HomeMy WebLinkAboutLW07-200 - Original - Cedar Pointe, LLC - Settlement Agreement - 08/22/2007 SETTLEMENT AGREEMENT
THIS AGREEMENT Is entered into between CEDAR POINTE, LLC, a limited
liability company of the State of Washington; Randy S. Goodwin and Sherri L.
Goodwin, husband and wife; William M. Goodwin, Jr. and Melanie A. Goodwin,
husband and wife; Bradley J. Goodwin, a single person; and William M. Goodwin, Sr.,
a single person (collectively "Cedar Pointe"); and the CITY OF KENT, a Washington
municipal corporation, ("City").
RECITALS
1. An application was filed on January 12, 2006, to rezone approximately
5.7 acres of property located at 25213, 25401 and 25231 136th Avenue Southeast, in
Kent, Washington, from the current zoning of SR-4.5 (Single-Family Residential, 4.5
units per acre) to SR-6 (Single-Family Residential, 6 units per acre) referred to as
the Cedar Pointe Rezone, #RZ-2006-1.
2. On November 7, 2006, the City Council adopted Resolution No. 1737
denying the Cedar Pointe rezone application. Cedar Pointe filed a Land Use Petition
Act appeal of this decision on November 22, 2006, King County Cause No. 06-2-
37166-6 KNT. After a hearing May 4, 2007, the Court found that there was not
sufficient information about which facts the City Council used to make its
determination that the rezone was not compatible with development in the vicinity.
The matter was remanded to the City Council for purposes of reviewing the record
and adopting findings and conclusions In accord with the Court's ruling.
3. The parties seek to reach an agreement regarding the rezone
application and to that end enter into the agreement provided below.
i
AGREEMENT
1. Rezone Ordinance. The City agrees to present to its Council for
consideration an ordinance regarding the Cedar Pointe rezone application in
substantially the same format as provide in the attached and incorporated Exhibit F'
"A". The remainder of the obligations in this Agreement are contingent on the
passage of such an ordinance. �1
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SETTLEMENT AGREEMENT - Page 1 of 5
(Re: Cedar Pointe Rezone) (August 7, 2007) P
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2. Plat Alteration. The City agrees to promptly process an alteration to
the Cedar Pointe plat, SU-2005-15, to add additional lot(s) allowed under the SR-6
density and applicable City code provisions such as the subdivision code, chapter V'
12.04; the zoning code, Title 15; and the critical areas code, chapter 11.06. This
alteration will consist of applications for plat alteration, lot line adjustment, and short I
plat. Cedar Pointe must file the applications, however, within four (4) months of the
date of this agreement. Additionally, so long as single family residential
development commences within five (5) years of the date of this agreement, the
"non-conforming lot of record" combining provisions of Kent City Code section
15.08.100(E)(2)(a)(1) will not apply.
3. Dismissal. Cedar Pointe and the City agree to execute an Agreed
Order of Dismissal in the same format as provided in the attached and incorporated
Exhibit"B".
4. Release. Cedar Pointe releases and forever discharges the City and its
agents, officers, directors, employees, attorneys and any and all other persons or
entities who have acted on its behalf from any and all claims, demands, warranties,
causes of action, obligations, damages, and any liabilities of any nature whatsoever,
whether or not now known, anticipated, suspected or claimed, which arise out of, are
based upon, or are in any way connected to Rezone Application, RZ-2006-1; and
King County Superior Court Cause No. 06-2-37166-6 KNT. Cedar Pointe
understands and agrees that it will not commence, maintain, or prosecute against
the City or its agents, officers, directors, employees, attorneys or any and all other
persons or entities who have acted on its behalf, any court action or other legal
proceeding that is based upon any of its alleged claims, demands, causes of action,
damages, liabilities, obligations, losses and expenses released in this section of this
Agreement. Cedar Pointe further understands and agrees that they will not execute
or seek to impose, collect or recover upon or otherwise enforce any ]udgment,
warrant or attachment against the City or its agents, officers, directors, employees,
attorneys or any and all other persons or entities who have acted on its behalf, on
account of or arising from any such claims, demands causes of action, damages,
liabilities, obligations, losses and expenses, except those arising from this
SETTLEMENT AGREEMENT— Page 2 of 5 \
(Re: Cedar Pointe Rezone) (August 7, 2007)
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Agreement, or those unrelated to Rezone Application, RZ-2006-1 and King County
Superior Court Cause No. 06-2-37166-6 KNT.
