Loading...
HomeMy WebLinkAbout08/21/2018 06L Settlement of Damage Claim Brought by PacifiCorp dba Pacific PowerBUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT 1 Item No. 6.L. For Meeting of: August 21, 2018 ITEM TITLE: Resolution authorizing consent to a settlement entered into by the City of Yakima and Cities Insurance Association of Washington ("CIAW") to resolve and settle the damage claim brought by PacifiCorp dba Pacific Power SUBMITTED BY: Helen A. Harvey, Senior Assistant City Attorney SUMMARY EXPLANATION: This matter is on for consideration of a Resolution authorizing the City Manager to consent to a settlement entered into by the City of Yakima and Cities Insurance Association of Washington to resolve and settle the damage claim filed on January 22, 2018 by PacifiCorp doing business as Pacific Power. In its damage claim, the plaintiff alleged damages to its utility poles and electric facilities due to a fire that started on or about June 27, 2017, in the South Wenas Road area, Selah, in Yakima County, Washington. The claim against the City of Yakima has been settled for $119,117.05, subject to the presentation of the settlement before the Yakima City Council at a City Council business meeting. A copy of the signed Release and Settlement Agreement is attached. Of the total settlement amount, approximately $59,064.04 will be paid by the City of Yakima by reimbursement to CIAW, and the balance of $60,053.01 will be paid by CIAW. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Public Trust and Accountability APPROVED FOR SUBMITTAL: STAFF RECOMMENDATION: Adopt Resolution. BOARD/COMMITTEE RECOMMENDATION: ATTACHM E NT S : Description 0 Resdution 0 Release and Settlement Agreement Upload Date 8/9/2018 W9/2018 2 Type Resolution Backup Material A RESOLUTION 3 RESOLUTION NO. R -2018 - authorizing consent to a settlement entered into by the City of Yakima and Cities Insurance Association of Washington ("CIAW") to resolve and settle the damage claim brought by PacifiCorp dba Pacific Power. WHEREAS, on January 22, 2018, a damage claim was filed with the City Clerk's Office by claimant PacifiCorp doing business as Pacific Power relating to a fire that started on or about June 27, 2017 in the South Wenas Road area in Yakima County, Washington, and PacifiCorp alleged in the claim that the fire damaged PacifiCorp's utility poles and facilities (hereafter called the "facilities") and that PacifiCorp incurred expenses in repairing the facilities; and WHEREAS, the City of Yakima is a member of the Cities Insurance Association of Washington ("CIAW') for most claims, including this claim, and the City has a $100,000 deductible on CIAW claims; and WHEREAS, a settlement has been reached with the claimant to resolve and conclude all claims in the matter; and WHEREAS, in the settlement agreement, liability for all such claims is denied by the entities being released; and WHEREAS, part of the settlement is to be paid by the City of Yakima and the remainder by CIAW; and WHEREAS, the City Council of the City of Yakima deems it to be in the interest of the City to authorize the City Manager to consent to a settlement entered into by the City of Yakima and the claimant to resolve and conclude the damage claim; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is authorized to consent to the settlement entered into with the claimant in the Release and Settlement Agreement to resolve and settle the damage claim brought by PacifiCorp doing business as Pacific Power. ADOPTED BY THE CITY COUNCIL this 21s1 day of August, 2018. ATTEST: Kathy Coffey, Mayor Sonya Claar Tee, City Clerk 4 RELEASE AND SETTLEMENT AGREEMENT This Release Settlement Agreement (hereafter referred to as the "Agreement" or the "Settlement Agreement") is made and entered into by and between PacifiCorp, an Oregon corporation doing business as Pacific Power (formerly doing business as Pacific Power & Light) (hereafter referred to as "PacifiCorp") and its affiliated entities and/or subsidiaries, successors, assigns, and member companies (hereafter all of the above are collectively referred to as the "Releasing Parties") and the City of Yakima, a Washington municipal corporation (hereafter referred to as the "City" or the "City of Yakima"). WHEREAS, PacifiCorp doing business as Pacific Power filed a Claim for Damages on January 22, 2018 (hereafter called the "Claim") with the City of Yakima alleging that PacifiCorp sustained damages as a result of fire that started on or about June 27, 2017 in the South Wenas Road area in Yakima County, Washington (hereafter called the "fire"), when the fire damaged PacifiCorp's utility poles and facilities (hereafter called the "facilities") and PacifiCorp alleged it incurred expenses in repairing the facilities. WHEREAS, the parties to this Agreement desire to settle and compromise the Claim. NOW, THEREFORE, in consideration of the matters set forth in the foregoing recitals and the mutual covenants and other considerations contained herein, the City and PacifiCorp agree as follows: 1. Final Settlement Payment to PacificCorp. In consideration for the execution and delivery of the Agreement, PacifiCorp agrees to accept a final settlement amount of $119,117.05, to be paid by a check made payable to "PacifiCorp," subject to Yakima City Council approval of the settlement at a City Council business meeting. The check in the amount of $119,117.05 is for the benefit of the Releasing Parties and is consideration for PacifiCorp's execution and delivery of this Settlement Agreement The consideration for the release contained in paragraph 2 and for this settlement includes an agreement by the Releasing Parties that tax liability, if any, on the proceeds of the settlement amount shall be paid by the Releasing Parties, and the Releasing Parties agree to hold the City of Yakima, CIAW, and the City of Yakima's and CIAW's respective past, present and future elected and/or appointed officials, directors, officers, employees, agents, assigns, successors, attorneys, insurers, and related entities harmless and to indemnify