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HomeMy WebLinkAbout1997-138Yapn Settlement Ordmce doe ORDINANCE NO `7 7 " 1.34? AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT IN THE MATTER OF YAPIT V CITY OF DENTON, TEXAS, AUTHORIZING THE EXPENDITURE OF BUDGETED FUNDS IN AN AMOUNT NOT TO EXCEED $10,229 11, AND DECLARING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager is hereby authorized to execute a Compromise Settlement Agreement in the matter of YYa it v City of Denton, providing for the settlement and compromise of the litigation now pending between and among the parties in the 362nd District Court, Denton County, Texas, Cause No 95-40381-362, in substantial accordance with the terms of the proposed Compromise Settlement Agreement attached hereto as Exhibit A SECTION II That the City Manager, with the concurrence and approval of the City Attorney, is hereby authorized to alter the form of the proposed Compromise Settlement Agreement, attached hereto as Exhibit A, as necessary to accomplish the substantive goals of said document, and as necessary to secure agreement among the parties and approval by the Court in which the case is currently pending SECTION III That the City Council hereby authorizes the expenditure of budgeted funds in an amount not to exceed $10,229 11 in furtherance of this settlement SECTION IV That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this, the �07- day of 11997 S;4�t97iU..d-CQ.-•. JACICIIIeLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY PAGE 2 NO 95-40381-362 MARY ALICE YAPIT, § IN THE DISTRICT COURT Plaintiff § VS § OF DENTON COUNTY, TEXAS CITY OF DENTON, § Defendant COMPROMISE SETTLEMENT § 362nd JUDICIAL DISTRICT & RELEASE OF ALL CLAIMS KNOW ALL MEN BY THREE PRESENTS That it is agreed by and between PLAINTIFF, Mary Alice Yaprt, and the RELEASED PARTY identified as the City of Denton, (Defendant) and its past, present, and future officers, elected officials, employees, agents, and attorneys (all in both their official and individual capacities and that respective insurers, and those in privity with any of them, as follows. I The RELEASED PARTY will pay to PLAINTIFF the total aggregate sum of Twelve Thousand Throe Hundred Forty -throe Dollars and Eighty-six Cents ($12,343go ($2,11475 already paid by the RELEASED PARTY), the recapt and sufficiency of which is hereby acknowledged 2 For and in consideration of said payment, PLAINTIFF, Mary Alice Yaprt, hereby fully releases, discharges, and acquits the RELEASED PARTY, from, and agrees that the sum so paid shall be in full and final satisfaction and comprormse of all actions, causes of action, claim (including subrogation claims, claims for contribution or indemnity as to money paid in connection with dus settlement, and demands, on account of or in any way growing out of any and all negligence, intentional misconduct, violation of Constitutional or statutory rights, conspiracies, breach of any duty of good faith and fair dealing, death, personal injuries, damage to reputation, pam and suffering, grief, bereavement, loss of consortium, loss of companionship, damage to SETTLEMENT AGREEMENT —Page 1 familial relabonslup, mental anguish, psychic injury, loss of earning capacity, loss of household services, loss of wages, loss of profits, loss of money, damage to property, taking of property, attorney's fees, pro- and post judgment interest, and all other causes of action and damages whether known or unknown and whether heretofore asserted or not, owned or possessed by said PLAINTIFF against said RELEASED PARTY growing out of or in any way connected with a slip and fall at the Denton Municipal Swimming Pool, which occurred on or about June 21, 1993, all as more fully described in the pleadings on file herein, to which reference is made for morecomplete description; any events or litigation connected with or growing out of said accident or this settlement; or any event which occurred prior to the date of this settlement. PLAINTIFF does hereby agree to indemnify and save harmless the said RELEASED PARTY of and from all fiu*a claims, demands, costs, or expenses wising out of any mjunes and damages sustained by PLAINTIFF or by any of he respective natural or adoptive family members or relatives, as a result of said slip and fall and Denton Municipal Swimming Pool, any of the events connected with, or growing out of, said accident or