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HomeMy WebLinkAboutLW07-203 - Original - Charter Homes, Inc. - Settlement Agreement - 07/26/2007 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Settlement Agreement") is made and entered mto this 7.0 day ofAjt ,j_, 2007, by and between CHARTER HOMES. INC., NORMA L. ORME, MICHAEL CHAFFEUR and DARCI CHAFFEUR ("Plaintiffs"), and the CITY OF KENf, including all elected officials, various department heads, and employees ("the City'') RECITALS A. Norma Orme, and Michael and Darci Chaffeur are the owners of property generally located at 25410 132"d Avenue SE ("the Property") in the City of Kent. Charter Homes, Inc has entered into agreernents to purchase the Property. B. In April 2006, Charter Homes submitted, to the City of Kent, applications to rezone the Property from SR 4.5 to SR 6 and to subdivide the Property into 26 single family lots. C. In September, 2006,the Kent Hearing Examiner conducted public hearings on the rezone and subdivision applications On October 9, 2006, the Kent Hearing Examiner issued his report, iecommending approval of the rezone application and approving the subdivision application. D. Pursuant to the Kent Municipal Code, the Hearing Examiner's recommendation must be finally determined by the Kent City Council on a closed record decision. E. On November 7, 2006, the Kent City Council issued its final decision on the Charter Homes rezone application and denied the rezone F Charter Homes, Norma Orme and Michael and Darci Chaffeur initiated a Land Use Petition pursuant to RCW Ch 36 70C challenging the City Council's denial of the rezone application and seeking damages foi losses incurred as the result of the denial of the izone This action was Charter Homes, et al v City of Kent, KCSC No 06-2-38467-9KNT G. The parties desire to enter into this Settlement Agreement in order to piovide for the full settlement and discharge of all claims by the Plaintiffs which are or might have been made against the City in the Complaints, upon the terms and conditions set forth herein. AGREEMENT The parties agree as follows I 1. Approve Rezone. The Kent City Council shall adopt an ordinance, in a format approved by the City Attorney, rescinding the denial of the Charter Homes rezone and approving the rezone of the Property to R-6. 2. Expedite Review. The City of Kent agrees to expedite the review and approval of the final engineering plans and specifications for Charter Homes' subdivision of the subject property as follows: a All City Departments required to review and/or comment on any aspect of Charter Homes' engineering plans and specifications for the subject property shall provide their responses and comments to Charter Homes in writing within ten (10) working days of the submission of such plans and specifications to the City by Charter Homes and/oi its agents. b In the event that the review and comments of City Departments require that Charter Homes revise the engineering plans and specifications, all City Departments required to ieview and/or comment on the revised plans and specifications shall provide their responses and comments to Chartei Homes in writing within five (5) working days of the submission of such revised plans and specifications to the City by Chai ter Homes and/or its agents. C. Following completion of the review and approval process for the engineering plans and specifications, the City shall, within five (5) working days after Charter Homes submits any bonds or other documentation required prior to the start of construction, issue the requued approvals and permits necessary to allow Charter Homes to commence construction of the plat improvements for the subject property. d The City's permit fees for the expedited review process described in this section shall be assessed at the rate charged by the City foi normal review and approval of engineering plans. (In other words, there will be no surcharge for expedited review.) C. The City will not be liable for failure to strictly comply with the time constraints referenced in this section if failure is reasonably based on unforeseen events. 3. Release and Discharge. a. In consideration of the payment set forth in Section 6, below, Plaintiffs hereby release and forever discharge the City from any and all past, piesent, or future claims, demands, obligations, actions, causes of action, claims, iights, damages, costs, attorneys' ices, losses of services, expenses and compensation of any nature whatsoever, whether based on tort, contract, civil iights law, or other theory of recovery, which the Plaintiffs now have, which are, or might have been, the subject of the Complaints, including any futuic claim of Plaintiffs' iepresentatives 2 or heirs, which have resulted or may result from the alleged acts or omissions of the City as set forth in the Complaints. 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, films, 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 hens, assigns, and successors. 4. Dismissal of Pending Lawsuits In further consideration of the payment set forth in Section 6, below, Plaintiffs agree to dismiss, with prejudice and without fees, the Complaint identified herein, within five (5) days of the City's approval of the engineering plans for Chai ter Homes' subdivision of the property. 5. Denial of Liability. It is understood and agreed to by the paities 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 eoncession/relcase made in this Settlement Agieement shall not be construed of asserted as an admission of liability, wrongdoing, or fault by any party 6. Payment In consideration of the release and discharge set forth in Section 1, above, the City agrees to pay Plaintiffs the sum of$16,000.00 (Sixteen Thousand and 00/100 Dollars), within five (5) days of when the Complaint is dismissed, as set fortli above in Section 4 7. 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 ieferred to herein 8. Governing Law "Phis Settlement Agreement shall be construed and mterprpicted in accordance with the laws of the State of Washington. 3 9. Additional Documents. All patties 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 Agieement. 10. No Third-Party Beneficiaries. Except as may be expressly provided herein, this Settlement Agreement is for the benefit of the parties heicto only and is not intended to benefit any other person or entity, and no person or entity not a party to this Settlement Agieement shall have any third-party beneficiary or other rights whatsoever hereunder 11. 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 of portion of this Agreement shall not invalidate the remaining portions theicof The remaining parts and provisions of this Agreement shall remain in full force and effect. 12. Modifications by Written Agreement Only. The obligations in this Settlement Agieement may be modified only by written agreement of the pasties; signed by duly authorized representatives of each of the settling parties. Any such modification shall not affect any other provision of this Settlement Agreement. 13. 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. Theic are no other or further agreements which modify the terns of this Settlement Agieement. This Settlement Agreement cannot be modified or amended in any way (except in writing as set forth in Section 10,above). 14. Authority to Bind. In executing this Settlement Agieement, each party acknowledges that the person or persons signing on his/her/its behalf have authority to bind the party lie/she/it represents. Each party further represents that the person of 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. 4 15. ization of GoodFaith and Fair Dealina. 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. 16. 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. 17. Equal Participation 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. 18. Effectiveness. This Settlement Agreement shall become effective immediately following execution by each of the parties. 19. Condition. In the event the City Council does not pass the rezone ordinance contemplated in Section 1,above, by Monday, July 30, 2007, then this Settlement Agreement shall be null and void. 20. Acknowledgement. The Plaintiffs and the City hereby acknowledge by the signatures of their authorized representatives 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. CHARTER HOMES, INC.,NORMA ORME,MICHAEL AND DARCI CHAFFEUR 1 �L DATED: , r Robert D. Johns, 13A #7086 Attorney for Plaintiffs 5 DATED: ' CITY OF KENT By: Thomas C. Brubaker, WSBA 418849 Attorney for City of Kent K 1SHClweiaO6 1751sa-072407•Settlenre3x AgrLCamit doc I 6