HomeMy WebLinkAboutRES 4471RESOLUTION NO. 4 4 7 1
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, AUTHORIZING
THE MAYOR TO EXECUTE A SETTLEMENT
AGREEMENT WITH JACOBS ENGINEERING
GROUP, INC., AND W&H PACIFIC, INC.,
REGARDING THE SOUTH 277TH STREET ROAD
RECONSTRUCTION PROJECT
WHEREAS, the City of Auburn entered into a contract with Sverdrup Civil
Engineers in August of 1996 to prepare design drawings for the Road
Reconstruction Project on South 277th Street; and
WHEREAS, Sverdrup Civil Engineers, in turn, hired W&H Pacific, Inc, as a
sub-consultant to determine right-of-way requirements, including the location of
the new road's right-of-way and identification of any property that would need to
be acquired by the City; and
WHEREAS, based on the survey and real property information provided
by W&H Pacific, Inc., the City acquired property needed for the project, but that
did not include property owned by David Monk, as the W&H Pacific, Inc., survey
and real property information indicated that the property along David Monk's
property was already public right-of-way; and
WHEREAS, in 2002, David Monk filed a lawsuit against the City asserting,
among other things, that the City had built a portion of the South 277th Street
Project on his property without his permission; and
WHEREAS, in connection with the Monk lawsuit, the King County
Superior Court concluded that some of the needed property did belong to David
Monk; and
Resolution No. 4471
April 1, 2009
Page 1 of 3
WHEREAS, in that same lawsuit, the Court awarded Mr. Monk Sixty-Four
Thousand, Two Hundred Fifty-Nine and 79/100 Dollars ($64,259.79) in damages,
along with Two Hundred Fifty-Three Thousand Seven Hundred Sixty-Eight and
50/100 Dollars ($253,768.50) in attorneys' fees, expert witness fess, and costs;
and
WHEREAS, Jacobs Engineering Group is the successor in interest to
Sverdrup Civil Engineers, and
WHEREAS, the City filed an indemnity action against Jacobs Engineering
Group alleging that Sverdrup Civil Engineers and W&H Pacific failed to properly
identify the right-of-way on the South 277th Street Project with regard to Mr.
Monk's property, resulting in the City having to pay the attorneys' fees, expert
witness fess, and costs, and
WHEREAS, Jacobs Engineering Group, successor to Sverdrup Civil
Engineers, and W&H Pacific, Inc., desire to settle the lawsuit; and
WHEREAS, the City Council finds that the terms of settlement in the
attached settlement agreement are acceptabte,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor is authorized to enter into a Settlement
Agreement with Jacobs Engineering Group, Inc., and W&H Pacific, Inc., which
agreement shall be in substantial conformity with the Agreement a copy of which
is attached hereto, marked as Exhibit "A" and incorporated herein by this
reference.
Resolution No. 4471
April 1, 2009
Page 2 of 3
Section 2. That the Mayor is authorized to implement 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.
Dated and Signed this day of 12009.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROX/ED
Daniel B. Heid, City Attorney
Resolution No. 4471
April 1, 2009
Page 3 of 3
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into as of the _ day of April,
2009 by and between the CITY OF AUBURN ("City"), JACOBS ENGINEERING GROUP,
INC. ("Jacobs"), and W&H Pacific, Inc. ("W&H Pacific"). The City, Jacobs, and W&H Pacific
are sometimes hereinafter referred to as "Party(ies)."
RECITALS
A. The City contracted with Sverdrup Civil Engineers, Jacobs' predecessor in
interest, for professional design services (the "Contract") in connection with the Road
Reconstruction Project on South 277th Street between Auburn and Kent ("Road Project").
B. Jacobs, in turn, entered into a contract with W&H Pacific as a subconsultant to
determine right-of-way requirements with regard to the Road Project.
C. In 2002, Mr. Monk filed a lawsuit against the City (King County Cause No. 02-2-
13216-2 KNT) asserting, among other things, an inverse condemnation claim related to the Road
Project and his property (the "Monk Lawsuit"). The Court ultimately found a taking of Mr.
Monk's property and awarded him $64,259.79 in damages. The court also awarded Mr. Monk
his attorneys' fees, expert witness fess, and costs in relation to the inverse condemnation claim.
D. The City filed an indemnity action against Jacobs alleging that Jacobs and W&H
Pacific failed to properly identify the right-of-way on the Road Project with regard to Mr.
Monk's property. The City sought recovery of all damages awarded to Mr. Monk in the prior
litigation.. The lawsuit is captioned Complaint for Breach of Contract, King County Superior
Court, Cause No. 08-2-20246-1 KNT (the "Lawsuit"). Jacobs answered, denying all claims, and
filed a Third Party Complaint against W&H Pacific, alleging indemnity and breach of contract.
