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01/10/2012 05F Settlement of Lawsuit Brought By Reynaldo Garza , r� i Mr ''•• • ., a. iJ BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No S r For Meeting of January 10, 2012 ,m ,.,g.. q ., yip AWN irisioitA6 4 � q.�u.' 1:,vitr:K a.�iro a te - R, .r 'U 29.. _5, ,. aS ws,. }::+1 f k l ”• v # � :VG Y � F�:M. p;' #'�Sl *+a�NJ f` �'F 1 "1n rF�F?F, tr,t'1. i. ITEM TITLE: Resolution authorizing the City Manager to consent to a settlement entered into by insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") to resolve and settle the lawsuit brought by Reynaldo Garza. SUBMITTED BY: City Manager's Office and Legal Department CONTACT Michael A. Morales, Interim City Manager, 575 -6040 PERSON /TELEPHONE: Helen A. Harvey, Senior Assistant City Attorney, 575 -6030 SUMMARY EXPLANATION: This matter is on for consideration of a Resolution authorizing the City Manager to consent to a settlement entered into by insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") to resolve and settle the lawsuit filed by Reynaldo Garza in Yakima County Superior Court Cause No 09 -2- 02947 -3, entitled Reynaldo 0 Garza v City of Yakima, and all claims by the plaintiff. The case was settled through a mediation with mediator James M. Danielson of Jeffers, Danielson, Sonn & Aylward, P S. of Wenatchee. The damage claim filed by Reynaldo Garza on July 24, 2008, alleged $3.5 million in damages. Plaintiffs lawsuit was filed in 2009 The claim against the City of Yakima was settled by St. Paul Fire and Marine Insurance Company ( "Travelers ") through mediation, subject to the presentation of the settlement before the Yakima City Council. The amount of the settlement is $350,000, which entire amount is to be paid by the City's insurance carrier St. Paul Fire and Marine Insurance Company ( "Travelers "). The City of Yakima is paying no money toward settlement of the case Resolution X Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No - Funding St. Paul Fire and Marine Insurance Company Source: ( "Travelers ") Phone: APPROVED FOR SUBMITTAL: City Manager .„4 /1/2 • STAFF RECOMMENDATION: Adopt Resolution. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ A Resolution authorizing the City Manager of the City of Yakima to consent to a settlement entered into by insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") to resolve and settle the lawsuit brought by Reynaldo Garza. , ❑ Settlement Agreement re Reynaldo Garza RESOLUTION NO. R -2012- A RESOLUTION authorizing the City Manager of the City of Yakima to consent to a settlement entered into by insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") to resolve and settle the lawsuit brought by Reynaldo Garza. WHEREAS, on August 11, 2009, a lawsuit was filed in Yakima County Superior Court No. 09 -2- 02947 -3 entitled Reynaldo O. Garza v. City of Yakima; and WHEREAS, through a mediation, a settlement was reached by insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") 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, the entire amount of the settlement is to be paid by the City's insurance carrier St. Paul Fire and Marine Insurance Company ( "Travelers "), 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 insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") and Reynaldo Garza 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 insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") to resolve and settle the lawsuit brought by Reynaldo Garza. ADOPTED BY THE CITY COUNCIL this day of January, 2012. , Mayor ATTEST: City Clerk SETTLEMENT AGREEMENT 1. Mediation On September 29, 2011, the parties in the matter of Reynaldo O. Garza v. City of Yakima, Yakima County Superior Court Cause No. 09 -2- 02947 -3, engaged in a mediation with James M. Danielson acting as mediator. 2. Release For the consideration recited below, Reynaldo O. Garza and Ashley Garza, and their representatives, beneficiaries, heirs, children, grandchildren, successors and assigns (hereinafter "Releaser Parties "), forever release the City of Yakima, the City of Yakima Police Department, Cities Insurance Association of Washington ( "CIAW "), Canfield, St. Paul Fire and Marine Insurance Company, Travelers Insurance Company, and their respective past, present, , and future agents employees, officers, directors, elected and appointed officials, assigns, successors, attorneys and related entities (hereinafter "Entities Released ") from all claims and causes of action, which may ever be asserted by the Releaser Parties, their beneficiaries, spouse(s), executors, administrators, successors, assigns, or