Loading...
HomeMy WebLinkAboutRes1997-093 . I r r Sponsored by: Garzini CITY OF SEWARD, ALASKA RESOLUTION NO. 97-093 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING A SETTLEMENT AGREEMENT WITH TYLER JONES WHEREAS, the City of Seward and Tyler Jones hereby acknowledge that on May 24, 1993 the City agreed to employ Jones as city manager; and WHEREAS, Jones filed suit on or about July 17, 1995 as set forth in the settlement agreement; and WHEREAS, the City removed the action to federal court and on or about December 14, 1995, the court entered final judgment dismissing Jones' federal claims with prejudice and his state claims without prejudice; and WHEREAS, an appeal from that judgment is currently pending in the United States Court of Appeals for the Ninth Circuit; and WHEREAS, the City of Seward and Jones acknowledge that, since the filing of Jones' complaint, each has engaged in substantial negotiation and independent investigation of the various claims alleged by Jones; and WHEREAS, based upon that negotiation and independent examination of the issues, the Parties have agreed to settle all claims and disputes arising between them concerning the facts and issues raised either as a result of Jones' employment with the City or in the litigation entitled, Tyler Jones v, City of Seward, Case No, 96-35057; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The Mutual Agreement of Settlement and Release between the City of Seward and Tyler Jones, attached and incorporated herein by reference, is hereby approved, Section 2. Funds totaling $25,000 are hereby appropriated from the General Fund Fund Balance, Account No, 101-0000-3050 to Mayor and Council Department, Miscellaneous Expense, Account No, 101-1110-5790, Section 3. This resolution shall take effect immediately upon its adoption, CITY OF SEWARD, ALASKA RESOLUTION NO. 97-093 PASSED AND APPROVED by the City Council of the city of Seward, Alaska, this 23 day ofJune, 1997, THE CITY OF SEWARD, ALASKA AYES: NOES: ABSENT: ABSTAIN: Anderson, Bencardino, Blatchford, Clark, Crane, Keil King None None ATTEST: V,;JJ',;- ,c, , ~_~ Patricia 1. Jones, CMC Acting City Clerk (City Seal) ",",,,,,,,, .......... O~ St:'!';~/"" ........t...... "........ ,I ~ ,... ~.. ~, ,* ......~O. ': .. ~ ........ .... ,~ "'I"'l.i-c." j"...;..t,,,~,,.. \.~ ~ ..., '-" ..~..0J "-T ,,'>.~. ___ .. ..~ -p- +-.>'\. f1'" ~ l-~:'" ___ v ~ :, ... - .- = : (::~''',.~::\ ,. : Q : = .: u.,;,", - ..<..J : : , \ -~ i: ..... ^- . iIIlt '\ '.."lI. f;)'\."-" ~ ~ ~ d'I~ .".'^'~ 1. ~..., co::}? ~ ,,~ ;,.;..... ........ ..::>..<ti ~'.. I e~ 0"" t>.~r.... ~, .. f" ,.... 'Iii n n'':.' .; . I MUTUAL AGREEMENT OF SETTLEMENT AND RELEASE between THE CITY OF SEWARD and TYLER JONES \, The parties to this Mutual Agreement of Settlement and Release ("Agreement") are the City of Seward ("City") and Tyler Jones ("Jones"). 2, The (~ity and Jones (collectively the "Parties") hereby acknowledge that on May 24. 1993. the City agreed to employ Jones as city manager. On or about July \.7, 1995. Jones tiled suit in the Superior Court for the State of Alaska, Third Judicial at Anchorage, Alaska. In his complaint, Jones asserted various claims against the City including, but are not limited to, violations of Jones' state and federal constitutional rights, violation of the implied covenant of good faith and fair dealing, and breach of contract arising from his employment by the City as city manager. The case also involves claims by the city against Jones for breach of contract, breach of the implied covenant of good faith and fair dealing and misrepresentation pertaining to reimbursement of Jones for personal leave taken in April, 1995, , The City removed the action to federal court. The removed action was entitled Tyler Jones v, Citv of Seward, United States District Court for the District of Alaska, Case No. A95-3 I 7 Civil. On or about December 14, 1995, the court entered final judgment dismissing Jones' federal claims with prejudice and his state claims without prejudice, Thereafter, the court entered judgment against Jones for costs in the amount of $451,75. An appeal from that judgment is currently pending in the United States Court of Appeals for the Ninth Circuit. That appeal is entitled Tyler Jones v, City of Seward, Case No. 96-35057. 