AG 05-171 - JOSEPH FEVERSTEIN/ROBERT BACON
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DATE IN: I DATE OUT: I TO:
CITY OF FEDERAL WAY LAW DEPARTMENT
REQUEST FOR CONTRACT PREPARATIONfDOCUMENT REVIEW/SIGNATURE ROUTING SLIP
1. ORIGINATING DEPT./DIV: \--OJ U
2. ORIGINATING STAFF PERSON: EXT: 3. DATE REQ. BY:
4. TYPE OF DOCUMENT REQUESTED (CHECK ONE)
D PROFESSIONAL SERVICE AGREEMENT D SECURITY DOCUMENT (E_G AGREEMENT &
D MAINTENANCE/LABOR AGREEMENT PERFIMAIN BOND; ASSIGN1vlENT OF FUNDS IN LIEU OF BOND)
D PUBLIC WORKS CONTRACT D CONTRACTOR SELECTION DOCUMENT
D SMALL PUBLIC WORKS CONTRACT (E.G., RFB, RFP, RFQ)
(LESS THAN $200,000) D CONTRACT AMENDMENT AG#:
D PURCHASE AGREEMENT) D CDBG Q~y~
(M:ATERlALS, SUPPLIES_ EQUIPMENT) 'lrOTHER~m~
D REAL ESTATE DOCUMENT
5. PROJECTNAME'\"* f\ ~\>.D \)\~O I J>n~. .y Vi~ ~\ lAL I Jhc.
6_ NAME OF CONTRACTOR: :)~h ~ ll..X"~k.A f:) 112o~ ~<:.-C:)n
ADDRESS: I TELEPHONE
SIGNATURE NAME: TITLE
7. ATTACH ALL EXHIBITS AND CHECK BOXES D SCOPE OF SERVICES o ALL EXI-HBfTS REFERENCED IN DOCUMENT
D INSURANCE CERTIFICATE D DOCUMENT AUTHORIZING SIGNATURE
8. TERM: COMMENCEMENT DATE: COMPLETION DATE:
9. TOTAL COMPENSATION $ (INCLUDE EXPENSES AND SALES TAX, IF ANY)
(IF CALCULATED ON HOURLY LABOR CHARGE-ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES)
REIMBURSABLE EXPENSE: DYES D NO IF YES, MAXIMUM DOLLAR AMOUNT: $
IS SALES TAX OWED DYES DNO IF YES, $ ---~ PAID BY: D CONTRACTOR D C1T
10. CONTRACT REVIEW INITIAL/DATE APPROVED INITIAL/DATE APPROVED
D PROJECT MANAGER
D DIRECTOR
D RISK MANAGEMENT --
DLAW
II. CONTRACT SIGNATURE ROUTING INITIAL/DATE APPROVED INlTIAL/DATE APPROVED
D LAW DEPARTMENT : tt1 -
'Jil CITY MANAGER
D CITY CLERK
~ SIGN COPY BACK TO ORGINATING DEPT.
ASSIGNEDAG# . 0<;'-/7/
D PURCHASING: PLEASE CHARGE TO:
COMMENTS
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10/09/02
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SETTLEMENT AGREEMENT
THIS AGREEMENT is made by and between T&A PLUS VIDEO, INC., a
Washington corporation ("T &A"), VIDEO BLUE, INC., a Washington corporatio
("Vidoo HI~"), "d "'" Ci<y of Foooml W'y, , W~hi'g<O' mooi"'" oo<porn,
("C~ty'?: T&A, Video Blue, and the City are referred to collectively herein as/ 4f:' rt::
parties. (, &
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RECITALS / f';- ? !!/!/:~
A. Bo." T&A ood Vidoo Hloo ,re rem" OO,i",,,,, whic" f,1I ~D' 0 <"v ~
definition of "adult retail" as set forth in Section 22-l(A)(4) of the Feder (Wi Ip; i
City Code ("FWCC"), as amcnded by Federal Way Ordinance No. 99-347. ;;;:
is located at 29500 Pacific Highway South in Federal Way, W A ('T &A Site");
Video Blue is located at 29100 Pacific Highway South, Federal Way, W A
("Video Blue Site").
B. Under the FWCC and Ordinance No. 99-347, codified at FWCC Section 763, an
adult retail usc is permitted only in the BC zone, and are subject to scparation
requirements from other sensitive uses (e.g., residential uses, churches, schools) and
from other adult retail uses.
C. T &A and Video Blue are required by the FWCC and Ordinance No. 99-347 to
relocate from their present locations to the BC zone in the southern part of Federal
Way, in the general vicinity of Pacific Highway South and South 348'h Street.
T&A is required to relocate by August 12,2000. Video Blue is required to
relocate by August 12, 200 I.
