20-234.00 Western States: Settlement Agreement LUA-2020-0030 o-2 j
SETTLEMENT AGREEMENT AND RELEASE OF SEPA APPEAL LUA-2020-0030
This settlement agreement and release ("Agreement") is made and entered into by and
between the City of Liberty Lake, a Washington municipal corporation ("COLL"), the City of
Spokane Valley, a Washington municipal corporation ("COSV"), and Western States Equipment
Company,an Idaho corporation ("Western States")and is effective on the last date of execution
established below. In this Agreement, COLL, COSV, and Western States may be individually
referred to as a"Party"or collectively as the "Parties."
I. RECITALS
A. The Parties enter into this Agreement to settle and resolve all of the claims and disputes
between them related to GRD-2020-0003 and the associated State Environmental Policy Act
("SEPA" (Ch. 43.2IC. RCW)) Mitigated Determination of Non-Significance ("MDNS"), which
COSV appealed in LUA-2020-0030.
B. Western States owns property in COLL located on E. Cataldo Avenue ("Cataldo").
Western States intends to build a regional heavy equipment retail distribution and service center
on its property within the COLL(the"Project").
C. During environmental review of GRD-2020-0003, COSV submitted comments alleging
traffic and transportation impacts from the Project on its transportation system, especially with
regard to impacts from oversize truck traffic along Cataldo.
D. On August 21, 2020,COLL issued its notice of decision and MDNS for GRD-2020-0003.
The COSV was dissatisfied with the MDNS and, on September 3, 2020, COSV filed a timely
appeal to the COLL Hearing Examiner(the"Appeal"),along with supporting documentation and
studies. The COLL and Western States filed timely responses to the Appeal,along with supporting
documentation.
E. In the time period leading up to the Appeal hearing, the Parties worked cooperatively on
the proposed road improvements set forth herein that address the COSV concerns regarding
Western State's Project impacts within the COSV. The Parties agree that by resolving their
disputes through this Agreement, they will derive substantial benefits that constitute sufficient
mutual consideration to support this Agreement. The Parties enter into this Agreement as full
settlement and discharge of all COSV claims, which are, or might have been made, against the
COLL and Western States in relation to LUA-2020-0030 and GRD-2020-0003.
II. AGREEMENT
NOW,THEREFORE, in consideration of the mutual promises,covenants,and agreements
contained herein,the Parties mutually agree as follows:
1. Design and Construction of the Cataldo Road Improvements. The COSV will be solely
responsible for designing, performing, managing, overseeing and constructing two road
improvement projects (collectively the "Cataldo Road Improvements"), which consist
1
of: (1) a project to widen the sharp curve on Cataldo, which is located to the east of the
Barker roundabout,to allow oversize trucks(low-boy tractor-trailers)to navigate the curve
without crossing the center line of the roadway ("Cataldo Curve Project"), and (2) a
project to overlay Cataldo with an additional 1.5 inches of asphalt from Barker Road to the
COSV city limits ("Cataldo Paving Project"). At its sole discretion, the COSV may
combine the Cataldo Curve Project and the Cataldo Paving Project or perform the Projects
separately based on what is most cost effective for the COSV.
2. Allocation of Payment for the Cataldo Road Improvements. COSV estimates that the
Cataldo Curve Project will cost$60,000. COSV estimates that the Cataldo Paving Project
will cost $100,000. The Parties agree to the following cost allocations for construction of
these projects:
a. COSV will pay $60,000 for the Cataldo Curve Project (including providing all
design, soft, construction and construction management costs); and
b. COLL and Western States will contribute a combined $100,000 to be used by
COSV for the Cataldo Paving Project. As between COLL and Western States,the
$100,000 will be allocated 55% COLL ($55,000) and 45% Western States
($45,000). COLL's share of the Cataldo Paving Project shall be"paid"in the form
of an offset or credit to Western States as described in Section 2(e)below; and
c. The COLL/Western States share of the Cataldo Paving Project costs shall be paid
in two equal installments. The first installment will be paid by Western States
within 30 days upon written notification by COSV that it is ready to commence
construction of the Cataldo Road Improvements. The second installment will be
paid by Western States within 30 days upon written notification by COSV that the
Cataldo Road Improvements have been completed and accepted by the COSV;and
d. Should the cost of the Cataldo Road Improvements exceed $160,000, the Parties
agree to allocate responsibility for cost overages as follows: Following completion
of the Cataldo Road Improvements and COSV's presentation of an invoice, each
Party will be responsible for paying thirty-three percent (33%) of actual amounts
of the reasonable, documented cost overages up to a maximum of$8,000 per Party
($24,000 total combined overage contribution). The COLL share of cost overages
shall be "paid" in the form of an offset or credit to Western States as described in
Section 2(e)below. The COSV shall provide written notice,including appropriate
documentation, of any overages to COLL and Western States. The Parties agree
that the Western States/COLL portion of overages shall be paid within 30 days of
such written notice. The COSV will be solely responsible for any costs of the
Cataldo Road Improvements that exceed $184,000 (the $160,000 Cataldo Road
Improvements' costs and $24,000 overage allocation);and
2
e. Any contribution made by the COLL as described in this Section 2 shall be in the
form of an offset or credit to Western States of the Harvard Road Mitigation Project
fees imposed pursuant to the MDNS (the"Credit"). In order to receive the Credit,
Western States shall present all invoices received from COSV related to the Cataldo
Road Improvements along with receipts reflecting amounts Western States has paid
in response thereto. After review and verification of the same,COLL shall apply a
Credit in an amount calculated by this Section 2 to the amount otherwise owing by
Western States for the Harvard Road Mitigation Project fees imposed in the MDNS.
