HomeMy WebLinkAboutResolution No. 2010-009
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2010-
A RESOLUTION OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO SIGN THE FULL
AND FINAL RELEASE AND SETTLEMENT AGREEMENT IN
RELATION TO CAUSE NO. 2007-40026-362; THOMAS
MCMORROW AND SONYA MCMORROW, INDIVIDUALLY
AND AS NEXT FRIENDS OF KYLE MCMORROW, A MINOR v.
BOUNCE FOR FUN, THOMAS EDWARD MAHONEY, AND THE
CITY OF THE COLONY; PROVIDING AN EFFECTIVE DATE
WHEREAS, The Colony City Council finds it in the best interest of the City of
The Colony to enter into a settlement agreement in regard to Cause No. 2007-40026-362;
Thomas McMorrow and Sonya McMorrow, Individually and as Next Friends of Kyle
McMorrow, a Minor v. Bounce for Fun, Thomas Edward Mahony, and the City of The
Colony; and;
WHEREAS, The Colony City Council hereby authorizes the city manager to
execute said settlement agreement on behalf of the city, as negotiated by appointed
attorneys of the TML-Intergovernmental Risk Pool.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF THE COLONY, TEXAS:
Section 1. That the City Council of the City of The Colony, Texas hereby
authorizes the city manager to execute the Full and Final Release and Settlement
Agreement in regard to Cause No. 2007-40026-362; Thomas McMorrow and Sonya
McMorrow, Individually and as Next Friends of Kyle McMorrow, a Minor v. Bounce for
Fun, Thomas Edward Mahony, and the City of The Colony.
Section 2. That said agreement is attached as Exhibit A.
Section 3. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this
19th day of January, 2010.
G
J McCou , Mayor
ity of The Colony, Texas
T
A "E
C isti Wilson, TRMC, City Secretary
APPRO s ;r
r
Robert E. Hager, Ci Attorney
PLD Y
~a
a
FULL, AND FINAL RELEASE AND SETTLEMENT AGREI'MENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESEN'T'S:
COUNTY OF DALLAS §
1'or and in consideration the sum of ONE HUNDRED FORTY THOUSAND AND
NO/100 DOLLARS ($140,000.00), the mutual covenants contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed, the undersigned, THOMAS MCMORROW AND SONYA MCMORROW,
INDIVIDUALLY AND AS NEXT FRIENDS OF KYLE MCMORROW, A MINOR, for
themselves, their spouse, their heirs, executors, administrators, estate, legal representatives,
assigns and all others claiming under them (hereinafter collectively referred to as "RELEASING
PARTIES"), do hereby filly and completely compromise, settle, remise, release and fiorever
discharge THOMAS EDWARD MAHONEY D/B/A BOUNCE FOR FUN, SPECIALTY
RISK SERVICES, L.L.C., HARTFORD FIRE INSURANCE COMPANY, THE CITY OF
THE COLONY, TEXAS MUNICIPAL LEAGUE-INTERGOVERNMENTAL RISK
POOL, MATTHEWS, STEIN, SHI.ELS, PEARCE, KNOTT, EDEN & DAVIS, L.L.P. and
HERMES SARGENT BATES, L.L.P., and all of the above parties' past and present agents,
servants, legal representatives, employees, and any and all other persons, business entities, firms,
organizations or corporations in privity with these named parties, whether named herein or not
(hereinafter collectively referred to as the "RELEASED PARTIES") from any and all claims,
debts, demands, actions, causes of action, lawsuits, sums of money, contracts, agreements,
judgments and liabilities whatsoever, including claims for personal injuries, negligence, gross
negligence, mental anguish, past and future medical expenses, disfigurement, impairment,
punitive damages, bad faith, breach of the duty of good faith and fair dealing, violations of the
Insurance Code or the Texas Deceptive Trade Practices Act, both at law and in equity
FULL AND FINAL RELEASE AND SETTLEMENT AGREEMENT - PAGE 1
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(hereinafter collectively referred to as "Claims"), which the RELEASING PARTIES ever had,
now have or may hereafter have against any of the RELEASED PARTIES, jointly or severally,
for or by reason of any matter, cause or thing whatsoever occurring prior to the date of this
instrument, whether known or unknown, suspected or unsuspected, arising, directly or indirectly,
and including, without in any way limiting the generality of the foregoing, any Claims which
were asserted or could have been asserted in the lawsuit styled Thomas McHorroiv and Sonya
XA-.Wurroti , Individually and as next Friend of Kyle A•IcHor•roly v. Bounce Fbr• Fun, Thomas
£'divard Mahoney and The City gf'The Colony et al. v. Wahone) et al., that has been assigned
Cause Number 2007-40026-362, which is presently pending in the 362ND Judicial District Court
of Denton County, Texas (which suit the RELEASING PARTIES agree will be dismissed with
prejudice) or any Claims which in any way relate to, arise out of or are in any way connected
with the alleged injuries and damages arising out of the accident that occurred on or about July 1,
2006, which are more fully described in the Plaintiffs' pleadings in the above referenced lawsuit.
