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HomeMy WebLinkAboutCAG1996-0209 - Original - Anna and Steve Moody - Settlement Agreement Regarding 11116 SE 248th Street Demolition - 06/26/1996 SETTLEMENT AGREEMENT THIS AGREEMENT is made this date by and between the City of Kent, a Washington municipal corporation (the "City")and Anna and Steve Moody, husband and wife, ("Owners"). RECITALS WHEREAS, the Owners have a substantial beneficial or fee interest in real property located at 11116 S.E. 248th Street, Kent, Washington (hereinafter the "Property"), which is legally described in Exhibit A, attached hereto and incorporated herein by this reference; and WHEREAS, the Owners are the owners of a house which was moved onto the Property prior to 1994; and WHEREAS, the house was moved onto the property without permits and placed thereon without a foundation; and WHEREAS, on September 8, 1994, the City issued a Notice of Violation to the Owners for maintaining the vacant house in an unsafe condition and creating an accessible attractive nuisance to children; and WHEREAS, the Notice of Violation required the defendants to either repair, demolish, or remove the house by September 30, 1994, or face possible monetary penalties; and WHEREAS, on October 5, 1994, a hearing was held before the City Hearing Examiner on the violations alleged in the Notice of Violation; and WHEREAS, after the hearing, the Hearing Examiner issued an Order to the Owners on October 7, 1994, which required the Owners to take certain corrective action; and Page 1 of 6 WHEREAS, the Hearing Examiner's October 7, 1994 Order also directed that a$500.00 monetary penalty be assessed against the defendants for each day after December 31, 1994 that the Owners failed to complete the required corrective action; and WHEREAS, the Owners did not judicially appeal the Order as allowed by the Kent City Code; and WHEREAS, because the Owners did not initiate the work required by the Hearing Examiner's October 7, 1994 Order, the City filed a lawsuit against the Owners in King County Superior Court Cause No. 95-2-06377-2 on March 14, 1995, to enforce the Hearing Examiner's Order and to collect the accumulated monetary penalties; and WHEREAS, the City has moved for partial summary judgment in the pending Superior Court action, which is scheduled to be heard at 3:00 p.m. on June 23, 1996; and WHEREAS, the parties have decided to enter into an agreement for the settlement of the pending litigation, under the terms and conditions set forth herein, NOW, THEREFORE, in consideration of the following mutual promises and covenants, the City and Owners agree as follows: TERMS Section 1. Termination of Litigation. The parties hereby agree that if the terms and conditions of this Settlement Agreement are performed as set forth herein, the parties shall execute a Stipulation and Order of Dismissal in the pending King County Superior Court Cause No. 95-2-06377-2. Page 2 of 6 Section 2. Conditions of Settlement. The parties agree that this settlement is conditioned upon the Owners agreement to demolish the structure, building and foundation, which now exists on the Property, on or before June 21, 1996. The Owners further agree to remove and dispose of the structure, building and foundation and to leave the Property in a clean and vacant condition, on or before June 21, 1996. Section 3. Default. All of the terms of this Agreement are material, and a breach of a term or condition of this Agreement, or failure to timely perform a condition of this Agreement, shall subject the Owners to any remedy available to the City under law or equity, including, but not limited to: A. City's Demolition of the Structure and Foundation. The Owners agree that in the event that they breach any term of this Agreement, the Owners shall allow the City, its employees, officers, contractors, agents and representatives, free and unhindered access to the Property for the purposes of demolition of the structure, building and foundation, and removal and disposal of all portions thereof. The City shall be entitled to recover all of its costs of such demolition from the Owners in the pending litigation. B. Pending Litigation. The Owners agree that in the event that they breach any term of this Agreement, the pending litigation shall not be dismissed, and the City's summary judgment motion, now rescheduled for June 28, 1996 at 3:00 p.m. shall proceed as if this Agreement had not been executed. In the event of the Owners' breach, the pending litigation shall not otherwise be hindered, delayed, or prejudiced on any issue as a result of the execution of this Agreement. Page 3 of 6 Section 4. Notices. Any notices permitted or required under this Agreement shall be deemed given upon the date of personal delivery or 72 hours after deposit in the United States mail, first class postage fully prepaid, addressed to the City as follows: City of Kent 220 - 4th Avenue South Kent, Washington 98032 Attn: Code Enforcement Officer to the Owners: Steve and Anna Moody 16 Comstock Street Seattle, WA 98109 Section 5. Law Governing, Venue. This Agreement shall be governed and construed under the laws of the State of Washington. Venue of any resulting litigation shall be in King County Superior Court, King County, Washington. Section 6. Titles and Captions. All section titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context nor affect the interpretation of this Agreement. Section 7. Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. Any amendments to this Agreement must be in writing and signed by both party's duly authorized representatives. Section 8. Presumption. Both parties have been represented by attorneys and have had an equal opportunity in the negotiation and drafting of this Agreement. This Agreement or any section hereof shall not be construed against any party due to the fact that said Agreement or any section thereof was drafted by said party. Page 4 of 6 Section 9. Third Parties. Nothing herein shall be construed to benefit any third party, and shall provide no rights whatsoever to any third party. Section 10. Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance shall be held to be invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. Section 11. Indemnification. The Owners agree to defend, indemnify, and hold harmless the City of Kent, its officers, officials, agents, employees and representatives for any and all claims, losses, demands, actions, injuries, damages or liabilities of any kind or amount whatsoever, foreseen or unforeseen, fixed or contingent, liquidated or unliquidated, arising by reason of the City's (or the City's contractor's) demolition, removal and disposal of the structure and foundation on the Property. Section 12. ftresentations or Warranties. Each signatory to this Settlement Agreement represents and warrants that he or she has full power and authority to execute and deliver this Settlement Agreement on behalf of the entity or party for which he or she is signing, and that he or she will defend and hold harmless the other party and signatories from any claim that he or she was not fully authorized to execute this Settlement Agreement on behalf of the person or entity for whom he or she signed. Upon proper execution and delivery, this Settlement Agreement will have been duly entered into by the parties, will constitute as against each party a valid, legal and binding obligation, and will be enforceable against each party in accordance with the terms herein. Page 5 of 6 THE UNDERSIGNED HAVE READ THE FOREGOING SETTLEMENT AGREEMENT, HAVE CONSULTED WITH AN ATTORNEY REGARDING ITS MEANING AND ACKNOWLEDGE THAT THEY FULLY UNDERSTAND THIS AGREEMENT. DATED this day of 1996. THE CITY OF KENT OWNERS: By ANNA MOODY Its ATTEST: City Clerk STEVE MOODY APPROVED AS TO FORM: 0 e of the�ly"Attorney CAM133438.IAGR/FO051.040.001/BO051- Page 6 of 6 ELLIS, LI & MCKINSTRY A r r o a H e r s A r i n w D ogde,j,Murphy&Wallace 3700 First Interstate Center ` 999 Third Avenue June 25, 1996 Seattle, WA 981044006 206.682.0565 FAX: 206.625. 1052 VIA MESSENGER DELIVERY Ronald E. McKinstry Ms. Carol A. Morris Chi-Dooh Li Ogden Murphy Wallace iichael R. AKinstr, 2100 Westlake Center 1601 Fifth Avenue Jan Olson Seattle, WA 98101-1686 Daniel J. Ichinaga Nancy L. Cahill Re: City of Kent v. Moody Steven T O'Bon King County Superior Court Cause No. 95-2-06377-2 Douglas D. Osterloh Dear Ms. Morris Keith A. Kemper Heidi J.Abrams Enclosed please find the original Settlement Agreement Brian D. Ives signed by Mr. and Mrs. Moody. Would you please provide us a .Andrew J. Toles completed, conformed copy. Also, I am preparing a Stipulated Order of Dismissal. Did Eduard J. Lar5011 you want the Settlement Agreement to be referenced in the of Counsel Dismissal and made part of the record? Please advise. Thank you. William H. Ellis (19321994) Very truly yours, ELLIS L & McKINSTRY Keith A. Kemper KAK:ka. 791 Enclosure cc: Steve and Anna Moody SETTLEMENT AGREEMENT THIS AGREEMENT is made this date by and between the City of Kent, a Washington municipal corporation (the "City") and Anna and Steve Moody, husband and wife, ("Owners"). RECITALS WHEREAS, the Owners have a substantial beneficial or fee interest in real property located at 11116 S.E. 248th Street, Kent, Washington (hereinafter the "Property"), which is legally described in Exhibit A, attached hereto and incorporated herein by this reference; and WHEREAS, the Owners are the owners of a house which was moved onto the Property prior to 1994; and WHEREAS, the house was moved onto the property without permits and placed thereon without a foundation; and WHEREAS, on September 8, 1994, the City issued a Notice of Violation to the Owners for maintaining the vacant house in an unsafe condition and creating an accessible attractive nuisance to children; and WHEREAS, the Notice of Violation required the defendants to either repair, demolish, or remove the house by September 30, 1994, or face possible monetary penalties; and WHEREAS, on October 5, 1994, a hearing was held before the City Hearing Examiner on the violations alleged in the Notice of Violation; and WHEREAS, after the hearing, the Hearing Examiner issued an Order to the Owners on October 7, 1994, which required the Owners to take certain corrective action; and Page 1 of 6 WHEREAS, the Hearing Examiner's October 7, 1994 Order also directed that a$500.00 monetary penalty be assessed against the defendants for each day after December 31, 1994 that the Owners failed to complete the required corrective action; and WHEREAS, the Owners did not judicially appeal the Order as allowed by the Kent City Code; and WHEREAS, because the Owners did not initiate the work required by the Hearing Examiner's October 7, 1994 Order, the City filed a lawsuit against the Owners in King County Superior Court Cause No. 95-2-06377-2 on March 14, 1995, to enforce the Hearing Examiner's Order and to collect the accumulated monetary penalties; and WHEREAS, the City has moved for partial summary judgment in the pending Superior Court action, which is scheduled to be heard at 3:00 p.m. on June 23, 1996; and WHEREAS, the