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AG 01-155DATE IN: I DATE OUT: I TO: CITY OF FEDERAL WAY LAW DEPARTMENT REQUEST FOR CONTRACT PREPARATION/DOCUMENT REVIEW/SIGNATURE ROUTING SLIP ORIGINATING DEPT./DIV: PQC'ICS/LQW 2. ORIGINATING STAFF PERSON: 4. TYPE OF DOCUMENT REQUESTED (CHECK ONE) ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE/LABORAGREEMENT ❑ PUBLIC WORKS CONTRACT ❑ SMALL PUBLIC WORKS CONTRACT (LESS THAN $200,000) ❑ PURCHASE AGREEMENT> (MATERIALS, SUPPLIES, EQUIPMENT) ❑ REAL ESTATE DOCUMENT 6. 3. DATE REQ. BY: ❑ SECURITY DOCUMENT (E.G. AG�EMENT & PERF/MAIN BOND; ASSIGNMENT OF F[JNDS IN LIEU OF BOND) ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ CONTRACT AMENDMENT AG#: ❑ CDBG � OTHER- SC'tt�C'111217t AQ/'L'C'111C'►lt PROJECT NAME: Ce(ebration Park - Aqreement to Modi fV Water Svstem Connection Chorqes NAME OF CONTRACTOR: Lakehaven Utifity District ADDRESS: TELEPHONE SIGNATURENAME: Steve H. Pritchett TITLE Genera( Counse( ATTACH ALL EXHIBITS AND CHECK BOXES ❑ SCOPE OF SERVICES ❑ ALL EXHIBITS REFERENCED IN DOCUMENT ❑ INSURANCE CERTIFICATE ❑ DOCUMENT AUTHORIZING SIGNATURE TERM: COMMENCEMENT DATE: Upon Exec Co1v1PLE`r1oN DATE: PERMANENT 9. TOTAL COMPENSATION $Fi f t�r Thousand Do((ars and No/ 100 ($50 OOO� - TI72�/ pQ�/ US (INCLUDE EXPENSES AND SALES TAX, IF ANY�(IF CALCULATED ON HOURLY LABOR CHARGE -ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES � NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED ❑ YES �NO IF YES, $ PAID BY: ❑ CONTRACTOR � CITY lO. CONTRACTREVIEW 11. CONTRACT SIGNATURE ROUTING ❑ LAW DEPARTMENT ❑ CITY MANAGER ❑ CITY CLERK ❑ SIGN COPY BACK TO ORGINATING DEPT. � ASSIGNED AG# O1-155 ❑ PURCHASING: PLEASE CHARGE TO: COMMENTS September 27, 2010: INITIAL/DATE APPROVED INITIAL/DATE APPROVED This contract has not previously been assigned an agreement number. For proper documentation/retention, a number has been assigned (01-155) and the contract will be scanned and fited with the Clerk's Office. 07/05 , t �41--1 SS � � SETTLEMENT AGREEMENT THIS AGREEMENT, entered into in duplicate, by and between the Lakehaven Utility District, a municipal corporation of the State of Washington (hereinafter "Lakehaven"), and the City of Federal Way, a municipal corporation of the State of Washington (hereinafter "Federal Way") WHEREAS, Lalcehaven is a special purpose district providing water and wastewater services within an approved service area generally located in South King County, and WHEREAS, Federal Way is a non-charter code city located generally within Lakehaven's service area, and WHEREAS, pursuant to Developer Extension Agreement No. 97-376 ("the Agreement"), Lakehaven provides water service to a parcel of park property ("Celebration Park") owned by Federal Way, and WHEREAS, Lakehaven Resolution No. 97-820 provides that Lakehaven will monitor actual water consumption for a period of up to five years to determine actual water system connection charges owing for a parcel of property connected to the water system, and WHEREAS, the parties have been unable to agree on the amount of water system connection charges properly owing for Celebration Park, and WHEREAS, wishing to avoid the expense and uncertainty of litigation over the amount of such connection charges, the parties have agreed to settle the dispute by written agreement, and WHEREAS, the parties believing that the terms and conditions for such settlement as expressed herein are fair and mutually beneficial, NOW THEREFORE, Be it agreed as follows: Within forty-five (45) days of the execution of this agreement, Lakehaven shall pay to Federal Way, the sum of Fifty Thousand ($50,000.00) Dollars, as and for an adjustment of the One Hundred Ninety Two Thousand, Four Hundred and Ten ($192,410.00) Dollars paid for the estimated water system Capital Facility Charges ("CFC") owing for Celebration Park. r� r� Y }' I C� • 2. For purposes of this Settlement Agreement, the parties acknowledge that in determining the initial payment of water system CFC's for Celebration Park, water consumption within the property was estimated to equal, on a volumetric basis, seventy-one (71) Equivalent Residential Units (ERU's). Final water system connection charges for Celebration Park shall be determined by water consumption within the park property, monitored for such purpose pursuant to the Agreement and the monitoring parameters described in Exhibit "A", attached hereto. 