Motion To Intervene in Complaint Against Mayor Benson

1 HONORABLE RICHARD MCDERMOTT
DATE: OCTOBER 24, 2017

2 WITHOUT ORAL ARGUMENT
3
7 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
8
CITY COUNCIL OF BLACK DIAMOND,
9 NO. 17-2-26654-0 KNT
Plaintiff,
10 MOTION TO INTERVENE OF CCD BLACK
v. DIAMOND PARTNERS, LLC
11
CAROL BENSON,
12
Defendant.
13
14 I. RELIEF REQUESTED
15 CCD Black Diamond Partners, LLC (Oakpointe) hereby moves to intervene as a
16 matter of right in the above-captioned lawsuit. 1 Oakpointe and the City of Black Diamond (the
17 City) are parties to what Plaintiffs Complaint terms the Master Planned Development
18 Agreement. This agreement governs the development of real property owned by Oakpointe and
19 the agreement and the development itself is the focal point Plaintiffs allegations. This lawsuit,
20 therefore, directly relates to Oakpointes contractual rights and property interests. As such,
21 Oakpointe has a substantial interest in the subject of this lawsuit that will unquestionably impair
22 Oakpointes ability to protect its interests, and the existing parties do not adequately represent
23
24
1
CCD Black Diamond Partners, LLC is the successor-in-interest to BD Village Partners, LP and BD Lawson Hills
25 Partners, LP, and is now the owner of real property located within the City of Black Diamond, and through its
Manager, Oakpointe LLC, is in the process of developing such real property. Oakpointe is the commonly used
26 name for the developer, and such terminology is maintained here for purposes of consistency before the court. See
e.g., Plaintiffs Complaint, 3.9-3.17, 4.1-4.4, 7.1.
MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

PARTNERS, LLC - 1 ATTORNEYS AT LAW
524 2nd Ave, Suite 500
Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
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1 Oakpointes interests. Oakpointe, therefore, respectfully requests the court permit Oakpointe to
2 intervene in this matter pursuant to Civil Rule 24 and to file the enclosed Complaint.
3 II. STATEMENT OF FACTS
4 Oakpointe is a real estate developer and the Master Developer of two Master Planned
5 Developments, Ten Trails, formerly known as The Villages, and Lawson Hills (the MPDs)
6 located within the City of Black Diamond. Declaration of Megan Nelson (Nelson Decl.), 2.
7 In 2009, Oakpointe (through its predecessor, Yarrow Bay) filed formal applications for master
8 land use entitlements, known as Master Planned Development Permits (the MPD Permits).
9 Id. The MPD Permits sought and were processed and approved for the ultimate development of
10 6,050 new homes and over 1 million square feet of commercial development. Id. 3.
11 Among the MPD Permit conditions, and also a requirement of the Black Diamond
12 Municipal Code, was entry into two largely identical Development Agreements to govern the
13 long-term build out of the new homes and businesses within the MPD lands, one for Ten Trails
14 and the other for Lawson Hills (the Development Agreements). Id. In 2011, pursuant to
15 Ordinance Nos. 11-970 and 11-971, the then constituted City Council approved the Citys entry
16 into the Development Agreements for the MPDs with the master developer of each, Oakpointe
17 (through its predecessors-in-interest BD Village Partners, LP and BD Lawson Hills Partners,
18 LP). Id. 4. Development Agreements are authorized by RCW 36.70B.170 et seq., to set forth
19 the development standards and other provisions that shall apply to, govern and vest the
20 development, use, and mitigation of the development of the real property. With respect to this
21 dispute, the statute instructs that those development standards may address financial
22 contributions by the property owner, review procedures and standards for implementing
23 decisions, and any other appropriate development requirement and procedure. RCW
24 36.70B.170(3)(b), (h), and (j), respectively.
25 Pursuant to MPD Permit Condition No. 156, a specific MPD Funding Agreement was
26 required to be entered. Nelson Decl., 5. To ensure that the permitting process would proceed,

