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HomeMy WebLinkAboutAD07-360 - Original - Signal Electric, Inc. - Settlement & Property Agreement - 12/14/2007 SETTLEMENT AND PROPERTY AGREEMENT THIS SETTLEMENT AND PROPERTY AGREEMENT (the "Agreement") is made and entered into this 14th day of December , 2007, ("Effective Date") by and between the City of Kent, a Washington municipal corporation (the "City"), and Signal Electric, Inc., a Washington corporation ("Signal") (the City and Signal are collectively referred to as the "Parties"): WHEREAS, Signal is the owner of real property located at 1001 - 3rd Avenue South, Kent, Washington (the "Property"), consisting of three lots numbered 1, 2 and 3, which are legally described in Exhibit 1 attached hereto. These lots were created through City of Kent Short Plat Number SPC-80-15, recorded under King County Recording No. 8011190809 (the "Short Plat"); and WHEREAS, on September 20, 1999, as part of a proposal to develop Lot 3 of the Property, Signal's predecessors in interest and the City executed a Sensitive Area Easement, recorded under King County Recording No. 19991004001810, applicable to wetlands located on Lots 1 and 2 of the Property (the "Sensitive Areas Easement"). The Sensitive Areas Easement burdened all of Lots 1 and 2 of the Property; and WHEREAS, over the past several years, the Parties have been involved in various administrative and judicial actions concerning the extent of wetlands on Lots 1 and 2, work performed on Lots 1 and 2, and the validity of the Sensitive Areas Easement. These include three currently pending actions: 1) A formal request by Signal to the City for a wetland determination on Lots 1 and 2 pursuant to Kent City Code (KCC) 11.06.590(B) (the "Wetland Determination Request"); 2) An appeal to Division I Court of Appeals by Signal of Judge Mattson's decision in the consolidated LUPA appeals concerning a City enforcement action against Signal, King County Cause No 06-2-39362-7 KNT, consolidated with King County Cause No. 06-2-39335-0 SEA (the "Enforcement Action Appeal"); and 3) An action filed by the City against Signal in King County Superior Court, Cause No. 07-2-11954-0 KNT, and counterclaims filed by Signal therein (the "Quiet Title Action"). The Wetland Determination Request, Enforcement Action Appeal, and Quiet Title Action are together referred to hereinafter as the "Pending Actions." WHEREAS, the City and Signal each believe that it would prevail in the Pending Actions and any subsequent appeals and litigation, but at the same time recognize the desirability that existing disputes between the Parties be terminated without further expense or delay; NOW THEREFORE, IN CONSIDERATION of the mutual promises, covenants, and agreements contained herein, City and Signal agree as follows: SETTLEMENT AND PROPERTY AGREEMENT—Page 1 of 7 (between City of Kent and Signal Electric) ORIGINAL 1. Property Boundary Revisions and Property Transfers a. The Parties agree to move the eastern boundary line of Lot 1 east ninety-three feet (93') as shown on Exhibit 2 attached hereto and incorporated herein by this reference. This will create a new boundary line between Lots 1 and 2. The Parties agree to accomplish this as follows: 1) The City will prepare, process, and record, at its expense, a minor plat alteration per Kent City Code 12.04.225 (the "Alteration"). The application for the Alteration will seek to establish: (i) the new boundaries of Lots 1 and 2, ("Revised Lots 1 and 2"); (ii) amend Condition 2 of the Short Plat to allow use of Revised Lot 1 separate from Revised Lot 2, and to allow issuance of a separate building permit for Revised Lot 1; and (iii) impose a sensitive area covenant on Revised Lot 2 substantially in the form attached as Exhibit 3. 2) Signal shall have the option to terminate this Agreement if the Alteration imposes any substantive conditions other than those described in the preceding paragraph. 3) Signal shall also have the option to terminate this Agreement if the Alteration, as provided above, is not recorded by April 1, 2008. The City agrees, however, to use its best efforts to have the Alteration recorded by February 1, 2008. b. Revised Lots 1 and 2 shall be owned in fee simple by each Party respectively; Signal owns Revised Lot 1, City owns Revised Lot 2. C. Signal agrees to execute a Quit Claim Deed to the City to transfer ownership of Revised Lot 2 to the City in fee simple. 2. Terminating Sensitive Areas Easement on Lot 1 The City shall execute and record a document terminating the Sensitive Areas Easement as burdening any of Revised Lot 1. 3. Signal Development of Revised Lot 1 a. The City makes no warranty or guarantee regarding access or development property rights in the future for Revised Lot 1. b. The City agrees that wetland buffers from the City's proposed wetland restoration efforts on the Revised Lot 2 will not encroach on the Revised Lot 1 for ten (10) years from the effective date of this Agreement. C. The City agrees that there are no wetlands on the Revised Lot 1. SETTLEMENT AND PROPERTY AGREEMENT—Page 2 of 7 (between City of Kent and Signal Electric) 4. Revision to Utility and Storm Drainage Easement The Parties agree to execute an amendment to the Utility and Storm Drainage Easement, dated September 22, 1980, and recorded under King County Recording No. 8010020392, to allow the construction of a driveway across the surface of said easement between Revised Lot 1 and Lot 3. 