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RESOLUTION NO. 3 0 0 1
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, KING
3 COUNTY, WASHINGTON, AUTHORIZING THE EXECUTION OF A SETTLEMENT
AGREEMENT AND RELEASE BETWEEN THE CITY OF AUBURN AND OPUS
4 NORTHWEST, L . L . C. TO CANCEL THE PURCHASE AND SALE OF REAL
ESTATE KNOWN AS "GOEDECKE" PROPERTY.
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6 WHEREAS, the City and OPUS NORTHWEST, L.L.C. had entered
7 into a Purchase and Sale Agreement dated November 6, 1997; and
8 WHEREAS, the Buyer1s were conducting feasibility analysis
9 which resulted in the Buyer's paying to the Seller, City, an
10 additional $15,000; and
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WHEREAS,
the Purchasers expended certain sums for
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engineering and the like for feasibility studies; and
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WHEREAS, the Buyer and Seller desire to be placed back in
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their original position and to cancel the Purchase and Sale
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Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED,
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HEREWITH RESOLVES AS FOLLOWS:
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Section 1.
The Mayor is authorized to execute a
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Settlement Agreement and Release between the City of Auburn
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and OPUS NORTHWEST, L.L.C. to terminate the Purchase and Sale
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Agreement of November 6, 1997 and to return the amount of
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compensation paid by OPUS NORTHWEST, L.L.C. to City for
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extension of the feasibility time and to reimburse OPUS
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Resolution No. 3001
August 25, 1998
Page 1
1 NORTHWEST, L. L. C. for the engineering costs incurred, which
2 total amounts, constituting the return of the monies paid by
3 OPUS to the City and the City's reimbursement for engineering
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is $61,731.16.
A copy of said Agreement is attached hereto,
5 designated as Exhibit "A" and incorporated by reference in
6 this Resolution.
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Section 2.
The Mayor is hereby authorized to implement
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such administrative procedures as may be necessary to carry
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out the directives of this legislation.
DATED and SIGNED this 8th day of September, 1998.
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CITY OF AUBURN
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~ A'~Od~
CHARLES A. BOOTH
MAYOR
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ATTEST:
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~/:~
City Clerk
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APPROVED AS TO FORM:
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Mlchael J. Reynolds,
City Attorney
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Resolution No. 3001
August 25, 1998
Page 2
City of Auburn Property
Auburn, W A
SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE C' Agreement"), entered
into this ¡~ day of ~ ' 1998, is by and between OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company ("Buyer") on it own behalf and on behalf of its respective
officers, member, managers, and agents (all of the foregoing being, collectively, the "Buyer
Group"), and THE CITY OF AUBURN, a Washington municipal corporation and its respective
officials, employees and agents (all of the foregoing being, collectively, the "Seller Group"). The
Seller Group and the Buyer Group are at times individually referred to as a "Group."
BACKGROUND
Buyer and Seller are parties to that certain Purchase and Sale Agreement (the
"Purchase Agreement") dated November 6, 1997 pursuant to which Seller has agreed to sell to
Buyer and Buyer has agreed to buy from Seller the property described on Exhibit A attached
hereto (the "Land').
During the course of Buyer's due diligence in connection with possible
development of improvements on the Land, Buyer has expended significant funds in an agreed
amount of$61,731.16, including option payments paid to Seller in the amount of$15,000. Buyer
has requested Seller to make certain adjustments to the price because of site conditions differing
ITom those that were represented in certain bid documents.
Both parties wish to terminate the Purchase Agreement and release claims against
each other, on the terms and conditions hereinafter set forth.
AGREEMENTS
The parties acknowledge that the mutual undertakings recited herein constitute
sufficient consideration for the following Agreement:
Section 1. Payment.
Seller shall pay the sum of Sixty-One Thousand Seven Hundred and Thirty-One
Dollars and 16/100s ($61,731.16) to Buyer within five (5) days of the date hereof.
Section 2. Termination of Purchase A2reement.
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Exhibit "A"
Resolution No. 3001
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Seller and Buyer hereby agree that the Purchase Agreement is completely
tenninated and is of no further force or effect and Buyer hereby quitclaims to Seller any and all
right to purchase the Land.
