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Home My WebLink About08-116 - Kim Mark / Kim Soon - Tukwila International Boulevard Clean-Up Costs Settlement Agreement 09-116 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 City of Tukwila (hereinafter "Tukwila" or the "City and Mark C. Kim and Soon S. Kim, husband and wife and the marital community comprised thereof (collectively, "Kim RECITALS A. Pursuant to chapter 70.105D RCW (the Model Toxics Control Act Tukwila filed a lawsuit against the owners of the property adjacent to the City's eastern right -of -way "ROW that borders Pacific Highway South/Tukwila International Boulevard to recover substantial clean -up costs associated with segregating, handling, and disposing of petroleum- contaminated soil and groundwater at the ROW. The amount of the clean up was $238,507.00. The City sought contribution for these clean -up costs from potentially liable owners and operators of the property adjacent to the City's ROW (the "Site Defendants Mark C. Kim and Soon S. Kim owned the Site from July 1989 to July 1996. Defendant Southgate Anderson, L.L.C. owned the Site from July 1996 to 2004. The City entered into a settlement with Southgate Anderson, L.L.C. for their proportionate share of the clean up, in the amount of $80,000.00. This amount was deemed reasonable as Southgate Anderson was a passive owner of the Site and did not operate a petroleum based business (gas station) on the Site, as did Kim. Tukwila's lawsuit against Kim is pending in the Superior Court of the State of Washington for King County, Case No. 06 -2- 23419 -7 KNT (the "Lawsuit B. In the Lawsuit, Kim denied and disputes the claims in the Lawsuit and filed a cross claim against Southgate Anderson, L.L.C. The City denied and disputes the counterclaims in the Lawsuit. C. Given the uncertainty and cost of litigation, Tukwila and Kim now desire to settle and resolve all claims relating to the Lawsuit without further expense or delay. AGREEMENT In consideration of the mutual promises and agreements contained herein, Tukwila and Kim agree as follows: Page 1 of 6 Settlement Agreement and Release http.// sz0139 .ev.mail.comcast.net/service /home /Settlement Agreement and Release FINAL -11 -4- 0 g. doc ?autih= co &loc= en_US &id= 4935 &part =2 1. Payment to Tukwila. In exchange for the release and other consideration described herein, and as partial reimbursement to Tukwila for petroleum- contaminated soil and groundwater clean up costs, attorneys' fees, costs, and expenses incurred in seeking reimbursement of clean up costs for the City's ROW, Kim shall pay Tukwila the sum of Twenty five Thousand and zero /100 Dollars (U.S. $25,000.00), in accordance with the terms of a Promissory Note executed contemporaneously herewith in the form set forth in Exhibit A attached hereto and incorporated herein by reference. 2. Release bv Tukwila. Tukwila, on behalf of itself, its affiliates and its successors and assigns, releases and forever discharges and covenants not to sue with respect to any and all monetary claims, rights, demands, and causes of action, whether known or unknown, liquidated or unliquidated (including attorneys' fees and costs), which Tukwila has, had, or could have asserted against Kim, their affiliates, their past or present officers, directors, agents, contractors, representatives or employees and their respective heirs, executors, or administrators and assigns, and that arose prior to the date of this Agreement and which relate to the matters that were raised or that the City could have raised in the Lawsuit. 3. Release bv Kim. Kim, on behalf of themselves, their affiliates and heirs, successors and assigns, releases and forever discharges and covenants not to sue with respect to any and all claims, rights, demands, and causes of action, whether known or unknown, liquidated or unliquidated (including attorneys' fees and costs), contingent or mature "Claims which Kim has, had, or could have asserted against Tukwila, its affiliates, its past or present officers, directors, agents, contractors, representatives or employees and their respective heirs, executors, or administrators and assigns, and that arose prior to the date of this Agreement and which relate in any way to the matters that Kim raised or could have raised in the Lawsuit. Kim represents to Tukwila, who relies thereon, that Kim does not intend to file bankruptcy at any time that could cause any payment made under this Agreement to be deemed a preference under the bankruptcy rules, regulations or statutes. Kim also represents and warrants to Tukwila that Kim has not assigned or transferred any interest in any of the Claims described and released herein. 