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HomeMy WebLinkAbout16-043 - Rosso dba Rosso Gardens - Settlement Agreement and Release of Claims 16-043 Council Approval N/A Settlement Agreement and Release of All Claims This Settlement Agreement and Release of All Claims ("Agreement") is made and entered into as of this tI4day of WAN, 2016, by and between Gene J. Rosso, Jr., Gene J. Rosso, Sr. and Roberta L. Rosso, Husband and Wife, d/b/a "Rosso Gardens" ("Rosso Gardens") and the City of Tukwila, a Washington municipal corporation ("the City"). WHEREAS, Rosso Gardens has instituted an action in the King County Superior Court for the State of Washington, Cause No. 15-2-17771-1 SEA ("the Lawsuit") asserting various claims against the City, including but not limited to, claims to recover money damages for injuries to real and personal property allegedly suffered as a result of a flood occurring in November-December 2012 based on theories of negligence, intentional torts, nuisance, trespass, interference with a business expectancy, unconstitutional takings, and all claims asserted or which could have been asserted in the Lawsuit; WHEREAS, the City denies liability for any and all claims asserted or which could have been asserted in the Lawsuit; and WHEREAS, the parties wish to resolve and settle all of their past, present and any future claims, disputes and controversies, including but not limited to those relating to the subject matter of the Lawsuit; NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Agreement 1. Recitals. The foregoing Recitals are incorporated into and constitute a part of this Agreement. 2. No Admission of Liability. This Agreement is entered into as an expedient and cost-effective alternative to costly litigation. The parties make no admission of liability, express or implied, by entering into this Agreement. 3. The City's Payment to Rosso Gardens. The City, in exchange for the releases set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agrees to pay Rosso Gardens the total amount of Six Thousand Dollars ($6,000.00) payable within 14 days from the execution of this Agreement by the Parties. - ISAA (Lj 1 4. Dismissal of Lawsuit. Within seven (7) days of receipt of the payment set forth in paragraph 3 above, Rosso Gardens will file an Order of Dismissal With Prejudice and Without Costs of the Lawsuit in the King County Superior Court. Rosso Gardens agrees it will not appeal any claims that were previously dismissed by the trial court on summary judgment. Releases 5. Rosso Gardens Release of the City. For and in consideration of the foregoing payment set forth in paragraph 3 above, and other good and valuable consideration, the receipt and sufficiency of which if hereby acknowledged, and upon the full execution of this Agreement, Rosso Gardens on behalf of itself, its individual members, agents, heirs, administrators, attorneys, successors and assigns, does hereby dismiss, release and hold harmless the City, its stockholders, officers, directors, employees, agents, insurers, attorneys, predecessors, successors and assigns, of any from any and all matters, debts, dues, sums of money, covenants, controversies, agreements, promises, trespasses, damages, losses, expenses, costs, liabilities, obligations, claims, demands, grievances, suits, causes of action, complaints, judgments, decrees, executions of whatever kind, in law or in equity, absolute, contingent, likely or unlikely, known or unknown, which have existed from the date of the occurrence(s) set forth in the Lawsuit to the date of this Agreement, including but not limited to all claims asserted or which could have been asserted in the Lawsuit and any and all claims arising out of the facts alleged in the Lawsuit. 6. Extent of Release. The release set forth in this Section 4 is intended to have the broadest possible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising out of any federal, state or local laws. The release set forth herein shall apply to the present and future officers, directors, stockholders, attorneys, agents, insurers, servants, members, representatives, employees, subsidiaries, subcontractors, contractors, affiliates, partners, family members, predecessors, and successors in interest and assigns of the parties. Additional Terms 7. Costs and Expenses. The parties shall be responsible for their respective attorneys' fees and costs and expenses incurred in this matter. 8. Controlling Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Washington. The parties hereby irrevocably consent to personal jurisdiction and venue in the King County Superior Court, Washington, for any and all Claims arising out of this Agreement over which that court has subject matter jurisdiction. 2 9. Amendments. This Agreement cannot be altered or otherwise amended except by written instrument signed by all of the parties hereto. 10.Entire Agreement. The parties acknowledge and agree that this Agreement constitutes the full, complete, and entire agreement or the parties and that there are no other representations, covenants, warranties, or other agreements binding of the parties that are not expressly set forth herein. 11.Rule of Construction. The parties acknowledge and agree that they have each had the opportunity to have this Agreement reviewed by counsel of their choosing. Therefore, the normal rule that ambiguities are construed against the drafter shall not apply in connection with the interpretation and construction of this Agreement. 12.Validity of Agreement. The parties represent and agree that the person executing this Agreement on behalf of the City has the full and complete permission and authority of the entity for which he/she is executing this Agreement, and that the person or persons executing this Agreement on behalf of Rosso Gardens has or have the full right and authority to commit and fully bind themselves, their representatives, agents, principals, predecessors, successors, and privies according to the provisions hereof. This Agreement is a legally valid, binding and enforceable obligation of the parties in accordance with its terms. 13.Counterpart Signatures. This Agreement may be executed in one or more counterparts, including by facsimile, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. WITNESS our hands and seals as of the date set forth below. I/ •ate . • /t /(p r By: Gene J. 'ossl , Jr. Date /*&e,ALC2d..4,4-0 4)1 3 By: Gen J. osso, Sr. Date '/b..41. ,,v I* / / By:` Roberta L. Rosso Date 3 , • iA∎ i 3 .‘ The City of Tukwila Date BY: t36E &arg orJ Its: pv844 c_ imIcic.1 pi 4