HomeMy WebLinkAboutR-2014-061 Lawsuit Settlement Agreement with Broadmoor Mobile Park, LLC RESOLUTION NO. R- 2014 -061
A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute
a Settlement Agreement entered into by the City of Yakima and Broadmoor
Mobile Park, LLC to resolve and settle the lawsuit brought by Broadmoor
Mobile Park, LLC.
WHEREAS, on April 18, 2013, a lawsuit was filed in Yakima County Superior Court No.
13 -2- 01285 -4 entitled Broadmoor Mobile Park, LLC v. City of Yakima; and
WHEREAS, since that time, the City has engaged in discussion with Broadmoor Mobile
Park, LLC to resolve the lawsuit; and
WHEREAS, the parties have worked together to mutually resolve the issue, and
WHEREAS, through negotiation, a settlement will conclude and terminate all claims in
the matter, subject to the approval of the Yakima City Council; 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 execute the attached Settlement Agreement to resolved
and conclude the lawsuit; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is authorized and directed to sign the attached
Settlement Agreement entered into by the City of Yakima and Broadmoor Mobile Park, LLC to
resolve and settle the lawsuit brought by Broadmoor Mobile Park, LLC; and to execute all
necessary documents for the issuance of funds to implement settlement of the lawsuit brought
by Broadmoor Mobile Park, LLC against the City in the amount of $590,000.
ADOPTED BY THE CITY COUNCIL this 6 day of May, 2014.
4 4
Micah Cawle, Mayor
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City Clerk'
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SETTLEMENT AGREEMENT
This Settlement Agreement (hereafter the "Agreement ") is made and entered into by and
between Broadmoor Mobile Park, LLC, a Washington corporation, located at 55 West
Washington Avenue in Yakima; Washington (hereafter "Broadmoor Mobile Park "), and the City
of Yakima, a Washington municipal corporation (hereafter "City ").
WHEREAS, on April 18, 2013, Broadmoor Mobile Park brought claims for a refund of
utility charges for water and sewer in the matter filed in the Superior Court of the State of
Washington for Yakima County, Case No. 13 -2- 01285 -4; and
WHEREAS, the parties to this Agreement desire to avoid the expense, burden and
uncertainty of continued litigation; and
WHEREAS, the City and Broadmoor wish to settle and compromise the claim for refund
of utility charges, and have reached agreement on a refund amount, subject to approval of the
settlement by the City Council at a business meeting,
NOW, THEREFORE, the City and Broadmoor agree as follows:
1 Within thirty days of, the execution of this Agreement by both parties, the City shall
pay by check made payable to,Broadmoor Mobile Park, LLC,•the total sum of $590,000, which
check will be delivered to Broadmoor's attorney.
2. Execution of this Agreement by Broadmoor settles any and all claims Broadmoor, its
successors, principals and /or shareholders have or may have against the City and its elected
and appointed officials, employees and agents, arising or accruing prior to the date of the
Agreement, and this settlement waives any right Broadmoor may have against the City to bring
suit for any reason, known or unknown, for any act or inaction of the City through the date of the
Agreement.
3. Upon execution of this Agreement, Broadmoor agrees to dismiss with prejudice and
without costs Yakima County Superior Court Case No. 13 -2- 01285 -4
4. Broadmoor agrees to protect, defend, indemnify and hold harmless the City, its
elected and appointed officials, employees and agents from any and all claims, demands,
losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments,
awards, costs and expenses (including attorneys' fees and disbursements) resulting from or
concerning the settlement of this matter and the disposition of the settlement funds provided to
Broadmoor by the City, brought by federal or state entities, authorities and /or persons or
individuals, including but not limited to the I R.S , related to the payment to Broadmoor of the
funds referred to in paragraph 1 above. Tax liability, if any, on the proceeds of the settlement
sum shall be paid by Broadmoor, and Broadmoor agrees to hold the City, its elected and
appointed officials, employees and agents harmless and to indemnify them from any tax
consequences of this settlement, if any However, Broadmoor shall not be liable for
indemnification with respect to any claim unless the City shall notify Broadmoor in writing of the
claim in as much detail as is feasible within a reasonable time after the facts giving rise to it are
known to the City. Broadmoor may participate at its own expense in the defense of the claim, if
it so elects by a writing delivered to the City within a reasonable time after receipt of such notice
to assume the defense of the matter giving rise to the claim for indemnification or of any suit
Settlement Agreement - 1
,
brought in connection with it; if Broadmoor so elects to assume the defense, the defense shall
be conducted by counsel chosen by Broadmoor If Broadmoor so elects to assume the defense
of any such claim or suit and retain such counsel, the City shall bear the fees and expenses of
its own counsel arising out of any legal service performed by its own counsel after notice of the
election
disputed 5. It is understood and agreed that this Agreement is a compromise of claims ,
and that the payment made herein is not to be construed as an admission of liability on the part
of the City and the parties hereby released. This Agreement is not intended to be admissible
against any party as an admission of liability and /or fault. This Agreement shall not be
interpreted as an admission by either party as to the correctness of any legal or factual position
of the other party.