4. No Admission. This Agreement is not an admission of liability or wrongdoing by any party. 5. Dismissal of the Lawsuit. Upon payment by Kim as set forth in Section 1, the Lawsuit shall be dismissed with prejudice and without costs or fees to either party. 6. Costs. Except as otherwise provided in Section 1 above, Tukwila and Kim shall bear their own costs as they were originally incurred in connection with the matters covered by this Agreement. Page 2 of 6 Settlement Agreement and Release http.// sz0139. ev .mail.comcast.net/service/home /Settlement Agreement and Release FINAL -11-4 08.doc ?auth= co &loc =en US &id= 4935 &part =2 7. Choice of Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington. 8. Free Will. Tukwila and Kim 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. 9. 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. 10. Amendments. This Agreement may not be amended or modified except by a writing, signed by the parties to be bound thereby, or signed by their respective attorneys as authorized. 11. 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. 12. Counterparts. 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. 13. Effectiveness. This Agreement shall become effective immediately following execution by all of the parties; provided, however, that the releases as described in this Agreement shall not take effect until Tukwila has received from Kim the settlement payment described in Section 1. 14. 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. 15. Successor and Assiens. Because the terms and conditions of this Agreement concern resolution of claims relating to clean -up costs associated with petroleum contaminated soil, this Page 3 of 6 Settlement Agreement and Release http.// sz0139 .ev.mail.comcast.net/service /home /Settlement Agreement and Release FINAL -11 -4- 08. doc ?auth= co &loc= en_US &id= 4935 &part=2 Agreement touches and concerns the land, and its terms and conditions shall inure to the benefit of and be binding upon the parties' respective successors, heirs and assigns. 16. 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 an attorney for enforcement, the prevailing party shall be awarded its costs and reasonable attorneys' fees incurred in the matter. 17. Notice of Settlement. Acting through their respective counsel, the parties shall execute simultaneously with execution of this Agreement a Notice of Settlement Without Dismissal in the form attached hereto and incorporated by this reference as Exhibit B. Within two (2) judicial days of execution of the Notice, the City shall send the Notice to the Court for filing. CITY OF TUKWILA State of Washington ss. County of King On this I day of November, 2008, before me personally appeared James Haggerton, to me known to be the Mayor of the municipal corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument. In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written. 1 'r1 OY ,,a WA. O•� s Itz %'M i ii. i' '►t�►9��.. `2 T NIII, IIVA C�. Page 4 of 6 Settlement Agreement and Release Dated: 1- I Print Name: f 0.0 i,Q,-t y http.// sz0139. ev. mail.comcast.net/service/home /Settlement Agreement and Release FINAL -11-4 08.doc ?auth= co &loc =en US &id= 4935 &part =2 MARK C. KIM 77 SOON S KIM 6 '?a24 C (-Th P'-1/12 STATE OF ARIZONA COUNTY OF I certify that I know or have satisfactory evidence that Mark C. Kim is the person who appeared before me, and said person acknowledged that Mark C. Kim signed this instrument and acknowledged it to be his free and voluntary act and deed for the uses and purposes therein mentioned. DATED: /1./7t/ /w 1--E08 fr v s s. Dated: l/ S' Dated: o g PAT PALLAS r Printed Nagne:7 •?4 l /eJ NOTARY PUBLIC ARIZONA a MARICOPA COUNTY My Comm Expires Aug 20 2010 NOTARY PUBLIC in and for the State of Arizona, residing at My Commission Expires: [NOTARY BLOCK CONTINUES ON NEXT PAGE] Page 5 of 6 Settlement Agreement and Release F APPS \CIV\TUKWILAIAnderson \Settlement Agreement and Release FINAL 11- 4- 08.doc u() STATE OF ARIZONA ss. COUNTY OF I certify that I know or have satisfactory evidence that Soon S. Kim is the person who appeared before me, and said person acknowledged that Soon S. Kim signed this instrument and acknowledged it to be her free and voluntary act and deed for the uses and purposes therein mentioned. DATED: 4ya 'r' nbe 1 Namd: �..�'E `P- A t OFFICIAL SEAL i NOTARY PUBLIC in and for the State PAT PALLAS x NOTARY Of zona, residing at a i r MARICOP.A COUNTY i My Comm Expires Aug 20 2010 My Commission ExpiresY� ZG 201 Page 6 of 6 Settlement Agreement and Release F \APPS \CIV\7UKWILA\Anderson \Settlement Agreement and Release FINAL 11- 4- 08.doc