HomeMy WebLinkAbout08-056 - Doak Homes - Settlement Agreement 08-056(c)
Council Approval 3/21/16
THIRD AMENDMENT TO SETTLEMENT AGREEMENT
BY AND BETWEEN THE CITY OF TUKWILA AND
DARRYL DOAK,SR.,ESTRELLA DOAK,DARRYL DOAK,JR.,
AND DOAK HOMES,INC.
THIS THIRD AMENDMENT TO SETTLEMENT AGREEMENT (the "Third
Amendment") is made and entered into this r day of AT(I 1 , 2016, by and
between the CITY OF TUKWILA (hereinafter "City" or "Tukwila"), a duly organized
Washington municipal corporation, and DARRYL DOAK, SR., ESTRELLA DOAK,
DARRYL DOAK, JR., and DOAK HOMES, INC. (hereinafter collectively referred to as
"Doak").
I. RECITALS
WHEREAS, the City and Doak entered into that certain Settlement Agreement
dated July 2, 2008; and
WHEREAS, due to the economic downturn in the construction industry, on July 21,
2010, the Parties executed a First Amendment to Settlement Agreement extending the term
for an additional thirty-six months (36) to allow Doak additional time to complete the
development; and
WHEREAS, due to continued financial and economic challenges, on July 18, 2013,
the Parties executive a Second Amendment to Settlement Agreement extending the term for
an additional thirty-six months (36) to allow Doak additional time to complete the
development; and
WHEREAS, Doak has completed construction on 7 of the 14 total lots, and the City
recently issued another building permit for 1 lot; and
WHEREAS, the extended term is set to expire in July of 2016, but continued
financial and economic challenges have further hindered Doak's timely completion of the
development; and
WHEREAS, the Parties desire to extend the Settlement Agreement for an additional
term of thirty-six (36)months; and
WHEREAS, the Settlement Agreement previously prohibited the creation of
"orphan lots"and required Doak to develop lots in either adjacent order or opposing order to
prevent the creation of orphan lots,but said "orphan lot"provision was removed pursuant to
the Second Amendment to allow development as buyers arise; and
Doak v.City of Tukwila Y?V‘
Third Amendment to Settlement Agreement')
greement �j ,!
Page 1 of 3 i '" 7 "���� 0/V-0(
WHEREAS, removal of the orphan lot provision has created a situation in which
certain lots may not be developed pursuant to current City zoning requirements in the event
development of the properties is not ultimately completed as contemplated by the Settlement
Agreement; and
WHEREAS, the parties desire to amend the Settlement Agreement to require
consecutive building to encourage in-fill development and prevent undevelopable
properties; and
WHEREAS, Doak is exploring sale options for the remaining undeveloped
properties, and would like greater flexibility in assigning the agreement to purchasers to
facilitate a quick sale;
NOW, THEREFORE, in consideration of the mutual promises acknowledged and
set forth herein and the long-term benefit to both the City and Doak, the parties hereby
amend said Agreement as follows:
II. AGREEMENT
1. Section 27 of the Settlement Agreement is hereby amended to read as follows:
27. Transferability. Doak may assign this Agreement to another party
upon not less than sixty (60) days' prior written notice to the City and
attainment of Tukwila's prior approval which approval shall not be
unreasonably withheld, unless the notice period is shortened by mutual
agreement of the parties.
2. Section 30 of the Settlement Agreement, and Section 1 of the Second
Amendment of Settlement Agreement, are hereby amended to read as follows:
30. Expiration of Settlement Agreement. The Settlement Agreement
shall expire 36 months from the date of mutual execution of the Third
Amendment. Doak's obligations set forth in Sections 23 (Compensation)
and 28 (Release) shall survive termination of this Agreement, and Doak shall
be obligated to dismiss the Lawsuit and Appeal regardless of the lack of
issuance of any building permit(s). Doak shall be entitled to develop the lots
that are the subject of this Agreement in conformance with the terms of the
Agreement so long as the building permits for the properties are issued
before the expiration of the Agreement consistent with Section 20 and
thereafter remain valid. Upon the expiration of this Agreement, however,
any future development of the properties that are the subject of this
Agreement and for which building permits have not been issued will be
required to comply with all applicable standards of the Tukwila Municipal
Code (TMC)in effect at the,time of any future application.
