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CM-13-012ROUND ROCK, TEXAS P AMOK nueronr City of Round Rock Agenda Item Summary Agenda Number: Title: Consider executing Full and Final Settlement, Release and Confidentiality Agreement with Felipe Rodriguez, III. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 3/29/2013 Dept Director: Tim Ryle Cost: $13,000.00 Indexes: General Fund Attachments: 00271097.PDF, 00271098.PDF Text of Legislative File CM -13-012 City of Round Rock Page 1 Printed on 3128/2013 FULL AND FINAL SETTLEMENT, RELEASE AND CONFIDENTIALITY AGREEMENT This Full and Final Settlement, Release and Confidentiality Agreement is entered into by and between Felipe Rodriguez, III and the City of Round Rock, Texas, a Texas home -rule municipality, for the mutual consideration recited herein. A. DEFINITIONS 1. "Claimant" as used herein shall mean Felipe Rodriguez, III, and shall include any and all "Derivative Claimants" and "Entities" as defined below. 2. "City" shall mean the City of Round Rock, Texas, and shall include any and all "Entities" as defined below. 3. "Derivative Claimants" shall mean any person or entity acting by, through, or under Claimant, or by virtue of any relationship to Claimant or any of the Entities of Claimant, including by reason of marriage or family relationships. 4. "Entities" of a party shall mean those persons and/or entities (whether now in existence or not) that are, or were, owned or controlled, in whole or in part, directly or indirectly, by a party to this Agreement, or any Derivative Claimant, and their respective entities, employers, employees, directors, shareholders, officers, assigns, predecessors, successors, attorneys, representatives or agent of such persons and/or entities. 5. "Representatives" of a person or entity shall mean and include all of that person's or entity's past or present principals, agents, servants, employees, attorneys, consultants, experts, partners (both general and/or limited), equity participants, officers, directors, shareholders, parent 00270884.doc/jmr 1 CP -(3-012 companies, subsidiaries, affiliates, predecessors, successors, assigns, estates, beneficiaries, heirs, devisees, legatees, trustees, and personal representatives. 6. "Agreement" shall mean this Full and Final Settlement, Release and Confidentiality Agreement by and between the parties hereto. 7. "Effective Date" shall mean the last date of due execution by both parties to this Agreement. B. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE WHEREAS, Claimant has asserted various claims against the City, alleging various causes of action related to Claimant's arrest in Sterling County, Texas (the "Claims"); and WHEREAS, the City has denied, and continues to deny, all such allegations by Claimant; and WHEREAS, this Agreement, and the execution hereof, is not, and is not intended to be, and shall not be construed to be, an admission of any fault or wrongdoing by or on behalf of the City, all such claims having been expressly denied heretofore, and the City continues to deny the same; and WHEREAS, all provisions of this Agreement are contractual in nature, and not mere recitals only; and WHEREAS, the purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the incorporation of the above Recitals, the parties hereto agree as follows: 2 C. PERSONS AND ENTITIES BOUND BY THIS AGREEMENT 1. Claimant understands and agrees that by execution hereof, the terms of this Agreement are binding upon Claimant and upon all Representatives, Derivative Claimants, Entities, successors, and assigns of Claimant. 2. Claimant represents and warrants that Claimant has approved of all of the terms, conditions and covenants of this Agreement as evidenced by the duly authorized signature to this Agreement. 3. The City represents and warrants that the City has approved of all of the terms, conditions and covenants of this Agreement as evidenced by the duly authorized signature to this Agreement. D. NO OUTSTANDING CLAIMS 1. Claimant warrants and represents that Claimant does not have any awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge or grievance possessed by Claimant or Derivative Claimants that is not subject to and fully released by this Agreement, that concerns or relates in any way, directly or indirectly, to the Claims. 2. Claimant warrants and represents that Claimant has not assigned, authorized or transferred in any way, whether directly or indirectly, any claims, demands, suits, causes of action, charges, or grievances of any kind or character, that Claimant had or may have had prior to and including the Effective Date against the City. Claimant neither has, nor owns, any part of any actual or potential claims, demands, suits, causes of action, charges, or grievances of any kind or character against each other which are not subject to and released by this Agreement. 