Loading...
HomeMy WebLinkAbout11-122 - Wells et al / Executors of Val Bain Estate - Settlement Agreement and Release11 -122 Council Approval 5/2/11 SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE is made and entered into as of the date of the last party signing below, by and between the Duane A. Wells and Gertrude A. Wells, husband and wife and the marital community comprised thereof, and Larry Magone, Executor of the Estate of Val Bain, Deceased (hereinafter "Property Owners" and the City of Tukwila (hereinafter "Tukwila" or the "City") regarding the Property known as King County Parcel No. 2954900420 (hereinafter referred to as "Subject Property"). 1. RECITALS A. Property .Owners filed a lawsuit against the City of Tukwila under King County Cause No. 09- 2- 38319 -7 KNT (the "Lawsuit alleging the City had breached the terms of a 1977 Deed. B. Tukwila denies and disputes the claims of Property Owners. C. Given the uncertainty and cost of litigation, Property Owners and Tukwila now desire to settle and resolve all claims relating to the Lawsuit and Subject Property without further expense or delay. II. AGREEMENT In consideration of the mutual promises and agreements contained herein, Property Owners and Tukwila agree to the following: 1. Payment to Pronerty Owners. In exchange for the release and other consideration described herein, Tukwila :shall pay to Property Owners the total sum of Fifty Seven Thousand Five Hundred Dollars and No /100 ($57,500:00). 2. Mutual Release. Property Owners and Tukwila, on behalf of themselves, their affiliates, successors and assigns, release and forever discharge all claims that were or could have been asserted in the Lawsuit, that arose prior to the date of this Agreement. This release includes but is not limited to all claims for attorney fees and costs PROVIDED, neither this Agreement or the .Development Agreement described below shall be considered a restriction of the, rights described in that certain 1977 Deed In Lieu Of Condemnation that is the subject of the .Lawsuit (the "1977 Deed The rights conferred by the Development Agreement shall be in addition to those described in the 1977 Deed. Tukwila agrees as a condition of this Settlement that the 1977 Deed is enforceable and in full force and effect. Page 1 of 4 Settlement Ageement and Release The City acknowledges that under the existing development regulations referred to in the Development Agreement that the area between the existing 40 ft. setback and the 100 ft. non disturbance zone can be used for access, parking, and, in addition, ancillary uses consistent with Tukwila Municipal Code TMC Section 18.44.140. 3. No Admission. This Agreement is not an admission of liability or wrongdoing by any party. 4. Dismissal of the Lawsuit. Upon payment by Tukwila as set forth in Section l the Lawsuit shall be dismissed with prejudice and without award of attorney fees or costs by or against either party. 5. Attorney's .Fees and Costs. Property Owners and Tukwila shall bear their own attorney's fees and costs in connection with the matters covered by this Agreement. 6. Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington. 7. Free Will. Property Owners and Tukwila hereby represent and warrant that they have entered into this Agreement of their own free will and in accordance with their own judgment and upon advice of their own legal counsel, and state that they have not been induced to enter into this Agreement by any statement, act or representation of any kind or character on the part of anyone except as expressly set forth in this Agreement. 8. Authority. The individual signatories to this Agreement represent that they have been duly authorized to execute this Agreement on behalf of the parties they purport to represent herein. 9. Amendments. This Agreement may not be amended or modified except by writing signed by the parties to be bound thereby, or signed by their respective attorneys as authorized. 10. Entire Agreement. This Agreement constitutes the final written expression of all the terms of this Agreement and is a complete and exclusive statement of the terms of the Agreement. In the event that either party resorts to litigation to enforce any term of this Agreement, the substantially prevailing party in any such litigation shall be entitled to an award of reasonable attorney fees and expert witness fees, together with actual court costs, expended in such litigation. 