HomeMy WebLinkAboutContract 48100-U.T�
RECEIVED
AUG 18 2016
hi 1Y OF FORT WORTH
(;11YSEGRETARY
CAUSE NO. 153-283658-16
DIAMANTIA ALEMAN, INDIV.
AND AS NEXT FRIEND OF
I.R., A MINOR
Plaintiffs,
VS.
CITY OF FORT WORTH,
Defendant.
CITY SECRETARY
CI T Y
CONTRACT NO0 11
IN THE DISTRICT COURT OF
TARRANT COUNTY, TEXAS
153rd JUDICIAL DISTRICT
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE
THE STATE OF TEXAS
COUNTY OF TARRANT
WHEREAS, in the above numbered and entitled cause, IVAN RIVAS (hereinafter
"I.R."), a Minor, by and through his Next Friend, DIAMANTIA ALEMAN, hereinafter referred
to as "Plaintiffs," have sued THE CITY OF FORT WORTH, hereinafter referred to as
"Defendant," in the 153r1District Court of Tarrant County, Texas; and
WHEREAS, the Plaintiffs and the Defendant desire to and have agreed to compromise
and settle all claims arising out of the automobile accident of March 12, 2014, at the intersection
of Henderson Street and Texas Street in Fort Worth, Tarrant County, Texas, all as described in
Plaintiffs' Original Petition and reference is hereby made to Plaintiffs' Original Petition in Cause
No. 153-283658-16 for a full description of said transactions and allegations of Plaintiffs against
Defendant; and
WHEREAS, the parties have agreed to settle the lawsuit as follows and do bind
themselves to this agreement in compromise and settlement of any and all issues between them,
to -wit:
TERMS AND CONDITIONS
1. For and in consideration of the agreement of Plaintiff DIAMANTIA ALEMAN AS
NEXT FRIEND OF I.R. agrees to release, settle, compromise and discharge Defendant as set
out herein, Defendant agrees to pay to or on behalf of Plaintiffs the sum of $8,000.00 to be paid
n as, follows:
'< a. Payment of $8 000.00 to DIAMANTIA ALEMAN AS NEXTOF � � FRIEND y I.R.,
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4.9mpromise Settlement Agreement and Release-Diamantia Aleman, et al vs. City of Fort Worth
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Page 1 of 6
minor, of which sum $3,755.98 is to be placed in the Registry of the Court, with
Attorneys' fees, legal expenses, and medical expenses to be paid out according to the
foul attached and annexed hereto as Exhibit ' A."
b. Payments Not Income
Releasing parties acknowledge that there is no factual or legal basis for the assertion or
recovery of punitive damages or exemplary damages. All parties presently intend and
contemplate that all of the payments made to the Plaintiffs pursuant to this Settlement Agreement
are for damages received on account of personal physical injuries or physical sickness within the
meaning of Section 104(a)(2) and Section 130 of the Internal Revenue Code of 1986, as
amended, and no portion of those amounts represent pre judgment interest, post judgment
interest or punitive damages. Released parties further agree that they will not file a Form 1099
or any other form reporting the settlement amount to the Internal Revenue Service, except as
required by the Internal Revenue Service for reporting payments to attorneys.
RELEASE OF OBLIGATIONS
2 In consideration of the terms and provisions of this settlement agreement and release, as
herein stated, and upon the dismissal of the lawsuit, herein described, by the 153rd District Court
of Tarrant County, Texas, Plaintiffs agree and do hereby release, acquit and forever discharge
Defendant, The City of Fort Worth, and its employees, attorneys, and council members, in their
official and individual capacities, including their successors and assigns, from any and all claims,
demands, suits, debts, promises, damages, judgments, executions, guaranties or warranties
whatsoever in law or in equity, actions and causes of action of whatever kind and character
whether in contract or in tort, known or unknown, presently existing or which might ever accrue
to Plaintiff I.R., arising out of or having to do with the claims, causes of action or allegations
described in Plaintiffs' pleadings of any claims, demands, suits, debts, promises, damages,
judgments, executions, guaranties or warranties whatsoever which might arise as a result of any
actions or conduct of The City of Fort Worth.
3. For the same consideration as herein set out, Plaintiff, DIAMANTIA ALEMAN, as
Next Friend of I.R., a minor, does in her representative capacity, her heirs, executors,
administrators, successors and assigns, hereby release, acquit and forever discharge Defendant,
the City of Fort Worth, and its employees, attorneys, and council members, in their official and
individual capacities, including their successors and assigns, from any and all claims, demands,
attorney's fees, penalties, actions and causes of action of whatever kind and character, whether in
contract or in tort, known or unknown, presently existing or which may accrue in the future,
arising as described in Plaintiffs' Original Petition, in regards to I.R , in the lawsuit being Cause
No. 153-283658-16, in the 153rd District Court of Tarrant County, Texas.