3. COSV Acknowledgement that the Cataldo Road Improvements Satisfy Its Concerns. The
Parties agree Western States, as required and allowed by law, may be required to obtain
special permits from the Washington State Department of Transportation("WSDOT")for
operation of extra-legal loads in WSDOT facilities,including the Barker Road Roundabout
that intersects Cataldo. Western States agrees it will comply with any requirements of such
approved WSDOT permits and will follow such permit requirements for operations
through the Barker Road Roundabout and through the portion of Cataldo immediately east
of the Barker Road Roundabout up to the Cataldo Curve. COSV acknowledges that the
Cataldo Road Improvements will sufficiently strengthen the road surface, provide for road
longevity, and alleviate conditions at the Cataldo Curve to safely accommodate existing
traffic and the anticipated traffic from Western States' Project, including the operation of
low-boy tractor trailers loaded with heavy equipment. COSV further agrees that
construction of the Cataldo Road Improvements and the operations identified in this
paragraph fully resolve COSV's concerns and that it will make no further requests or
demands from COLL or Western States related to alleged traffic impacts along Cataldo.
Finally, the COSV agrees that it will not impose weight limits or other travel restrictions
on Cataldo that would impede the operations of Western States'Project for at least 10 years
after the opening date of the Project, and will do so thereafter only upon a demonstration
of good cause.
4. Timing of Cataldo Road Improvement Construction. Western States intends to begin
construction on its Project in the spring of 2021,as soon as the weather will permit. COSV
will coordinate with Western States on construction timing to ensure that the Cataldo Road
Improvements are complete before the opening of the Western States' Project. It is the
Parties intent that the Cataldo Road Improvements be constructed expeditiously and be
completed on or before September 30, 2021. The COSV agrees that any delay in the
completion of the Cataldo Road Improvements will not interfere with, delay, or condition
the opening of Western States' Project, including the operation of low-boy tractor trailers
on Cataldo.
5. COSV's Agreement to No Further Protest. The COSV will not further object to,or appeal,
or encourage others to object to, or appeal, any remaining permits or approvals that
Western States may require for the construction and operation of its Project. Following
execution of this Agreement, future communications between COSV and Western States
3
related to this Agreement or the Cataldo Road Improvements will be between COSV's City
Manager, Mr. Mark Calhoun, or Deputy City Manager,John Hohman, and Western States
President, Ms. Kelly Olson.
6. Dismissal of Pending SEPA Appeal. Immediately following execution of this Agreement
by all Parties, COSV shall dismiss the Appeal with prejudice.
7. COLL Withdrawal of Pending Public Records Act Request. Immediately following
execution of this Agreement by all Parties, COLL agrees to withdraw its Public Records
Act(Ch. 42.56 RCW)request PRR 20-281 ("PRA Request"),which is currently pending
in the COSV. COLL's withdrawal of the PRA Request is without prejudice to its right to
file future public records requests, including those seeking information requested in the
PRA Request. Finally, COLL agrees that it will release all claims to file a lawsuit for any
alleged violation of the Public Records Act related to or arising out of the PRA Request.
8. Mutual Release and Discharge of Claims. The Parties hereby waive, release, and forever
discharge each other from any and all past, present,or future claims,demands,obligations,
actions, causes of action, claims, rights, damages,costs,attorneys' fees, consultants' fees,
experts' fees, losses of services, expenses and compensation of any nature whatsoever
("Claims"), whether based in tort, contract, civil rights law, constitutional provisions,
statutory rights,local laws,the common law,equity,or any other theory of recovery,which
they have or which may hereafter accrue or otherwise be acquired, which are, or might
have been, the subject of the LUA-2020-0030 Appeal and the development of Western
States Project in substantially the form proposed. This release and discharge of all Claims
shall also apply to each Party's past,present,and future officers,attorneys,agents,servants,
representatives, employees, predecessors and successors in interest, and assigns, and all
other persons, firms,or corporations with whom any of the former have been, are now, or
may hereafter be affiliated. The mutual releases granted herein is a full and general release,
with no Claims reserved. This release and the terms of this Agreement are fully binding
and constitute a complete settlement by the Parties, and the heirs, assigns, and successors
of each.