D. T&A and Video Bluc have sued the City in the United States District Court for
the Western District of Washington, in T&A Plus, Inc. and Video Blue Inc. v. the
City of Federal Way, Case No. COO-1143P. T&Aand Video Blue have alleged,
inter alia, that Ordinance No. 99-347 on its face and as applied deprives T &A and
Video Blue of rights afforded by the First and Fourteenth Amendments to the
United States Constitution, in that Ordinance 99-347 allegedly: (1) does not further
a substantial governmental interest; (2) fails to afford reasonable alternative avenues
of communication; and (3) fails to provide adequate parameters for or duration of
extension of the time limit for termination or relocation of any nonconforming adult
retail uses.
E. The parties, recognizing the inherent delay and cost of further litigation, wish to
enter into this Agreement to resolve their disputes and achieve a final settlement of
any claims that T &A and Video Blue may have arising out of the City's enactment
and/or enforcement of Ordinance 99-347.
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AGREEMENT
In considcrationof thc mutual promises, covenants, and agreements
contaitled herein, the parties hereby agree as follows:
I. City Agreement.
1.1 111e City agrees that it will not apply FWCC Section 22-763(1)(a) to require
T&A or Video Blue to relocate from or cease operation of their cxisting adult retail
businesses at the locations described in Paragraph A above before February 13,
2005.
1.2 The City agrees that, in the evcnt it reccivesa request seeking public
disclosure of federal tax returns or other financial documents Video Blue submitted
to the City as part of Video Blue's requcst for an extension of the amortization
period deadline, the City will provide Video Blue notice of such request and an
opportunity to object prior to disclosing the tax returns and other financial
documents.
2. T&A and Video Blue's Agreement.
2.1.1 Except as specifically provided otherwise in any amendment to the FWCC
or this Agreement approved in writing by the City, T&A agrees that, as of February
13,2005, or the date that it obtains property for, executes a lease for, or commences
operation of an adult retail or adult entertaimnent use on a site other than the T &A
Site within the City of Fcderal Way, whichever occurs first, T&A will do onc of the
following: (I) relocate il~ business from the T &A Site to a location then permitted
by the FWCC; or (2) ceasc conducting any adult retail usc, adult entertairunent use,
adult activity or other adult use, all as defined in Federal Way City Codc Section 22-
I(A)(4),at the T&A Sitc,.
2.1.2 Except as specifically provided otherwise in any amendment to the FWCC
or this Agreement approved in writing by the City, Video Blue agrees that, as of
February 13,2005, or the date that it obtains property for, executes a lease for, or
commences operation of an adult retail or adult entertairunent use on property other
than the Vidco Blue Site within thc City of Federal Way, whichevcr occurs first,
Video Blue will do onc of the following: (I) relocate its business from the Video
Bluc Site to a location then permitted by the FWCC; or (2) cease conducting any
adult retail use, adult entertairunent use, adult activity or other adult use, all as
defined in Federal Way City Code Section 22-1 (A)(4),at thc Video Blue Site.
2.2 T&A and Video Blue each release and foreverdischargethc City, its past,
present and future City Council membcrs, offtcials, employees, agents,
representatives, attorneys, insurance carriers, and the collective spouses of all of
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those persons, from any and all claims, demands, causes of action, costs, and
damages of any kind, known or unknown, existing or arising in the future, which
were claimed, alleged or asserted or which could have been c1aimcd, alleged or
asserted in the lawsuit referred to in Paragraph D above.
2.3 T &A and Video Blue shall dismiss, with prejudice and without costs or
attorneys fees, the lawsuit referred to in Paragraph D above. Dismissal shall be
accomplished by filing a stipulation and order for dismissal in the United States
District Court for the Western District of Washington within seven (7) calendar
days of the effective date of this agreement, which shall be when all parties or
their authorized representatives have affixed their signatures thereto. The
stipulationshall read as follows: 'The parties have reached a settlement, and
request that this matter (including the Complaint for Injunctive and Declaratory
Relief) be dismissed with prejudice, each party to bear its own attorney fees and
costs."
2.4 In light of Paragraphs 2.2 and 2.3 above, T &A and Video Blue each
covenant and agree not to file suit or otherwise challenge FWCC Section 22-763 /
Ordinance 99-347 or any other legislation that is less restrictive with respect to the
location or operation of adult retail uses than FWCC Section 22-763 / Ordinance
No. 99-347. T&A and Video Blue each further covenant and agree not to aid,
abet, encourage, or assist any other person, entity or party to file suit or otherwise
challenge Ordinance 99-347.
