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HomeMy WebLinkAbout5023 RESOLUTION NO. 5 0 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A RELEASE AND SETTLEMENT AGREEMENT BETWEEN THE CITY OF AUBURN AND THE LEHNERTZ FAMILY LLC, FOR SETTLEMENT AND , DISMISSAL OF THE LAWSUIT FILED IN THE KING COUNTY SUPERIOR COURT UNDER CAUSE NUMBER 13-2-03852-8 KNT WHEREAS, in connection with the construction ofi a commercial 'building by the Lehner� Family LLC in downtown Aubum — af 102 West Main Street, Aubum, Washington — and b.ased on its intended uses, the parking codes of the City required the provision of eighty-five (85) parking spaces for useby its patrons; and WHEREAS; fhe parking space requirement could be provided either by (1) on- site parking facilities, (2) off-site private parking spaces or (3) contribution to public parking spaces, such as through an LID; and WHEREAS, because the Lehnertz Family LLC did not have space available to provide on-site parking or off-site parking, the option selected to meet the parking spaces necessary for constructing their building was a contribution to public parking spaces through an LID — LID No. 250; and WHEREAS, subsequent to 4he construction ofthe Lehnertz Family LLC building, when it was realized that there was no assurance that the public parking spaces for which the LID payments were made would always be available for the Lehnertz Family LLC building and its employees and customers, the Lehnertz Family LLC filed a claim against the City of Auburn based on an expectation of the ability to utilize parking spaces; and Resolution No. 5023 January 6, 2014 Page 1 of 3 WHEREAS, in settlement of the initial Lehnertz Family LLC claim, the City paid two hundred thousand and no/100 dollars ($200,000.00) to the Lehnertz Family LLC, and the parties agreed that the City had control of the parking spaces, which settlement was reflected in a Release and Settlement Agreement executed by the parties on November 7, 2007, and approved by#he Auburn City Council in Resolution No. 4262; and WHEREAS, subsequent thereto, the City transferred and conveyed to Central Fuget Sound Regional TransitAuthority [Sound Transit] control of and responsibility for the 85 parking spaces with the proviso that they remain available for public parking; and WHEREAS, although these parking spaces were and are available for public parking, because of an increasing Sound Transit commuter need, the parking spaces have consistently been utilized by commuters who occupy them between the hours of 6:30 am to 5:30 pm, leaving them essentially unavailable for other public parking uses during that time; and WHEREAS, the Lehnertz Family LLC filed another claim against the City, claiming that the transfer of the parking spaces to Sound Transit essentially eliminated their use and availability for public parking between the hours of 6:30 am to 5:30 pm, and 6ased on this second claim, the Lehnertz Family LLC filed a lawsuit against the CITY in the King County Superior Court, under Cause Number 13-2-03852-8 KNT; and WHEREAS, in light of discussions between and among the parties, it was recognized that the solution to the dispute between the Lehnertz Family LLC and the City is the need for Sound Transit to build the second general public parking :structure � � __ � _ � Resoltition No. 5023 January 6, 2014 Page 2 of 3 within the Downtown Aubum area, consistent with what Sound Transit has promised and represented as its intention. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. That the Mayor and City Clerk are hereby authorized to execute a. Release and Settlement Agreement between the City and the Lehnertz Family LLC, which ag�eemerit shall be in substantial conformity with the agreement attached hereto as Exhibit A and incorporated herein by this reference.. Section 2. That the Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. � Dated and Signed this b� day of , 2014. CITY OF AUBURN � ANCY B K , MA O ' ATfEST: � � Danielle E. Daskam, City Clerk APPR VED A TO FORM: Danie . Heid, Attorney Resolution No. 5023 January 6, 2014 Page 3 of 3 RELEASE AND SETTLEMENT AGREEMENT THIS AGREEMENT is entered into this ��day of 20� by and between David Allen Davis, individually and for and on behalf of e Lehne Family LLC, of which he is tlie managing partner, hereinafter collectively referred to as "LEHNERTZ," and the Ciry of Auburn, VNashington,a municipal corporation, hereinafter referred to as"CIT'." WITNESSETH, WHEREAS, 6etween the years 2002 and 2004, LEHNERTZ, through its managing partner, David Allen Davis, entered into agreements with the City of Auburn, Washington, a municipal corporation, , hereinafter referred to as CIN, related to Local Improvement District (LID) Number 250, including anllD Preformatfon and Guaranty Agreement with the City of