Free Stipulation - District Court of Federal Claims - federal

Case 1:04-cv-00805-CFL

Document 62

Filed 04/16/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS STATESMAN II APARTMENTS, INC., et al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

Nos. 04-805C; 04-806C (consolidated) (Judge Lettow)

JOINT STIPULATION FOR ENTRY OF JUDGMENT For the purpose of disposing of the claims in the above-captioned action without further judicial proceedings and for no other purpose, plaintiffs, Statesman II Apartments, Inc. (Statesman), and Beach House Development Company (Beach House), and defendant, the United States, hereby stipulate and agree as follows: 1. This is a consolidated action by plaintiffs, Statesman and Beach House for breach of a Housing Assistance Payments Contract between Statesman and the United States, acting through the Department of Housing and Urban Development (HUD) (Statesman HAP Contract), with respect to Statesman Apartments, a low-income rental housing project in Shaker Heights, Ohio, and for breach of a HAP Contract between Beach House and the United States, acting through HUD (Beach House HAP Contract), with respect to Lakeshore Village, a low-income rental housing project in Cleveland, Ohio. 2. The first amended complaint filed by Statesman in Case No. 04-805C alleges that HUD breached the rent adjustment provisions of the Statesman HAP Contract in certain ways, resulting in an underpayment of rent subsidies to Statesman for the years 1995 through 2000 of "at least $63,000."

Case 1:04-cv-00805-CFL

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3. The first amended complaint filed by Beach House in Case No. 04-806C alleges that HUD breached the rent adjustment provisions of the Beach House HAP Contract in certain ways, resulting in an underpayment of rent subsidies to Beach House for the years 1995 through 2002 of "at least $384,000." 4. Plaintiffs have offered to compromise their claims in this litigation in exchange for a payment by the United States to Statesman of $34,756, inclusive of interest, with each party to bear its own costs, attorney fees, and expenses, and a payment by the United States to Beach House of $3,000, inclusive of interest, with each party to bear its own costs, attorney fees, and expenses. 5. Plaintiffs' settlement offer has been accepted upon behalf of the Attorney General. 6. Defendant consents to the entry of a final judgment in favor of Statesman in the amount of $34,756, inclusive of interest, with each party to bear its own costs, attorney fees, and expenses, and defendant consents to the entry of a final judgment in favor of Beach House in the amount of $3,000, inclusive of interest, with each party to bear its own costs, attorney fees, and expenses. 7. Statesman warrants and represents that it is the sole owner of the claims involved in Case No. 04-805C and that no assignment or transfer of these claims or any portion of them has been made. Statesman further warrants and represents that no other action or suit with respect to these claims is pending or will be filed in, or submitted to, any other court or administrative or legislative body, including, but not limited to, the General Accounting Office. In the event that Statesman violates any of these warranties or representations, Statesman shall repay the United States the full amount paid to Statesman pursuant to this Stipulation, together with interest at the rate set forth in 41 U.S.C. § 611, computed from the date of the payment of the judgment to be entered in this case. Statesman shall be liable to the United States for all costs, including attorney fees, incurred by the -2-

Case 1:04-cv-00805-CFL

Document 62

Filed 04/16/2007

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United States in any proceeding, judicial or otherwise, brought by the United States (including any official thereof) against Statesman to enforce the remedy established by this paragraph for a violation of the warranties or representations made by Statesman in this paragraph. 8. Beach House warrants and represents that it is the sole owner of the claims involved in Case No. 04-806C and that no assignment or transfer of these claims or any portion of them has been made. Beach House further warrants and represents that no other action or suit with respect to these claims is pending or will be filed in, or submitted to, any other court or administrative or legislative body, including, but not limited to, the General Accounting Office. In the event that Beach House violates any of these warranties or representations, Beach House shall repay the United States the full amount paid to Beach House pursuant to this Stipulation, together with interest at the rate set forth in 41 U.S.C. § 611, computed from the date of the payment of the judgment to be entered in this case. Beach House shall be liable to the United States for all costs, including attorney fees, incurred by the United States in any proceeding, judicial or otherwise, brought by the United States (including any official thereof) against Beach House to enforce the remedy established by this paragraph for a violation of the warranties or representations made by Beach House in this paragraph. 9. This Stipulation will not prejudice or otherwise affect the rights of either party with respect to any other litigation or factual situation, except as expressly provided above, and is not related to or concerned with income or other Federal taxes, if any, for which plaintiffs may be liable or in the future may become liable. 10. The parties represent and warrant that the undersigned representatives are authorized and have the power to enter into and bind the parties to the terms of this Stipulation. -3-

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11. This Stipulation shall be binding upon, and shall inure to the benefit of, the parties and their agents, representatives, successors, assigns, parents, subsidiaries, affiliates, branches, and departments. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director Authorized Representative of the Attorney General s/Fred J. Livingstone FRED J. LIVINGSTONE, ESQ. Taft, Stettinius & Hollister LLP 3500 BP Tower 200 Public Square Cleveland, OH 44114-2302 Tele: (216) 241-2838 (fax)(216) 241-3707 Attorney for Plaintiffs s/John E. Kosloske JOHN E. KOSLOSKE Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., Room 8012 Washington, D.C. 20530 Tele: (202) 307-1438 (fax)(202) 514-8624 Attorneys for Defendant Of Counsel: C. Allen Villafuerte Trial Attorney Office of General Counsel Department of Housing and Urban Development Washington, DC

Of Counsel: Mark J. Valponi Majeed G. Makhlouf Taft, Stettinius & Hollister LLP

APRIL 16, 2007

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CERTIFICATE OF FILING I hereby certify that on this 16th day of APRIL, 2007, a copy of "JOINT STIPULATION FOR ENTRY OF JUDGMENT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/John E. Kosloske