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HomeMy WebLinkAbout18-153 - Deja Vu - Public Safety Plan Settlement Agreement18-153 Council Approval 9/17/18 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Deja vu Tukwila, Inc. ("Deja Vu") and the CITY OF TUKWILA ("City"), a Washington municipal corporation ("the City"), collectively ("the Parties"), hereby enter into this Settlement Agreement, which shall become effective upon mutual execution by the Parties. I. RECITALS A. On November 6, 2017, the Tukwila City Council adopted Ordinance No. 2554, authorizing the City to acquire all property rights necessary to complete its Public Safety Plan Projects (the "Projects") through negotiation and/or the use of eminent domain, if necessary. B. On December 8, 2017, the City filed a Petition in Eminent Domain ("Petition") to acquire property located at 15011, 15015, and 15019 Tukwila International Boulevard, Tukwila, Washington, also known as King County Parcel No. 004100-0516 (the "Property"). The Petition is pending in the matter of City of Tukwila v. Hee Yoel Kang and See Jee Kang, et. Al., King County Cause No. 17-2-31727-6. C. Deja vu Tukwila, Inc., doing business as Deja vu, is a lessee on the Property and was served with the City's Petition on December 11, 2017. D. The City contends that: 1) the City is not required to pay Deja vu relocation assistance pursuant to state and federal law; and 2) Ordinances 2550 and 2554 are valid. Deja vu contends that: 1) Ordinances 2550 and 2554 are invalid; and 2) they are entitled to relocation assistance pursuant to state and federal law regardless of the validity of Ordinances 2550 and 2554. E. Deja vu has also filed a lawsuit against the City of Tukwila, which is pending in the United States District Court for the Western District of Washington as Deja vu Tukwila, Inc. v. City of Tukwila, Cause No. C 18-228 RSL. G. The Parties desire to resolve any and all issues related to the City's acquisition and vacation of the Property, and all claims and issues pending in King County Cause No. 17-2-31727-6 and U.S.D.C. Cause No. C18-228 RSL by entering into this Agreement. The Parties intend that this Agreement will fully resolve these matters and Deja Vu waives any and all rights to bring litigation related to the City's acquisition of the Property, the Projects, or relocation expenses. Notwithstanding the foregoing, the parties agree that nothing in this agreement waives Deja vu's claim to receive a portion of the just compensation for the property to be paid into the court registry by the City of Tukwila. NOW, THEREFORE, for and in consideration of obligations and exchange of promises set forth herein, the Parties agree as follows: II. AGREEMENT 1. City Payment. Subject to approval of City Council, City shall pay Deja Vu the sum of Three Hundred Fifty Thousand Dollars and No/100 ($350,000.00), which payment shall be made to Deja Vu as follows: (1) payment in the amount of $300,000 to be paid within ten (10) days of mutual execution of this Agreement; and (2) payment of the remaining balance of $50,000 to be paid within ten (10) days after Deja vu has vacated the Property and such vacation has been verified by the City, provided that all other settlement conditions have also been met and Deja vu has provided a completed W-9 to the City. The second payment shall not be made if Deja Vu has not vacated the Property by March 31, 2019, as required by Section 2 herein. Payments will be made by check made payable to Deja vu Tukwila, Inc. and mailed to: P.O. Box 2602, Seattle, WA 98111. If City Council approval of the agreement is not granted by September 20, 2018, this Settlement Agreement shall be null and void. 2. Possession and Rent. Deja Vu must cease operations and vacate the Property on or before March 31, 2019. If the City acquires title to the Property prior to March 31, 2019, and Deja Vu is still a tenant on the Property, the City agrees to enter into a lease agreement with Deja Vu for continued use of the Property through March 31, 2019, with a rent of $0.00 per month. Deja vu agrees to enter into a lease agreement with the City within fifteen (15) days of the date that the City acquires title to the Property. Deja Vu will be required to pay all insurance, utilities, and property maintenance expenses. The lease shall require Deja Vu to obtain commercial general liability written with limits no less than $1,000,000 each occurrence, and $2,000,000 general aggregate. The lease shall require that Deja Vu provide reasonable access to the Property upon two (2) days notice to Eric Forbes for the purpose(s) of permitting the City and its agents to conduct surveys, building assessments, and other related inspections so long as the City or its agents do not materially interfere with normal operation of Deja vu's business. The lease shall provide that Deja Vu may remain on the Property until March 31, 2019, provided the City has acquired the Property prior to that date. Deja Vu may terminate said lease at any time with fifteen (15) days' written notice to the City. Deja Vu agrees that it will not enter into any subleases relating to the Property. Until such time as the City has acquired title to the Property, Deja Vu will be responsible for abiding by the terms of his lease with the current owner of the Property. Once the City takes ownership of the property, but prior to March 31, 2019, City agrees Deja vu may remove any fixtures or other items from the property at their own expense. Should Deja Vu fail to vacate the Property by March 31, 2019, the second payment to be made by the City to Deja Vu under Section 1 herein shall not be made, and the City, in its sole discretion, may seek repayment of the initial payment made to Deja Vu under Section 1 of this Agreement. The City will consider any personal property left behind on the premises by Deja Vu as of March 31, 2019, to be abandoned property of no value. Deja Vu consents to having any such personal property, garbage, or waste disposed of by the City at City expense. Should Deja vu fail to vacate the premises by March 31, 2019, and the City has to take enforcement or other legal action to evict them from the property, Deja vu agrees to pay reasonable attorney fees and expenses incurred in such action. 