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
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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
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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
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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
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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
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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.
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WHEREFORE, the Parties have executed and entered into this Agreement as of the dates
indicated below.
Date:
Date:
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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