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HomeMy WebLinkAboutContract 47153 (2)*to RECEIVED ocT 2 2 2015 CIT�I H � SEGRE(ARY CITY SECRTAq4# /CONTRACT No. iljitj IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION MARGARET PARSONS and KIMBERLY UFFELMAN, Plaintiffs v. CIVIL ACTION NO. 4:14-cv-570 CITY OF FORT WORTH, TEXAS; UNIVERSITY PARK OWNERS ASSOCIATION, INC. Defendants. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS THIS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS is made and entered into by and between Margaret Parsons and Kimberly Uffelman and the City of Fort Worth, Texas. Article. ARTICLE I - DEFINITIONS As used in this Agreement, the following terms shall have the definition indicated in this 1.1. "Agreement" shall mean this Settlement Agreement and Release of All Claims. 1.2. "Plaintiffs" shall mean Margaret Parsons and Kimberly Uffelman. 1.3. "City" or "the City" shall mean the City of Fort Worth. 1.4. "Parties" shall mean Margaret Parsons and Kimberly Uffelman and the City, collectively. 1.5. "Claims" shall mean any and all of Margaret Parsons' and Kimberly Uffelman's claims against the City. OFFICIAL RECORD ARTICLE II -RECITALS AND PURPOSE CITY SECRETARY Ft WORTH, TX 2.1. Plaintiffs are currently living in the CASA and University Park COtrdzitniniurrrs----- area of the City, located near the corner of University Drive and Bristol Road. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 1 of 7 2.2 Plaintiffs allege that the City has intentionally discriminated against them in the areas mentioned in their petition, due to the City's failure to maintain its sidewalks in a wheelchair -accessible fashion, and ADA-compliant manner. 2.3. 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 by the City jointly to Plaintiffs' attorneys, Joseph P. Berra and Frank P. Colosi, of the sum of Seven Thousand Five Hundred Dollars ($7,500.00) in attorney's fees, damages to Margaret Parsons and Kimberly Uffetman of the sum of Three Hundred Dollars ($300.00) each, and the completion of sidewalk and right-of-way repairs outlined in attached Exhibit 1 within eighteen (18) months. Payment of the above fees and damages shall be made by check payable to the Texas Civil Rights Project for distribution. Plaintiffs agree that these payments and promises by the City are sufficient consideration for their promises and covenants made in this Agreement. Further, Plaintiffs acknowledge that this is a complete and final release and that no other money is to be paid to them or on their behalf, and no further work is required of the City, on account of any cause of action or claim they may have against the City as of the date of this agreement for matters forming the basis their lawsuit. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 2 of 7 3.2. Release of All Claims and Disnutes and Covenant Not to Sue. Plaintiffs, for themselves and on behalf of their attorneys, heirs, assigns, successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY RELEASE, ACQUIT, FOREVER DISCHARGE, AND COVENANT NOT TO SUE the City and its employees, attorneys, and 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, attorneys' fees) whatsoever, pled 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 actions or omissions whatsoever, whether known or unknown, fixed or contingent, liquidated or unliquidated, specifically including, but not limited to, any claim Plaintiffs may have against the City regarding ADA discrimination, which existed or may or could have existed prior to, or contemporaneously with, the execution of this Agreement, arising frorn the matters that form the basis of their lawsuit, including, but in no way limited to, claims brought pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134 ("ADA"); the ADA Accessibility Guidelines ("ADAAG"); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"); Chapter 121 of the Texas Human Resources Code ("Chapter 121"); and the Texas Accessibility Standards ("TAS"), promulgated under the Texas Architectural Barriers Act ("TABA"), TEX. GOV'T CODE Chapter 469. 3.3. 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 her or its respective tax liability, if any, arising from the payments made pursuant to the terms of this Agreement. Plaintiffs acknowledge that the City has made no representations to them regarding SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 3 of 7 the tax consequences of any amount or benefit received by them pursuant to the terms of this Agreement. 