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HomeMy WebLinkAboutR-2018-055 Damage Claim Settlement Agreements with Sandy Armijo and Carolyn PiersonA RESOLUTION RESOLUTION NO. R-2018-055 authorizing consent to settlements entered into by the City of Yakima to resolve and settle damage claims brought by Sandy Armijo and by Carolyn Pierson. WHEREAS, on February 12, 2018, a damage claim was filed with the City Clerk's Office by claimant Sandy Armijo relating to a sewer backup that occurred on February 9, 2018, at his residence located at 411 North 56th Avenue, Yakima, Washington, and WHEREAS, on April 20, 2018, a damage claim was filed with the City Clerk's Office by claimant Carolyn Pierson relating to the sewer backup that occurred at 411 North 56th Avenue, Yakima, Washington, for damages to some of her personal property located at that location, and WHEREAS, the City of Yakima is a member of the Cities Insurance Association of Washington ("CIAW"), and the City has a $100,000 deductible on CIAW claims; and WHEREAS, a settlement has been reached with each of the claimants to resolve and conclude all claims in the matter; and WHEREAS, final payment on this claim will be made by CIAW on behalf of the City in the amount of $87,264 41 to claimant Sandy Armijo for damages to his residence and for personal property damages, and WHEREAS, final payment on this claim will be made by CIAW on behalf of the City in the amount of $1,325 to claimant Carolyn Pierson for her personal property damages, and WHEREAS, the total amount paid pursuant to the two settlements will be $88,589.41, and the City will pay the settlements through reimbursement to CIAW because they are within the City's $100,000 deductible, 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 settlements entered into by the City of Yakima and the claimants to resolve and conclude the damage claims, 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 with each claimant in his or her Release and Settlement Agreement to resolve and settle the damage claims brought by Sandy Armijo and by Carolyn Pierson. ADOPTED BY THE CITY COUNCIL this 19th day of June, 2017 RELEASE AND SETTLEMENT AGREEMENT THIS RELEASE AND SETTLEMENT AGREEMENT (hereafter the "Agreement") is made and entered into by and between SANDY ARMIJO (hereafter referred to as "Claimant") and the CITY OF YAKIMA (hereafter referred to as "City"). WHEREAS, Claimant has filed a Claim for Damages (hereafter called the "Claim") with and against the City of Yakima alleging, among other things, that Claimant sustained damages as a result of a sewer backup that occurred on February 9, 2018, when sewage from a City sewer line backed up into the residence owned by the Claimant, located at 411 N. 56th Avenue, Yakima, Washington, (hereafter the "Incident"). WHEREAS, Claimant and the City wish to settle and compromise the Claim. NOW, THEREFORE, in consideration of the matters set forth in the foregoing recitals and the mutual covenants and other considerations contained herein, the City and Claimant agree as follows: 1. Settlement Payment to Claimant by the City. In consideration for the execution and delivery of the Agreement, CIAW, on behalf of the City, will deliver to the Claimant, a settlement check in the sum of Eighty Seven Thousand Two Hundred Sixty -Four Dollars and 41/100 ($87,264.41). 2. No Further Prosecution of the Claim. In consideration of the payment of said Eighty Seven Thousand Two Hundred Sixty -Four Dollars and 41/100 ($87,264.41) settlement check, Claimant, Claimant's spouse(s), representatives of Claimant's estates, Claimant's beneficiaries, heirs, children, grandchildren, successors and assigns shall not further prosecute this Claim and shall never, by reason of any matter or cause heretofore occurring or by any reason of any matter or cause hereafter occurring relating to Claimant's alleged damages from the Incident (whether said matter or cause is known or unknown, developed or undeveloped, at the date of executing this Release and Settlement Agreement), institute suit or action at law or in equity or otherwise execute any judgement against the City and the City's elected officials, officers, directors, agents, attorneys, employees, successors, assigns and CIAW, nor in any way aid in the prosecution of any claim, demand or action for damages, costs, expenses or compensation for loss to his person, property, or both, whether developed or undeveloped, relating to Claimant's alleged damages from the Incident, or to any claim related to any future sewage backup incident, if any, at Claimant's property RELEASE AND SETTLEMENT AGREEMENT -1 where a functioning backflow valve at the Claimant's property would prevent the Incident. 