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HomeMy WebLinkAboutITEM VIII-B-5 * *CITYOF, . * * . AGENDA BILL APPROVAL FORM ~ WASH[NGTON Agenda Subject: Resolution No. 4694 Date: March 15, 2011 Department: Finance Attachments: Resolution No. 4694 Budget lmpact: Administrative Recommendation: City Council adopt Resolution No. 4694. Background Summary: y of Aubum via an agreement with the Police Officers Guild allows offlcers to perform extra off The Cit duty work. The rate charged for the work is a predetermined set rate between the City and Police Guild and covers the offlcers' hourly rate, benefits and a small administrative charge to the City for billing the vendor and administering the officers' pay. In the summer of 2008, Glacier Water Company, which is located at 1520 15th Street NW, contacted the Aubum Police Department regarding hiring off-duty police officers to provide security at its 15th Street facility. An officer visited the location and informed the president and #he firm's financial officer of the rate for a police officer to be stationed at the location. The Police Department is in charge of scheduling the officers' work and the City Finance Department bills for the services. Consistent with the City's practice at the time, the security was provided pursuant to an oral contract for the officers' services. Beginning on July 13, 2008, an extra-duty police officer was positioned at the Glacier Water plant. The agreement with Glacier Water was for one officer.to be on duty at the facility from 9:00 p.m. to 6:00 a.m. seven days a week. The City charged Glacier Water the standard rate for this security service: $45 per hour for each officer and time and a-half for overtime. The City billed Glacier Water bi-weekly. Glacier Vl/ater paid in full the first billed amount, $742.50, on August 8, 2008. Thereafter, Glacier Water - failed to remit any payment to the City although the City sent the company statements showing the amount due and repeatedly spoke to employees of the company about the account. Eventually, the delinquent amount accumulated to total $37,485.00. After several messages left by the City's pplice and finance departments went unanswered; the City stopped proyiding the security service. Security was last provided on October 24, 2008. A3.12.1, F4.72 , Reviewed by Council 8 Committeesc , Reviewed by Departments 8 Divisions: ❑ Arts Commission COUNCIL COMMIITEES: ❑ Building . ❑ M&O - ❑ Airpo.rt X Finance O Cemetery ❑ Mayor p Hearing Examiner Municipal Serv. X Finance ❑ Parks ❑ Human Senrices ❑ Planning & CD ❑ Fire ❑ Planning ❑ Park Board ❑Public Works X Legal, p Police ❑ Planning Comm. ❑ Other ❑ Public Works ❑ Human Resources ❑ Information Services Action• Committee Approval: []Yes []No - Council Approval: ElYes ❑No Call for Public Hearing Referred to Until Tabled Until Councilmember: Backus . Staff: Goleman/Heid Meetin Date: March 21, 2011 Item Number: VI11.6.5 AUBURN * MORE THAN YOU IMAGINED Agenda Subject: Date: Resolution No. 4694 March 15, 2011 _ After the Legal Department demanded payment, and other attempts to collecf were unsuccessful, the City filed a lawsuit to collect the amount on March 15, 2010. Glacier Water has proposed settling the lawsuit by making a settlement payment over three months; $15,000 initially and then two $5,000 payments, for a total payment of $25,000. The Finance Committee recommends accepfance ofi fhe settlement'. If the terms are. not adhered to, the City may move forward with the Jawsuit. , Page 2 of 2. . RESOLUTION NO. 4694 A RESOLUTION OF THE CITY COUNCIL OF: THE CITY OF AUBURN AUTHORIZING THE EXECUTION OF A SETTLEMENT AGREEMENT AND RELEASES BETWEEN THE CITY OF AUBURN AND GLACIER WATER LLC TO SETTLE A LAWSUIT FILED BY AUBURN AGAINST GLACIER WATER LLC WHEREAS, the City and Glacier Water LLC had entered into a contract for security services by off duty officers; antl , WHEREAS, Glacier Water LLC failed to remit payment for the full contract amount in payment for the security services provided by the City; and WHEREAS, on March 15, 2010, the City filed a lawsuit, City of Aubum v. G/acier Water Company, No. 104-1102, in King County Superior Court, claiming damages of $37,485.00; and _ WHEREAS, the City and Glacier Water LLC desire to settle the City's claims according to the terms of the attached Settlement Agreement; ; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBRUN, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH RESOLVES AS FOLLOWS: Section 1. The Mayor is authorized to execute a Settlement Agreement and Release between the City of Aubum and Glacier Water LLC, in substantial conformity to the one attached, to settle the City's lawsuit for damages. A copy of said agreement is attached as Exhibit A and is incorporated by reference into this resolution. Resolution No. 4694 - March 17, 2011 Page 1 . Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out this legislation. DATED and SIGNED this 215t day of March, 2011 CITY OF AUBURN Peter B. Lewis, Mayor ATTEST: Danielle E. Daskam, City Clerk APP ED S TO FORM ei ity Attomey Resolution No. 4694 March 17, 2011 , Page 2 k'INAL ItELEASE AND SETTI.EMENT AGREEMENT PARTIES 1.1 The parties to the Release and Settlement Agreement are Glacier Water Company, LLC, a Washington limited liability corporation, and The City of Auburn, a municipal corporation. _ RECITALS 2:1 "Glacier Water". sha11 mean Glacier Water Company,.LLC, and all agents, J, successors and assignees, both past and present. 2.2 Glacier Water is located at 1520 15t' Street NW in Auburn and is a bottler of glacier water. . 2.3 "Auburn" shall mean the City of Auburn and a11 agents, successors and assignees, both past and 'present. 