2.5 The dismissal with prejudice provided for in Paragraph 2.3, and T&A's
and Video Blue's covenant not to sue contained in Paragraph 2.4, shall not
preclude T &A or Video Blue from challenging other legislation enacted in the
future by the City of Federal Way if said future legislation is more restrictive with
respect to the location or operation of adult retail uses than FWCC Section 22-763
/ Ordinance 99-347.
3. Mutual Agreements. The parties mutually agree that the terms of this
Agreement shall remain confidential, except insofar as disclosure of this
Agreement is specifically required by law. When discussing the matter with
other persons or entities, the parties shall state only that "the matter has been
settled," without disclosing the terms of this Agreement. The parties also
mutually agree that they shall refrain from making public disparaging comments
concerning any other party with regard to the FWCC and lor Ordinance 99-347.
4. Enforcement. Any party may enforce this Agreement by seeking specific
performance or injunctive relief in addition to pursuing any other remedy
available in equity or law. If any party resorts to litigation to enforce the terms
of this Agreement, the substantially prevailing party in that litigation shall be
entitled to recover its reasonable attorneys' fees and costs. Any lawsuit seeking
to enforce this Agreement shall be brought in King County Superior Court.
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5. Warranties and Representations. The parties mutually walTant and represent
that this document constitutes the entire agreement between them and that there
are no other promises or representations other than what is specifically set forth
herein. The City, T&A and Video Blue each represent and walTant to the other
that it has the respective power and authority, and is duly authorized, to
execute and deliver this Agreement and that the persons signing on their
respective behalves are duly authorized to do so. The parties mutually warrant
and represent that this Agreement, and the terms thereof, are not subject to
change, waiver, or modification except by written document signed by all
parties to this Agreement.
6. Heirs, Successors, and Assigns. The terms and conditions of this Agrcement
shall be binding upon and inure to the benefit of the heirs, successors, and
assignsofT&A, Video Blue, and the City. IfT&A or Video Blue own any
interest in the real property on which their businesses are currently located, a
copy of this Agreement shall be recorded against said real property.
7. Legal CounseL The undersigned parties acknowledge, represent, and agrce that
they have read this Agreement and any attachments and fully understand the
terms and that they have been advised by their legal counsel with respect
thereto.
8. Facsimile Transmission and Counterpart Originals. Facsimile Transmission
of any signed original document and retransmission of any signed facsimile
document, shall be the same as delivery of an original. At the request of any
party, the parties will confirm facsimile transmitted signatures by signing an
original document. This agreement may be signed in one or more counterparts,
each of which shall also be considered an original.
EXECUTED AS OF THE DATES STATED BELOW
T &A PLUS, INC.
By: BY:_1UJ-- J3.. Co.
David H. Moseley Robert Bacon
City Manager Its:
Date: q (aiM Date:
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Its:
Date:
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
On this day personally appeared before me If tJ/"'~T ~,4CQA/ , to me known to
be the ",,',e.. I'At!'S:O~,L "7 of T&A PLUS, INC., the Washington corporation
that executed the foregoing instrument, and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation, for the uses and purposes thcrein
mentioned, and on oath stated that he/she was authorized to execute said instrument and
that the seal affixed, if any, is the corporate seal of said corporation.
GIVEN my hand and official seal this I C. +-- day of o ~ -h:, k~ ,
2000. ~
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(signature)
LOI."'-".'-<' (Co -f' -F .,.. ""-
(typed/printed name of notary)
Notary Public in and for the State of Washington.
My commission expires s- '''1-o'f
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STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
On this day personally appeared before m " hF; ",r '5~,'~ to me known to
be the of VIDEO BL E, INC., the Washington corporation
that executed the foregoing instrument, and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that he/she was authorized to execute said instrument and
that the seal affixed, if any, is the corporate seal of said corporation.
GIVEN my hand and official seal this Jqy/" day of CJ--I/-o j <>.r-- ,
2000. ..."",,,,\\ c.p~~ ~,a~~
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II, ~ 1111,Oi__OZ ........... .: Notary Public in and for the State of Washington.
'I q. 111~ .: My commission expires 5'-1---~7
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STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
On this day personally appeared before me David H. Moseley, to me known to be the
City Manager of the City of Federal Way, a Washington municipal corporation that
executed the foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of said municipal corporation, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said instrument
on behalf of said municipal corporation.
GIVEN my hand and official seal this d.:J.ftJ. day of Sef!et'i1 ber ,
2000.
EILEEN ROBINSON io~ ~~~U
STATE OF WASHINGTON (signature)
NOTARY -0- PUBLIC E /(eet1 --;-) j, .
LlY COLllllSSION EXPIRES 1-29-(2 f,b IIzSo"
_. (typed/printed name of notary)
Notary Public in and for the State of Washington.
My commission expires /- J.4-0oL
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