108373.0020/1695255.1
E. Jacobs and W&H Pacific deny they are liable for the claims asserted in the
Lawsuit.
F. All Parties desire to settle the Lawsuit on the terms and conditions described in
this Agreement.
Therefore, the Parties agree as follows: ,
TERMS
l. Payment Terms. Within thirty (30) days of mutual execution of this Agreement,
the City shall receive one check payable to the City of Auburn from Jacobs Engineering Group,
Inc. for Ten Thousand Dollars and 00/100 ($10,000) and one check payable to the City of
Auburn from W&H Pacific, Inc. for Two Hundred Forty-Three Thousand Seven Hundred Sixty-
Eight Dollars and 501100 ($243,768.50) for a total payment of Two Hundred Fifty-Three
Thousand Seven Hundred Sixty-Eight Dollars and 501100 ($253,768.50).
2. Waiver and Unconditional Release bv the Citv. The City does hereby forever
release, remise, acquit, and discharge Jacobs Engineering Group, Inc. and W&H Pacific, Inc.,
their affiliates, predecessors, shareholders, subsidiaries, affiliated entities, agents, employees,
contractors, subcontractors, officers, directors, representatives, successors, assigns, engineers,
attorneys, and all other persons or entities who are claimed to be or may be liable of and from
any and all claims, demands, damages, liabilities, suits, actions, and causes of action of
whatsoever kind, nature, or description, present and future, now known or hereafter discovered,
whether arising in law or equity, upon contract or tort, or under state or federal law or laws, or
under common law or otherwise, which the City has had, now has, or hereafter may have or
claim to have, against Jacobs or W&H Pacific for or by reason of any act, omission, matter,
2
108373.0020/ 1695255.1
cause or thing whatsoever related to the Lawsuit, the Monk Lawsuit, or the Contract.
The City acknowledges that it has specifically contemplated and bargained for the
extinguishment of all Claims arising from the Lawsuit, the Monk Lawsuit, or the Contract, as
well as unknown claims, and is aware of the holding in Nevue v. Close, 123 Wn.2d 253, 867
P.2d 635 (1994). The City further agrees to defend and hold Jacobs and W&H Pacific harmless
from any and all liens and subrogation interests arising out of either the Lawsuit, the Contract,
the Monk Lawsuit, or this Settlement Agreement. The City's duty to defend and hold Jacobs and
W&H Pacific harmless extends to any subrogation interest that has been or could be asserted by
the City's liability carrier with relation to the Lawsuit, the Contract, the Monk Lawsuit, or this
Settlement Agreement.
3. Waiver and Unconditional Release by Jacobs. Jacobs hereby releases W&H
Pacific, its affiliates, predecessors, shareholders, subsidiaries, affiliated entities, agents,
employees, contractors, subcontractors, officers, directors, representatives, successors, assigns,
engineers, and attorneys in the same manner and to the extent of the City's release as expressly
stated in Paragraph 2.
4. Waiver and Unconditional Release by W&H Pacific. W&H Pacific hereby
releases Jacobs, its affiliates, predecessors, shareholders, subsidiaries, affiliated entities, agents,
employees, contractors, subcontractors, officers, directors, representatives, successors, assigns,
engineers, and attorneys in the same manner and to the extent of Jacobs' release as expressly
stated in Paragraph 3.
5. No Admission of Liabilitv. The Parties acknowledge that the releases set forth
herein and Jacobs' and W&H Pacific's giving of consideration pursuant to the terms of this
3
108373.0020/ 1695255.1
Agreement do not constitute an admission of liability by Jacobs or W&H Pacific and are given in
full settlement and compromise of the disputed claims alleged by the Parties in the Lawsuit.
6. Representation. The City of Auburn is represented herein by Daniel B. Heid and
Stephen R. King of the City of Auburn Legal Department. Jacobs Engineering Group, Inc. is
represented herein by Stanton P. Beck and Jennifer M. Beyerlein of Lane Powell PC. W&H Pacific,
Inc. is represented herein by Henry Jameson of Jameson, Babbitt, Stites & Lombard, P.L.L.C. The
Parties acknowledge that their respective attorneys have fully advised them concerning their rights
with respect to the execution of this Agreement and its effects and that they understand the same;
and that the named attorneys are authorized and directed to take all necessary action to dismiss with
prejudice all claims and causes of action set forth in the Lawsuit without costs or attorneys' fees to
any Party, each Party to bear that Pariy's own fees and costs.