parties have decided to enter into an agreement for the settlement of the pending litigation, under the terms and conditions set forth herein, NOW, THEREFORE, in consideration of the following mutual promises and covenants, the City and Owners agree as follows: TERMS Section 1. Termination of Litigation.tom. The parties hereby agree that if the terms and conditions of this Settlement Agreement are performed as set forth herein, the parties shall execute a Stipulation and Order of Dismissal in the pending King County Superior Court Cause No. 95-2-06377-2. Page 2 of 6 Section 2. Conditions of Settlement. The parties agree that this settlement is conditioned upon the Owners agreement to demolish the structure, building and foundation, which now exists on the Property, on or before June 21, 1996. The Owners further agree to remove and dispose of the structure, building and foundation and to leave the Property in a clean and vacant condition, on or before June 21, 1996. Section 3. Default. All of the terms of this Agreement are material, and a breach of a term or condition of this Agreement, or failure to timely perform a condition of this Agreement, shall subject the Owners to any remedy available to the City under law or equity, including, but not limited to: A. City's Demolition of the Structure and Foundation. The Owners agree that in the event that they breach any term of this Agreement, the Owners shall allow the City, its employees, officers, contractors, agents and representatives, free and unhindered access to the Property for the purposes of demolition of the structure, building and foundation, and removal and disposal of all portions thereof. The City shall be entitled to recover all of its costs of such demolition from the Owners in the pending litigation. B. Pending Litigation. The Owners agree that in the event that they breach any term of this Agreement, the pending litigation shall not be dismissed, and the City's summary judgment motion, now rescheduled for June 28, 1996 at 3:00 p.m. shall proceed as if this Agreement had not been executed. In the event of the Owners' breach, the pending litigation shall not otherwise be hindered, delayed, or prejudiced on any issue as a result of the execution of this Agreement. Page 3 of 6 Section 4. Notices. Any notices permitted or required under this Agreement shall be deemed given upon the date of personal delivery or 72 hours after deposit in the United States mail, first class postage fully prepaid, addressed to the City as follows: City of Kent 220 - 4th Avenue South Kent, Washington 98032 Attn: Code Enforcement Officer to the Owners: Steve and Anna Moody 16 Comstock Street Seattle, WA 98109 Section 5. Law Governing, Venue. This Agreement shall be governed and construed under the laws of the State of Washington. Venue of any resulting litigation shall be in King County Superior Court, King County, Washington. Section 6. Titles and Captions. All section titles or captions contained in this Agreement are for convenience only and shall not be deemed part of the context nor affect the interpretation of this Agreement. Section 7. Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. Any amendments to this Agreement must be in writing and signed by both parry's duly authorized representatives. Section 8. Presumption. Both parties have been represented by attorneys and have had an equal opportunity in the negotiation and drafting of this Agreement. This Agreement or any section hereof shall not be construed against any party due to the fact that said Agreement or any section thereof was drafted by said party. Page 4 of 6 Section 9. Third Parties. Nothing herein shall be construed to benefit any third party, and shall provide no rights whatsoever to any third party. Section 1 . Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance shall be held to be invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. Section 11. Indemnification. The Owners agree to defend, indemnify, and hold harmless the City of Kent, its officers, officials, agents, employees and representatives for any and all claims, losses, demands, actions, injuries, damages or liabilities of any kind or amount whatsoever, foreseen or unforeseen, fixed or contingent, liquidated or unliquidated, arising by reason of the City's (or the City's contractor's) demolition, removal and disposal of the structure and foundation on the Property. Section 12. Representations or Warranties. Each signatory to this Settlement Agreement represents and warrants that he or she has full power and authority to execute and deliver this Settlement Agreement on behalf of the entity or party for which he or she is signing, and that he or she will defend and hold harmless the other party and signatories from any claim that he or she was not fully authorized to execute this Settlement Agreement on behalf of the person or entity for whom he or she signed. Upon proper execution and delivery, this Settlement Agreement will have been duly entered into by the parties, will constitute as against each party a valid, legal and binding obligation, and will be enforceable against each party in accordance with the terms herein. Page 5 of 6 THE UNDERSIGNED HAVE READ THE FOREGOING SETTLEMENT AGREEMENT, HAVE CONSULTED WITH AN ATTORNEY REGARDING ITS MEANING AND ACKNOWLEDGE THAT THEY FULLY UNDERSTAND THIS AGREEMENT• DATED this �6 day of _4 1-1-� 1996. THE CITY OF KENT OWNERS: � 1 By ANNA MOODY Its ayor ATTEST: i City Clerk ST�<EVE MOODY APPROVED AS TO FORM: `40e of the i y orney CAM133438.1 AGR/F0051.040.001/B0051. Page 6 of 6