HomeMy WebLinkAbout2574ORDINANCE NO. GR S
AN ORDINANCE of the City of Kent,
Washington, approving the SETTLEMENT AGREEMENT
in King County Cause No. 83-2-08289-7, City of
Kent v John V. Farrell, et ux., et al.
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1. That SETTLEMENT AGREEMENT entered in City of
Kent V. John V. Farrell, et ux., et al., King County Cause
No. 83-2-08289-7 on July 19, 1985, be and the same is hereby
ratified and confirmed.
Section 2. The City Attorney is authorized to execute
necessary orders confirming and implementing the settlement
agreement authorized in Section 1, above.
Section 3. Effective Date. This ordinance shall take
effect and be in force five (5) days from and after its passage,
approval and publication as provided by law.
ISABEL HOGAN, MAYO
ATTEST:
MARIE JE�VSEN, CITY CLER
APPROVED AS TO FORM:
11�
I (94LQa&-
P. STE N DiJULIO, TY ATTORNEY
PASSED the .- day of , 1985.
APPROVED the 6 day of C - , 1985.
PUBLISHED the day of , 1985.
I hereby certify that this is a true copy of Ordinance
No. , passed by the City Council of the City of Kent,
Washington, and approved by the Mayor of the City of Kent as hereo
indicated.
2820-120
- -_� (SEAL)
MARIE J SEN, CITY CLERK
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IN THE SUPERIOR. COURT OF WASHINGTON FOR KING COUNTY
CITY OF KENT, )
Plaintiff, )
Vs. )
JOHN V. FARRELL, et ux., et al.,)
Defendants. )
JOHN V. FARRELL, et ux., et al, )
Counterclaimants, )
Vs. )
CITY OF KENT, )
Respondent )
On Counterclaim. )
JOHN V. FARRELL, et ux., et al, )
Third Party Plaintiffs, )
Vs. )
ISABEL HOGAN, et al. )
Third Party Defendants. )
WILLIAM J. BENNETT, )
Fourth Party Plaintiff, )
)
Vs. )
ISABEL HOGAN, et al., )
Fourth Party Defendants. )
No. 83-2-08289-7
SETTLEMENT AGREEMENT
This Agreement is made this 19th day of July, 1985 among the
SETTLEMENT AGREEMENT - 1
MONTGOMERY. PURDUE, BLANKINSHIP 8 AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682-7090
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City of Kent, John V. Farrell and Leeann Farrell, husband and wife,
John W. McKenna, Jr. and William Bennett and their respective
counsel witnesseth:
1. RECITALS
1.1 This suit is now pending in which various issues are
presented including' the continuing validity of building permits
issued by the City for buildings on properties hereinafter described
and a claim by Farrells, McKenna and Bennett against the City for
damages and delays in the original issuance and subsequent purported
lapsing and cancellation of said permits.
1.2 Farrells now own the land for Buildings A and B as shown
on drawings entitled "Warehouse and Office Complex for John V.
Farrell" approved by the City building official on August 10, 1981
for which building permits 11137 and 11138 were issued the same day.
Copies of the cover sheet, Sheet A-1, and Site Grading and Storm
System Plan of said drawings are attached. Farrells also own the
land for Building 4 as shown on drawings referred to in Recital 1.3.
1.3 Bennett owns land on which Building 1, known as the
Superior Fire Protection Building, is located, built tinder a permit
issued by the City in 1978. Bennett also owns land for Buildings 2,
3 and 5 as shown on drawings entitled warehouses for Farrell and
Bennett at 22131 W. Valley Road, Kent, Washington 98031 approved by
the City building official on October 15, 1981 for which building
permits were issued on March 31, 1982 as follows: Building
2 - permit #11302, Building 3 - permit #11303, Building 4 - 11304,
Building 5 - 11305. Copies of cover sheet, Sheets A-1 and A-2 and
SETTLEMENT AGREEMENT - 2
MONTGOMERY. PURDUE, BLANKINSHIP Q AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE, WASHINGTON 98104
(206) 682 -7090
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Storm Drainage and Grading Plan are attached.