3. Release of the City by the Claimant. In further consideration of the Eighty Seven Thousand Two Hundred Sixty -Four Dollars and 41/100 ($87,264.41) settlement check, Claimant, Claimant's spouse(s), representatives of Claimant's estates, Claimant's beneficiaries, heirs, children, grandchildren, successors and assigns do hereby irrevocably and forever release, acquit and discharge the City and the City's elected officials, officers, directors, agents, attorneys, employees, insurers, CIAW, successors and assigns„ of and from and all liabilities, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorney fees of any kind and nature whatsoever, known or unknown, arising out of, relating to, or resulting from the Incident, and to any claim related to any future sewage backup incident, if any at Claimant's property where a functioning backflow valve at the Claimant's property would prevent the Incident. 4. Claimant Shall Install a Backflow Valve. In further consideration of the Eighty Seven Thousand Two Hundred Sixty -Four Dollars and 41/100 ($87,264.41) settlement check, and in order to prevent future sewer backups at his property, Claimant agrees, represents and warrants to install, at his expense, a properly functioning backflow valve at this property located at 411 N. 56th Avenue, Yakima, Washington. With regard to said installation, Claimant also agrees to, represents and warrants that he shall obtain the necessary City permit(s) to install said backflow valve and that said backflow valve shall be installed in accordance with the Yakima Municipal Code and all other applicable rules, regulations and laws. Once said backflow valve is installed, Claimant will have it inspected by a representative of the Codes Division of the City. 5. Assumption of Risk. In further consideration of the Eighty Seven Thousand Two Hundred Sixty -Four Dollars and 41/100 ($87,264.41) settlement check, Claimant agrees, represents and warrants that Claimant realizes and acJ.rtowledges, and agrees to assume the risk, that actual matters now unknown, unanticipated or misunderstood by him in connection with Claimant's alleged damages from the Incident may have given or hereafter give rise to causes of action, claims, losses and expenses which are presently unknown, unanticipated or unsuspected, or misunderstood, and further agrees, represents and warrants that the releases in this Release and Settlement Agreement have been negotiated and agreed to in light of the realization that Claimant nevertheless intends to release, discharge and acquit the City from any such controversies, damages, costs, losses and expenses which in any way are related to the Incident. 6. Indemnification and Hold Harmless of the City by Claimant. In further consideration of the Eighty Seven Thousand Two Hundred Sixty -Four Dollars and 41/100 ($87,264.41) settlement check, the Claimant, Claimant's RELEASE AND SETTLEMENT AGREEMENT - 2 spouse(s), representatives of Claimant's estates, Claimant's beneficiaries, heirs, children, grandchildren, successors and assigns shall defend, hold harmless and indemnify the City, the City's elected officials, officers, directors, agents, attorneys, employees, insurers, CIAW, successors and assigns, from any and all liabilities, demands, taxes, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorney's fees of any kind or nature whatsoever, known or unknown, arising out of, or resulting from the Incident, including but not limited to subrogation claim(s) of any third party arising from the described Incident. 7. No Admission of Liability. It is understood and agreed that this Agreement is the compromise of a disputed claim, and that the payment made herein is not to be construed as an admission of liability on the part of the City and the parties hereby released, and that said releasees deny liability therefor. This Agreement is not intended to be admissible against any party as an admission of liability and/ or fault, including but not limited to in claims or lawsuits by other Claimants relating to sewage backup claims. Notwithstanding the immediately preceding sentence, this Agreement, if otherwise admissible, may be introduced into evidence at any proceeding between or among the parties to enforce its terms. 8. Severability. If any provision of the Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, such provision shall not affect the validity of the remaining provisions of this Release and Settlement Agreement. 9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 10. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of the State of Washington for Yakima County. 