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HomeMy WebLinkAboutContract 49020Ai% RECEIVED )1\ a25pl CM' OF FORT WORTH c;) C(TYSE'CREfARY IA/ TA KA GAMBLE, Individually and as Next Friend of E. C. III, a Minor, OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Plaintiff, GREGORY CHILDRESS and CITY OF FORT WORTH, Defendants .1196r278 68-16 CITY sECRErAavtjCONTRACTN0. I /010 IN THE DISTRICT COURT 96TH JUDICIAL DISTRICT TARRANT COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE THE STATE OF TEXAS COUNTY OF TARRANT WHEREAS, in the above numbered and entitled cause, ERNEST CAREY III (hereinafter "E.C."), a Minor, by and through his Next Friend, TANNIKA GAMBLE, hereinafter referred to as "Plaintiffs," have sued THE CITY OF FORT WORTH, hereinafter referred to as "Defendant," in the 96th District 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 April 12, 2016 as referenced in Plaintiffs' Original Petition and reference is hereby made to Plaintiffs' Original Petition in Cause No. 096-287968-16 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 TANNIKA GAMBLE AS NEXT FRIEND OF E.C. 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 $ 16,500.00 to be paid as follows: a. Payment of $16,500.00 to TANNIKA GAMBLE AS NEXT FRIEND OF E.C., a Compromise Settlement Agreement and Release—TANNIKA GAMBLE, et al vs. City of Fort Worth Page 1 of 7 minor, of which sum $5,813.33 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 form 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 foam 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 153r1 District Court of Tarrant County Texas, Plaintiffs agiee 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 E.C., 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, TANNIKA GAMBLE, as Next Friend of E.C., 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 E.C., in the lawsuit being Cause No. 096- 287968-16, in the 96th 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 E C and Defendant concerning the lawsuit being Cause No. 096- 287968-16, in the 96th District Court of Tarrant County, Texas. Compromise Settlement Agreement and Release-TANNIKA GAMBLE, et al vs. City of Fort Worth Page 2 of 7 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 lights 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, TANNIKA GAMBLE, warrants and represents she is the natural parent, guardian and next friend of the minor Plaintiff, E.C., 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, TANNIKA GAMBLE, represents and testifies that this settlement and agreement is in the best interest of the minor Plaintiff, E.C. 7 Plaintiff, TANNIKA GAMBLE, in her representative capacity, does for the minor Plaintiff, and his successors, heirs, executors, administrators, representatives, insurers, agents, and assigns covenants and agrees that he will not institute any suit or action, or prosecute or in any manner voluntarily aid in the institution or prosecution 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 E C. 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 Compromise Settlement Agreement and Release-TANNIKA GAMBLE, et al vs. City of Fort Worth Page 3 of 7 or a valid subrogation interest PLAINTIFFS WILL DEFEND, HOLD HARMLESS AND INDEMNIFY THE DEFENDANT, THE CITY OF FORT WORTH AND ITS 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 Defendants 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 prejudice. this Release and Settlement Agreement shall be null and void and of no effect. 11. This Agreement and the attached 1-1,xhibit 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 performed 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 terms 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 Compromise Settlement Agreement and Release-TANNIKA GAMBLE, et al vs. City of Fort Worth Page 4 of 7 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. 18. MICHELE WONG KRAUSE is the GUARDIAN AD LITEM for the minor, E.C., 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, E.C., and should be approved by the court 19. Costs of court incurred by each party and assessed by the 96th District Court of Tarrant County, Texas in Cause No. 096-287968-16 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 on this date being the 2 2, day of March, 2017. THE STATE OF TEXAS COUNTY OF TARRANT § TANNIKA GAMBLE, as Next Friend of E.C. a Minor This instrument was acknowledged before me on the 2 2-- day of March, 2017, by TANNIKA GAMBLE as Next Friend of E C., a Minor. BAILEY LARRAINE WILLETT Nptary Ip • 130628454 My Commission Expires April 21, 2020 Notary Public, St'at of Texas My Commission Expires: 4 /; ft APPROVED: The undersigned guardian ad litem for the minor, MICHELE 9,0 ONG Compromise Settlement Agreement and Release-TANNIKA GAMBLE, et al vs. City of Fort Worth Page 5 of 7 APPROVED: The undersigned guardian ad litem for the minor, MICHELE WONG KRAUSE, 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. • u>cLe MICHELE WONCIkRAUSE, Guardian Ad Litem APPROVED AS TO SUBSTANCE AND FORM: Mi'. Fredrick Williams Godsey Martin, P.C. 1909 Woodall Rodgers Freeway, Suite 200 Dallas, Texas 75201 fwlIIiamsAg mflrni.com Attorney for Plaintiff TANNIKA GAMBLE a/n/f of E.C. CITY OF FORT WORTH: Assistant City Manager APPROVED AS TO FORM: Step► en ie, Assistant City Attorney At orney for Defendant City of Fort Worth ATTEST: Mary K . ► s ,/rC y Secretary FACIAL MC RR CITY SECRET Rif ® ' , Compromise Settlement Agreement and Release-TANNIKA GAMBLE, et al vs. City of Fort Worth Page 6offr7 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Compromise Settlement Agreement and Release-TANNIKA GAMBLE, et al vs. City of Fort Worth Page7of7 ALLOCATION OF SETTLEMENT PROCEEDS Ernest Cary SETTLEMENT AMOUNT $16,500.00 Less Attorney Fees: $ 5,500.00 (Less than 1 / 3 of settlement Amount) AMOUNT DUE MINOR BEFORE EXPENSES & DEDUCTIONS $11,000.00 Less Out Of Pocket Expenses: Case Expenses S 198.50 TOTAL OUT OF POCKET EXPENSES $ 198.50 Outstanding Medical Bills: Harris Methodist Hospital Southwest $ 3,627.45 (Original Amount $4,030 50) (Reduced to $3,627.47) Texas Workers Rehab S 800.00 (Original Amount $1,807.00) (Reduced to $ 800 00) SUB -TOTAL OUTSTANDING MEDICAL $4,427.45 Total Known Outstanding Subrogation Interests: Medicaid Optum Subrogation Services TOTAL MEDICAL/ SUBRO EXPENSES 359.18 $ 359.18 TOTAL DEDUCTIONS $10,485.13 TOTAL NET AMOUNT TO MINOR $6,014.87 EXHIBIT A