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HomeMy WebLinkAboutR-2022-051 Resolution authorizing release and settlement agreement in the matter of West Valley School District vs. City of Yakima, Yakima County Superior Court Cause No. 21-2-02153-39RESOLUTION NO. R-2022-051 A RESOLUTION approving the Release and Settlement Agreement in the matter of West Valley School District vs. City of Yakima, Yakima County Superior Court Cause No. 21-2-02153-39. WHEREAS, the West Valley School District applied for a minor modification for grading and other alterations to the site plan at Apple Valley Elementary School, which was approved in part and denied with regards to the grading changes, by the administrative official; and WHEREAS, West Valley School District appealed the decision that denied the grading changes as a minor modification, and the administrative decision was upheld by both the Hearing Examiner and the City Council; and WHEREAS, West Valley School District appealed the City Council's determination to the Yakima County Superior Court through a LUPA petition on December 6, 2021 under Case No. 21-2-02153-39 entitled West Valley School District vs. City of Yakima: and WHEREAS, the parties agreed to enter into mediation to resolve the dispute regarding the grading which resulted in a release and settlement agreement to resolve the issues associated with the matter contingent on City Council and West Valley School Board approval; and WHEREAS, the City Council deems it to be in the best interests of the City to approve and ratify the Release and Settlement Agreement reached by the parties during mediation; now, therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City of Yakima City Council approves and ratifies the Release and Settlement Agreement entered into by the parties on April 12, 2022, to resolve and settle the claims brought in the West Valley School District vs. City of Yakima matter. The City Manager and/or the City's legal counsel are hereby authorized to execute all documents necessary to conclude settlement as consistent with this Resolution. ADOPTED BY THE CITY COUNCIL this 26th day of April, 2022. Janice Deccio, Mayor ATTEST: Sonya Claar Tee, City Clerk 4 RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement ("Agreement") is entered into as of the date last signed below (the "Effective Date") by and among West Valley School District No. 208 (the "School District") and the City of Yakima (the "City"). For purposes of this Agreement, the parties may be referred to individually as a "Party" and collectively as the "Parties." RECITALS A. The School District submitted a Class 3 Review application (CL3#010-19, VAR#004-19, ADJ#027-19, and CAO#027-19) to the City to replace the Apple Valley Elementary School building, located at 7 N. 88th Avenue in Yakima, Washington, and construct parking spaces, a playground, and two playfields around the new school building (collectively, the "Site"). B. On April 7, 2020, the City approved the School District's Building Permit B200126 (the "Building Permit") and the associated plan set, which included an overall grading plan for the Site that included proposed elevations for the southeastern corner of the site that ranged from 1266 feet above sea level ("ASL") near the southern fenceline to 1276 feet ASL at the playfield at the northeastern corner of the site C. When construction at the Site was completed, the finished Site elevations, although within the grading plan approved in the Building Permit's proposed elevation range, were between 1 to 3 feet higher than the grading plan in certain portions of the southern playfield. D. On May 28, 2021, the School District submitted a Modification Application to the City in accordance with Yakima Municipal Code ("YMC") 15.17 to gain approval for the as -built site elevations and to add a 5-foot walking path around the perimeter of the playfields, to change the backstop and goal locations, and to reduce the amount of asphalt in the playground. E. At the City's suggestion, the School District held a neighborhood meeting to obtain comment regarding the Modification Application on June 14, 2021. At the meeting, neighbors expressed concerns about the increase in Site grading. F. In response to neighbors' comments, the School District amended its Modification Application on June 21, 2021 to include the installation of view -obscuring material to a portion of the fenceline adjacent to the neighboring residences. G. On June 30, 2021, the City issued its decision on the School District's Modification Application MOD#021-21 (the "City Decision"). The City approved the walking path, revised backstop and goalpost locations, the reduction of asphalt for the playground, and the installation of view -obscuring material. The City denied the School District's request to approve the as -built Site grading. H. The School District appealed the City Decision to the City of Yakima Hearing Examiner (the "Hearing Examiner") on July 14, 2021. RELEASE AND SETTLEMENT AGREEMENT Page 1 of 6 156301940 2 5 I. On August 12, 2021, following an open record public hearing, the Hearing Examiner issued his decision (the "Hearing Examiner's Decision"), which upheld the City Decision. J. On September 20, 2021, the School District appealed the Hearing Examiner's decision to the Yakima City Council (the "City Council"). K. On November 16, 2021, the City Council held a closed record hearing and voted to affirm the Hearing Examiner's Decision. L. On December 6, 2021, after exhausting its administrative appeals before the Hearing Examiner and City Council, the School District filed a Land Use Petition Act, Chapter 36.70C RCW ("LUPA"), petition in Yakima County Superior Court (No. 21-2-02153-39) ("LUPA Petition"). M. The Parties began settlement talks in 2022. The LUPA Petition is currently stayed pending settlement. N. In order to avoid the delay, expense, inconvenience, and uncertainty of litigating the legal issues pending before the Yakima County Superior Court, the parties, without admitting liability, have reached this Agreement to resolve the claims at issue in the LUPA Petition as set forth more fully below. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are incorporated into this Agreement. 2. Nature of Agreement; No Admission of Liability. The Parties enter into this Agreement to resolve a dispute and, therefore, acknowledge that the obligations assumed under this Agreement are not intended to be, and shall not be construed as, an admission of liability by any Party. Moreover, nothing in this Agreement shall be construed or interpreted as a concession or admission by the Parties with respect to any dispute that any of them may now or in the future have with each other or with any other person or entity. Neither this Agreement nor any part of the negotiations conducted in connection with this Agreement shall constitute evidence with respect to any dispute the Parties may have with one another, except that the Agreement may be used as evidence to enforce any of the terms or conditions of the Agreement. 3. Governing Body Approval. To the extent required by applicable regulations and polices, this Agreement is contingent upon formal ratification by the School District's Board of Directors ("School Board") and the City of Yakima City Council ("City Council"). The City Council will vote to approve the Settlement Agreement during its April 26, 2022 meeting. The School Board will vote to approve the Settlement Agreement during its April 26, 2022 meeting. RELEASE AND SETTLEMENT AGREEMENT Page 2 of 6 156301940.2 6 Should either the City Council or the School Board fail to approve this Agreement, the Parties agree to re-enter the mediation process with Jay Derr to reach a resolution. 4. Southern Playfield Slope Reduction. The School District shall submit a new minor modification application ("Application") to re -grade the southeast corner of the Apple Valley Elementary School playfield according the following description: • Moving the top of the slope in the southeast corner of the Apple Valley School District playfields inward toward the school by approximately 20 feet; • Changing the slope from the current 5:1 slope to an 8:1 slope; • Moving the backstop location at the baseball field to the northwest; and • The backstop relocation will still accommodate a regulation -sized little league field. All soccer fields will remain unchanged. The School District to retain all of the current programming at the site ("Site Re -Grading"). The School District shall submit this Application to the City within 30 days of the approval of this Agreement by the School Board and the City Council, whichever approval comes later. The School District's application will adhere to the description immediately above and include the following exclusive list of materials that will demonstrate that the Site Re -grading will not create or materially increase any adverse impacts or undesirable effects of the project per Yakima Municipal Code 15.17.040.B.1.c: • A plan set showing the as -built elevations and the elevations that will be constructed for the Site Re -grading; • A profile drawing showing the existing 5:1 slope and the 8:1 slope described in Exhibit A; and • A proposal to offer arborvitaes and privacy slats to existing fencing for any property owners immediately adjacent to the Apple Valley Elementary School who want arborvitaes and privacy slats that will be written into the Minor Modification Application as a condition of approval. 5. Approval of the Modification Application. The City shall approve the School District's Modification Application within 3 weeks of submittal of the Application if the School District's Application is complete and meets the requirements in Section 4 of this Agreement ("Minor Modification Approval"). The City's approval will be on the basis that the Site Re- grading "will not create or materially increase any adverse impacts or undesirable effects of the project." Should the City fail to approve the Application or to include any conditions not agreed to in this Agreement, the Parties shall re-enter mediation with Jay Derr to reach a resolution. 6. Communication of the Decision. The School District will mail a copy of its decision approving the Application as a courtesy to property owners immediately adjacent to the Apple Valley Elementary School with an invitation to attend a meeting with the School District to describe the decision that has been made and to discuss a timeline for construction. This meeting shall be informational only in nature. RELEASE AND SETTLEMENT AGREEMENT Page 3 of 6 156301940.2 7 7. Prior City Decisions. The Parties agree that the City's prior decision on MOD#021- 21 still stands. 8. Public Acknowledgement of Settlement Agreement. The Parties agree to work together to draft language by April 15, 2022, to describe the Settlement Agreement for their respective City Council and School Board Agendas and to publicly acknowledge the settlement agreement. 9. Release of Claims. The Parties release each other for all claims asserted or that could have been asserted in the LUPA Petition and all claims concerning the Building Permit, subject to the City's reservation of its municipal authority to implement and enforce any other applicable development regulations. 10. Stipulation; Order of Dismissal. The School District shall cease and desist any further prosecution of the LUPA Petition and shall, within five (5) business days of the City's issuance of the Minor Modification Approval, file with Yakima County Superior Court the "Stipulation and Order of Voluntary Dismissal With Prejudice" as to all parties to the litigation and to all claims. 11. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Washington. 12. Entire Agreement. This Agreement contains the entire agreement among the Parties with respect to the subject matter and supersedes all prior agreements and understandings, oral or written, among the Parties with respect to the subject matter hereof. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved in favor of either Party shall not be employed in the interpretation of this Agreement and is hereby waived. This Agreement shall be construed as a whole. The misplacement, addition or omission of a word or character shall not change the intent of any part of this Agreement from that set forth by this Agreement. The Parties enter into this Agreement in reliance solely on the terms herein without reliance on any other promises, representations, or warranties, subject to the School District's Board of Director's approval to the extent required. 13. Binding Effect. This Agreement shall bind and inure to the benefit of the Parties and their respective representatives, receivers, trustees, successors, members, managers, predecessors, officers, directors, employees, agents, and assigns, as may be the case. 14. Good Faith. The Parties enter into this Agreement in good faith and promise to perform their respective obligations. In the event of a breach of any of the provisions of this Agreement, each Party is entitled to pursue any and all remedies available at law and in equity in a court of competent jurisdiction. 15. Full Understanding; Legal Counsel. Each Party to this Agreement fully acknowledges, represents, and agrees that it has read this Agreement and that it fully understands and voluntarily accepts this Agreement for final resolution and settlement of the claims as set forth above. Each Party to this Agreement further acknowledges, represents, and agrees that it has had the opportunity to consult with its own legal counsel prior to execution of this Agreement. RELEASE AND SETTLEMENT AGREEMENT Page 4 of 6 156301940.2 8 16. Construction. This Agreement shall be construed as a whole and to give full effect to the intent of the Parties. This Agreement is a product of negotiations among the Parties and has been jointly drafted and approved by each Party. For these reasons, no provision of this Agreement shall be interpreted or construed against a Party for the reason that said Party proffered or drafted the language at issue. 17. Execution of Other Documents. Each Party shall cooperate fully in the execution of any and all other documents that may be reasonably necessary or appropriate to give full force and effect to the terms and intent of this Agreement. 18. Authority to Release Claims. Each Party represents to the other that it is authorized to enter into this Agreement and that the obligations each Party undertakes in this Agreement are valid, lawful, binding, and enforceable (subject only to the School District's approval by its Board of Directors and to the City's approval by the City Council). 19. Counterparts. This Agreement may be executed by electronic signature (e.g., PDF), and in counterparts, each of which shall be deemed an original, and said counterparts shall constitute one and the same instrument. 20. Headings. Section headings in this Agreement are included only for the convenience of reference and shall not affect the interpretation of any provision of this Agreement nor any of the rights or obligations of the Parties. 21. Severability. If any covenant, condition, term, or provision of this Agreement is deemed illegal, or if the application of any covenant, condition, term, or provision of this Agreement to any person or in any circumstance shall to any extent be judicially determined to be invalid or unenforceable, the remainder of this Agreement, or the application of such covenant, condition, term, or provision to persons or in circumstances other than those to which it is held to be invalid or unenforceable, shall not be affected, and each covenant, condition, term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 22. Attorneys' Fees and Costs. The Parties shall bear their own attorneys' fees incurred in connection with the negotiation and implementation of this Agreement. 23. Governing Law; Venue. This Agreement shall be construed and interpreted according to the laws of the State of Washington. Venue for any dispute arising out of this Agreement shall be in Yakima Superior Court or, if venue will not lie there, in the U.S. District Court for the Eastern District of Washington. [NO FURTHER TEXT; SIGNATURES FOLLOW] RELEASE AND SETTLEMENT AGREEMENT Page 5 of 6 156301940 2 9 DATED this 12th day of April, 2022. City of Yaki Washingt n Approved as to form: Signature: Signed Printed Name: 12a13 E-a-r /1.(12 is b pi By: Title: C t r > A N 4 te Its: City Attorney 1 l 1 4 f1-O L/i Date: CITY CONTRACT NOp?O —0 / 4 RESOLUTION NO: R 2 D 2 OS-1 West Valley School District No. 208 Approved as to form: Signature: ` Signed Printed Name: J244.1-1n. L? C l.�c By: ? ck= � � ( A Title: ��''""'4�''�"r Its: Attorney of Record Date: 2/2 z RELEASE AND SETTLEMENT AGREEMENT Page 6 of 6 156301940 2 1 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEM ENT Item No. 6. For Meeting of: April 26, 2022 ITEM TITLE: Resolution authorizing release and settlement agreement in the matter of West Valley School District vs. City of Yakima, Yakima County Superior Court Cause No. 21-2-02153-39 SUBMITTED BY: Sara Watkins, City Attorney SUMMARY EXPLANATION: Please see attached. ITEM BUDGETED: STRATEGIC PRIORITY: APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOM M ENDATION: Adopt resolution. ATTACHMENTS: Description Upload Date Type 0 resolution 4/22/2022 Corer Memo ❑ Joint Statement 4/21/2022 Corer Memo 0 Release & Settlement Agreement 4/21/2022 Backup Material