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HomeMy WebLinkAboutSETTLEMENT AGREEMENT & RELEASE AND NON-QUALIFIED ASSIGNMENT AND RELEASE OF PERIODIC PAYMENT OBLIGATION_ SUSAN TREAT, ET. AL. V. MATTHEW PERKINS, ET AL.- ASHLEY WALKER SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Agreement") is made this I I day of 2017, by and between Matthew P. Perkins ("Defendant") and Ashley Walker ("Pla' tiff') (collectively the "Parties"), WHEREAS, Plaintiff contended that on October 1 , 2012, Defendant and other law enforcement officers unlawfully entered and searched the Plaintiff's residence located at 133 Powerline Drive in Burke County, Georgia without a search warrant, consent, or legal justification, and that the Defendant and other law enforcement officers detained the Plaintiff against her will and held her at gunpoint, and that the Defendant failed to engage in well intentioned attempts to locate the correct address to search and as a result the Plaintiff sustained injuries and has made claims pursuant to 42 U.S.C. § 1983 against the Defendant. Defendant has denied Plaintiff's claims and alleges that Defendant acted in good faith and reasonable at all times relevant to the Plaintiff's allegations. WHEREAS, Plaintiff has filed a Complaint entitled, Ashley Walker Individually and Next Friend and Mother of Madison Walker, et al v. Matthew P. Perkins, et al, Case No. 1:14- CV-00174 in the United States District Court for the Southern District of Georgia, Augusta Division(the "Action"); and Defendant has filed an answer(the "Answer"); and, WHEREAS, the Parties hereto desire to compromise, settle, and release any and all claims arising out of and relating to the Plaintiff's Claims, the Action, or the Answer. NOW THEREFORE in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows: 1. After receipt of Plaintiff's signature to this Agreement, and receipt of a completed W9 from the Plaintiff's attorney a settlement check in the amount of $16,666.67 (Sixteen Thousand, Six hundred Sixty-six Dollars and 67/100) payable to Ashley Walker and Pate & Johnson, LLC, 101 Marietta Street, Suite 3300, Atlanta, Georgia 30303 in full and final satisfaction of any released Claim under this Agreement(the "Settlement Amount"). 2. Dismissal of Action. The Plaintiff shall dismiss the Action with prejudice upon the execution of this Agreement. Each party shall bear its own costs and fees. 3. Attorney's Fees And Court Costs: Each party shall bear its own attorney's fees, expenses and court costs incurred in connection with the lawsuit, this Release, the matters and documents referred to herein, the entry of a final judgment and or dismissal and all related matters. 4. Release by Plaintiff. In consideration of the promises contained herein and the relinquishment of her legal rights regarding any claims arising out of or related to the Action and ytifyI�� the Answer, Plaintiff, herself, her heirs, successors, legal representatives and assigns, do hereby release, acquit and forever discharge Defendant, the Richmond County Board of Commissioner, the Richmond County Sheriff's Office, Augusta-Richmond County, Georgia and all of their affiliates without limitation, their officers, employees, agents, assigns, successors, servants, and representatives (including attorneys), together with any and all other persons, Firms and/or corporations who are or might be liable (collectively, the "Defendants Released Parties"), from any and all claims, liabilities, demands, suits, and causes of action of every nature and kind, whether vested or contingent, accrued or not, known or unknown, in law or in equity, matured or not, whether or not such claims were or could have been brought or raised in the Action, or as a result of any claims of the Plaintiff, including without limiting the generality of the foregoing, those claims expressly raised in the Action, those arising out of or relating to the facts, circumstances, or occurrences surrounding the above-mentioned Action, and those arising out of, relating to or resulting from the facts, circumstances, or occurrences concerning the Plaintiff Claims. 5. Parties: This document sets forth the terms and conditions of the Agreement by and between Plaintiff and Defendant. The term"Defendants" as used herein shall be defined as the Richmond County Sheriff's Office and Augusta, Georgia and all current and former commissioners, employees, servants, agents, officials, insurers, and attorneys, in their official and individual capacities,together with their predecessors, successors and assigns, both jointly and severally. In consideration of the mutual covenants and agreements set forth below, the parties agree as follows: 6. Release of Unknown Claims. This Agreement covers and includes all claims that Plaintiff has against the Released Parties up to and including the date of this Agreement, whether actually known or not, despite the fact that any applicable state and/or federal law may provide otherwise. 7. Settlement Not an Admission of Liability. It is expressly understood and agreed to by and among the undersigned hereto that by entering into this Agreement, Defendant hereto denies the truth of the allegations made by any other party, and this is a compromise of a disputed claim,which should not be construed as an admission of liability on the part of any party. Plaintiff agrees that this Release is the compromise of doubtful and disputed claims and that the Payment made is not be construed as an admission of liability, negligence, willful and wanton conduct, or fault of any kind whatsoever by Defendants, nor the validity of any claim to damages, but is to be construed as a compromise and settlement of all issues for purposes of avoiding controversy, litigation and expense. Plaintiff further agrees that all claims or allegations of fault, liability, negligence, and legal responsibility have been and are denied by Defendants. 8. Tax Considerations. This Agreement is a result of a "contested liability" that was disputed in good faith. The Released Parties make no representations regarding tax consequences, if any, pursuant to this Agreement. 9. Assigns and Successors-in-Interest. This Agreement shall be binding upon and inure to the benefit of the Parties heirs, successors, and assigns. 10. Agreement Fully Read and Understood. This Agreement has been carefully read by the undersigned and the contents are known and understood by the undersigned. The recitals stated above are incorporated herein by reference. The undersigned have each received independent legal advice from the attorneys of their choice with respect to the preparation, review, and advisability of executing this Agreement. Prior to execution of this Agreement by each party, the undersigned's attorneys reviewed the Agreement, and the undersigned acknowledge that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence. 11. Applicable Law. The existence, validity, construction and operation of this Agreement, and all of its covenants, agreements, representations, warranties, terms, and conditions, shall be determined in accordance with the laws of the State of Georgia. 12. Entire Agreement. This Agreement sets forth the entire agreement between the undersigned, and fully supersedes any and all prior and/or contemporaneous agreements or understandings between the undersigned, which pertain to the subject matter hereof. The terms of this Agreement may not be contradicted by evidence of any prior or contemporaneous agreement and no extrinsic evidence whatsoever may be introduced to vary its terms in any judicial proceeding involving this Agreement. 13. Modification. This Agreement may be modified, but only if the modification is in writing and signed by the undersigned to this Agreement. 14. Severability. Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal or invalid part, term, or provision shall be deemed not to be part of this Agreement. 15. Mutual Drafting. This Agreement is the product of negotiations "at arms length" between the undersigned, both of whom are represented by counsel. As such, the terms of this Agreement is mutually agreed-upon, and no part of this Agreement will be construed against the drafter. 16. Indemnification by Plaintiff. Plaintiff, in consideration of the promises set forth herein,the receipt and sufficiency of which is hereby acknowledged, hereby agrees to defend, indemnify and hold harmless Defendants against any and all claims, demands, and causes of action, including, but not limited to claims for contribution and indemnity, based upon allegations of intentional conduct, negligence, loss of consortium claims, strict liability or any other allegation of fault by Defendants that are asserted by any person or entity based upon any claim that the Plaintiff hereafter make on account of, based upon, relating to or arising out of the alleged occurrence. SZP 17. Execution. Plaintiff represents and warrants that the person executing this Agreement is duly authorized to do so, that this Agreement constitutes a valid and binding obligation and that she is authorized to act on behalf of all persons or entities described as Plaintiff in this Agreement. 18. Releasors Representations and Warranties. In return for the foregoing consideration, the Plaintiff hereby warrants and represents that she is the sole owner of any claims, rights, counts, causes of action, obligations and demands released by the Plaintiff pursuant to this Release and which are in fact, released by the Plaintiff pursuant to this Release and that no other persons or entities have any interest in any claims, rights, counts, causes of action, obligations or demands which the Plaintiff releases pursuant to this Release and further covenants that she has not assigned any claims she may have against the Defendants to any person or entity. [Rest of page intentionally left blank; signature page follows] SIGNATURES ON FOLLOWING PAGE: 1141' IN AGREEMENT HERETO, THE PLAINTIFF AND THE BELOW REPRESENTATIVE OF AUGUSTA GEORGIA SET THEIR HAND AND SEAL. t, /, zuktg_ Ash ey kker, Plaintiff Approved by: �\\\S\—..iiCie, ' Jess o son Att for Plaintiff Sworn to and Subscribed 44,`x..•• $55ia;�•.. F ., kh _SE a , OTA - This / day of pee 2017. _ •'•� W` - 1 ': cD N ry Public '',,e couN-w\,\\\�`` My Commission Expires: Augusta Gt444-Tiq $ F; A4, 4\ 6 A,, iii Maysr�4� " �" p ja Aft ,. : fr . a � '` a '° 0 Crw r Clerk , Cor u ission, ' Sworn t� • 4libe `. This 1 day of Ce1(1be,r t 2017. & I.4„.4„._ i dim Notary Public %*swa$a,R �►�* �`I My Commission Expires: :.,» �t Fes, My Camrr+ _.3 May 25,2019 E 2g �� r ".,e „ s %rj I 0 .*tee* Non-Qualified Assignment and Release of Periodic Payment Obligation "Claimant" Madison Elizabeth Walker "Assignor" Argonaut Great Central Insurance Company&The City of Augusta,Georgia "Assignee" BARCO ASSIGNMENTS LTD. "Annuity Issuer" LIBERTY LIFE ASSURANCE COMPANY OF BOSTON "Effective Date" This Agreement is made and entered into by and 3. The obligation assumed by Assignee with respect to any between the parties hereto as of the Effective Date with required payment shall be discharged upon the mailing reference to the following facts: on or before the due date of a valid check in the amount specified to the address of record. A. Claimant has executed a settlement agreement or release dated 12//2/2.017 (the 4. This Agreement shall be governed by and interpreted in "Settlement Agreement")that provides for the accordance with the laws of Gerdi i ck Assignor to make certain periodic payments to or for the benefit of the Claimant as stated in Addendum No. 5. The Assignee may fund the Periodic Payments by 1 (the "Periodic Payments"); and purchasing an annuity contract or funding agreement issued by the Annuity Issuer. All rights of ownership B. The parties desire to effect an assignment of and control of such annuity contract shall be and remain Assignor's periodic payment liabilities to Assignee. vested in the Assignee exclusively. NOW,THEREFORE, in consideration of the foregoing 6. The Assignee may have the Annuity Issuer send and other good and valuable consideration,the parties payments under any annuity contract or funding agree as follows: agreement purchased hereunder directly to the payee(s) specified in Addendum No. 1. Such direction of 1. The Assignor hereby assigns and Assignee hereby payments shall be solely for the Assignee's convenience assumes all of Assignor's liability to make the and shall not provide the Claimant or any payee with Periodic Payments. The Assignee assumes no any rights of ownership or control over the annuity liability to make any payment not specified in contract,funding agreement or against Annuity Issuer. Addendum No. 1. 7. Assignee's liability to make the Periodic Payments shall 2. The Assignee's liability to make the Periodic continue without diminution regardless of any Payments is no greater than that of the Assignor bankruptcy or insolvency of the Assignor. immediately preceding this Agreement. Assignee is not required to set aside specific assets to secure the Periodic Payments. The Claimant has no rights against the Assignee greater than a general creditor. None of the Periodic Payments may be accelerated, deferred,increased or decreased and may not be anticipated, sold,assigned,or encumbered. 29- 8. In the event the Settlement Agreement is declared 9. This Agreement shall be binding upon the respective terminated by a court of law this Agreement shall representatives,heirs,successors and assigns of the terminate. The Assignee shall then assign ownership Claimant,the Assignor and the Assignee and upon of any annuity contract or funding agreement any person or entity that may assert any right purchased hereunder to Assignor,and Assignee's hereunder or to any of the Periodic Payments. liability for the Periodic Payments shall terminate. 10. The Claimant hereby accepts Assignee's assumption of all liability for the Periodic Payments and hereby releases the Assignor from all liability for the Periodic Payments. Assignor: Argonaut Great Central Insurance Company Assignor: The City of Augusta,Georgia By: y: Authorized Representative Authorized Representative Title: Title: A • l Pcy pK. Claimant: Q4jJZQ . [0i Q Assignee: BARCO ASSIGNMENTS LTD. Approved as to Form and Content: By: Authorized Representative By: laimant's Att Title: Printed in USA Addendum No. 1 Description of Periodic Payments Payee(1): Madison Elizabeth Walker Benefit(s): 1. Period Certain Annuity-$6,316.93 payable annually,guaranteed for 4 year(s), beginning on 04/17/2027,with the last guaranteed payment on 04/17/2030. Initials Claimant: Assignor: signor: A MAYO, Assignee: