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Ordinance No. 11,976ORDINANCE NO. 11,976 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A COMPROMISE SETTLEMENT AGREEMENT AND RELEASE WITH THE PLAINTIFFS IN CAUSE NO. 2001 - 62439, KEITH LOWELL, ET AL., V. CITY OF BAYTOWN, TEXAS, IN THE 215TH JUDICIAL COURT OF HARRIS COUNTY, TEXAS; AUTHORIZING PAYMENT IN ACCORDANCE WITH SAID AGREEMENT; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. * *r *+ *s + * * + * + +s* array*►■ �� +► * + *e * * +� * +. *+r *r *� *. * * + *.. +. *sat * * +� * « *s• *rr +�� + * +��. * + *+ BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Attorney to execute a Compromise Settlement Agreement and Release with the plaintiffs in Cause No. 2001 - 62439, Keith Lowell, et al., v. City of Baytown, Texas, in the 215th Judicial Court of Harris County, Texas. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment in accordance with the agreement authorized in Section 1 hereinabove. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote 61 City Council of the City of Baytown this the 28'h day of June, 2012. \ \Cobfs0l \legal \Karen \Files \City Council\Ordinances\2012Uune 28\ Lowell Settlemen [Agreemen[Ordinance.doc Exhibit "A" NO. 2001-62439 KEITH LOWELL, JEFF DAIGLE, § IN THE DISTRICT COURT OF RICHARD S. DOMASK, W. A. DOMASK, § RALPH FENIELLO, RODNEY FOSTER, § GASTON GAGNE, DERRICK GASKIN, § JAMES SLATE HILL, MARSHALL § HUTTON, JARED JACKSON, § JAMES T. LEWIS, TRACY E. LINDSEY, § VICTOR MEDINA, MARK MEDRANO, § JAMES MOSS, JR., CHARLES E. § MURRELL, SCOTT PRITCHETT, § RAUL RODRIGUEZ, JR., SHAWN RUSSI, § BRIAN W. SMITH, JOHN WADLEY, § MILLARD WILLIAMS, JR., GARY M. § WILLS, JR., MICHAEL WOOSTER, § JAMES BURGESS, ROBERT BURLIN, § GILBERT CONTRERAS, DAVID COX, § JAMES T. DATILLO, SR., DANIEL J. § DUBIEL, BARRY I. HAWKINS, § WALTER HORTON, JACKIE ICKES, § PAUL MUNOZ, MARK NEAL, § FREDERICK D. SPENCER, § OF HARRIS COUNTY, TEXAS FERREL J. ANGELLE, BILL BAYLIS, § THOMAS CARR, ROSS L. HARGIS, § RICHARD LOPEZ, ROBERT T. MCKAY, § VICTOR MEDRANO, § GEORGE J. RESTIVO, WEYLON § ROBINSON, TIMOTHY ROGERS, § MICHAEL K. RYAN, LARRY A. § TROUTMAN, and MARIAN WYSE, § Plaintiffs, § V. § CITY OF BAYTOWN, TEXAS, and § FIRE CHIEF SHON BLAKE, in his official § capacity, § Defendants. § 215`h JUDICIAL DISTRICT COMPROMISE SETTLEMENT AGREEMENT AND RELEASE THIS AGREEMENT is between Plaintiffs and the City of Baytown and Shon Blake, in his official capacity ( "Defendants "). WHEREAS, Plaintiffs instituted the above - styled and numbered lawsuit in the 215th District Court of Harris County (the "Lawsuit ") against Defendants, seeking backpay and other relief for alleged violations of state civil service law relating to the payment of higher classification pay to the Plaintiffs, and Defendants timely answered, denying liability and damages; and WHEREAS, bona fide disputes exist between Plaintiffs and Defendants, with respect to any and all claims and causes of action which were, or could have been asserted by Plaintiffs in the Lawsuit; and WHEREAS, by reason of such disputes, the parties hereto desire to compromise and settle all claims and causes of action of any kind that Plaintiffs have or had against Defendants which were, or could have been asserted by Plaintiffs against Defendants in the Lawsuit. IT IS THEREFORE AGREED as follows: 1. For and in consideration of the sum of ONE HUNDRED SIXTY -TWO THOUSAND TWO HUNDRED NINETY -NINE AND 35/100 DOLLARS ($162,299.35) paid on behalf of the City of Baytown, the receipt of which is hereby acknowledged, Plaintiffs hereby compromise, settle, release, and forever discharge the Defendant Blake and Defendant City of Baytown, and its elected officials, officers, agents, current and former employees, representatives, affiliates, and related entities, jointly and individually, and all persons acting by, through or with any of them (collectively referred to as the "Releasees "), of and from any and all claims, demands, rights, remedies, causes of action, debts, liabilities, obligations, contracts, damages, costs (including, without limitation, attorneys' fees and all costs of court or other proceedings), expenses and losses of any kind, whether or not now known, and whether or not now discovered or discoverable, and from all liability arising out of or related directly or Compromise Settlement Agreement & Release, Page 2 indirectly to the events or claims giving rise to the Lawsuit, including without limitation, any occurrence that was brought or could have been brought in this Lawsuit, and expressly includes all claims that could have been made up to the date of execution of this Agreement. Plaintiffs understand and agree that any claims of a nature similar to those that were the subject of this Lawsuit which may occur following the date of execution of this Agreement shall be governed by the then - applicable Collective Bargaining Agreement between Local 1173 of the International Association of Fire Fighters and Defendant City and shall not be brought in a court of law. 2. Plaintiffs' counsel shall file a Dismissal with Prejudice of the lawsuit within seven (7) days of receipt by Plaintiffs' counsel of the payment referenced in Paragraph 1 of this Agreement. 