Loading...
HomeMy WebLinkAbout09-15-2003 Item VIII-B-4.pdfCITY OF AUBURN WASHINGTON AGENDA BILL APPROVAL FORM Agenda Subject Date: Resolution No. 3640 September 9, 2003 Department: Attachments: Budget Impact: Public Works Resolution No. 3640 Administrative Recommendation City Council adopt Resolution No. 3640. Background Summary: Resolution No. 3640 authorizes the Mayor to execute a Settlement Agreement & Release with ChevronTexaco Corporation accepting the reimbursement of $78,809.28 from ChevronTexaco for the actual costs incurred by the City for the cleanup of contaminated soils and groundwater at 309 `C' Street SW. This was a part of the 3rd Street SW Grade Separation Project (PR529). As part of the 3rd Street Project, the City removed three underground storage tanks that were previously installed by Texaco. During their removal, contamination was found. The City completed the work necessary to receive a letter of "No Further Action" from the Washington State Department of Ecology releasing the site from further requirements to clean up contamination. W0915-3 A3.12.1 Reviewed by Council & Committees: Reviewed by Departments & Divisions: ❑ Arts Commission COUNCIL COMMITTEES: ❑ Building ❑ M&O ❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor ❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks ❑ Human Services ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board ®Public Works ❑ Human Resources ❑ Police ❑ Planning Comm. ❑ Other ® Legal ® Public Works Action: Committee Approval Council Approval: Referred to Tabled ❑Yes ❑No ❑Yes ❑No Call for Public Hearing Until _/_/ Until / / Councilmember: Wagner Staff: Dowdy Meeting Date: September 15, 2003 Item Number: VIII.B.4 AUBURN* MOR -E THAN YOU IMAGINED RESOLUTION NO. 3 6 4 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A SETTLEMENT AGREEMENT BETWEEN THE CITY OF AUBURN AND CHEVRONTEXACO CORPORATION FOR THE CLEANUP OF THE CONTAMINATION FROM THE UNDERGROUND STORAGE TANKS LOCATED AT 309 'C' STREET SW WHEREAS, the City has completed the cleanup of contamination from the ChevronTexaco underground storage tanks located at 309 C Street SW; and WHEREAS, the City has received a letter of "No Further Action" from the Washington State Department of Ecology for the site; and WHEREAS, the costs related to the cleanup of the contamination from the underground storage tanks are the responsibility of ChevronTexaco; and WHEREAS, ChevronTexaco has agreed to reimburse the City for these costs in the amount of $78,809.28, which are the actual costs incurred by the City for the cleanup work; and WHEREAS, ChevronTexaco desires a release from any additional claims, costs and causes of action of any kind or nature that arise out of, or are connected with or related to the discovery or presence of petroleum hydrocarbon contamination at 309'C' Street SW; and. Resolution No. 3640 September 2, 2003 Page 1 __—_- 1111_.____ WHEREAS, the location of the underground storage tanks is in the Washington State Department of Transportation's limited access boundaries for the interchange with State Route 18 and will become the jurisdiction of the Washington State Department of Transportation upon project acceptance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The City Council hereby approves the acceptance of the ChevronTexaco funds in the amount of $78,809.28 for the cleanup of the contamination from the underground storage tanks located at 309 'C' Street SW. The Mayor is hereby authorized to execute a Settlement Agreement & Release between the City and ChevronTexaco, in substantial conformity with the agreement attached hereto, marked as Exhibit "1" and incorporated herein by this reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Resolution No. 3640 September 2, 2003 Page 2 Dated and Signed this day of , 2003. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk APPROVER -AS TO FOR E)aniel B. Heid, City Attorney Resolution No. 3640 September 2, 2003 Page 3 SETTLEMENT AGREEMENT & RELEASE THIS SETTLEMENT AGREEMENT & RELEASE ("Agreement") is by and between the City of Auburn, a Washington municipal corporation ("Auburn"), and ChevronTexaco Corporation, a Delaware corporation, and its subsidiaries, ("ChevronTexaco"). Auburn and ChevronTexaco shall be referred to at times herein as "the Parties." RECITALS A. Auburn is the owner of real property located at 309 "C" Street SW, Auburn, Washington ("the Property"), the legal description of which is attached hereto as Exhibit A and incorporated herein by reference. B. ChevronTexaco Corporation is the successor of Texaco Downstream Inc. (Texaco). Texaco previously owned the Property beginning in October 1967 and constructed a gas station thereupon. In January 1977, Texaco sold the property and gas station facilities, including underground storage tanks and product lines, to Arthur and Joyce Kleppen and James and Frances Conley. C. Subsequent to Texaco's ownership, the Property was used for a welding equipment supply center, retail automobile tire store, automobile body repair facility, and cafe. D. During the course of the various uses prior to Auburn's acquisition of the Property, petroleum hydrocarbons were released into the soil and groundwater at the Property. E. Texaco denied any liability for petroleum hydrocarbon releases at the Property. F. Auburn and Texaco entered into a Letter of Intent, dated September 11, 1996, regarding cleanup of petroleum hydrocarbon contamination that may have originated from the Texaco operation on the Property. 