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021-05 - Resolution - Agreement with the State of WA Dept. of Veterans Affairs for Contaminated Soil at JWTFRESOLUTION NO. 021-05 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, AUTHORZING THE MAYOR TO EXECUTE A SETTLEMENT AGREEMENT AND RELEASE WITH THE STATE OF WASHINGTON DEPARTMENT OF VETERANS AFFAIRS RELATING TO THE CLEANUP OF CONTAMINATED SOIL AT THE JOINT WASTEWATER TREATMENT FACILITY WHEREAS, in March Z004 the City discovered petroleum-contaminated soil during the site preparation work for the expansion of the Joint Wastewater Treatment Facility; and WHEREAS, the City alleges that the source of the contamination is a pipeline located near the excavation that is no longer in use but that historically conveyed petroleum products from barges located in the nearby bay to the Washington Veterans Home in Retsil, WA; and WHEREAS, the City has incurred expenses to investigate, remediate, and dispose of the contaminated soil; and WHEREAS, without admitting liability, the State of Washington has agreed to fully reimburse the City for all of the costs and expenses the City has incurred relating to the investigation, remediation, and disposal of the contaminated soil discovered in March Z004, including the City's attorney's fees; now, therefore; THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The Mayor of the City of Port Orchard is hereby authorized to execute on behalf of the City the Settlement Agreement and Release with the State of Washington Department of Veterans Affairs relating to the cleanup of contaminated soil at the Joint Wastewater Treatment Facility; a copy of the Agreement is attached as Exhibit A. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 8th day of August ZOOS. KIM E. ABEL, MAYOR SETTLEMENT AGREEMENT AND RELEASE /., Gi1 .. ~1J) A. L/c:U c. i lfoo.~t ~I" ,· I This Agreement is hereby made and entered into this l:L day of .Jtttt 2005 by and between the City of Port Orchard, a municipal corporation (hereinafter the "City") and the Washington Department of Veterans Affairs (hereinafter the "Department"). WHEREAS, the City is constructing an expansion to its wastewater treatment facility; and WHEREAS, in March 2004 the City discovered hydrocarbon-contaminated soil at the construction site at concentrations that exceed state cleanup levels; and WHEREAS, the City alleges that the source of the hydrocarbon contamination is a pipeline located near the excavation that is no longer in use but that historically conveyed petroleum products from barges located in the nearby bay to the Washington Veterans Home in Retsil, WA; and WHEREAS, the City has incurred costs of $71,763.24 to investigate the nature and extent of the contamination and to remove and dispose of the contamination at a properly licensed landfill; and WHEREAS, the City has requested reimbursement of its costs from the Department and the Department has agreed to provide payment subject to the conditions set forth below; now, ·therefore, In consideration of the terms and conditions set forth below, the parties agree as follows: 1. Payment of City's Costs. The Department shall pay to the City the sum of $71,763.24, receipt of which the City hereby acknowledges, as and for the costs and expenses, including attorney's fees, that the City has incurred to investigate, remediate, and dispose of the soil contamination discovered in March 2004 at the wastewater treatment facility. 2. Disputed Claim. The City acknowledges that the payment received from the Department is not an admission of liability and that the monies are being paid solely for the purpose of settling and compromising a disputed claim. 3. Release. The City releases, indemnifies, and holds harmless the Department, its employees, representatives, elected officials, agents, and assigns from any and all claims, demands, causes of action, costs of expenses, either direct or indirect, arising from the investigation, remediation, and disposal of hydrocarbon contamination discovered in March 2004 at the City's wastewater treatment facility. 4. City's Warrant. The City warrants that as of the date of signing it is not aware of any further hydrocarbon contamination of its property located at the wastewater treatment facility adjacent to the Washington Veterans Home in Retsil, WA. 5. Governing Law. The parties agree that this Agreement shall be interpreted and governed by the laws of the State of Washington. Venue shall be in Kitsap County except by mutual agreement of the parties. 6. Modification and Amendments. No amendments or modifications relating to the subject matter of this Agreement shall be binding and enforceable unless in writing and signed by the affected parties hereto. 7. Entire Agreement. This Agreement sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and may not be modified or amended except as provided in Paragraph 5 above. 8. Attorney's Fees. Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorney's fees and costs in such litigation, which shall be determined by the court. 9. Authority of Parties. Any individual signing this Agreement on behalf of an entity represents and warrants that such individual has authority to do so and, upon such individual's execution, that this Agreement shall be binding upon and enforceable against said entity. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year set forth above. CllY OF PORT ORCHARD By: /(~'( /Ji $' ,. ;1--b4./l Kim E. Abel, Mayor ATTEST: APPROVEDASTOFORM APPROVEDAS TO FORM: By ~¥J~~ Loren D'. Combs, City Attorney \ / G .,~, 4~, ) 11 ,~, .•