3.4. No Admission of Liability. Plaintiffs understand and agree that this Agreement is made for the sole purpose of resolving the differences between the Parties. The City specifically disclaims any liability to Plaintiffs, and this Agreement shall not, in any way, be construed as an admission of liability by the City. 3.5. 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. 3.6. 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. 3.7. 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. 3.8. 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. 3.9. 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 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 4 of 7 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. 3.10. 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. 3.11. 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 assignments 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. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 5 of 7 3.12. Acknowledgments. By executing this Agreement, Plaintiffs acknowledge that (a) they have 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) they have read this Agreement and fully understand its terms and their import; • (d) except as provided by this Agreement, they have no contractual right or claim to the benefits described herein; (e) the consideration provided for herein is good and valuable; and (f) they are entering into this Agreement voluntarily, of their own free will, and without any coercion, undue influence, threat, or intimidation of any kind or type whatsoever, 3.13. This Settlement and Release of All Claims is not construed more favorably toward any party. EXECUTED this Oise day of , ��-�- , 2015. Margare arsons Kimberly Uffelman APPROVED AS TO FORM AND SUBSTANCE: Ien<and/or Frank P. Colosi eys for Plaintiffs argaret Parsons and Kimberly Uffelman SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 6 of 7 3.12. Acknowledgments. By executing this Agreement, Plaintiffs acknowledge that (a) they have 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) they have read this Agreement and fully understand its terms and their import; (d) except as provided by this Agreement, they have no contractual right or claim to the benefits described herein; (e) the consideration provided for herein is good and valuable; and (f) they are entering into this Agreement voluntarily, of their own free will, and without any coercion, undue influence, threat, or intimidation of any kind or type whatsoever. 3.13. This Settlement and Release of All Claims is not construed more favorably toward any party. EXECUTED this ,± day of Y` , 20l 5. Margaret Parsons ,On Kimberly Uffelman APPROVED AS TO FORM AND SUBSTANCE: for Frank P. Colosi s for Plaintiffs argaret Parsons and Kimberly Uffelman SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 6 of 7 THE STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned Notary Public, personally appeared Jesus J. Chapa, a person whose identity is known to me, and acknowledged to me that he is an Assistant City Manager of the City of Fort Worth; that he is duly authorized to execute this Agreement; and that he executed the Agreement in the name of and on behalf of the City of Fort Worth in said capacity, for the purposes and consideration therein expressed, CITY OF FORT WORTH vc'cr: Jesus J. Chapa, Assistant City Manager GIVEN UNDER MY HAND AND SEAL OF OFFICE on the , 2015. r Ti11 IN IA L. JO11l`�`O i J �� r _• . �'Jotor / Public, Stot& of Texas •'. ••= tvly Comrnission Expires k APPROVED AS TO FORN f Christopherj Mosley Senior Assistant City Attorney City of Fort Worth ATTEST: Mary Way tit Sec ary Notary Pubic in a or - The State of Tcxa 0 OFFICIAL RECORD CITY SECRETARY it Fr WORTH, TX SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 7 of 7 1,41 t'11, ' •••. 1,.