Loading...
HomeMy WebLinkAbout2006-122ORDINANCE NO. ZD06 - 2 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING SETTLEMENT OF LITIGATION STYLED SHELDON BROMBERG V. CITY OF DENTON, CAUSE NO. 2005- 40017-362, CURRENTLY PENDING IN THE 362No DISTRICT COURT OF DENTON COUNTY; AUTHORIZING THE CITY MANAGER AND CITY ATTORNEYS TO ACT ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS, AND TO TAKE OTHER ACTIONS NECESSARY TO FINALIZE THE SETTLEMENT AND RELEASE OF CLAIMS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the Compromise Settlement and Release of All Claims attached hereto and made a part hereof, in litigation styled Sheldon Bromberg v. City of Denton, Cause No. 2005-40017-362, currently pending in the 362"d District Court of Denton County, Texas. SECTION 2. The Interim City Manager and City Attorneys are hereby authorized to act on the City's behalf in approving and executing any and all documents, and to take other actions necessary, to finalize the settlement and release of claims. SECTION 3. The Interim City Manager is hereby authorized to expend the funds in accordance with the settlement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. lzd PASSED AND APPROVED this the .Z — day of - Q d 2006. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY, copy CAUSE NO. 2005-40017-362 3 pal 4: p8 �Fkr �e0rx SHELDON BROMBERG, § IN THE DISTRICT COURT Plaintiff § F''ur r V. § 362ND JUDICIAL DISTRICT CITY OF DENTON, TEXAS, § Defendant § OF DENTON COUNTY, TEXAS COWRONIISE SETTLEMENT & RELEASE OF ALL CLAIMS KNOW ALL MEN BY THESE PRESENTS: That it is agreed by and between PLAINTIFF, Sheldon Bromberg, and the RELEASED PARTY identified as the City of Denton, Texas (Defendant) and its past, present, and future officers, elected officials, employees, agents, and attorneys (all in both their official and individual capacities), and their respective insurers, and those in privity with any of them, as follows: Within 60 days of the execution of this settlement agreement, the RELEASED PARTY will remove the existing switch box from the Sherwood Mobile Home Park, which is on the real property located at 3750 Pockms Page Road, Denton, Texas, 76208 (the `property'), and install a rust -free flat plate type metal cover installed flush against the existing pad, and provide fill dirt and sod, if requested by PLAINTIFF, to allow PLAINTIFF to slope the surrounding soil up to near the height of the existing concrete pad. If such fill dirt and sod are requested, it is expressly agreed and understood that RELEASED PARTY makes no warranty with regard to the adequacy of the design or installation, or the impact that such fill may have upon drainage, and that PLAINTIFF assumes all responsibility for the design, and any impact that it may have upon drainage. To the extent that any of these activities require access outside the existing right-of-way or easements, PLAINTIFF hereby grants a temporary license to RELEASED PARTY to access the site and perform the actions set forth herein. Additionally, the RELEASED PARTY will pay to PLAINTIFF the total aggregate sum of one hundred and no/100 dollars ($100.00). In addition, the RELEASED PARTY agrees that — with respect to the Electric Easement at issue in this lawsuit entered into by the RELEASED PARTY and PLAINTIFF and recorded on COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS - PAGE I October 28, 2003 — the RELEASED PARTY will not locate an above -ground switch or add -on any other above -ground electrical components on the propert}; aside from normal maintenance on existing electrical components on the property, for so long as (1) PLAINTIFF owns the property; and (2) the use of the property does not change. PLAINTIFF and the RELEASED PARTY agree that this settlement agreement is not transferable, and that any subsequent purchaser of the property will not have standing to enforce the terms of this settlement agreement. Similarly, PLAINTIFF and the RELEASED PARTY agree that if any subsequent purchaser of the property elects to take legal action against the RELEASED PARTY for claims concerning the Electric Easement or claims growing