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HomeMy WebLinkAboutR-2004-038 Apollo, Inc. Settlement & Release AgreementRESOLUTION NO. R-2004- 38 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute a Settlement and Release Agreement with Apollo, Inc., for the Ahtanum Trunk Line and Apple Tree Sewer Extension Project litigation; approving the settlement; and authorizing the disbursement of funds. WHEREAS, in 2001, the City of Yakima entered into a construction contract ("Contract") with Apollo, Inc., for the Ahtanum Trunk Line and Apple Tree Sewer Extension Project No. 1821 ("Project"); and WHEREAS, under the Contract, Apollo Inc., was to furnish all labor, materials and equipment to construct linear feet of PVC sanitary sewer, precast concrete manholes, and asphalt pavement repairs in accordance with the Plans and Specifications for the Ahtanum Trunk Line; and WHEREAS, the contract work on the Project was completed by Apollo, Inc., in 2001; and WHEREAS, certain disputes arose related to the Project for which Apollo Inc., made claims against the City; and WHEREAS, on January 27, 2003, in Apollo, Inc. vs. City of Yakima, Washington, Yakima County Superior Court Cause No. 03-2-00291-6, Apollo, Inc., commenced a lawsuit in the Superior Court of Washington against the City of Yakima ("lawsuit") seeking $288,370.22 in alleged damages arising out of the construction project; and WHEREAS, on February 2, 2004, Apollo, Inc., and the City of Yakima, represented by counsel, entered into a settlement mediation, and the parties tentatively reached a settlement that resolves all issues raised in the lawsuit, which settlement was made subject to the approval of the City Council; and WHEREAS, the City Council finds it to be in the best interest of the City of Yakima to authorize the City Manager to execute the attached Settlement and Release Agreement and to conclude the lawsuit filed by Apollo, Inc., against the City of Yakima, now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached Settlement and Release Agreement for the Ahtanum Trunk Line and Apple Tree Sewer Extension Project litigation; and the settlement between the City of Yakima and Apollo, Inc., is hereby approved; and the disbursement of funds in the amount of $104,000 to Apollo, Inc., is authorized. ADOPTED BY THE CITY COUNCIL this 17th day of February, 2004. ATTEST: City Clerk (aw) res/Apollo. Inc, settlement 02-O4.hah Paul P. George, Mayor SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AND RELEASE AGREEMENT (hereafter the "Agreement"), is made and entered into between the City of Yakima (hereafter the "City"), and Apollo, Inc., a Washington corporation (hereinafter "Apollo"). RECITALS A. In 2001, the City entered into a construction contract (hereinafter the "Contract") with Apollo, Inc. for the Ahtanum Trunk Line and Apple Tree Sewer Extension, Project No. 1821 (hereinafter the "Project"), which Project consisted of fu�ni hing all labor, materials and equipment to construct linear feet of PVC sanitary sewer, precast concrete manholes, and asphalt pavement repair in accordance with the Plans and Specifications for the Ahtanum Trunk Line. Apollo selected the subcontractors on the Project. The contract work on the Project site was completed in 2001. B. As a result of disputes related to the Project, Apollo commenced a lawsuit in the Superior Court of the State of Washington for Yakima County on or about January 27, 2003. The lawsuit is entitled Apollo, Inc., Plaintiff, vs. The City of Yakima, Washington, a municipal corporation, Defendant, Yakima County Cause No. 03-2- 00291-6 (hereafter the "Lawsuit"). C. The City and Apollo wish to settle and compromise the claims between them by this settlement agreement. It is understood and agreed that this settlement is the compromise of a disputed claim, and that the payment made herein is not to be construed as an admission of liability or fault on the part of the party or parties hereby released, including the City of Yakima, and that said releasees deny liability. This Agreement is not intended to be admissible against any party as an admission of any liability or fault. NOW, THEREFORE, in consideration of the matters set forth in the foregoing recitals, and the mutual covenants and other consideration contained herein, the City and Apollo agree as follows: 1. Settlement Payment of $104,000.00 to Apollo, Inc. by the City. Upon receipt of this executed Agreement and an executed Stipulation and Order of Dismissal with Prejudice, the City will deliver to Apollo, Inc., (through its attorney of record, John Spencer Stewart of Stewart Sokol & Gray, LLC) a settlement check in the total amount of One Hundred Four Thousand and 00/100 Dollar ($104,000.00), payable to Apollo, Inc., receipt of which will be acknowledged by Mr. Stewart. Page 1 2. Mutual Release