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1 the City and Oakpointe entered into the Funding Agreement (the Funding Agreement),
2 incorporated as Exhibit N of the Development Agreements. Id. 5. The Funding Agreement
3 created the Master Development Review Team (the MDRT), as the expert reviewers
4 necessary to the permitting process, and provided that the primary function of the MDRT is to
5 process, review, and implement development permits and development agreements for the
6 MPDs. Id. 6-8. In exchange for this functioning system, Oakpointe agreed to fund the MDRT,
7 including consultant fees, and other costs associated with the entitlement process. Id. Exh. A,
8 Recital N and Sections 2, 3(b), 5, and 7(b).
9 After the Development Agreements and the Funding Agreement were approved and
10 executed, the MDRT was formed. Id. 9. To this end, the City entered into long-term contracts
11 with MDRT consultants to address numerous substantive entitlement areas, e.g., surveying, civil
12 engineering, wetland and environmental services, etc. Id. The most recent long-term contracts
13 expired in late 2016. Id. 10. Following the expiration of these contracts, the City Council
14 majority, made up of Brian Weber, Pat Pepper, and Erika Morgan, have undertaken various
15 efforts to impede entry into new the MDRT contracts. Morgan, Pepper, and Weber refused to
16 approve multiple different versions of new MDRT contracts with existing consultants, including
17 after a request for qualifications process resulted in no qualified consultants, other than the
18 original MDRT consultants, seeking the work. Id. 11. At one point, the Council majority of
19 Morgan, Pepper, and Weber proposed adoption of MDRT consultant contracts including terms
20 that had not been discussed, negotiated or agreed to by the MDRT consultants themselves. Id.
21 Pursuant to RCW 36.70B.080, RCW 64.40.020(1), and U.S.C. 1983, State and federal
22 law obligate the City to accept and process permits for new development projects, and to do so in
23 a timely manner, or face the risk of a land use damages claim. Since the MDRT consultant
24 contracts expired in late 2016, the MDRT has continued to process and review Oakpointes
25 permit applications. Nelson Decl., 12. Oakpointe understands that in an effort to avoid the
26 Citys breach of the Development Agreements and the Funding Agreement, the Mayor has been

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1 executing multiple contracts with MDRT consultants capped at $15,000 per contract. Id. 13.
2 In accordance with Oakpointes payment obligations under the Development Agreements and
3 the Funding Agreement, Oakpointe has continued to make payments to the City to pay for
4 MDRT work. Id. 12.
5 Plaintiffs Complaint is expressly based on the Development Agreements, Funding
6 Agreement, and the above-described MDRT dispute. See Plaintiffs Complaint, 3.9-3.17.
7 Plaintiff requests a declaratory judgment barring the Mayor from continuing to execute $15,000
8 MDRT contracts. Id. 4.1-4.4, 7.1. Since Plaintiff has impeded entry into any long-term
9 MDRT consultant contracts, Plaintiffs requested relief in this action would result in the MDRT
10 being unstaffed and unable to process Oakpointes pending and future development permit
11 applications. That failure would violate law and constitute the Citys breach of the Development
12 Agreements, and the Funding Agreement. Lack of an MDRT would significantly impair
13 development of the MPDs and Oakpointes property interests. Nelson Decl., 15.
14 In light of Oakpointes substantial interests at issue and if Oakpointe is permitted to
15 intervene, Oakpointe intends to file a motion to stay this lawsuit until at least after April 1, 2018.
16 Id. 16. Plaintiffs Complaint seeks relief related to enforcing certain Council Rules of
17 Procedure. Plaintiffs Complaint, 3.8, 7.3, 7.4. The validity of those Council Rules of
18 Procedure is the subject matter of separate litigation, King County Superior Court Cause No.
19 16-2-29091-4 KNT, which includes a claim by Oakpointe that the Rules are void ab initio.
20 Nelson Decl., 16. Resolution of this separate litigation is warranted in advance of this current
21 matter proceeding. The trial date for the separate litigation is currently scheduled for February
22 26, 2018. Id. 16. Additional justification to stay the present dispute is to provide City
23 Councilmembers newly-elected during the November election the opportunity to decide whether
24 it is in the Citys best interest to continue this litigation. Id. 17. Notably, Councilmember
25 Brian Weber and Councilmember Pat Pepper, who are two of three-member majority
26 Councilmembers principally responsible for this litigation, are not pursuing reelection. Id.