013000.0338/716463.1 G. Auburn has completed environmental remediation of soil and groundwater contamination at the Property and has obtained a No Further Action letter from the Washington Department of Ecology. Auburn has constructed a highway interchange on the Property and intends to convey title to the Property to the State of Washington. H. Auburn submitted a claim to ChevronTexaco for reimbursement of a portion of the remedial action costs that it incurred. I. The Parties now desire to settle this matter. SETTLEMENT AGREEMENT NOW, THEREFORE, in consideration of the promises, releases and covenants contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged by the Parties, Auburn and ChevronTexaco agree as follows: 1. Pam. In exchange for the releases and other consideration described herein, ChevronTexaco agrees to pay to Auburn the sum of $78,809.28 in full and final settlement of all claims by Auburn pertaining in any manner to petroleum hydrocarbon contamination at, in, under or originating from the Property, and any and all costs that Auburn has or may incur in the future relating to said contamination. Payment shall be made by check payable to "City of Auburn." Payment shall be deemed made when the check is delivered to Auburn City Hall, ATT N: Lanny Petitjean, Finance, 25 W. Main Street, Auburn, WA 98001. 2. - Release. Subject to payment as described in paragraph 1 above, and except as necessary to enforce the terms of this Agreement, Auburn, for itself, its successors and assigns, hereby releases, acquits and forever discharges ChevronTexaco, its parents, subsidiaries, affiliates, predecessors, successors, assigns, officers, directors and employees from any and all claims, cross-claims, demands, suits, actions, damages, costs and causes of action of any kind or 2 013000.0338/716463.1 nature that arise out of, or are in any way connected with or related to, the discovery or presence of petroleum hydrocarbon contamination at, in, under or originating from the Property. 3. Compromise. The Parties agree that this Agreement is a settlement of claims that are denied by ChevronTexaco, and that the consideration given for this Agreement is in no way to be construed as an admission of liability and is, in fact, not an admission of liability. Notwithstanding, the Parties consent to the compromise of all claims that have been raised or could have been raised in this matter. 4. No Assignment of Claims. Each party hereto represents and warrants that it has not assigned, transferred or granted, or purported to assign, transfer or grant any of the claims, demands, suits, actions, damages, costs or causes of action disposed of by this Agreement. 5. Jurisdiction to Enforce Settlement. The Parties agree and consent that, in the event any action is brought to enforce or otherwise interpret this Agreement or its terms, any such action shall be brought in the King County Superior Court, and that such Court shall have continuing jurisdiction to hear such matters. 6. Notice. Prior to commencement of any action or proceeding, at law or in equity, to interpret or enforce the terms of, or obligations arising out of this Agreement, or to recover damages for the breach hereof or to compel performance hereunder, the party bringing such action must give the party against whom the action is brought thirty (30) days' written notice documenting the reason or reasons for the commencement of such action. All notices required in this Agreement, shall be sent to the following: For Auburn: Dan Heid Auburn City Attorney 25 W Main St Auburn, WA 98001 Tel: (253) 931-3054 3 013000.0338/716463.1 For ChevronTexaco: Jon N. Robbins, Esq. Chevron Products Company 6001 Bollinger Canyon Road San Ramon, CA 94583 Tel: (925) 842-2576 7. Attorneys' Fees & Costs. In the event of any action or proceeding at law or in equity to interpret or enforce the terms of, or obligations arising out of this Agreement, or to recover damages for the breach hereof, or to compel performance hereunder, the party prevailing in any such proceeding or action, including bankruptcy court proceedings and including any appeals, shall be entitled to recover attorneys' fees and costs incurred by the prevailing party, whether incurred before or after the commencement of such action or proceeding. The attorneys' fees shall include those incurred in bringing such suit and/or enforcing any judgment granted therein, all of which shall be deemed to have accrued upon commencement of such action and shall be paid whether or nor such action shall contain a specific provision providing for the recovery of attorneys' fees and costs incurred in enforcing such judgment. 