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HomeMy WebLinkAboutLW07-309 - Original - Terry & Teresa Wilson & Kent 256, LLC - Settlement Agreement - 08/21/2007 ORIGINAL SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement') is made and entered into this 21 st day of August,2007, by and between TERRY and TERESA WILSON, and KENT 256, LLC ("Plaintiffs"), and the CITY OF KENT, including all elected officials, various department heads, and employees ("the City"). RECITALS A. Plaintiffs own and/or are developers of residential property located in the City of Kent,at 13403 SE 256 h St., King County, Washington(the"Property"). B. In 2006, Plaintiffs submitted, to the City of Kent, an application to rezone the Property from SR 4.5 to SR 6 (the"Rezone Application"). C. In October of 2007, the Kent Hearing Examiner conducted a public hearing on the rezone. On October 25, 2006, the Kent Hearing Examiner issued his Findings, Conclusions and Recommendation, recommending approval of the rezone application. D. Pursuant to the Kent Municipal Code, the Hearing Examiner's recommendation on a rezone application must be considered by the Kent City Council at a closed record hearing. E. On November 21,2006, the Kant City Council conducted a closed record hearing on the Rezone Application and, at the conclusion of that hearing, denied the Rezone Application. Resolution No. 1745, denying the Rezone Application,was passed on December 12, 2006. F. On or about December 29, 2006, Plaintiffs filed a Summons and Land Use Petition Act (LUPA) appeal pursuant to Ch. 36.70C RCW, and Complaint for Damages, in the Superior Court for King County, Cause No. 06-2-40615-0 KNT (the "LUPA Petition and Complaint"). G. After a LUPA hearing, the Superior Court ordered the City to grant the Plaintiffs' Rezone Application (the "LUPA Order"). In exchange for the mutual promises included in this Agreement, the City will forego an appeal of the LUPA Order, City staff will present an ordinance granting the Rezone Application to Council, and will expedite review of the related Short Plat Application for the Property. H. The parties desire to enter into this Settlement Agreement in order to provide for the full settlement and discharge of all claims by the Plaintiffs which are or might have been made against the City in the Complaint,upon the terms and conditions set forth herein. (00%56io.uoca)Settlement Agreement and Release—Page 1 of 7 (Between Terry and Teresa Wilson/Kent 256`h and City of Kent) (August 21, 2007) e AGREEMENT The parties agree as follows: 1. Release and Discharge. a. In consideration of the agreements outlined in Sections 2 and 3 and payment set forth in Section 6, below, Plaintiffs hereby release and forever discharge the City from any and all past, present, or future claims, demands, obligations, actions, causes of action, claims, rights, damages, costs, attorneys' fees, losses of services, expenses and compensation of any nature whatsoever, whether based on tort, contract, civil rights law, or other theory of recovery, which the Plaintiffs now have, which are, or might have been, the subject of the LUPA Petition and Complaint, including any future claim of Plaintiffs' representatives or heirs, which have resulted or may result from the alleged acts or omissions of the City as set forth in the LUPA Petition and Complaint. This release and discharge shall also apply to the City's past, present, and future officers, attorneys, agents, servants, representatives, employees, predecessors and successors in interest, and assigns, and all other persons, firms, or corporations with whom any of the former have been, are now, or may hereafter be affiliated. b. This release is fully binding and constitutes a complete settlement by the Plaintiffs and the City,their heirs, assigns, and successors. 2. No Appeal of LUPA Order. The City shall not appeal the LUPA Order or take any other court or administrative action contrary to the terms of this Agreement. 3. Approval of Rezone Application and Review of Short Plat. City stall shall present an ordinance granting the Rezone Application to the City Council at its meeting on August 21, 2007. City staff shall issue a staff report on the related short plat application for consideration at the September 6, 2007, Short Plat Committee meeting. The City shall use its best efforts to issue the Short Plat Committee's decision in a timely manner. 