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2003-363ORDINANCE NO. , J' - 3G,3 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS IN LITIGATION STYLED SANDY REESE BENIGNO & HARROLD ANTHONY BENIGNO V. CITY OF DENTON & BILLY RAY CRUTSINGER, CAUSE NO. 2002-60190-393, CURRENTLY PENDING IN THE 393RD DISTRICT COURT OF DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the Compromise Settlement Agreement and Release of All Claims in litigation styled Sandy Reese Benigno & Harrold Anthony Benigno v. City of Denton & Billy Ray Crutsinger, Cause Nol. 2002-60190-393, currently pending in the 393rd District Court of Denton County, Texas, a copy of which Settlement Agreement is attached hereto and incorporated by reference herein, and the City Manager or his designee is hereby authorized to execute said Settlement Agreement on behalf of the City. SECTION 2. The City Manager is hereby authorized to expend the funds in accordance with the attached Compromise Settlement Agreement and Release of All Claims. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the IIVL~ day of 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: k-) AP VED AS TO LEGAL FORM: HERBERT L. TTORNEY NO. 2002-60190-393 SANDY REESE BENIGNO AND § IN THE DISTRICT COURT HARROLD ANTHONY BENIGNO, § V. § 393RD JUDICIAL DISTRICT THE CITY OF DENTON AND § BILLY RAY CRUTSINGER § OF DENTON COUNTY, TEXAS COMPROMISE SETTLEMENT & RELEASE OF ALL CLAIMS KNOW ALL MEN BY THESE PRESENTS: That it is agreed by and between PLAINTIFFS, Sandy Reese Benigno and Harold Anthony Benigno and the RELEASED PARTIES 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, and Billy Ray Crutsinger (Defendant) and his family members, employees, agents, insurers, and attorneys, and those in privity with any of them, as follows: The RELEASED PARTIES will pay to PLAINTIFFS the total aggregate sum of thirty five thousand and no/100 dollars ($35,000.00), the receipt and sufficiency of which is hereby aclmowledged. For and in consideration of said payment, PLAINTIFFS, Sandy Reese Benigno and Harold Anthony Benigno hereby fully release, discharge, and acquit the RELEASED PARTIES, from, and agree that the sum so paid shall be in full and final satisfaction and compromise o£ 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, 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 wages, 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 any of said RELEASED PARTIES growing out of or in any way connected with: an automobile collision that occurred on April 1, 2002 in Denton, Texas, 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 incident or this settlement; or any event which occurred prior to the date of this settlement. PLAINTIFFS each do hereby agree to indemnify and save harmless the said RELEASED PARTIES of and from all further claims, demands, costs, or expenses arising out of any injuries and damages sustained by Sandy Reese Benign and Harold Anthony Benigno or by any of their respective natural or adoptive family members or relatives, as a result of. said automobile collision that occurred on April 1, 2002 in Denton, Texas; any of the events connected with, or growing out of, said incident or this settlement; or any event which occurred prior to the date of this settlement. PLAINTIFFS each understand and agree that the amount paid under this agreement is in full satisfaction of all injuries and damages arising on account of the above described events and that they will receive no further sums of money therefrom. Further, each 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 PLAINTIFFS have already paid or will pay out of the Page 2 aforementioned sum of thirty five thousand and no/100 dollars ($35,000.00) all property damages and medical, doctors' and hospital charges received in the past or to be incurred in the future and that PLAINTIFFS will each defend, indemnify, and hold harmless the said RELEASED PARTIES, of and from the payment of such subrogation claims and hospital liens (especially with reference to any liens under the Texas Hospital Lien Law). We, Sandy Reese Benign and Harold Anthony Benigno, PLAINTIFFS, further represent and warrant that Hank Anderson is the only counsel employed by us to represent us with regard to the aforementioned claim and with regard to the advisability of entering into this Agreement and we have been fully advised by said counsel regarding our rights and the execution of this Agreement. However, if there are any other attorneys who have been employed by us in connection with claims arising from our injuries or who may make any claim to the settlement monies paid by the RELEASED PARTIES, then we shall be responsible for these fees or claims and we shall INDEMNIFY, DEFEND, AND HOLD THE RELEASED PARTIES HARMLESS for any such attorneys' fees or claims made to the settlement monies by the other attorneys. PLAINTIFFS each expressly warrant that their spouses have not suffered any loss of consortium as a result of the events in question or PLAINTIFFS' alleged injuries and damages. PLAINTIFFS each also expressly warrant that no member of their family has suffered