S. No Admission of Fault. Neither the terms of this Agreement, nor any
action taken under it will constitute or be construed as an admission by either party
of the validity of any of the claims or controversies or of any fault or wrongdoing on
its part. Neither the execution of this Agreement, the negotiations leading to its
execution, nor any action taken pursuant to its terms will be admissible for any
purpose in any proceeding, except a proceeding to enforce the terms of this
Agreement.
6. Costs and Attorneys' Fees. It is understood and agreed that each
party will be responsible for the payment of its own costs, attorneys' fees, and all
other expenses incurred in connection with this Agreement; the rezone and plat
applications, RZ-2006-1 and SU-2005-15; Superior Court Cause No. 06-2-37166-6
KNT; and all other related matters herein.
7. Indemnity and Attorneys' Fees. Should either party breach any of the
provisions of this Agreement, the breaching party shall indemnify and hold harmless
the other party from and against all claims, causes of action, obligations, damages
and liabilities, including court costs, consultants' fees, and attorneys' fees, arising
from or in connection with the breach. In any litigation for the breach of or to
enforce a provision of this Agreement, the prevailing party will also recover its costs,
non-statutory expenses, and attorneys' fees.
This h and enforced
8. Governing Law. s Agreement all b s a construed by a n orced in
accordance with the laws of the State of Washington.
9. Successors and Assigns. This Agreement will Inure to the benefit of
and be binding upon the successors and assigns of the parties, together with their
agents, officers, directors, employees, attorneys and any and all other persons or
entities who have acted on their behalves.
10. Authority to Execute the Agreement. The parties represent and
warrant that the have the sole right and exclusive author to execute this Q
Y 9 authority V
SETTLEMENT AGREEMENT— Page 3 of 5
(Re: Cedar Pointe Rezone) (August 7, 2007)
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Agreement and that they have not sold, assigned, transferred, conveyed, or
otherwise disposed of any claim or demand against the other party relating to any
matter covered by this Agreement.
11. Entire Agreement. The parties agree that the terms of this Agreement
are contractual and are not mere recitals. Each party further declares and
represents that no promise, inducement, or agreement not expressed herein has
been made by the other party to induce it to enter into this Agreement. This
Agreement constitutes the entire agreement between the parties as to its subject
matter and supersedes any and all representations, promises and understandings of
any kind, whether oral or written. The parties agree that this Agreement may not be
altered, amended, modified or otherwise changed except by a writing executed by
each of the parties.
12. Headings. The headings contained in this Agreement are for purposes
of convenience only and shall not be deemed to affect the meaning or interpretation
of any of the provisions of this Agreement.
13. Method of Execution. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
14. Each Party Drafted. Each party declares that prior to the execution of
this Agreement, it has apprised itself of sufficient information to intelligently exercise
Its judgment in participating in the drafting of, deciding on the contents of, and
determining whether to execute this Agreement. Both parties represent that the
contents of this Agreement have been explained to them by their counsel and that
this Agreement is entered into freely and voluntarily, upon the advice and with the
approval of their counsel.
15. Counterparts and Facsimile. This Agreement may be executed in any
number of counterparts, each of which shall constitute an original, and all of which
will together constitute one agreement. Either party may execute and deliver this
agreement by telephone facsimile or electronically by a .pdf file, and that signature B�
shall have the same force and effect as if executed in original.
SETTLEMENT AGREEMENT- Page 4 of 5
(Re: Cedar Pointe Rezone) (August 7, 2007)
CITY OF KENT: CEDAR POINTE, LLC.
By: _
ZE COOKE bILL WILLIAM N, WSBA #4304
Its: a r Attorneyfor Petitioners
Da y/07 Cedar Pointe, Li. and Goodwins
Dated: W74
APPROVED AS TO FORM:
GOODWINS:
By: By:
Kent Law Department N Y S. G 0
Dated: 1f
By: '"=
SHERRI L. GOODWIN
Dated:
By: c�rc
WILLIAM M. GOODWIN, JR.
Dated:
c- n
B 2�-
MELANIE A. 0 DWIN
Dated
By:
BRADLEY J. GOODWIN
Dated: S-7 -a7
WILLIAM M. GOODWIN, SR
Dated:
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S Uh
SETTLEMENT AGREEMENT— Page 5 of 5
(Re: Cedar Pointe Rezone) (August 7, 2007) n
EXHIBTT "A"
EXHIBIT "A"
Page 1 of 6
ORDINANCE NO.
