City Auditor - City Recorder - Council Ordinance - 177072 The Boeing Company lawsuit settlement

SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Settlement Agreement and Mutual Release (the “Agreement”) is entered into this ____ day of November, 2002, by and among the City of Portland (the “City”), The Boeing Company (“Boeing”) and Cascade Corporation (“Cascade”):

Recitals

WHEREAS, the City owns and commenced operation in 1985 of a well field known as the Columbia South Shore Well Field (“Well Field”), which extends east-west approximately from Interstate 205 to Blue Lake Park and north-south approximately from the Columbia River to north of Sandy Boulevard;

WHEREAS, Boeing owns and operates a manufacturing facility at 19000 NE Sandy Boulevard in Gresham, Oregon (the "Boeing Facility"), which is located near the Well Field;

WHEREAS, Cascade owns and operates a manufacturing facility at 2201 NE 201^st Avenue, Fairview, Oregon (the “Cascade Facility”), which is located near the Well Field;

WHEREAS, the City has alleged that plumes of trichloroethylene (“TCE Plumes”) from the Facilities caused the City to suffer damages;

WHEREAS, the City initiated a lawsuit in the U.S. District Court for the District of Oregon in December 1999 against Boeing and Cascade to recover damages allegedly caused by the TCE Plumes, said action named City of Portland v. The Boeing Company and Cascade Corporation, CV 99-17671-AS (the “Action”);

WHEREAS, the City, Boeing and Cascade wish to settle their differences without further litigation:

Agreement

Now, therefore, in consideration of the terms and conditions set forth herein, and other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:

1. Authority. Each of the parties to this Agreement hereby represents, warrants and covenants that it has the full power and authority to execute, deliver, and perform this Agreement and has duly authorized the execution, delivery, and performance of this Agreement. Each of the undersigned agents of the parties hereto hereby represents and warrants his or her authority to sign this Agreement for such party. Specifically, the City represents and warrants that it has complied with all legal requirements, including public notice and hearing requirements necessary for it to execute this agreement with all necessary authority.

2. Payment. Boeing and Cascade shall pay the total sum of six million two hundred thousand dollars ($6,200,000). Of this amount, Boeing and Cascade shall be severally liable for payment of their several shares. Payments shall be delivered to the City not later than November 15, 2002.

3. Mutual Release of Claims Between the City and Boeing and Cascade. In consideration of the mutual promises and obligations set forth herein, the City, on the one hand, and Boeing and Cascade, on the other hand, release and forever discharge each other and each other's respective agents, successors, assigns, employees, officers, directors, and attorneys, and each of them (collectively the "Releasees"), of and from any and all claims, demands, damages, suits, rights, or causes of action of every kind and nature that the parties had, have or may have against the Releasees (or any of them) as of the date of this Agreement, including all acts and omissions of Boeing and Cascade up to the date of this Agreement, whether known or unknown, contingent or matured, foreseen or unforeseen, asserted or unasserted, including but not limited to, all claims for compensatory, general, special, consequential, incidental, and punitive damages, attorney fees and equitable relief relating to this Action or the Tort Claim filed against the City by Cascade Corporation, dated December 11, 2000. This release also includes any claims for alleged future loss of use of all or a portion of the well field or its capacity, lost revenues, lost minimum purchase penalties, or any other changes in the City’s relations with its wholesale customers arising out of or related to this Action.

4. Newly Discovered Facts. Each of the parties to this Agreement fully intends that the aforementioned releases be valid, effective, binding, and enforceable in accordance with their terms and the other terms of this Agreement, notwithstanding the possibility that a party may hereafter discover facts which, if such facts had been known by it as of the date of this Agreement, may have materially affected its decision to enter into this Agreement, and accordingly each of the parties hereto intentionally hereby waives the benefits of any state or federal law that would provide to the contrary.

5. Effective Date of Release and Dismissal of Lawsuit. The releases described herein shall be effective upon the City’s receipt of the settlement payments. Within eight (8) Court days of receipt of payment, the City shall submit to the Court a motion for dismissal, with prejudice, and without attorneys fees or costs of any kind, against Boeing and Cascade in the Action, pursuant to Fed. R. Civ. P. 41.

6. No Assignment of Claims. Boeing, Cascade and the City each agree that it has not transferred or assigned, and will not transfer or assign, to any other person or entity any of the actions, causes of action, claims, debts, costs, contracts, agreements, expenses, injuries, liabilities or damages released by them herein, and that any such transfer or assignment shall be null and void.

7. No Admission of Liability. Each of the parties to this Agreement understands and agrees that this Agreement is made solely in settlement of disputed allegations and denies liability for any of the alleged wrongs.

8. Voluntary Agreement. Each of the parties to this Agreement hereby declares and represents that it (i) has reviewed this Agreement with its attorneys, (ii) fully understands the terms and the legal and binding effect of this Agreement, (iii) enters into this Agreement with the consent and advice of legal counsel, and (iv) voluntarily signs this Agreement for the purpose of making a full compromise and settlement of the settled claims and the other matters discharged and released hereby.

9. Entire Agreement. Each of the parties to this Agreement represents that it has not relied on any promise, inducement, representation or other statement made in connection with this Agreement that is not expressly contained herein. This Agreement constitutes the entire agreement of the parties hereto relating to the subject matter hereof. There are no promises, terms, conditions, obligations, or warranties other than those contained or referred to in this Agreement. This Agreement supersedes all prior communications, representations, or agreements, oral or written, between or among the parties hereto relating to the subject matter hereof. Notwithstanding the foregoing, the parties acknowledge that statements made in conference with Judge Jelderks on November 6, 2002 are admissible evidence of the parties’ intent and the circumstances surrounding the settlement.

10. Modification and Waiver. This Agreement may not be amended or waived except in a writing executed by each of the parties hereto and making express reference to this Agreement.

11. Counterparts. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one agreement binding on all of the parties hereto, notwithstanding that all such parties are not signatories to the same counterpart.

12. Attorneys Fees. In the event of any suit, action, or arbitration to interpret or enforce the provisions of this Agreement, the prevailing party will be entitled to an award of its reasonable attorney fees incurred in such action or arbitration and in any appeal there from, in addition to all other remedies afforded the prevailing party.

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed and delivered by its duly authorized officer effective as of the Effective Date.

THE CITY OF PORTLAND THE BOEING COMPANY

By: By:
Name: Name:
Title: Title:
Date: Date:

THE CITY OF PORTLAND CASCADE CORPORATION

By: ___________________________ By: ___________________________

Name: _________________________ Name: _________________________

Title: __________________________ Title: __________________________

Date: __________________________ Date: __________________________