7. Dismissal of Lawsuit. Within five business days after the City's receipt of the
Settlement Amount, the Parties shall cause to be filed in the Lawsuit a dismissal with prejudice of
all claims asserted therein.
8. Enforcement. This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of Washington. Venue for any disputes relating to
this Agreement shall be had in King County Superior Court, Seattle, Washington.
9. Jointl,y Drafted. This Agreement has been drafted jointly by the Parties following
negotiations between them. It shall be construed according to its terms and not for or against any
Party.
10. Entire Understanding. This Agreement contains the entire understanding of the
Parties in connection with the subject matter of this Agreement and it supersedes and replaces all
prior negotiations, statements, and representations concerning the subject matter of this
4
108373.0020/ 1695255.1
Agreement except as expressly contained in this Agreement.
11. Severabilitv. If any provision of this Agreement is deemed by law to be void,
invalid, or inoperative for any reason, or any phrase or clause within such provision is deemed by
law to be void, invalid, or inoperative, that phrase, clause, or provision shall be deemed modified
to the extent necessary to make it valid and operative, or if it cannot be so modified, then such
phrase, clauses, and provisions shall be deemed severed from this Release, with the remaining
phrases, clauses, and provisions continuing in full force and effect as if the Agreement had been
signed with the void, invalid, or inoperative portion so modified or eliminated.
12. Authority. The Parties acknowledge and represent that they are effecting this
settlement and executing this Agreement after having received full legal advice to their rights
from legal counsel, and hereby warrant that they have the sole right and exclusive authority to
perform their respective obligations under this Agreement and receive the benefits specified
herein, and that no other person or entity has or has had any interest in the claims released herein,
nor have any of the claims referred to herein been sold, assigned, transferred, conveyed or
otherwise disposed of.
13. Descriptive Headinas. Titles to paragraphs in this Agreement are for
informational purposes only and are not intended to limit or amplify the content of any
paragraph.
14. Execution. This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but all such
counterparts shall constitute one agreement.
15. Amendment. This Agreement may not be amended, altered or modified, except
by a written amendment executed by all Parties.
5
108373.0020/ 1695255.1
DATED this day of , 2009.
By
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
The City of Auburn
Name
Title
I, the undersigned, a Notary Public in and for the State of Washington, hereby certify that on this
day of , 2008, personally appeared before me ,
to me known to be the individual described in and who executed the foregoing instrument and
acknowledged that he/she signed the same as his/her free and voluntary act and deed, for the uses
and purposes therein mentioned.
GNEN under my hand the day and year last above-written.
6
Notary Public
in and for the State of Washington.
Residing at
Commission Expires:
108373.0020/ 1695255.1
DATED this day of , 2009.
Jacobs Engineering, Inc.
By
Name
Title
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
I, the undersigned, a Notary Public in and for the State of California, hereby certify that on this
day of , 2008, personally appeared before me ,
to me known to be the individual described in and who executed the foregoing instrument and
acknowledged that he/she signed the same as his/her free and voluntary act and deed, for the uses
and purposes therein mentioned.
GIVEN under my hand the day and year last above-written.
Notary Public
in and for the State of Washington.
Residing at
7
108373.0020/ 1695255.1
DATED this day of , 2009.
By
STATE OF ALASKA )
) ss.
COUNTY OF )
W&H Pacific, Inc.
Name
Title
I, the undersigned, a Notary Public in and for the State of Washington, hereby certify that on this
day of , 2008, personally appeared before me ,
to me known to be the individual described in and who executed the foregoing instrument and
acknowledged that he/she signed the same as his/her free and voluntary act and deed, for the uses
and purposes therein mentioned.
GIVEN under my hand the day and year last above-written.
8
Notary Public
in and for the State of Washington.
Residing at
Commission Expires:
108373.0020/ 1695255.1
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into as of the _ day of April,
2009 by and between the CITY OF AUBURN ("City"), JACOBS ENGINEERING GROUP,
INC. ("Jacobs"), and W&H Pacific, Inc. ("W&H Pacific"). The City, Jacobs, and W&H Pacific
are sometimes hereinafter referred to as "Party(ies)."
RECITALS
A. The City contracted with Sverdrup Civil Engineers, Jacobs' predecessor in
interest, for professional design services (the "Contract") in connection with the Road
Reconstruction Project on South 277th Street between Auburn and Kent ("Road Project").
B. Jacobs, in turn, entered into a contract with W&H Pacific as a subconsultant to
determine right-of-way requirements with regard to the Road Project.