3. Tax Liability. Deja Vu shall bear sole and exclusive responsibility for all tax liabilities and penalties, if any, which any taxing authority, federal or state, may ultimately determine to be owed by him for payments made pursuant to this Agreement. Deja Vu expressly acknowledges that the City has made no representations concerning the tax liability of the payments paid under this Agreement and therefore Deja Vu has not relied upon any such representations. 4. Participation in Condemnation Proceedings and Release. In exchange for the payments, reduced rent, and provided to Deja Vu under this Agreement, Deja Vu knowingly and voluntarily agrees to release and forever discharge the City (including its past and present officers, officials, directors, shareholders, employees and successors in interest) from all claims, demands, liabilities, and causes of action of any nature related in any way to the City's acquisition of the Property, the Project, relocation or other assistance under chapter 8.26 RCW or federal law, or arising from Deja Vu's current lease agreement with Hee Yoel and See Jee Kang whether the bases of such claims, demands, liabilities, and/or causes of action are currently known or unknown and whether such claims, demands, liabilities, and/or causes of action have accrued in the past or will first accrue in the future. Deja Vu its officers and agents, agrees not to contest public use and necessity of the Project or to otherwise interfere, directly or indirectly, with the Project (including but not limited to appeal of any Project permits). Prior to entry of a lease agreement between the parties, and upon two days notice to Eric Forbes, Deja vu shall allow the City reasonable access to the Property for the purposes of Project planning, studies, environmental assessments, survey work, and the like so long as the City or its agents do not materially interfere with normal operation of Deja vu's business. Deja vu further agrees to strike the Motion for Summary Judgment currently noted for September 14, 2018 in the matter of Tukwila v. Kang, et.al. And to stipulate to public use and necessity of the property in the same proceeding. Notwithstanding the foregoing, Deja vu expressly retains and does not waive its claim to an equitable portion of the amount to be deposited by the City into the court registry as just compensation for the property in the matter or Tukwila v. Kang, et. Al. 5. Dismissal of Federal Lawsuit and Release of Claims. In exchange for the foregoing payment Deja vu also agrees to enter into a stipulation for an order of dismissal with prejudice in the matter of Deja vu Tukwila, Inc. v. City of Tukwila, Cause No. C18-228 RSL within ten (10) days of execution of this Agreement. Deja vu further agrees to release and forever discharge the City (including its past and present officers, officials, directors, shareholders, employees and successors in interest) from all claims, demands, liabilities, and causes of action of any nature related in any way to the claims alleged in Deja vu's Second Amended Complaint for damages in U.S.D.C. No. C18-228 RSL, including all claims and causes of action related to or arising out of location or operation of Deja vu in the City of Tukwila, or the City's zoning or licensing regulations, whether based on State or Federal law. 6. Subleases and Assignment. Deja Vu affirms and acknowledges that it has no subleases in the tenant space it currently occupies. Deja Vu agrees not to enter into any subleases, and Deja Vu shall not assign or subcontract any portion of the services contemplated by this Agreement without the express written consent of the City. Subject to the provisions of Section 2 of the Agreement, Deja Vu will ensure that the Property is vacant on or before March 31, 2019. 7. No Admissions. This Agreement does not constitute an admission of liability by the Parties. In the event of future inquiries, the Parties agree not to disparage any other with respect to the subject matter of this Agreement. This paragraph does not preclude or otherwise impact the City's obligation to comply with the Public Records Act, nor does it preclude either party from seeking to enforce the terms of this Agreement. In any dispute resolution proceeding between the Parties in connection with this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees and costs from the other party. 8. Authority. The signatories to this Agreement represent that they have the full right and authority to enter into this Agreement on behalf of the Parties and the full right and authority to fully bind the Parties to the terms and obligations of this Agreement. Deja vu further represents affirms and acknowledges that there are no subleases to the tenant space it currently occupies, and Deja vu expressly agrees not to enter into any such subleases. 9. Counterparts. This Agreement may be executed in duplicate counterparts, in which case each executed counterpart shall be deemed to be an original and all counterparts together shall constitute one and the same instrument. Signed versions of this Agreement transmitted by facsimile copy or electronic mail shall be the equivalent of original signatures on original versions. 10. Entire Agreement; Venue; Attorneys' Fees. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement. No provision of this Agreement may be amended or modified except by written agreement signed by the Parties. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorneys' fees and costs of suit. 11. Knowing and Voluntary Execution. The Parties hereto enter into this Agreement knowingly, willingly, voluntarily, freely, and without any coercion. The parties have been advised to consult with an attorney concerning this Agreement and have had adequate opportunity to seek the advice of legal counsel in connection with this Agreement. 12. Disputes. The parties agree that, in the event disputes arise regarding interpretation or implementation of this Agreement, that The Honorable James P. Donohue will serve as final arbiter to decide such disputes, pursuant to such procedures as he shall deem appropriate. / / / / / / / / / AGREED TO BY: THE CITY OF TUKWILA By: David Cline City Administrator Deja vu Tukwila, Inc. By: Eric Forbes, President The United States District Court By: The norable James P. Donohue Date: Date: q./j t/j t5