Auburn, Washington, wherein LEHNERTZ agreed to pay tothe City of Aubumannual installment payments toward the repayment of what is known astlD Number 250 for reimbursing the City for the cost of construction for 85 parking stalls in the parking garage now known as the Auburn —Sound Transit Garage; and WHEREAS, the basis of the LID Agreements was that the construction and use of a commercial building tiy LEHNERIZ in downtown Auburn — at 102 West Main Street, Auburn, Washington—and its intended uses would require the provision of eighty-five(85)parking spaces for use by its patrons;and WHEREAS, the parking space requirement could be provided either by (1) on-site parking facillties, (2) off-site private parking spaces or (3) contribution to public parking spaces, such as through an LID; and WHEREAS, because LEHNERTZ did not have space available to provide on-site parking or off-site parking, the option selected to meet the. parking spaces necessary for constructing the LEHNERTZ building was a contribution to public parking spaces through an LID—LID No.250;and WHEREAS, subsequent to the construction of the LEHNERR building, when LEHNERTZ realized that notwithstanding the LID contributions to public parking that there was no assurance that the public parking spares for which the LID payments were made would always be availa6le for LEHNERTZ and the employees and customers of LEHNERTZ, LEHNERTZ filed a claim against the CITY based on an expectation of the ability to utilize parking spaces;and WHEREAS, in settlement of the initial LEHNERTZ claim, the CITY paid two hundred thousand and no/100 dollars($200,000.00)to LEHNERTZ,and LEHNERTZ and the CIIY agreed that the CITY had control of the parking spaces, which settlement was reflected in a Release and Settlement Agreement executed by the parties on November 7, 2007,and approved by the Auburn City Council in Resolution No. 4262; and WHEREAS, subsequent thereto, the CITY transferred and conveyed to Central Puget Sound Regional Transit Authority [Sound Transit] control of and responsibility for the 85 parking spaces with the proviso that they remain available for public parking;and WHEREAS, although these parking spaces were and are available for public parking, because of an increasing Sound Transit commuter need, the parking spaces have consistently been utilized by RELEASE AND SETTLEMENTAGREEMENT Page 1 " commuters who occupy them between the hours of 6:30 am to 5:30 pm, leaving them essentially unavailable fonother pubiic parking uses during thatSime; and WHEREAS, not4uithstanding the earlier Settlement Agreement between the parties acknowledging that the CITY had exclusive control of the 85 parking spaces, LEHNERTZ filed another claim against the CITY, 'claiming that the transfer of the parking spaces to Sound Transit essentially eliminated their use and availa6ility for public parking between the hours of 6:30 am to 530 pm, and based on this second claim, LEHNERTZ filed a lawsuit against the CITY in the King County Superior Court, under Cause Number 13-2-03852-8 KNT; and WHEREAS, in light of discussions between and among the parties, it was recognized that the solution to the dispute between LEHNERTZ and the CITY is the need for Sound Transit to build the. second generel public parking structure within the Downtown Auburn area, consistent with what Sound Trensit has promised and represented as its intention. Now Therefore, it is hereby AGREED as follows: That for and in consideration of the payment of twenry-five thousand and no/100 dollars ($25,000.00)to be paid to LEHNERTZ, LEHNERTZ shall: :1. Dismiss its lawsuit against the CITY in the King County Superior Court, under Cause Numtier 13-2-03852-5 KNT, with prejudice and with each party to pay its own costs; and 2. Work with the CITY to promote the construction of a second generel public parking strudure within the Downtown Auburn area. It is FURTHER AGREED as follows: This settlement extinguished any and all pending, potential and possibie.claims by and from LEHNERTZ and its heirs, executors, administrators, successors and assigns, against the City related, in any way, to the Sound Transit Garege, and to the City of Auburn Local Improvement District Number 250, and parking spaces provided thereby. Under this Settlement Agreement, LEHNERTZ does further hereby release, acquit and forever discharge the City of Auburn and its officers, agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporetions, associations or partnerships of and from any and all claims, actions, expenses and compensation whatsoever under state or federal law, which LEHNERTZ may now have or which may hereafter accrue io LEHNERTZ on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen damages and the consequences thereof resulting or to result from the allocetion, control or use of parking