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HomeMy WebLinkAboutContract 46971~-1 R'ECE.NE.0 ~\lG O 20l5 cm oHOR1WOR1\\ cm SECREil\R'< CAUSE NO. 236-275842-14 ESPERANZA GUTIERREZ, Plaintiff, § § § § § § § IN THE DISTRICT COURT OF VS. TARRANT COUNTY, TEXAS CITY OF FORT WORTH, Defendant. 236TH JUDICIAL DISTRICT SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS is made and entered into by and between Esperanza Gutierrez and the City of Fort Worth, Texas. ARTICLE I -DEFINITIONS As used in this Agreement, the following terms shall have the definition indicated in this Article. 1.1. "Agreement" shall mean this Settlement Agreement and Release of All Claims. 1.2. "Plaintiff' shall mean Esperanza Gutierrez. 1.3. "City" shall mean the City of Fort Worth. 1.4. "Parties" shall mean Esperanza Gutierrez and the City, collectively. 1.5. "Claims" shall mean any and all of Esperanza Gutierrez's claims against the City. ARTICLE II -RECITALS AND PURPOSE 2.1. Plaintiff brought suit due to a car accident that occurred on or about February 6, 2014, in the 4600 Block of Trail Lake Drive, in Fort Worth, Texas . 2.2 Plaintiff alleges that she was stopped at a red light at the intersection of Trail Lake Drive and Wabash Avenue when City of Fort Worth Police Officer Lawrence West's vehicle collided with the back of her vehicle. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 1 of7 2.3. Defendant asserts, and continues to assert, that this accident was unavoidable due to Officer West's vehicle sliding down the hill into the rear of Plaintiff's vehicle because of the conditions on the road at the time of the accident -namely snow and ice. However, the Parties desire to settle, in the manner set forth herein, any and all claims or controversies between them in order to avoid future uncertainty and any further litigation. NOW, THEREFORE, upon the execution of this Agreement and in consideration of the mutual promises and agreements contained herein, the Recitals contained herein, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree to the following: ARTICLE III -TERMS OF AGREEMENT 3.1. Consideration. In consideration for Plaintiffs promises and covenants herein, the City makes the following promises: payment to Esperanza Gutierrez and her Attorney, John M. Groce, Jr., of the law firm Davis S. Kohm & Associates, the sum of $8,000 .00 (Eight Thousand and No/100 Dollars). Payment of the above fees and damages shall be made by check payable to Esperanza Gutierrez and David S. Kohm & Associates for distribution. Plaintiff agrees that this payment and promise by the City is sufficient consideration for the promises and covenants made in this Agreement. Further, Plaintiff acknowledges that this is a complete and final release and that no other money is to be paid to her or on her behalf, on account of any cause of action or claim she may have against the City as of the date of this agreement for matters forming the basis her lawsuit. 3.2. Release of All Claims and Disputes and Covenant Not to Sue. Plaintiff, for herself and on behalf of her attorneys, heirs, assigns, successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS, FOREVER DISCHARGES, AND COVENANTS NOT TO SUE the City and its employees, attorne s and SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS OFFICIAL RECORD RETARY FT. WORTH, TX council members, in their official and individual capacities, including their successors and assigns, from and for any and all claims, complaints, obligations, promises, agreements, causes of action, debts, demands , costs, losses, damages, and expenses (including , without limitation, attorney's fees) whatsoever, pied or unpled, other than any arising from a breach of this Agreement, under any municipal, local, state, or federal law, common or statutory, for any acts or omissions whatsoever, whether known or unknown, fixed or contingent, liquidated or unliquidated, specifically including, but not limited to, any claim Plaintiff may have against the City arising from the matters that form the basis of her lawsuit, including, but in no way limited to, claims brought pursuant to Section 101.021 of the Texas Civil Practice & Remedies Code. 3.3. Medicare. PLAINTIFF REPRESENTS THAT NONE OF HER MEDICAL BILLS HAVE BEEN PAID BY MEDICARE OR BY ANY OTHER GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY. IF PLAINTIFF IS MISTAKEN IN THIS REGARD AND MEDICARE OR SOME OTHER GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY HAS PAID ANY BILLS, WHATSOEVER, PLAINTIFF WILL FULLY SATISFY ANY CLAIM EVER ASSERTED BY MEDICARE OR OTHER GOVERNMENTAL OR QUASI-GOVERNMENTAL AGENCY FOR REIMBURSEMENT AND WILL DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY OF FORT WORTH AND ANY OTHER PERSON, CORPORATION, ASSOCIATION, PARTNERSHIP OR ENTITY IN PRIVITY WITH OR CONNECTED WITH IT AGAINST ANY SUCH CLAIM. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS OFFICIAL RECORD CITY SECRETARY .. _. ... ,. •. .,., TX 3.4. Taxes. The Parties will report, as may be required by law, their respective payments and receipts of the amounts described herein. Each party shall bear its own respective tax liability, if any, arising from the payment made pursuant to the terms of this Agreement. Plaintiff acknowledges that the City has made no representations to her regarding the tax consequences of any amount or benefit received by her pursuant to the terms of this Agreement. 