3. Each Plaintiff shall execute a release in the form attached hereto as Exhibit A and incorporated herein for all intents and purposes. Within ten (10) business days of receipt of all of the Plaintiffs' executed releases, the Defendant City of Baytown shall tender to Plaintiffs' counsel a check made payable to Deats Durst Owen & Levy, PLLC, (`the law firm ") in the amount specified in Paragraph 1 of this Agreement. Defendant City of Baytown shall issue a Form 1099 -MISC to the law firm along with the settlement check. The law firm shall be responsible for issuing each individual Plaintiff a check representing his share of the settlement amount, and the law firm shall issue a corresponding Form 1099 -MISC to each Plaintiffs based upon the apportionment of the settlement proceeds. Plaintiffs shall be solely responsible for any and all federal, state and local taxes owed by them due to their receipt of any portion of the settlement paid in accordance with this Agreement. Defendant City shall have no obligation to make further payment to or on behalf of any Plaintiff on account of his receipt of a portion of the settlement proceeds referenced in Paragraph 1 of this Agreement. Compromise Settlement Agreement & Release, Page 3 4. Each party shall pay costs incurred by same. It is expressly understood by Plaintiffs that the Releasees do not assume liability for attorney fees and costs incurred by Plaintiffs. The Plaintiffs agree to pay all attorney fees and costs associated with bringing this Lawsuit, whether already incurred or incurred in the future, and to indemnify and hold harmless the Releasees from the payment of such items of attorney's fees and costs, past, present and future. 5. Releasees have denied and still deny liability on the merits of the claims for damages allegedly sustained by Plaintiffs. This Compromise Settlement Agreement and Release is entered by the Defendants for the sole purpose of avoiding the time, expense and uncertainty which would accompany further litigation. The Compromise Settlement Agreement and Release shall not be construed as an admission of liability on the part of the Releasees or as payment of any compensation, wages, or damages due Plaintiffs. The apportionment and distribution of the settlement proceeds among the Plaintiffs shall be at the sole discretion of the Plaintiffs and the Defendants shall have no obligation or liability therefor. 6. This Compromise Settlement Agreement and Release of All Claims shall be binding on Plaintiffs, the Defendants, and their respective heirs, administrators, executors, legal representatives, and anyone claiming by or through them forever. 7. The undersigned have read and understand this Compromise Settlement Agreement and Release. Each of the individual Plaintiffs and the Defendants have read and understand this Compromise Settlement Agreement and Release, and agree to be bound by it. 8. In consideration of the payment in Paragraph 1 of this Agreement, the receipt and sufficiency of which is hereby acknowledged, Local 1173 of the International Association of Fire Fighters agrees it will not sponsor, support, or endorse any litigation in the future relating to the Compromise Settlement Agreement & Release, Page 4 design, implementation, and continuing administration of the City of Baytown Fire Department's 1997 -2001 pay plans. The Association further confirms it is not now sponsoring, supporting or endorsing any such litigation against Defendant. 