AN ORDINANCE of the City Council of the City
of Kent, Washington, relating to land use and zoning,
specifically the rezoning of approximately 5.7 acres of
property located at 25213, 25401 and 25231 136th
Avenue Southeast, from SR-4.5 (Single-Family
Residential, 4.5 units per acre) to SR-6 (Single-Family
Residential, 6 units per acre). (Cedar Pointe Rezone,
#RZ-2006-1)
RECITALS
A. An application was filed on January 12, 2006, to rezone
approximately 5.7 acres of property located at 25213, 25401 and 25231 1361h
Avenue Southeast, in Kent, Washington, from the current zoning of SR-4.5
(Single-Family Residential, 4.5 units per acre) to SR-6 (Single-Family Residential,
6 units per acre). (Cedar Pointe Rezone, #RZ-2006-1).
B. The City's SEPA responsible official issued a Mitigated Determination
of Nonsignificance (MDNS) (#ENV-2005-68) for the proposed rezone on June 8,
2006.
C. A public hearing on the rezone was held before the hearing
examiner on September 6, 2006. On September 20, 2006, the hearing examiner
issued findings and conclusions that the Cedar Pointe Rezone is consistent with the
city's Comprehensive Plan, that the proposed rezone and subsequent development
activity would be compatible with the development in the vicinity; that the
proposed rezone will not unduly burden the transportation system in the vicinity of
the property with significant adverse impacts that cannot be mitigated; that
circumstances have changed since the establishment of the current zoning district
1 Cedar Pointe Rezone
EXHIBIT "A"
Page 2 of 6
to warrant the proposed rezone; and that the proposed rezone will not adversely
affect the health, safety, and general welfare of the citizens of the City of Kent.
D. On October 17, 2006, the City Council determined that the hearing
examiner's findings and conclusions were inconsistent with section 15.09.050(C) of
the Kent City Code, and denied the Cedar Pointe Rezone application. On November
7, 2006, the City Council adopted Resolution No. 1737, officially denying the Cedar
Pointe Rezone application.
E. On November 22, 2006, the applicant filed a Land Use Petition
Appeal with King County Superior Court, Case No. 06-2-37166-6 KNT. A hearing
was held on May 4, 2007, and on July 9, 2007, Superior Court Judge Deborah
Inveen issued an Order Granting Petitioners' Land Use Petition and remanding to
the City for further proceedings, which remanded to Council for purposes of
reviewing the record and adopting finding and conclusions in accordance with
Judge Inveen's Order.
I
F. On July 17, 2007, the City Council reviewed the closed record and
accepted the findings of the hearing examiner, and adopted the hearing examiner's
recommendation for approval of the Cedar Pointe Rezone from SR-4.5 to SR-6.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Incorporation of Recitals. The preceding recitals are
incorporated herein.
SECTION 2, - Rezone. The property located at 25213, 25401 and 25231
136th Avenue Southeast, in Kent, Washington consisting of approximately 5.7 acres
depicted in Exhibit "A" (marked "Vicinity Map"), attached and incorporated by this
reference, and legally described in Exhibit "B", attached and incorporated by this
reference, is rezoned from SR-4.5 (Single-Family Residential, 4.5 units per acre) to
2 Cedar Pointe Rezone
EXHIBIT "A"
Page 3 of 6
SR-6 (Single-Family Residential, 6 units per acre). The City of Kent zoning map
shall be amended to reflect the rezone granted above.
SECTION 3. - Severabrlity. If any one or more sections, sub-sections, or
sentences of this ordinance are held to be unconstitutional or invalid, such decision
shall not affect the validity of the remaining portion of this ordinance and the same
shall remain in full force and effect.
SECTION 4. - Effective Date. This ordinance shall take effect and be in
force five (5) days from and after its publication as provided by law.
SUZETTE COOKE, MAYOR
ATTEST:
BRENDA JACOBER, CITY CLERK
APPROVED AS TO FORM:
TOM BRUBAKER, CITY ATTORNEY
PASSED: day of , 2007.
APPROVED: day of 2007.
PUBLISHED: day of 2007.
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 hereon indicated.
