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Res 134-94 9/6/1994RESOLUTION NO. 17_3/ -C-P4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE CITY ATTORNEY TO SETTLE A LAWSUIT WITH ELI MORENO; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS: SECTION 1. That the City Attorney be and is hereby authorized to execute a settlement agreement with Eli Moreno, settling all claims for property damage to a structure owned by Mr. Moreno at 313 Flood Street, in accordance with the settlement agreement, the same attached hereto and made a part hereof for all purposes. SECTION 2 . It is hereby officially 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 6th day of September, 1994. A O ATTEST: I City Cl=rk Cause No. 135,269-C ELI MORENO, IN THE 89TH DISTRICT COURT Plaintiff, v. OF 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 September 6, 1994. 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: 1) Pay the sum of $12,500 to Eli Moreno and Ken Wiggington, the attorney of record for the Plaintiff. This payment will be made in the form of a check or draft payable as stated above. 2) Release the Plaintiff and his property from those costs incurred by the Defendant in demolishing the structure located at 313 Flood Street, Wichita Falls, Texas and executing and filing of record a release of the lien securing such indebtedness; which lien is filed of record in Volume 1480 at pages 355 et seq. of the Compromise Settlement Agreement - Page 1 of 3 Pages Official Public Records of Wichita County, Texas. 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. The above-styled and numbered cause shall be resolved by an agreed order of dismissal with prejudice, with costs taxed to the Defendant. Defendant agrees that the court costs in this case shall include the filing fee, service of citation fee, Plaintiff's portion of the mediation fee and up to $400 on the fee of the Plaintiff's appraiser Gary Clifton. All court costs are to be certified to the District Clerk and paid through the District Clerk's office. 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. The term "parties" , as used in this Agreement, includes all named parties to this cause. 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 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. 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 August 15, 1994. AP• f) • I, • KEN WIGGINTON, ELI MORENO, Attorney for Plaintiff Plaintiffs Y L r' ssistant City A, orney fo the City of Wichita Fall= , Texas c:\wp\mediation\moreno.csa Compromise Settlement Agreement - Page 3 of 3 Pages L