For the aforesaid consideration, the RELEASING PARTIES hereby agree on behalf of
themselves and their assigns, never again to bring suit in any court against any or all of the
RELEASED PARTIES with respect to any of the allegations which are the subject matter of, or
could have been asserted in, the lawsuit styled Thomas McMor•row and Sonia McMor•r•oti %
Individually and as next Friend of Kyle McNlorrow v. Bounce For Fun, Thomas Pdward
Mahoney and The C:'it}~ of The Colony et al. v. Mahoney et al., that has been assigned Cause
Number 2007-40026-362, and is presently pending in the 362ND Judicial District Court of
Denton County, Texas (which suit the RELEASING PARTIES agree will be dismissed with
prejudice). The RELEASING PARTIES also agree to fully and completely Indemnify and hold
harmless the RELEASED PARTIES for all costs and expenses, claims, losses, causes of action,
suits, liability of any kind, whether directly or indirectly, for contribution or indemnity, or
otherwise, incurred in the event anyone ever again institutes suit or files a claim (acting by,
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through or on behalf of the RELEASING, PARTIES) against any one or all of the RELEASED
PARTIES with respect to the allegations which are, or could have been, the subject matter of the
above-mentioned cause, regardless of whether such claims arise in whole or in part from the
alleged negligence of' the RELEASED PARTIES. Such indemnification shall include, but is
not limited to, legal fees, court costs, reasonable and necessary litigation expenses, costs for
investigation and preparation of any defense, as well as any prejudgment or post judgment
awards on a judgment amount, and the amount of any judgment or settlement.
Thomas [?dward Mahoney, Bounce for Fun and The City of The Colony agree to dismiss
with prejudice any and all claims which were or could have been asserted against one another,
including but not limited to indemnity, contribution and insurance coverage claims and hereby
agree on behalf of themselves and their assigns, never again to bring suit in any court against the
other with respect to any of the allegations which are the subject matter, or could have been
asserted, in the lawsuit styled Thomas NleMorrotiv and Sonya MCA1101-1-011-, Individualll) and cis
next Frietul ol'Kyle il9cklorroiv v. Bounce For Fain, Thoinas E'elwai-d Mahoney and The Cily oJ'
The Colony el al. v. Mahoney el at., that has been assigned Cause Number 2007-40026-362, and
is presently pending in the 362ND Judicial District Court of Denton County, "Texas (which suit
Thomas Edward Mahoney, Bounce for Fun and The City of The Colony agree will be dismissed
with prejudice).
PAYMENTS TO RELEASING PARTIES
In consideration for the compromise settlement and release of the claims between and
among the parties, the parties agree to be bound by the following distribution provisions:
A. Payments
In consideration of the mutual promises, covenants and warranties set forth above,
Bounce for Fun/The Hartford, ("Assignor"), agrees to pay the following sums and make the
following payments in the amounts and in the manner set forth below:
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1. Cash Payment: Made payable to Ilcygood. Orr & Pearson "Trust Account" in the amount
af` Seventy T11OUsand Dollars($70,000) to be delivered within ten (10) calendar days abler
the trial court's approval of this settlement, with time being of the essence for the use
and benefit of'l-homas McMorrow, Sonya McMorrow and Kyle McMorrow.
