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HomeMy WebLinkAboutRes1998-011 I I I Sponsored by: Gifford CITY OF SEWARD, ALASKA RESOLUTION NO. 98-011 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A SETTLEMENT AGREEMENT WITH TIM MCDONALD AND LEO WAKEFIELD WHEREAS, Tim McDonald and Leo Wakefield filed an action in superior court against the City of Seward, then-mayor Louis Bencardino, and then-city manager Ron Garzini, alleging, among other things, a violation of plaintiffs' first amendment rights and challenging the legality of actions taken by the City respecting the sale of the sawmill site pursuant to City Resolution 97-032; WHEREAS, the superior court ruled in favor of the City respecting claims relating to the sawmill site transaction which decision was appealed by plaintiffs to the Alaska Supreme Court; WHEREAS, the claims respecting alleged first amendment violations remained subject to trial in superior court and oral argument has been scheduled regarding the supreme court appeal; WHEREAS, the City of Seward and plaintiffs acknowledge that each has expended significant resources regarding ongoing litigation; and WHEREAS, based upon negotiation and assessment of the matter, the parties have agreed to settle all claims and disputes arising between them concerning the facts and issues raised in the litigation entitled McDonald. Wakefield v. City of Seward et al., 3KN-97-568 Civil and McDonald. Wakefield Appellants v. City of Seward et at Appellees, Case No. S-8326; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The settlement agreement between Tim McDonald and Leo Wakefield as complainants and the City of Seward, Ron Garzini and Louis Bencardino, attached and incorporated herein by reference, is hereby approved. Section 2. This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 9th day of February, 1998. CITY OF SEWARD, ALASKA RESOLUTION NO. 98-011 ~ CITY OF SEWARD, AL~~KA ~/--tv;f ~) Lowell R. Satin, Mayor AYES: NOES: ABSENT: ABSTAIN: Blatchford, Callahan, Clark, King, Orr, Satin Gage None None ATTEST: ~7;;L~ Pitrick Reilly / City r.~~.H~:"". "\~O~t: If..'e,~ ',..t~!'.,. ~_~~ . .; i ',..I"""" t.-?,l:", ~(..~.:'lo ~,' "'....}... "".',,"9.,.. ."1',4') ~....'" L"\....~....p.70;t4....~ '.0 .::. ~\f~~'J r~.. ~ .. ....; ''0'.".. ~'!': ; ':,;::," -0- l.~ ~,~ U . 'T ,', ,. J..., . .. ~lJ~... """- c,n _ :o;~~ v ~,j,,:,':j,l:~ . :,'. ~ - :~: t) . -.-. . "" ~.~~ ...~ ",.,,":: ";'1 ~,L"~t, .,i\V" ,.".. "'Ilf ~':.~ ~J1,\," /:!;~~ ~ ,ff) ;i,". ~ ~.. \;:> .,. ._ ,.... ."" 1'1 .... (" ". ":r; ""';~'~" ~.~. " ',", .:.~.""'~~, ".l ~:.'JI..1'~ ',' ,~::;;;-<~~~~:;~+ SETTLEMENT AGREEMENT I The parties to this agreement are complainants TIM MCDONALD and LEO WAKEFIELD (collectively "Complainants") and the City of Seward, a municipal corporation; RON GARZINI, individually and as City Manager; LOUIS BENCARDINO, individually and as City Mayor (collectively the "City"), and with the advice of counsel for each of Complainants and City. This agreement is entered into for good and valuable consideration as recited herein and is effective upon the date that this agreement is approved by the Council of the City of Seward. I. PURPOSE OF SETTLEMENT I A. All parties to this settlement agreement desire to end and resolve litigation and controversy by and among each of them and to end and resolve litigation and controversy respecting the matters described or alleged by the parties hereto. It is intended that, to the extent that interpretation of the terms of this settlement agreement is necessary, such interpretation shall be based upon the presumption that all matters asserted or in controversy prior to the date of execution of this agreement have been definitively resolved without additional recourse among the parties except as might be necessary to enforce the terms of this agreement. B. The parties to this settlement agreement intend to fully and definitively settle all matters raised or which could have been raised in litigation entitled Tim McDonald. Leo Wakefield v. City of Seward; Ron Garzini individuallv and as City Manaqer; Louis Bencardino. individuallv and as City Mavor, Case No. 3KN-97-568 Civil and that appeal styled Tim McDonald. Leo Wakefield. Appellants v. City of Seward: Ron Garzini individuallv and as Citv Manaqer; Louis Bencardino. individuallv and as Citv Mavor. Appellees, Case No. S-8326 (collectively the "Litigation"). C. All parties understand and specifically agree that execution of this agreement and resolution of the Litigation do not constitute any admission of wrongdoing, misconduct, or liability on the part of any other party. All parties understand and recognize that each side denies any wrongdoing, misconduct, or liability and are agreeing to the terms of this agreement solely to terminate current Litigation or disputes, and the possibility of any further or future litigation. The parties to the Litigation desire to save the cost and uncertainties of continuing the Litigation or disputes by settling these claims at the present time. II. CONSIDERATION I A. The parties will by . 