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04/03/2018 06F Settlement Agreement with CIAW and Munich Reinsurance for Lawsuit Brought by Carol WatersBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT 1 Item No. 6.F. For Meeting of: April 3, 2018 ITEM TITLE: Resolution authorizing consent to a settlement entered into by Cities Insurance Association of Washington ("CIAW") and Munich Reinsurance to resolve and settle the lawsuit brought by Carol Waters SUBMITTED BY: Helen 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 CIAW and reinsurer Munich Reinsurance to resolve and settle the lawsuit filed on September 15, 2015, in Yakima County Superior Court Case No. 15-2-02681-9 entitled Carol Waters v. City of Yakima; Yakima County; and Central Washington Fair Association dba State Fair Park, and to settle all claims against the City of Yakima by the plaintiff. The claims against the City were settled by CIAW and Munich Reinsurance through mediation with mediator Gregg Bertram of Pacific ADR Consulting, LLC, subject to the presentation of the settlement before the Yakima City Council at a City Council business meeting. A copy of the Settlement Agreement releasing the claims against the City of Yakima is attached. The settlement amount involving the City is $125,000, which entire amount is to be paid by CIAW and the City's insurance carrier Munich Reinsurance. The City of Yakima is paying no money toward settlement of the case. ITEM BUDGETED: NA STRATEGIC PRIORITY: Public Trust and Accountability APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt Resolution. BOARD/COMMITTEE RECOMMENDATION: ATTACHMENTS: Description 0 Resolution 0 Settlement Agreement Upload Date 3/26/2018 3/26/2018 2 Type Resolution Backup Material 3 RESOLUTION NO. R -2018- A RESOLUTION authorizing consent to a settlement entered into by Cities Insurance Association of Washington ("CIAW") and Munich Reinsurance to resolve and settle the lawsuit brought by Carol Waters. WHEREAS, on September 15, 2015, a lawsuit was filed in Yakima County Superior Court Case No. 15-2-02681-9 entitled Carol Waters v. City of Yakima; Yakima County; and Central Washington Fair Association dba State Fair Park; and WHEREAS, through a mediation, a settlement involving the plaintiff's claims against the City was reached by Cities Insurance Association of Washington ("CIAW") and Munich Reinsurance and the plaintiff to resolve and conclude all claims against the City in the matter; and WHEREAS, in the settlement agreement, liability for all such claims is denied by the entities being released; and WHEREAS, the entire amount of the settlement involving the City of Yakima is to be paid by CIAW and reinsurer Munich Reinsurance, and the City of Yakima is paying no money toward settlement of the case; 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 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 Cities Insurance Association of Washington and Munich Reinsurance to resolve and settle the lawsuit brought by Carol Waters against the City of Yakima, which settlement will be paid by CIAW and Munich Reinsurance. ADOPTED BY THE CITY COUNCIL this 3rd day of April, 2018. ATTEST: Mayor Sonya Claar Tee, City Clerk SETTLEMENT AGREEMENT Mediation 4 On March 22, 2018, the parties in the matter of Carol Waters v. City of Yakima, et. al., Yakima County Superior Court Case No. 15-2-02681-9, engaged in a mediation with Gregg Bertram acting as mediator. 2. Release For the consideration recited below, Carol Waters and her representatives, beneficiaries, heirs, children, grandchildren, executors, administrators, successors and assigns (herein- after "Releasing Parties"), forever release the City of Yakima, Cities Insurance Associa- tion of Washington ("CIAVV"), Clear Risk Solutions, Munich Reinsurance, and all their respective past, present, and future agents, employees, officers, directors, elected and appointed officials, assigns, successors, attorneys, insurers, and related entities (hereinaf- ter "Entities Released") from all claims, rights and causes of action, which may ever be asserted by the Releasing Parties, whether presently known or unknown, presently asserted or unasserted, presently vested or contingent, 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, present or future elected or appointed officials, officers, employ- ees, and agents, including but not limited to: (1) an incident involving claimant Carol Waters when she tripped and fell in the vicinity of a sidewalk located on the east side of Fair Avenue in the proximity of Gate 1 of the Fairgrounds in Yakima, Washington on September 23, 2012; (2) all those matters which are or could have been the subject of the Claim for Damages filed by Carol Waters on or about June 4, 2015; (3) all those matters which are or