Loading...
HomeMy WebLinkAboutContract 62080CINDY FINCH Plaintiff, V. CAUSE NO. 153-348557-23 KAREN AND DAN VERBOSKI, AIRBNB, INC., AND THE CITY OF FORT WORTH, Defendants. City Secretary 0,no ContractNo IN THE DISTRICT COURT 153RD JUDICIAL DISTRICT TARRANT COUNTY, TEXAS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS I. RECITALS WHEREAS, Cindy Finch, Plaintiff in the above entitled and numbered cause ("Plaintiff') alleges that on or about February 6, 2022, Plaintiff suffered personal injuries when she tripped and fell on the sidewalk while staying in a home owned by Defendants Karen and Dan Verboski and rented through Defendant Airbnb, Inc., located at 1728 Fifth Avenue in Fort Worth, Texas. WHEREAS, Plaintiff further alleges that the City of Fort Worth ("City" or "Defendant") had a legal duty to maintain the sidewalks and alleged failure to do so was the proximate cause of the incident described above; WHEREAS, as a result of such incident and the injuries and damages allegedly suffered by Plaintiff, a suit was filed against the City in the above -entitled and numbered cause, reference being made to the pleadings on file in said cause for a more full and complete description of Plaintiffs claim(s) and cause(s) of action; WHEREAS, Plaintiff has offered to compromise and settle all claims and causes of action of any kind which she may have against the City, its agents, employees, workers and representatives, and all others connected with or in privity with the City, arising out of or connected in any way with the above described incident in consideration of payment by the City to Plaintiff Cindy Finch and her attorneys, Patterson Law Group, the sum of Fourteen Thousand Dollars ($14,000.00) in full and final settlement of all claims against OFFICIAL RECORD CITY SECRETARY Comiromise Settlement Agreement and Release ofA11 Claims -Finch FT. WORTH,, TX ' .page 1 of 6 SE713 G },, the City, its agents, employees, workers or representatives, arising out of the incident described above and Plaintiffs alleged injuries; and WHEREAS, even though the City denies any liability of any kind on account of the alleged incident made the subject of Plaintiff Cindy Finch's lawsuit, the City has agreed to the payment terms described above in compromise and settlement of the disputed claim(s) and in order to avoid further time consuming and costly litigation. II. TERMS NOW, THEREFORE, in consideration of the recitals set forth above, the mutual promises and agreements made herein, and other valuable consideration, the receipt and sufficiency of which is acknowledged by all parties, the City and Plaintiff agree that: 1. Cindy Finch, Plaintiff herein, for and in consideration of timely payment by the City of Fort Worth to Plaintiff and her attorneys, Patterson Law Group, the sum of Fourteen Thousand Dollars ($14,000.00) (herein the "Settlement Payment") in full and final settlement of all claims against the City, its agents, employees, workers or representatives, arising out of Plaintiffs alleged injuries, and the sufficiency of such consideration being hereby acknowledged and confessed by Plaintiff, does for herself, her heirs, representatives, successors and assigns, unconditionally release, acquit and forever discharge the City of Fort Worth, and its agents, employees, workers and representatives, and all others connected with or in privity with the City of Fort Worth, of and from any and all claims of every kind, character or nature which said Plaintiff might assert by reason of the above described incident together with all claims heretofore asserted in Cause No. 153-348557-23, in the 153" District Court, Tarrant County, Texas, including claims for physical pain and suffering (past and future), mental anguish (past and future), physical disfigurement (past and future), medical expenses (past and future), physical impairment (past and future), and any other kind, character or nature of damage which could or might be the subject of a claim by her arising from the incident hereinabove described. To be "timely," the Settlement Payment must be in the possession of Plaintiff c/o of her attorneys of record, Patterson Law Group, 2409 Forest Park Boulevard, Fort Worth, Texas 76110, within thirty (30) days of Defendant's receipt (email receipt of a PDF copy by Defendant's counsel of record shall be sufficient) of this Agreement bearing the notarized signature of Plaintiff. 