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1991-073ORDINANCE NO 9 -023 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A COMPROMISE SETTLEMENT RELEASE AND DISMISSAL OF ALL PENDING AND FUTURE CLAIMS FOR PENDING LITIGATION BETWEEN THE CITY OF DENTON AND JOHN KEVIN KELSOE, ET AL, AND DECLARING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the attached Compromise Settlement Release and Dismissal with Prejudice of all Pending and Future Claims be- tween the City of Denton and John Kevin Kelsoe, Individually and as Next Friend of Kacy Fallin Kelsoe and Kylie Patricia Kelsoe, pro- viding for the settlement and compromise of the litigation now pending between the parties before the 211th Judicial District Court of Denton County, Texas in Cause No 90-30302-211, is ap- proved in accordance with its terms The City Manager is autho- rized to execute the agreement and all other documents and make the payments and take such action as is necessary to comply with the terms of said Agreement SECTION II That this ordinance shall become effective im- mediately upon its passage and approval PASSED AND APPROVED this the day of May, 1991 ATTFST JENNIFER WALTERS, CITY SECRETARY BY APPROVED A TO LEGAL FORM DEBRA A DRAYOVITCH, CITY ATTORNEY BY NO. 90-90302-211 JOHN KEVIN KELSOE, Individually, as Next Friend of KACY FALLIN KFLSOE and KYLIE PATRICIA KELSOE, Minors, and as Personal Representative of the DSTATE OF JULIE GAY KELSOE, Deceased, and KENNETH FALLIN and wife ROSEMARY FALLIN V CITY OF DENTON, TEXAS, a Home-Rule Municipality C KNOW ALL MEN BY THESE PRESENTSi * 1 IN THE DISTRICT COURT 0; 17 * DENTON COUNTY, TEXAS * * * * * 211th JUDICIAL DISTRICT This Agreement is made between Plaintiffs, John Kevin Raises, Individually and as Next Friend of Racy Fallin Kelso* and Kylie Patricia Kelsoe, Minors, and as Personal Representative of the Estate of Julie Gay Xelsoe, Deceased (JOHN KELSOE), KENNETH FALLIN and wife, ROSEMARY FALLIN, Racy Fallin Kelsoe, acting by and through her Guardian Ad Litem (RACY KELSOE) I and Kylis Patricia Kelsoe, acting by and through her Guardian Ad Litem (KYLIE KELSOE) I C (all of whom may be referred to collectively as the PLAINTIFFS) and Defendant, the City of Denton, Texas, (the CITY), as follows. On January 19, 19900 Julie Gay Xelsoe was Swept away at a low water crossing over Corbin Road while driving a motor vehicle that was so designed and manufactured that she was trapped inside and could not escape, and which further was not provided with an adequate warning as to the danger of such circumstances. As a Lesult of this lack of warning and this negligent or defective design or manufacture, Julie Gay Kelsoe lost her life *a c 0 a AMW The circumstances surrounding this tragic event are such that the PLAINTIFFS hdve Causes of action against the party or parties responsible rur the design, manufacture, distribution, and sale of the vehicle and pousible causes of action against Denton County, Texas, and perhaps other parties. The PLAINTIFFS and the CITY are aware that PLAINTIFFS contend that their damages are at least the sum of $2,0140000 00, based upon PLAINTIFFS' collective 1086 of Julie Kelsoe as wife, mother, and daughter respectively. The parties to this Agreement agree that a jury of reasonable jurors would probably determine that their damages are at least the sum of $2,014,000.00, as sat forth in their pleadings After an investigation of the facts surrounding this tragedy, the parties to this Agreement now firmly believe that the party or parties responsible for the design, manufacture, distribution, and sale of the vehicle, and Denton County, Texas, and perhaps other parties, are solely responsible for Julie Gay Kelsoe's death The CITY has been anxious to resolve the potential cause of C action the Plaintiffs may have against the CITY, even though there is strong evidence that would entitle the CITY to obtain a judgment whereby all of these in the chain of production and distribution of the motor vehicle in question, and perhaps Denton County and other parties would pay to Plaintiffs the entire amount of their damages, and the CITY would be obligated to pay nothing. However, there is always some risk a jury, unknowingly or out or bias or prejudice, might make findings that would compel the Court to enter judgment which would permit such other potential defendants to avoid what ur the parties to this Agreement believe to be their true responsibility in this matter. Additionally, PLAINTIFFS recognize that the CITY has asserted that the Texas Tort Claims Act sets a limit of damages recoverable from the CITY of $250,00o 00, which wuul;l not begin to adequately compensate PLAINTIFFS The parties to this Agreement desire to remove certain unc-ertaintlew attendant to this litigation and to reduce the hardship to PLAINTIFFS that has been caused and prolonged by the nuri-wattling parties. The purpose of this Agreement is to provide needed and immediate relief to PLAINTIFFS, to ensure a minimum recovery for PLAINTIFFS, to extinguish ady possible liability of the City of Denton, and to bring the non-settlinq parties to justice The CITY, beany a aelr-insured municipality, seeks to protect itself and the taxpayers of the city in such a way as will permit Plaintifre to