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Ord 53-2009 8/18/2009 � r ORDINANCE NO. �� � Ordinance Of The City Council Of The City Of Wichita Falls, Texas, Authorizing The City Manager To Execute All Necessary Documents To Settle Muhlbauer V. City Of Wichita Falls; Ci vil Action No. 169,075-B And Appropriating Necessary Funds From General Fund Reserves For Settlement Of Said Case. WHEREAS, Muhlbauer v. City of Wichita Falls, Texas (Cause No. 169,075-B, is filed in the District Court of Wichita County, Texas, 78 Judicial District); and WHEREAS, the parties in this lawsuit have reached a settlement of all pending matters in the litigation. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute all necessary documents to settle Muhlbauer v. City of Wichita Falls, Texas, with the terms generally in accordance with the attached General Release and Indemnity Agreement, in a form to be approved by the City Attorney, and funds are appropriated from General Fund reserves in a sum sufficient to settle said lawsuit for said settlement thereof. � � MAYOR ATTEST: City Clerk GENERAL RELEASE AND INDEMNITY AGREEMENT THIS GENERAL RELEASE AND INDEMNITY AGREEMENT is made and entered into as of , 2009, by Greg Muhlbauer. RECITALS 1. Greg Muhlbauer has filed a claim involving personal injury allegedly caused by an automobile accident on January 6, 2008, between Greg Muhlbauer and the City of Wichita Falls. 2. All liability for said claim is denied. 3. In an effort to reach an agreement concerning �the claims asserted and to resolve such disputes without the necessity of litigation and to avoid the associated risks, uncertainties and expenses of litigation, Greg Muhlbauer ("Releaser") has agreed upon a final compromise and settlement of all disputes, which is memorialized by this agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises contained in this agreement, 4. Pavment. Releaser has agreed to accept the following payment, by check or draft, in full and sufficient consideration for this General Release and Indemnity Agreement: a check or draft from the City of Wichita Falls in the sum of $94,500.00 payable to Greg Muhlbauer and his attorney, Stephen R. Shelton. Releaser acknowledges the receipt and sufficiency of the sum described in this paragraph. Releaser agrees to pay, from said sum, all attorneys' fees and all other costs and expenses resulting to him or incurred by him or on his behalf in connection with the claims and the settlement set forth herein. 5. Release and dischar�e. In consideration of all of the foregoing, Releaser hereby releases and forever discharges the City of Wichita Falls, together with all of its respective owners, officers, directors, council members, employees, agents, servants, adjusters, attorneys, heirs, successors, and assigns, from any and all claims, demands and causes of action of every conceivable kind or character, without limitation. It is intended that this Release is comprehensive and general. Notwithstanding, the Parties herein agree that this General Release and Indemnity Agreement does not release or compromise the property damage claims of Greg Muhlbauer or his insurance companies arising out of the accident of January 6, 2008. This Release, other than property damage, extends to all claims of every kind, character and description, including those which may be directly or indirectly connected with the purported accident of January 6, 2008, regardless of whether the claims are fully known or appreciated at this time, and regardless of how or when those claims may arise or have arisen. This Release includes, but is not limited to, any claim, demand, or cause of action related in any way to any alleged impropriety, misrepresentation, negligence, intentional act, deceptive trade practice, insurance code violation, and/or breach of the duty of good faith and fair dealing in the investigation, defense, adjustment, settlement andlor handling of the subject claims, and further includes any claims and causes of action for personal injuries, pain and suffering, mental anguish, loss of wages or earning capacity, medical expenses, attorneys' fees, punitive or exemplary damages, treble damages, violation of any law, rule, regulation, statute or administrative order, pre- or post judgment interest, statutory damages, penalties, court costs, and claims for all other non-property damages or consequential losses of every conceivable character, without limitation. 