11. Counteruarts. This Agreement may be executed in. counterparts by one or more of the parties named herein and all such counterparts once so executed shall together be deemed to constitute one final. agreement, as if one document had been signed by all parties hereto; and each such counterpart, upon execution and delivery, shall be deemed a complete original, binding the parties to this Agreement. Faxed signatures shall be treated as originals. Page 2 of 4 Settlement Agreement and Release 12. Effectiveness. This Agreement shall become effective upon completion of the following items: a.) City's facilitation and allowance of left turn access to and from Fort Dent Way to and from the Subject Property. The attached Exhibit A at page 1 shows a schematic representation of allowed left turn movement. The attached Exhibit A at page 2 shows modification of channelization on Fort Dent Way to facilitate left turn access. Wells will not be required to make any further modification or changes to the channelization. b) City's modification of channelization to facilitate left turns to and from Interurban Avenue South to and from the Subject Property by providing a gap on Interurban Avenue South to facilitate left turn access. The attached Exhibit A at page 1 shows a schematic representation of allowed left turn movement. Wells will not be required to make any further modification or changes to the channelization. c) City Council approval of a Development' Agreement mutually acceptable to the parties. d) Payment of $57,500.00 to Property Owners as set forth in Section 1 above, paid no later than 30 days after Council approval of the Development Agreement. Exhibit A is "schematic only" to show left turn movements to and from the Subject Property allowed under the Development Agreement. Final access points will be located in accord with the 1977 Deed. As noted on Exhibit A. such exhibit is not intended by the parties to be a development plan, is not to scale, and is not intended to override the 1977 Deed, current Washington law or regulations described in the Development Agreement. 13. Captions. The captions contained in the paragraphs of this Agreement are for convenience of reference only and do not in any way limit, expand or modify the terms or provisions of this Agreement. 14. Successor and Assians. Because the terms and conditions of this Agreement concern resolution of claims relating to the Subject Property, this Agreement shall run with the land its terms and conditions shall inure to the benefit of and be binding upon the parties' respective successors, heirs and assigns. Page 3 of 4 Settlement Agreement and Release 15. Enforcement. The parties agree that damages are not an adequate remedy for breach of this Agreement, and that a party claiming breach is entitled to specific performance of this Agreement. Specific performance shall be in addition to, and not in lieu of, any other remedies available by law or equity. In the event that this Agreement is referred to by an attorney for enforcement, the prevailing party shall be awarded its costs and reasonable attorneys' fees incurred in the matter. 16. Motion To Continue Trial Date And Dismissal Acting through their respective counsel, the parties shall submit a motion to continue the trial date and upon performance of all acts required by this Agreement shall mutually execute a stipulated order of dismissal with prejudice of all claims in the Lawsuit. The dismissal with prejudice shall not affect any rights to future performance of the obligations under the 1977 Deed, CITY OF TUKWILA B y: Haggel tC r or DUANE A. WELLS Dated: I f 4' ;0 Dated: 1o1--3'a1l GERTRUDE A. WELLS Dated: LARRY MAGONE, Executor of the Estate of Val Bain Deceased Page 4 of 4 Settlement Agreement and Release Dated: 15. Enforcement. The parties agree that damages are not an adequate remedy for breach of this Agreement, and that a party claiming breach is entitled to specific performance of this Agreement. Specific performance shall be in addition to, and not in lieu of, any other remedies available by law or equity. In the event that this Agreement is referred to by an attorney for enforcement, the prevailing party shall be awarded its costs and reasonable attorneys' fees incurred in the matter. 16. Motion To Continue Trial Date And Dismissal Acting through their respective counsel, the parties shall submit a motion to continue the trial date and upon performance of all acts required by this Agreement shall mutually execute a stipulated order of dismissal with prejudice of all claims in the Lawsuit. The dismissal with prejudice shall not affect any rights to future performance of the obligations under the 1977 Deed. CITY OF TUKWILA By: Dated: Jim Haggerton, Mayor DUANE A. WELLS Dated: GERTRUDE A. WELLS Dated: LARRY MAGONE, Executor of the Estate of Val Bain, Deceased Dated: Page 4 of 4 Settlement Agreement and Release NOTE: Exhibit A is "schematic only" to 0 show left turn movements to i and from the Subject Property allowed under the Development Agreement. Final access points CZ Ix will be located in accord with the 1 977 Deed. Exhibit A is not intended by the parties to be a',�,, development plan, is not to scale, and is not intended to override the 1977 Deed, current Washington law or regulations r described in the Development Agreement. L r J or lus a 11 I i l 1 I r r r EXHIBIT PAGE _J_ OF 2- x