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1996-191J \~PDOCS\ORD\COHAGREL ORD ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AND AUTHORIZ- ING THE CITY MANAGER TO EXECUTE A COMPROMISE, SETTLEMENT AND RELEASE OF ALL CLAIMS IN THE MATTER OF COHAGEN. ET AL V. CITY OF DENTON. TEXAS; AUTHORIZING PAYMENT OF $21,805 50 TO THE PLAINTIFFS TO CONSUMMATE THE SETTLEMENT; 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 and Release of All Claims in the matter of Coha~en. et al v. C~tv of Denton, providing for the settlement and compromlse of the litigation now pending between the partles in the 211th District Court, Denton County, Texas, Cause No. 94-50367-367, and payment in the amount of Twenty-one Thousand Eight Hundred F~ve Dollars and Fifty Cents ($21,805.50), in accordance with the terms of the Compromlse, Settlement and Release of All Claims, a copy of which is attached hereto SECTION II. That thls ordinance shall become effective Immediately upon its passage and approval PASSED AND APPROVED this the /£~day of~, 1996. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM. HERBERT L. PROUTY, CITY ATTORNEY BY: CITY OF DENTON, TEXAS MUNICIPAL BUILDING · DENTON, TEXAS 76201 · TELEPHONE (817) 566-8200 Off~ce of C~ty Attorney October 15, 1996 Mr. Chris Raesz, Attorney By Hand Delivery Philips, Hopkins, Eames, Shelton, Cobb & Perr~tt 525 North Locust Street Denton, Texas 76201 Re: Cause No 94-50367-367 C0ha~en. et al v. C~tv of Denton Transmittal of Settlement Documents / D~sm~ssal Order Dear Mr. Raesz: Enclosed herewith please find a file-marked copy of the Joint Motion to Dlsmlss with Prejudice, as well as a file-marked copy of the Compromlse Settlement and Release of All Claims in the above numbered and entitled cause. I presented the motion to Judge Shipman earlier th~s afternoon Judge Shipman s~gned the Order Of Dismissal, a conformed copy of which is enclosed herewith. This is also to confirm that I hand-delivered City of Denton check #1442 in the amount of $21,805.50 to you yesterday, in exchange for the fully executed settlement documents, representing payment of the agreed settlement amount. We are pleased that a settlement could be reached regarding this case. Should you have any questions, please advise. Sincerely, / / ~ Michael S Copeland Assistant City Attorney MSC/cd Enclosures pc: Ted Benavldes, c~ty Manager Jennifer Walters, City Secretary (w/enclosures) Ron Clark, Wolfe, Clark, Henderson & Tldwell (w/enclosures) Tracy Kunkel, Court Clerk J \WPDOCS\COR\RAESZ LET "Dedicated to Quahty Ser~,tce" NO. 94-50367-367 JO ANN COHAGEN, ~nd~vldually, § IN THE DISTRICT COURT RICKYE EARL COLEMAN and § PATRICIA PENNINGTON, Executors of § the Estate of Earl Coleman, § Plmnt~ffs § § OF DENTON COUNTY, TEXAS v § THE CITY OF DENTON, § Defendant § 211TH JUDICIAL DISTRICT COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS KNOW ALL MEN BY THESE PRESENTS That ~t ~s agreed by and between Plaintiffs, JO ANN COHAGEN, Ind~wdually, and RICKYE EARL COLEMAN and PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, and CITY OF DENTON, Defendant, and ~ts past, present, and future officers, elected officials, employees, agents, and attorneys (all in both their official and ~nd~wdual capacities), and their respective insurers, and those in pr~vlty with any of them, as follows 1 The CITY OF DENTON wall pay to Plaintiffs the total aggregate sum of TWENTY-ONE THOUSAND EIGHT HUNDRED FIVE AND 50/100 DOLLARS ($21,805 50) (of which amount $11,308 50 represents past due rent prewously tendered) the receipt and sufficiency of which is hereby acknowledged 2 For and m cons~deratlon of smd payment and the execution of this document, Pla~ntdfs hereby fully release, d~scharge, and acqmt the CITY OF DENTON from, and agree COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 1 that the sum so paid and the execution of this document shall be in full and final satisfaction and compromise of all actions, causes of action, claims (including subrogation claims and claims for contribution or indemnity as to money paid m connection with this settlement), and demands, on account of or in any way growing out of any and all negligence, intentional misconduct, molatlon of Constitutional or statutory rights, conspiracies, breach of any duty of good faith and fair dealing, fraud, breach of contract, death, personal injuries, damage