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1 III. ISSUE PRESENTED
2 Should the court permit Oakpointe to intervene in this lawsuit because Oakpointes
3 contractual rights and real property interests are the subject matter of this dispute?
4 IV. EVIDENCE RELIED UPON
5 This Motion is supported by the Declaration of Megan Nelson and attachments thereto,
6 and the pleadings, records, and files of this case.
7 V. ARGUMENT
8 This dispute will directly impact Oakpointes contractual rights under the Development
9 Agreements and Funding Agreement, and Oakpointes property rights as related to the
10 development of the MPDs. Plaintiffs Complaint expressly named Oakpointe, its contractual
11 rights, and property as the subject of its lawsuit, and Plaintiffs requested relief will impede
12 Oakpointes interests. Plaintiffs Complaint, 3.9-3.17, 4.1-4.4, 7.1. Oakpointe is therefore
13 entitled to intervene as a matter of right pursuant to CR 24(a).
14 Intervention as a matter of right under CR 24(a) should be granted upon a showing of
15 four elements: (1) a timely application; (2) where the applicant claims an interest in the subject
16 matter of the action; (3) where disposition of the action will impair or impede the applicants
17 ability to protect its interest; and (4) where the applicants interest is not adequately represented
18 by existing parties. Westerman v. Cary, 125 Wn.2d 277, 303, 892 P.2d 1067 (1994). The
19 requirements of CR 24(a) are to be liberally construed to favor intervention. Columbia Gorge
20 Audubon Society v. Klickitat County, 98 Wn.App. 618, 623, 989 P.2d 1260 (1999); see also
21 American Discount Corp. v. Saratoga West, Inc., 81 Wn.2d 34, 40, 499 P.2d 869 (1972).
22 A. Oakpointes Motion to Intervene is timely.
23 The decision as to whether a motion to intervene is timely is within the courts discretion.
24 Kreidler v. Eikenberry, 111 Wn.2d 828, 832, 766 P.2d 438 (1989). In general, a motion to
25 intervene is timely if it is filed before the commencement of trial. Columbia Gorge, 98 Wn.
26 App. at 620. Courts also typically weigh factors such as the stage of the proceedings, the reasons

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1 for and length of delay (if any) in intervening, and the prejudice to other parties if intervention is
2 permitted. Id. at 623.
3 Oakpointes Motion to Intervene is without question timely. Plaintiffs Complaint was
4 filed on October 11, 2017, and Oakpointe hereby moves to intervene within one week of this
5 action commencing. Oakpointe did not delay or otherwise seek intervention as a latecomer to
6 this suit thereby prejudicing Plaintiff. Trial in this matter is scheduled for October 8, 2018,
7 almost one year from the date of filing of Oakpointes Motion to Intervene. This first
8 requirement for timely filing of a motion to intervene is therefore satisfied.
9 B. Oakpointe has an interest in the subject matter of this action.
10 The interest test is primarily a practical guide to disposing of lawsuits by involving as
11 many apparently concerned persons as is compatible with efficiency and due process.
12 American Discount, 81 Wn.2d at 41 (quoting Smuck v. Hobson, 408 F.2d 175, 178-80 (1969)).
13 Whether a partys claimed interest is sufficient to establish its right to intervene is fact specific,
14 but [n]ot much of a showing is required. Columbia Gorge, 98 Wn.App. at 629 (internal
15 citations omitted). Furthermore, an insufficient interest should not be used as a factor for
16 denying intervention. Id.
17 Oakpointe has a substantial interest in this action because it directly relates to
18 Oakpointes contractual rights and property interests. Oakpointe and the City entered into the
19 Development Agreements and the Funding Agreement to govern the build out of the Oakpointe-
20 owned MPD lands. Nelson Decl., 3. Pursuant to these contracts, the City is required to
21 maintain a functioning MDRT so as to assure timely processing of MPD related entitlement, and
22 Oakpointe is required to fund MDRT consultant services. Id. 8. Plaintiff alleges claims based
23 on these contractual obligations and stemming from Oakpointes development of the MPDs.
24 Plaintiffs Complaint, 3.9-3.17, 4.1-4.4. Oakpointe has a significant interest in ensuring the
25 MDRT is paid and continues to function. Nelson Decl., 2-15.
26

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1 C. Disposition of this appeal will impair or impede Oakpointes ability to protect its
interests.
2
Related to the interest test, Oakpointe must demonstrate that disposition of the action will
3
impair or impede Oakpointes ability to protect its interest. Westerman, 125 Wn.2d at 303.
4
Plaintiff prays for relief that will prevent the Mayor from ensuring the City does not breach its
5
contractual obligations under the Development Agreements and Funding Agreement. Plaintiffs
6
Complaint, 7.1. If the court grants the requested declaratory judgment and holds the Mayor is
7
without authority to renew contracts associated with the Oakpointe development, including
8
contracts with consultants of the development, the majority Councils action to date have shown
9
that it will utilize this judgment as an additional tool to skirt the Citys contractual obligations
10
and stall development of the MPDs. Nelson Decl., 11-13. Any breach of the Development
11
Agreements and Funding Agreement will unquestionably result in damage to Oakpointes
12
interests and likely lead to additional litigation. Id. 15. Oakpointe has a right to protect its
13
interests by intervening in this lawsuit about contracts to which it is a party and from which
14
Oakpointe derives significant property rights.
15
D. Oakpointes interests are not adequately represented by any existing party.
16
An intervenor need only make a minimal showing that its interests are not adequately
17
represented by any existing party. Columbia Gorge, 98 Wn.App. at 629. It is not necessary
18
that the intervenors interest be in direct conflict with those of the existing parties, and an
19
intervenor need only prove that its interest may not be adequately articulated and addressed.
20
Id. at 630. Notably, courts consider whether existing parties will undoubtedly make all [of the
21
intervenors] arguments and whether the intervnor is likely to more effectively articulate any
22
aspect of its interest. Id. When in doubt, intervention should be granted. Id.
23
Ironically, the City of Black Diamond as a municipal corporation should share
24
Oakpointes interest in assuring no breach of the Development Agreements and Funding
25
Agreement to which the City is also a party, so as to avoid a lawsuit alleging breach and
26

