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Home My WebLink About4694RESOLUTION 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 Aubum 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 P =ter B. Lewis, Mayor ATTEST: apQ)e !,Zi2J__y Da?rielle E. Daskam, City Clerk APP : ED TO FORM n - el ity Attorney Resolution No 4694 March 17, 2011 Page 2 1.1 FINAL RELEASE AND SETTLEMENT AGREEMENT PARTIES 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 152015' 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 Water Company, 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 effective 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, which should contain account number MM- 0T00054 on the front. 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. Checks shall be sent to City of Auburn, Attention Finance Department, 1 East Main Street, Auburn, 98001. If delivered, present at the utility counter on the second floor of 1 East Main Street. 3.2 Mutual Release and Covenant Not to Sue. Upon completion of the terms and conditions of this agreement, 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 of this Settlement Agreement and that no statements or representations, 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 Authority of Signatory. 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 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 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 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 not 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 23, 2011. FOR GLACIER WATER Cer,AN Y, • La' 3h s, Der4 ?9 L � T 4 /11€1 9 er FO OF AUBURN Peter B. Lewis, Mayor ATTEST: Danielle E. Daskam, City Clerk APPR • ,,A. O FO'k� i G' , a'el B. Hei. City Attorney