6. The undersigned warrant that they have the authority to execute this Agreement.
Each signatory represents and warrants that all necessary signatures and consents to enter into
this Agreement and to assume and perform the obligations hereunder have been properly
obtained Broadmoor further warrants that no other entity or person has or has had any interest
in the claims or cause of action referred to in this Agreement and that it has the sole right and
exclusive authority to execute this Agreement and to receive the settlement proceeds.
7 Each party represents and warrants to the other that the decision to enter into this
Agreement is not based upon any representation by any other party or by any attorney,
employee or representative of the other party The parties each represent they have obtained
independent legal advice prior to executing this Agreement.
8. This Agreement is entered into and shall be construed and interpreted in accordance
with the laws of the State of Washington The venue of any action necessary under this
Agreement shall lie in the Superior Court of the State of Washington for Yakima County.
9 This Agreement includes the entire agreement between the parties and may not be
changed except in writing by all parties.
10 This Agreement may be executed in counterparts Each counterpart shall be
deemed an original, all of which taken together shall be one and the same instrument. This
Agreement shall become effective upon execution of a counterpart by each party and delivery to
the other party
I
IN WITNESS WHEREOF, the Parties have executed the Agreement on the dates
indicated below
CITY OF YAKIMA BROADMOOR MOBILE PARK, LLC
Ak oP '0 By: W Is Fargo Ba a as Conservator
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Of the state of , Manager
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T '': Rourk-, City Manager
By: Grant Brown, Vc ' President
Date: Orv20 A 1 t -- S� l
CITYTRAO r N1 Date: /
RESOLUTION NO: "DT /
Settlement Agreement - 2
Attest:
d AU 1) 1. 1 i ., R '
Sonya C r Tee, City Clerk '
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'STATE OF CALIFORNIA ) / �� 1 0_ �
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County of ) `
On this day of , 2014, before me personally appeared
,tome
known to be the Manager of Broadmoor Mobile Park, LLC, a Washington corporation, and he
executed the within and foregoing instrument and acknowledged said instrument to be the free
and voluntary act and deed of Broadmoor Mobile Park, LLC, for the uses and purposes therein
mentioned
See MIAZOTC-
Print Name.
Notary Public in and for the State of California,
residing at .
My commission expires:
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Settlement Agreement - 3
ACKNOWLEDGMENT
State of California
County of San Francisco )
On April 11, 2014 before me, Daniel S. Lewis, Notary Public
(insert name and title of the officer)
personally appeared Grant V. Brown
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. 411111111111111111111111 11111111111011
DANIEL S. LEWIS
WITNESS my hand and official seal. i'- ' NOTARY PUBLIC c1 CALIFORNIA
" !�` SAN FRANCISCO COUNTY
AAy C cx nrnlaston Expires 12101/2010 "
411111111 1 1111 111111111111111111111110°
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Signature / (Seal)
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 3
For Meeting of: 5/6/2014
ITEM TITLE: Resolution authorizing execution of a Settlement Agreement
entered into by the City of Yakima and Broadmoor Mobile
Park, LLC to resolve and settle the lawsuit brought by
Broadmoor Mobile Park, LLC.
SUBMITTED BY: Helen A. Harvey, Senior Assistant City Attorney
Cindy Epperson, Finance & Budget Director
David Brown, Water /Irrigation Division Manager
SUMMARY EXPLANATION:
This matter is on for consideration of a Resolution authorizing and directing the City Manager of
the City of Yakima to execute a Settlement Agreement entered into by the City of Yakima and
Broadmoor Mobile Park, LLC to resolve and settle the lawsuit brought by Broadmoor Mobile
Park, LLC. On April 18, 2013, Broadmoor Mobile Park, LLC filed a claim regarding
overpayment of water and sewer charges in Broadmoor Mobile Park, LLC v. City of Yakima,
Yakima County Superior Court Case No. 13 -2- 01285 -4. Broadmoor Mobile Park, LLC owns a
large residential mobile home park at 55 West Washington Avenue known as the Broadmoor
Mobile Home Park. The case has settled by an agreement to pay Broadmoor Mobile Park,
LLC, in the amount of $590,000, subject to the approval of the City Council. The proposed
Settlement Agreement is attached. The payment of $590,000 will be paid from the budgets of
the Water /Irrigation Division (approximately 33.8% of the amount) and the Wastewater Division
(approximately 66.2 %).
Resolution: X Ordinance:
Other (Specify):
Contract: Contract Term:
Start Date: End Date:
Item Budgeted: NA Amount:
Funding Source /Fiscal Allocated between Water /Irrigation Division and
Impact: Wastewater Division Budgets
Strategic Priority: Public Trust and Accountability
Insurance Required? No
Mail to:
Phone:
APPROVED FOR
SUBMITTAL:
City Manager
RECOMMENDATION:
Adopt Resolution.
ATTACHMENTS:
Description Upload Date Type
Resolution in Broadmoor Mobile Park, LLC v. City 4/28/2014 Resolution
of Yakima
0 Settlement Agreement 4/28/2014 Backup Material