGE 6 OF 7 CLAIMANT'S INITIALS: Before me, the undersigned authority, personally appeared ROBERT HEINSCH, 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. PAGE 7 OF 7 FOR THE CITY OF LUBB C . By: 0� C.WROBR MAYOR ATTEST: Rebe Ic Garza, City Secr t y CLAIMANT'S INITIALS: