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Home My WebLink About02/21/2017 06F Settlement Agreement for Lawsuit Brought by Charles "Doug" Mayo k` xs .1 �5 .may s n. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDASTATEMENT Item No. 6.F. For Meeting of: February 21, 2017 ITEM TITLE: Resolution authorizing consent to a settlement entered into by the City of Yakima, CIAW and Munich Reinsurance to resolve and settle the lawsuit brought by Charles "Doug" Mayo SUBMITTED BY: Helen A. Harvey, Senior Assistant City Attorney SUMMARY EXPLANATION: This matter is on for consideration of a Resolution authorizing the City Manager to consent to a settlement entered into by the City of Yakima, Cities Insurance Association of Washington ("CIAW")and reinsurer Munich Reinsurance to resolve and settle the lawsuit filed by Charles "Doug" Mayo on May 23, 2016, in U.S. District Court for the Eastern District of Washington Case No. 16-CV-3092-SAB entitled Charles "Doug" Mayo v. City of Yakima, et al., and to settle all claims by the plaintiff. The claim against the City of Yakima was settled by the City of Yakima, CIAW and Munich Reinsurance through mediation with mediator Thomas W. McLane of Randall Danskin in Spokane, subject to the presentation of the settlement before the Yakima City Council.A copy of the Settlement Agreement is attached. The amount of the settlement is $300,000. Of this amount, $15,605.42 is to be paid by the City of Yakima by reimbursement to CIAW, and the balance of $284,394.58 by CIAW and CIAW's insurance carrier Munich Reinsurance. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Public Trust and Accountability STAFF RECOMMENDATION: Adopt Resolution. BOARD/COMMITTEE RECOMMENDATION: if APPROVED FOR SUBMITTAL: City Manager ATTACHMENTS: Description Upload Date Type D Resolution 2/13/2017 Resolution D Settlement Agreement 2/13/2017 Backup Material RESOLUTION NO. R-2017- A RESOLUTION authorizing the City Manager of the City of Yakima to consent to a settlement entered into by the City of Yakima, CIAW and Munich Reinsurance to resolve and settle the lawsuit brought by Charles "Doug" Mayo. WHEREAS, on May 23, 2016, a lawsuit was filed in U.S. District Court for the Eastern District of Washington No. 16-CV-3092-SAB entitled Charles "Doug" Mayo v. City of Yakima, et al.; and WHEREAS, through a mediation, a settlement was reached by the City of Yakima, Cities Insurance Association of Washington ("CIAW') and Munich Reinsurance and the plaintiff to resolve and conclude all claims in the matter; and WHEREAS, in the settlement agreement, liability for all such claims is denied by the entities being released; and WHEREAS, part of the settlement is to be paid by the City of Yakima and the remainder by CIAW and reinsurer Munich Reinsurance; and WHEREAS, the City Council of the City of Yakima deems it to be in the interest of the City to authorize the City Manager to consent to a settlement entered into by the City of Yakima, CIAW and Munich Reinsurance and the plaintiff to resolve and conclude the lawsuit; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is authorized to consent to the settlement entered into by the City of Yakima, Cities Insurance Association of Washington and Munich Reinsurance to resolve and settle the lawsuit brought by Charles "Doug" Mayo, which settlement will be paid in part by the City of Yakima, and in part by CIAW and Munich Reinsurance. ADOPTED BY THE CITY COUNCIL this 21st day of February, 2017. ATTEST: Kathy Coffey, Mayor Sonya Claar Tee, City Clerk SETTLEMENT AGREEMENT 1. Mediation On February 3, 2017, the parties in the matter of Charles "Doug" Mayo v. City of Yakima, Tony O'Rourke and Debbie Cook, United States District Court for the Eastern District of Washington Case No. 1:16-cv-3092-SAB, engaged in a mediation with Thomas W. McLane acting as mediator, 2. Release For the consideration recited below, Charles "Doug" Mayo and Bronwyn Mayo, husband and wife and the marital community composed thereof, and their representatives, beneficiaries, heirs, children, grandchildren, executors, administrators, successors and assigns (hereinafter "Releasing Parties"), forever release the City of Yakima ("City"), Tony O'Rourke and Susan O'Rourke, individually and the marital community of them composed, Debbie Cook, Cities Insurance Association of Washington ("CIAW"), Clear Risk Solutions, Munich Reinsurance, and all their respective past and present elected and/or appointed officials, directors, officers, employees, agents, assigns, successors, attorneys, insurers, and related entities (hereinafter "Entities Released") from all past and present claims. As referred to herein, "past and present claims" mean those claims, rights and causes of action, whether known or unknown, suspected or unsuspected, vested or contingent, arising on or before the date that this Settlement Agreement is signed by Releasing Parties which in any way arise out of or are related to any incidents, acts or omissions between the Releasing Parties and the City of Yakima and its past and present elected and/or appointed officials, directors, officers, employees, and agents, including but not limited to: (1) all matters arising from or related to Charles "Doug" Mayo's employment with the City of Yakima, (2) all those matters which are or could have been asserted as a claim by Bronwyn Mayo, (3) all those matters which are or could have been the subject of the Notice of Tort Claim and the Amended Notice of Tort Claim respectively filed by/on behalf of Charles "Doug" Mayo on or about December 7, 2015 and February 18, 2016, (4) all those matters which are or could have been the subject of United States District Court for the Eastern District of Washington Case No. 1:16-cv-3092-SAB, and (5) any other incidents, acts or omissions involving the Releasing Parties and the Entities Released. Settlement Agreement - 1 of 4 Subject to the limitations on release of claims in Section 3 below, this includes all claims, rights and causes of action under federal, state, or local law, including, but not limited to, those based on statute, regulation, code, ordinance, tort, contract, equity or otherwise, and specifically including by way of illustration, but not limited to, all claims under the United States Constitution, the Washington State Constitution, Americans with Disabili- ties Act, Civil Rights Act of 1871 (42 USC §1983), Title VII of the Civil Rights Act of 1964 (as amended by the Civil Rights Act of 1991), Older Workers Benefit Protection Act, Age Discrimination in Employment Act, Family Medical Leave Act, Washington Family Leave Act (RCW Chapter 49,78), Washington Law Against Discrimination (RCW Chapter 49.60), the Washington State Civil Service Law (RCW Chapter 41.06), and any Washington State wage and hour laws (including, but not limited to, RCW Chapters 49,48 and 49.52). 3. Limitations on Release of Claims Nothing in this Settlement Agreement, including but not limited to the release of claims, prevents the Releasing Parties from filing a charge or complaint with or from participat- ing in an investigation or proceeding conducted by the EEOC, NLRB, or any other federal; state or local agency charged with the enforcement of any laws, although by signing this release the Releasing Parties are waiving rights to individual relief based on claims asserted in such a charge or complaint, except where such a waiver of individual relief is prohibited. 4. Consideration The consideration for the aforementioned release contained in paragraph 2 above and for this settlement includes the following: 1) Payment by the City of Yakima, CIAW and/or Munich Reinsurance to the Trust Account of Eymann Allison Hunter Jones, P.S. Trust Account the sum of Three Hundred Thousand Dollars ($300,000.00), payable for the benefit of the Releasing Parties, and payment of the mediation fee, subject to the approval by the Yakima City Council. This payment is additional consideration to which former employee Charles "Doug" Mayo would not otherwise be en- titled; 2) Dismissal with prejudice and without costs or fees of United States District Court for the Eastern District of Washington Case No. 1:16- cv-3092-SAB; Settlement Agreement - 2 of 4 3) Tax liability, if any, on the proceeds of the settlement sum shall be paid by the Releasing Parties, and the Releasing Parties agree to hold the City of Yakima harmless and to indemnify them from any tax consequences of this settlement. The duty to indemnify and hold harmless the City of Yakima includes, but is not limited to, any re- quired employer contribution or payment if any of the settlement proceeds are determined to be taxable income as to the Releasing Parties or their law firms, 5. Indemnification for Subrogation and Lien Claims, and Hold Harmless The Releasing Parties represent that all lienable expenses, and all subrogation claims, and all claims of any other persons or entities legally entitled to share in the proceeds of this settlement have been paid, or will be paid or otherwise resolved from the proceeds of this settlement. The Releasing Parties agree to defend, indemnify and hold harmless the Entities Released from and against all lien and subrogation claims, if any, including all costs and attorneys' fees incurred in the defense of such claims. 6. Warranty of Capacity to Execute Settlement Agreement The Releasing Parties certify and warrant that they are fully authorized to enter into this Settlement Agreement and bind themselves and the parties thereto. The Releasing Parties further warrant that no other person or entity has or has had any interest in the claims or causes of action referred to in this Settlement Agreement and that they have the sole right and exclusive authority to execute this Settlement Agreement and to receive the settle- ment proceeds. 7. Governing Law This Settlement Agreement shall be construed and interpreted according to the laws of the State of Washington. The venue of any action necessary under this Settlement Agreement shall be solely in Yakima County Superior Court, Yakima, Washington. 8. Denial of Liability This Settlement Agreement expresses the full and complete settlement of all claims. It is expressly agreed that liability for all such claims is denied by the Entities Released as is any fault relating to the matters described. It is agreed and understood that this settlement Settlement Agreement - 3 of 4 is a compromise of disputed claims. Acceptance of this Settlement Agreement shall not operate or be construed as an admission by the Entities Released of any liability to the Releasing Parties, breach of any agreement between any of the Entities Released and the Releasing Parties, or violation by the Entities Released of any statute, law or regulation. 9, Consultation With Counsel The Releasing Parties have read this Settlement Agreement and fully understand the terms. They have been given full opportunity and have been encouraged to seek independent legal counsel of their choice regarding the legal implications of this Settle- ment Agreement and have done so. The Releasing Parties understand and acknowledge the significance and consequences of this Settlement Agreement and expressly confirm that it is to be given full force and effect according to each and all of its expressed terms and provisions. Knowing and understanding this, the undersigned accepts the above sums in full settlement as provided in this Settlement Agreement. Charles "Doug" Mayo Date LI)A.X\riLLki # Bronwyn Mao Date Settlement Agreement - 4 of 4