HomeMy WebLinkAbout5.884 Original Contract
LEGAL
DEPARTMENT
William E. Bloor
City Attorney
[4531 ]
Dennis DIckson
Sr. Assistant City
Attorney
[4532]
Heidi L. Greenwood
Assistant City Attorney
[4562]
Candace Kathol
Legal Assistant
[4536]
Diana Lusby
Legal Administrative
Assistant
[4530]
Jeanie DeFrang
Legal Admimstrative
Assistant
[4530]
RandiFelton
Legal Records
Specialist
[4576]
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WAS H I N G TON, U. S. A.
TO:
Becky Upton, City Clerk
FROM:
William E. Bloor, City Attorney
DATE:
May 27, 2008
RE:
Green Crow Settlement Agreement dated May 12,2008.
Attached is the original of the above document. Also attached is a fully
conformed copy of the Stipulation and Order of V oluntary Dismissal.
&
William E. Bloor
City Attorney
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Attachments
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SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into this ~y
of May, 2008 by and between Green Crow Properties, Inc. ("Green Crow") and the City
of Port Angeles, ("City"), collectively, the "parties".
RECITALS
A. The parties entered into a Development Agreement executed by the City
and Green Crow on August 3, 2004.
B. Green Crow seeks to develop a project consisting of a 49-unit residential
subdivision known as the "Riedel II Subdivision." The Reidell II Subdivision has
received preliminary approval from the City.
C. On November 20,2007, the City Council approved a motion denying final
plat approval for Phase III of the Riedel II Subdivision. On December 10, 2007, Green
Crow filed a lawsuit under the Land Use Petition Act, Chapter 36.70C, RCW, seeking
review of the City Council's Phase III final plat denial (the "lawsuit"). The lawsuit,
Green Crow Properties, Inc. v. City of Port Angeles, Cause No. 07-2-01196-2, is pending
in Clallam County Superior Court under a stay stipulated to by the parties.
D. The parties wish to resolve this litigation through execution of this
Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual promises contained
herein, the parties agree as follows:
1. Green Crow agrees to extend the sidewalk on Morning Court to the edge
of the right of way on Rook Drive as staked out by its Surveyor. The City has plans to
construct a new sidewalk along the north side of the Rook Drive right-of-way from the
beginning of Riedel II Phase 1 west to the intersection of Morning Court. The City will
stake the location of the sidewalk location within seven (7) days of execution of this
Agreement and Green Crow agrees to further extend their sidewalk to the City's staked
location at its nearest point. The City will inspect the sidewalks within three (3) days of
receipt from Green Crow of written notice that it has completed the actions set forth in
this paragraph 1.
2. Throughout the Riedel II Subdivision, Green Crow agrees to fill and level
the swales so that they match the adjoining sidewalk. The intent of this provision is that
the ground adjacent to the edges of all sidewalks shall be level with the sidewalk walking
surface as per the approved plans. The City will inspect the sidewalks and swales within
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three (3) days of receipt from Green Crow of written notice that it has completed the
actions set forth in this paragraph 2.
3. The City agrees that the five foot utility easement shown on the Phase III
final plat satisfies any issue the City may have concerning placement of the water meters
for the lots, provided that Green Crow places the following condition in the Covenants,
Conditions and Restrictions ("CC&Rs") for the Riedel II Subdivision: "No person is
permitted (a) to store, maintain or keep any goods, merchandise, materials or rubbish
within a distance of five feet of, (b) to erect any fence, within a distance of five feet of,
(c) to plant, grow, or allow any hedge, landscaping, or other vegetation, except grass,
within a distance of five feet of, or (d) to interfere with, the access to or operation of any
water meter, gate valve, fire hydrant, or other appurtenance in use on any water service,
connection, water main or fire protection service."