4. Expedited Review of Final Engineering/Civil Construction Drawings. The City shall review the Final Engineering/Civil Construction Drawings for the proposed short plat development on the Property in an expedited manner. This paragraph shall inure to the benefit of any purchaser of the Property to the extent the purchaser, rather than the Plaintiffs, takes over efforts to develop the Property. 5. Dismissal of Pending Lawsuit. In further consideration of the payment set forth in Section 6, below, Plaintiffs agree to dismiss, with prejudice and without fees, the LUPA Petition and Complaint, within ten (10) days after the effective date of an ordinance approving the Rezone Application. (oommi000ca)Settlement Agreement and Release—Page 2 of (Between Terry and Teresa Wilson/Kent 25e and City of Kent) (August 21,2007) 6. Denial of Liability. It is understood and agreed to by the parties that this settlement is a compromise of a disputed claim, and the payment is not to be construed as an admission of liability on the part of the City, by whom liability is expressly denied. It is further agreed that any payment or other concession/release made in this Settlement Agreement shall not be construed or asserted as an admission of liability,wrongdoing, or fault by any party. 7. Payment. In consideration of the release and discharge set forth in Section 1, above,the City agrees to pay Plaintiffs the sum of$60,000 (Sixty Thousand and 00/100 Dollars), within 10 days after receipt from Plaintiffs of a completed City Vendor Set-Up Form and Plaintiffs' dismissal of the LUPA Petition and Complaint. The settlement check shall be made payable to Terry and Teresa Wilson and shall be delivered to the attention of Terry and Teresa Wilson at 945 N. Central, Ste. 104, Kent,WA 98032. 8. Attorneys' Fees. All parties hereto shall bear all attorneys' fees and costs incurred by them arising from the actions of their own counsel in connection with this claim, this Settlement Agreement, and the matters and documents referred to herein. 9. Governing Law. This Settlement Agreement shall be construed and interpreted in accordance with the laws of the State of Washington. 10. Additional Documents. All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Settlement Agreement. 11. No Third-Party Beneficiaries. Except as may be expressly provided herein, this Settlement Agreement is for the benefit of the parties hereto only and is not intended to benefit any other person or entity, and no person or entity not a party to this Settlement Agreement shall have any third-party beneficiary or other rights whatsoever hereunder. 12. Severability/Savings Clause. Should any part of this Settlement Agreement or any provision contained in this Agreement be rendered or declared invalid, the invalidation of such part or portion of this Agreement shall not invalidate the remaining portions thereof. The remaining parts and provisions of this Agreement shall remain in full force and effect. 13. Modifications by Written Agreement Only. The obligations in this Settlement Agreement may be modified only by written agreement of the parties; signed by duly authorized representatives of each of the settling parties. Any such modification shall not affect any other provision of this Settlement Agreement. toos656i000cz)Settlement Agreement and Release—Page 3 of 7 (Between Terry and Teresa Wdson/Kent 256'h and City of Kent) (August 21,2007) 14. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the parties. This Settlement Agreement is fully integrated and constitutes the complete and final agreement between the parties. All previous agreements, offers, counteroffers, and negotiations are merged herein. There are no other or further agreements which modify the terms of this Settlement Agreement. This Settlement Agreement cannot be modified or amended in any way (except in writing as set forth in Section 13,above). 15. Authority to Bind. In executing this Settlement Agreement, each party acknowledges that the person or persons signing on his/herfits behalf have authority to bind the party he/she/it represents. Each party further represents that the person or persons signing on his/her/its behalf are competent and of lawful age, have been fully advised by counsel in connection with the execution of this Agreement,and that such persons do so freely and voluntarily. 16. Obligation of Good Faith and Fair Dealing. The parties agree that each of the parties is giving up certain rights, claims, and defenses in executing this Settlement Agreement, and each party hereby agrees to act in good faith in carrying out their respective duties and obligations herein. 