5. Releases Each Party agrees to release the other from any and all claims, whether yet asserted or not arising from the wetland status, the existence of any wetland, and/or enforcement or interpretation of the Sensitive Areas Easement,upon the City's recording of the Alteration. 6. Binding on Successors and Assigns This Agreement shall be binding on the Parties' successors and assigns. 7. Dismissal of Pending Actions The Parties agree to dismiss all legal actions, administrative adjudications, hearings and appeals, and Superior Court and Court of Appeal actions, including but not limited to the Wetland Determination Request, the Enforcement Action Appeal, and the Quiet Title Action, upon the City's recording of the Alteration. This includes withdrawal of all wetland delineation submissions by or on Signal's behalf to City. 8. Miscellaneous a. Entire Agreement. This instrument and the attached exhibits comprise the entire agreement between the Parties with respect to the subject matter hereof and shall not be modified or amended in any way except in a writing signed by duly authorized representatives of the respective Parties or their successors in interest or assigns. b. Enforcement. The Parties retain all rights, legal and equitable, to enforce this Agreement provided to them under applicable law. C. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of this Settlement Agreement shall be in King County, Washington. In the event of any claim or suit involving this Agreement, each party shall be responsible to pay all its own legal costs and attorney fees. d. Headings. The headings and subheadings contained in this instrument are solely for the convenience of the Parties and are not to be used in construing this Agreement. e. Authority. The persons executing this Agreement on behalf of the respective Parties hereby represent and warrant that they are authorized to enter into this Agreement on the terms and conditions herein stated. SETTLEMENT AND PROPERTY AGREEMENT—Page 3 of 7 (between City of Kent and Signal Electric) f. Fair Interpretation. The Parties hereby represent and warrant that they had the opportunity to independently consult with legal counsel regarding this Agreement, that they have done so, and that they have executed this Agreement voluntarily and without fraud, duress, or undue influence. In the event it should be determined that any provision of this Agreement is uncertain or ambiguous, the language in all parts of this Agreement shall be deemed drafted by both Parties, in all cases, construed as a whole according to its fair meaning and not strictly construed for or against either Party. g. Severability. Should any provision of this Agreement be deemed invalid or unenforceable pursuant to a final determination of any arbitrator or court of competent jurisdiction, the Parties agree that the remaining provisions of this Agreement shall remain in full force and effect. h. Counterparts. This Agreement may be executed in counterparts, all of which shall be deemed an original as if signed by all Parties. i. Cooperation. Each of the Parties shall execute all other documents that may be necessary to carry out the terms of this Agreement. IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be executed the day and year first above written. CITY OF KENT, WASHINGTON, SIGNAL ELECTRIC, INC., a Washington municipal corporation a Washington corporation C- 12 v tt . S eft Cooke y: Je Vosberg l . M' r Title. Vice President P\CinINH,.\O—Fdee\I I74\S,p 1-1emenlAgc—Fu doc end P\Cnnl\Fdes\OpnFdee\1080\S\�e1SmlemeNAgeanemFuul doc SETTLEMENT AND PROPERTY AGREEMENT—Page 4 of 7 (between City of Kent and Signal Electric) EXHIBIT 1 LEGAL DESCRIPTION Lots 1, 2 and 3 as described and delineated on City of Kent Short Plat Recording Number 8011190809, being a portion of the Samual W. Russell donation Land Claim No. 41, in the North Half of Section 25, Township 22 North, Range 4 East, W.M., In King County, Washington. SETTLEMENT AND PROPERTY AGREEMENT—Page 5 of 7 (between City of Kent and Signal Electric) � � f EXHIBIT 2 301.21' --► 476.37' Existing Lot 1 Existing Lot 2 Existing Lot Configuration 394.21' 383.37' : 93' Revised Lot 1 Revised Lot 2 Future Lot Configuration N Not to scale SETTLEMENT AND PROPERTY AGREEMENT—Page 6 of 7 (between City of Kent and Signal Electric) EXHIBIT 3 SENSITIVE AREA TRACT DEDICATION OF A SENSITIVE AREA TRACT CONVEYS TO THE PUBLIC A BENEFICIAL INTEREST IN THE LAND WITHIN THE TRACT. THIS INTEREST INCLUDES THE PRESERVATION OF NATIVE VEGETATION FOR ALL PURPOSES THAT BENEFIT THE PUBLIC HEALTH, SAFETY AND WELFARE, INCLUDING CONTROL OF SURFACE WATER AND EROSION, MAINTENANCE OF SLOPE STABILITY, VISUAL AND AURAL BUFFERING, AND PROTECTION OF WATER QUALITY, PLANT ECOLOGY AND WILDLIFE HABITAT. THE SENSITIVE AREA TRACT IMPOSES UPON ALL PRESENT AND FUTURE OWNERS AND OCCUPIERS OF THE LAND SUBJECT TO THE TRACT THE OBLIGATION, ENFORCEABLE ON BEHALF OF THE PUBLIC BY THE CITY OF KENT, TO LEAVE UNDISTURBED ALL TREES AND OTHER VEGETATION WITHIN THE TRACT. THE VEGETATION WITHIN THE TRACT MAY NOT BE CUT, PRUNED, COVERED BY FILL, REMOVED OR DAMAGED WITHOUT APPROVAL IN WRITING FROM THE CITY OF KENT. THE CITY OF KENT RESERVES THE RIGHT TO INSTALL PUBLIC UNDERGROUND UTILITIES WITHIN THIS SENSITIVE AREA TRACT, AND TO ENTER AND PERFORM DRAINAGE SYSTEM MAINTENANCE, BUT IS REQUIRED TO RESTORE OR ENHANCE THE SENSITIVE AREAS DISTURBED UPON THE COMPLETION OF THE UNDERGROUND CONSTRUCTION, AND/OR DRAINAGE SYSTEM MAINTENANCE. THE CITY OF KENT ALSO RESERVES THE RIGHT TO ENHANCE THE SENSITIVE AREA TRACT VIA PLANTING NATIVE VEGETATION AND REMOVING NON-NATIVE OR INVASIVE VEGETATION. SETTLEMENT AND PROPERTY AGREEMENT—Page 7 of 7 (between City of Kent and Signal Electric)