any psychic injury, mental anguish and/or damage to the familial relationship as a result of the events in question or as a result of PLAINTIFFS' alleged damages and injuries. PLAINTIFFS each agree to defend, hold harmless and indemnify the RELEASED PARTIES from the payment, and for the defense, including, expenses, and reasonable attorney's fees, of any and all such claims for loss of consortium, psychic injury, mental anguish and/or damage to the familial relationship. PLAINTIFFS each hereby represent and warrant to the RELEASED PARTIES and to the Page 3 Court that no promises, representations or agreements not set out herein have been made to them; 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 their own free will and accord after consulting with and acting upon the advice of their attorney. WE RELEASE AND GIVE UP ANY CLAIM THAT WE HAVE AGAINST THE RELEASED PARTIES. WE 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. WE 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 WHICH MAY HEREAFTER BE PENDING OR PROSECUTED AGAINST THE RELEASED PARTIES BY US OR ANYONE CLAIMING BY, THROUGH, OR UNDER US, AND WE AGREE TO BRING NO FURTHER ACTION OF ANY HIND AGAINST THE RELEASED PARTIES FOR DAMAGES ARISING FROM THE INCIDENT DESCRIBED ABOVE AND TO DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FROM ANY ACTION BROUGHT BY, THROUGH, OR UNDER US, SEEKING TO RECOVER DAMAGES DIRECTLY OR DERIVED FROM THOSE DAMAGES WE ARE CLAIMING AS A RESULT OF THIS INCIDENT. Page 4 THIS OBLIGATION TO INDEMNIFY, DEFEND, AND HOLD HARMLESS IS BINDING UPON US REGARDLESS OF THE CAUSE OF INJURIES OR DAMAGES COMPLAINED OF OR OF FAULT. IT IS SPECIFICALLY AGREED THAT WE SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE RELEASED PARTIES FOR THEIR OWN NEGLIGENCE, IF ANY, AS WELL AS THE NEGLIGENCE, IF ANY, OF ANY OTHER PARTIES MENTIONED OR REFERRED TO IN THIS DOCUMENT, RELATING TO OUR INJURIES WHICH RESULTED FROM AN AUTOMOBILE COLLISION THAT OCCURRED ON APRIL 1, 2002 IN DENTON, TEXAS, FROM ANY CAUSE OF ACTION BROUGHT BY, THROUGH OR UNDER US. WE AGREE THAT THIS AGREEMENT OF INDEMNITY COMPLIES WITH TEXAS INDEMNITY LAW AS STATED IN ETHYL CORP. V. DANIEL CONSTR CO., 725 S.W.2d 705 (Tex. 1987) AND THE CONSPICUOUSNESS REQUIREMENTS OF DRESSER INDUS., INC. V PAGE PETROLEUM, INC., 853 S.W.2d 505 (Tex. 1993). WE FURTHER AGREE THAT WE WILL NEVER CONTEND THAT THIS AGREEMENT DOES NOT SATISFY TEXAS LAW CONCERNING INDEMNITY AGREEMENTS. WE 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, WE 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 US WITH FULL KNOWLEDGE THAT OUR INJURIES MAY NOT BE FULLY UNDERSTOOD BY US AT THIS TIME, AND THAT NO RECOVERY ON ACCOUNT OF THE MATTERS DESCRIBED HEREIN MAY HEREAFTER BE HAD FROM ANYONE WHOMSOEVER WE AGREE THAT THE MONEY PAID FOR THIS Page 5 GENERAL RELEASE, SETTLEMENT, AND INDEMNITY AGREEMENT IS NO ADMISSION OF LIABILITY AND WE 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. Although originally drafted by attorneys for the RELEASED PARTIES, 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. THE PROVISIONS OF THIS COMPROMISE SETTLEMENT & RELEASE OF ALL CLAIMS ARE CONTRACTUAL AND NOT MERE RECITALS. WITNESS OUR HANDS this ay of Owev, 2003. E BENI HAROL ONY CITY OF DENTON, TEXAS *MMA4; MICHAEL A. CONDOFF CITY, MANAGER c~,r~ Cif' W~e~ Page 6 APPROVED: t ✓i../ Hank derson Attorney for PLAINTIFFS for DEFENDANTS THE rY OF r ) This instrument was acknowledged before me on the day of( v, 2003, by Sandy Reese Benigno. Not Public-State of Texas My Commission Expires: S161gong THE STATE OF TEXAS COUNTY OF EXAS.2007 Wi9ld This instrument was acknowledged before me on th0j6ay of 200, by Harold Anthony Benigno. My Commission Expires: -if lnevor.',' X Notary lic-State of Texas STEFANIENARRISON NOTARY PUSLIC. STATE OF, Page 7 THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the AA day o -In"2003, by c~ise~ A. Gem,, City Manager for the City of Denton, Texas. , V„ Sq?d !fie""'•.• JENNIFER K. WALTERS 3±' _ Notary Public, State of Texas My Commission Expires ` December 19,200 6 My r'xplruh. \44 0 (o N Publi tate of Texas Page 8 I, Hank Anderson represent and warrant that I am the attorney for Sandy Reese Benigno and Harold Anthony Benigno, PLAINTIFFS, under valid and legal powers of attorney, that the foregoing are my clients' true and correct signatures. I further represent and warrant that they executed this Compromise Settlement and Release of All Claims without deception or coercion, and that I have fully discussed with them their rights under the law, their physical and mental condition, and the legal effect of this Compromise Settlement and Release of All Claims. I further represent that upon payment of the consideration set forth above that any claim for attorneys' fees or expenses which I or anyone who has represented Sandy Reese Benigno and Harold Anthony Benign, PLAINTIFFS has or had or will have in connection with this matter has been fully satisfied and that no claim against the RELEASED PARTIES for attorneys' fees and/or expenses will be made. Hank Anderson Attorney for Plaintiffs SnOur D=unmftUJ#gagonlganigncW dm Page 9