them from any liability arising from the Releasing Parties' failure to satisfy the Releasing Parties' tax obligations related to this settlement. RELEASE AND SETTLEMENT AGREEMENT - 1 of 4 5 2. Release. For the consideration recited above, the Releasing Parties forever and irrevocably release the City of Yakima, CIAW, and the City of Yakima's and CIAW's respective past, present and future elected and/or appointed officials, directors, officers, employees, agents, assigns, successors, attorneys, insurers, and related entities (collectively herein the "Entities Released") from all past, present and future claims, liabilities, actions, suits, crossclaims, counterclaims, penalties, expenses, interest, court costs, or attorney fees of any kind and nature whatsoever for PacifiCorp's alleged damages, costs, expenses, and losses resulting from, arising out of, or related to the fire. As referred to in this Settlement Agreement, "past, present and future claims" mean those claims, rights and causes of action, whether known or unknown, suspected or unsuspected, vested or contingent which in any way arise out of or are related to the fire, including but not limited to all of PacifiCorp's damages, costs, expenses, and losses resulting from, arising out of, or related to the fire. This includes all claims, rights and causes of action under federal, state, or local law, including but not limited to those based on contract, statute, regulation, code, ordinance, tort, equity or otherwise. 3. Indemnification for Subrogation and Lien Claims, and Hold Harmless. The Releasing Parties represent that all lienable expenses, and all subrogation claims, and all claims of any other persons or entities legally entitled to share in the proceeds of this settlement have been paid, or will be paid or otherwise resolved from the proceeds of this settlement. The Releasing Parties agree to defend, indemnify and hold harmless the Entities Released from and against all lien and subrogation claims, if any, including all costs and attorneys' fees incurred in the defense of such claims. 4. Governing Law and Venue. This Settlement Agreement shall be construed and interpreted according to the laws of the State of Washington. The venue of any action necessary under this Settlement Agreement shall be solely in Yakima County Superior Court, Yakima, Washington. 5. Denial of Liability. This Settlement Agreement expresses the full and complete settlement of all claims relating to the Releasing Parties referred to in this Agreement. It is expressly agreed that liability for all such claims is denied by the Entities Released as is any fault relating to the matters described. It is agreed and understood that this settlement is a compromise of disputed claims. Acceptance of this Settlement Agreement shall not operate or be construed as an admission by the Entities Released of any liability to the Releasing Parties, breach of any agreement between any of the Entities Released and the Releasing Parties, or violation by the Entities Released of any statute, law or regulation. RELEASE AND SETTLEMENT AGREEMENT - 2 of 4 6 6. Warranty of Capacity to Execute Settlement Agreement. The Releasing Parties certify and warrant that they are fully authorized to enter into this Settlement Agreement and bind themselves and the respective parties thereto. The Releasing Parties further warrant that no other person or entity has or has had any interest in the claims or causes of action referred to in this Settlement Agreement and that they have the sole right and exclusive authority to execute this Settlement Agreement and to receive the settlement proceeds. 7. Consultation with Counsel. The Releasing Parties have read this Settlement Agreement and fully understand the terms. They have been given full opportunity to seek independent legal counsel of their choice regarding the legal implications of this Settlement Agreement and have done so. The parties understand and acknowledge the significance and consequences of this Settlement Agreement and expressly confirm that it is to be given full force and effect according to each and all of its expressed terms and provisions. 8. Severability. If any provision of the Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, such provision shall not affect the validity of the remaining provisions of this Agreement. 9. Execution of Agreement. This Settlement Agreement may be signed in counterparts by the parties. If the Agreement is signed by the parties in counterparts, it will be considered a fully executed Agreement. If this Agreement is executed in two or more counterparts, each counterpart shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Counterpart signature pages may be detached from separately delivered counterparts of this Agreement and attached to other, identical counterparts of this Agreement, or to a version of this Agreement that is identical to that from which the signature page was detached, in order to create a fully executed original version of this Settlement Agreement. Faxed and emailed signature pages shall be deemed originals for all purposes. CITY OF YAKIMA PACIFICORP doing business as Pacific Power (Releasing Parties) By: Bye Cliff Moore, City Manager Marlow Vass Senior Claims Agent Date: e�" Date: �ti"�� � e„ RELEASE AND SETTLEMENT AGREEMENT - 3 of 4 ATTEST: By: City Clerk City Resolution No. R-2018- 7 STATE OF OREGON ) ) ss. COUNTY OF Mud(vtorna„k ) On this { I -A day of August, 2018, before me personally appeared Marlow Vass, to me known to be the Senior Claims Agent of PACIFICORP, and she acknowledged she is authorized to execute this Settlement Agreement and acknowledged said instrument to be the free and voluntary act and deed of PACIFICORP for the uses and purposes therein mentioned. Official Stamp Anne Kohls Notary Public - Oregon Commission No, 966746 My Commission Expires September 17, 2021 Signature: OAU LQ Print Name: A ovAe_ k 5 Notary Public in and for the State of Oregon residing at l (--� \.0 AivcA E My commission expires:6'g -7 Zo RELEASE AND SETTLEMENT AGREEMENT - 4 of 4