9. This Compromise Settlement Agreement and Release shall be a bar to any further litigation against the Releasees in this case or in any claim growing out of the design, implementation, and administration of the City of Baytown Fire Department's Pay Plans in September 2001, and thereafter, as contained in the Local 1173's and the Defendant City's successive Collective Bargaining Agreements. AGREED AS TO FORM AND CONTENT: B. Craig Deats Attorney for Plaintiffs Bettye Lynn Attorney for Defendant Compromise Settlement Agreement & Release, Page 5 Exhibit "A" RELEASE Plaintiff STATE OF TEXAS § COUNTY OF HARRIS § (Name) I, (Name), represent and warrant that I have been given an opportunity to consider the Compromise Settlement Agreement and Release by and between Plaintiffs and Defendants (the "Agreement ") in the lawsuit styled Keith Lowell, et al., v. City of Baytown, Cause No. 2001 - 62439, 2150' Judicial District, Harris County, Texas (the "Lawsuit "). I also represent and warrant that I have been given the opportunity to be fully advised by the counsel of my choosing regarding the meaning and the effect of the Agreement and that I rely after consultation with my counsel wholly upon my own judgment, belief, and knowledge of the nature and extent of the damages alleged and the liability questions involved in the Lawsuit. I covenant that I have not been influenced to any extent whatsoever or induced to enter into the Agreement or this release in reliance upon any statement, promise or representation of the City of Baytown, its officers, agents or employees. I understand and agree that by executing this release I am agreeing to compromise, settle, release, and forever discharge the Defendant Blake and Defendant City of Baytown, and its elected officials, officers, agents, current and former employees, representatives, affiliates, and related entities, jointly and individually, and all persons acting by, through or with any of them, of and from any and all claims, demands, rights, remedies, causes of action, debts, liabilities, obligations, contracts, damages, costs (including, without limitation, attorneys' fees and all costs of court or other proceedings), expenses and losses of any kind, whether or not now known, and whether or not now discovered or discoverable, and from all liability arising out of or related directly or indirectly to the events or claims giving rise to the Lawsuit, including without limitation, any occurrence that was brought or could have been brought in this Lawsuit or otherwise, up to the date of the execution of my Release. I further agree that any claims of a nature similar to those that were or could have been the subject of this lawsuit, which may occur following the date of execution of this Release, shall be governed by the then - applicable Collective Bargaining Agreement between Local 1173 of the International Association of Fire Fighters and Defendant City, and I further agree that I will not file a lawsuit in a court of law related to such future claims that may arise. I understand and agree that I will be responsible for attorneys' fees as well as any and all other costs and expenses incurred in connection with the Lawsuit and the Compromise Settlement Agreement and Release. Furthermore, I understand and agree that I shall be responsible for any and all federal, state and local taxes owed by me due to my receipt of any portion of the settlement paid to me from the settlement funds. I represent and warrant that I have not conveyed, transferred, assigned, pledged or otherwise encumbered any of my rights in the claims asserted or that could be asserted in the Lawsuit and that all of my interests are being completely released and discharged by the Agreement and this release. Release. Page 1 This release shall become effective and enforceable immediately upon my execution and shall thereafter remain in effect. WITNESS MY HAND this day of , 2012. STATE OF TEXAS § COUNTY OF HARRIS § Before me, notary public, on this day personally appeared known to me; proved to me on the oath of proved to me through (Name), PLAINTIFF the undersigned {Name), or his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) 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 expressed; that he executed the same as his free and voluntary act and deed after having it fully explained to him, and after having read it fully, and after realizing the effect thereof to be a full and final release and discharge of the Defendants and their officers, agents, servants, and employees, and all persons, natural or corporate, in privity with them or any of them for any matter or thing dealt with in the foregoing instrument; and that the same was executed by him without any threat, force, fraud, duress, or representation of any kind by any person whomsoever; and that he at the time of execution of the release was capable of understanding the character of his acts and deeds and was in complete charge of all of his faculties and capable of executing this instrument and of understanding the significance of his acts. SUBSCRIBED AND SWORN before me on this day of , 2012. Notary Public in and for the State of Texas Release, Page 2