2. Annuity: Fully fund the purchase of a "Qualified Funding Asset" in the form of an
annuity policy, the sum sufficient to provide periodic payments, as defined in Sections
104(a)(2) and 130 of the Internal Revenue code of' 1986, (the- "Code") as amended, which
provides for future periodic payments for Kyle McMorrow as fully set forth in the
attached Exhibit "A".
In consideration of the mutual promises, covenants and warranties set forth above, The
City of the Colony agrees to pay the following sums and make the following payments in the
amounts and in the manner set forth below:
1. Cash Payment: Made payable to I-Ieygood, Orr & Pearson Trust Account" in the amount
of Twenty Thousand Dollars($20,000) to be delivered within ten (10) calendar days after
the trial court's approval of this settlement, with time being of the essence for the use
and benefit of Thomas McMorrow, Sonya McMorrow and Kyle McMorrow.
B. Payments Not Income
The RELEASING PARTIES acknowledge that there is no factual or legal basis for the
assertion of, or the recovery of; punitive damages or exemplary damages. All parties presently
intend and contemplate that all the payments made to the RELEASING PARTIES 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 that no portion of those amounts represent punitive
damages, pre judgment and post-judgment interest. The RELEASED PARTIES further agree
that they will not file a Form 1099 or any other form reporting the settlement amount to the
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Internal Revenue Service, except as required by the Internal Revenue Service for reporting
payments to attorneys.
RELEASING PARTIES' RIGHT TO PAYMENTS
The RELEASING PARTIES acknowledge that the future Periodic Payments described
in Exhibit "A" ("Periodic Payments") hereof cannot be accelerated, deferred, increased or
decreased by the RELEASING PARTIES or any payee, nor shall the RELEASING PARTIES
or any payee have the power to sell, mortgage, encumber or anticipate the periodic payments or
any part thereof, by assignment or otherwise, unless such sale, assignment, pledge,
hypothecation or other transfer or encumbrance (any such transaction being hereinafter referred
to as a "Transfer") has been approved in advance in a "Qualified Order" issued by the 362ND
Judicial District Court of Denton County, Texas as defined in Section 5891(b)(2) of the Code (a
"Qualified Order") and otherwise complies with the applicable state law, including without
limitation, all laws providing structured settlement protection. No Claimant or Successor Payee
shall have the power to effect any "Transfer of Payment Rights except as provided herein, and any
other purported Transfer or Payment Rights shall be wholly void. if Payment Rights under this
Agreement become the subject of .a. Transfer approved in accordance with a "Qualified Order" of
the 362 NI) Judicial District Court of Denton County, "Texas, the rights of any direct or indirect
Transferee of such Transfer shall be subject to the terms of this Agreement and any defense or
claim in recoupment arising hereunder.
CONSENT TO QUALIFIED ASSIGNMENT
The RELEASING PARTIES acknowledge and agree that the Insurer may make a
"qualified assignment", within the meaning of Section 130(c) of the Internal Revenue Code of
1986, as amended, of the Insurer's liability to make the Periodic Payments set forth in Section A to
Allstate Assignment Company ("the Assignee"). The Assignee's obligation for payment of the
Periodic Payments shall be no greater than that of Thomas Edward Mahoney d/b/a Bounce For I=un
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and/or The Flartfard Fire Insurance Company (whether by judgment or agreement) immediately
preceding the assignment of the Periodic Payment obligation.
Any such assignment. if made, shall be accepted by the RELEASING PARTIES without
right of reiection and shall completely release and discharge Thomas Edward Mahoney d/b/a
Bounce For Fun and The Hartford Fire Insurance Company from the Periodic Payments obligation
assigned to the Assignees. The RELEASING PARTIES recognize that, in the event of such an
assignment, the Assignees shall be the sole obligors with respect to the Periodic Payments
obligation, and that all other releases with respect to the Periodic Payments obligation that pertain
to the liability of "Thomas Edward Mahoney d/b/a Bounce h'or Fun and The I-fartford Dire Insurance
Company shall thereupon become final, irrevocable and absolute.