proceed to trial wherein they may seek full compensation for their damages from those parties which bear the true responsibility for the death of Julie Gay Kelsos. The parties Lharerore agree to the following terms and conditions: 1. The CITY will, upon the entry of the judgment of the court herein, pay to PLAINTIFFS the total sum of $lao,ooO 00. Said amount shall be apportioned and paid as ordered by the Court 2 Additionally, in an effort to assist Plaintiffs to recover full compensation and damages from those responsible for this tragic event, the City will pay 50% of the court costs, such as filing fees and service of citation, and 50% of the costs of investigation by, and consultation with, expert witnesses, incurred Twee „P after the date of this Agreement in preparation for bringing suit against those parties in the chain of production and distribution ut Julie Kelsoe's motor vehicle, and Denton county, and other putq::tially liable parties not released by this Agreement, up to a LuL41 payme:lt by the City of $10,000 00 for such investigation costs and court costs associated with filing suit such payments shall be made as such costs are incurred It is the intent of this Agreement that under no circumstances shall the CITY ever be required to pay more than the $140,000 00 set out in Paragraph 1, the $100000 00 not out in this paragraph, and the costs of court in this present suit. 3 Out of any recovery from any claim, suit or settlement by any one or more or PLAINTIFFS from any other party, PLAINTIFFS Will make payment as follows and in the following order: a. Cost of suit, and costs of expert witnesses up to a maximum of $75,000.001 shall first be deducted from any recovery, and the CITY shall recover the 504 share it paid, on a pro-rata basis of the amount paid by the CITY to the total C costs and expert fees paid up to a maximum of $500000.00, until the full amount paid by the CITY, under Paragraph 2 herein, is repaidi b Out of the remainder of any money recovered from any other party, the CITY shall receive: 1. Twenty-five cents out of every dollar (254) of the firar $3nn,nOn OO. 2. Thirty cents out of every dollar (304) of the next $200,000.00: and 3 Fifty cents out of every dollar (5os) of all money samaining from any recovery until all amounts paid by the CITY under this Agreement, including court costs and Guardian Ad Litem fees have been repaid to the CITY 4 PLAINTIFFS and their attorney agree that they will use their best efforts and exercise due diligence, within the bounds of the Rules of Pro"dure and the Code of Professional Responsibility, in invuetigating and prosecuting any non-frivolous claims against third parties not released by this Agreement, 5 In addatiunal consideration of the mutual covenants and C the payments set out herein, the sufficiency of which is hereby acknowledged, John Kevin Kelsoe, Individually and as Next Friend of Kaa.y Callan Keluue end xylie Patricia Kelsoe, Minors, and as Personal Representative of the Estate of Julie Gay Kelsoe, OwL.odaed, Kenneth Fallin and wife, Rosemary Fallin, Kacy Fallin Kulaue, acting by and through her Guardian Ad Litem, and Kylie Patricia Kelsoe, acting by and through her Guardian Ad Litem, do all jointly and severally hereby release, acquit, discharge, and C quitclaim unto the CITY, its past, present, and future elected officials, appointed officials, employees, agents, representatives, and attorneys, all and each of them, of and from any and all actions, causes of action, claims (including subrogation claims), and demands, on account of or in any way growing out of any and all negligence, conspiracies, intentional misconduct, wrongful claims h4ndlirig, violation of constitutional and statutory rights, breach of any duty of good faith and fair dealing, personal injuries, damayu to reputation, pain and suffering, grief, bereavement, loss Am me STIMAnw no MUOU"Wr of consortium and companionship, damage to familial relationship, mental anquiah, psychic injury, loss of earning capacity, loss of household services, lose of wages profits and money, damage to and taking of property, attorney's fees, pro and post judgment interest, and all other causes of action and damages whether known or unknown and whether heretofore asserted or not, connected with or resulting from the death of Julie Gay Kelsoe, or the reporting of, or discovery of, the death of Julie Gay Kelsoe which occurred on or about January 19, 1990, all as more fully described in Plaintiffs' pleadings on file herein, to which reference is made for a more complete description, and do hereby agree to indemnify and save harmless the said the CITY, its past, present, and future elected officials, appointed officials, employees, agents, representatives, and attorneys, all and each of then, of and from all such past and future claims, including subrogation claims, demands, costs, or expenses arising out of any injuries and damages sustained by them as a result of the death of Julie Gay Kelsoe, or the reporting of, or discovery of, the death of Julie Gay Kelsoe, whether included in a claim for damages under the survival of l actions statute, Tsx. Civ. Prac. i Rom. Code 171 021 or under the wrongful death statutes, Tex. Civ Prao. a Rem. Code 971.001, etc The undersigned