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HomeMy WebLinkAbout4752 RESOLUTION NO. 4 7 5 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING A SETTLEMENT AGREEMENT WITIi THE BOEING COMPANY FOR WATER SUPPLIED TO BOEING BUILDING 17�5 WHEREAS, in 1990, The Boeing Company (Boeing) connected to the Ciry's water system by installing a water meter in order to serve Boeing Building 17-45; and WHEREAS, the City was not aware of the installation of the meter and therefore did not bill Boeing for the water it received through the meter; and WHEREAS, Boeing did not realized until much later that the City was unaware of the installation of the meter nor did it realize that the City had not been billing Boeing for water received throughthe meter; and WHEREAS, Boeing brought the matter to the City's attention and the parties have reached an agreement to the satisfaction of both City and Boeing with respect to the unbilled water Boeing received through the meter. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. That the Mayor is authorized execute a Settlement Agreement between the City of Aubum and The Boeing Company regarding water supplied to Boeing Building 17�i5 which agreement shall be in substantial conformity with the Settlement Agreement attached hereto, marked as Exhibit "A", and incorporated herein by this reference. Resolution No. 4752. _ September 15, 2011 Page 1 of 2 Section 2. That the Mayor is authorized to implemeM such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. � �.J ..�-^-' , 2011. Dated and signed this�day of � OF AU r--� � PE ER B. LEWIS, MAYOR ATfEST: ��� , Danielle f. Daskam, City Clerk APPROVED S TO F arn I B. Heid, City Attomey � Resolution No.4752 September 15, 2011 Page2 of 2 SETTLEMENT AGREEMENT BY AND BETWEEN THE CITY OF AUBURN AND THE BOEING COMPANY FOR WATER SUPPLIED TO BOEING BUILDING 17-45 � Th' Settlement Agreement ("Settlement Agreement") is entered into this l�' day of � , 2011, by and between the C'ity of Auburn, (hereinafter "City") and The oeing Company, (hereinafter "Boeing"). RECITALS 2.1 Boeing owns property Jocated within the corporate limits of the City of Aubum, King County, Washington, including Boeing's 17-45 Building (the "17-45 Building°) located in a part of King County Tax Parcel Number 2521049106, being a parcel located West of C Street SVN and North of Ellingson Road. 2.2 On or about August 1, 1990, Boeing connected to the City's water system by installing a water meter in order to serve the 17-45 Building. 2.3 The City was not aware of the installation of the water meter or that water was being provided to the 1Z-45 Building and therefore did not bill Boeing for the water it received through 4he meter. Boeing did not realize until much Jater that the City was not aware of the installation of the water meter in question, nor did Boeing realize until much later that the City had not been billing Boeing for water flowing through that meter. 2.4 From August 1990, through June 2003, the 17-45 Building was serviced by two different water lines. Qne line; the "north" line, delivered water to the 17-45 Building through meters regularly read and billed for by the City during the period in question. The other line; the "south" line, delivered water to the building through the meter that was not read or billed by the City during the period in question. 2,5 In 2004 and 2008, Boeing advised the City orally and in December2009, Boeing advised the City in writing that Boeing had not been billed for the water it had been receiving through 4he me.ter it installed on 4he "south" line. 2.6 Boeing has paid for water provided through the "south" line for the period commencing January 2007 through the present.. 2.7 Without admitting liability or fault, the City and Boeing desire to compromise and settle all claims against, and disputes with, the otherin connection herewith. AGREEMENT AND RELEASE As the City and Boeing.desire to enter into a full and complete settlement for the unmetered water supplied by the City to Boeing between August 1990 and December Page 1 2009 and desire to execute mutual releases discharging each other from any further liability or obligation to the other, the City and Boeing hereby agree as follows: 3.1. Calculation of Costs of Unnaid Water. The parties have calculated and agreed upon an amount reflective of the costs of the unmetered water supplied by the City to Boeing for Bceing Building 17�5, to wit: six hundred thousand, four hundred twenty six dollars and nol100 ($600,426.00). 3.2 Pavment of Funds. Boeing shall pay to the City six hundred thousand, four hundred twenty six dollars and no/100 ($600,426.00) for unmetered water supplied to Boeing's Building 17-45 between August 1990 and December 2009. The amourrt shall be paid not later than sixty (60 calendar days following the execution and delivery of this Settlement Agreertient by both parties. 3.3 Reqair and dedication of connected Meter to the Gitv. Boeing and the City will take all steps required by applicable Au6urn Municipal Code relating to the repair, maintenance, and condition of the meter, the conveyance of the meter to the City by bill of sale, and the grant to the City of an easement for access to said meter, such easement to be evidenced by a signed easement agreement in ' recordable form. The parties will accomplish this within 90 days after the execution of this agreement. 3.4 Compliance with Citv Standards: Boeing acknowledges that although the current meter may be repairable on an indefinite basis by a qual�ed manufacturer representative, that the current meter, vault and isolation valving was not reviewed or approved by the city vvith the intent bf complying with city standards , for new development; therefore, Bceing agrees to replace the existing vauk, meter, and isolation valves at Boeing's expense with a future replacement vault, meter of equal capacity, and isolation valves that comply with city standards when the current meter is determined,to be no longer repairable by a qualified manufacturer representative or, if Boeing fails to make such replacement within six (6) months of the City's written demand therefor, the City may make such replacement and Boeing will be responsible to reimburse the City for the reasonable cost incurred by the City in effecting such replacement. 