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Res 032-96 3/19/1996RESOLUTION NO. J D,-G A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPROVING A SETTLEMENT AGREEMENT WITH RANDY PRICER, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF SAID AGREEMENT ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, on or about the 18th of May, 1995, Randy Pricer claims to have been involved in an automobile accident in the City of Wichita Falls with a vehicle driven by an employee of the City of Wichita Falls; and, WHEREAS, Randy Pricer has asserted a claim against the City and its employee for injuries he sustained as a result of said accident; and, WHEREAS, the City and Randy Pricer deem it to be in their mutual interest to settle said dispute and reduce such settlement to writing. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS: SECTION 1. That all the above preambles and recitals are found to be true and correct and made a part hereof for all purposes. SECTION 2. That the City Manager be and is hereby authorized to execute on behalf of the City the Settlement Agreement and Release by and between the City and Randy Dean Pricer, the same made a part hereof for all purposes. SECTION 3. It is hereby found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 19th e - of March, 1996 Ora 7. M A Y O R ATTEST: J 11 City Clerk a . r SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is made and entered into this the alck, day of March, 1996, by and between: "Plaintiff": Randy Dean Pricer and "Defendants": City of Wichita Falls and David Bret Davis. RECITALS 1.0 Circumstances which led to this Agreement are as follows: 1.1 On or about May 18, 1995, Randy Dean Pricer claims to have been involved in an automobile accident in the 4300 block of Seymour Highway, Wichita Falls, Texas, and claims that the accident was caused by the negligent acts and omissions of David Bret Davis, as an employee of the City. 1.2 As a result of the accident, Randy Dean Pricer claims to have suffered serious injuries which may be permanent or progressive, and for which the full extent may not be fully known or appreciated by him at this time. 1.3 Randy Dean Pricer has asserted a claim with respect to his injuries and has reached an agreement to fully, finally and forever discharge his claims against the City of Wichita Falls and David Bret Davis and other parties being released by this agreement, as set forth below. 1.4 Defendants deny all liability for such claims. AGREEMENT The parties agree as follows: 2.1 Plaintiff releases and forever discharges Defendants and their respective past and present employees, officers, directors, successors, assigns, administrators, insurers, investigators, adjusters, attorneys and other representatives, from any and all claims and demands of every conceivable character, which arise, grow from, or relate in any way to the incident of, on or about May 18, 1995, without limitation. This release shall extend to and include any and all claims or causes of action regardless of the legal theory asserted, including negligence, breach of warranty, products liability, breach of contract, bad faith, intentional tort, or violation of any local, state or federal statute, rule or regulation. By way of example and without limiting the scope of this Release, it is acknowledged that this agreement is specifically intended to release all possible claims and damages which Plaintiff may have at the present, at any time in the past, or may possess at any time in the future against the Defendants and MAR-15-96 FRI 10:54 CITY OF WICHITA FALLS FAX NO. 8177618877 P. 02 2 regardless of whether the claims and damages are fully known or appreciated this time, including Y pp ed at ud ng but not limited to claims for physical and psychological injuries, disfigurement, loss of income or earning capacity, disability, pain, suffering, mental anguish, expenses of medical care, loss or damage to property and all other types of damages, whether or not they have fully matured or are appreciated at this time. 2.2 This release shall apply to Defendants, their insurers, and Defendants' respective past, present and future council members, officers, directors, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates,es, partners, predecessors, successors in interest, and assigns and all other persons, firms or corporations with whom any of the former have been, are now, or mayhereafterbeaffiliated. 2.3 This release on the part of Plaintiffs shall be a fully binding and complete settlement among Plaintiff and Defendants, and Plaintiff's respective agents, representatives,vesentatieP s, hers, assigns and successors. 2.4 PIaintiff acknowledges and agrees that the release and discharge set forth aboveisageneralrelease. Plaintiff expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which Plaintiff does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affectPlaintiff's decision to enter into this Settlement Agreement. 3.0 Payment In consideration of the release set forth above and other covenants made in this agreement, Plaintiff has accepted the final sum of$27,500 paid in the form of a check or draft payable to "Randy Dean Pricer and his attorney, Stephen R. Shelton." The receipt and sufficiency of this payment is expressly acknowledged. 