to reputation, pain and suffering, grief, bereavement, loss of consortium, loss of companionship, damage to familial relationship, mental anguish, psychic injury, loss of earning capacity, loss of household services, loss of rent, loss of profits, loss of money, damage to property, taking of property, attorney's fees, pre- 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 any of said Plaintiffs against said Defendant growing out of or ~n any way connected with any of the leases of Plaintiffs' property by the City, the renovation of Plaintiffs' property by the City, the termination of the lease of Plaintiffs' property by the City, and the move from Plaintiffs' property by the City, which occurred on or about 1981 through 1994, all as more fully described in the pleadings on file herein, to whmh reference is made for more complete description, any events or lmgatlon connected with or growing out of said events or this settlement, or any event which occurred prior to the date of this settlement regarding the events set forth more fully in the pleadings of this matter Plaintiffs each do hereby agree to lndemmfy and save harmless the said CITY OF DENTON of and from all further claims, demands, costs, or expenses arising out of any injuries and damages sustained by Plaintiffs or by any of their respective natural or adoptive family members or relatives, as a result of any lease of Plaintiffs' property by the COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 2 C~ty, the renovatmn of Plmntlffs' property by the C~ty, the termination of the lease of Plaintiffs' property by the City, and the move from Pla~nuffs' property by the City, any of the events connected w~th, or growing out of, said events or th~s settlement, or any event set forth more fully ~n the pleadings on file m thts matter which occurred prior to the date of th~s settlement 3 For and ~n consideration of the execution of th~s document, Defendant hereby fully releases, discharges, and acqmts Plmnt~ffs from, and agree that the execution of th~s document shall be m full and final satisfaction and compromise of all acnons, causes of action, claims and demands, on account of or ~n any way growing out of any and all neghgence, intentional m~sconduct, vlolat~on of Conmtutlonal or statutory rights, conspiracies, breach of any duty of good faith and fair deahng, fraud, breach of contract, loss of profits, loss of money, damage to property, taking of property, attorney's fees, pm- and post-judgment ~nterest, and all other causes of action and damages whether known or unknown and whether heretofore asserted or not, owned or possessed by smd Defendant against any of said Plmnt~ffs growing out of or ~n any way connected w~th any of the leases of Plmntlffs' property by the C~ty, the renovation ol Plmntfffs' property by the C~ty, the tenmnat~on of the lease of Plmntfffs' property by the C~ty, and the move from Plmntlffs' property by the C~ty, which occurred on or about 1981 through 1994, all as more fully described in the pleadings on file here~n, to which reference ~s made for more complete description, any events or ht~gat~on connected w~th or growing out of smd events or th~s settlement, or any event which occurred prior to the date of this settlement regarding the events set forth more fully m the pleadings of th~s matter Defendant hereby agrees to indemnify and save harmless, to the extent allowed by law, the Plmnt~ffs of and from all further clmms, demands, costs, or expenses arising out of any ~njunes and damages alleged to be sustmned by COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 3 Defendant as a result of any lease of Plaintiffs' property by the City, the renovaUon of Plaintiffs' property by the C~ty, the termination of the lease of Plalnuffs' property by the C~ty, and the move from Plaintiffs' property by the Cay, any of the events connected w~th, or growing out of, smd events or th~s settlement, or any event set forth more fully ~n the pleadings on file ~n this matter which occurred prmr to the date of this settlement 4 Plmntfffs and Defendant each understand and agree that the amount paid and other cons~deraUon under th~s agreement ~s in full satisfaction of all ~njurles and damages arising on account of the above described events and that they wall receive no further sums of money or other cons~deranon therefrom Plaintiffs and