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