8. Non -Waiver. A waiver of any term or condition of this Agreement shall not be deemed a waiver of any other term or condition hereof. 9. No Third -Party Beneficiaries. Each party to this Agreement represents that there are no actual or intended third -party beneficiaries to this Agreement. 10. Opportunity to Confer with Counsel. Auburn represents that the Auburn City Attorney or his/her designee are the attorneys employed to represent it with respect to the Agreement and all matters covered herein. ChevronTexaco represents that Michael A. Nesteroff, Esq. and Lane Powell Spears Lubersky LLP are the attorneys employed to represent it with respect to the Agreement and all matters covered herein. The Parties represent that their respective attorneys have fully advised them concerning their rights with respect to the terms and 4 013000.0338/716463.1 execution of the Agreement, the indemnity, releases and covenants contained herein and that each party fully understands the same. 11. Releases as a Defense. The Agreement and the releases contained herein may be pleaded as a full and complete defense to any action, suit or other proceeding related to the Property that may be instituted, prosecuted or attempted by any party in breach of the Agreement or the releases contained herein. 12. Entire Agreement; Modification. The Agreement represents the full and complete agreement of the Parties hereto, superseding all previous communications, representations or agreements, whether written or oral, and may not be modified without the written agreement of all Parties hereto. 13. Warranty of Authority. Each person signing this Agreement represents and warrants that he or she has been duly authorized to enter into this Agreement by the party on whose behalf it is indicated that the person is signing. 14. Equal Participation in Drafting. The Parties hereto have participated in and have had an equal opportunity to participate in drafting this Agreement. No ambiguity shall be construed against any parry based on a claim that the party drafted the ambiguous language. 15. Severance. If any provision in this Agreement is adjudicated to be unenforceable or voided for any reason, that part will be severed from the balance of this Agreement and the validity and enforceability of the remainder of the Agreement shall in no way be affected or impaired unless the severed portion was essential to the material purpose of the Agreement. The release contained in paragraph 2 herein is essential to the intended purpose of the Agreement, although nothing in this paragraph shall preclude a finding that other provisions are essential to the intended purpose of the Agreement. If the severed portion was essential to the intended 5 013000.0338/716463.1 purpose of the Agreement, then the party who was to receive the benefit of the severed portion has the option to void the Agreement. 16. Voluntary Execution. The parties represent that they understand and agree that the Agreement is made and entered into as their free and voluntary act. 17. Governing Law. The Agreement shall be interpreted, construed and enforced in accordance with Washington law. 18. Counterparts. The Agreement may be executed in counterparts by the Parties named herein and all such counterparts once so executed shall together be deemed to constitute one final agreement, as if one document had been signed by all parties hereto, and each such counterpart, upon execution and delivery, shall be deemed a compete original, binding on the Parties. 19. Bindin Effect. ffect. Unless otherwise provided, the Agreement and the terms, covenants, conditions, provisions, obligations, undertakings, rights and benefits hereto shall be binding upon and shall inure to the benefit of Auburn and ChevronTexaco, and their respective successors and assigns. 20. Headings. The headings contained in the paragraphs of the Agreement are for convenience of reference only and do not in any way limit, expand. or modify the terms or provisions of the Agreement. 6 013000.0338/716463.1 WHEREFORE, the Parties have executed and entered into this Agreement as of the dates indicated below. Date: Date: 7 013000.0338/716463.1 CITY OF AUBURN :A Peter B. Lewis, Mayor ATTEST: Danielle E. Daskam, City Clerk CHEVRONTEXACO CORPORATION LIM Its EXHIBIT A (Legal Description) Block 1, Lacey's Second Addition to Auburn, according to the plat thereof recorded in Volume 21 of Plats, page 20, in King County, Washington; EXCEPT those portions thereof conveyed to the City of Auburn for streets by deeds recorded under Recording Numbers 4302100 and 6268952, situated in the County of King, State of Washington. 013000.0338/716463.1