Defendant each agree to not assert or prosecute any further claims or lawsmts therefore against anyone whomsoever, whether or not hereto or otherwise named, described or ~dentaf~ed Any and all clmms against pames not specifically released here~n, if any, are hereby assigned ~n full to the pames hereby released 5 Further, each Plmntlff and Defendant expressly warrants that there are no outstanding subrogation clmms, and ~t ~s expressly understood and agreed that Plmntiffs have already prod or will pay out of the aforementioned sum of TWENTY-ONE THOUSAND EIGHT HUNDRED FIVE AND 50/100 DOLLARS ($21,805 50) all property damages received m the past or to be ~ncurred in the future and that Plmnt~ffs will each defend, ~ndemnlfy, and hold harmless the Defendam of and from the payment of such subrogatmn clmms Further, Defendant expressly warrants that there am no outstanding subrogauon clmms on their behalf and all expenses ~ncurred by Defendant have been prod by Defendant and that Defendant wall defend, mdemmfy and hold harmless Plaintiffs of and from payment of any and all such claims COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 4 6 Plaintiffs each expressly warrant that their spouses, if they have one, have not suffered any loss of consortmm as a result of the events m question or Plaintiffs' alleged ~njunes and damages Plaintiffs each also expressly warrant that no member of their famdy has suffered any psychic mjury, mental anguish and/or damage to the famthal relationship as a result of the events in question or as a result of Plamt~ffs' alleged damages and ~njur~es Plaintiffs each agree to defend, hold harmless and lndemmfy the CITY OF DENTON from the payment, and for the defense, including, expenses, and reasonable attorney's fees, of any and all such claims for loss of consortmm, psychic injury, mental anguish and/or damage to the familial relationship 7 Plamtdfs and Defendant each hereby represent and warrant to the other party(s) and to the Court that no promises, representations or agreements not set out hereto have been made to them, that this Compromise Settlement and Release of All Claims is executed without rehance upon any statement or representation of any person or part,es released or their representatives, concernmg the nature and extent of the injuries, damages and/or legal hablhty therefore, that acceptance of the consideration set forth here~n 1S a full accord and satisfaction of a disputed claim, wfuch ~s ~ncapable of being exactly determined, and for wfuch habd~ty ~s expressly demed, and that th~s Compromise Settlement and Release of All Claims ~s made of their own free will and accord after consulting with and acting upon the advice of their attorney 8 FOR THE SAME CONSIDERATION, it ~s agreed that all claims ~n the above styled su~t w~ll be d~smlssed w~th prejudice to reffl~ng the same, and that costs of court wall be taxed to the party recurring the same 9 Although orlgwally typed at the off~ce of attorneys for the CITY OF DENTON, th~s Compromise Settlement and Release of All Clatms is a contract which ~s the product of COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 5 negotiations between the parties and attorneys for the parties and which shall, in the event of any dispute over its meamng or apphcation, be interpreted fairly and reasonably, and neither more strongly for or against either party This document contains the entire agreement of the pames hereto THE PROVISIONS OF THIS COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS ARE CONTRACTUAL AND NOT MERE RECITALS WITNESS OUR HANDS flus [0 day of /~[~' , 1996 N COHAGEN / ~eKYI~ EARL C~LEMAN PATRICIA PENNINGTON ~ APPROVED PHILIPS, HOPKINS, EAMES, SHELTON, COBB & PERRITT, P C By CHRIS RAE ATTORNEYS FOR PL INTIFFS DEFENDANT CITY OF DENTON, TEXAS TED BENAVIDES, City Manager COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 6 APPROVED RONALD H CLARK (vodk ~~'''''°''''' I~t-j) Attorney for Defendant HERBERT L PROUTY, City Attorney By )~~I~Q THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledgedu~..wbef re me on the [0 day of ~,_ ,~1~'.~ , 1996, by JO ANN COH~qEN ~. ' ~ ~ Notary. Public, State ~ Texas ~1~ ~tmn~lm,~ao.~ ~ $otary's mrlntedName" THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged b¢le me on[ th/4 ~_~__ day of f)'/ll~[2~.~ , 1996, by RICKYi~ EAP~ ~OLEMAN ~ ?~" } NXO~.y Public, -State oi~Te.