APPROVED AS TO FORM AND LEGALITY
____________________________
CITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
RESOLUTION NO. ____________ C.M.S.
RESOLUTION AUTHORIZING AND DIRECTING THE CITY
ATTORNEY TO COMPROMISE AND SETTLE THE CITY’S CROSS -
COMPLAINT AGAINST GALLAGHER & BURK, INC. IN THE CASE OF LYNNE MCDONALD AND DAVID BARR V. CITY OF OAKLAND ,
CONTRA COSTA COUNTY , AND DOES 1 THROUGH 50, ALAMEDA
COUNTY SUPERIOR COURT CASE NO. RG18931020, CITY ATTORNEY FILE NO. 32944, IN THE AMOUNT OF ONE HUNDRED EIGHTEEN
THOUSAND DOLLARS AND ZERO CENTS ($118,000.00) PAYABLE TO THE CITY OF OAKLAND (DEPARTMENT OF TRANSPORTATION –
DANGEROUS CONDITION OF PUBLIC PROPERTY)
WHEREAS, Plaintiffs Lynne McDonald (“McDonald”) and David Barr allege that on May 12, 2018, McDonald was riding a bicycle on Grizzly Peak Boulevard in the southbound lane, approximately 400 yards south of the intersection with Lomas Cantadas and crashed near a large pothole suffering serious injuries, including incomplete quadriplegia; and
WHEREAS, Plaintiffs sued the City of Oakland, alleging a claim for dangerous condition of public property, and sued the City’s paving contractor Gallagher & Burk, Inc., alleging a claim for negligence; and
WHEREAS, the City filed a cross-complaint against Gallagher & Burk, Inc., alleging that Gallagher & Burk, Inc. is obligated to defend and indemnify the City from Plaintiffs’ claims; and
WHEREAS, Plaintiffs settled their claims against Gallagher & Burk, Inc., including dismissing all claims Plaintiffs may have against the City by virtue of the negligence of Gallagher & Burk, Inc., thereby discharging any further duty of Gallagher & Burk, Inc. to indemnify the City and the Court found that the settlement constitute a good faith settlement; and
WHEREAS, the City continues to assert its claim that Gallagher & Burk, Inc. breached its contractual obligation to provide the City with a legal defense against Plaintiffs’ claims; and
WHEREAS, the City and Gallagher & Burk, Inc. have negotiated a fair and reasonable settlement of the City’s remaining claims Gallagher & Burk, Inc.; and
WHEREAS, Plaintiffs’ claims remain pending against the City; now, therefore, be it
2 RESOLVED: That the City Attorney is authorized and directed to compromise and settle the City’s cross -complaint against Gallagher & Burk, Inc. in the case of Lynne McDonald and David Barr v. City of Oakland, Contra Costa County, and Does 1 through 50 , Alameda County Superior Court Case No. RG18931020, City Attorney File No. 32944, for Gallagher & Burk’s payment to the City of One Hundred Eighteen Thousand Dollars and Zero Cents ($ 118,000.00); and be it
FURTHER RESOLVED: That the City Attorney is authorized and directed to take whatever steps may be necessary to effect said settlement.
IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - FIFE, GALLO, JENKINS, KALB, KAPLAN, RAMACHANDRAN, REID, AND
PRESIDENT FORTUNATO BAS
NOES –
ABSENT –
ABSTENTION –
ATTEST:
ASHA REED
City Clerk and Clerk of the Council of the
City of Oakland, California
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