1998, dismiss and withdraw the Litigation as filed in superior court and in supreme court, and the form of such dismissal and withdrawal shall be "with prejudice," with each party to bear its own costs and attorneys' fees, in a form substantially as attached hereto. . I I B. The City shall waive and discharge its right and entitlement to collect attorneys' fees in the Litigation, as entered by order of the superior court on October 6, 1997, and shall cause to be filed in court a satisfaction of judgment. To the extent such attorneys' fees have been collected from Complainants by writ of execution, said funds shall be expeditiously returned to Complainants. C. Upon execution of valid dismissal documents as described in paragraph II-A above, the City shall pay to Complainants the sum of $10,000. D. Following withdrawal and dismissal of the Litigation, the Mayor will make a statement at the earliest valid opportunity at a Council meeting in substantially the form attached. The same statement will be submitted by the Mayor as a letter to the editor by the Mayor to the Seward Phoenix Loq. E. The City will not oppose and Complainants shall be entitled to recover any bonds posted in the Litigation III. UNDERTAKINGS OF THE PARTIES A. The parties will promptly undertake to execute, file, record, obtain court approval, or otherwise take such steps as are necessary to effectuate the t.erms of this settlement agreement, and the parties hereto recognize that time is of the essence in accomplishing the steps contemplated hereunder. B. This agreement shall be governed by and construed in accordance with the laws of the State of Alaska. Venue for enforcement of this settlement agreement shall lie in the Kenai Superior Court, Third Judicial District, Alaska. IV. UNDERSTANDINGS OF THE PARTIES A. For and in consideration of the payment and actions described herein, the execution of the settlement agreement, and other good and valuable considerations, the parties to this agreement, and their heirs, executors, administrators, and assigns, hereby release, acquit, and forever discharge all other parties to this agreement who might be legally liable for any damages or injuries described in the Litigation or as may have been described in the Litigation, or with respect to any other thing or claim whatsoever on account cif or in any way arising out of allegations, directly or inferentially, which were raised or could have been raised in the Litigation. B. The parties further specifically agree that no action, process, or challenges of any kind shall be brought by any of them against any of the other parties or the Settlement Agreement ALL01DB9/4337.4109 Page 2 I I I project at issue in the Litigation, directly or by and through any other party concerning or arising out of the claims described in this agreement or any allegations in the Litigation, and warrant that they know of no such claims. C. All the terms and conditions of the settlement agreement have been reflected upon without haste. No party is under any disadvantage, and no promise or inducement which is not herein expressed has been made to any party. Each party specifically warrants and represents that he or it has been duly advised by counsel and has had the opportunity to consult with counsel in a timely fashion with each and every person or entity with whom that party desired to consult. D. All parties have been informed of or are aware of the holding in the case of Witt v. Watkins, 579 P.2d 1065 (Alaska 1978), and are familiar with the significance of the supreme court decision in that case. Nevertheless, the protection, if any, of the holding therein, is hereby expressly waived. Each party hereby acknowledges, understands, and assumes all risks, chances, or hazards that any damages may substantially be higher than the settlement amount, may be greater in degree than presently described or understood, and may be different in kind or character; and each party understands and acknowledges the existence of that risk and nevertheless accepts the above-mentioned payment and gives this release. E. The parties have been informed or are aware of the holding in the case of Younq v. State, 455 P.2d 889 (Alaska 1969), and are familiar with the significance of the supreme court decision in that case. It is the parties' intent and desire herein to release all individuals, firms, corporations, or entities, including the plaintiffs and defendants, against whom they might possibly make claim, demand, or suit as a result of the damages referred to in this agreement and/or which allegedly occurred with regard to the allegations in the Litigation. This is so even though they may not be able to name or identify those persons, firms, corporations, or other entities against whom they might consider a claim, demand, or suit. F. This settlement agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous contracts, agreements, promises, representations, warranties, inducements, covenants, or duties, oral or written, conditional or unconditional, expressed or unexpressed which in any way arise out of or result from the subject matter of this settlement agreement and the Litigation. G. Each of the parties to this release and settlement agreement acknowledges that he or it has had the benefit of the advice and representation of competent independent legal counsel in negotiating, entering into, and executing this agreement. It is further agreed that the fact that this agreement may have been drafted in whole or in part by one such party's counsel shall not cause all or'. any part of this Settlement Agreement ALL01DB9/~337 .4109 Page 3 I I I agreement to be construed against such party. The parties agree that this agreement is the joint product of the parties and their respective counsel, and that there is no drafter against whom ambiguities are to be resolved in the event of a dispute. H. The City warrants that it is authorized to sign this agreement on behalf of individual defendants Garzini and Bencardino and that said defendants are bound by this agreement. COMPLAINANTS: DATED: 2- - f- C;p Bya:..)M~ Tim McDonald DATED: 2-~- 9r BY~~'~~ Leo Wakefield CITY OF SEWARD, Ron Garzini, individually and as [former] City Manager, Louis Bencardino, individually and as [former] City Mayor DATED: 11/1/9S ~r &::~.-'''' APPROVED AS TO FORM: ~\)_\LL/'-- ,aenni. A. Wheeler Attorney for Comp . ants ~/CJ Robert M. Johnson Attorney for City (including City of Seward, Garzini and Bencardino) Settlement Agreement ALL01DB9I4337,4109 Page 4