4. This Release is intended to extinguish any and all debts, obligations or causes of action
existing between Plaintiff I.R. and Defendant concerning the lawsuit being Cause No. 153-
283658-16, in the 153rd District Court of Tarrant County, Texas
Compromise Settlement Agreement and Release-Diamantia Aleman, et al vs. City of Fort Worth
Page 2 of 6
5. It is the intention of Plaintiffs and Defendant that this release shall be effective as a full
and final accord and satisfaction and as a bar to all actions, causes of action, costs, expenses,
attorney's fees, damages, claims, and liabilities whatsoever whether or not known, suspected,
claimed or concealed. Plaintiffs expressly waive and relinquish any and all rights and benefits
which they may have under Texas and Federal statute or common law principal, to the fullest
extent that they may lawfully waive such rights or benefits pertaining to the release of claims
against Defendant. In connection with such waiver and relinquishment, Plaintiffs acknowledge
that they are aware that they may hereafter discover claims liens, or facts in addition to or
different from those which they now know or believe to exist with respect to the subject matter
of this release, but it is their intention to fully, finally and forever settle and release all of the
disputes and differences known or unknown, suspected or unsuspected which do now exist,
which may exist in the future, or have existed between Plaintiffs and Defendant arising out of or
in connection with the released claims.
6. Plaintiff, DIAMANTIA ALEMAN, warrants and represents she is the natural parent,
guardian and next friend of the minor Plaintiff, I.R., herein, and no other party or entity owns or
holds any claim or cause of action by, for or through the minor Plaintiff regarding the
circumstances arising from the matters contained in this Release and Settlement Agreement.
Plaintiff, DIAMANTIA ALEMAN, represents and testifies that this settlement and agreement is
in the best interest of the minor Plaintiff, I.R.
7 Plaintiff, DIAMANTIA ALEMAN, in her representative capacity, does for the minor
Plaintiff, and his successors, heirs, executors, administrators, representatives, insurers, agents,
and assigns, covenant and agree that she will not institute any suit or action, or prosecute or in
any manner voluntarily aid in the institution or piosecution of any claim, demand suit, action or
cause of action, State or Federal, against Defendant The City of Fort Worth, and its employees,
attorneys, and council members, in their official and individual capacities, including their
successors and assigns, with respect to any matter, cause or thing whatsoever arising out of,
based in whole or in part upon, relating to, or existing, by reason of the transaction, events,
occurrences, acts, omissions or failures to act, of whatever kind or character whatsoever, alleged
or which could have been alleged, in this litigation with regards to I.R.
8. The purpose of this Agreement is to accomplish the compromise and settlement of
disputed and contested claims, and nothing in this agreement shall be construed as an admission
by any party to this agreement of any liability of any kind to any other party to this agreement.
Defendant denies the allegations set out in the Plaintiffs Original Petition and further denies
Defendant is liable to Plaintiffs in any respect whatsoever.
9 Plaintiffs specifically agree that they will indemnify and hold Defendant The City of Fort
Worth and its attorneys harmless against any and all losses, costs, expenses, and liabilities
(including reasonable attorney's fees) arising out of any suit filed against Defendant The City of
Fort Worth or their attorneys as a result of any claim for damages from Plaintiffs, including but
not limited to any lien or debt under the Texas Hospital Lien statutes or Medicare/Medicaid Lien
or a valid subrogation interest PLAINTIFFS WILL DEFEND, HOLD HARMLESS AND
INDEMNIFY THE DEFENDANT, THE CITY OF FORT WORTH AND ITS
Compromise Settlement Agreement and Release-Diamantia Aleman, et al vs. City of Fort Worth
Page 3 of 6
ATTORNEYS OF AND FROM ANY AND ALL SUCH CLAIMS ARISING FROM THE
LAWSUIT, AND EXPRESSLY WITH REFERENCE TO ANY LIENS UNDER STATE
OR FEDERAL LIEN LAW. SUCH INDEMNIFICATION IS INTENDED TO BE
EFFECTIVE AND IN FULL FORCE, EVEN IF SUCH CLAIMS ARISE OUT OF THE
PARTIAL OR COMPLETE NEGLIGENCE, GROSS NEGLIGENCE, OR OTHER
WRONGFUL CONDUCT OF THE DEFENDANT. Plaintiffs acknowledge and warrant that
they are solely responsible for any and all amounts paid to or by any provider of medical care or
service of supplies, including, but not limited to, prescription and non-prescription medications.
