Loading...
1988-1902211L NO b 'I AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SETTLEMENT AND COMPROMISE AGREEMENT FOR PENDING LITIGATION BETWEEN THE CITY OF DENTON AND DWIGHT ANDERSON AS NEXT I-RIEND FOR DANA L ANDERSON, AN INCAPACITATED PERSON AND SHANDA MICHELLE ANDERSON, A MINOR, AND PROVIDING FOR AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the attached Settlement and Compromise Agreement between the City of Denton and Dwight Anderson as next friend for Dana L Anderson, an incapacitated person, and Shanda Michelle Anderson, a minor, providing for the settlement and compromise of the litigation now penning between the parties before the 158th Judicial District Court of Denton County, Texas in Cause No 86-2000-B, is approved in accordance with its terms, and the City Manager is authorized 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such action as is necessary to comply with the terms of said agreement SECTION II That Ordinance No 88-125 is hereby repealed in its ent rety SECTION III That this ordinance shall become effective immediately upon its passage and approval $1 6)~ lip ~AA PASSFD AND APPROVED this the off' day of 16vtr 1988 RAY S 'P ENS, AYOR ATTEST lam/ I ALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM DFBRA ADAMI DRAYOVITCH, CITY ATTORNEY BY e CAUSE NO 86-2000-B DWIGHT ANDERSON AS NEXT FRIEND FOR DANA L ANDERSON, AN INCAPACITATED PERSON, AND SHANDA FICHELLE ANDERSON VS CHARLES BROCKETTE, JR , FOX FEED & RANCH, INC , GARY MOORS, AND THE CITY OF DENTON * 114 THE DISTRICT COURT OF * 1988 * DENTON COUNTY, TEXAS T * * * * 158TH JUDICIAL DISTRICT SETTLEMENT AGREEMENT AND STIPULATION FOR JUDGME NT KNOW ALL MEN BY THESE PRESENTS 1 Defendants, the City of Denton and Gary Moors, will, upon the entry of the Judgment by the Court herein pay to Plaintiffs, Dana L Anderson and Dwight Anderson, individually and as next friend for Dana L Anderson, an incapacitated persor, the total aggregate sum of $10,000 00 Defendant, Cit} of Denton, will pay to Plaintiffs the further sum of $6,000 00 per year, for fifteen years, or until the death of Dana L Anderson, whichever comes first The first payment of $6,000 00 shall be made on or before July 1, 1989 and succeeding payments shall be made on or before July 1 of each succeeding year for fourteen additional years or until the death of Dana L Anderson, whichever comes first Said periodic payments shall be made by check payable to "Dwight Anderson, as next friend for Dana L Anderson" until the City of Denton, or its successor or assignee (as described below) receives notification by a certified copy of letters of guardianship appointing a successor guardian-of the person and estate of Dana L Anderson together with an order from SETTLEMENT AGREEMENT & STIPUL•nTION FOR JUDGME NT - Page 1 a court of competent Durisdiction authorizing such successc. guardian to accept and receive the payments, or the Cit} receives an order from the Court directing otherwise In the event that Dana L Anderson should die before July 1, 2003, then the City shall make the last and final payment of $6,000 00 on or before the first day of July following the death of Dana L Anderson by check payable to the estate of Dana L Anderson 2 For and in consideration of said payments, Dwight Anderson, individually and as next friend for Dana L Anderson, Shanda Michelle Anderson, and Dana L Anderson, an incapacitated person, appearing herein by and through his guardian ad litem, have agreed and do agree to and with the Defendants, that the sums so paid shall be in full and final satisfaction and compromise of 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 personal injuries, pain and suffering, grief, bereavement, loss of consortium or companionship, mental anguish, loss of income or earning capacity, loss of services, costs, expenses, property damage, and other losses whether known or unknown and whether heretofore asserted or not, owned or possessed by any of said Plaintiffs against Gary Moors, his family, relatives, insurers, and attorneys, or against the City of Denton, its elected officials, officers, employees, agents, attorneys, and insurers, growing out of or in any way connected with a certain accident which occurred--- SETTLEMENT AGREEMENT & STIPULATION FOR JUDGMENT - Page 2 on or about June 9, 1986 in Denton County, Texas Reference is made to the pleadings of the parties on file for a more complete description of the respective contentions This settlement is intended to cover all claims arising out of or connected with the events described in said pleadings including claims for personal injury and property damage 3 The City of Denton may, but is not obliged to, make a "Qualified Assignment" (within the meaning of Section 130(c) of the internal Revenue Code of 1954, as amended) of its liability to make the periodic payments, by purchasing said annuity contract Such assignment, if made, shall be accepted by the duly appointed qualified guardian of Dana L Anderson without right of rejection and shall completely release and discharge the City of Denton from such obligations under the Settlement Agreement as are assigned in the event of such an assignment, the assignee shall be the sole obligor with respect to the