In consideration of the One Hundred Four Thousand and 00/100 Dollar ($104,000.00) settlement check described in Paragraph 1 of this Agreement, the parties hereto and each of their elected officials, officers, partners, managers, principals, insurers, surety, agents, employees, affiliates, partnerships, corporations, subsidiaries, trusts, heirs, servants, attorneys and other representatives, executors, administrators, trustees, beneficiaries, predecessors, and the successors and assigns of each of them, do hereby irrevocably and forever release, acquit, and discharge the other of and from any and all liabilities, claims, cross claims, counterclaims, actions, suits, damages, penalties, costs, losses, expenses, interest, court costs, and attorney's fees of any kind whatsoever which were known or could have been discovered with reasonable diligence arising out of, relating to, or resulting from the Ahtanum Trunk Line and Apple Tree Sewer Extension, Project No. 1821, and/ or any claims thaL have been or could have been asserted in the Lawsuit, or that could hereafter be asserted with respect to the allegations set forth in the complaint, and will dismiss the pending lawsuit with prejudice. 3. Entry of Stipulated Order of Dismissal. Upon execution of this Agreement, the City and Apollo shall execute a Stipulation and Order of Dismissal with Prejudice without costs or attorney fees and cause the same to be filed with the Yakima County Superior Court in this Lawsuit. 4. Advice of Counsel. Each of the Parties hereby represents, acknowledges, and agrees that: a. Such Party has received advice from legal counsel of its own choosing prior to its execution of this Agreement; b. The legal nature and effect of this Agreement has been fully explained to it by such legal counsel; c. Such Party fully understands the terms and provisions of this Agreement and the nature arld effect thereof; d. Such Party is relying solely upon the advice of its own independently chosen counsel in executing this Agreement; and e. Such Party has not relied upon any representation or statement of any other Party hereto, any employee or agent of any such Party, or counsel for any other Party in executing this Agreement. 5. No Admission of Liability. This Agreement is not, and should not be construed as, an admission of liability by any Party to any other Party. All Parties to this Agreement expressly deny any wrongdoing alleged as part of or in connection with the Page 2 Project and the Lawsuit. Neither this Agreement, nor the fact that a settlement has been reached in the Lawsuit, nor the consideration exchanged herein, shall be admissible into evidence against any Party as an admission of any liability and/ or fault. Notwithstanding the immediately preceding sentence, this Agreement, if otherwise admissible, may be introduced into evidence at any proceeding between or among the Parties to enforce its terms. 6. Terms Contractual. The terms of this Agreement are contractual and are not mere recitals. 7. Severability. If any provision of otherwise determined to be invalid or jurisdiction, such provision shall not affect this Release and Settlement Agreement. S. Integration. This Agreement constitutes the entire agreement between the City and Apollo. No changes or additions to this Agreement shall be valid or binding upon any Party hereto unless such change or addition be in writing and executed by all the Parties. this Agreement is prohibited by law or unenforceable by a court of competent the validity of the remaining provisions of 9. Binding on Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, each Party and, as applicable, each Party's respective predecessors, representatives, agents, servants, heirs, affiliates, partners, intended beneficiaries, controlled corporations, employees, subsidiaries, successors, assigns, and all persons or entities acting in concert with any of them or for whom such Party has any equitable, custodial, or trust obligations. 10. No Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by any Party hereto to any person or entity without the prior written consent of all of the other Parties. In the event that such prior written consent to an assignment is granted, the assignee shall assume al; duties, obligations, and iiabilities or he assigning i -'arty as stateci herein. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which constitute one and the same Agreement. 12. Representation of Authority. Each Party represents and warrants that it has caused this Agreement to be executed by its duly authorized agent, acting within the scope of the agent's authority. 13. Governing Law. This Agreement shall be governed by and construed in accordance the laws of the State of Washington. Page 3 14. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of the State of Washington for Yakima County. DATED thisZ day of February, 2004. APOLLO, INC. CITY OF YAKIMA By: By: £5.94 �/9i9p0 ,,ereoZ,4celc R. A. Zais, Jr., City Manager !ems �i .ts2.oW APPROVED AS TO FORM: John Sp Stewart Page 4 Allig.A r S iwart, WSBA #15887 .l :Gray LLC ATTEST: Karen Roberts, City Clerk '` O-A'f<; APPROVED AS TO FORM: Robert M. Boggs, WSBA #8664 Lyon, Weigand & Gustafson, PS CITY CONTRACT N0: RESOLUTION N0: 7 8 9 10 11 12 13 14 15 16, 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 MAR 1 `i CITY LEGAL, L, 13 iMM D MAR 12 2004 KIM M. EATON, YAKIMA COUNTY CLERK SUPERIOR COURT OF WASHINGTON ON FOR YAKIMA COUNTY APOLLO, INC., a Washington corporation, Plaintiff, v. THE CITY OF YAKIMA, WASHINGTON, amunicipal corporation, Defendant. No. 03-2-00291-6 ) ) STIPULATED ORDER OF DISMISSAL WITH PREJUDICE ) ) ) ) ) The above -entitled matter having come on for hearing on the stipulation of the Plaintiff, APOLLO, INC., a Washington corporation, and the Defendant, the City of Yakima, Washington, a municipal corporation, by and through their respective attorneys, it appearing that such parties have fully compromised and settled all claims which have or could have been asserted herein and that the claims of the Plaintiff in this pending action against the Defendant should be dismissed with prejudice and without the award of costs or attorney fees and the court being otherwise duly advised in the premises, now, therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Complaint filed by the Plaintiff, Apollo, Inc., a Washington corporation, against the Defendant, ORDER OF DISMISSAL- 1 718-107\Is\yakima cit\appollo\dismissal order final Law Offices LYON WEIGAND & GUSTAFSON PS Lyon Law Offices - 222 North Third Street P.O. Box 1689 Yakima, Washington 98907 Telephone (509) 248-7220 Fax (509) 575-1883 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 2 25 26 27 28 29 30 31 32 33 34 the City of Yakima, a municipal corporation, in this pending action be and the same hereby is dismissed with prejudice and without the award of costs or attorney fees. DONE IN OPEN COURT this / day of -February, 2004. Presented By: /. /ROB Lyon'eigand & - . stafson PS Atto eys for D- ndant MICHAEL E. SCHWAB JUDGE JUDGE/COURT COMMISSIONER kry '1812. BA #:66 Approved for Entry and Notice of Presentation Waived: CER TEWART, WSBA #15887 kol & Gray LLC for Plainhiff ORDER OF DISMISSAL- 2 718-107\Is\yakima cit\appollo\dismissal order final Law Offices LYON WEIGAND & GUSTAFSON PS Lyon Law Offices - 222 North Third Street P.O. Box 1689 Yakima, Washington 98907 Telephone (509) 248-7220 Fax (509) 575-1883 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. -Ej b For Meeting Of 2/17/2004 ITEM TITLE: Consideration of resolution authorizing and directing the City Manager of the City of Yakima to execute a Settlement and Release Agreement with Apollo, Inc., for the Ahtanum Trunk Line and Apple Tree Sewer Extension Project litigation; approving the settlement; and authorizing the disbursement of funds. SUBMITTED BY: Dick Zais, City Manager, 575-6070 Helen A. Harvey, Assistant City Attorney, 575-6030 ! oe- CONTACT PERSON/TELEPHONE: Helen A. Harvey, Assistant City Attorney, 575-6030 Robert M. Boggs, Attorney, 248-7220 SUMMARY EXPLANATION: This resolution authorizes and directs the City Manager of the City of Yakima to execute a Settlement and Release Agreement with Apollo, Inc., ("Apollo") for the Ahtanum Trunk Line and Apple Tree Sewer Extension Project litigation. In 2001, the City of Yakima entered into a construction contract with Apollo for the Ahtanum Trunk Line and Apple Tree Sewer Extension Project No. 1821. Apollo completed contract work on the project in 2001. Certain disputes arose related to the project for which Apollo made claims against the City. On January 27, 2003, in Apollo, Inc. vs. City of Yakima, Washington, Yakima County Superior Court Cause No. 03-2-00291-6, Apollo commenced a lawsuit against the City of Yakima seeking $288,370.22 in alleged damages arising out of the construction project. On February 2, 2004, Apollo and the City of Yakima, represented by counsel, participated in a settlement mediation. The parties tentatively reached a settlement for $104,000 that would resolve all issues raised in the Lawsuit. The settlement was made subject to the approval of the City Council. Attached is the proposed Settlement and Release Agreement which would resolve the lawsuit filed by Apollo against the City of Yakima. Resolution X Ordinance Other (Specify) Contract X Mail to (name and address): Robert M. Boggs, Lyon Weigand & Gustafson, P.S., 222 N. 3rd Street, Yakima, WA 98901 Phone: (509) 248-7220 Funding Source: Wastewater Collection System Project Fund 476 APPROVED FOR SUBMITTAL: y��e� '� City Manager STAFF RECOMMENDATION: Adopt Resolution. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2004-38