10. Plaintiffs shall take all necessary steps to have the pending litigation discontinued and
dismissed with prejudice as to Defendant pursuant to Texas Rule of Civil Procedure 162. These
steps shall include, without limitation, execution of the Judgment of the Court In the event that
the pending litigation is not discontinued and dismissed with preiudice, this Release and
Settlement Agreement shall be null and void and of no effect.
11. This Agreement and the attached Exhibit shall be governed by, interpreted, and enforced
in accordance with the laws of the State of Texas applied to contracts made in Texas to be
wholly perfouned in Texas by Texas domiciliaries.
12. Waiver of any one breach of the provisions of this agreement shall not be deemed a
waiver of any other breach of the same or other provisions of this Agreement.
13. All parties to this Agreement and their counsel, if any, have reviewed and revised this
agreement, and the normal rule of construction to the effect that any ambiguities in this
Agreement are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
14. This Agreement and the attached Exhibit constitute the complete expressions of the teinis
of the settlement. All prior and contemporaneous agreements, representations, and negotiations
are superseded.
15. If any provision of this Agreement is illegal or unenforceable, then that provision shall be
deemed stricken and all remaining provisions shall remain in force and effect.
16. No amendment to this Agreement shall be effective unless it is reflected in writing and
signed by a duly authorized representative of all parties to this Agreement.
17. Plaintiffs represent and warrant with respect to the Settlement Agreement and all matters
covered by and related to it, that they have been fully advised by an attorney of their choice, if
any, with respect to their rights and obligations and with respect to the execution of this
Settlement Agreement Plaintiffs declare that they know and understand the contents of the
Settlement Agreement and that this Settlement Agreement has been executed voluntarily.
Compromise Settlement Agreement and Release-Diamantia Aleman, et al vs. City of Fort Worth
Page 4 of 6
18. JESSE L. GAINES is the GUARDIAN AD LITEM for the minor, I.R., with respect to
the Settlement Agreement and all matters covered by and related to it and has had the
opportunity to review and advise the minor with respect to the minor's rights and obligations
with respect to the execution of this Settlement Agreement. By execution of this Agreement, the
guardian ad litem states that the settlement stated herein is in the best interest of the minor
Plaintiff, I.R., and should be approved by the court.
19. Costs of court incurred by each party and assessed by the 153rd District Court of Tarrant
County, Texas in Cause No. 153-283658-16 shall be paid by the party incurring same and
Defendant will pay any reasonable Guardian ad litem fee(s) awarded.
20. This Agreement and release shall become final, effective and consummated when the
Court approves the dismissal of the above numbered and entitled cause and enters final judgment
thereon. It is contemplated herein that this document may be signed by the parties at different
locations in order to bring this matter to an expeditious conclusion.
EXECUTED in multiple originals of e ual di nit on this date beingthe ri
of
Upq g Yday
August, 2016.
THE STATE OF TEXAS
COUNTY OF TARRANT §
DIAMANTIA ALEMAN, as Next Friend of
I.R., a Minor
This instrument was acknowledged before
DIAMANTIA ALEMAN as Next Friend of I.R., a
GABRIEL RIOS
Notary Public, State of Texas
My Commission Expires
August 06, 2017
•
me on the \ e\ day of August, 2016, by
Minor.
Notary Public, State of Tex is
My Commission Expires:
cAr 19A"\ 7,0
Compromise Settlement Agreement and Release-Diamantia Aleman, et al vs. City of Fort Worth
Page 5 of 6
APPROVED: The undersigned guardian ad litem for the minor, JESSE L. GAINES, approves
this Settlement Agreement, to the extent provided therein, and represents that the terms of it are
fair and equitable and in the best interest of the minor.
SSE L. GAINES, Guardian Ad Litem
APPROVED AS TO SUBSTANCE AND FORM:
Rolando Quesada
Jim Adler & Associates
The Tower at City Place, LB 40
2711 N. Haskell Avenue, Suite 2500
Dallas, Texas 75204
Phone: 214-442-5007
Fax: 214-220-3233
Email: rquesada@jimadler.com
Attorney for Plaintiff Diamantia Aleman a/n/f of I.R.