4.0 Warranty of Capacity to Execute Agreement Plaintiff represents and warrants that no other person or entity has, or has had, anyinterestintheclaims, demands, obligations, or causes of action referred to in this Settlement Agreement, except as otherwise set forth herein; that Plaintiff has the right and exclusive authority to execute this Settlement Agreement and receive the sums specified in it; and that Plaintiff has not sold, assigned, transferred, conveyed or otherwise disposed, in whole or in part, of any of the claims, demands, obligations or causes of action referred to in this Settlement Agreement, MAR-1E-96 FRI 9: 6' All 6177618677 P. 2 IIAR-15-96 FRI 10:55 CITY OF WICHITA FALLS FAX NO. 8177618877 P. 03 3 5.0 Warranty Against Hospital Liens and Indemnity Plaintiff warrants that all unpaid charges for hospital or other health care services fortreatmentreceivedbyPlaintiffasaresultoftheincidenthavebeenpaid, will be paid orwillotherwisebecompromisedoutofthefiendsbeingpaidbythesettlement. Shouldanydoctor, hospital or medical expenses in connection with the occurrence made thebasisoftheaccidentreferredtoabovebeassortedagainstanyoftheDefendantsatanytimeinthefuture, Plaintiff agrees to indemnify and save harmless Defendants from anycosts, damages, and expenses, including attorney's fees, that Defendants may berequiredtopayasaresultofsaiddoctor, hospital or medical expenses. Plaintiff alsowarrantsthatPlaintiffwillsave, indemnify, hold harmless, and defend all of the partieshereinreleasedbythisagreementfromanyandallfutureclaimsandliabilities, causesofaction, expenses and attorneys fees brought by Plaintiff, Plaintiff's wife, or anypersonholdingorclaimingtoholdaninterestbywayofsubrogation, lien orassignmentfromPlaintiffinrespectofanyoftheinjuries, claims or damages beingsettledbythisagreement. This indemnity shall include without limitation any and allclaimsbyhealthcareprovidersorprovidersofinsurancebenefits, worker'scompensationbenefits, and disability benefits relating to the injuries Plaintiff allegesresultedfromtheabove-described claims. 6.0 Acknowledgment of the Uncertain and Disputed Nature of the Claim It is understood and agreed that this settlement is a compromise of a disputed claim,that the payment being made is not an admission of liability, and the parties beingreleasedhaveconsistentlydeniedallliability. 7.0 Additional Acknowledgments It is understood and specifically acknowledged by Plaintiff that; A. His injuries and other consequences of the incident may beprogressiveormoreseriousorextensivethanispresentlyappreciated rmanent, B. Recovery from these injuries may be uncertain, indefinite and incomplete; C. He has not received or relied upon any statement, promise, representation,inducement, or agreement from any of the parties being released, or from anypersonclaimingtorepresentanyofthepartiesbeingreleased, other than isexplicitlysetforthinthewrittentermsofthisagreement; D. He has relied solely upon the advice of his attorney, and the parties beingreleasedhaveofferedthispaymentandenteredintothisagreementforthesolepurposeofavoidingthecostsanduncertaintiesoflitigation. MAR-15-96 FRI 9,62 AM 6177618877 8. 3 MAR-15-96. FRI 10:56 CITY OF WICHITA FALLS FAX NO. 8177618877 P, 04 M' 4 E. This is a final settlement of all claims which he now or ever will have regardingtheautomobileaccidentandtheclaimscannotbereopenedinthefuture. 8.0 Governing Law This Settlement Agreement shall be construed and interpreted in accordance with thelawsoftheStateofTexas. 9.0 Additional Documents All parties agree to cooperate fully and execute any and all supplementary documentsandtotakeallactionswhichmaybenecessaryorappropriatetogivefullforceand effect to the basic terms of this Settlement Agreement. 10. Entire Agreement and Successors in interest This Settlement Agreement contains the entire agreement between Plaintiff andDefendantswithregardtothematterssetforthinitandshallbebindinguponandinuretothebenefitoftheexecutors, administrators, personal representatives, heirs,successors and assigns of each. Ale 1111 igl IL Randy D!.n Pricer PEFE,NDAN 'S: City of W. ita Falls" I . C' y Manage 0111' dr i-' 14 4 David Bret Davis MAR-15-96 FRI 9:52 AM 6:77613877 P. MAR-15 796 FRI 10:56 CITY OF WICHITA FALLS FAX NO. 8177618877 P. 05 5 AFPROV i 4; phen R. t helton Attorney at Law SBN 18209800 City National Building 807 Eighth Street, Suite 400 Wichita Falls, Texas 76301 ATTORNEY FOR PLAINTIFF W. Andrew Messer Assistant City Attorney/Trial Specialist SBN 13472230 P. 0, Box 1431 Wichita Falls, Texas 76307 ATTORNEY FOR DEFENDANTS VERIFICATION STATE OF TEXAS COUNTY OF WICHITA § BEFORE ME, the undersigned authority, on this day personally appeared Randy DeanPricer, known to me to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that he executed the same f the purposes and consideration thereinexpressed. R y ..! Pricer SUBSCRIBED AND SWORN TO BEFORE ME the undersigned notary public, bythesaidRandyDeanPricer, thisa 4Lday of jarch, 1996, to certify which witness my handandsealofofficey SARAH SOROON l202.__ N Mk SO al 1w No Public, State of Texas Wi,w ammo 61YO Sal MAR-15-96 FRI 9:52 AM 8177618877 F. 5 tie-15.9fi FRI 10:56 CITY OF WICHITA FALLS FAX NO. 8177618877 P. 06 6 VER[, IGAfQN STATE OF TEXAS COUNTY OF WICHITA § BEFORE ME, the undersigned authority, on this day personally appeared Jim Berzina, City Manager of the City of Wichita Falls, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same forthepurposesandconsiderationthereinexpressed:Th City of ichita Falls By:1/ f Its: As` anager SUBSCRIBED AND SWOT T ; ° 'RE ME on this c)o"'day of March, 1996,to certify which witness my hand and seal of office, Y P! Notary Public, State of Texas 4,,r$ LINDA MERRILL Notary Public,State of Texas t p. My Commission Expires 12.22- VERIFICATION STATE OF TEXAS COUNTY OF WICHITA § BEFORE ME, the undersigned authority, on this day personally appeared David BretDavis, known to me to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that he executed the sai for the purposes and consideration thereinexpressed. David Bret r avis SUBSCRIBED AND SWORN TO BEFORE ME the undersigned notary public, bythesaidDavidBretDavis, thisc221 day of March, 1996, to certify which witness my handandsealofoffice. 3L;rssz-e. fAN.Q.„,,ou t Y...°'.,,, Notary Public, State of Texas 2°'` ,° LINDA MERRILL is r) Notary Public,State of Te My Commission Expires 12.22 LIAR-15-96 FRI 9:53 AM 8177518877 P. 6