this settlement, or any event which occurred prior to the date of this settlement 3 PLAINTIFF understands and agrees that the amount paid under this agreement is in full satisfaction of all m unes and damages arising on account of the above described events and that she will receive no further sums of money therefrom PLAINTIFF agrees to not assert or prosecute any further claims or lawsuits therefore against anyone whomsoever, whether or not herem or otherwise named, described or identified Any and all claims against parties not specifically released herem, if any, are hereby assigned in full to the parties hereby released 4 Further, PLAINTIFF expressly warrants that there are no outstanding unpaid hospital liens, medical insurance subrogation claims, or property damage subrogation claims and it is expressly understood and agreed that PLAINTIFF has already paid or will pay out of the SETTLEMENT AGREEMENT — Page 2 aforementioned sum of Twelve Thousand Three Hundred Forty-three Dollars and Eighty-six Cents ($12,343 86) all property damages and medical, doctors' and hospital charges received in the past or to be incurred in the future and that PLAINTIFF will defend, indemnify, and hold harmless the said RELEASED PARTY, of and from the payment of such subrogation clam and hospital liens (especially with reference to any liens under the Texas Hospital Lien Law) 5 PLAINTIFF expressly warrants that her spouse, if she has one, has not suffered any loss of consortium as a result of the events in question or PLAINTIFF'S alleged mjunes and damages PLAINTIFF also expressly wanarita that no member of her family has suffered any psychic mJury, mental anguish and/or damage to the familial relationship as a result of the events in question or as a result of PLAINTIFF'S alleged damages and mlunes. PLAINTIFF agrees to defend, hold harmless and hmdermmfy the RELEASED PARTY from the payment, and for the defense, including, expenses, and reasonable attorney', foes, of any and all such claims for loss of consortium, psychic mjury, mental anguish and/or damage to the familial relationship 6 PLAINTIFF hereby represents and warrants to the RELEASED PARTY and to the Court that no promises, representations or agreements not set out herein have been made to her, that this Compromise Settlement & Release of All Claims is executed without reliance upon any statement or representation of any person or parties released or their representatives, concerning the nature and extent of the injuries, damages and/or legal liability therefore, that acceptance of the consideration set forth herein is a full accord and satisfaction of a disputed claim, which is mcapable of being exactly determined, and for which liability is expressly denied, and that this Compromise Settlement & Release of All Claims is made of her own free will and accord after consulting with and acting upon the advice of her attorney 7 FOR THE SAME CONSIDERATION, it is agreed that the above -styled suit will be dismissed with prejudice to refiling the same, and that costs of court will be taxed to the party SETTLEMENT AGREEMENT — Page 3 incurring the same 8 Although originally drafted by attorneys for the RELEASED PARTY, this Compromise Settlement & Release of All Clam is a contract which is the product of negotiations between the parties and attorneys for the parties and which shall, in the event of any dispute over its meaning or application, be mterpmted furly and reasonably, and neither more strongly for or against either party This document contains the entire agreement of the, parties hereto THE PROVISIONS OF THIS COMPROMISE SETTLEMENT & RELEASE OF ALL CLAIMS ARE CONTRACTUAL AND NOT MERE RECITALS. WITNESS OUR HANDS this � day of 1997 APPROVED Qa14, Ct 8c6l— Jean tC Robb Attorney for PLAINTIFF - Jerry E Drake, Jr Attorney for DEFEND9N CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER SETTLEMENT AGREEMENT — Page 4 THE STATE OF TEXAS COUNTY OF DENTON This mstri nient was acknowledged before I 1997, by Mary Alice Yapit f MARYANNJOHNSON' NotaryPuhlic,Slateofl�ea MY Comm Etpiresl/14/87 My Commission Expires THE STATE OF TEXAS *11IJZIf11I:1U111 iN This inshumait was acknowledged beforo me on the 1997, by Ted Benavides My Commission Expires a.sealement agreement ANN FORSYTHE 100 Notary Public, State of Texas 8 d � My Commission Expires 05-09-1888 IWS 00,=000O00000000000000000 SETTLEMENT AGREEMENT — Page 5