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11/06/2012 09 Lawsuit Settlement For Elaine Gonzalez r BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: November 6, 2012 i ITEM TITLE: Resolution authorizing a settlement entered into by insurance company St. Paul Fire and Marine Insurance Company ( "Travelers ") to resolve and settle the lawsuit brought by Elaine Gonzalez. SUBMITTED BY: City Manager's Office and Legal Department CONTACT Helen A. Harvey, Senior Assistant City Attorney, 575 -6030 PERSON /TELEPHONE: 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 Elaine Gonzalez in Yakima County Superior Court Cause No. 09 -2- 03121 -4, entitled Elaine Gonzalez v. City of Yakima, and to settle all claims by the plaintiff. The case was settled through a mediation with mediator Michele Sales of Washington Arbitration and Mediation Service ( "WAMS "). The damage claim filed by Elaine Gonzalez on October 9, 2008, and the amended damage claim filed on April 22, 2009, alleged $4 million in damages. Plaintiffs lawsuit was filed on August 20, 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 $180,000, 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 Phone: • Source: Company ("Travelers") APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt Resolution. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ 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 Elaine Gonzalez ❑ Settlement Agreement re Elaine Gonzalez • • 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 Elaine Gonzalez. WHEREAS, on August 20, 2009, a lawsuit was filed in Yakima County Superior Court No. 09 -2- 03121 -4 entitled Elaine Gonzalez 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 Elaine Gonzalez 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 Elaine Gonzalez, which settlement will be paid by St. Paul and Marine Insurance Company ( "Travelers "). ADOPTED BY THE CITY COUNCIL this day of November, 2012. Micah Cawley, Mayor ATTEST City Clerk • SETTLEMENT AGREEMENT 1. Mediation On October 29, 2012. the parties in the matter of Elaine Gonzalez v. City of Yakima. Yakima County Superior Court Cause No. 09- 2- 03121 -4, engaged in a mediation with Michele Sales acting as mediator. 2. Release For the consideration recited below,, Elaine Gonzalez, and her representatives, benefi- ciaries, heirs, children grandchildren, successors and assigns (hereinafter "Releaser Party "), 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 Party, her 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 Party 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 Elaine Gonzalez's employment with the City of Yakima occurring prior to October 29, 2012; (2) all those matters arising from or related to Public Records Act requests, if any, made prior to October 29, 2012; (3) all those matters which are or could have been the subject of the Claim for Damages filed by Elaine Gonzalez on 10/9/08; (4) all those matters which are or could have been the subject of Yakima County Superior Court Cause No. 09- 2- 0312I -4; and (5) any other incidents, acts or omissions involving the released parties and the entities released occurring prior to the date of this Settlement Agreement is signed. • Settlement - ent Agreement 1 of 3 3. Consideration The consideration for the aforementioned settlement and the release contained in paragraph 2 abo\ e includes the following. 1) Payment by St. Paul Fire and Marine Insurance Company ("Travel- ers") to the trust account of the La\\ Office of Helsell Fetterman. the sum of S180,000.00 payable for the benefit of Elaine Gon- zales (after approval by the Yakima City Council). 2) Dismissal with prejudice and w ithout costs or fees of Yakima Coun- ty Superior Court Cause No. 09- 2- 03121 -4. 3) Tax liability, if any, on the proceeds of the settlement sum shall be paid by the Releaser Party and /or the Releaser Party's law firms, and the Releaser Party agrees 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 contribution or payment if any of the settlement proceeds are deter- mined to be taxable income as to the Releaser Party or her law firms. 4. Indemnification for Subrogation and Lien Claims, and Hold Harmless The Releaser Party represents 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 Party agrees 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 warrants that she has the authority to execute this Settlement Agree- ment. The Releaser Party further warrants 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 she has the sole right and exclusive authority to execute this Settlement Agreement and to receive the settlement proceeds. • Settlement Agreement - 2 of 3 11 1 1 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. 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. S. Consultation With Counsel The Releaser Party expressly waives any claim that this release is not fairly and knowing- ly made. She further represents that she has entered this Settlement Agreement only after consultation with her attorneys. Dated: October 29, 2012. Elaine Gonz. I' -Was - Party STATE OF WASHINGTON ) ) ss: County of X/ Ad b ) On this day personally appeared before me ELAINE GONZALEZ, to me known to be the individual described in and who executed the within and foregoing Settlement Agreement, and acknowledged that she signed the same as her free and voluntary act and deed, for the uses and purposes therein mentioned. GIVEN under my hand and official seal this y c7, day of October, 2012. // 0 : — 556 ARY BL = Print Name: 3 G 4 eRG.4.or •� 5, z ,, �: :. = � ti Mot Residing at: /Cet e 4/4 4 tiira. ` My Commission Expires: 9 / /5/ Settlement Agreement - 3 of 3