C. In 2002, Mr. Monk filed a lawsuit against the City (King County Cause No. 02-2-
13216-2 KNT) asserting, among other things, an inverse condemnation claim related to the Road
Project and his property (the "Monk Lawsuit"). The Court ultimately found a taking of Mr.
Monk's property and awarded him $64,259.79 in damages. The court also awarded Mr. Monk
his attorneys' fees, expert witness fess, and costs in relation to the inverse condemnation claim.
D. The City filed an indemnity action against Jacobs alleging that Jacobs and W&H
Pacific failed to properly identify the right-of-way on the Road Project with regard to Mr.
Monk's property. The City sought recovery of all damages awarded to Mr. Monk in the prior
litigation.. The lawsuit is captioned Complaint for Breach of Contract, King County Superior
Court, Cause No. 08-2-20246-1 KNT (the "Lawsuit"). Jacobs answered, denying all claims, and
filed a Third Party Complaint against W&H Pacific, alleging indemnity and breach of contract.
108373.0020/ 1695255.1
E. Jacobs and W&H Pacific deny they are liable for the claims asserted in the
Lawsuit.
F. All Parties desire to settle the Lawsuit on the terms and conditions described in
this Agreement.
Therefore, the Parties agree as follows:
TERMS
1. Payment Terms. Within thirty (30) days of mutual execution of this Agreement,
the City shall receive one check payable to the City of Auburn from Jacobs Engineering Group,
Inc. for Ten Thousand Dollars and 00/100 ($10,000) and one check payable to the City of
Auburn from W&H Pacific, Inc. for Two Hundred Forty-Three Thousand Seven Hundred Sixty-
Eight Dollars and 501100 ($243,768.50) for a total payment of Two Hundred Fifty-Three
Thousand Seven Hundred Sixty-Eight Dollars and 501100 ($253,768.50).
2. Waiver and Unconditional Release bv the Citv. The City does hereby forever
release, remise, acquit, and discharge Jacobs Engineering Group, Inc. and W&H Pacific, Inc.,
their affiliates, predecessors, shareholders, subsidiaries, affiliated entities, agents, employees,
contractors, subcontractors, officers, directors, representatives, successors, assigns, engineers,
attorneys, and all other persons or entities who are claimed to be or may be liable of and from
any and all claims, demands, damages, liabilities, suits, actions, and causes of action of
whatsoever kind, nature, or description, present and future, now known or hereafter discovered,
whether arising in law or equity, upon contract or tort, or under state or federal law or laws, or
under common law or otherwise, which the City has had, now has, or hereafter may have or
claim to have, against Jacobs or W&H Pacific for or by reason of any act, omission, matter,
2
108373.0020/ 1695255.1
cause or thing whatsoever related to the Lawsuit, the Monk Lawsuit, or the Contract.
The City acknowledges that it has specifically contemplated and bargained for the
extinguishment of all Claims arising from the Lawsuit, the Monk Lawsuit, or the Contract, as
well as unknown claims, and is aware of the holding in Nevue v. Close, 123 Wn.2d 253, 867
P.2d 635 (1994). The City further agrees to defend and hold Jacobs and W&H Pacific harmless
from any and all liens and subrogation interests arising out of either the Lawsuit, the Contract,
the Monk Lawsuit, or this Settlement Agreement. The City's duty to defend and hold Jacobs and
W&H Pacific harmless extends to any subrogation interest that has been or could be asserted by
the City's liability carrier with relation to the Lawsuit, the Contract, the Monk Lawsuit, or this
Settlement Agreement.
3. Waiver and Unconditional Release by Jacobs. Jacobs hereby releases W&H
Pacific, its affiliates, predecessors, shareholders, subsidiaries, affiliated entities, agents,
employees, contractors, subcontractors, officers, directors, representatives, successors, assigns,
engineers, and attorneys in the same manner and to the extent of the City's release as expressly
stated in Paragraph 2.
4. Waiver and Unconditional Release by W&H Pacific. W&H Pacific hereby
releases Jacobs, its affiliates, predecessors, shareholders, subsidiaries, affiliated entities, agents,
employees, contractors, subcontractors, officers, directors, representatives, successors, assigns,
engineers, and attorneys in the same manner and to the extent of Jacobs' release as expressly
stated in Paragraph 3.
5. No Admission of Liabilitv. The Parties acknowledge that the releases set forth
herein and Jacobs' and W&H Pacific's giving of consideration pursuant to the terms of this
3
108373.0020/ 1695255.1
Agreement do not constitute an admission of liability by Jacobs or W&H Pacific and are given in
full settlement and compromise of the disputed claims alleged by the Parties in the Lawsuit.