could have been the subject of Yakima County Superior Court Case No. 15- 2-02681-9 and (4) any other incidents, acts or omissions involving the Releasing Parties and the Entities Released occurring through the date this Settlement Agreement is signed. This release includes all claims, rights and causes of action under federal, state, or local law, including, but not limited to, those based in statute, regulation, code, ordinance, tort, contract, equity or otherwise. This release is intended to cover any and all past, present, and future injuries, damages or losses known, or not known to the parties to this agreement, but which may later develop, or be discovered in connection with the above -referenced incident including, but not limited to, wrongful death claims, survivorship claims, loss of income, loss of benefits, medical expenses, all claims for loss of parent-child relationship or support, loss of Settlement Agreement - 1 of 3 5 consortium, property damage, attorney's fees, and costs. Consideration The consideration for the aforementioned release of claims 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 Abeyta Nelson Trust Account, the sum of One Hundred Twenty Five Thousand Dollars ($125,000.00), payable for the bene- fit of the Releasing Parties, and payment of the mediator's fee, sub- ject to the approval by the Yakima City Council; 2) Dismissal with prejudice and without costs or fees of Yak' a Coun- ty Superior Court Case No. 15-2-02681-9; 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. 4. Indemnification for Subrogation and Lien Claims, and Hold Harmless The undersigned covenants and represents that all liens, reimbursement, assigned and subrogation claims (including, but not limited to, all liens, reimbursement, assigned and subrogation claims under RCW Chapters 43.20B, 60.44, 74.09. Medicaid, Medicare or any other state or federal law), 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 undersigned hereby covenants to defend, indemnify and hold harmless the Entities Released from and against all liens, reimbursement, assigned, and subrogation claims, and any other claim, cross claim, counterclaim or third party claim arising out of or relating to the above described occurrence, including all costs and attorney's fees incurred in the defense of such claims, arising out of contract or under state or federal law including, but not limited to, any subrogation, reimbursement, assigned or lien claims of the undersigned's health care providers, insurance can-iers, healthcare benefit plans, the Settlement Agreement - 2 of 3 6 Department of Labor & Industries, the Department of 'Social and Health Services, and any federal agency or program such as Medicare, Medicaid, Veteran's Administration, Social Security, or Federal Workmen's Compensation program. The Entities Released retain the right to monitor the defense of any such claim or action. The undersigned's agreement to pay and discharge all liens, reimbursement, assigned. and subrogation claims is expressly declared to have the effect provided for in RCW 60.44.050, and to have like effect under any other similar applicable statutes or regula- tions of any state or federal agency. 5. Warranty of Capacity to Execute Agreement The Releasing Parties certify and warrant that they are fully authorized to enter into this 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 settlement proceeds. 6. 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, Washington. 7. 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 is a compromise of disputed claims. Acceptance of this release shall not operate as an admission of liability on the part of the Entities Released. 8. Understanding and Consultation With Counsel I HAVE COMPLETELY READ THIS FINAL RELEASE AND SETTLEMENT AGREEMENT AND FULLY UNDERSTAND AND VOLUNTARILY ACCEPT IT FOR THE PURPOSE OF FINAL RESOLUTION AND SETTLEMENT OF ANY AND ALL CLAIMS, DISPUTED OR OTHERWISE, FOR THE EXPRESS PURPOSE OF PRECLUDING FOREVER ANY OTHER CLAIMS ARISING CUT Settlement Agree ent - 3 of 3 7 OF OR IN ANY WAY CONNECTED WITH. THE INCIDENTS, INJURIES, OR DAMAGES ABOVE MENTIONED. I RECOGNIZE THAT THE FUTURE COURSE OF PRESENT INJURY OR OTHER DAMAGES CANNOT BE PREDICTED WITH CERTAINTY. I AS- SUME THE RISK THAT THE CLAIMED INJURIES OR DAMAGES MAY WORSEN IN THE FUTURE AND THAT NEW INJURIES OR DAMAGES MAY DEVELOP. I ACKNOWLEDGE THAT MY INFORMATION REGARDING THE CLAIMS MADE IS SUFFICIENT TO ENTER INTO THIS FINAL RELEASE AGREEMENT AND EXPRESSLY WAIVE ANY CLAIM THAT THIS RELEASE IS NOT FAIRLY AND OWINGLY MADE. THIS SETTLEMENT AGREE- MENT IS ENTERED AFTER CONSULTATION WITH MY ATTORNEY, David Abeyta of Abeyta Nelson Injury Law. Dated: March 22, 2018. Carol Waters, Releasing Party and on 'behalf of Releasing Parties Settlement Agreement - 4 of 3