understand and agree that the amount paid under this agreement is a full satisfaction and accord of all claims they may have against the CITY, its past, present, and future elected officials, appointed officials, employees, agents, representatives, and atterneys, all and each of them, arising on account of the above described events and that they will receive no tae Ale • further sums at money from the CITY, its past, present, and future elected vrricials, appointed officials, employees, agents, representatives, and attorneys. Further, PLAINTIFFS expressly warrant that either there are no outstanding unpaid hospital liens, medical insurance subrogation claims, or property damage subrogation claims and that PLAINTIFFS jointly and severally will defend, indemnify, and hold harmless the said the CITY, its past, present, and future elected officials, appointed officials, employees, agents, representatives, and attorneys, of and from the payment of such subrogation claims and hospital liens (especially with reference to any liens under the Texas Hospital Lien Law) It in expressly warranted by the undersigned that no promise or inducement has been offered except as herein set rorthi that this Agreement is executed without reliance upon any statement or Lepresentatson of any person or parties released or their representatives, concerning the nature and extent of the injuries, damages and/or legal liability thereforei that acceptance of the C consideration set forth herein is a full accord and satisfaction of disputed claims, concerning the possible liability of the City of Denton, Texas, its past, present, and future elected officials, appointed officials, employees, agents, representatives, and attorneys, which is incapable of being exactly determined, and shall not be construed as constituting an admission of liability on the part of the CTTY. The undersigned John Kevin Kelsoe, Individually and as Next Friend of Kacy Fallin Kelsoe and Kylie Patricia Kelsoe, Minors, and T Ale 7 1 as Personal Representative of the Estate of Julie Gay Kelso*, Deceased, and Kenneth Fallin and wile, Rosemary Pallin, in further 6un4ideration of the payment herein made to them, state that they are the sole surviving heirs of Julie Gay Kelsos, that no probate uc uther legal proceeding is pending as to the Estate of Julie Gay Kelsos, and that none will be forthcoming. This Agreement and stipulation shall be and is respectfully submitted to the court by all parties including John Kevin Kelso* and the Guardians Ad Litem for Kacy Fallin Kelsoe and Kylis Patricia Kelsoe, who are of the opinion and represent to the Court that the proposed Agreement is to the advantage of Keay Fallin Kelsoe and Kylie Patricia Kelsoe and is for their best interests 4111 All parties do further request approval of this Agreement by the Court. FOR THE SAME CONSIDERATION, it is agreed that the above-styled suit will be dismissed as to the CITY, with prejudice to refiling the same, and that costs of court to date will be taxed to the CITY, This document contains the entire agreement of the parties hereto. THE PROVISIONS OF THIS RELEASE ARE CONTRACTUAL AND NOT MERE RECITALS. WITNESS OUR HANDS THIS In DAY OF n• ~ 1991. John Kevin Kelsoe, individually and as Next Friend of Kacy Fallin Kelso* and Kylie Patricia Kelsoe, Minors, and AS Personal Representa- tive of the Estate of Julie any Kelsoe AW T AM STIN" JUWWW . 4 C, r~ Jerry Cobb - Guardian Ad Litam for Kylis Patpicia Kclace Don ; n s Guardian Ad Litem for Kacy Fallin Kelsoe CITY OF DENTON, TEXAS i Lloyd Harrell, City Manager APPROVED: v ~%1 . chaei J., tten Attorney to Plaintiffs SON 21]920DO Ronald H. C ar - Attorney for Defendant SON 04198100 STATE OF TEXAS a COUNTY OF DENTON + This instrument was acknowledged before me on this =-tjday of 1991, by John Kevin Kelsoe. ref Notary Public - State of Texas ` eA MAUREEN E. HOWARD • NOTARY PUBLIC. STATE OF TEIGS MY Commission Eerres June lA 1993 STATE OF TEXAS a COUNTY OF TARRANT Al I ThiLinstrument was acknowledged before me on this _'day of , 1991, by Kenneth rj lin. , + •o - MAUREEN E HOWARD Notary Fubl C State of Texas • • NOTARY PUBLIC, STATE OE TEIGS f^~ or s~ MY Commission Eeoues June l/ 1993 STATE OF TEXAS • It COUNTY OF TARRANT This instrument was acknowledged before me on this ,'day of , 1991, by Rosemary Fallin. - Notary it . 0 MAUREEN E. HOWARD Public - State Of TOXae P • NOTARY PUBLIC, STATE OF TEXAS '•4,E x M1Jwt Mr Commission EsMres June U 1993 STATE OF TEXAS IF a COUNTY OF DENTON a n This instrument was acknowledged before me On this, I III , 1991, by Lloyd Harrell, City Manager for the City of nantort/ Tawas i / JEN NIFERK BIERS ? taryc - sta a of Texas OSMIIMIM 1V,pi944 Oto m P •1,0111 10 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on this ~ day of 19910 by Jerry Cobb, as Guardian Ad Litem for Kylie Patricia Itelsoe ~ r MAUREEN E. HOWARD • NOTARY PUBLIC, STATE OF TWS '1., c ytj My fammiamn Ermree June 11 1995 Notary Public - Stats of -Texas STATE OF TEXAS COUNTY OF DENTON ! This instrument was C Faili Re-NU1 19910 by •1~•e¢ MAUREEN E HOWARD • • NOTARY PUIIIC, STATE OP TESA9 w~ MrCemmiuionEepnelunelA 1999 * * * acknowledged before me on this 464 of Don Windle, as guardian Ad Litem PKacy Notary Public - State of Texas