Section 3. Mutual Release.
Seller hereby fully, finally and forever releases, acquits and discharges the Buyer
Group and Buyer hereby fully, finally and forever releases, acquits and discharges the Seller
Group ITom any and all claims or causes of action, demands, rights, liabilities of any kind or
nature at law or in equity for any relief based on statute, code, regulatory or common or case law
whether known or unknown, asserted or not, arising out of or in any manner related to the of the
Purchase Agreement or the Land and any claims that are in any way related to this Agreement.
Section 4. Unknown Claims.
Each party acknowledges that there is a risk that subsequent to the execution of
this Agreement it will discover, incur or suffer claims that were unknown or unanticipated at the
time this Agreement was executed, and that arose from, or are based upon, or are related to the
claims released by it pursuant to Section 3 hereof, which claims, if known upon execution of this
Agreement, might have materially affected its decision to execute this Agreement.
Section 5. Assi2nments.
Each party represents and warrants to the other party that it has not assigned or
otherwise transferred or subrogated any interest in any claims that are related in any way to the
subject matter of this Agreement. Each party agrees to indemnify, defend and hold each member
of all other parties fully and completely harmless from any liability, loss, claim, demand, damage,
cost, expense and or attorneys' fees incurred by the other party as a result of any person or entity
asserting such assignment, transfer or subrogation.
Section 6. Representations.
Each party acknowledges that no other party or person, nor any agent or attorney
of any party or person, has made any promise, representation or warranty whatsoever, express or
implied, not contained herein concerning the subject matter hereof, to induce any member of
either party to execute this instrument, and each member of each party acknowledges that it has
not executed this Agreement in reliance on any such promise, representation or warranty not
contained herein.
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Section 7. No Admission of Liabilitv.
Each member of each party hereto agrees that this Agreement is a result of
compromise and shall not be construed as an admission by it of (i) liability to any person and or
entity, or (ii) breach of any agreement, or (iii) violation of any law or regulation.
Section 8. V oluntarv Execution.
In executing this Agreement, each party fully, completely and unconditionally
acknowledges and agrees that (i) it has consulted with, and had the advice of, counsel of duly
licensed and competent attorneys and that it has executed this Agreement after independent
investigation, voluntarily and without fraud, duress or undue influence, and (ii) expressly consents
that this Agreement be given full force and effect according to each and every of its express tenns
and provisions.
Section 9. Authoritv to Execute.
Each person executing this Agreement on behalf of another person or organization
represents and warrants to the other party that he or she is fully authorized to execute and deliver
this Agreement on behalf of such person or organization. Each party represents and warrants to
the other party that no consent of any person not a party to this Agreement is necessary in order
for this Agreement to be fully and completely binding upon each member of the parties hereto.
Section 10. Notice.
Any demand, request or notice that either party hereto desires or may be required
to make or deliver to the other shall be in writing and shall be deemed delivered when personally
delivered, or when delivered by private courier service (such as Federal Express), or three days
after being deposited in the United States Mail, in registered or certified fonn, postage prepaid,
return receipt requested and addressed as follows:
To Buyer:
Opus Northwest, L.L.c.
Attn: John Solberg, Vice President
200 - 112th Avenue N.E.
Bellevue, W A 98004
To Seller:
The City of Auburn
Attn: Chris Thorn
25 West Main Street
Auburn, W A 98001
or to such other single address or person as either party may communicate to the other by like
written notice. Each party hereby fully, completely and unconditionally agrees that (i) any notice
to any or all of the parties constituting its Group shall be sufficient for any and all purposes hereof
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if delivered as aforesaid to the single person and address set forth above or hereafter designated
pursuant to the foregoing provisions of this Section; and (ii) any party sending notice to any of the
Group of which it is a part shall have no obligation whatsoever to send duplicate or concurrent
copies of any notice to the other parties constituting the Group.
Section 11. Miscellaneous.
11.1 Entire Agreement. This Agreement (including the exhibits which are
material and integral parts) contains the entire understanding between the parties and supersedes
any prior understandings and agreements between them respecting the subject matter hereof.
