HomeMy WebLinkAboutITEM III-B-1G(TY OF, .
WASHINGTON
AGENDA BILL APPROVAL FORM
Agenda Subject: Resolution No. 4694
Date: March 15, 2011
Department: Finance
Attachments: Resoluton. No.4694
Budget Impact:
Administrative Recommendation:
City Council adopt Resolution No. 4694.
Background Summary:
The City of Auburn via an agreement with the Police Officers Guild allows officers to perform extra off
duty work. The rate charged for the work is a predetermined set rate between the City and Police Guild
and covers the officers' 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
Auburn 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 the 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 Water 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 police and
finance departments went unanswered, the City stopped providing the security service. Security. was last
provided on October 24, 2008.
A3.12.1, F4.12
Reviewed by Council & Committeesc
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building . ❑ M&O
❑ Airport X Finance
O Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
X Finance ❑ Parks
❑ Human Services ❑ Planning & CD
❑ Fire ❑ Planning
❑ Park Board ❑PUblic Works
X Legal, ❑ Police
❑ Planning Comm. ❑ Other
❑ Public Works ❑ Human Resources
❑ Information Services
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No . Call for Public Hearing
Referred to Until
Tabled Until
Counciimember: Backus .
Staff: Coleman/Heid
Meeting Date: March 21, 2011
Item Number: VIII.B.5
Aj jBURN * MORE THAN YOU IMAGINED
Agenda Subject: Date:
Resolution No. 4694 March 15, 2011
After the Legal Department demanded payment, and other attempts to collect 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 acceptance of the settlement'. If the terms are,
not adhered to, the'City may move forward with the lawsuit.
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; and
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 Auburn v.
Glacier 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 Auburn 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 21st day of March, 2011
CITY OF AUBURN
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED PTO FORM
Peter B. Lewis, Mayor
Resolution No. 4694
March 17, 2011 ,
Page 2
FINAL RELEASE AND SETTLEMENT 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". shall mean Glacier Water Company, .LLC, 'and all agents,
..successors and assignees, both past and present.
2.2 Glacier Water is located at 1520 15th Street NW in Auburn and is a bottler of
glacier. water.
2.3 'Auburn" shall mean the City of Auburn and all agents, successors and assignees,
both past and "present.
2.4 On March 15, 2010, Auburn filed a Complaint for Damages, City of Auburn v.
Glacier. WaterCompany, No. 104-1102, in King County Superior Court
("Lawsuit"), alleging monetary damages attributable to the failure of Glacier
Water to pay an outstanding amount accrued under contract with Auburn for
extra-duty police security services.
2.5 Without admitting liability,. Auburn and Glacier Water desire to compromise and
settle all 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 the other, Auburn and Glacier Water agree as follows:
3.1 Payment of Funds. Glacier Water shall pay to Auburn $25,000.00. The amount
shall be paid in- 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 next payment shall be delivered, within thirty days of
the first payment. And the third payment shall. be delivered to Auburn within
thirty days of the date of the second payment. All payments shall be made by
cashier's check or`money order. Auburn shall 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. Auburn and Glacier Water, and all
principals, agents, and representatives, do hereby mutually release and discharge.
each other and their respective principals, agents, and representatives 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. Auburn covenants that 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 Auburn on account of any claim, suit, or liability
released herein.
3.5 Dismissal of Suit with Prejudice. Auburn and Glacier Water hereby stipulate to,
and shall execute, a dismissal with prejudice and without costs of the Lawsuit, a
copy of which is attached hereto as Exhibit A and incorporated herein by
reference. Auburn and Glacier Water shall pay their own attorneys' fees,. costs,
and expenses incurred in connection with the Lawsuit.
3.6 Denial of Liability. 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 Judgment. Glacier Water warrant and represents that they
relied upon their own judgment and the advice of its legal counsel regarding the
proper, sufficient and agreed upon consideration for the terms and provisions fo
this Settlement Agreement and that no statements or represeantations, implied or
expressed, made by Auburn and its respective agents, employees, officers,
directors or legal counsel have induced Glacier Water's decision to execute this
Settlement Agreement. Counsel for both Auburn and Glacier Water have been
involved in the drafting of this Settlement Agreement..
3.8 Entire Agreement. The terms and conditions of this Settlement Agreement shall
constitute the entire agreement in compromise and settlement of the Lawsuit.
3.9 Agreement Governed by Washington Law. This Settlement Agreement is to be
governed by the laws of the-State of Washington.
3.10 Binding on Successors and Assigns. All the terms and conditions of the
Settlement Agreement and its exhibits shall be binding upon and inure to the
benefit of Auburn and Glacier Water and their respective heirs, successors, and
assigns.
3.11 Authori of Si ng atory. Glacier Water covenants, represents and warrants that all
signatories on behalf of Glacier Water are 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 are executing this agreement on behalf of the
corporation and are doing so with the full and complete knowledge of such
corporation.
3:12 Further Documentation and Assistance. Auburn and Glacier Water hereto agree
to execute any and all fin ther 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 all of which shall
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 regarding the language or the terms of this Settlement
Agreement shall be decided by binding arbitration. The arbitrator shall 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 parry.
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 Date. The effective date of this Settlement Agreement shall be March
2011.
FOR GLACIER WATER
FOR THE CITY OF AUBURN
Peter B. Lewis, Mayor