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HomeMy WebLinkAboutR-2004-099 Longview Fibre Company Settlement & Release AgreementRESOLUTION NO. R-2004- 99 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute a Settlement and Release Agreement with Longview Fibre Company to resolve the City's claims against the Longview Fibre Company for past water and sewer charges. WHEREAS, RCW 35.67.020 and RCW 35.92.010 provide the City with full authority to control and regulate the provision of sewer and water services, including the authority to collect the charges for such services; and WHEREAS, the City has made a claim against the Longview Fibre Company to collect water and sewer undercharges; and WHEREAS, the Longview Fibre Company has agreed to settle the City's claim by payment of $79,699.99, to be paid in three installments, and has requested that the City enter into a settlement agreement entitled "Mutual Release;" and WHEREAS, the City Council finds it to be in the best interest of the City to authorize and direct the City Manager to enter into and execute the attached settlement agreement with Longview Fibre Company; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Council of the City of Yakima hereby authorizes and directs the City Manager of the City of Yakima to execute the attached settlement agreement entitled "Mutual Release" with the Longview Fibre Company. ADOPTED BY -THE CITY COUNCIL this 6th day of July, 2004. ett.t.e?-. Paul P. George, Mayor ATTEST: City Clerk MUTUAL RELEASE OF CLAIMS This Mutual Release ("Release") is made as of this 21st day of June, 2004 by and between Longview Fibre Company, a Washington corporation having an address of P.O. Box 639, Longview, Washington 98632 ("Longview") and the City of Yakima, a Washington municipal corporation having an address of 129 N. 2nd Street, Yakima, Washington 98901 ("Yakima"). RECITALS On March 26, 2004, Yakima presented Longview with a billing for past water and sewer charges, the payment of which, and for a variety of reasons, Longview disputes. After negotiations, the parties have agreed to a payment of $79,669.99 ("Settlement Amount") to fully settle and resolve all issues concerning sums due for water and sewer charges accruing for service provided up to and through March 12, 2004, based on meter readings taken on that date. In addition, the parties have agreed to installment payments for the Settlement Amount, all as described hereinbelow. It is the intent and understanding of the parties that entry into this Release and the payment of all installment of the Settlement Amount effect the full and complete settlement of all claims and counterclaims which could be made on account of the amounts due for prior water and sewer usage by Longview at its Yakima plant accruing for service provided up to and through March 12, 2004. Accordingly, Yakima may not claim any additional payments from Longview for water and sewer usage through that date other than the Settlement Amount, and Longview may not claim overcharges or demand refunds. This Release will similarly satisfy any and all claims as to any obligation of Yakima to provide accurate water meters and for all matters regarding the installation, maintenance, use or otherwise of water and sewer metering at the Yakima facility. This Release shall not affect any matter concerning, and the parties hereby reserve issues relating to, water quality or the characteristics and nature of sewer effluent from the facility. The foregoing description of matters released, except the matters reserved, are hereinafter referred to as the "Released Matters". RAS0545 MUTUAL RELEASE WHEREFORE, the parties have, by and through duly authorized corporate and municipal officials, executed this Release to effect the following releases, waivers, discharges and agreements between them as follows: 1. Conditioned upon full payment of the Settlement Amount, Yakima and Longview do hereby mutually release and discharge each other from the Released Matters and waive any right to sue or take action on account thereof. 2. Longview shall pay the Settlement Amount with each installment to be received by Yakima on the date specified as follows: a. $26,566.66, on June 21, 2004, b. $26,566.66, on or before September 21, 2004, and c. $26,566.67, on or before December 21, 2004. Longview shall send the payments to the attention of Rita Anson, Finance Director, City of Yakima, 129 North 2nd Street, Yakima, WA 98901. These sums are due and payable by Longview without interest so long as the Settlement Amount installments have not been accelerated. 3. Yakima acknowledges receipt of Longview's draft for the first installment, and the parties acknowledge that such payment is subject to Yakima's actual collection of the draft upon presentation to Longview's bank. Longview shall not be considered in default of the obligation to pay the installments provided in paragraph 2 unless Yakima provides written notice of Longview's failure to pay by certified mail, return receipt requested, to this address: Longview Fibre Company Attn: Senior Vice President Industrial Relations & General Counsel P.O. Box 639 Longview, WA 98632 Longview shall have ten (10) days following receipt of any such notice to cure any default. In the event Longview fails to cure within such ten (10) day cure period, then all remaining installments shall be immediately due and payable with interest due on the unpaid balance from the date of this Release until paid. The interest rate shall be the prime rate, as most recently published in The Wall Street Journal (or any successor publication), on the date such payment was due under paragraph 2, plus 2%. 4. In the event Longview fails to pay the Settlement Amount installments as set forth in paragraphs 2 and 3 above, Yakima's release shall be of no force or effect. RAS0545 Provided further, upon receipt of sums due under paragraphs 2 and 3, together with Yakima's attorneys' fees and any other costs of collection and statutory interest, whether by demand, collection effort, or litigation, Yakima's release and discharge shall be deemed reinstated: 5. This Release shall inure to the benefit of and be binding upon respective successors and assigns of the parties hereof. LONGVIEW FIBRE COMPANY By: Richard H. Wollenberg Its: President, CEO and Chairman of the Board CITY OF YAKIMA By: j - Its: \t.ne.t&vl CITY CONTRACT 140: e%?041r _ S(/ RESOLUTION NO: .,e- er,S/-9 7 RAS0545 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT ITEM NO. FOR MEETING OF: July 6, 2004 ITEM TITLE: Consideration of a resolution authorizing and directing the City Manager of the City of Yakima to execute a Settlement and Release Agreement with Longview Fibre Company to resolve the City's claim against the Longview Fibre Company for water and sewer charges. SUBMITTED BY: Rita Anson, Finance Director Doug Mayo, Wastewater Manager CONTACT PERSON / TELEPHONE: Rita Anson, 575-6070 SUMMARY EXPLANATION: The City of Yakima presented the Longview Fibre Company with a bill for water and sewer undercharges that had accrued as a result of a faulty water meter. The bill also credited Longview Fibre Company for overcharges that followed the City's installation of a properly - functioning meter in 2003. While Longview Fibre Company disputes its responsibility for these undercharges, it has agreed to settle the City's claim for these charges with payment of $79,699.99 in three installments during 2004. On June 18, 2004, Longview Fibre Company submitted the first of the three installment checks for $26,566.66 which was due on June 21, 2004. Longview Fibre Company has proposed entering into a mutual release of claims with the City, conditioned on its timely payment of the settlement amount. The resolution will allow the City to resolve this matter by authorizing the City Manager to enter into a settlement agreement with Longview Fibre Company. Resolution X Ordinance Other (Specify) Contract Mail to (name and address): Funding Source Phone: APPROVAL FOR SUBMITTAL: y Manager STAFF RECOMMENDATION: Adopt resolution. BOARD RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION N.O. R-2004-99.