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1 significant monetary damages. However, as demonstrated by this lawsuit, clearly the Plaintiff
2 does not. The Plaintiff consists of the majority coalition of Councilmembers Pat Pepper, Erika
3 Morgan, and Brian Weber who have collectively acted to obstruct Oakpointes development of
4 the MPDs at nearly every juncture possible. Nelson Decl., 11. Plaintiffs interests and
5 Oakpointes interests are plainly in opposition.
6 Defendant Mayor Carol Benson has acted to ensure the City meets its contractual
7 obligations under the Development Agreements and the Funding Agreement and therefore
8 ensured the MPD entitlement process continues to function via an operational MDRT. Mayor
9 Bensons interests and actions are driven by her statutory duty to ensure the City meets its
10 contractual obligations. RCW 35A.12.100 (stating the mayor shall see that all contracts and
11 agreements made with the city or for its use and benefit are faithfully kept and performed).
12 Oakpointes interests lie in its private contractual rights and property interests, including
13 obligations to third parties, such as the buyers of the residential and commercial lots that
14 Oakpointe is in the process of creating. While both Oakpointe and the Mayor share the common
15 goal to not breach the Development Agreements and the Funding Agreement, the interests
16 driving this goal are fundamentally distinct. Only Oakpointe can adequately represent its private
17 interests in this dispute.
18 VI. CONCLUSION
19 Oakpointe has a substantial interest in this dispute. Plaintiff alleges claims and requests
20 relief that will unquestionably directly impact Oakpointes contractual rights and property
21 interests. Oakpointe is a proper party to this lawsuit and should be permitted to advocate for its
22 interests. To this end, Oakpointe respectfully requests that this court grant its Motion to
23 Intervene and allow it to file the Third Party Complaint by Intervenor CCD Black Diamond
24 Partners, LLC enclosed herewith.
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26

Seattle, WA 98104
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1 DATED this 16th day of October, 2017.
2 CAIRNCROSS & HEMPELMANN, P.S.
3
4 /s/ Nancy Bainbridge Rogers

Stephen P. VanDerhoef, WSBA No. 20088
5 E-mail: svanderhoef@cairncross.com
Nancy Bainbridge Rogers, WSBA No. 26662
6 E-mail: nrogers@cairncross.com
Nicole E. De Leon, WSBA No. 48139
7 E-mail: ndeleon@cairncross.com
524 Second Avenue, Suite 500
8 Seattle, WA 98104-2323
Telephone: (206) 587-0700
9 Facsimile: (206) 587-2308
Attorneys for Intervenor CCD Black Diamond
10 Partners, LLC
11 I certify that this motion contains 2,512 words, in
compliance with the Local Civil Rules
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Seattle, WA 98104
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1 Certificate of Service
2 I, Sara Webster, certify under penalty of perjury of the laws of the State of Washington
3 that on October 16, 2017, I caused a copy of the document to which this is attached to be served
4 on the following individual(s) via electronic service
5 Anne Bremner
Frey Buck P.S.
6 1200 Fifth Avenue, Suite 1900
Seattle, WA 98101
7 Attorneys for City of Black Diamond
abremner@freybuck.com
8
9 DATED this 16th day of October, 2017, at Seattle, Washington.