RIGH'T' TO PURCHASE AN ANNUITY
The Insurer, itself or through its Assignee reserves the right to fund the liability to make the
Periodic Payments outlined in Section A through the purchase of an annuity policy from Allstate
Life Insurance Company. The Assignee shall be the sole owner of the annuity policy and shall
have all rights of ownership. The Assignee may have Allstate Life Insurance Company mail
payments directly to the Payee. The Payee shall be responsible for maintaining a current mailing
address with: Allstate Structured Settlements, 11.0. Box 94206, Palatine, It, 60094 (800) 840-
3870.
RELEASE OF OBLIGATIONS
The obligation of Thomas Edward Mahoney d/b/a Bounce For Fun and The Hartford Fire
Insurance Company and/or the Assignees to make each Periodic Payment shall be discharged upon
the mailing of a valid check in the amount of such payment to the designated address of the Payees
named in Section A of this Settlement Agreement.
C. Beneficiaries
Any payments to be made after the death of Kyle McMoirow pursuant to the terms of this
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Settlement Agreement, shall be made to the Estate of Kyle McMorrow and no revocation thereof
shall be effective unless it is made in writing by Kyle McMorrow, after reaching the age of 18,
and delivered to Company in a form acceptable to Allstate Structured Settlements, P.O. Box
94206, Palatine, 11, 60094 - (800) 840-3870.
The RELEASING PARTIES herein acknowledge that the RELEASED PARTIES
have denied and continue to deny any and all allegations made by the RELEASING PARTIES
in, or in connection with, the above-described lawsuit, and that the settlement of the above
lawsuit, the payment of the above-described sums, and any other actions taken by the
RELEASED PARTIES in connection therewith, shall not be deemed or construed as an
admission of liability of any of the RELEASED PARTIES or an admission of the truthfulness
of any of the allegations made by the RELEASING PARTIES and/or their attorneys. Rather,
the RELEASING PARTIES acknowledge that said actions have been taken in order to avoid
the expense and inconvenience of prosecuting said lawsuit.
The RELEASING PARTIES further acknowledge and agree that this Release and
Agreement is a general release of all claims of the RELEASING; PARTIES and Kyle
McMorrow as well as any persons acting for them, through them or on their behalf, against the
RELEASED PARTIES that they currently have or might have, as well as any and all future
claims they may have related to or arising out of the July 1, 2006 accident and that they further
expressly waive and assume the risk of any and all claims for damages which might exist as of
this date, but which the RELEASING PARTIES do not know or do not expect to exist, whether
through ignorance, oversight, error, negligence, or otherwise, and which, if known, would
materially affect their decision to enter into this Release and Agreement. The RELEASING
PARTIES further agree that they have accepted the consideration specified herein as a complete
compromise and settlement of any and all matters involving disputed issues of law and fact and
that they fully assume the risk that the facts or the law may be otherwise than they believe.
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The RELEASING PARTIES further represent and warrant that all bills for doctor,
hospital, drugs. or other health care expenses, past and future, for which anyone could set a lien
upon this settlement have already been paid or are now being paid out of this settlement, and
therefore there will be no unpaid bills and no unsatisfied liens ofany nature. The RELEASING
PARTIES further understand and agree that, in the unlikely event that there are outstanding
medical expenses, other health care expenses or liens for same, the RELEASING PARTIES
will pay or be solely responsible for paying all doctor, hospital, drug or other health care
expenses, past and future, incurred by, for or on behalf of the RELEASING PARTIES. The
RELEASING PARTIES expressly agrees to defend, indemnify and hold harmless the
RELEASED PARTIES from any liability or claim of liability for the payment of such
doctor, hospital, drug or other health care expenses, and from any valid liability, claim of
liability or lien, known or unknown, that has been or may be alleged under any federal,
state or municipal law, statute or ordinance or otherwise, regardless of whether such claim
arises in whole or in part by the negligence of the RELEASED PARTIES. Such
indemnification shall include, but is not limited to, the amounts of said claims and the cost of
defending them, including attorneys' fees and court cost.
The RELEASING PARTIES represent and warrant that they are the sole owner of the
claims being released herein, and that they have not transferred, assigned, subrogated or
otherwise encumbered said claims or any part thereof.