out of or in any way connected with the incidents made the basis of this suit, as more fully described in the pleadings on file, PLAINTIFF will NOT and does not indemnify and will NOT and does not save harmless the RELEASED PARTY of and from all such claims, demands, costs, or expenses arising out of any injuries and damages sustained by any such subsequent purchaser of the property or by any of his successors, assigns, or respective natural or adoptive family members or relatives. For and in consideration of said payment and other valuable consideration stated herein, the receipt and sufficiency of which is hereby acknowledged, PLAINTIFF hereby fully releases, discharges, and acquits the RELEASED PARTY from all actions, causes of action, claims (including subrogation claims, claims for contribution or indemnity as to money paid in connection with this 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, damage to reputation, fraud, trespass, mental anguish, psychic injury, loss of wages, loss of profits, loss of money, damage to property, taking of property, attorney fees, pre- and post -judgment interest, and all other causes of action and damages whether known or unknown, related to the incidents in question, and whether heretofore asserted or not, owned or possessed by PLAINTIFF against RELEASED PARTY growing out of or in any way connected with the incidents made the basis of this suit, all as more fully described in the pleadings on file herein, to which references made for more complete description; any events or COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS -PAGE 2 litigation connected with or growing out of said incidents. PLAINTIFF hereby agrees to indemnify and save harmless the said RELEASED PARTY of and from all further claims, demands, costs, or expenses arising out of any injuries and damages sustained by PLAR4= or by any of his respective natural or adoptive family members or relatives, as a result of said incidents; any of the events connected with, or growing out of, said incidents. Claims for breach of this settlement agreement are not released by this settlement agreement. PLAINTIFF understands and agrees that this agreement is in full satisfaction of all injuries and damages of a disputed claim arising on account of the above described events, and that he will receive no further compensation therefrom. Further, neither this Agreement nor the consideration paid shall be construed as an admission of liability on the part of the RELEASED PARTY, by whom liability is expressly denied. PLAINTIFF agrees to not assert or prosecute any further claims or lawsuits against the RELEASED PARTY related to claims released, as described above. This release is intended to constitute a general release by PLAINTIFF of the RELEASED PARTY of all claims of any kind, known or unknown, related to the incidents in question. To the extent any claims or causes of action have not been released by this settlement agreement, PLAINTIFF hereby assigns those claims or causes of action to the RELEASED PARTY. For and in consideration of PLAINTIFF'S dismissal of this lawsuit and other valuable consideration stated herein, the receipt and sufficiency of which is hereby acknowledged, the RELEASED PARTY hereby fully releases, discharges, and acquits PLAINTIFF from any and all claims and/or causes of action and/or damages, whether known or unknown, related to the incidents in question, and whether heretofore asserted or not, owned or possessed by the RELEASED PARTY against PLAINTIFF growing out of or in any way connected with the incidents made the basis of this suit, all as more fully described in the pleadings on file herein, to which reference is made for more complete description; any events or litigation connected with or growing out of said incidents. The RELEASED PARTY hereby agrees to indemnify and save harmless the said PLAINTIFF of and from all further claims, demands, costs, or expenses arising out of any injuries COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS -PAGE 3 and damages sustained by the RELEASED PARTY as a result of said incidents; any of the events