10
11 /s/Sara Webster
Sara Webster, Legal Assistant
13 Seattle, WA 98104-2323
Telephone: (206) 254-4428
14 Facsimile: (206) 587-2308
E-mail: swebster@cairncross.com
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PARTNERS LLC - 10 ATTORNEYS AT LAW
Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
THIRD PARTY COMPLAINT BY INTERVENOR
CCD BLACK DIAMOND PARTNERS, LLC
1 HONORABLE RICHARD MCDERMOTT
2
7 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
8
CITY COUNCIL OF BLACK DIAMOND,
9 NO. 17-2-26654-0 KNT
Plaintiff,
10 THIRD PARTY COMPLAINT BY
v. INTERVENOR CCD BLACK DIAMOND
11 PARTNERS, LLC
CAROL BENSON,
12
Defendant
13 ______________________________________
14 CCD BLACK DIAMOND PARTNERS, LLC,

a Delaware limited liability company,
15
Intervenor and Third
16 Party Plaintiff,
17 v.
18 CITY OF BLACK DIAMOND; CITY

COUNCIL OF BLACK DIAMOND; ERIKA
19 MORGAN, an individual; PAT PEPPER an
individual; and BRIAN WEBER, an
20 individual;
21 Third Party Defendants
22
23 COMES NOW CCD Black Diamond Partners, LLC, a Delaware limited liability
24 company, for causes of action against Third Party Defendants herein, alleges as follows:
25
26
THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

BLACK DIAMOND PARTNERS, LLC - 1 ATTORNEYS AT LAW
Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
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1 I. PARTIES
2 1.1 CCD Black Diamond Partners, LLC is the owner of real property located within
3 the City of Black Diamond. Through its Manager, Oakpointe LLC, and its predecessors, CCD
4 Black Diamond Partners, LLC has spent decades and many millions of dollars lawfully pursuing
5 the permitted development of such real property. CCD Black Diamond Partners, LLC is
6 commonly referred to as Oakpointe 1 and such terminology is maintained here for purposes of
7 consistency. Oakpointe is the successor in interest to BD Village Partners, LP and BD Lawson
8 Hills Partners, LP. This Court granted Oakpointe permission to intervene in this action.
9 1.2 Defendant City of Black Diamond (the City) is an Optional Municipal Code
10 city with a mayor-council plan of government formed under the laws of Washington State and
11 governed by RCW 35A.11 and RCW 35A.12.
12 1.3 Defendant Black Diamond City Council (City Council) is the Citys legislative
13 body formed under the laws of Washington State and governed by RCW 35A.11 and RCW
14 35A.12.
15 1.4 Third Party Defendant individuals Erika Morgan, Pat Pepper, and Brian Weber
16 are members of the City Council and residents of Black Diamond, King County, Washington.
17 II. JURISDICTION AND VENUE
18 2.1 Jurisdiction is vested in the Superior Court of the State of Washington pursuant to
19 RCW 2.08.010 and venue of this case properly lies in King County Superior Court pursuant to
20 RCW 4.12.010 and -020. Venue is proper pursuant to RCW 4.12.025(1).
21 III. FACTS
22 3.1 The allegations of paragraphs 1.1 through 2.1 are incorporated by reference as
23 though fully set forth herein.
24
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1
See e.g., Plaintiffs Complaint, 3.9-3.17, 4.1-4.4, 7.1.

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1 A. The Master Planned Developments
2 3.2 Oakpointe is a real estate developer and the Master Developer of two Master
3 Planned Developments, Ten Trails, formerly known as The Villages, and Lawson Hills (the
4 MPDs) located within the City of Black Diamond.
5 3.3 In 2009, Oakpointe (through its predecessor, Yarrow Bay) filed formal
6 applications for master land use entitlements, known as Master Planned Development Permits
7 (the MPD Permits).
8 3.4 The MPD Permits were processed by the City and were approved for the ultimate
9 development of 6,050 new homes and over 1 million square feet of commercial development.
10 3.5 It was a condition of the MPD Permits and a requirement of the Black Diamond
11 Municipal Code that Oakpointe enter into Development Agreements to govern the long-term
12 build out of the MPDs (the Development Agreements).
13 3.6 In 2011, pursuant to Ordinance Nos. 11-970 and 11-971, the City Council
14 approved the Citys entry into the Development Agreements for the MPDs with the master
15 developer of each, Oakpointe (through its predecessors-in-interest BD Village Partners, LP and
16 BD Lawson Hills Partners, LP).
17 3.7 Pursuant to MPD Permit Condition No. 156, the City required a specific MPD
18 Funding Agreement. The City and Oakpointe entered into the Funding Agreement (the
19 Funding Agreement), incorporated as Exhibit N of the Development Agreements.
20 3.8 Per RCW 36.70B.170(4), adoption of the Development Agreements, including the
21 Funding Agreement, was a valid exercise of both the Citys police power and its contractual
22 authority. As provided by RCW 36.70B.180, the Development Agreements and the Funding
23 Agreement are valid enforceable contracts that set forth the development standards and
24 mechanisms to process implementing permits that are necessary for Oakpointe to build-out the
25 MPDs. To date, Oakpointe has fulfilled all of its obligations under the Development Agreements
26 and Funding Agreement.