It is expressly understood and agreed that RELEASING PARTIES, by and through their
attorneys of record, will present an Agreed Judgment dismissing the above-referenced lawsuit in
all respects as it pertains to the causes of action asserted, or that could have been asserted by.
Thomas McMorrow and Sonya McMorrow, individually and as next friend of Kyle McMorrow,
as well as Kyle McMorrow, with prejudice to their right to re-file same.
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The RELEASING PARTIES represent and warrant that they have made a full and
complete investigation of circumstances surrounding the facts of the above-referenced cause and
this Release and Agreement, aided by their legal counsel, and that they have full knowledge of
all facts involved and have authority to enter into and execute this Full and Final Release and
Settlement Agreement.
1"he RELEASING" PARTIES further represent and warrant that they understand this to
be a full, final and complete settlement, and one which cannot be reopened at any time in the
future regardless of what might take place or later occur.
In making this Release and Agreement, the RELEASING PAR'T'IES have not relied
upon any statements or representations pertaining to this matter made by the RELEASED
PARTIES or by any person or persons representing the RELEASED PARTIES.
The RELEASING PARTIES represent and warrant that they have carefully read this
Release and Agreement, understand the contents thereof, that they have conferred fully with their
attorneys concerning the contents and legal consequences of the execution thereof and that they
execute this Release and Agreement of their own free will, act and deed.
If any provision of this Release and Agreement is prohibited by law, such prohibition
shall not affect the validity of the remaining provisions of this Release and Agreement.
This Release and Agreement shall be governed by and construed in accordance with the
laws of the State of 'T'exas in all respects, including matters of construction, interpretation,
validity and enforcement. Further, venue of any litigation involving same shall be in a District
Court in Denton County, Texas.
This Release and Agreement contains the entire agreement between the parties hereto,
and the terms of this Release are contractual and not mere recitals.
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WITNESS 0UR HAND on this the day of ~O
If U
Thomas McMorrow, Individually and As
Next Friend of Kyle McMorrow, a Minor
Sonya McMorrow Individually and As
Next Friend of Kyle McMorrow, a Minor
eel_
, as authorized
repres tative fort City of The Colony
Thomas Edward Mahoney, individually and
on behalf of Bounce for Fun
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STATE OF §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared Thomas
McMorrow and ,Sonya McMorrrow, Individually and as Next Friends of Kyle McMorrow,
a Minor, known to me to be the persons whose name is subscribed to the foregoing instrument,
and acknowledged to me that they have read the foregoing, and fully understand it to be a
complete release of all claims as described therein, and an agreement of indemnity as described
therein, and that they executed the same for the purposes and consideration expressed therein.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this clay of
'2009.
Notary Public in and for
The State of
My Commission Expires:
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STATE OF §
COUNTY OF §
BEFORE ME, the undersigned authority, on this day personally appeared Thomas
Edward Mahoney, individually and on behalf' of Bounce for Fun, known to me to be the
person whose name is subscribed to the tol'egoing Instrument, and acknowledged to me that he
has read the foregoing, and fully understands and that he executed the same for the purposes and
consideration expressed therein.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
, 2009.
Notary Public in and for
The State of
My Commission Expires:
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STATE OF JfUA
COUNTY OF ~1 §
BEFORE ME, the undersigned authority, on this day personally
appearedh i-w Q~ 'Lh S f" , as authorized representative for the City of The
Colony known to me to be the person whose name is subscribed to the foregoing instrument.
and acknowledged to me that he/she has read the foregoing, and fully understands and has
executed the same for the purposes and consideration expressed therein.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
Notary Public in and for
The State of'_..
My Commission,t;.xpiw.&,~ ---u W~--n
Chdsue Ne i
Notary public,
~ .`~'tp
s state of Texas
,
%•,lEOF~`'r+r Comm .22 -131
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EXHIBIT "A"
PERIODIC PAYMENTS
$7,000.00 payable annually, for 5 years certain, commencing 04/16/2011 with the last guaranteed
payment on 04116/2015;
$14,640.00 lump sum payable on 04/1612028;
$14,640.00 lump sum payable on 04116/2033; and
$14,640.00 lump sum payable on 04/16/2038.
0170/00027
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