others, whether presently known or unknown, presently asserted or unasserted, which in any way arise out of or are related to any incidents, acts or omissions between the Releaser Parties and the City of Yakima and its past, present or future elected or appointed officials, officers, employees, and agents, including but not limited to: (1) all matters arising from or related to Reynaldo O. Garza's employment with the City of Yakima; (2) all those matters arising from or related to Public Records Act requests; (3) all those matters which are or could have been a claim by Ashley Garza; (4) all those matters which are or could have been the subject of the Claim for Damages filed by Reynaldo O. Garza on July 24, 2008; (5) all matters which are or could have been the subject of Equal Employment Opportunity Commission Charge Number 551- 2007 - 00517; (6) all those matters which are or could have been the subject of United States District Court for the Eastern District Of Washington Cause No. CV -09- 3005 -LRS; (7) all those matters which are or could have been the subject of Yakima County Superior Court Cause No. 08 -2- 04729 -5; (8) all those matters which are or could have been the subject of Yakima County Superior Court Cause No. 09- 2- 02947 -3; and (9) any other incidents, acts or omissions involving the released parties and the entities released occurring to the date this Settlement Agreement is signed. This release covers any and all past, present and future injuries, damages or losses known or not known to the Releaser Parties, but which may later develop or be discovered in connection with the above referenced matters, including, but not limited to, all claims of the type set forth above, for violation of civil rights, for retaliation, for personal injuries, for loss of income, for attorney's fees, for costs, and for loss of consortium. / / /// / / /// Settlement Agreement - 1 of 3 3. Consideration The consideration for the aforementioned settlement and the release contained in paragraph 2 above includes the following: 1) Payment by St. Paul Fire and Marine Insurance Company ( "Travelers ") to the trust account of the Law Office of Helsell Fetterman, LLP, the sum of $350,000 payable for the benefit of Reynaldo O. Garza and Ashley Garza. 2) Dismissal with prejudice and without costs or fees of Yakima County Superior Court Cause No. 09 -2- 02947 -3. 3) Tax liability, if any, on the proceeds of the settlement sum shall be paid by the Releaser Parties and /or the Releaser Parties' law firms, and the Releaser Parties agree to hold the City of Yakima, St. Paul Fire and Marine Insurance Company, and Travelers Insurance Company harmless and to indemnify them from any tax consequences of this settlement, if any. The duty to indemnify and hold harmless the City of Yakima includes, but is not limited to, any required employer contribu- tion or payment if any of the settlement proceeds are determined to be taxable income as to the Releaser Parties or their law fines. 4. Indemnification for Subrogation and Lien Claims, and Hold Harmless The Releaser 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 Releaser 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 attorney's fees incurred in the defense of such claims. 5. Warranty of Capacity to Execute Agreement The undersigned warrant that they have the authority to execute this Settlement Agreement. The Releaser 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 solely be in Yakima County, Washington. / / /// Settlement Agreement - 2 of 3 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 as is any fault relating to the matters described. It is agreed and understood that this settlement is a compromise of disputed claims. Regardless of the adequacy of the above consideration, acceptance of this release shall not operate as an admission of liability on the part of the Entities Released. 8. Consultation With Counsel The Releaser Parties expressly waive any claim that this release is not fairly and knowingly made. They further represent that they have entered this settlement agreement only after consultation with their attorneys. Dated: January , 2012. Reynaldo O. Garza, Releaser Dated: January , 2012. Ashley Garza, Releaser STATE OF WASHINGTON ) ) ss: County of ) On this day personally appeared before me REYNALDO O. GARZA and ASHLEY GARZA, to me known to be the individuals described in and who executed the within and foregoing Settlement Agreement, and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal this day of January, 2012. NOTARY PUBLIC Print Name: Residing at: My Commission Expires: Settlement Agreement - 3 of 3