CITY OF FORT WORTH:
VOA) tAf
Valerie Washington, Assistant City Manager
APPROVED AS TO FORM:
,
/ I�
Brandon W. CarrAssistant City Attorney
Attorney for Defendant City of Fort
ATT iF
teote
ary 'Kayser, City Secretary
OFFICIAL RECORD
CITY SECRETARY
Ft WORTH, TX
•
Compromise Settlement Agreement and Release-Diamantia Aleman, et al vs. City of Fort Worth
Page 6 of 6
EXHI
I A
kg) IL lrli 11Z
of, ASSOCIATES
TEXAS INJURY LAWYERS
The Tower at City Place, Lock Box 40
2711 N. Haskell Avenue, Suite 2500
Dallas, Texas 75204-2910
(214) 320-1111 or (800) 993-9393
Facsimile (214) 220-3233
www.jimadler.com
CLIENT CLOSING STATEMENT (LIABILITY)
Ivan Rivas v. City of Fort Worth
Client: Ivan Rivas
Attorney: Ryan Evans
Closing Coordinator: Amy Aleman
Gross Settlement: City of Fort Worth
Attorneys Fee per Power of Attorney 331/ % of $ 8,000.00:
l
Case Number: 451608/D14-0857
Less reimbursement to Attorney for case expenses paid by Attorney:
Case Handling Fee --Minor
Cook Children's Medical Center
Radiology Associates of North Texas
PRS of Texas, LLC
PRS of Texas, LLC
Fee Waived
Ck#731316
Ck#714037
Ck#713980
Ck#713981
$0.00
$126.50
$10.00
$67.81
$67.81
$8,000.00
Cook Children's Medical Center Ck#715274 $109.23
Jim S. Adler Case Expenses Police Report $6.00
Total Case Expenses:
Less payments protected by Attorney to be paid by Attorney from settlement proceeds:
Area Metropolitan Ambulance Authority
Cook Children's Medical Center
Cook Children's Physician Network
Radiology Associates of North Texas
Total of Payments Protected by Attorney:
Less Liens to be paid by Attorney to:
Texas Children's Health ($1,889.08 Reduced 37%)
Net Amount Due to Client:
Ivan Rivas v. City of Fort Worth
Client Closing Statement
Page 1 of 2
$1,490.00
insurance/adjustments
$6,641.42
insurance/adjustments
$1,150.00
insurance/adjustments
$129.00
insurance/adjustments
$0.00
$0.00
$0.00
$0.00
<$2,666.67
<$387.35
<$0.00
<$1,190.00
$3,755.98
Client Initials
CLIENT ACKNOWLEDGMENTS AND ACCEPTANCE OF SETTLEMENT
1. I/We agree to accept the above sum in full and final settlement of all claims, past, present
and future that I/we have arising from the incident made the basis of the lawsuit.
2. I/We agree that any expenses, outstanding bills, healthcare or hospital liens, subrogation
liens, Medicare/Medicaid and/or other liens that are not listed above are my/our
responsibility to satisfy and I/we hold Jim S. Adler & Associates harmless for the
satisfaction any such expenses, bills and/or liens.
3. I/We acknowledge and specifically represent that I/we are not in arrears for any child
support obligation and that Uwe am/are not aware of any lien or judgment for any child
support arrearage against me/us.
4. I/We understand that any tax consequences associated with these settlement proceeds are
my/our responsibility and that Jim S. Adler & Associates makes no representation
regarding any tax consequences that may exist.
5. I/We acknowledge that I/we give up my/our right to a trial and freely accept this
settlement.
6. To assist with its file maintenance, I/we authorize Jim S. Adler & Associates to destroy
the contents of my/our file in its possession at the expiration of (5) years from the date
this document was executed.
7. I/We acknowledge and specifically represent that I/We are not presently involved in any
United Stated Bankruptcy Court proceedings as a debtor nor do I/We have any plans
within the next ninety (90) days to file for Bankruptcy protection.
8. I/We understand that the acceptance of this settlement concludes my/our attorney/client
relationship regarding the issues made the basis of our claims and that Jim S. Adler &
Associates will take no further action on my/our behalf regarding this matter.
9. I/We understand that a photocopy, facsimile, PDF or electronic version of any document
in my file shall serve as an original.
JIM S. ADLER & ASSOCIATES
By:
Vr
Dia'mantia Aleman a/n/f Ivan Rivas
Ivan Rivas v. City of Fort Worth
Client Closing Statement
Page 2 of 2
C.L 76(
Da; I t-1 I 11/
Date
Client Initials