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1 B. The Master Development Review Team
2 3.9 The Funding Agreement at Recital N and Section 3(a), created the Master
3 Development Review Team (the MDRT), to address funding and staffing of the expert
4 reviewers necessary to the MPD permitting process, and provide that the primary function of
5 the MDRT is to process, review, and implement development permits and development
6 agreements for the MPDs.
7 3.10 Per the Funding Agreement at Recital N and Sections 2, 3(b), 5, and 7(b), in
8 exchange for this functioning MDRT, Oakpointe agreed to fund the MDRT, including consultant
9 fees, and other costs associated with the entitlement process. The Funding Agreement requires
10 Oakpointe to fund virtually all of the Citys and Oakpointes costs of all development application
11 and environmental review and analysis associated with the MPDs.
12 3.11 After the Development Agreements and the Funding Agreement were approved
13 and executed, the MDRT was formed and the City entered into long-term contracts with MDRT
14 consultants.
15 3.12 The most recent long-term contracts expired in late 2016. Since the expiration of
16 these long-term contracts, the current City Council majority, made up of Third Party Defendants
17 Erika Morgan, Pat Pepper, and Brian Weber, has intentionally undertaken various efforts to
18 impede entry into new the MDRT contracts. For example, Morgan, Pepper, and Weber refused
19 to approve multiple different versions of new MDRT contracts with existing consultants,
20 including after a request for qualifications process resulted in no qualified consultants, other than
21 the original MDRT consultants, seeking the work. At one point, the Council majority of
22 Morgan, Pepper, and Weber proposed adoption of MDRT consultant contracts including terms
23 that had not been discussed, negotiated or agreed to by the MDRT consultants.
24 3.13 Pursuant to RCW 36.70B.080, RCW 64.40.020(1), and U.S.C. 1983, State and
25 federal law obligate the City to accept and process permits for new development projects, and to
26 do so in a timely manner, or face the risk of a land use damages claim.

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1 3.14 Among other powers, under RCW 35A.12.100, the Mayor of the City is charged
2 with being the chief executive and administrative officer of the city, in charge of all
3 departments and employees, and has general supervision of the administration of city
4 government and all city interests, and shall see that all contracts and agreements made with the
5 city or for its use and benefit are faithfully kept and performed.
6 3.15 In separate litigation before the King County Superior Court as Cause No. 16-2-
7 29091-4 KNT, the Mayor has been expressly authorized to contract for the Citys legal
8 representation independent of the City Council majority, as a necessary power to enable her to
9 fulfill her obligation to see that all City laws and ordinances are faithfully kept and enforced.
10 3.16 On information and belief, Oakpointe understands that in an effort to avoid the
11 Citys breach of the Development Agreements and the Funding Agreement, the Mayor has been
12 executing serial contracts with MDRT consultants capped at $15,000 per contract.
13 3.17 Through their lawsuit, in which Oakpointe now intervenes, Third Party
14 Defendants Erika Morgan, Pat Pepper, and Brian Weber purport to represent the City Council
15 of Black Diamond in an action to deprive the Mayor of her authority to execute contracts
16 related to the MPDs, including the MDRT consultant contracts.
17 3.18 On information and belief, although the MDRT continues to function and review
18 and process permits for the construction and development of the MPDs, the MDRT consultants
19 are now operating without long-termcontracts. If the individual Third Party Defendants continue
20 to refuse to approve long-term contracts, and are allowed to usurp the authority of the Mayor and
21 prevent the execution of new short-term MDRT consultant contracts, they will shut down the
22 work necessary to allow Oakpointe to fulfill its obligations under the Development Agreements
23 and Funding Agreement. If the individual Defendants are allowed to continue on their
24 intentional and unlawful path, they will fulfill their goal of preventing the already-approved
25 MPDs from being completed.
26