2. In consideration of the Settlement Payment, Plaintiff agrees to indemnify and forever hold harmless and defend the City of Fort Worth, and all agents, employees, workers and representatives of the City of Fort Worth, and all others connected with or in privity with the City of Fort Worth, its heirs, representatives, successors and assigns, from any and all claims or causes of action, including any costs or expenses in connection therewith, which may hereafter be brought by Plaintiff, or by anyone on her behalf, arising out of the above described incident. Compromise Settlement Agreement and Release of All Claims -Finch Page 2 of 6 3. In consideration of the payment described above, Plaintiff declares and warrants that all medical, hospital, and/or other expenses of any and every nature and character whatsoever incurred by her, or on her behalf, or in any way pertaining to or arising out of the injury that allegedly occurred on or about February 6, 2022, made the basis of this litigation, have been or will be paid or compromised by Plaintiff, and Plaintiff hereby agrees to defend, indemnify and hold harmless Defendant, City of Fort Worth and any other person, corporation, association, partnership, or entity in privity with or connected with it, as well as any person, corporation, association, partnership, or entity it is or may be required to defend, indemnify, or hold harmless from and against any claims for medical, hospital, and/or other claims and expenses of any and every nature, including but not limited to, claims which may hereafter be made under the authority of the Texas Hospital Lien Law or any other state or federal statute, rule, or regulation. PLAINTIFF REPRESENTS THAT NONE OF THE MEDICAL BILLS OF CINDY FINCH HAVE BEEN PAID BY MEDICARE, MEDICAID OR BY ANY OTHER GOVERNMENTAL OR QUASI -GOVERNMENTAL AGENCY. IF PLAINTIFF IS MISTAKEN IN THIS REGARD AND MEDICARE, MEDICAID OR SOME OTHER GOVERNMENTAL OR QUASI -GOVERNMENTAL AGENCY HAS PAID ANY BILLS, WHATSOEVER, PLAINTIFF WILL FULLY SATISFY ANY CLAIM EVER ASSERTED BY MEDICARE, MEDICAID OR OTHER GOVERNMENTAL OR QUASI -GOVERNMENTAL AGENCY FOR REIMBURSEMENT AND WILL DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY OF FORT WORTH AND ANY OTHER PERSON, CORPORATION, ASSOCIATION, PARTNERSHIP OR ENTITY IN PRIVITY WITH OR CONNECTED WITH THE CITY OF FORT WORTH AGAINST ANY SUCH CLAIM. 4. Taxes. The Parties will report, as may be required by law, their respective payments and receipts of the amounts described herein. Plaintiff acknowledges and agrees that: (1) the City and its counsel have made no representations to Plaintiff or her counsel regarding the tax consequences of the Settlement Payment; and (2) Plaintiff is ultimately responsible for determining the taxability of the Settlement Payment, and for paying taxes (federal, state, or otherwise), if any, which any taxing authority determines or claims are owed with respect to such payments. Notwithstanding anything to the contrary herein, the parties hereto intend that the Settlement Payment constitutes damages received from a compromised settlement relating to personal injuries alleged by Plaintiff as same is defined in 26 USC § 104(a)(2), as amended and/or related provisions, and for damages relating to Plaintiffs alleged personal injuries as set out in 26 CFR § 1.104-1(c), as amended and/or related provisions, and no portion thereof constitutes payment for interest or for future medical expenses. Plaintiff's lawsuit did not allege exemplary damages, lost wages or lost earnings and so Plaintiff did not and does not seek to recover same, or future medical expenses, from the City in this litigation. Notwithstanding anything to the contrary in the foregoing sentence or in this Agreement, consistent with, and in addition to, the releases in the Agreement, Plaintiff agrees that she is solely responsible for any tax obligations which Compromise Settlement Agreement and Release of All Claims -Finch Page 3 of 6 currently exist as, or which may arise as, a consequence of this Agreement. If it is ever claimed or determined that any portion of the Settlement Payment constitutes or represents taxable income and/or that Defendant should have withheld, deducted, made contribution towards, and/or paid any taxes to any federal, state, or local governmental body as a result thereof, Plaintiff warrants and agrees to release, acquit, discharge, defend, hold harmless, and indemnify Defendant from costs, assessments, penalties, damages, fees, or interest, arising from any tax obligations to which Defendant is, or may be subject to, by reason of the characterization of any portion of the Settlement Payment. Plaintiff acknowledges that she is not relying upon the advice or representations of Defendant, its agents, representatives, or attorneys concerning the treatment of taxes of the Settlement Payment and Plaintiff further represents that she will consult a tax professional of her own choosing, if necessary, regarding the taxability, if any, of the Settlement Payment. 