1.4 Bennett, the Farrells and McKenna are partners or tenants
in common as RFM Investors in property described on drawings enti-
tled "Warehouse and Office Park for BFM Investors 68th Avenue South
(West Valley Highway) and north of South 228th Street, Kent, Wash-
ington" as shown on drawings dated February 2, 1981, revised August
14, 1981, copies of which are attached. BFM Investors applied to
the City for a building permit to construct five buildings on said
land as shown on said drawings. In connection with that application
an issue arose as to the frequency storm (10 -year versus 100 -year)
the proposed development would have to be designed to handle. That
issue is now pending before the Court of Appeals of the State of
Washington, Division I in a case captioned John V. Farrell, et al.
v. City of Kent, Court of Appeals No. 12159-6-I (King County Cause
No. 81-2-17425-6).
1.5 At the time of issuance of the building permit for the
Superior Fire Protection Building (shown on the drawings for the
Bennett parcels as Building 1), the City specified landscaping
requirements along the perimeter of what are shown on those drawings
as the lots for Buildings 1, 2 and 3. With respect thereto, a case
is now pending in the Court of Appeals for the State of Washington,
Division I in a case captioned William Bennett d/b/a Superior Fire
Protection Co. v. City of Kent, Court of Appeals No. 13229-I (King
County Cause No. 81-2-11035-5).
1.6 By this agreement and stipulation the parties and their
counsel intend to settle all outstanding disputes between the Citv
SETTLEMENT AGREEMENT - 3
MONTGOMERY, PURDUE. BLANKINSHIP & AUSr�N
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682 7090
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of Kent on the one hand and Farrells, McKenna and Bennett on the
other. The agreement and stipulation is not intended to settle any
issues which may exist as between Farrells, McKenna and Bennett.
In consideration of the mutual covenants hereinafter set forth
the parties agree and their counsel stipulate as follows:
2. AGREEMENT AND STIPULATION
2.1 For five years from the date of this Agreement all of the
properties referred to in Recitals 1.2, 1.3, and 1.4 may be
developed in accordance with design criteria for handling surface
waters resulting from a 10 -year storm formula as shown on the
attached drawings. It is understood and agreed that the properties
which are the subject of this Agreement shall remain subject to and
liable for City of Kent drainage utility charges for the basin in
which they are located.
2.2 For five years from the date of. this Agreement Farrells,
McKenna and/or Bennett and/or their heirs or assignees shall be
entitled to begin construction of buildings in accordance with
permits issued and plans approved for Buildings A and B and
Buildings 2, 3, 4 and 5 as referred to in Recitals 1.2 and 1.3.
Construction shall be deemed to be commenced upon posting of an
inspection card, and entry of first inspection record by the
building official or inspector pursuant to Section 305 UBC (1979
edition). The Declaration of Nonsignificance previously issued by
the City in connection with construction of said buildings shall
remain in effect for said five years and the City shall charge the
owners no additional building permit fees if construction is begun
SETTLEMENT AGREEMENT - 4
MONTGOMERY. PURDUE, BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682 -7090
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within said five years.
2.3 Farrells, McKenna and Bennett or their heirs or assignees
as owners of the land for Buildings A and B and Buildings 2 through
5 and referred to in Recitals 1.2 and 1.3 shall not be required to
sign a no protest covenant with respect to proposed Local Improve-
ment District 306 nor any other local improvement district to be
formed for surface water management involving said properties. If
any of said Buildings A, B, 2, 3, 4, or 5 and/or any of the
buildings on the BFM parcel are built, the lot on which each is
situated shall be considered as "developed" for purposes of any such
LID assessment.
2.4 RFDESIGN
2.4.1 It is contemplated that the owners may wish to redesign
the buildings proposed for the sites of Buildings A, B, 2, 3, 4 and
5 and/or Buildings 1 through 5 as shown on the drawings for BFM
Investors, or that a new design of buildings for such sites may be
submitted to the City for review and approval. In that event all
City departments shall process such application or applications ex-
peditiously and in accordance with all ordinances now applicable to
said properties,including the existing M-1 zoning, copy of which is
attached, the 1979 edition of the Uniform Building Code and land-
scaping except for the special provisions set forth in Section 2.5
of this Agreement. Such review shall be completed by the City with-
in 45 calendar days after application. If the decision is disputed
by the owners or if no decision has been made by the City within 45
days after application, the owners may demand resolution of such
SETTLEMENT AGREEMENT - 5
MONTGOMERY. PURDUE. BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE, WASHINGTON 98104
(206) 682 7090
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issue by an independent arbiter whose decision shall be final.