spaces at the Aubum-5ound Transit Garage related to the City of Aubum Local Improvement District Number 250. That by signing this Release and Settlement Agreement, that the payment of the consideration therefore: (I)'does not constitute an admission of any liability 6y the City of Auburn, and, in fact,the City disputes the claim and denies liability; (2) includesfull and finaCsettlement of all claims, both"present and future, arising from Local Improvement District No. 250 and the language.of the LID Preformation and Guarenry Agreement and applies to any and all past and future damages which might be claimed by RELEASE AND SETTLEMENT AGREEMENT Page 2 LEHNERTZ as related thereto; and (3) LEHNERTZ agrees to pay from these settlement proceeds any ' person, wrporation,or entity who has a lawful lien or subrogation claim againstthese funds: LEHNERTZ doesfurtheragree, as consideration of the payment in the amount above, to defend, indemnify, and hold harmless the City of Auburn from any such liens, subrogation claims; or other such claims of any person or entity claiming any interesi in the settlement funds being paid pursuant to this Agreement and furthe�agrees,as consideration of the payment in the amount above,that the successor of the.Ciry:of Auburn, to wit:;Sound Transit, shall have total and exclusive use of the parking spaces as proyided for in the Locaf Improveme�t District Na 250. It is further understood and agreed by the parties that this Settlement Agreement does not create anynew parking provision condition which would require the additional expenditure of funds by LEHNERIZ in order to continue to occupy and use itsadjacent commercial building. It is further agreed that all other terms and conditions of the Local Improvement Dis[rid formation and guarentee agreement as approved by City of Auburn Resolution Numbec 3701 and the Release and SettlementAgreement executed by the parties on November7; 2007, and approved by the Aubum City Gouncil in Resolution No. 4262, which are not inconsistent with the terms of this Release andSettlement Agreement shali be in full force and effect and recognized asauch by the parties hereto. It is further agreed that the parties hereto shail take all necessary steps and actions needed and appropriate to have the.lawsuit filed by LEHNERTZ against the CITY under the King County Superior {ourt Cause Number 13-2-03852-8 KNT, dismissed with prejudice and with each party to pay its own cosu.: It is furtFier agreed that this Settlement Agreement shall be subject to concurrence and acceptance by the Aubum City Council. The undersigned agree that no promise, inducement or agreement not herein expressed has beert:made to either of the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractualand noYmere recital. This Settlement Agreement shall be construed and interpreted according to the laws of the State of.Washington. THE CITY OF AUBURN DOES NOT LEGALLY REPRESENT THE UNDERSIGNED. THE UNDERSIGNED UNDERSTANDS ANY QUESTIONS REGARDING THIS RELEASE SHOULD BE DIRECTED TO NIS OR HER OWN PERSONAL ATTORNEY PRIOR TO SIGNING. TIiE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT. � Signed, 5ealed and elivered this�day of _, 20�. c DAVID ALLEN DAVIS,Managing Partner, ' LEHNERTZ FAMILY LLC RELEASE AND SETTLEMENT AGREEMENT Page 3 • , • State of Washington ) ): ss County of King ) I certify that I know orhave satisfactory evidence that David Allen Davis is the person who appeared before me and said person acknowledged that he/she signed this instrument and acknowledged it to be his/her free and voluntary act and the free and voluntary ad of the Lehnertz Family LLC, of wfifch he•is:,,,, the managing partner and on whose.behalf',he is acting the uses and rposes mentiopE��i�¢p��o�.., instrument. � . dil�v^ • r a� `�. ,v r, . r, "'. q3��a,� � . � . : �u 6 .. NOTARY P LIC in a or the State gf�IIJa�t�rt�tp�t� i" = v+ �. . Residing at:�[lYi4LLRtP �:.,�j�'':. '°.��:`� �\ M Commission Ex ires: � �� S���' -' v p� 3 9 ""�,,..,., Signed,:5ealed and Delivered this�"'� day of .GL� _ 20o-b� , 9= Mayor, City uburn State of Washington � ): ss County of King ) I certify that I know or have satisfactory evidence that •'v�N�.' ��-S is the person who appeared before me and said person acknowledged that he/she signed this instrument as the Mayor of the City of Auburn, Washington, and acknowledged it to 6e the freeand 4oluntary act of his/her office for the uses and purposes as mentioned in the instrument. ` ```�������yN�pqq �o � _ �f J � pAS q� ��.t�d.v�- __v�!o�Pxo�RFB �i��� NO RY PUBLIC,in and for the State of Washington � .�_�a 1 Rr , 0 y Residingat C--rtGa�eli.ucl � W_� o , ; r i Q g '� ,` �= � : My Commission Expires: /J dS"�/S 4 �., nue _ % o '., o:�y,' � _ �/�� S4jyoa1�a����� Q��� �'/`I''1jq`�`O��`` RELEASE AND SETTLEMENTAGREEMENT Page 4