3. The Parties acknowledge that, since the filing of Jones' complaint. each has engaged in substantial negotiation and independent investigation of the various claims alleged by Jones. Based upon that negotiation and independent examination of the issues, the Parties have agreed to settle all claims and disputes arising between them concerning the facts and issues raised either as a result of Jones' employment with the City or in the litigation referenced in paragraph 2 above, 4, Therefore, recognizing that this matter has been resolved prior to the completion of litigation. the Parties have reached a settL,.ent agreement as follows: , A. Immediately upon execution of this Agreement, the Parties will voluntarily agree to a dismissal of Case No, 96-35057 currently pending before the MUTUAL AGREEMENT OF SETTLEMENT AND RELEASE United States Court of Appeals for the Ninth Circuit with each party to bear their own costs and attorney's fees. B. Immediately upon execution of this Agreement, the Parties will file with the United States District Court a written stipulation in the form attached hereto as Exhibit A providing for (i) the vacation of the judgment dated December 14, 1995, against Jones in the amount of $451.75, (ii) the return of the cash deposit in lieu of supersedeas bond to Jones. and (iii) dismissal of the claims. including Jones' state law claims, and counterclaims filed in said "action with prejudice -with, each party'to bear-their. own.costs and attorney' s fees, C. The City will pay to Ronald L. Baird in trust for Jones the sum of $25,000,00 (Twenty-Five Thousand Dollars and No/lOO) within fifteen (15) days of the date of the last execution of this Agreement. 5, FOR AND IN CONSIDERATION of the provisions set forth above in paragraph 4 of this Agreement, and other good and valuable consideration the receipt of which is hereby acknowledged: A, Jones expressly releases and forever discharges (i) the City; (ii) each and every past and present City employee; (iii) each and every past and present member of the City Council; and (iv) each and every past and present City mayor, City manager, and any other City official, and the City expressly releases and forever discharges Jones (collectively the "Releasees") from any and all actions, causes of action, suits, controversies, claims, obligations, damages, liabilities, costs, attorneys' fees, interest, expenses, loss of wages, benefits, or compensation of any kind, consequential damage, and demands of every kind and nature whatsoever, now known or which may become known, whether such liability arises by way of common law, city charter, city ordinance, statute, regulation, contract (implied or express), or by any other means, which arises or may arise out of any events occurring from the date of Jones' hire to the date of this Agreement. This release and discharge includes, but is not limited to any and all claims or possible causes of action: (a) relating to Jones' employment with the City and the cessation of that employment; (b) that were or could have been asserted by either Party in the action described in paragraph 2; and (c) that were or could have been asserted by either Party as of the date of this Agreement. Each Party intends this Agreement to constitute a full release, discharge and extinguishment of any and all liability, B. Each Party agrees to bear any and all costs and/or attorneys' fees each has incurred in this matter; and C. Acknowledges the adequacy of the obligations set forth in paragraph 4 above as consideration in full for the release of all of their claims. MUTUAL AGREEMENT OF SETTLEMENT AND RELEASE 2 . I 6, The Parties each agree that, immediately upon execution of this Agreement Case No. 96-35057 shall be dismissed with prejudice, with each party to bear their own costs and attorneys' fees. Each agrees further that their respective attorneys are authorized to execute the documents necessary for such a dismissal. 7, The Parties acknowledge that they have had full and ample opportunity to review all of the facts and law relevant to this dispute. 8, The Parties acknowledge that -they. have had -ample-opportunity to ,consult freely and fully with their attorneys and that their attorneys have adequately advised them concerning their rights and the nature, purpose, and legal effect of this Agreement. 9, The Parties acknowledge that they have carefully read all of the provisions of this Agreement. , 10, The Parties acknowledge that they understand that this Agreement constitutes a contract whereby they release all of their claims against in exchange for the obligations set forth in the Agreement. II. The Parties acknowledge that they enter into this Agreement without any actual or threatened economic, physical, mental, psychological, or emotional duress, coercion, or undue influence on the part of any other person or entity, whether directly related to the Parties to this suit, or not. 12, The Parties acknowledge that they enter into this Agreement knowingly and intelligently with full understanding of their rights. 13, The Parties acknowledge that were they to allow the litigation described above to continue to completion, or were they to assert other legal claims that could have been asserted in the pending litigation, the possibility exists that they might not recover anything from their respective claims. 