Demand for such independent resolution of the issue shall be made by
the owner by letter personally delivered to the office of the City
Attorney and such written demand shall identify by name, address and
telephone number the owner's nomination of a proposed independent
arbiter. If within 10 days from the City Attorney's receipt of such
demand for independent resolution a mutually acceptable arbiter has
not been appointed, then the Presiding Judge of the Superior Court
of the State of Washington for King County shall make such appoint-
ment on application by any party. If the City action involves a
recommendation to a hearing examiner, the decision of such indepen-
dent arbiter shall become the recommendation of the City to that
hearing examiner. It is understood that this Agreement will not be
binding on such hearing examiner nor on persons who participate in a
hearing before such hearing examiner who are not parties to this
Agreement.
2.4.2 SUBSTANTIAL CHANGE IN DEVELOPMENT.
2.4.2.1 The provisions of this Agreement shall not be binding
upon the City of Kent and shall not confer rights upon the owners
should the owners substantially redevelop the property or substan-
tially redesign the plans referenced herein. Upon substantial re-
development or substantial redesign as provided and defined in this
section, owners shall be required to comply with all development
regulations of the City of Kent, including, but not limited to, zon-
ing, building, landscaping, and environmental review (including no
protest L.I.D. covenants for improvements in mitigation of identi-
SETTLEMENT AGREEMENT - 6
MONTGOMERY. PURDUE, BLANKINSHIP a AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682-7090
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fied impacts); PROVIDED, HOWEVER, that owners shall continue for the
five year period herein to be entitled to develop to the 10 -year
design storm standard.
2.4.2.2 Substantial redevelopment or substantial redesign
shall mean:
A. Increase in office, commercial or retail space
(nonwarehouse space) above the following allowances:
Buildings A & B 23,760 square feet;
Buildings 3 & 5 6,490 square feet;
Building 4 ..... 11,770 square feet;
Building 2 ..... 23,540 square feet;
BFM Buildings .. 48,704 square feet;
B. Any change in use or design that results in trip
(traffic) generation in excess of ten percent above trip generation
estimated for the referenced plans herein.
2.4.3 All uses shall comply with Section 15.04.170 Kent City
Code "Industrial Park District or Pll," and such other provision of
law .
2.4.4 Should increased building permit fees result from
redevelopment, owners shall be credited with building permit fees
previously paid. All other permits and licenses shall be obtained
and related fees paid, as required by law.
2.5 As set forth in Recital 1.5, Bennett is now required to
landscape the perimeter of the lot for Building 1 and portions of
the lots for Buildings 2 and 3 in accordance with plans previously
approved by the City. By April 30, 1986, Bennett shall be required
to complete insta.11atinn of said landscaping and related improve-
ments in accordance with judgment in the case referred to in Recital
SETTLEMENT AGREEMENT - 7
MONTGOMERY. PURDUE. BLANKINSHIP h AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE, WASHINGTON 98104
(206) 682-7090
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1.5, a copy of which is attached. If he does not, he shall pay the
City $100 per week as liquidated damages and the parties agree that
such damages will be difficult to calculate exactly and accordingly
that $100 per week is a fair and reasonable estimate of damages
which will be sustained by the City as a result of breach of said
covenant. The requirement for installation for landscaping along
the north boundary of the lots for Buildings 1, 2 and 3 may be
deferred until construction of Buildings 2, 3 and 5 or until five
years from the date of this Agreement whichever is earlier. Upon
completion of landscaping along the south and east boundaries the
City shall issue a certificate of occupancy for Building 1. In
addition to liquidated damages provided for herein, the City shall
be entitled to costs and attorneys' fees should provisions of this
paragraph require court enforcement.