obligations assigned, and all other releases that pertain to the liability of the City of Denton shall thereupon become final, .irrevocable, and absolute 4 If the City of Denton makes a "Qualified Assignment" of the liability to make the periodic payments a Dwight Anderson's or a successor guardian's rights against assignee are no greater than those of a general creditor, b Assignee is not required to set aside funds for the periodic payments or otherwise secure its obligation to make the periodic payments to Dwight Anderson or a successor guardian SETTLEMNT AGREEMENT & STIPULATION FOR JUDGMENT - Page 3 c Dwight Anderson or a successor guardian has no right to accelerate, defer, increase, or decrease the amount of any payment required to be made under the judgment, and d Dwight Anderson or a successor guardian is not entitled to assign any of the payments required to be made pursuant to the judgment Any annuity or other contract which is acquired by assignee pursuant to tho judgment shall be and remain the sole property of Assignee, and claimant shall have no ownership rights whatsoever, either actual or constructive, in any such annuity, including no right to change the beneficiary or other control thereof, or any rights of the secured party therein 5 Notwithstanding any preceding language to the contrary, the City of Denton shall remain secondarily liable to make the periodic payments if the liability therefore is assigned under paragraph F above, but only if the assignee under paragraph F above defaults on its obligation to make said periodic payments in the event of a default on the periodic payments by the Assignee, the City of Denton, after receiving notice thereof by certified mail, return receipt requested, shall have the option to (a) make the periodic payments according to the schedule, (b) purchase another annuity to cover the remaining liability for the unpaid period payments pursuant to Paragraph F above or (c) pay the present value of the remaining periodic payments to Dwight Anderson as next friend of Dana L Anderson Exercising any of these options will fulfill the City of_Denton's obligation to make the period payments In the event that the City of Denton SETTLEMENT AGREEMENT & STIPULATION FOR JUDGME NT - Page 4 exercises and performs either option (a), option (b), or option (c) of this Paragraph, Dwight Anderson, or a successor guardian of Dana L Anderson, after court approval, shall transfer to the City of Denton all his rights to receive further periodic payments from the defaulting assignee 6 The undersigned understand and agree that the amount paid under this agreement is in full satisfaction for all damages arising on account of the above described incident and that they will receive no further sums of money therefrom from persons or entities released by this agreement 7 It is expressly understood and agreed that Dwight Anderson, individually and as next friend for Dana L Anderson, Shanda Michelle Anderson, and Dana L Anderson, an incapacitated person, appearing by and through his guardian ad litem have already paid or will pay out of the aforementioned sums all medical, doctors, chiropractors, and hospital charges received in the past or to be incurred in the future by Dwight Anderson, individually, and as next friend for Dana L Anderson, Shanda Michelle Anderson, and Dana L Anderson, an incapacitated person Plaintiffs will defend, indemnify, and hold harmless the parties released by this agreement and their insurers of and from any claims for such charges especially with reference to any liens under the-Texas Hospital Lien Law- Plaintiffs will defend, indemnify, and hold harmless the parties released by this agreement from_any and all actions, demands, and causes of act Lon past, present, or future, brought by Plaintiffs or on their SETTLM MNT AGREEMENT & STIPULATION FOR JUDGMENT - Page 5 behalf as a result of or growing out of the above described accident of June 9, 1986 8 The undersigned parties, for the consideration hereinabove expressed, represent and agree that this settlement is in compromise of, and is a full accord and satisfaction of, a doubtful and disputed claim and that the payment to be made by said Defendants does not constitute, and shall not be construed as constituting, an admission of liability on the part of said Defendants who have denied that they are liable to Plaintiffs on account of the matter compromised and settled by this stipulation and agreement and by judgment so rendered by the Court pertinent thereto 9 This stipulation and agreement shall be and is hereby respectfully submitted to the Court by all parties including said Guardian ad litem who is of the opinion and represents to the Court that the proposed settlement is to the advantage of said minor and is for his best interests and said parties do further request approval of the agreement of this Court 10 Defendants hereby warrant and represent the following facts to be true and correct that Defendant Gary Moors, at all times relevant and material to the incident made the basis of this lawsuit, was acting in the course and scope of his employment with the City of Denton, and that Defendant, the City of Denton, is a municipal corporation, incorporated in Denton