2.4 On Mazch 15, 2010, Auburn filed a Complaint for Damages, City of Auburn v. Glacier.Water Comparry, No. 104-1102, in King County Superior Court ("LawsuiY'), alleging monetary damages attributa.ble to the failure of Glacier Water to pay an outstanding amount accrued under contracf with Auburn for extra-duty police security services. 2.5 Without admitting liability, Auburn and Glacier Water desire to compromise and , settle a11 claims against, and disputes with, the other: SETTLEMENT AND RELEASE - Whereas Auburn and Glacier Water desire to enter into a full and complete settlement of the lawsuit and to execute mutual releases discharging each other from any further liability or obligation to tlie other; Aubum arid Glacier Water agree as follows: 3.1 Pavment of Funds. Glacier Water shall pay to Auburn $25,000.00. The amount sha11 be paid iri three sums: a$15,000.00 payment and two $5,000.00 payments. ~ The first payment shall be delivered to Auburn within two weeks of the execution date of this agreement. The nexf payment sha11 be delivered within thirty days of the first payment. And the third payment shall be delivered to Auburn within thirry days of the date of the second payment. All payments shall be made by . cashier's check or`money order. Auburn sha11 not negotiate the check for the final ' payment until Glacier Water'receives a copy of the Order of Dismissal with Prejudice of the Lawsuit. 3.2 Mutual Release and Covenant Not to Sue. Aubum and Glacier Water, and all principals, agents, and representatives, do hereby mutually release and discharge. each other and their respective principals, agents, and representa.tives thereof, from all claims, suits, or liabilities of any kind or nature, fixed or contingent, arising out of or related to the Lawsuit. 3.3. Aubum covenants thaf after dismissal of the Lawsuit, it will never hereafter institute or maintain any action at law or in equity. against Glacier Water, its agents, or employees on account of any claim, suit or liability released herein. 3.4 Glacier Water covenants that it will never hereafter institute or maintain any action at law or in equity against Aubum on account of any claim, suit, or liability - released herein. 3.5 Dismissal of Suit with Prejudice. Aubum and Glacier Water hereby stipulate to, . and shall execute, a dismissal witti prejudice and without costs of the Lawsuit, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. Aubum and Glacier Water shall pay their own attorneys' fees, costs, and expenses incurred in connection with the Lawsuit. 3.6 Denial of Liabilitv. 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 liability. , 3.7 Reliance Upon Own Judganent. Glacier Water warrant and represents that they relied upon their own judgment and the advice of its legal counsel regazding the proper, sufficient and agreed upon consideration for the terins and provisions fo this Settlement Agreement and that no statements or represeanta.tions, implied or expressed, made by Aubum and its respective agents, employees, officers, directors or legal counsel have induced Glaciei Water's decision to execute this Settlement Agreement; Counsel for both Aubum and Glacier Water have been involved in the drafting of this Settlement Agreement.. 3.8 Entire Agreement. The tenns and conditions of this Settlement Agreement shall constitute the entire agreetnent in compromise and settlement of the Lawsuit. 3.9 Agreement Governed bv Washington Law. This Settlement Agreement is to be governed by the laws of the-State of Washington. ' 3.10 Binding on Successors and Assig+ns. All the terms and conditions of the Settlement Agreement and its exhibits sha11 be binding upon and inure to the benefit of Aubum and Glacier Water and their respective heirs, successors, and assigns. 3.11 Authori of Si n~torv. Glacier Water covenants, represents and warrants that all signatories on behalf ofGlacier Water aze of legal age, are under no disability and have the mental capacity to legally bind Glacier Water and have all other necessary legal authority to enter into the Settlement Agreement. Glacier Water warrants that the signatories aze executing this agreement oa behalf of the corporation and are dbing so with the full and complete knowledge of such corporation. . 3:12 Further pocumentation and Assistance. Auburn and Glacier Water hereto agree to execute any and a11 further documentation as may now or later be required to effectuate the terms and underlying purpose of this Settlement Agreement. 3.13 Counterparts. This Settlement Agreement may be executed by multiple counterparts, each of which shall be deemed an original; and a11 of which sha11 constitute one final agreement 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. 3.14 Arbitration. Any dispute regazding the langua.ge or the terms of this Settlement - Agreement sha11 be decided by binding azbitration. The azbitrator sha11 be a person who is mutually agreeable to the parties and if the parties are unable to reach agreement, the King County Presiding Judge shall appoint the arbitrator. The fees and costs of the arbitrator shall be paid by the losing party. 3.15 Agreement to Dismiss Contingent. Auburn's agreement to dismiss the Lawsuit is contingent upon delivery of the full amount stated in paragraph 3.1. Auburn's claim and complaint against Glacier Water are riot released, waived or otherwise discharged until the terms of this agreement are satisfied. 3.16 Effective Dafe. The effective date of this Settlement Agreement shall be March , 2011. FOR GLACIER WATEIt FOR THE CITY OF ABJBURN Peter B. Lewis, Mayor ~ - . .