~,,a's,~ Notary s Primed Name My Commlss,on Expires COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 7 THE STATE OF TEXAS § COUNTY OF DENTON § ., This instrument was acknowledged before me on the ? ~ day of d/~_d , 1996, by PATRICIA PENNINGTON ? ~~ ~'~' 6~ry mubh~dState of Texas E~ NO~U's Printed Name My Co~lssmn Expires THE STATE OF TEXAS { cougar Thls Instrument was ac~owledged before me on the 10~5 day of 0C~ h ,1996, by TED BENAVIDES, C~ty Manager of the C~ty of Denton, Texas,  ~ta~bhc, Stat~ of Texas t [~~ PUBLIC STATE OF TE~S ~ ~tau's Printed Name ~o~'My C~mmmm Exp*re~ Feb 19 1907 ~ My Co~ss~on Expires ~]i~[QO COMPROMISE SETTLEMENT AND RELEASE OF ALL CLAIMS PAGE 8 NO. 94-5036%367 r ~ [t .......... JO ANN COHAGEN, individually, § IN ~E ~S'l[flll~ I~O~R, T RICKYE EARL COLEMAN and § PATRICIA PENNINGTON, Executors of § the Estate of Earl Coleman, § Plaintiffs § ...... § OF DENTON COUNTY, TEXAS v § THE CITY OF DENTON, § Defendant § 211TH JUDICIAL DISTRICT JOINT MOTION TO DISMISS WITH PREJUDICE TO THE HONORABLE JUDGE OF SAID COURT Phuntfffs, JO ANN COHAGEN, Indlwdually, and RICKYE EARL COLEMAN and PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, and Defendant CITY OF DENTON, move tins Court to d~smlss w~th prejudice all of their clanns and causes of action against both Defendant and Plaintiffs, for the reason that all d~sputes between these pames have been resolved Such resolution ~s not an admission of habfi~ty on the part of any party, but ~s expressly made m order to buy peace and avoid the cost, uncertainty and expense of lmgatton WHEREFORE, PREMISES CONSIDERED, Plaintiffs JO ANN COHAGEN, Ind~wdually and RICKYE EARL COLEMAN, and PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, and Defendant CITY OF DENTON, request that thts Court enter an Order d~sm~ssmg w~th ptejud~ce all clauns of Plaintiffs against Defendant, CITY OF DENTON, and all clmms of Defendant CITY OF DENTON against Plaintiffs, JO ANN IOINT MOTION TO DISMISS WITH PREIUDICE PAGE 1 COHAGEN, Ind~wdually and RICKYE EARL COLEMAN, and PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, w~th costs to be taxed to the party ~ncurrmg the same Respectfully submitted, PHILIPS, HOPKINS, EAMES, SHELTON, COBB & PERRITT, P C 525 North Locust Street P O Box 2027 Denton, Texas 76202-2027 (817) 566-7010 Office (817) 898-0502 Facsumle CHRIS RAESZ State Bar No 16460150 ATTORNEYS FOR PLAINTIFFS WOLFE, CLARK & HENDERSON, L L P 123 N Crockett, State 100 Sherman, Texas 75090 RONALD H CLARK (~ State Bar No 04298100 ATTORNEY FOR DEFENDANT JOINT MOTION TO DISMISS WITH PREJUDICE PAGE 2 NO. 94-50367-367 .~ ~ (~ -- - ...... JO ANN COHAGEN, individually, § IN TI~ I~C'1~¥~6U~~T RICKYE EARL COLEMAN and § .~, ~ L PATRICIA PENNINGTON, Executors of § ~ '" the Estate of Earl Coleman, § _-- ~u~ ( Plaintiffs § ~'( -- § OF DENTON COUNTY, TEXAS v § THE CITY OF DENTON, § Defendant § 211TH JUDICIAL DISTRICT ORDER OF DISMISSAL On th~s day came on to be considered the Jomt Motion to Dmmlss with Prejudme m the above entitled and numbered cause The Court, hawng considered the sa~d Motion, and the pleadings and papers on file m tim case, m of the opmaon that said Motion should be granted It Is therefore ORDERED that the Court hereby dmmmses w~th prejudice all claLrns of Plamtfffs, JO ANN COHAGEN, Individually, and RICKYE EARL COLEMAN, and PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, against Defendant, CITY OF DENTON, wluch were asserted or wbach could have been asserted m the above styled and numbered cause, or wluch arise d~rectly out of the events set forth ~n the above styled and numbered cause, whether or not asserted berem It ~s further ORDERED that the Court hereby dmmlsses w~th prejudme all clauns of Defendant, CITY OF DENTON, against Plamt~ffs, JO ANN COHAGEN, Ind~v~dually, and RICKYE EARL COLEMAN, and PATRICIA PENNINGTON, Executors of the Estate of EARL COLEMAN, whteh were asserted or whmh could have been asserted m the above styled and ORDER OF DISMISSAL PAGE 1 numbered cause, or wluch arise directly out of the events set forth m the above styled and numbered cause, whether or not asserted hereto It is further ORDERED that all costs hereto shall be prod by the party recurring the salne SIGNEDthls /~'- dayof ~' ,1996 JUDGE PRESIDING APPROVED AND AGREED TO Attorney for PlamUff4 RONAI.D H CLARK Attorney for Defendant ORDER OF DISMISSAL PAGE 2