14, The Parties acknowledge that if any facts concerning the claims they did in fact raise or could have raised should be found hereafter to be other than or different from the facts now believed by them to be true, they expressly accept and assume the risk of such possible difference in facts and agrees that this Agreement shall be and will remain in full effect notwithstanding any such difference in facts, 15, , The Parties acknowledge that they have been informed of the decision of the Alaska Supreme Court in the case of Young v, State, 455 P,2d 889 (Alaska 1969), and that it is their true intent and desire to fully release any and all Releasees from any liability arising out of the facts as they currently exist, whether or not the possible claim is specifically named in this Agreement. MUTUAL AGREEMENT OF SETTLEMENT AND RELEASE 3 Further, in view of the Alaska Supreme Court case of Witt v. Watkins, 579 P,2d 1065 (Alaska 1978), of which the Parties have been informed, it is their intention, and it is the purpose of this Agreement, to discharge absolutely the liability of the Releasees for any and all claims arising out of the facts and issues raised as they currently exist. Each Party assumes the risk that any damages suffered may be different or may later be discovered to be greater or more extensive than is now known, anticipated, or expected. Each Party specifically understands and agrees that they are agreeing to this Agreement in order to release the Releasees fully, completely and finally from all claims now known and raised or which may later become known and/or,raised with, respect to the facts as they now exist. 16, The Parties acknowledge that all promises or inducements for entering into this Agreement are stated herein, and that they do not rely upon any statement or representation made by any Releasee, or any agent or other person or entity representing the respective Releasee, concerning damages or legal liability arising out of the facts as they now exist. 17. The Parties agree that they will not individually, or in concert with others, by virtue of judicial or administrative proceedings of any kind whatsoever, makc or cause to be made, acquiesce in, or assist in the bringing of any action against the Releasees for any damages or other relief that relate in any way to the claims that each did in fact raise or could have raised in the litigation described in paragraph 2. 18, The Parties acknowledge that this Agreement is the compromise of doubtful and disputed claims and this settlement is not to be construed as an admission of liability by either Party. 19, This Agreement is and shall be binding upon the Parties and their respective successors and assigns. 20, This Agreement shall be interpreted and construed in accordance with the laws of the State of Alaska, 21. This 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, and covenants, oral or written, conditional or unconditional, expressed or unexpressed, which in any way arise out of or result from the subject matter of this Agreement. DATED: JvL'J 7,/7'17 / By ~ frn~- Tier Jones MUTUAL AGREEMENT OF SETTLEMENT AND RELEASE 4 . I r r DATED: ~/Z7/97 I MUTUAL AGREEMENT OF SETTLEMENT AND RELEASE BY_~ Ronald Garzini the City of Seward 5 Jun-24-97 lO:42A Office of Ronald L. Baird 1 P.02 - Exhibit A - Ronald L. Baird Office of Ronald L. Baird Attorney P.O. Box. 100440 Anchorage, Alaska 99510-0440 Phone: (907) 258-8818 Fax: (907) 258-8819 Attorney for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA TYLER JONES. Plaintiff, VS, CITY OF SEWARD, an Alaska Municipal Corporation, Defendant. Case No. A95-317 CV [JKS] SETTLEMENT STIPULATION Plaintiff, Tyler Jones, by and through his attorney. Ronald L. Baird, and the City of Seward. by and through its attorneys, Wohlforth, Argetsinger, Johnson & Brecht, stipulate In performance of a settlement agreemel,lt between them that: I, The judgment entered in this matter on December 14, 1995, Docket No, 32, shall be vacated and be of no further effect between the parties, Selllement Stipulation - Page I Jun-24-97 lO:43A Office of Ronald L. Baird 1 P.03 - Exhibit A - 2, Plaintiff shall be discharged from the obligations of his Certificate of Cash Deposit filed April 3, 1996 in the amount of $451.75 and the cash deposited with the court shall be paid to Tyler Jones by the clerk of the court forthwith, 3, The claims and counterclaims filed 10 this al:tion, including Jones' state law claims, shall be dismissed with prejudice with each party to bear their own costs and attorney's fees, 4, The court IS requested to forthwith enter an order implementing this stipulation. Office of Ronald L. Baird Attorney for Plaintiff W ohlforth, Argetsinger, Johnson & Brecht Attorneys for Defendant , - Exhibit - Ronald L. Baird Date: - Exhibit - Carol Giles Date: , Settlemenl Stipulation - Page 2