SETTLEMENT AGREEMENT

Transcription

1 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT is entered into between Harold Zeitz and Robert Katz (collectively Zeitz ) and the City of Redmond ( the City ) in order to resolve pending litigation between the parties. RECITALS 1. The City is the proponent of a land use development project commonly known as the Redmond Bike Park. As the permitting agency for the Bike Park, the City reviewed the proposal under City File Nos. L and DEV On June 8, 2011, the City s Technical Committee granted approval of a Site Plan Entitlement application for the Redmond Bike Park. On June 22, 2011, Zeitz administratively appealed the Site Plan Entitlement approval, as well as the City s State Environmental Policy Act Determination of Non-Significance (DNS), which had been issued on May 12, The Redmond Hearing Examiner upheld the Site Plan Entitlement and DNS on December 5, 2011 and the Redmond City Council upheld the Hearing Examiner s decision on May 8, Zeitz has filed two lawsuits in King County Superior Court challenging the Site Plan Entitlement and DNS issued for the Redmond Bike Park. On February 1, 2012, Zeitz filed a Complaint for Declaratory Judgment challenging the DNS in that certain lawsuit captioned, Harold Zeitz and Robert Katz v. City of Redmond, King County Superior Court Cause No SEA. On May 29, 2012, Zeitz filed a LUPA action challenging the Site Plan Entitlement and the DNS in that certain lawsuit captioned, Harold Zeitz and Robert Katz v. City of Redmond, King County Superior Court Cause No SEA. 3. Zeitz and the City have agreed upon a settlement of both lawsuits that is contingent upon certain revisions being made to the Site Plan Entitlement for the Redmond Bike Park. The parties have agreed that if a modified site plan for the Redmond Bike Park is finally approved through the City s Administrative Modification process without a successful appeal, all pending disputes between the parties will be settled. The parties now wish to reduce their settlement to writing. SETTLEMENT AGREEMENT IN CONSIDERATION OF and subject to the following terms and conditions, the parties agree as follows: 1. Application for Administrative Modification. The City agrees to submit an application for an administrative modification of the Redmond Bike Park Site Plan Entitlement pursuant to Redmond Zoning Code Subsection (D). The purpose of the administrative modification shall be to revise the jumps, trails, and other features of the site plan for the Redmond Bike Park to be as generally shown on the drawing attached as Exhibit A to this Settlement Agreement and incorporated by this reference as if set forth in full. The City will cause its design professionals on the Redmond Bike Park project to translate the attached drawing into a revised approvable site plan. In addition to the features shown on the attached

2 drawing, the revised approvable site plan shall include a fence dividing the Ashford Trail from the bike jumps, as well as landscaping providing a comparable level of screening for adjacent residential properties to that provided by the original site plan approved by the City s Technical Committee. All other features of the revised site plan and all conditions of approval for the site plan shall remain the same as for the original site plan approved by the City Technical Committee. The City will provide a copy of the revised approvable site plan to Zeitz for comment prior to submitting the application for administrative modification. 2. Approval of Administrative Modification - Appeal. If the City s Technical Committee approves the application for administrative modification as submitted with the revised approvable site plan, Zeitz agrees not to appeal the approval. Zeitz further agrees not to aid, abet, assist or otherwise encourage any person to appeal the administrative modification approval and will actively discourage any person consulting Zeitz from doing so. If no appeal is filed within the applicable appeal period, the administrative modification will become final and the site plan approved with the administrative modification will become the approved site plan for the Redmond Bike Park. If a timely appeal is filed, however, the following shall occur: A. If the appeal is filed by any of the appellants who appealed the original Site Plan Entitlement to the Redmond Hearing Examiner, the parties agree that the administrative modification shall be withdrawn, the original Site Plan Entitlement decision shall be reinstated, and this Settlement Agreement shall terminate and thereafter be of no further force or effect except as expressly provided below. The parties agree that the City s Technical Committee may expressly condition the approval of the administrative modification to provide for the withdrawal of the application and reinstatement of the original approval if the appeal described in this subsection is filed. B. If the appeal is filed by someone other than one of the appellants who appealed the original Site Plan Entitlement to the Redmond Hearing Examiner, then the administrative modification shall not be withdrawn and shall remain in effect pending the outcome of the appeal. If the appeal is finally denied, then the administrative modification will become final, the site plan approved with the administrative modification will become the approved site plan for the Redmond Bike Park, and this Settlement Agreement shall remain in effect. If the appeal is granted and the administrative modification is overturned or conditions unacceptable to the City are added, then the administrative modification shall be withdrawn, the original Site Plan Entitlement decision shall be reinstated, and this Settlement Agreement shall terminate and thereafter be of no further force and effect, except as expressly provided below. The parties agree that the City s Technical Committee may expressly condition the approval of the administrative modification to provide for the withdrawal of the application and reinstatement of the original approval if the appeal described in this subsection is filed and is successful as provided herein. 3. Litigation. Upon signature of this Settlement Agreement, the parties agree to execute a stipulation and agreed order dismissing the declaratory judgment action brought by Zeitz under King County Superior Court Cause No SEA, with prejudice and without costs or attorney s fees to either party. The City agrees that dismissal of the declaratory judgment action will not preclude Zeitz from raising the SEPA issues set forth in Appendix C to