connected with, or growing out of, said incidents or this settlement. The RELEASED PARTY understands and agrees that this agreement is in full satisfaction of all injuries and damages of a disputed claim arising on account of the above described events, and that it will receive no further consideration therefrom. Further, neither this Agreement nor the consideration paid shall be construed as an admission of liability on the part of the PLAINTIFF, by whom liability is expressly denied. The RELEASED PARTY agrees to not assert or prosecute any finther claims or lawsuits against the PLAINTIFF related to claims released, as described above. This release is intended to constitute a general release by the RELEASED PARTY of PLAINTIFF of all claims of any kind, ]mown or unknown, related to the incidents in question. To the extent any claims or causes of action have not been released by this settlement agreement, the RELEASED PARTY hereby assigns those claims or causes of action to PLAINTIFF. Further, PLAINTIFF expressly warrants that there are no outstanding unpaid property damage subrogation claims and it is expressly understood and agreed that PLAINTIFF has already paid or will pay all property damages associated with the property in question, and that PLAINTIFF will defend, indemnify, and hold harmless the said RELEASED PARTY, of and from the payment of such subrogation claims. PLAINTIFF further represents and warrants that the law firm of Thompson & Knight LLP is the only counsel employed by him to represent him with regard to the aforementioned claim and with regard to the advisability of entering into this Agreement, and PLAINTIFF has been fully advised by said counsel regarding his rights and the execution of this Agreement. However, if there are any other attorneys who have been employed by PLAINTIFF in connection with claims arising from this suit, then PLAINTTFF shall be responsible for these fees or claims and PLAINTIFF shall INDEMNIFY, DEFEND, AND HOLD THE RELEASED PARTY HARMLESS for any such attorney fees or claims made by the other attorneys. PLAINTIFF expressly warrants that that no member of his family has suffered any psychic injury, mental anguish and/or damage to the familial relationship as a result of the events in question COMPROMISE S=LEMENT AND RELEASE OF ALL CLAIMS - PAGE 4 or as a result of PLAINTIFF'S alleged damages and injuries. PLAINTIFF agrees to defend, hold harmless and indemnify the RELEASED PARTY from the payment, and for the defense, including, expenses, and reasonable attorney fees, of any and all such claims for loss of consortium, psychic injury, mental anguish and/or damage to the familial relationship. 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 him; 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 therefor, that acceptance of the consideration set forth herein is a full accord and satisfaction of a disputed claim, which is incapable of being exactly determined, and for which liability is expressly denied, and that this Compromise Settlement & Release of All Claims is made of his own free will and accord after consulting with and acting upon the advice of his attorney. PLAINTIFF AND THE RELEASED PARTY RELEASE AND GIVE UP ANY CLAIM THAT EITHER HAS AGAINST THE OTHER RELATED TO THE INCIDENTS IN QUESTION. THE PARTIES UNDERSTAND AND AGREE THAT THIS IS A FULL AND FINAL GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT FOR ANY MATTER OR THING DESCRIBED OR REFERRED TO HEREIN. THE PARTIES AGREE THAT THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT MAY BE PLEADED AS AN ABSOLUTE AND FINAL BAR TO ANY AND ALL SUIT OR SUITS PENDING OR WINCH MAY HEREAFTER BE PENDING OR PROSECUTED BY PLAINTIFF OR THE RELEASED PARTY AGAINST THE OTHER, OR ANYONE CLAIMING BY, THROUGH, OR UNDER THE PARTIES, AND PLAINTIFF AND THE RELEASED PARTY AGREE TO BRING NO FURTHER ACTION OF ANY HIND AGAINST THE OTHER FOR DAMAGES ARISING FROM THE INCIDENT DESCRIBED ABOVE, AND PLAINTIFF FURTHER AGREES TO COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS - PAGES DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTY FROM ANY ACTION BROUGHT BY, THROUGH, OR