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HomeMy WebLinkAboutResolution - 2009-R0179 - Compromise Settlement Agreement & Release Of All Claims - Martina Garcia - 05/14/2009Resolution No. 2009—Ro179 May 14, 2009 Item No. 5.2 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 Compromise Settlement Agreement and Release of All Claims with Martina Garcia. 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 14th day of May - el �/ TOM MARTIN, MAYOR ATTEST: Rebecta Garza, City Secretary APPROVED AS 1 O CONTENT: Lenn urn auld, City Manager APPROVED AS TO FORM: J %sell, Assistant City Attorney vw/CCD©CS/Res. Garcia Settlement Agrmt May 8, 2009 Resolution No. 2009-80179 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 ("the City"), and Martina Garcia, the ("Claimant".) RECITALS WHEREAS, on or about December 19, 2008, Claimant's property was damaged by water when a pipe burst; and WHEREAS, the Claimant asserts that the City failed to turn off the water at her residence when she requested it; and WHEREAS, the Claimant alleges that the City of Lubbock was negligent in failing to turn off the water when requested; 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 SEVENTY-EIGHT THOUSAND, EIGHT HUNDRED FORTY-NINE AND 151100 DOLLARS ($78,849.15), 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, 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 this incident, admitted or suffered as of, or related to this incident, unless otherwise specified in this Settlement Agreement. 2. Payments in satisfaction of this Settlement Agreement shall be made in the following manner: a. by check payable to "Martina Garcia" in the amount of TWENTY- THREE THOUSAND ONE -HUNDRED TWELVE DOLLARS AND 39/100 ($23,112.39), within three (3) business days after this Agreement is signed by all parties; b. the City will pay Hochheim Prairie Insurance Company the amount of THREE THOUSAND FORTY-SIX AND 82/100 DOLLARS ($3,046.82), for water extraction; C. the City will pay Air Pro Air Conditioning and Heating the amount of TWO HUNDRED THIRTY-SIX DOLLARS AND 16/100 DOLLARS ($236.16), for plumbing repair; d. the City will absorb the cost it has already paid Claimant for living expenses in the amount of THREE THOUSAND SIX HUNDRED SIXTY-SEVEN AND 451100 DOLLARS ($3,667.45); 2 e. the City will absorb the cost it paid to Grimes & Associates for mold testing in the amount of TWO THOUSAND ONE HUNDRED NINETY- FIVE AND NO/100 DOLLARS ($2,195.00); and f. the City will pay Claimant FORTY-SIX THOUSAND FIVE HUNDRED NINETY-ONE AND 33/100 DOLLARS $45,591.33, for purchase of Lot 3, Block 4, Riceland Addition, an addition to the City of Lubbock, Texas, otherwise known as 3318 Jarvis Avenue, along with all structures affixed to, or located thereupon ("Real Property"). The purchase shall include the structure, land and all fixtures attached thereto. Payment will be made after all appropriate transactional documents have been signed for the sale of the "Real Property" 3. After the sale of the Real Property is completed, Claimant will have thirty (30) days to remove any personal property. However, Claimant shall not have the right to remove any fixtures without written consent of the City. 4. 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 except as otherwise stated in this Settlement Agreement. 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 3 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. 6. The terms of this Settlement Agreement shall inure to the benefit of, and be binding upon, the Claimant, Releasees, and their heirs, legal representatives, successors or assigns. 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. n 8. All signatories to this Settlement Agreement hereby warrant that they have the authority to execute this Settlement Agreement and bind the respective parties. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 5 EXECUTED this STATE OF TEXAS § COUNTY OF LUBBOCK § day of 1,4 v , 2009. CLAIMANT: MARTINA GARCIA Before me, the undersigned authority, personally appeared MARTINA GARCIA, 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&7ROSE HARDY Styeof rom ( C"rftsimdes 4-3-2010 f Notdy Public My Commission expires: CITY OF LUBBOCK By:_ 1�►''' e'oll� Y -- TOM MARTIN, MAYOR on