11. Claimant Understands the Terms of This Agreement. In entering into this Agreement, Claimant represents that Claimant has reviewed the terms of this Agreement and that those terms are fully understood by the Claimant. IN WITNESS WHEREOF, this Agreement has been signed by Claimant and by the City Manager. DATED this 11 day of June, 2018 RELEASE AND SETTLEMENT AGREEMENT - 3 STATE OF WASHINGTON ) t. ) ss. COUNTY OF YAKIMA ) On this day personally appeared before me Sandy Armijo, to me known to be the individual described herein and who executed the forgoing instrument, having acknowledged to me that the same was signed by Claimant as a free and voluntary act and deed for the uses and purposes therein mentioned. WITNESS my hand and official seal this // day of CRAIG M. NANCE STATE OF WASHINGTON NOTARY PUBLIC MY COMMISSION EXPIRES 08-18-18 CITY OF YAKIMA By: r/ City ager ATTEST: Signa Print NOTARY PUBLIC in and for the State of Washington residing at yi9-/ /"t 4 - My Commission expires if" —/ 5 City Clerk Resolution No. R-2018- D575- 6, •7-1-reeci S S6,•7-1--e.cf •7a. 20/6-/f)/ RELEASE AND SETTLEMENT AGREEMENT - 4 RELEASE AND SETTLEMENT AGREEMENT THIS RELEASE AND SETTLEMENT AGREEMENT (hereafter the "Agreement") is made and entered into by and between CAROLYN PIERSON (hereafter referred to as "Claimant") and the CITY OF YAKIMA (hereafter referred to as "City"). WHEREAS, Claimant has filed a Claim for Damages (hereafter called the "Claim") with and against the City of Yakima alleging, among other things, that Claimant sustained damages as a result of a sewer backup that occurred on February 9, 2018, when sewage from a City sewer line backed up into the residence owned by Sandy Armijo, located at 411 N. 56th Avenue, Yakima, Washington, (hereafter the "Incident"). WHEREAS, Claimant and the City wish to settle and compromise the Claim. NOW, THEREFORE, in consideration of the matters set forth in the foregoing recitals and the mutual covenants and other considerations contained herein, the City and Claimant agree as follows: 1. Settlement Payment to Claimant by the City. Simultaneously with and in consideration for the execution and delivery of the Agreement, CIAW, on behalf of the City, will deliver to the Claimant, a settlement check in the sum of Thirteen Hundred Twenty -Five Dollars and 00/100 ($1,325.00). 2. No Further Prosecution of the Claim. In consideration of the payment of said Thirteen Hundred Twenty -Five Dollars and 00/100 ($1,325.00) settlement check, Claimant, Claimant's spouse(s), representatives of Claimant's estates, Claimant's beneficiaries, heirs, children, grandchildren, successors and assigns shall not further prosecute this Claim and shall never, by reason of any matter or cause heretofore occurring or by any reason of any matter or cause hereafter occurring relating to Claimant's alleged damages from the Incident (whether said matter or cause is known or unknown, developed or undeveloped, at the date of executing this Release and Settlement Agreement), institute suit or action at law or in equity or otherwise execute any judgement against the City and the City's elected officials, officers, directors, agents, attorneys, employees, successors, assigns and CIAW, nor in any way aid in the prosecution of any claim, demand or action for damages, costs, expenses or compensation for loss to her person, property, or both, whether developed or undeveloped. 3. Release of the City by the Claimant. In further consideration of the Thirteen Hundred Twenty -Five Dollars and 00/100 ($1,325.00) settlement check, RELEASE AND SETTLEMENT AGREEMENT -1 Claimant, Claimant's spouse(s), representatives of Claimant's estates, Claimant's beneficiaries, heirs, children, grandk hildren; successors and assigns do hereby irrevocably and forever release, acquit and discharge the City and the City's elected officials, officers, directors, agents, attorneys, employees, insurers, CIAW, successors and assigns„ of and from and all liabilities, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorney fees of any kind and nature whatsoever, known or unknown, arising out of, relating to, or resulting from the Incident. 4. Assumption of Risk. In further consideration of the Thirteen Hundred Twenty -Five Dollars and 00/100 ($1,325.00) settlement check, Claimant agrees, represents and warrants that Claimant realizes and acknowledges, and agrees to assume the risk, that actual matters now unknown, unanticipated or misunderstood by him in connection with Claimant's alleged damages from the Incident may have given or hereafter give rise to causes of action, claims, losses and expenses which are presently unknown, unanticipated or unsuspected, or misunderstood, and further agrees, represents and warrants that the releases in this Release and Settlement Agreement have been negotiated and agreed to in light of the realization that Claimant nevertheless intends to release, discharge and acquit the City from any such controversies, damages, costs, losses and expenses which in any way are related to the Incident. 