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HomeMy WebLinkAboutResolution - 2017-R0160 - Release Of All Claims With Leonard Valderaz - 04/27/2017Resolution No.2017-R0160 Item No.6.24 April 27, 2017 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 with Leonard Valderaz,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 April 27, 2017 . ATTEST: <AtjUdAJAd^ Rebacca Garza,City Secreta APPROVED AS TO CONTENT: <e Scott Snider,Assistant City Manager APPROVED AS TO FORM: [s^jj-u-m ' •Jeff Hartsell,Chief Litigation Attorney vwxcdocs/RES.Agrmt-Valderaz,Leonard April 3,2017 DANIEL M.POPE,MAYOR Resolution No. 2017-RO160 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 Leonard Valderaz, ("Claimant"). RECITALS WHEREAS, on or about September 13, 2016, Claimant was involved in a motor vehicle accident with a City of Lubbock solid waste truck at or about the 3400 block of East 19a' Street; and WHEREAS, the Claimant alleges that the driver of the solid waste truck was negligent in operating his vehicle; and WHEREAS, Claimant asserts he was injured in this accident and had to undergo surgery on September 14, 2016 for a fractured tibia which necessitated nine (9) screws being placed in the joint; and WHEREAS, the City and Claimant desire 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 SIXTY THOUSAND and No/100 Dollars ($160,000.00), 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 from the above -referenced incident. 2. Claimant hereby agrees that he is 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, liens from his health care insurer, Blue Cross and Blue Shield. 3. The City agrees to make payment after this Settlement Agreement is executed by all parties. The City will issue a check payable to "Leonard Valderaz and Fargason, Booth, St. Clair, Richards & Wilkins, L.L.P." in the amount of $160,000.00. Further, the parties agree and intend that all of the sums and payments made pursuant to this Agreement constitute damages on account of personal injury or sickness in a case involving physical injury or sickness with the meaning of §§ 130(c) and 104(a)(2) of the Internal Revenue Code of 1986, as amended. 4. This City agrees to pay all costs of mediation. 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. Claimant hereby declares OA 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. 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 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. 7. 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 resulting from the breach of this Settlement Agreement, whether taxable or otherwise. 8. 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 3 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 brought by, through or under claimant, 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. 9. 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. 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. 4 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 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. 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. EXECUTED this 27th day of April , 2017. i' UY / LqONARD VALDERAZV 5 STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, personally appeared LEONARD VALDERAZ, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that executed the same for the purposes and consideration therein expressed. ? �•'�c LCNG•Y!N CHANG My Notary ID # 125283879 Expires June 18, 2017 NOt 1C, St =oexas CITY OF LUBBOCK: i By: DANIEL M. POP , Mayor 31