(SEAL)
BRENDA JACOBER, CITY CLERK
P\Civil\ordinance\Remne-CedarPolnte-LUPAOrder do
3 Cedar Pointe Rezone
® EXHIBIT "A"
Page 4 of 6
SE 248TH Sr I MERIDIAN VALLEY
COUNTRY CLUB
SE 230
SE 23
o�
ST
SE 25X70 m
SE 2MTH ST <
� IT s
N�K LAKE
MERIDIAN
516
APPLICATION NAME. CEDAR POINTE EXHIBIT "A"
REQUEST- #RZ-2006-1 AND SU-2005-15
VICINITY AND SITE MAP
EXHIBIT "A"
Page 5 of 6
Beginning at a point in the east line of the southwest quarter of
the southwest quarter of Section 22, Township 22 North, Range 5
East, W.M. , which point is 432 feet north from the southeast corner
of the said southwest quarter of the southwest quarter of said
Section 22,
thence north along the said east line 558 feet;
thence west 404 feet,
thence south 498 feet;
thence east 177 feet,
thence south 60 feet;
thence east 227 feet to the beginning,
EXCEPT beginning 432 feet north of the southeast corner of the
southwest quarter of the southwest quarter of Section 22, Township
22 North, Range 5 East, W.M. , in King County, Washington;
thence north 22 feet;
thence west 227 feet:
thence south 22 feet;
thence east 227 feet to beginning;
EXCEPT beginning 492 feet north of a point 227 feet west of the
southeast corner of the southwest quarter of the southwest quarter
of Section 22, Township 22 North, Range 5 East, W.M in King
County, Washington;
thence north 24 feetr
thence west 177 feet;
thence south 24 feet;
thence east 177 feet to beginning.
and
EXHIBIT "B"
Page 1 of 2
y�
EXHIBIT "A"
Page 6 of 6
The north 155 feet of the east 281 feet of the north half of the
northeast quarter of the southwest quarter of the southwest quarter
of Section 22, Township 22 North, Range 5 East, W.M. , in King
County, Washington,
(ALSO KNOWN AS New Lot A as delineated on King County Boundary Lot
Adjustment No. L93L0041, recorded under King County Recording Number
9306021698)
EXHIBIT "B"
Page 2 of 2
e
w.
EXHIBIT "B"
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3
4
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
7 IN AND FOR THE COUNTY OF KING
8 CEDAR POINTE, LLC, a limited liability of the NO. 06-2-37166-6 KNT
State of Washington; Randy S. Goodwin and
9 Sherri L. Goodwin, husband and wife; STIPULATION AND AGREED ORDER FOR
William M. Goodwin, Jr. and Melanie A. DISMISSAL
10 Goodwin, husband and wife; Bradley J.
Goodwin, a single person; and William M.
11 Goodwin, Sr., a single person;
12 Plaintiffs/Petitioners,
13 vs.
14 CITY OF KENT, a Washington municipal
corporation,
15
Defendant/Respondent.
16
I. STIPULATION
17
COME NOW the parties herein, by and through their undersigned attorneys of record and
18
stipulate that the Land Use Petition Act appeal currently pending before the King County
19 Superior Court, should be dismissed with prejudice and without costs as to the Respondent CITY
20 OF KENT and as to the Petitioners, CEDAR POINTE, LLC. and all the Goodwins.
DATED this day of July, 2007.
21
WILLIAMSON LAW OFFICE
22
23 By:
BILL WILLIAMSON, WSBA #4304
24 Attorney for Petitioners Cedar Pointe, LLC
and Goodwins
25 STIPULATION AND AGREED ORDER OF DISMISSAL - TOM BRUBAKER
Page 1 Kent City Attorney
220 - 4 Avenue South
Kent, Washington 98032
P (253) 856-5770
F (253) 856-6770
1 TOM BRUBAKER
Kent City Attorney
2
3 By:
KIM ADAMS PRATT, WSBA #19798
4 Attorney for Respondent City of Kent
5
II. ORDER
6
THIS MATTER having come on duly and regularly before the Honorable Laura C. Inveen,
7
Judge of the King County Superior Court, upon the stipulation of the parties, and the court
8
having considered the Stipulation and the files and records herein, NOW, THEREFORE, IT IS
9 HEREBY
10 ORDERED, ADJUDGED AND DECREED that pursuant to CR 2A the Petitioners' Land
11 Use Petition Act appeal is dismissed with prejudice and without the award of costs to either
12 pa rty.
13 DATED this day of 2007.
14
15 HONORABLE LAURA C. INVEEN
16 Presented by:
17
CITY OF KENT
18
19
Kim Adams Pratt, WSBA #19798
20 Assistant City Attorney
21 WILLIAMSON LAW OFFICE:
22
23 Bill Williamson, WSBA #4304
24 P\Ciwl\Files\OpenFiles\1125\Step-DismissOrderLUPA,doc
25 STIPULATION AND AGREED ORDER OF DISMISSAL - TOM BRUBAKER
Page 2 Kent City Attorney
220 - 4"Avenue South
Kent, Washington 98032
P (253) 856-5770
F (253) 856-6770