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1 C. The Rock Creek Improvements
2 3.19 Section 11.6 of the Development Agreement requires Oakpointe provide certain
3 pedestrian improvements along Roberts Drive from 100 feet west of the Rock Creek Bridge to
4 Bruckners Way (the Rock Creek Improvements). Section 11.6 of the Development
5 Agreement also requires the City and Oakpointe work in good faith to seek grants and other
6 funding mechanisms to construct this improvement.
7 3.20 In satisfaction of Oakpointes contractual obligations to construct the Rock Creek
8 Improvements and act in good faith to secure additional funding, Oakpointe pledged a $46,000
9 funding commitment to the City for the Rock Creek Improvements (Oakpointes Rock Creek
10 Commitment).
11 3.21 As a result of securing Oakpointes Rock Creek Commitment, the City qualified
12 to apply for a grant from the Washington State Transportation Improvement Board and, coupled
13 with the good faith efforts of City Staff, the City ultimately received a grant in the amount of
14 $474,300 for the Roberts Drive Rehabilitation Project, the scope of which included the Rock
15 Creek Improvements and additional bridge repair work (the Board Grant).
16 3.22 Instead of proceeding in good faith to utilize this funding for the Rock Creek
17 Improvements and additional bridge repair work, Third Party Defendants Erika Morgan, Pat
18 Pepper, and Brian Weber, acted outside the scope of their authority and caused the City to breach
19 its express obligations under the DA and its duty of good faith and fair dealing under the
20 Development Agreement by reversing course and overtly acting in bad faith to eliminate the
21 Rock Creek Improvements and additional bridge repair work from the final scope of the Roberts
22 Drive Rehabilitation Project.
23 3.23 The effect of the intentional actions of the Third Party Defendants Erika Morgan,
24 Pat Pepper, and Brian Weber regarding the Rock Creek Improvements was a refusal of State and
25 private funds for an infrastructure project, meaning that at some point in the future, Black
26 Diamond residents and taxpayers will be required to foot the bill to repair or build a new Rock

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1 Creek bridge. There is no certainty that any grant funding will be available in the future.
2 Oakpointe will fulfill its limited obligation to build only a pedestrian crossing over Rock Creek
3 bridge, but that work can be completed independent of repair or replacement of the existing
4 bridge.
5 D. Open Public Meetings Act
6 3.24 Third Party Defendants Morgan, Pepper, and Webers Complaint seeks relief
7 related to enforcing certain Council Rules of Procedure. See Council Complaint, 7.3 and
8 7.4.
9 3.25 The validity of those Council Rules of Procedure, including a claim by
10 Oakpointe that the Rules are void ab initio, is the subject of separate litigation, King County
11 Superior Court Cause No. 16-2-29091-4 KNT.
12 IV. FIRST CAUSE OF ACTIONDECLARATORY JUDGMENT
15 4.2 Pursuant to the Uniform Declaratory Judgments Act, Chapter 7.24 RCW,
16 Oakpointe is entitled to have the Court determine the rights, status and/or other legal relations
17 between the parties, whether or not further relief may be sought or obtained.
18 4.3 Oakpointe seeks a declaratory judgment establishing that in accordance with the
19 Citys contractual obligations under the Development Agreements and the Funding Agreement,
20 and despite any unlawful legislative or litigation efforts of Third Party Defendants Morgan,
21 Pepper and Weber, the City has a duty to assure that MDRT consultants are continually engaged
22 under contract with the City.
23 4.4 Oakpointe asks the Court to further declare that the Mayor is not obligated to
24 execute and perform on City Council-approved contracts, vouchers, and warrants to the extent
25 that those contracts, vouchers, and warrants would violate law or result in breach of other
26 contracts, including the Development Agreements.

Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
{03420521.DOCX;4 }
1 4.5 Oakpointe further asks the Court to declare that in the event the City Council
2 refuses to approve long-term contracts with MDRT consultants that meet the terms of law and
3 existing contracts, including the Development Agreements, then the Mayor may enter into serial
4 short-term, less than $15,000, contracts with those MDRT consultants as a necessary power to
5 enable the Mayor to fulfill her obligations to see that all City laws, ordinances, and contracts are
6 faithfully kept and enforced under these unique circumstances.
7 V. SECOND CAUSE OF ACTIONWRIT OF MANDAMUS
10 5.2 The City is obligated by contract and statute to enter into long-term MDRT
11 contracts so as to ensure the timely processing of MPD related permits. A breach of the Citys
12 obligation and statutory duty would cause serious hardship and harm on Oakpointe.
13 5.3 Except for a Writ of Mandamus, Oakpointe has no plain, speedy, and adequate
14 remedy at law. Consequently, a Writ of Mandamus should be issued compelling the City to
15 enter into long-term MDRT contracts, as well as assure that Oakpointe funds paid to the City are
16 timely transferred to those MDRT contractors for work performed.
17 VI. THIRD CAUSE OF ACTIONBREACH OF CONTRACT RELATED TO
18 THE ROCK CREEK IMPROVEMENTS
21 6.2 The Development Agreement is a valid and binding contract.
22 6.3 The Development Agreement, at Section 11.6, obligates the City to work in good
23 faith to seek grants and other funding mechanisms to construct the Rock Creek Improvements.
24 6.4 The City, through the unlawful and intentional conduct of Third Party Defendants
25 Morgan, Pepper, and Weber, breached the Development Agreement when it failed to perform its
26

Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
{03420521.DOCX;4 }
1 obligation to work in good faith to seek grants and other funding mechanisms to construct the
2 Rock Creek Improvements.
3 6.5 As a result of the Citys breach, Oakpointe has suffered damages in an amount to
4 be proven at trial.
5 6.6 Notwithstanding Oakpointes damages, Oakpointe is contractually entitled to
6 specific performance.
7 PRAYER FOR RELIEF
8 WHEREFORE, Third Party Plaintiff Oakpointe prays for the following relief:
9 A. A declaratory judgment that the City has a duty to assure that MDRT consultants
10 are continually engaged via contract with the City in accordance with the Development
11 Agreements and the Funding Agreement;
12 B. A declaratory judgment that the Third Party Defendants Erika Morgan, Pat
13 Pepper, and Brian Weber are prohibited from interfering with and must approve the Citys entry
14 of long-term MDRT contracts and are further prohibited from otherwise engaging in any action
15 that will cause the City to breach the Development Agreements and Funding Agreement;
16 C. A declaratory judgment that the Mayor is not obligated to execute and perform on
17 City Council approved contracts, vouchers, and warrants if those contracts, vouchers, and
18 warrants would violate law or result in breach of other contracts, including the Development
19 Agreements and the Funding Agreement;
20 D. A declaratory judgment that in the event the City Council refuses to approve long-
21 term contracts with MDRT consultants that meet the terms of law and existing contracts,
22 including the Development Agreements and Funding Agreement, then the Mayor may enter into
23 serial short-term, less than $15,000, contracts with those MDRT consultants as a necessary
24 power to enable the Mayor to fulfill her obligations to see that all City laws, ordinances, and
25 contracts are faithfully kept and enforced under these unique circumstances;
26

Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
{03420521.DOCX;4 }
1 E. That a writ of mandamus be issued by this Court, ordering the City to enter into
2 long-term MDRT contracts, as well as assure that Oakpointe funds paid to the City are timely
3 transferred to those MDRT contractors for work performed;
4 F. Entry of judgment in favor of Oakpointe in an amount to be proven at trial;
5 G. Specific performance of Section 11.6 of the Development Agreement; and
6 H. For such other and further relief as the Court may deem just and appropriate.
7
8 DATED this day of October, 2017.

10
11
Stephen P. VanDerhoef, WSBA No. 20088
12 E-mail: svanderhoef@cairncross.com
Nancy Bainbridge Rogers, WSBA No. 26662
13 E-mail: nrogers@cairncross.com
Nicole E. De Leon, WSBA No. 48139
14 E-mail: ndeleon@cairncross.com
15 Seattle, WA 98104-2323
Telephone: (206) 587-0700
16 Facsimile: (206) 587-2308
Attorneys for Intervenor CCD Black Diamond
17 Partners, LLC
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Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
{03420521.DOCX;4 }
1 Certificate of Service
2 I, Sara Webster, certify under penalty of perjury of the laws of the State of Washington
3 that on ________________, I caused a copy of the document to which this is attached to be
4 served on the following individual(s) via electronic service
5 Anne Bremner
Frey Buck P.S.
6 1200 Fifth Avenue, Suite 1900
Seattle, WA 98101
7 abremner@freybuck.com
Attorneys for City of Black Diamond
8
9 DATED this day of , 2017, at Seattle, Washington.

10
11
Sara Webster, Legal Assistant
13 Seattle, WA 98104-2323
Telephone: (206) 254-4428
14 Facsimile: (206) 587-2308
E-mail: swebster@cairncross.com
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Seattle, WA 98104
office 206 587 0700 fax: 206 587 2308
{03420521.DOCX;4 }

Motion To Intervene in Complaint Against Mayor Benson

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Motion To Intervene in Complaint Against Mayor Benson

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1 HONORABLE RICHARD MCDERMOTT

DATE: OCTOBER 24, 2017

7 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

15 CCD Black Diamond Partners, LLC (Oakpointe) hereby moves to intervene as a

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

4 /s/ Nancy Bainbridge Rogers

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

9 DATED this 16th day of October, 2017, at Seattle, Washington.

MOTION TO INTERVENE CCD BLACK DIAMOND CAIRNCROSS & HEMPELMANN, P.S.

7 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

14 CCD BLACK DIAMOND PARTNERS, LLC,

18 CITY OF BLACK DIAMOND; CITY

21 Third Party Defendants

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

8 DATED this day of October, 2017.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

9 DATED this day of , 2017, at Seattle, Washington.

THIRD PARTY COMPLAINT BY INTERVENOR CCD CAIRNCROSS & HEMPELMANN, P.S.

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