3.5 Recoanition of SDCs beina satisfied: In exchange for the above agreements the City will credit Boeing for having paid all SDCs associated with the 8" compound Hersey meter when Boeing dedicates the meter to the City under Paragraph 3.3 and when a new meter has been installed by Boeing at Boeing's expense or by the City pursuant to Section 3.4 (but if the new meter is installed by the City, the credit for applicable SDCs will not be effective until Boeing has reimbursed the City pursuant to Section 3.4, above. 3.6 Mutual Release and Covenant Not to Sue. Upon completion of the terms and conditions of this Settlement Agreement, eacfi of the City and Boeing, each on its own behalf and for and on behalf any and all of their respective principals, agents, representatives and successors in interest, does hereby mutually release Page 2 and discharge, and covenants not to sue the other and their respective principals, agents, and representatives thereof, from all claims, suits, or liabilities of any kind or nature, fixed or contingent, arising out of or related to charges for unmetered water supplied to the 17-45 Building between August 1990 and December 2009. 3.7 Denial of Liabilitv or Fault. This Settlement Agreement expresses the full and complete settlement of disputed claims. This Settlement Agreement is not, and is-not intended to be, an admission of diability or fault on behalf of either party. 3.8 Reliance Uaon Own Judqment: Each party warrants and represents that it relied upon its own judgment and the advice of its legal counsel regarding the proper, sufficient, and agreed upon consideration for the terms and provisions of this Settlement Agreement and ,that no statements or representations, implied or expressed, made by the other party or its respective agents, employees, officers, directors or legal counsel have induced the party so warran4ing and representing to execute this 5ettlement Agreement. Counsel for both the City and Boeing have been involved in the drafting of this SettlemeM Agreement. Each party represents and warrants that it has been represented by legal counsel as to its rights and obligations unde�this Settlement Agreement. 3.9 Entire Aqreement: Modification. This Settlement Agreement shall constitute the entire agreement in compromise and settlement of all charges for water supplied to the 17-45 Building between August 1990 and December 2009 and supersede any prior agreements, negotiations, and/or communications oral or written with respecY to the subject rimatter of this Settlement Agreement. This Settlement ; Agreement may not be alteretl, mod�ed, or amended, unless by agreement in writing executed by the parties, nor may any of its provisions be waived, unless in writing by the party granting such waiver. 3.10 Further pocumentation and Assistance. The City and Boeing hereto agree to exeoute any and all further documentation as may now or later be required to effectua4e the terms and underlying purpose of this Settlement Agreement. 3.11 Counteroarts. This Settlement Agreement may be executed by multiple counterparts, each of which shall be deemed an original, and all of which shall constitute one 'final agreeme� as if one document had been signed by all signatories hereto and each such counterpart; upon execution and delivery, shall be deemed a complete original, binding on the parties to the Settlement. Agreement. 3.12 Headin4s. The section headings used in this Settlement Agreemerrt are for convenience only and sHalf not affect the interpretation of this Settlement Agreemenf. 3.13 Interaretation. Each party has had the opportunity to draft, review, and edit this Settlement Agreement. Accordingly, no presumption for or against either Party Page 3 arising out of drafting all or any part of fhis Settlement Agreement will be applied in any action relating to or arising from this Settlement Agreement. 3.14 Investiaation. Each paRy has made such inyestigation of the facts pertaining to this Settlement Agreement and of all the matters pertaining thereto as it deems neces§ary. Each party has read this Settlemenf Agreement and understands its confents. 3.15 Power and Au4horitv. Each party and each signatory to this Settlement Agreemer�t hereby represents and warrar�ts that it has full power, authority, and legal right to execute and deliver this Settlement Agreement and to perform all actions required of it hereunder: Each party signing this Settlement Agreement represents and warrants that it owns the claims that it is releasing and has not assigned any of its claims to any other person. 3.16 Release, etc.-Continaent on Pavment. The Gity's agreements set out in Section 3.6 of this Settlement Agreement;are contingenY upon delivery of the full amount stated in paragraph 3.2. The City's claims agair►st Boeing are not released, waiVed or othervVise discharged untif said payment has been received by the City, but shall be fully released, waived, and otherwise discharged, and the City's wyenarrt not to sue shall be in full force and effect upon the City's receipt of such payment. 3.17 Governinq Law. This Settlement Agreement shall be govemed by the law of the ... State of Washington. No consideration shall be given to Washington's conflicE of law rules. `3.18 Effective Date. This Settlement Agreement shall be effective and binding upon the paifies immediately upon the execution and delivery of this Settlement Agreement by the parties. Signatures appear on the next sheet. Page 4 CITY OF A THE BOEING GOMPANY i f . Dr, ,L,_� Peter B. Lewis, Name: e.�KSV�- Mayor Title:-D.�ac.TO¢, Ar,�sue�/ 5��S��cS Date Signed: SEP 1 8 2011 Date Signed: io/3/i� ATTEST: ���a�.���G� Danielle E. Daskam, Ciry Cle�lc APPR D AS TO FORM 'D ' . Hei , City Attomey Page 5