2.6 Upon application the City shall grant a short plat
dividing the property in which buildings 4 and 5 are located in
accordance with the division of those properties ordered by the
court in the case captioned Blankinship v. Farrell and Bennett,
King County Cause No. 83-2-01865-0. The condition of said short
plat shall he only payment of all applicable fees and installation
of landscape buffer between buildings 4 and 5 which shall be
entirely on the property for building 4 and at the owner's cost.
2.7 Upon execution of this Agreement, grading and filling may
begin immediately on the sites for buildings A, B, 2, 3, 4, and 5
and may continue through the five-year period herein provided.
Owners shall keep streets and storm drains free from all materials
SETTLEMENT AGREEMENT - 8
MONTGOMERY. PURDUE. BLANKINSHIP A AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE, WASHINGTON 98104
(206) 682 7090
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and debris. There shall be no tracking of mud, dirt or other
substance on city streets. Owner shall maintain dust control and
shall comply with ordinance 2154, as now or hereafter amended. The
Department of Public Works shall have the authority to suspend such
grade and fill work upon failure to comply with the provisions of
this section.
2.8 LANDSCAPING.
2.8.1 Landscaping shall be installed and maintained as set
forth in the plans referenced herein. Type III landscaping as
provided in KCC 15.07.050.0 shall apply, except for Building l which
is subject to the provisions of Section 2.5 herein.
2.8.2 Twenty (20) feet of landscaping shall be installed on
West Valley Highway upon any site development; PROVIDED, HOWEVER,
that landscaping on parcel A and B and Parcel 3 and 4 may utilize
unimproved West valley Highway right of way until such time as West
Valley Highway is improved and widened. At the time of improvement
or wideneing of West Valley Highway, the City shall not compensate
owners for rer-oval of landscaping, and owners shall not he required
to provide additional landscaping beyond the remaining ten (10)
feet. Should owners determine to provide an additional ten (10)
feet or more of landscaping, the City shall give owners the right to
move and transplant landscaping from the right of way prior to road.
widening. Twenty feet of landscaping shall he maintained on West
Valley Highway on the BFM property as set forth on the referenced
plans.
2.8.3 All other landscaping set forth on the referenced plans
SETTLEMENT AGP.EEMF.NT - 9
MONTGOMERY. PURDUE. BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682 7090
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shall be a minimum standard, required for installation with each
building site.
3. BFM PARCEL
3.1 For five years from the date of this Agreement the prop-
erty of BFM Investors as referred to in Recital 1.4 may be developed
in accordance with a 10 -year design storm as set forth in the at-
tached drawings and in accordance with the existing M-1 zoning. If
permits are issued for any of the buildings in accordance with the
plan heretofore submitted to the City, building permit fees shall be
charged as set forth in the 1979 edition of the Uniform Building
Code with credit for amounts heretofore paid. If the plans are
changed, then the owner shall receive credit against such fees as
may be required in the amount of those heretofore paid. If within
the next five years permits are applied for for any of the five
buildings shown on the aforementioned drawings for BFM Investors,
the City shall issue a Declaration of Nonsignificance therefor ex-
cept as provided in Section 2.4.2. The owners shall sign a no pro-
test covenant with respect to formation of a local improvement dis-
trict for the development of 64th Avenue South along the west boun-
dary of the property of BFM Investors. Upon construction of 64th
Avenue South the City shall provide not less than five accesses or
curb cuts to the property from the street. The owners of the BFM
Investor property shall upon development of the property construct a
20 -foot -wide landscape strip along the west boundary of said prop-
erty adjoining 64th Avenue South.
3.2 Upon application the City shall grant a short plat
SETTLEMENT AGREEMENT - 10
MONTGOMERY. PURDUE. BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682 7090
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dividing the BFM parcel into two tracts so long as it is compatible
with the existing plans for the property. The owner shall pay all
applicable fees in connection therewith.
3.3 Before doing any grading or filling on the BFM Parcel, the
owners shall construct a sediment control pond on the southwest
corner of said property for control of surface water during contrac-
tion and said pond shall have filter fabric fencing across the out-
fall of said sediment pond. The owner shall not do any grading or
filling on the north 100 feet of the property. No grading or fill-
ing permits shall be required for the BFM parcel. Upon execution of
this Agreement grading and filling may begin immediately and may
continue through the five-year period herein provided. Owners shall
keep streets and storm drains free from all materials and debris.