UNDER PLAINTIFF, SEEKING TO RECOVER DAMAGES DIRECTLY OR DERIVED FROM THOSE DAMAGES OR CLAIMS THE PARTIES ARE CLAIMING AS A RESULT OF THIS INCIDENT. THIS OBLIGATION TO INDEMNIFY, DEFEND, AND HOLD HARMLESS IS BINDING UPON PLAINTIFF REGARDLESS OF THE CAUSE OF INJURIES OR DAMAGES COMPLAINED OF OR OF FAULT. IT IS SPECIFICALLY AGREED THAT PLAINTIFF SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE FOR ITS OWN NEGLIGENCE, IF ANY, AS WELL AS THE NEGLIGENCE, IF ANY, OF ANY OTHER PARTIES MENTIONED OR REFERRED TO IN THIS DOCUMENT, RELATING TO INJURIES WHICH RESULTED FROM THE INCIDENTS MADE THE BASIS OF THIS SUIT, FROM ANY CAUSE OF ACTION BROUGHT BY, THROUGH OR UNDER THE PARTIES. THE PARTIES FURTHER AGREE THAT THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS. AND FOR THE SAME CONSIDERATION, PLAINTIFF AND THE RELEASED PARTY SOLEMNLY STATE AND AFFIRM: THAT THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS NOT BEING MADE BECAUSE OF ANY PERSUASIVE STATEMENT OR REPRESENTATION BY ANYONE WHOMSOEVER OR FOR ANY REASON OTHER THAN THE PAYMENT AND CONSIDERATION STATED HEREIN, AND THAT THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS MADE BY THE PARTIES WITH FULL KNOWLEDGE THAT THE PARTIES, INJURIES MAY NOT BE FULLY UNDERSTOOD BY THE PARTIES AT THIS TIME, AND THAT NO RECOVERY ON ACCOUNT OF THE MATTERS DESCRIBED HEREIN MAY HEREAFTER BE HAD FROM ANYONE WHOMSOEVER. PLAINTIFF AGREES THAT THE MONEY PAID COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS -PAGE 6 FOR THIS GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS NO ADMISSION OF LIABILITY AND PLAINTIFF WILL NEVER CLAIM THAT IT IS. 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 incurring the same. If any provision of this Settlement Agreement is or may be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless survive and continue in full force and effect without being impaired or invalidated in any way. Although originally drafted by attorneys for the RELEASED PARTY, this Compromise Settlement & Release of All Claims 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 interpreted fairly and reasonably, and neither more strongly for or against either party. This document contains the entire agreement of the parties hereto and supersedes all prior written or oral agreements. This settlement agreement may not be amended, altered, modified or changed in any way except in writing signed by all the parties to this settlement agreement. This settlement agreement shall be governed and construed in accordance with the laws of the State of Texas, except that any conflict of law rule of that jurisdiction that may require reference to the laws of some other jurisdiction shall be disregarded. THE PROVISIONS OF THIS COMPROMISE SETTLEMENT & RELEASE OF ALL CLAIMS ARE CONTRACTUAL AND NOT MERE RECITALS. This agreement may be executed in identical counterparts or copies and/or on separated signature pages and/or by facsimile transmission, any or all of which when taken together shall be deemed an original for all purposes and all of which shall constitute one and the same agreement. COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS -PAGE) 04/16/2006 10:36 M Z14 36a 1lb1 mmmuN a KNIbm, VJF.V', VVL WITNESS OUR HANDS this } g day of THE STATE OF T SM& ) COUNTY OF� This instnmcnt was acknowledged before me on the 1�day of April, 20K by Sheldon Bromberg. My Commission Expires: bli Notary Puc-Stme of California City of Denton, Texas By. THE STATE OF TEXAS ) COUNTY OF Den thm ) ThismstrunePt was aclmowledged before me on thcday of Aprix o 2006, by th City of Denton, Texas. by Hxx. ay- d 6 tln My Commission Expires; CJY 1C a Q V1,fh bvv-, C� Notary lic-SmtoofTexas 1(,NeSTEPHANIE FORNotary PdAk SOIL. of TalusC.M.Epp: 02-19 20D9 COM?*OW SE SEnLLV' n AM RELEAM Of ALL CLAIMS.IA0E I STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) On 2006, before me ,�( ,L� i J l)` �� a Notary Public in and for said State, personally appeared SHELDON BROMBERG, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand JILL BRCUSARO Commissioni135NT2 i Rotary Public- Cafilomis Los Angelea County MyComm. ExPns Jun 7, 2006 Notary