• Vele terity,;.0 rI9P •`. • Site Number Work Required 3 Grind Edge or Replace 50 4' sidewalk Install (2) New P-1 Ramps Install (2) New P-1 Ramps 4 Install (2) New P-1 Ramps Install (2) New R-1 Ramps on West, Install (2) New P-1 Ramps on East 10 Install (1) R-1 Ramp on Radius 11 Install (1) R-1 Ramp on Radius 12 Install (1) R-1 Ramp on Radius 14 Install (1) R-1 Ramp on Radius 17 Install (1) R-1 Ramp on Radius; Install 30 SF of sidewalk 20 Repair/ Replace two driveways 25 Install (1) R-1 Ramp on Radius, Rel 11) Stop Sign, Install (1) R-1 Ramp, Relocate (1) 26 Embedded Base Street light Install (1) R-1 Ramp, 27 28 Install (1) R-1 Ramp, 29 Install (1) R-1 Ramp, 30 Relocate Sign 31 Install (1) R-1 Ramp, 32 Install (1) R-2. Ramp, 33 Install (1) R-1 Ramp, 34 Install (1) R-1 Ramp, 35 Install (1) R-1 Ramp, 36 Move Fire Hydrant,Install (1) R-1 Ramp, 37 Replace 4With 1,340 SF Of 5' Sidewalk , Remove Landscaping, 38 Repair/ Replace 952Square Feet Of Sidewalk Install (1) P-1Ramp, Remove 35 Landscaping 40 Install (1) R-1 Ramp, 41 Install (1) R-1 Ramp, 42 Install (1) R-1 Ramp, Remove Landscaping NEW RAMP REHAB RAMP REHAB SIDEWALK 771717; Document Poliv ,F.5100‘lpyar,loNdmin'OpaqnlaspodatIon Dovel''',nlent0roup.13 0apn.Varson,l,traonsLetednneJuno0.m.; F'DI' Exported:My, June 00. :NM );ht M&C Review Page 1 of 2 MIMI CIL COUNCIL ACTION: Approved on 10/13/2015 DATE: 10/13/2015 REFERENCE NO.: **G-18588 LOG NAME' CODE: G TYPE• CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Settlement of Claims Related to the Lawsuit Entitled Margaret Parsons and Kimberly Uffelman v City of Fort Worth, Texas and University Park Owners Association, Inc., Civil Action No. 4:14-CV-570-BJ, in the United States District Court for the Northern District of Texas, and Authorize Execution of Releases and Agreements Necessary to Complete the Settlement (COUNCIL DISTRICTS 7 and 9) Official site of the City of Fort Woith, Texas FORT WORTH 12PARSONS SETTLEMENT(2) RECOMMENDATION: It is recommended that the City Council: 1. Approve the below -described settlement of the claims alleged in the lawsuit and authorize payment of a total of $7,500.00 in attorney's fees to Joseph P. Berra and Frank P. Colosi, $300.00 to each Plaintiff and the use of approximately $150,000.00 in funds from the 2014 Bond Program (sidewalks portion) to rehab the sidewalks and rights -of -way necessary to ensure ADA compliance in accordance with the Settlement Agreement, for the settlement of all possible claims related to the lawsuit styled Margaret Parsons and Kimberly Uffelman v. City of Fort Worth, Texas and University P ark Owners Association, Inc., Civil Action No. 4:14-CV-570-BJ, in the United States Distract Court for the Northern District of Texas; and 2. Authorize the execution of Releases and Agreements necessary to complete the settlement. • DISCUSSION: This case arises out of sidewalks and public rights -of -way that Plaintiffs allege do not comply with the Americans with Disabilities Act and allegedly constitute unlawful discrimination on the basis of disability. The sidewalks at issue surround CASA and University Park Condominiums, near U niversity Drive and Bristol Road, south to University Avenue, Bailey Avenue and Camp Bowie Boulevard that permit access to West 7th Street and West Lancaster Avenue. An Agreement was reached to settle the case for $7,500.00 in attorney's fees, $300.00 to each P laintiff and the use of approximately $150,000.00 in funds from the 2014 Bond Program (sidewalks portion) to rehab most of the areas referenced in the lawsuit, subject to City Council approval. The sidewalk funding in the amount of $150 000.00 will be appropriated with the Fiscal Year 2016 Appropriation Ordinance for the 2014 Bond Program. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that upon approval of these recommendations, funds are included in the Fiscal Year 2015 adopted budget of the Risk Financing Fund, Risk Management Division, and funds are included in the current capital budget, as appropriated, of the 2014 Bond Program Fund for these expenditures. http ://apps. cfwnet org/council packet/mc_review. asp?ID=21 53 0&councildate=1 0/1 3/201 5 10/19/2015 M&C Review Page 2 of 2 TO Fund FROM Fund 11) 60111 (1) 34014 Department ID Department ID 0147120 0201000 Account Account Project ID Program Project Program ID 5520104 5740010 I CO2704 Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS Activity Budget Year Activity Budget Year 2016 3883 2016 Reference # Amount (Chartfield 2) Reference # Amount (Chartfield 2) $8,100.00 010207 $150,000.00 Jesus J. Chapa (5804) Doug Wiersig (7801) Christopher B. Mosley (7603) http://apps.cfwnet.org/couneil_paeket/me_review.asp?ID=21 53 0&councildate=1 0/13/2015 10/19/2015