3.5. No Admission of Liability. Plaintiff understands and agrees that this Agreement is made for the sole purpose of resolving the differences between the Parties. The City specifically disclaims any liability to Plaintiff, and this Agreement shall not, in any way, be construed as an admission of liability by the City. 3.6. Entire Agreement. The Parties agree that this Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, arrangements, or undertakings between the Parties relating to the subject matter. No oral understandings, statements, promises, or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed orally, and any changes or amendments must be signed by all Parties affected by the change or amendment. 3.7. Governing Law. It is understood and agreed that this Agreement shall be governed by and construed and enforced in accordance with, and subject to, the laws of the State of Texas, to the extent not preempted by federal law. 3.8. Counterparts. It is understood and agreed that this Agreement may be executed in multiple originals and/or counterparts, each of which shall be deemed an original for all purposes, but all such counterparts together shall constitute one and the same instrument. 3.9. Headings. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 3.10. Severability. If any section, paragraph, sentence, clause, or phrase contained in this Agreement shall become illegal, null, or void, or shall be found to be against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null, or void, or against public policy, the remaining sections, paragraphs, sentences, clauses, or phrases contained in this Agreement shall not be affected thereby. Furthermore, in lieu of each such section, paragraph, sentence, clause, or phrase, there shall be added automatically as a part of this Agreement another section, paragraph, sentence, clause, or phrase as similar as may be possible which is legal, valid, and enforceable. 3.11. Waiver. The waiver of any breach of any provision hereunder by any Party to this Agreement shall not be deemed to be a waiver of any preceding or subsequent breach hereunder. 3.12. Representations. The Parties hereto, and their authorized agents or representatives, if any, hereby acknowledge and expressly warrant and represent, for themselves and for their predecessors, successors, assigns, heirs, executors, administrators, and legal representatives, that they (a) are legally competent and authorized to execute this Agreement; (b) have not assigned, pledged, or otherwise in any manner, sold or transferred, either by instrument in writing or otherwise, any right, title, interest, or claim that the Party may have by reason of any matter described in this Agreement; ( c) have read and understand the effect of this Agreement; (d) are or have had the opportunity to be represented by independent legal counsel of their choice; (e) have received all additional information requested prior to executing this Agreement; (f) execute this Agreement of their free will and accord for the purposes and consideration set forth herein, without reliance upon any statement, representation, or inducement of any other party or person not contained herein; (g) have the full right and authority to enter into this Agreement and to consummate the transfers and a;::.:ss::.:Ji~nm~e::!.n~ts~----, SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS OFFICIAL RECORD CRETARY FT. WORTH, TX contemplated herein; (h) are authorized to sign this Agreement on behalf of any of the Parties hereto; and (i) will execute and deliver such further documents and undertake such further actions as may reasonably be required to effect any of the agreements and covenants in this Agreement. 3.13. Acknowledgments. By executing this Agreement, Plaintiff acknowledges that (a) she has been given a reasonable time to consider this Agreement; (b) any and all questions regarding . the terms of this Agreement have been asked and answered to their complete satisfaction; (c) she has read this Agreement and fully understand its terms and their import; (d) except as provided by this Agreement, she has no contractual right or claim to the benefits described herein; (e) the consideration provided for herein is good and valuable; and (f) she is entering into this Agreement voluntarily, of her own free will, and without any coercion, undue influence, threat, or intimidation of any kind or type whatsoever. 3.14. This Settlement and Release of All Claims is not construed more favorably toward any party. EXECUTED this ;)5../.J. day of___.&'--"-~{,_,; u._· ~s_t-_____ ___,, 2015. 7 APPROVED AS TO FORM AND SUBSTANCE: \ DA YID S. KOHM & AS CIA TES 1414 W. Randol Mill Road, Suite 118 Arlington, Texas 76012 Attorneys for Plaintiff Esperanza Gutierrez SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 6of7 THE STATE OF TEXAS § § COUNTY OF TARRANT § BEFORE ME, the undersigned Notary Public , on this day personally appeared Esperanza Gutierrez, a person whose identity is known to me, and acknowledged to me that she has read the foregoing Settlement Agreement and Release of All Claims, and that she executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE on the .1~.]\ day of __ /l~_,,,_,.: lt'--"5<--}-_---' 2015. ~ / . ; l i l ~i.;(~~t :,1 0 1v f,uo11c. S1CJI€_ o f _rexes M'/ Commission r. xp 1res Jun e 10 . 2 c,1e ___ ,;.;._,,.;;:;.':.I c~~?J-~ Notary Publ_i.cf and for The State otiexas \,lw,,,,, •i~~~J f.~;;_-.., RANDY H. MELTON f"':' ':''i Notory Public, State or Texas \i, /rf Mv Commission Expires "'),/,t:i(.~ff>'t-June 10, 2018 [ NO M&C RJ!QUlRl!D ] OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 7 of7