5. Indemnification and Hold Harmless of the City by Claimant. In further consideration of the Thirteen Hundred Twenty -Five Dollars and 00/100 ($1,325.00) settlement check, the Claimant, Claimant's spouse(s), representatives of Claimant's estates, Claimant's beneficiaries, heirs, children, grandchildren, successors and assigns shall defend, hold harmless and indemnify the City, the City's elected officials, officers, directors, agents, attorneys, employees, insurers, CIAW, successors and assigns, from any and all liabilities, demands, taxes, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorney's fees of any kind or nature whatsoever, known or unknown, arising out of, or resulting from the Incident relating to Ms. Pierson's personal property, including but not limited to subrogation claim(s) of any third party arising from the described Incident. 6. No Admission of Liability. It is understood and agreed that this Agreement is the compromise of a disputed claim, and that the payment made herein is not to be construed as an admission of liability on the part of the City and the parties hereby released, and that said releasees deny liability therefor. This Agreement is not intended to be admissible against any party as an admission of liability and/ or fault, including but not limited to in claims or lawsuits by other Claimants relating to sewage backup claims. Notwithstanding the immediately preceding sentence, this Agreement, if otherwise admissible, may be introduced into evidence at any proceeding between or among the parties to enforce its terms. RELEASE AND SETTLEMENT AGREEMENT - 2 1 7. Severability. If any provision of the Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, such provision shall not affect the validity of the remaining provisions of this Release and Settlement Agreement. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 9. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of the State of Washington for Yakima County. 10. Claimant Understands the Terms of This Agreement. In entering into this Agreement, Claimant represents that Claimant has reviewed the terms of this Agreement and that those terms are fully understood by the Claimant. IN WITNESS WHEREOF, this Agreement has been signed by Claimant. DATED this \ \ day of June, 2018 By: Q\ -- CAROL ' PI SON STATE OF WASHINGTON COUNTY OF YAKIMA ) ss. On this day personally appeared before me Carolyn Pierson, to me known to be the individual described herein and who executed the forgoing instrument, having acknowledged to me that the same was signed by Claimant as a free and voluntary act and deed for the uses and purposes therein mentioned. Z..4&WITNESS my hand and official seal this / / day of June, 2018. CRAIG M. NANCE STATE OF WASHINGTON NOTARY PUBLIC MY COMMISSION EXPIRES 08-18-18 Resolution No. R-2018-055- Signatu Print Na NOTARY PUBLIC in and for the State of /114-/vG67 Washington residing at My Commission expires e - /cP �d RELEASE AND SETTLEMENT AGREEMENT - 3 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT 1 Item No. 6.F. For Meeting of: June 19, 2018 ITEM TITLE: Resolution authorizing consent to settlements entered into by the City of Yakima to resolve and settle damage claims brought by Sandy Armijo and by Carolyn Pierson 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 two settlements entered into by the City of Yakima ("City') to resolve and settle the damage claims filed by Sandy Armijo on February 12, 2018, and by Carolyn Pierson on April 20, 2018. In their damage claims, the claimants alleged damages from a sewer backup that occurred on February 9, 2018 at the residence of Mr. Armijo located at 411 North 56th Avenue. Mr. Armijo's claim is for damages to the residence and for personal property. Ms. Pierson's claim is for damages to some personal property. The claim against the City brought by Sandy Armijo has been settled for $87,264.41, and the claim against the City brought by Carolyn Pierson has been settled for $1,325.00, for a total settlement amount of $88,589.41, subject to the presentation of the settlements to the Yakima City Council for its approval. A copy of each Release and Settlement Agreement is attached. Because the total of the settlements is within the City's deductible of $100,000 with CIAW, the settlement amounts will to be paid by the City through reimbursement to CIAW. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Public Trust and Accountability APPROVED FOR SUBMITTAL: STAFF RECOMMENDATION: Adopt Resolution. 2 BOARD/COMMITTEE RECOMMENDATION: ATTACHMENTS: Description Upload Date Type • Res d uti on 6/11/2018 Resolution • Settlement Agreement -Armijo 6/11/2018 Backup Material • Settlement Agreement - Pierson 6/11/2018 Backup Material