6. Representation. The City of Auburn is represented herein by Daniel B. Heid and
Stephen R. King of the City of Auburn Legal Department. Jacobs Engineering Group, Inc. is
represented herein by Stanton P. Beck and Jennifer M. Beyerlein of Lane Powell PC. W&H Pacific,
Inc. is represented herein by Henry Jameson of Jameson, Babbitt, Stites & Lombard, P.L.L.C. The
Parties acknowledge that their respective attorneys have fully advised them concerning their rights
with respect to the execution of this Agreement and its effects and that they understand the same;
and that the named attorneys are authorized and directed to take all necessary action to dismiss with
prejudice all claims and causes of action set forth in the Lawsuit without costs or attorneys' fees to
any Party, each Party to bear that Pariy's own fees and costs.
7. Dismissal of Lawsuit. Within five business days after the City's receipt of the
Settlement Amount, the Parties sha11 cause to be filed in the Lawsuit a dismissal with prejudice of
all claims asserted therein.
8. Enforcement. This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of Washington. Venue for any disputes relating to
this Agreement shall be had in King County Superior Court, Seattle, Washington.
9. Jointly Drafted. This Agreement has been drafted jointly by the Parties following
negotiations between them. It shall be construed according to its terms and not for or against any
Party.
10. Entire Understanding. This Agreement contains the entire understanding of the
Parties in connection with the subject matter of this Agreement and it supersedes and replaces all
prior negotiations, statements, and representations concerning the subject matter of this
4
108373.0020/ 1695255.1
Agreement except as expressly contained in this Agreement.
11. Severabilitv. If any provision of this Agreement is deemed by law to be void,
invalid, or inoperative for any reason, or any phrase or clause within such provision is deemed by
law to be void, invalid, or inoperative, that phrase, clause, or provision shall be deemed modified
to the extent necessary to make it valid and operative, or if it cannot be so modified, then such
phrase, clauses, and provisions shall be deemed severed from this Release, with the remaining
phrases, clauses, and provisions continuing in full force and effect as if the Agreement had been
signed with the void, invalid, or inoperative portion so modified or eliminated.
12. Authoritv. The Parties acknowledge and represent that they are effecting this
settlement and executing this Agreement after having received full legal advice to their rights
from legal counsel, and hereby warrant that they have the sole right and exclusive authority to
perform their respective obligations under this Agreement and receive the benefits specified
herein, and that no other person or entity has or has had any interest in the claims released herein,
nor have any of the claims referred to herein been sold, assigned, transferred, conveyed or
otherwise disposed o£
13. Descriptive HeadiW. Titles to paragraphs in this Agreement are for
informational purposes only and are not intended to limit or amplify the content of any
paragraph.
14. Execution. This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but all such
counterparts shall constitute one agreement.
15. Amendment. This Agreement may not be amended, altered or modified, except
by a written amendment executed by all Parties.
5
108373.0020/ 1695255.1
DATED this day of , 2009.
By
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
The City of Auburn
Name
Title
I, the undersigned, a Notary Public in and for the State of Washington, hereby certify that on this
day of , 2008, personally appeared before me ,
to me known to be the individual described in and who executed the foregoing instrument and
acknowledged that he/she signed the same as his/her free and voluntary act and deed, for the uses
and purposes therein mentioned.
GIVEN under my hand the day and year last above-written.
6
Notary Public
in and for the State of Washington.
Residing at
Commission Expires:
108373.0020/ 1695255.1
DATED this day of , 2009.
By
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
Jacobs Engineering, Inc.
Name
7-itle
I, the undersigned, a Notary Public in and for the State of California, hereby certify that on this
day of , 2008, personally appeared before me ,
to me known to be the individual described in and who executed the foregoing instrument and
acknowledged that he/she signed the same as his/her free and voluntary act and deed, for the uses
and purposes therein mentioned.
GIVEN under my hand the day and year last above-written.
7
Notary Public
in and for the State of Washington.
Residing at
108373.0020/ 1695255.1
DATED this day of , 2009.
By
STATE OF ALASKA )
) ss.
COUNTY OF )
W&H Pacific, Inc.
Name
Title
I, the undersigned, a Notary Public in and for the State of Washington, hereby certify that on this
day of , 2008, personally appeared before me ,
to me known to be the individual described in and who executed the foregoing instrument and
acknowledged that he/she signed the same as his/her free and voluntary act and deed, for the uses
and purposes therein mentioned.
GIVEN under my hand the day and year last above-written.
8
Notary Public
in and for the State of Washington.
Residing at
Commission Expires:
108373.0020/ 1695255.1