HomeMy WebLinkAboutR-2021-098 Resolution authorizing settlement of a damage claim filed by Central Washington Railroad ("CWRR") and the associated suit for declaratory judgment filed by Yakima County, including all cross claims and counter claims between the partiesA RESOLUTION
RESOLUTION NO. R-2021-098
authorizing settlement of a damage claim filed by Central Washington
Railroad ("CWRR") and the associated suit for declaratory judgment filed
by Yakima County, including all cross claims and counter claims between
the parties
WHEREAS, on February 10, 2020, CWRR filed a Standard Tort Claim Form with the City
of Yakima and shortly thereafter also filed such a claim with Yakima County, each of which alleged
that CWRR sustained damages as a result of an arson fire that occurred on or about August 11,
2018, and which destroyed a signal bungalow identified by USDOT as 103890Y located at the N.
16th Ave railroad crossing near W. Madison Ave in Yakima, Washington (hereafter called the
"Fire");
WHEREAS, in 1977 Yakima County entered into a railway agreement with CWRR's
predecessor in interest, Burlington Northern Inc. for the installation of grade crossing warning
devices ("signals"), and the agreement specified a cost sharing ratio of 75% to be borne by the
County and 25% to be borne by the railroad in the event that the signals were damaged and the
cost of repair or replacement cannot be recovered from the person responsible for such damage.
The terms of the railway agreement specify that it is binding on the parties' successors;
WHEREAS, the individual or individuals responsible for the Fire have not been identified;
WHEREAS, the City of Yakima annexed the location of the Fire in 1988 by Ordinance
3133;
WHEREAS, on August 13, 2020, Yakima County filed a Complaint for Declaratory
Judgment in Yakima County Superior Court cause number 20-2-01620-39, seeking a
determination that, due to the annexation, the City was its successor under the 1977 railway
agreement;
WHEREAS, the City Council of the City of Yakima deems it to be in the interest of the City
to authorize settlement of this damage claim and related lawsuit, now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City of Yakima approves the Mutual Release and Settlement Agreement negotiated
by the City of Yakima, CWRR, and Yakima County to resolve and settle the claims brought by the
above -named parties. The City Manager and/or the City's legal counsel are hereby authorized to
execute all documents necessary to conclude settlement as consistent with this Resolution.
ADOPTED BY THE CITY COUNCIL this 20th daof July, 2021.
P,
ATTEST:
c
Sonya Claar Tee, City Clerk
tricia Byers, Mayor
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MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (hereafter referred to as the
"Agreement") is entered into between Central Washington Railroad Company, a
Washington profit corporation (hereafter referred to as "CWRR"); Yakima County, a
county in the State of Washington; and the City of Yakima, a Washington municipal
corporation (hereafter referred to as the "City" or the "City of Yakima"). Each and all of
the parties listed above are referred to herein as a "Signatory" and/or the "Signatories,"
respectively.
WHEREAS, on February 10, 2020, CWRR filed a Standard Tort Claim Form with
the City of Yakima and shortly thereafter also filed such a claim with Yakima County, each
of which alleged that CWRR sustained damages as a result of an arson fire that occurred
on or about August 11, 2018, and which destroyed a signal bungalow identified by USDOT
as 103890Y located at the N_ 10 Ave railroad crossing near W. Madison Ave in Yakima,
Washington (hereafter called the "Fire");
WIIEREAS, in 1977 Yakima County entered into a railway agreement with
CWRR's predecessor in interest, Burlington Northern Inc. for the installation of grade
crossing warning devices ("signals"), and the agreement specified a cost sharing ratio of
75% to be borne by the County and 25% to be bome by the railroad in the event that the
signals were damaged and the cost of repair or replacement cannot be recovered from the
person responsible for such damage. The terms of the railway agreement specify that it is
binding on the parties' successors;
WHEREAS, the individual or individuals responsible for the Fire have riot been
identified;
WHEREAS, CWRR and Yakima County each allege that under the railway
agreement the City of Yakima is the successor to Yakima County as the result of the City
having annexed the location of the Fire in 1988 by Ordinance 3133;
WHEREAS, on August 13, 2020, Yakima County filed a Complaint for Declaratory
Judgment in Yakima County Superior Court cause number 20-2-01620-39, seeking a
determination that the City was its successor under the 1977 railway agreement;
WHEREAS, in cause number 20-2-01620-39, the City filed a crossclaim for
declaratory judgment against CWRR, and CWRR filed a counter claim for declaratory
judgment against Yakima County as well as a counter-crossclaim for declaratory judgment
against the City, with each claim seeking a judicial determination regarding which
Signatory is, and was at the time of the Fire, subject to the 1977 railway agreement;
MUTUAL RELEASE AND SETTLEMENT AGREEMENT - 1 of 4
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WHEREAS, the Signatories desire to settle and compromise all claims arising from
or otherwise relating to the Fire, including all claims asserted by all Signatories in cause
number 20-2-01620-39;
NOW, THEREFORE, in consideration of the matters set forth in the foregoing
recitals, the City, Yakima County, and CWRR agree as follows:
I. Final Settlement Payment to CWRR. In consideration for the execution and
delivery of the Agreement and dismissal of its crossclaim against the City in cause
number 20-2-01620-39, CWRR agrees to accept a final settlement amount of
$55,131.02, to be paid by a check made payable to "Central Washington Railroad,"
subject to Yakima City Council approval of the settlement at a City Council business
meeting. This settlement check shall be delivered to CWRR by no later than 10
business days after the Effective Date defined below.