There shall be no tracking of mud, dirt or other substance on city
streets. Owner shall maintain dust control and shall comply with
ordinance 2154, as now or hereafter amended. The Department of
Public Works shall have the authority to suspend such qrade and fill
work upon failure to comply with the provisions of this section.
4. RELEASE AND DISMISSAL OF CLAIMS
4.1 This Agreement shall constitute a release and discharge of
Isabel Hogan; William Richard Wolf.ert and Jane Doe Wolfert, husband
and wife; Ed Heiser and Jane Doe Heiser, husband and wife; Don E.
Wickstrom and Jane Doe Wickstrom, husband and wife; Gary Gill and
Jane Doe Gill, husband and wife; and the City of Kent, its officers,
employees and elected officials of and from all claims, demands,
damages in:
SETTLEMENT AGREEMENT - 11
MONTGOMERY. PURDUE. BLANKINSHIP R AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE, WASHINGTON 98104
(205) 682 7090
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4.1.1 John V. Farrell, et ux., et al v. The City of Kent, King
County Cause No. 80-2-03330-1;
4.1.2 City of Kent v. William Bennett dba Superior Fire
Protection Co., King County Cause No. 81-2-11035-5; and
Court of Appeals No. 13229-6-I;
4.1.3 John V Farrell, et ux., et al. v. City of Kent, King
County Cause No. 81-2-17425-6; and Court of Appeals No.
12159-6-I; and this cause;
4.1.4 City of Kent v. John Farrell, et ux., et al., King
County Cause No. 83-2-08289-7,
or otherwise arising from the subject matter of the above -referenced
actions. The Third Party and Fourth Party Complaints herein, as
amended, shall be dismissed. It is understood and agreed that this
is a full and final release in compromise settlement of all claims
of every nature and kind whatsoever against the Third and Fourth
Party Defendants, the City of Kent and its officers, employees and
elected officials.
4.2 The attorneys for the parties shall endorse and present to
the court for entry an order confirming this A.areement and requiring
all parties thereto to perform all duties required of each hereun-
SETTLEMENT AGREEMENT - 12
MONTGOMERY. PURDUE. BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
12061 682-7090
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4.1.2,
der. Cases referenced in Sections 4.1.1,/4.1.3 and 4.1.4 (this
cause) shall be dismissed without costs including dismissal of the
cases in the State Court of Appeals, herein referenced, including
upon remand, if any, dismissal of the cases in the Superior Court.
4.3 In the case of a dispute among the parties concerning the
terms, conditions or application of this Agreement, the dispute
shall be resolved through arbitration as provided in Section 2.4;
PROVIDED, HOWEVER, that upon failure of compliance with, or dispute
concerning provisions of Section 2.5, enforcement shall be through
Superior Court in this cause 83-2-08289-7.
5. All of the rights and duties of each of the parties shall
be binding on their respective successors, heirs, and/or assigns and
the covenants herein set forth shall run with the land as to both
benefits and burdens.
6. It is understood and agreed that this Agreement is subject
to approval of the City of Kent legislative authority.
Dat this and signed this 19th day of July, 1985. r7nl - - - - 11 6
� (-)�v
John 1 V." Fa"rre11
ann Farrell
iam Bewnegtt
SETTLEMENT AGREEMENT - 13
DaV id J. Hall
Attorneys -f_o William Bennett
MONTGO FRY, PURDUF, BLANKINSHIP
& AUS N
By
hn D. Blankinship, P. .
ttorneys for Farrell and
McKenna
MONTGOMERY. PURDUE, BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE, WASHINGTON 98104
(206) 682-7090
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SETTLEMENT AGREEMENT - 14
CITY OF KENT
By Arzz /z, m nc/ ' ` 9-L
. Ste en DiJulio
The City Attorney
KEATING, BUCKLIN & McCORMICK
By
Mark R. Bucklin
MONTGOMERY. PURDUE, BLANKINSHIP & AUSTIN
ATTORNEYS AT LAW
1515 NORTON BUILDING
SEATTLE. WASHINGTON 98104
(206) 682 7090