17. Headings Not Controlling. The paragraph headings included herein are for reference only and are not a part of this Settlement Agreement. The headings shall not control or alter the meaning of this Settlement Agreement as set forth in the text. M Equal Partieloation in Drafting. The parties have each participated and had an equal opportunity to participate in the drafting of this Settlement Agreement. No ambiguity shall be construed against any party based upon a claim that such party drafted the ambiguous language. 19. Effectiveness. This Settlement Agreement shall become effective immediately following execution by each of the parties. 20. Acknowledgement. The Plaintiffs and the City hereby acknowledge by their signature below that they have had the advice of counsel of their own choosing with regard to the meaning and intent of this Settlement Agreement, and that said counsel has explained the full legal import of this Settlement Agreement to them. KENT 256, LLC DATED: �-2 l o�J By Its: "e-"<Sz-4LS (Notary Acknowledgement Appears on Next Page) tows6io uocz}Settlement Agreement and Release—Page 4 of 7 (Between Terry and Teresa Wilson/Kent 256*and City of Kent) (August 21,2007) STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this 'L�sr day of Aug 2�007�be�rre�a`N�tary Public in to med for known to be the State of Washington, personally appeared M $ S of KENT 256 , a Washington limited liability corporation, who executed the foregoing instrument, and acknowledged it to be the free and voluntary act of said partnerslup, for the uses and purposes mentioned in this instrument, and on oath stated that he/she was authorized to execute said instrument. -Notary Seal Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above i"en. ' +4 Y._'it',lilllt ,i' i 'g\ON€aAt�ty� lu=eol�ARy ' ill"" y' o NOTARY PUBLIC',-MYnd for the State of Washington residing at ,t e7ITF n/A- �4// /lie t2 09 0 ,OZ My appointment expires /7— � 4 l9j1\Na��``� DATED: `�-2 I-o-) tJ� TERRY WILS N STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this 'j-) day of August, 2007, before me a Notary Public in and for the State of Washington,personally appeared TERRY WILSON,personally known to me(or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged it to be his/her free and voluntary act and deed for the uses and purposes mentioned in this instrument. -Notary Seal Must Appear Within This Box- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first a �I) �w � V. ',i/v tt \fig'\O €rbyti�9�'/ / _ =at �T A/¢y ,� / x �lllZ/S�� � 2 a'5 ' r - NOTARY PUBLIC,liiand for the State of Washington it 2'0ue\-`moo, =ti�� residing at /GK i :& h1A / N i O O9 '9riti ,,,, �IS' My appointment expires f7i / Qy 100565610DOC;2tSee greement and Release—Page 5 of 7 (Between Terry and Teresa Wilson/Kent 25e and City of Kent) (August 21,2007) r . ):rL DATED: ' i I o`7 TERESA WILSON STATE OF WASHINGTON ) )ss. COUNTY OF KING ) On this 2� day of August, 2007, before me a Notary Public in and for the State of Washington, personally appeared TERESA WILSON, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument and acknowledged it to be his/her free and voluntary act and deed for the uses and purposes mentioned in this instrument. -Ndary Seal Mist Appear Withm Tha Bax- IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year firsts eswt Ven. y. Kp � s t--\S\.aNn,p ON 01 AR`50 h �i NOTARY PUBL m d for the State of Washington N%, AU B��o, ��s residing at A My appointment expires too mia noc;2tSettlement Agreement and Release—Page 6 of 7 (Between Terry and Teresa Wilson/Kent 25e and City of Kent) (August 21,2007) DATED: y,�Zl CITY OF KENT By Thomas C. Brubaker,WSBA#18849 Attorney for City of Kent STATE OF WASHINGTON ) ss. COUNTY OF KING ) I hereby certify that on the day of August, 2007, I know or have satisfactory evidence that TOM BRUBAKER is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he is authorized to execute the instrument on behalf of the CITY OF KENT as its City Attorney, and such execution to be the free and voluntary act of such party for the uses and purposes mentioned in the foregoing instrument. -Notary Seal Must Appear Wid=Thus Bar- IN,, %#)WHEREOF, I have hereunto set my hand and official seal the day and year first Q-;� Wa p uc = NOTARY PUBLIC in d for the State of Washington residing at My appointment expires (ooms62o.Doc;2)Settlement Agreement and Release—Page 7 of 7 (Between Terry and Teresa Wilson/Kent 256m and City of Kent) (August 21,2007)