2. Acknowledgment of the 1977 Railway Agreement by the City. In consideration
for the execution and delivery of the Agreement and dismissal of the other
Signatories' claims against it in cause number 20-2-01620-39, the City hereby
agrees that the City of Yakima shall be considered Yakima County's successor for
purposes of the 1977 railway agreement, and is therefore subject to all of Yakima
County's obligations under the railway agreement.
3. Mutual Release and Dismissal of Claims. For the consideration recited above,
each Signatory forever and irrevocably releases the other Signatories 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 stemming from CWRR's alleged damages, costs, expenses, and losses
resulting from, arising out of, or related to the Fire. As such, each Signatory agrees
to, by no later than 14 days after the Effective Date defined below, jointly move for
dismissal with prejudice of all claims in cause number 20-2-01620-39, with each
Signatory to bear its own costs and attorney fees.
For the purposes of this paragraph, the term "Signatory" shall include past, present
and future elected and/or appointed officials, directors, officers, employees, agents,
assigns, successors, attorneys, insurers, and related entities.
As referred to in this 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 CWRR's damages, costs, expenses, and
losses resulting from, arising out of, or related to the Fire. This includes all claims,
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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.
4. Indemnification for Subrogation and Lien Claims, and Hold Harmless. Each
Signatory acknowledges and represents that no other person or entity has or has had
any interest in the claims referred to in this Agreement. Each Signatory further
represents that there are no lien claims or subrogation claims or interests related to
the claims asserted in cause number 20-2-01620-39 and/or CWRR's claims arising
out of the Fire. Should any lien claims, subrogation claims, or interests arise from
a Signatory's claims in the future, that Signatory is obligated under this Agreement
to resolve such claims.
5. Timely Consideration by the City Council. The City agrees that this Agreement
shall be put before the Yakima City Council as a resolution, with consideration and
voting on such resolution to take place no later than August 1, 2021.
6. +Governing Law sod Venue. This Agreement shall be construed and interpreted
according to the laws of the State of Washington. The venue of any action necessary
under this Agreement shall be solely in Yakima County Superior Court, Yakima,
Washington.
7. No Admission of Liability. This Agreement expresses the full and complete
settlement of all claims referred to in this Agreement. It is expressly agreed that no
Signatory admits liability for any such claim, and no Signatory admits any fault
relating to the matters described herein. It is agreed and understood that this
settlement is a compromise of disputed claims, and payment made by the City is
accepted by CWRR in full accord and satisfaction of, and in compromise of,
disputed claims and for the purpose of terminating disputed claims and litigation
between the Signatories.
8. Warranty of Capacity to Execute Settlement and Aereement. The undersigned
on behalf of each Signatory certifies and warrants that they are fully authorized to
enter into this Agreement and bind themselves and the respective Signatories
thereto.
9. Consultation with Counsel. Each Signatory warrants that it has had adequate time
and opportunity to have its own attorneys review this Agreement and explain the
legal effect and importance of every provision herein; each Signatory further
warrants that it has in fact engaged in such consultation with its own counsel.
10. Entire Agreement. This Agreement represents and contains the entire
understanding of the undersigned relating to the matters covered by this Agreement.
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There are no representations, covenants, or understandings other than those
expressly set forth in this Agreement.
11. 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.
12. Effective Date. This Agreement shall be effective upon the signature of the City
Manager of the City of Yakima as authorized by resolution of the Yakima City
Council. Should the Yakima City Council withhold such authorization, then this
agreement shall be null and void.
CITY OF Y , [MA
By:
Rebert-I4 on, City
Date: S k.Nc�' L1 - 1
ATTEST:
City
City ResolutimlION-R ad- 'C?`
CENTRAL WASHINGTON 2AILROAD CO.
By: ., ..
Todd Leinbach, CFO
Date:
1
oai
YAKIMA COUNTY
CITY CONTRACT NO'2d 1 lO By.
Ron Anderson, Chairman
Yakima County Board of Commissioners
Date:
JUL 1 3 2021
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1
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEM ENT
Item No. 6.H.
For Meeting of: July 20, 2021
ITEM TITLE: Resolution authorizing settlement of a damage claim filed by
Central Washington Railroad ("CWRR") and the associated suit for
declaratory judgment filed by Yakima County, including all cross
claims and counter claims between the parties
SUBMITTED BY: Ryan Bleek, Senior Assistant City Attorney
SUMMARY EXPLANATION:
This matter is on for consideration of a resolution authorizing settlement of a damage claim filed
by Central Washington Railroad ("CWRR") and the associated suit for declaratory judgment filed
by Yakima County, including all cross claims and counter claims between the parties. The
damage claim relates to fire damage to a signal bungalow belonging to CWWR, which was the
result of an arson fire that occurred on August 11, 2018. A copy of the Mutual Release and
Settlement Agreement is included. The amount to be paid by the City of Yakima to settle this
claim is $55,131.02.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Public Trust and Accountability
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt resolution
ATTACHMENTS:
Description Upload Date Type
0 Resolution - CWRR, Yakima County settlement Resolution
❑ agreement 7/14/2021 Corer Memo