3 the Land Use Petition filed by Zeitz under King County Superior Court Cause No SEA. The City and Zeitz agree to execute a stipulation and agreed order dismissing the Land Use Petition filed by Zeitz under King County Superior Court Cause No SEA with prejudice and without costs or attorney s fees to either party if (a) the administrative modification described above is finally approved as submitted with the revised site plan and if no appeal is filed; or (b) the administrative modification described above is finally approved as submitted with the revised site plan and all appeals by parties other than neighborhood residents whom Zeitz represented before the Redmond Hearing Examiner are finally denied. If the administrative modification is withdrawn and the original Site Plan Entitlement decision is reinstated as provided in Section 2 above, the Land Use Petition shall not be dismissed and the parties shall be returned to their respective positions regarding such litigation as the same existed immediately prior to the entry of this Settlement Agreement, with the exception that the City s agreement that dismissal of the declaratory judgment action will not preclude Zeitz from raising the SEPA issues in the Land Use Petition action will remain in effect. 4. Future Modifications to Redmond Bike Park. Nothing in this Settlement Agreement precludes the City from making future modifications to the Redmond Bike Park using the appropriate processes provided in the Redmond Zoning Code. Zeitz retains any and all rights Zeitz may have to appeal or contest such future modifications. Other than routine maintenance and safety-related repairs and upgrades, the City has no plans at the time this Settlement Agreement is entered into for future modifications to the Redmond Bike Park beyond those to be approved by the administrative modification. 5. No Admission. By entering into this Settlement Agreement, neither party makes any admission as to the validity or invalidity of any claim or defense asserted or that could be asserted in either or both of the lawsuits filed by Zeitz. The parties agree that this Settlement Agreement falls within the purview of Evidence Rule 408 of the Washington Court Rules and that it is inadmissible in any court proceedings other than proceedings brought to enforce its terms. 6. Construction. Zeitz and the City both participated equally in the drafting of this Settlement Agreement, by and through their attorneys, and the provisions of this Settlement Agreement shall not be construed against either party as the drafter. 7. Cooperation. The parties agree to cooperate in good faith in undertaking any further actions that may be necessary in order to implement the terms of this Settlement Agreement. 8. Attorney s Fees. In the event that either party brings litigation against the other to enforce any provision of this Settlement Agreement or to redress any breach thereof, the prevailing party in any such litigation shall be entitled to recover its reasonable costs and attorney s fees, including those incurred in any appeal from the judgment of a lower court. 9. Governing Law. This Settlement Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of this Settlement Agreement shall be in King County Superior Court.

4 10. Counterparts. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original as if signed by all parties. 11. Entire Agreement. This Settlement Agreement constitutes the entire agreement between the parties regarding settlement of their dispute over the Redmond Bike Park, as embodied in the declaratory judgment and LUPA lawsuits filed by Zeitz under King County Superior Court Cause Nos SEA and SEA. Any and all prior understandings and negotiations, written or oral, are superseded by this Settlement Agreement. EXECUTED AND EFFECTIVE as of the last date of signature set forth below. ZEITZ CITY OF REDMOND Harold Zeitz Dated: Mayor John Marchione Dated: ATTEST: Robert Katz Dated: Michelle McGehee, City Clerk, CMC APPROVED AS TO FORM: APPROVED AS TO FORM: George A. Kresovich, WSBA No James E. Haney, WSBA No Attorney for Harold Zeitz and Robert Attorney for City of Redmond Katz

5 Attachment B - Revised Site Plan STAGING AREA SKILLS TRAIL LOOP PUMP TRACK

6 Attachment C - Original Site Plan PROPOSED