9. No Admission of Liability. The Parties acknowledge and agree that this Agreement is a
compromise of disputed Claims,and the terms contained herein are not to be construed as
an admission of liability on the part of any Party. No concession or release made by a Party
to this Agreement shall be construed or asserted as an admission of liability, wrongdoing,
or fault.
10. Recitals and Exhibits Incorporated by Reference. The Agreement's Recitals are hereby
incorporated by this reference and shall be considered as material terms of this Agreement.
11. Integration. This Agreement and its component elements constitute the entire
understanding between the Parties regarding the subject matter hereof, and no prior oral or
written agreement shall be valid.
4
12. Headings. The headings used in this Agreement are for convenience only and shall not be
used to interpret the terms of this Agreement.
13. Definitions. Words and phrases highlighted in bold herein shall have the meaning ascribed
to them by this Agreement. All other words and phrases shall be interpreted using the
ordinary meaning derived from dictionaries in common usage such as Oxford's American
Dictionary, Merriam-Webster's Dictionary, or the American Heritage Collegiate
Dictionary.
14. Authority. By executing this Agreement, each Party represents and warrants that it has
taken all necessary steps under its corporate authorities to authorize such act, and that its
execution of this Agreement is valid and binding for all purposes articulated herein. Each
signatory to this Agreement represents and warrants that he or she has full power and
authority to execute and deliver this Agreement on behalf of the Party for which he or she
is signing,and that he or she will defend and hold harmless the other Parties and signatories
from any claim that he or she was not fully authorized to execute this Agreement on behalf
of the person or entity for whom he or she signed.
15. Interpretation. This Agreement has been reviewed and revised by legal counsel for all
Parties, and no presumption or rule construing ambiguity against the drafter of the
document shall apply to the interpretation or enforcement of this Agreement.
16. Notices. All notices, demands, statements, and requests (collectively, the "notice")
required to be given under this Agreement must be in writing and shall be deemed to have
been properly given or served as of the date hereinafter specified: (i)on the date of personal
service upon the person to whom the notice is addressed or if such person is not available
the date such notice is left at the address of the person to who it is directed, (ii)on the date
the notice is postmarked by the United States Post Office, provided it is sent prepaid,
registered or certified mail, return receipt request, (iii) on the date the notice is delivered
by a courier services (including Federal Express, Express Mail, UPS or similar operation)
to the address of the person to whom it is directed,provided it is sent prepaid,return receipt
requested, or(iv) on the date sent via email to the email address of the person to whom it
is directed, provided it is sent prior to 5:00 p.m. Pacific time on the day of submission
(otherwise, it shall be deemed received the next business day). The address of the
signatories to this Agreement is set forth below:
City of Spokane Valley:
do Mr. Mark Calhoun
City of Spokane Valley
10210 E. Sprague Avenue
Spokane Valley, 99206
And a copy to:
Office of the City Attorney
c/o Mr. Erik Lamb
5
City of Spokane Valley
10210 E. Sprague Avenue
Spokane Valley, 99206
elamb@spokanevalley.org
City of Liberty Lake:
do Katy Allen
City Administrator
22710 E. Country Vista Drive
Liberty Lake, WA 99019
kallen@libertylakewa.gov
And a copy to:
Taudd Hume
Witherspoon Brajcich McPhee, PLLC
601 West Main Avenue, Suite 714
Spokane, WA 99201
thume@workwith.com
Sean Boutz
Evens Craven& Lackie, P.S.
818 W. Riverside, Suite 250
Spokane, WA 99201
SBoutz@ecl-law.com
Western States Equipment Company:
do Ms. Kelly Olson, President
500 E. Overland Rd.
Meridian, Idaho 83642
Kelly.Olson@wseco.com
And a copy to:
Stoel Rives LLP
do Patrick Mullaney
600 University Street, Suite 3400
Seattle, WA 98101
Email: patrick.mullaney@stoel.com
Each Party shall have the right at any time,upon at least ten(10)days' prior written notice,
thereof in accordance with the terms, provisions and conditions hereof, to change its
respective address and to specify any other address within the United States of America;
provided however, notwithstanding anything herein contained to the contrary, in order for
the notice of address change to be effective it must actually be delivered. Refusal to accept
delivery of a notice or the inability to deliver a notice because of an address change which
was not properly communicated shall not defeat or delay the giving of a notice.