4. Not later than five (5) days after execution of this Agreement, Green Crow
will provide the City with an analysis from its engineer of the existing stormwater
drainage facilities for Phase III of the Riedel II Subdivision that the City has deemed
noncompliant with City requirements or approved plans in its January 2, 2008 list of
outstanding issues, together with recommendations to address any such issues. This
analysis shall include:
a. An analysis of the installed stormwater infrastructure that is different from or
deviates from the approved stormwater plan, including ditches, catch basins, pipes, and
related appurtenances, describing the capacity of the infrastructure and its ability to
adequately handle and convey stormwater runoff for the entire site.
b. An analysis of all pipeline crossings of Morning Court and its sidewalks,
specifically addressing the depth of bury of the stormwater pipes. This analysis should
address whether the current depth of bury of any of these pipelines may result in either
(1) excessive deflection or crushing of the pipe due to anticipated live and/or dead loads,
or (2) premature structural failure of the road or sidewalk.
c. A detailed description and plan by the licensed professional engineer showing
improvements, modifications, or changes to the installed infrastructure so that the
infrastructure will adequately handle and convey stormwater as outlined in items a and b
above; provided that if no improvements, modifications, or changes are required, the
licensed professional engineer must provide a Certification that the installed
infrastructure adequately addresses stormwater as outlined in items a and b above.
Within five (5) days of receipt of this analysis, the City will provide Green Crow
with written notice of whether the submittal is sufficient for City review. If it is not, the
notice will indicate what additional information or analysis is necessary for the City to
complete its review, which Green Crow agrees to provide within five (5) days. Within
fourteen (14) days of submittal of analysis the City deems sufficient for City review, the
City will complete its review and provide Green Crow with written notice of any
additional stormwater improvements to satisfy Riedel II Subdivision Condition No.7.
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5. Not later than ten (10) days after execution of this Agreement, Green
Crow will furnish the City with a stormwater facilities maintenance agreement for all
Riedel II Subdivision stormwater improvements.
6. Not later than ten (10) days after execution of this Agreement, Green
Crow will furnish the City with a bond for all Riedel II Subdivision improvements,
including coverage for any unconstructed trail improvements required by Condition No.
8. Also, the City will approve including in the bond, to the extent it is feasible to do so
and consistent with City ordinances and regulations, some or all of the improvements for
Phase I of the Campbell A venue Planned Residential Development. The bond shall
describe all such improvements and be accompanied by an updated estimate of costs for
such improvements. Within seven (7) days of receipt of the bond, the City will provide
Green Crow with written notice of either approval of the form of the bond or any
deficiencies in the bond and the City's proposed changes to address such deficiencies.
Within fourteen (14) days of receipt of written notice from Green Crow that any bonded
improvements have been completed, the City will inspect the completed improvements
and notify Green Crow whether such improvements are approved or reasons why they are
not.
7. Green Crow shall request, and the City agrees to recommend to the City
Council, that the conditions for approval of Phase I of the Campbell A venue PRD and the
first sentence of Riedel II Subdivision Condition No.9 be modified to provide as follows:
"A public neighborhood park approved by the City's Public Works and Utilities Director
shall be dedicated by Green Crow to the City as part of final approval for Phase I of the
Campbell A venue PRD, consistent with the Open Space and Parks Facilities terms set
forth in the Development Agreement."
8. Green Crow shall request, and the City agrees to recommend to the City
Council, that Riedel II Subdivision Condition No. lObe modified as follows. "All
conditions of Wetland Permit WP 04-01 pertaining to the Riedel II Subdivision shall be
met prior to final plat approval or development through the area identified as a wetland or
its buffer. All other conditions of Wetland Permit WP 04-01 shall be met prior to final
approval of Phase I of the Campbell A venue PRD as provided in condition number
fifteen of the PRD approval."
9. Not later than five (5) days after Green Crow has completed the actions or
improvements required in paragraphs 1,2,3,4,5,6, 7, and 8 of this Agreement, the City
will schedule a hearing with the City Council for consideration of Phase III final plat
approval for the Riedel II Subdivision. The hearing will be scheduled no later than
twenty (20) days from when the City is required to schedule the hearing pursuant to this
paragraph.
