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Home My WebLink AboutPW1997-0302 - Original - City of Seattle - Kent Highlands Landfill Settlement - 12/29/1997 SETTLEMENT,.MUTUAL RELEASE AND INDEMNIFICATION AGREEMENT This settlement, mutual release, and indemnification agreement ("Agreement") is made between the City of Seattle, a municipal corporation ("Seattle"). and the City of Kent, a municipal corporation ("Kent"). Seattle sued several parties in the United States District Court for the Western District for Washington, Cause Number C96-0037C (the "Lawsuit"), seeking to recover monies spent and to be spent by Seattle to respond to releases of hazardous substances at the Kent Highlands Landfill in Kent, Washington("Landfill"). One of these parties is Kent, which Seattle alleges is liable pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9601 et seq., and the Model Toxics Control Act ("MTCA"), RCW 70.105D. AGREEMENT In consideration of the mutual promises made herein, and for other good and valuable consideration, Seattle and Kent agree as follows: 1. Payment to Seattle On or before December 30, 1997, Kent shall pay to Seattle the sum of One Million Two Hundred and Fifty Thousand Dollars ($1,250,000.00) as full and final settlement of Kent's alleged liability for past and future investigation and cleanup costs at the Kent Highlands Landfill. 2. Mutual Release Seattle and Kent and their agents, attorneys, employees, successors, and assigns, hereby release and forever discharge each other of and from any and all claims, demands, actions, suits, or proceedings of any kind or nature whatsoever, whether known or unknown, which either Seattle or Kent has had, now has, or hereafter may have or may assert against one another on account of or in anyway arising out of all actions, failures to act, events, occurrences, or circumstances of any kind that are the subject of the Lawsuit including but not limited to transportation of alleged hazardous substances to the Kent Highlands Landfill. This release is intended to dispose of all claims, actions for damages, indemnity, or contribution of any kind arising out of the facts and allegations that are the subject matter of the Lawsuit or that are based upon or related in any way to the presence of hazardous substances, petroleum products, environmental pollutants or contaminants or any other environmental conditions at or relating to the Landfill. 3. Dismissal of Lawsuit The parties will cause to be filed a Stipulated Order of Dismissal with Prejudice (or its functional equivalent)promptly after they execute this Agreement. 4. Indemnification Seattle agrees to indemnify, defend, and hold Kent (and its agents, employees, successors, and assigns) harmless from and against all claims (past,present and future), expenses, losses or liabilities of any kind or nature related to the release or threatened release of hazardous substances at the Landfill, including all third party claims, cross-claims and counterclaims currently pending and that may be later asserted in the above-referenced Lawsuit, except that this duty to defend, indemnify and hold harmless shall not apply to claims against Kent that are based on contract-based theories of indemnification. For purposes of this Agreement, contract-based theories of indemnification mean those claims based exclusively upon a contractual agreement between Kent and another person or entity whom Kent has agreed to indemnify. Provided Seattle accepts tender of any claim made pursuant to this paragraph, Seattle shall have no duty to indemnify Kent for fees and costs of attorneys retained by Kent, if Kent elects additional representation. Kent agrees to cooperate fully in any defense by Seattle of Kent, including providing to Seattle relevant information to rebut claims asserted against Kent that are defined in the first paragraph of this section 4. Kent agrees not to withhold any such relevant information based on attorney-client or work product privileges. Unless disclosure of the information is necessary or appropriate, Seattle shall prevent disclosure of information to the extent permitted by law. 5. General Provisions Notwithstanding the generality of the foregoing, this Agreement shall not alter any affirmative duty of either party pursuant to the following written agreements between the parties: (a) the Settlement Agreement dated August 6, 1986, in Midway Sand and Gravel, Inc. v. City of Seattle, King County Superior Court Cause No. 84-2-04204-4, and (b) the "Agreement for Transport of Leachate through the City of Kent to Metro's West Valley Interceptor Sanitary Sewer System," dated March 24, 1977. Nothing in this Agreement shall constitute or be interpreted, construed, or used as evidence of any admission of liability, law or fact, a waiver of any right or defense, or an estoppel against any other person not a party to this Agreement. This Agreement shall not be used for any purpose except to enforce the terms and conditions of this Agreement. This Agreement shall be binding upon the successors and assigns of Seattle and Kent. If any provision of this Agreement is held to be unenforceable for any reason. it shall be adjusted, rather than voided, if possible, to achieve the intent of the parties. If any portion of this 2 Agreement becomes unenforceable or void,the balance of the Agreement shall remain in full force and effect. If either Seattle or Kent commences an action to interpret or enforce any of the terms or provisions of this Agreement, the prevailing party in such action shall be entitled to its reasonable attorneys' fees, litigation expenses and costs, and other costs and damages arising from or related to such an action or breach of this Agreement. Seattle and Kent represent and warrant that they have the power and authority to enter into this Agreement. This Agreement shall be governed by, interpreted, and in all other ways construed in accordance with the laws of the State of Washington. Counsel for Seattle and Kent have reviewed and approved this Agreement, and Seattle and Kent have both consulted with their attorneys and have concluded that this is a fair and reasonable settlement. Seattle and Kent have each agreed to be responsible for the payment of their respective attorneys' fees and costs previously incurred in connection with the lawsuit. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. CITY OF SEATTLE CIT F KENT t By: By: Paul Reiter J c M is t-! c-- [Print name] Title: Director of Strategic Policy Title: K&-loa- Seattle Public Utilities Date: 1--- ( -I—q ) -'i —:— Date: 1 z`1 It`7 Approved as to Form: ichael Ros erger David N. Bruce Gregory S. 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