6
16. Assignment. No Party may assign its rights or obligations in whole or in part under this
Agreement, without the prior written consent of the other Parties to this Agreement. Such
consent by the non-assigning Parties shall not be unreasonably withheld, delayed or
conditioned.
17. Severability. This Agreement does not violate any federal or state statute, rule,regulation
or common law known; but any provision which is found to be invalid or in violation of
any statute, rule, regulation or common law shall be considered null and void, with the
remaining provisions remaining viable and enforceable to the extent permitted by law.
18. Third Party Beneficiary. This Agreement is not intended to create, nor shall it be in any
way interpreted or construed to create, any third-party beneficiary rights in any person or
entity not a Party to this Agreement.
19. Dispute Resolution. It is the Parties' intent to work cooperatively and to resolve disputes
concerning this Agreement in an efficient and cost-effective manner.
a. Settlement Meeting. If any dispute arises between the Parties relating to
this Agreement, then the Parties shall meet and seek to resolve the dispute in good
faith, within twenty (20)days after a Party's request for such a meeting.
b. Unresolved Disputes. In the event that the Parties are unable to resolve
their dispute at the Settlement Meeting,either Party may commence an action in Spokane
County Superior Court to enforce this Agreement.
c. Governing Law and Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington, without regard to its
conflict of laws principles. Venue for any dispute under this Agreement shall lie
exclusively in the Spokane County Superior Court, and the Parties hereby waive any
claim of forum non conveniens.
d. Specific Performance and Materiality. The Parties specifically agree that
damages are not an adequate remedy for breach of this Agreement and that the Parties
are entitled to compel specific performance of all material terms of this Agreement by
any Party in default hereof. All terms and provisions of this Agreement are material.
e. Attorneys' Fees. In any judicial action to enforce or determine a Party's
rights under this Agreement,the prevailing party(or the substantially prevailing party, if
no one party prevails entirely) shall be entitled to reasonable attorneys' fees, expert
witness fees, and costs, including fees and costs incurred in the appeal of any ruling of a
lower court.
20. No Waiver of Right to Demand Performance. No failure on the part of any Party
to exercise and no delay in exercising any right or remedy under this Agreement shall operate as a
waiver thereof; nor shall any single or partial exercise by any Party of any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any other right.
21. Cooperation in Execution of Documents. The Parties agree to properly and
promptly execute and deliver any and all additional documents that may be necessary to render
7
this Agreement practically effective. This Paragraph shall not require the execution of any
document that expands, alters or in any way changes the terms of this Agreement.
22. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original, but all of which shall constitute one (1) instrument. Delivery of the
executed counterpart of this Agreement via facsimile or electronic mail in portable document file
format (.pdf) shall be as effective as delivery of an originally signed executed counterpart of this
Agreement.
23. Full Understanding. The Parties each acknowledge, represent and agree that
they have read this Agreement; that they fully understand the terms thereof; that they have
had the opportunity to be fully advised by their legal counsel and any other advisors with
respect thereto; and that they are executing this Agreement after sufficient review and
understanding of its contents.
24. Final and Complete Agreement. This Agreement is integrated and constitutes
the final and complete expression of the Parties on all subjects relating the COSV Appeal,the
adequacy of Cataldo, and the development of the Western States' Project. This Agreement
may not be modified, interpreted, amended, waived or revoked orally, but only by a writing
signed by all Parties. This Agreement supersedes and replaces all prior agreements,
discussions and representations on all subjects discussed herein,without limitation. No Party
is entering into this Agreement in reliance on any oral or written promises, inducements,
representations, understandings, interpretations or agreements other than those contained in
this Agreement and the exhibits hereto.
IN WITNESS WHEREOF,the Parties have signed this Agreement as set forth by the signatures
appearing below.
CITY OF LIBERTY LAKE,a Washington municipal corporation
Shane Brickner, Mayor
Date: rZ (Z (2 6 Ld
8
Attest: Jae-040.ft_
Ann Swenson,City Clerk
APPROVED AS TO FORM
.1(
O 110 the , ,ttorney
9
•
CITY OF SPOKANE VALLEY,
a Washington municipal corporation
Y,/g.Ak__ MLA--
Mark Calhoun, City Manager
Date: 218/20 2-0
Attest: `i4.t.etc. ip/
Christine Bainbridge, City Clerk
APPROVED AS TO FORM
Office oft i y ttorney
10
WESTERN STATES EQUIPMENT COMPANY,
an Idaho corporation
Kelly Olson, President
Date:
•
11