10. At least five (5) days prior to the City Council hearing, the City will
prepare and provide Green Crow with a copy of a draft staff report for Phase III of the
Riedel II Subdivision recommending final plat approval with the recommended
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modifications to Conditions 9 and 10 as set forth III paragraphs 7 and 8 of this
Agreement.
11. As to each instance when Green Crow is required to complete an action or
improvement or to submit or provide to the City any plan, application, report, analysis,
document, or any other material, Green Crow shall give written notice to the City when it
believes it has completed the action or improvement or has made a complete submission.
Not later than five (5) days after receiving such written notice, the City shall advise
Green Crow whether the City agrees that the action, improvement, or submission is
complete.
All information, submittals, reports, documents, and other materials that Green
Crow is required by this Agreement to submit or provide to the City shall be submitted
directly to the City's Community & Economic Development Department.
12. The term "days'.' as used in this Agreement means business days,
excluding weekends and holidays.
13. The parties hereby release and forever discharge one another from any and
all rights, claims, demands, cause of action and all liability of any nature whatsoever,
suspected or claimed which have been or could be asserted in the litigation.
14. Upon approval of this Agreement by the City Council, the parties will
jointly enter into a stipulation for dismissal of the lawsuit.
15. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors, assigns, representatives,
agents and attorneys.
16. This Agreement may be executed in counterparts, with facsimile copies
being treated the same as originals, each of which shall be deemed to be an original, and
together shall constitute one and the same agreement. Duplicate originals will be
executed with one original being retained by the -respective attorneys for the parties.
This Agreement may not be modified or amended except by an instrument in writing
executed by the parties and simply bound thereby.
17. The parties acknowledge they have or could have had the benefit of legal
counsel concerning the effects of this Agreement and have actually read the same and
agreed to be bound thereby.
18. The parties acknowledge that this Agreement does not purport to, and
cannot, bind any future decisions of the City Council relating to the subject matter of this
agreement.
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19. This Agreement shall not be construed against any party as the drafter.
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20. This Agreement shall be construed under Washington law. Any disputes,
claims, issues and disagreements (hereinafter "disputes") arising out of or relating to this
Agreement or breach of this Agreement shall be submitted to binding arbitration in
accordance with the Washington Superior Court Mandatory Arbitration Rules; provided,
however that such rules shall be supplemented to permit the joinder of parties and claims
as provided in the Washington Rules for Superior Court. Venue of such arbitration shall
be in Port Angeles, Washington. Judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction or application may be made to such court for
judicial acceptance of such award and an order of enforcement. In any dispute, the
substantially prevailing party shall be awarded its fees (including attorneys, consultants
and experts) and costs incurred prior to and during any proceedings (including litigation,
arbitration and mediation), on appeal, and in the collection of any award.
21. This Agreement constitutes the entire agreement of the Parties on these
subjects, except that nothing in this Agreement is intended to modify or supersede the
terms of the Development Agreement. This Agreement may not be modified, interpreted,
amended, waived or revoked orally, but only by a writing signed by all parties.
22. Unless otherwise directed, notices shall be delivered in writing by U.S.
mail or fax to the parties at the following respective addresses:
IF TO GREEN CROW: Dennis Yakovich
Green Crow Properties, Inc.
P.O. Box 2469
Port Angeles, W A 98362
Telephone: (360) 417-3667
Facsimile: (360) 417-3674
AND TO: Charles E. Maduell
Davis Wright Tremaine LLP
1201 Third A venue, Suite 2200
Seattle, W A 98101
Telephone: (206) 757-8093
Facsimile: (206) 757-7093
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IF TO THE CITY: Mark E. Madsen
City Manager
City of Port Angeles
321 East Fifth Street
P.O. Box 1150
Port Angeles, W A 98362
Telephone: (360) 417-4500
Facsimile: (360) 417-4509
AND TO: William Bloor
City Attorney
City of Port Angeles
321 East Fifth Street
P.O. Box 1150
Port Angeles, W A 98362-0217
Telephone: (360) 417-4531
Facsimile: (360) 417-4529
23. The Parties each represent and warrant that they have full power and
actual authority to enter into this Agreement and to carry out all actions required of them
by this Agreement. All persons executing this Agreement in representative capacities
represent and warrant that they have full power and authority to bind their respective
corporations, partnerships and/or marital communities.
24. This Agreement does not constitute and shall not be construed as an
admission of liability or responsibility on the part of any of the Parties, who continue to
deny all liability and disclaim all responsibility. The Parties have entered into this
Agreement solely for the purpose of avoiding costs of the Appeal.
DA TED: vv...~1 l'i~
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,2008
DATED: lY/{f /2 , 2008
CITY OF PORT ANGELES.
GREEN CROW PROPERTIES, INC.
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The Honorable George L. Wood
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FilED
CLALLAM COUNTY
MAY 2 2 Z008
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BARBARA CHRISTENSEN, Clerk
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SUPERIOR COURT OF THE STATE OF WASHINGTON
CLALLAM COUNTY
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GREEN CROW PROPERTIES, INC.,
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) No. 07-2-01196-2
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) STIPULATION AND ORDER OF
) VOLUNTARY DISMISSAL--
) RULE 41(A)
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Petitioner,
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v.
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CITY OF PORT ANGELES,
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Respondent.
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I.
STIPULATION
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The parties to this action, by and through their attorneys of record, stipulate that the
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above captioned action shall be dismissed without prejudice and without an award of costs to
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any party.
DATED thisJ-O day of May, 2008.
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Attorneys for Petitioner
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Davis Wright Tremaine LLP
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Bya~t- 1l~,
Charle~ ~. Madu~ V{SBA # 1549'1
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STIPULATION AND ORDER OF VOLUNTARY DISMISSAL--
RULE 41(A) - 1
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DavIs Wnght Tremame LLP
LA W OFFICES
SUIte 2200 1201 Third Avenue
Seattle, Washmgton 98101-3045
(206) 622-3 J 50 Fa, (206) 757-7700
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Attorneys for Respondent
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Port Angeles City Attorney
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William E. Bloor, WSBA #4084
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Keating Bucklin & McCormack, Inc., P.S.
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Byl/Wd C.1.l.JL ,
Michatjl C. Wa~ter, WSBA #150~4 ~
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ORDER
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This matter having come before the Court upon the above and foregoing stipulation, and
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the Court being fully advised; therefore, it is now
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ORDERED, ADmDGED and DECREED that the above captioned action is dismissed
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without prejudice and without an award of costs to any party.
DONE IN OPEN COURT this :Z/~ay of May, 2008.
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KEN WILLIAMS
mDGE
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Presented by:
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Attorneys for Petitioner
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Davis Wright Tremaine LLP
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By dt-'~ i- 1i~~J
CharlI:E.~ad 11, WSBA #15491 #:t;}
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STIPULATfoN AND ORDER OF VOLUNTARY DISMISSAL --
RULE 41(A) - 2
DWT 11078468v1 0050126-000003
DavIs Wright Tremaine LLP
LAW OFFICES
Suite 2200 1201 ThIrd Avenue
Seattle, Washington 981 0 1~3045
(206) 622-3150 Fax (206) 757-7700
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1 Approved as to Form,
Notice of Presentation Waived:
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Attorneys for Respondent
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William E. Bloor, WSBA #4084
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7 Keating Bucklin & McCormack, Inc., P.S.
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By 1/IJ-.JJ c:. .1J~
Mic~a,l C. Wal~, ~SBA #15044
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STIPULATION AND ORDER OF VOLUNTARY DISMISSAL--
RULE 41(A) - 3
DWT [1078468v] 0050] 26-000003
DaVIS WrIght Tremame LLP
LA W OFFICES
Suite 2200 1201 ThIrd Avenue
Seattle, Washmgton 98101-3045
(206) 622-3150 Fax (206) 757-7700