5. The release of claims contained herein is given with full knowledge of all parties to the referenced suit that there is a dispute on the part of the City regarding whether or not it is liable for any damages alleged in the above -entitled and numbered cause. It is also understood and agreed that this settlement is in compromise of disputed claims and that the payment made hereunder is not to be construed as admission of liability on the part of the City of Fort Worth, and, in fact, City denies liability for the above -described incident, if any, and intends, by this settlement, merely to buy its peace. Plaintiff acknowledges that she and her attorneys, Patterson Law Group, are the only parties entitled to the proceeds of this settlement and agrees to defend and indemnify the City of Fort Worth and all persons or entities connected with the City of Fort Worth against any person or entity who claims by, through, or under Plaintiff to be entitled to the proceeds of this settlement. 6. Plaintiff agrees to dismiss the cause(s) of action in the above -entitled and numbered matter, with prejudice, and hereby authorizes and directs her attorneys, Patterson Law Group, to prepare and file the appropriate Motion and Order of Dismissal, with prejudice, with respect to Plaintiff's claims and causes of action in the above entitled and numbered case against the City. And, in this connection, Plaintiff and her attorney agree to expeditiously provide any information the Court may require in connection with the dismissal of said lawsuit. Nothing in this Agreement shall be interpreted to affect in any way Plaintiffs claims against the Dan and Karen Verboski. 7. It is understood and agreed that all taxable court costs will be paid by the party incurring same. 8. This Compromise Settlement Agreement and Release of All Claims may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 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 Compromise SeUlemenl Agreement and Release afAll Claims -Finch Page 4 of 6 Agreement cannot be changed orally, and any changes or amendments must be signed by all Parties affected by a change or amendment. 9. Plaintiff represents and acluiowledges that this Compromise Settlement Agreement and Release of All Claims has been read in its entirety before signing and that it has been fully explained, in detail, to her by her attorney and that it is fully understood. 10. Plaintiff assumes the risk of mistake of fact or law with regard to any aspect of this Settlement Agreement and to the dispute described herein, or any asserted rights released by this Agreement. 11. By her signature hereto, Cindy Finch, Plaintiff, represents and declares that she is more than eighteen (18) years of age and is fully, competent to enter into this Compromise Settlement Agreement and Release of All Claims, that the representations, declarations and agreements herein are accurate, binding, and are contractual in nature and that no representation or agreement not herein expressed has been made to her as inducement to enter into this Compromise Settlement Agreement and Release of All Claims. 12. 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. 13. This Agreement is the product of aim's-length negotiations between the Parties, and no Party shall be deemed to be the drafter of any provision or the entire Agreement. The wording in this Agreement was reviewed and accepted by all Parties after reasonable time to review with legal counsel, and no Party shall be entitled to have any wording of this Agreement construed against the other Party as the drafter of the Agreement in the event of any dispute in connection with this Agreement. This agreement should be effective as of the date the last party signature is affixed hereto as indicated by the dates set forth below. Cindy Finch&laintiff Date: �1// (7 ,-? Y Compromise SeillemeniAgreemeni and Release of All Claims -Finch Page 5 of 6 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared CINDY FINCH, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same as her free act and deed for purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE this [0 day of SeP-eA62r 2024. THOMASTAPP Notary ID #134841821 My Commission Expires n/� q( April 9, 2028 ?- ,bAQ Jw�� Notary Public in and for the State of Texas CITY OF FORT WORTH: APPROVED: �Asant City Manager CITY OF FORT WORTH APPROVED: Is/Melody "Mel"Louis Attorney for Defendant, City of Fort Worth Melody "Mel" Louis Qao� Sr, Assistant City Attorney A�'L (FOR Z ATTEST: 2 7 ette S. Goodall, City Secretary Compromise Settlement Agreement and Release of�fll Claims -Finch Date: 9 - c:� - -0-1I Date: 09/03/2024 <— - _ . OFFICIAL RECORD CITY SECRETAR*g G of G FT WORTH, TX