6. General Release. Releaser hereby acknowledges and agrees that the Release set forth in paragraph 5 is a general release of all claims he has or might have against the City of Wichita Falls, and Releaser further expressly waives and assumes the risk of any and all claims against the City of Wichita Falls, for damages which exist as of this date but of which Releaser does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect his decision to enter into this General Release and Indemnity Agreement. Releaser further agrees that he has accepted payment of the sum specified herein as a compromise of matters involving disputed issues of law and fact and that he fully assumes the risk that the facts or law may be otherwise than he believes. It is understood by the parties that this settlement is a compromise of doubtful and disputed claims and the payment is not to be construed as an admission of liability on the part of the City of Wichita Falls, by whom liability is expressly denied. 7. Ownership of Claims and Indemnitv. Releaser warrants and represents that he possesses the complete authority to settle and receive payment on behalf of all parties who may have an interest in the claims arising out of the January 6, 2008 accident, and that he has not assigned any right or portion of his bodily injury claim. Releaser hereby agrees to indemnify the City of Wichita Falls and hold them harmless from any and all claims, demands, causes of action, liabilities and expenses (including reasonable attorneys' fees and litigation expenses) of whatever kind or nature arising from any claim by any person or entity which holds or claims to hold any interest in the bodily injury proceeds being paid under this Agreement or any other interest in the claims for the January 6, 2008 accident, or should any claim, demand or suit be made on the City of Wichita Falls regarding the January 6, 2008 accident at any time hereafter. This paragraph does not purport to or intend to require Greg Muhlbauer to indemnify the City for claims made by anyone for property damages arising out of the accident of January 6, 2008. 8. Representations and Warranties. Releaser agrees and acknowledges that: i) Releaser is fully competent to make this Agreement; ii) The personal injury claim arising out of the January 6, 2008 accident is indefinite, uncertain and incapable of being satisfactorily established; iii)The parties being released by this Agreement have consistently denied all liability, and have entered into this settlement for the sole purpose of avoiding the further effort, expense and uncertainties of litigation; iv) All doctor, hospital and medical expenses of whatever character, if any, have been paid or will be paid by Releaser, and Releaser represents that to his knowledge no liens have been filed for medical or hospital expenses in connection with the occurrence made the basis of the accident referred to above. Should any doctor, hospital or medical expenses in connection with the occurrence made the basis of the accident referred to above be asserted against any of the Releasees herein at any time in the future, the Releaser agrees to indemnify and save harmless the City of Wichita Falls, together with all of its respective owners, officers, directors, council members, employees, agents, servants, adjusters, attorneys, heirs, successors and assigns, as a result of said doctor, hospital or medical expenses. v) This General Release and Indemnity Agreement is entered into upon Releaser's own free will and upon advice of counsel, and Releaser has not been influenced or relied upon any statement, promise or representation by the parties being released, or by any person representing or claiming to represent them, other than as expressly set forth above; vi) In signing this General Release and Indemnity Agreement, Releaser has read it, has had its terms explained to his by counsel, and understands that it is a final settlement of all claims which he now or will ever have with regard to the accident in question, and such claims cannot be reopened in the future; and, vii)The consideration for this Agreement is contractual, and not a mere recital. 9. Additional Documents. All parties agree to cooperate fully to execute any and all supplementary documents, and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this General Release and Indemnity Agreement. 10. Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties. Any and all prior or contemporaneous agreements, understandings, promises, representations, warranties, and covenants, whether written or oral, or whether expressed, implied, or apparent, are hereby deemed merged into and made a part of this Agreement. 11. Multiple Counterparts. This Agreement may be signed in multiple counterparts, each of which shall constitute an original. ENTERED INTO THIS DAY OF , 2009. Greg Muhlbauer Approved: Approved by the City of Wichita Falls: By: STEPHEN R. SHELTON DARRON J. LEIKER Attorney at Law City Manager State Bar No. 129869730 P. O. Box 5008 Wichita Falls, Texas 76307 Telephone: (940) 322-2929 Telecopier: (940) 322-2930 ATTORNEY FOR CLAIMANT VERIFICATION STATE OF TEXAS § COUNTY OF WICHITA § BEFORE ME, the undersigned authority, on this day personally appeared Greg Muhlbauer, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein stated. GIVEN LJNDER MY HAND AND SEAL OF OFFICE this day of , 2009. Notary Public, State of Texas