2014/08/13 Council Agenda Packet

2 ti improvements for the combined system, including balancing risks and advantages of authorizing expensive projects with the attendant increases in the rate burden on City citizens. These policy decisions,including prioritization of capital projects and their costs,are reflected in part in recent decades in the City's Comprehensive Sewer Plan, adopted by City Council in 1999 and 2006. Accordingly,the City is upgrading combined sewers to address potential backups and overflows, but sewer improvements are expensive and take many years to complete; therefore, Everett, like more than 700 other communities nationwide, notwithstanding these efforts, will continue to have combined sewers in parts of the City for the foreseeable future. F. On August 29,2013, and September 6,2013,heavy rain storms hit the City. According to some calculations,these storms approached or exceeded 200-year storms. Regardless of the characterization of the storms,the storms were in excess of the capacity of the combined system and, at least in some places,the separated system as well. Consequently,some houses and other buildings experienced back-ups and flooding,resulting in property damage. G. The City has strong legal defenses against storm event claims, such as the claims from the storms of August 29,2013,and September 6,2013,for at least the following reasons: 1. Due to the nature of the storms,the storms constitute an"Act of God." Further,the policy decisions in connection with the capacity of the City's sewer and stormwater systems and whether to finance and build capital projects are discretionary decisions that cannot subject the City to liability,in accordance with the"discretionary immunity"doctrine. 2. Some claims concern damage to improvements that were not built with required building permits. 3. Some claims concern damage to improvements not allowed under the City's zoning code. 4. Some claims concern situations where the claimant was required to have a backwater valve pursuant to the Everett Municipal Code,but claimant did not install it. 5. Some claims concern property damage that arises at least in part because of acts or omissions of the claimant. H. Recognizing the unpredictability and expense of litigating the claims from the storms of August 29,2013,and September 6,2013,the City Council determined by Resolution 6658 adopted September 18,2013,upon the recommendation of the Mayor,to authorize the Mayor to direct City staff to compromise and settle the claims, in accordance with the terms of Resolution 6658. As with the settlements on claims paid after earlier storm events in past years, the City did not admit or otherwise acknowledge liability. I. In conjunction with the storm events of August 29,2013, and September 6,2013, the City received claims totaling more than$4,000,000. 7