County,- Texas, entitled to- the protection-of the doctrine of governmental immunity and to the defenses, protections, and SF ,LENFNT AGREEMENT &STIPULATION FOR JIIDGMENT - Page 6 limitations, of sections 101 001 et seq of the Texas Civil Practice & Remedies code concerning governmental liability 11 Plaintiffs hereby represent to Defendants and to the Court that no promises, representations, or agreements not set out herein have been made to them, that this settlement agreement and stipulation for judgment is executed without reliance upon any statement or representation of any person or parties released or their representatives, concerning the nature and extent of the injuries, damages and/or legal liability therefore, but that this settlement and compromise is made of their own free will and accord after consulting with physicians of their own choice and selection, and after consulting with and acting upon the advice of their own attorneys THE PROVISIONS OF THIS SETTLEMENT AGREEMENT AND STIPULATION FOR JUDGMENT ARE CONTRACTUAL AND NOT MERE RECITALS WITNESS their hands this 2~-day of c ^ ✓ , 1988 1 i DWIGHT ANDERSON, Individually and as next friend of Dana L Anderson, an incapacitated person ATTEST (city seal) ac T77MMU GREP 0M & STIPULATION FOR .~U?+G~'~ - Page 7 CITY OF DENTON CITY MANAGER, CITY OF DENTON This instrument was acknowledged before me by Dwight Anderson, individually, and as next friend for Dana L Anderson on this A'7 ry' day of jlyv --n-J.c✓ , 1988 p, Noary Public - State o Mqy My comrission expires FOR PLAINTIFFS GUARDIAN AD LITEM RONALD H CLARK ATTORNEY FOR DEFENDANTS, GARY MOORS & CITY OF DENTON SFTTTFNUM AGREEMENT & STIPULATION FOR JIIDGMENT - Page 8 NO 86-2000-B DWIGHT ANDERSON AS NEXT FRIEND FOR DANA L ANDERSON, AN INCAPACITATED PERSON, AND SHANDA MICHELLE ANDERSON, A MINOR * VS * CHARLES BROCKETTE, JR , FOX FEED & RANCH, INC , GARY MOORS, AND THE CITY OF DENTON IN THE DIOPIZTi %hT OF DENTON`COVNTY, TEXAS 158TH JUDICIAL DISTRICT COMPROMISE SFTTL== AND RELEASE OF ALL CLAIMS FOR AND IN CONSIDERATION of the sum of One Dollar ($1 00) in hand paid this day in cash, the receipt and sufficiency of which is hereby acknowledged, Shanda Michelle Anderson dons hereby release, acquit, and forever discharge the City of Denton, Texas, its elected officials, agents, employees, insurers, and attorneys and Gary Moors, his family members, agents, attorneys, and insurers, 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 personal injuries, violation of constitutional and statutory rights, damage to reputation, pain and suffering, grief, bereavement, loss of consortium and companionship, mental anguish, loss of earning capacity, loss of profits, damage to and taking of property, costs, loss of services# and all other damages, whether known or unknown, and whether heretofore asserted or not, resulting or to result from an accident which occurred on or about June 9, 1986, all as more fully described in the pleadings on file herein to which reference is made for a more complete description, and does hereby agree to indemnify and save harmless said City of Denton and Gary Moors, his family members, agents, and attorneys of and from all further claims, including subrogation claims, demands, costs or expenses arising out of the injuries and damages sustained by her as a result of said incident, whether or not included in a cla1L, for damages under the survival of actions statutes or under the wrongful death statutes The undersigned understand and agrees that the amount paid under this agreement is in full satisfaction of all damages arising on account of the above described accident, and that she will receive no further sums of money from the City of Denton or from Gary Moors as a result of this accident It is expressly understood and agreed that Shanda Michelle Anderson has already paid or w U pay out of the aforementioned total sum of $1 00 all medical doctors' and hospital charges received in the past or to be --urred in the future by her and she will defend, indemnify and `)ld harmless said City of Denton and Gary Moors, of any frou any claims for such charges, especially with reference to any liens under the Texas Hospital Lien Law It is expressly warranted, by her that no promise or inducement has been offered excep'- as herein set forth, that this Release is executed without reliance upon any statement or representation of any person or parties released or their represe$tatives, conce=3mg__txe-_nature and- extent- of __the injuries, damages and/or legal liability therefore, that acceptance of the consideration set forth herein is a full accord and satisfaction of a disputed claim for which liability is expressly denied FOR THE SAME CONSIDERATION, it is agreed that the above- styled suit will be dismissed with prejudice to refile the same This document contains the entire agreement of the parties hereto THE PROVISIONS OF THIS RELEASE ARE CONTRACTUAL AND NOT MERE RECITALS WITNESS MY HANDS THIS ~ DAY OF VD ✓ 8 r ~ 6r 1988 1 0~klcl 4 (if i hU0 SHANDA MICHELLE ANDERSON STATE OF TEXAS * COUNTY OF This nstrument was acknowledged before me on thisaday of 1988, by Shanda Michelle Anderson jlMq No ry Public, - State of Texas My commission expires ATTORNEY FOR PLAINTIFFS