3. The parties agree that should it be determined that water consumption within the park exceeds 71 ERU's, additional CFC's, reflecting such excess consumption, shall be paid by Federal Way at a CFC rate agreed by the parties or otherwise established as set forth below. Unless the parties are unable to agree on the CFC rate, payment shall be due within forty-five (45) days of the date that written notice of the payment obligation is provided to the City. If the rate of the CFC to be paid is determined by means other than agreement, the payment shall be due within forty-five (45) days of the date of final determination of such rate. 4. In the event that water consumption within the Celebration Park is determined to be less than 71 ERU's, a refund of CFC's, reflecting such lower consumption, shall be made to Federal Way at a CFC rate agreed by the parties or otherwise established as set forth below. Unless the parties are unable to agree on the CFC rate, payment of any refund shall be due within forty-five (45) days of the date upon which it is determined that a refund is due. If the rate of the CFC to be refunded is determined by means other than agreement, the refund shall be due within forty-five (45) days of the date of final determination of such rate. 5. For purposes of this agreement, the parties agree that if they are unable to agree on the rate of the Capital Facilities Charge, the matter shall be determined by alternate dispute resolution procedures or, if no such process and/or forum can be mutually agreed upon, by a court of competent jurisdiction. 6. The parties agree that the CFC rate to be agreed upon, or otherwise determined, pursuant to this Agreement shall be no less than $1316.00 per Equivalent Residential Unit ("ERU") nor more than $1746.82 per ERU. 7. Other than as provided for herein, Federal Way agrees not to seek adjustment of the CFC rate for any property that is connected to the Lakehaven water system as of the date of this agreement. 8. The parties agree that, to the extent legally permissible, the matter and terms of the settlement herein shall remain confidential and each party and their representatives agree not to disclose the matter or terms of this agreement except as may be compelled under state law. 9. The parties further agree that the settlement of the matter of the disagreement over the connection charges due for Celebration Park herein is undertaken solely to avoid the 4-��� � � . • • expense and uncertainty of litigation over the disagreement and neither party admits any liability or wrongdoing of any kind associated with the collection or calculation of such connection charges. Lakehaven Utility District By Steven H. Pritchett General Counsel Date� � � I Approved as to form: 1 • _:�'/ = :�� - �.� City of Federal Way City Attorney : David Moseley City Manager Date �G��-� �, ��� ; .-_ `� � . • EXHIBIT "A" (Agreement to Modify Water System Connection Charges) For purposes of establishing the appropriate ERU adjustment, if any, to be made on the basis of water consumption monitoring implemented pursuant to this Agreement, the District will determine, within the five (5) year monitoring period, a twelve (12) consecutive month consumption period which is most representative of normal water use conditions within the property. In so determining the applicable consumption period, the District will attempt to isolate factors that may tend to cause consumption to vary from normal conditions, including, but not limited to: * water used during construction; * irrigation to establish new landscaping or wetland or other mitigation plantings; * abnormal occupancy rates; * abnormally wet or dry climatic conditions; * leaks in on-site water service facilities. The City is encouraged to implement conservation practices to reduce overall water consumption. A trend of reduction in water consumption attributable to water conservation practices and/or equipment will be considered justification in establishing the monitoring period as the last twelve (12) consecutive month period. To the extent that the full implementation of water conservation practices may cause the trend in reducing consumption to extend beyond the five (5) year monitoring period, the District, at its discretion, may extend the monitoring period for an additional three (3) year period to measure the impact of conservation. The District may also, at its discretion, extend the monitoring period for a three (3) year period to account for other factors which may adversely impact the District's ability to determine an accurate and representative consumption period.