3 E. CONSIDERATION 1. In consideration of the total sum of THIRTEEN THOUSAND AND NO/100 DOLLARS ($13,000.00), the receipt and sufficiency of which is hereby acknowledged by Claimant, and in consideration of the mutual agreements, conditions, representations, warranties, recitals, covenants and statements of intention contained herein, Claimant hereby accepts the above - referenced payment in full settlement, compromise and release of all claims as arising out of or in connection with the Claims, pursuant to this Agreement, against the City. 2. The City shall tender such sum in the following manner: within 20 days of the Effective Date of this Agreement, the City shall deliver a check for the total amount of the settlement sum to Claimant's attorney, made payable to Felipe Rodriguez, IIL 3. Each party agrees to be solely responsible for the payment of their respective attorney's fees, court costs, expert witness fees, court reporter's fees, and all other expenses incurred on said party's behalf as a result of or in connection with the Claims and/or this Agreement. F. RELEASE Claimant hereby covenants, agrees and consents to the following: 1. The intent of the parties hereto is that each person or entity executing this Agreement shall, by reason of such execution, be entirely free of any and all actual or potential claims, suits, demands, causes of action, charges or grievances of any kind or character, regardless of the nature or extent of the same, arising out of the Claims. 2. Claimant hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES the City and any of the City's Representatives, Entities, agents and employees, and 4 Claimant further covenants not to assert in any manner against any of such persons or entities released hereby, any and all actual or potential claims held by Claimant, against the City, and/or any suits, demands, causes of action, charges or grievances of any kind or character whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted or suffered to be done by any such party hereto prior to and including the date hereof, and in any manner, whether directly or indirectly, arising from or related to the Claims. G. EXPRESS DENIAL OF LIABILITIES Claimant and the City, and/or their Representatives, understand and agree that no payment made nor released pursuant to the terms of the Agreement, or other consideration given shall be intended to be, nor shall be construed to be, an admission of liability and any and all such liability is expressly denied. H. SEVERABILITY If any one or more of the provisions of this Agreement, or the application of any such provision to any person, entity, or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent at any time, the remainder of this Agreement, and the application of such provision to persons, entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, unlawful, or unenforceable provision hereof shall be reformed to the extent necessary to render it valid, lawful, and enforceable in a manner consistent with the intentions of the parties hereto regarding such provision. 5 I. ENTIRE AGREEMENT OF THE PARTIES This Agreement constitutes the entire agreement and understanding of Claimant and the City with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject matter hereof. No representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Agreement or in connection with the transactions contemplated hereby, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Agreement shall be binding upon, inure to the benefit of, and be enforceable by Claimant and the City. J. CONFIDENTIALITY The parties expressly agree that the terms and conditions of this Agreement, and all matters relating to the Claims not otherwise contained in any public records, shall be kept strictly confidential and shall not be revealed or divulged to any third persons or entities except as necessary for tax purposes and/or necessary and legitimate purposes, or pursuant to a court order. The parties further agree and acknowledge that this Agreement not be disseminated to any third party without the prior written consent of the parties to the Agreement, except as may be required by law or court order. 6 K. GOVERNING LAW This Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the parties are performable, and venue for any legal action arising out of this Agreement shall lie in Williamson County, Texas. L. FULL UNDERSTANDING AND AGREEMENT EACH RELEASING PERSON, ENTITY, OR PARTY WARRANTS THAT SUCH PARTY HAS READ THIS FULL AND FINAL AGREEMENT AND MUTUAL RELEASE, INCLUDING EXHIBITS, AND FULLY UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS AGREEMENT AND MUTUAL RELEASE, AND THAT SUCH PARTY HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. M. EXECUTION AND EFFECTIVE DATE This Agreement may be signed in counterparts, and each counterpart shall constitute an original. The parties hereto have executed this Agreement on the dates set forth opposite their names, to be effective as of the last date of due execution. 7 Date CITY OF ROUND ROCK, TEXAS Steve Norw Date 8 anager