There are no other representations, agreements, arrangements or understandings, oral or written,
between and among the parties hereto, or any of them, relating to the subject matter of this
Agreement. No amendment of or supplement to this Agreement shall be valid or effective unless
made in writing and executed by the parties hereto subsequent to the date of this Agreement.
11.2 Construction. Any titles or captions of paragraphs contained in this
Agreement are for convenience and reference only and the words contained in them shall not be
held to expand, modify, amplify or aid in the interpretation, construction or meaning of this
Agreement. All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as the identification of the person or persons, finn or firms,
corporation or corporations may require. The locative adverbs "herein," "hereunder," "hereto,"
"hereby," "hereinafter" and the like, wherever the same appear herein, mean and refer to this
Agreement in its entirety and not to any specific article, section, subsection, paragraph or
subparagraph hereof The general rule of construction that an agreement will be construed
against the party who drafted it will not apply to any disputes over the provisions of this
Agreement. Any reference herein to "days" means consecutive calendar days.
11.3 Attorneys' Fees. In the event of litigation, arbitration or mediation between
any or all the parties hereto, declaratory or otherwise, in connection with or arising out of this
Agreement, the prevailing party shall recover from the non-prevailing party all actual costs, actual
damages and actual expenses, including attorneys' fees, paralegals' fees and other professional or
consultants' fees expended or incurred in connection therewith, including for appeals, which shall
be detennined and fixed by the court as part of the judgment.
11.4 Binding. Except as otherwise herein provided, this Agreement shall be
binding upon and inure to the benefit of each member of the parties hereto, their respective heirs,
executors, administrators, successors, assigns, and all persons now or hereafter holding or having
all or any part of the interest of a party herein.
11.5
in this Agreement,
provisions hereof.
Severability. The invalidity or unenforceability of any particular provision
except all provisions of Sections 1, 2 and 3, shall not affect the other
11.6 Governing Law. This Agreement shall be construed and interpreted under
the laws of the State of Washington.
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11.7 Venue. In the event of litigation, arbitration or mediation, Seller and Buyer
agree that exclusive venue for such action shall be the Superior Court for King County,
Washington, and further agree that the King County Superior Court shall have jurisdiction over
the undersigned.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed to constitute an original Agreement, and all of which
shall constitute one Agreement. The execution of one counterpart by any party shall have the
same force and effect as if that party had signed all other counterparts.
11.9 No Waiver. The failure of any member of any party hereto to enforce at
any time any provision of this Agreement shall not be construed to be a waiver of such a
provision, nor in any way to effect the validity of this Agreement or any part hereof or the right of
any party thereafter to enforce each and every such provision. No waiver of any breach of this
Agreement shall constitute or be deemed a waiver of any other breach.
11.10 Ambiguity Not To Be Construed Against Any Party. For the purpose of
construing or interpreting this Agreement, the Agreement is deemed to have been drafted equally
by all parties hereto, and shall not be construed strictly for or against any member of any party.
IN WITNESS WHEREOF, the parties to this Agreement have set forth their
signatures effective the date first set forth above.
BUYER:
OPUS NORTHWEST, L.L.c.,
a Delaware limited liability company
By:
Jo
SELLER:
THE CITY OF AUBURN,
a Washington municipal corporation
By: ~~ lee Ç}- ~ð~
Its:
NAYOR
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that John Solberg is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it as the Vice President of
Opus Northwest, L.L. C. to be the rree and voluntary act of such party for the uses and purposes
mentioned in this instrument.
Dated:
"l(~/qý- .
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(Signature of Notary Public)
tJ?ob/~ Wot ¡:¡r
(printed Name of Notary Public)
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My Appointment expires
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that I' ),.().rle5 4~ a-s'lAis the
person who appeared before me, and said person acknowledged that he/sfle signed this instrument, on
oath stated that he/she was authorized to execute the instrument and acknowledged it as the
H ~ vo r of The City of Auburn to be the rree and voluntary act of such party for the uses·
and pLtrposes mentioned in this instrument.
Dated: f f1 J
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EXHBIT A
TO
SETILEMENT AGREEMENT AND RELEASE
Description of Land
GOEDECKE NORm
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