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Res 039-96 4/16/1996RESOLUTION NO. q-C1 to A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPROVING A COMPROMISE SETTLEMENT AGREEMENT AND MUTUAL RELEASE ARISING DURING MEDIATION WITH TROY EUGENE SMITH, 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 8th of March, 1992, Troy Eugene Smith claims damage occurred to his vehicle when his front left tire rolled over a City manhole cover; and, WHEREAS, Troy Eugene Smith has asserted a claim against the City for personal injuries he sustained as a result of said accident; and, WHEREAS, the City and Troy Eugene Smith 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 Compromise Settlement Agreement and Mutual Release Arising During Mediation by and between the City and Troy Eugene Smith, 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 16th day of April, 1996. M A O R ATTEST: G MUD City Clerk 1 Cause No. 142,442-B TROY EUGENE SMITH,IN THE 78TH DISTRICT COURT Plaintiff. v. OF THE CITY OF WICHITA FALLS, Defendant. WICHITA COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT AND MUTUAL RELEASE ARISING DURING MEDIATION 1. The parties hereto agree to settle all claims and controversies between them, whether asserted or assertable in this case, in accordance with the terms of this agreement (this Agreement") and to perform the covenants undertaken by them, respectively, under the terms of this Agreement. Provided, however, that this Agreement and the undertakings by the Defendant pursuant hereto are subject to the approval of this Agreement by the City Council of the City of Wichita Falls, Texas at its regularly scheduled meeting on r ,'/ /[e 1996 The undersigned assistant city attorney agrees that the city attorney's office will recommend approval of this Agreement at said meeting of the City Council of the City of Wichita Falls, Texas. 2. The consideration to be given for this settlement is as follows: a) The agreement of the Defendant, the City of Wichita Falls, Texas (subject to City Council approval as stated above)to pay the sum of$ /', at QQ,to Troy Eugene Smith, Plaintiff, and the Law Offices of Steven M. Williams, the attorneys of record for the Plaintiff This payment will be made in the form of a check or draft payable to the Plaintiff and his attorneys, as stated above. V P ft ti Asa h t 4d q SrfltS /<J CtZ4r7t /psfs net Plp eed1'.1 SD o0 b) The agreement of the Plaintiff to: (I) settle all claims and controversies as stated in paragraph 1 and(ii) agree to a dismissal this case with prejudice as stated in paragraph 3. 3. Upon approval of this settlement by the City Council and the payment of the sums Compromise Settlement Agreement Page 1 of 3 Pages stated above by the Defendant, the above-styled and numbered cause shall be resolved by an agreed order of dismissal with prejudice, with costs taxed to the Defendant. 4. The parties acknowledge that bona fide disputes and controversies exist between them, both as to liability and the amount of damages, if any, and by reason of such disputes and controversies the parties hereto desire to compromise and settle all claims and causes of action of any kind whatsoever which the parties have or may have in the future arising out of the transaction or occurrence which is the subject of this litigation. It is understood and agreed that this is a compromise of a disputed claim, and nothing contained herein shall be construed as an admission of liability by or on behalf of the Defendant, all such liability being expressly denied. 5. The parties hereby agree to release, discharge, and forever hold the other harmless from any and all claims, demands or suits, known or unknown, fixed or contingent, liquidated or unliquidated, whether or not asserted in the above case, as of this date, arising from or related to the events and transactions which are the subject matter of this cause. This mutual release runs to the benefit of all attorneys, agents, employees, officers, directors, shareholders, partners, heirs, assigns, and legal representatives of the parties hereto. 6. Each signatory hereto hereby warrants and represents that: a) such person has authority to bind the party or parties for whom such person acts subject to approval of this settlement by the City Council of the City of Wichita Falls, Texas). b) the claims, suits, rights, and/or interests which are the subject matter hereto are owned by the party asserting same, have not been assigned, transferred or sold, and are free of encumbrance except for: 1) any assignment to the legal counsel for the Plaintiff which will be satisfied pursuant to the agreement between the Plaintiff and legal counsel for the Plaintiff and paid from the settlement proceeds; and 2)any lien, assignment or agreement between any health care provider and the Plaintiff and/or legal counsel for the Plaintiff. Plaintiff and the undersigned legal counsel for Plaintiff agree that any such lien, assignment or right to payment on behalf of legal counsel or any health care provider will be paid from the settlement proceeds and each hereby indemnifies the Defendant from any liability or expenses from such claims, assignments, liens or rights to payment. Compromise Settlement Agreement Page 2 of 3 Pages 7. If one or more disputes arise with regard to the interpretation and/or performance of this Agreement or any of its provisions, the parties agree to attempt to resolve same by telephone conference with Jay A. Cantrell, the mediator who facilitated this settlement or any other mediator agreed to by the parties or designated by the above referenced court. If the parties cannot resolve their differences by such telephone conference, then each agrees to schedule one day of mediation with such mediator within thirty (30) days to resolve the disputes and to share equally the costs of such mediation. If a party refuses to mediate, then such party thereby waives any recovery for attorneys fees or costs incurred in any litigation brought to construe or enforce this Agreement. Otherwise, if the parties are unable to resolve their dispute by mediation, then the prevailing party or parties shall be entitled to recover reasonable attorneys' fees, costs and expenses, including the cost of the mediation. 8. This Agreement is made and performable in Wichita County, Texas, and shall be construed in accordance with the laws of the State of Texas. 9. Each signatory to this Agreement has executed it freely and without duress, after having consulted with, or having had the opportunity to consult with, the attorneys of such person's choice. Each party hereto has been advised by the Mediator that the Mediator is not the attorney for any party and that each party should have this Agreement reviewed by such party's attorney prior to executing same. 10. Although the Mediator has provided this Agreement to outline the basic terms of the agreement between the parties as a courtesy to facilitate the final resolution of this dispute, the parties and their counsel have thoroughly reviewed this Agreement and have, where necessary, modified it to conform to the requirements of their agreement. SIGNED March 29, 1996. CITY OF WICHITA FALLS, TEXAS THE CITY OF WIC I FALLS, TEXAS James Berzina, City Manager Y. Jim Finley, Assistant City Attorney APPROVED: Law Offices of Steven M. Williams Plaintiff: By: ci A_ 6 eit Robert O. Rafuse'Troy Eutne Smith Attorneys for Plaintiff Compromise Settlement Agreement Page 3 of 3 Pages