Doak v.City of Tukwila
Third Amendment to Settlement Agreement e/�� y ,7/
Page2of3 ° -C -7-/L
a. As of the date of mutual execution of the Third Amendment, Doak
has completed construction of lots 1, 2, and 5, and has obtained a
building permit for lot 6. Doak shall develop the remaining lots in
adjacent order as follows: Lot 3, Lot 4, Lot 7, Lot 8, Lot 9 then Lot
10. Creation of orphan lots should be avoided to the extent possible.
3. This Amendment and subsequent amendments shall become effective
immediately following execution by all of the parties.
4. Except as amended herein, the terms and provisions of the original Settlement
Agreement and First Amendment of Settlement Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to be
executed, effective on the day and year set forth on the first page hereof.
CITY OF TUKWILA
Date: 7 ''
Allan Ekberg,Mayor
DOAK HOMES,INC.
f/gA a Date: Gt'' �!v
Darryl Doak, Sr.,Its President
Date: 7-/6
Estrella Doak,Its Vice President
Doak v.City of Tukwila
Third Amendment to Settlement Agreement
Page 3 of 3
08- 056(b)
Council Approval 7/15/13
SECOND AMENDMENT TO SETTLEMENT AGREEMENT
BY AND BETWEEN THE CITY OF TUKWILA AND
DARRYL DOAK, SR., ESTRELLA DOAK, DARRYL DOAK, JR.,
AND DOAK HOMES, INC.
THIS SECOND AMENDMENT TO SETTLEMENT AGREEMENT (the "Second
Amendment ") is made and entered into this ism- day of 44,c , 2013, by and
between the CITY OF TUKWILA (hereinafter "City" or u ila "), a duly organized
Washington municipal corporation, and DARRYL DOAK, SR., ESTRELLA DOAK,
DARRYL DOAK, JR., and DOAK HOMES, INC. (hereinafter collectively referred to as
"Doak").
I. RECITALS
WHEREAS, the City and Doak entered into that certain Settlement Agreement
dated July 2, 2008; and
WHEREAS, due to the economic downturn in the construction industry, on July 21,
2010, the Parties executed a First Amendment to Settlement Agreement extending the term
for an additional thirty -six months (36) to allow Doak additional time to complete the
development; and
WHEREAS, the extended term is set to expire in July of 2013, but continued
financial and economic challenges have further hindered Doak's timely completion of the
development; and
WHEREAS, the Parties desire to extend the Settlement Agreement for an additional
term of thirty -six (36) months; and
WHEREAS, the Settlement Agreement explicitly prohibits the creation of "orphan
lots" and requires Doak to develop lots in either adjacent order or opposing order to prevent
the creation of orphan lots, so Doak would also like to amend the Settlement Agreement to
allow development of lots as buyers are secured; and
WHEREAS, the City finds that it is in the best interest of the City to remove the
"orphan lot" provision and allow development as buyers arise;
NOW, THEREFORE, in consideration of the mutual promises acknowledged and
set forth herein and the long -term benefit to both the City and Doak, the parties hereby
amend said Agreement as follows:
II. AGREEMENT
Doak v. City of Tukwila
Second Amendment to Settlement Agreement - 7/16/2013
Page 1 of 3
`3)ED Ditt
1. Section 30 of the Settlement Agreement, and Section 5 of the First Amendment
of Settlement Agreement, are hereby amended to read as follows:
30. Expiration of Settlement Agreement. The Settlement Agreement
shall expire 36 months from the date of mutual execution of the Second
Amendment. Doak's obligations set forth in Sections 23 (Compensation)
and 28 (Release) shall survive termination of this Agreement, and Doak shall
be obligated to dismiss the Lawsuit and Appeal regardless of the lack of
issuance of any building permit(s). Doak shall be entitled to develop the lots
that are the subject of this Agreement in conformance with the terms of the
Agreement so long as the building permits for the properties are issued
before the expiration of the Agreement consistent with Section 20 and
thereafter remain valid. Upon the expiration of this Agreement, however,
any future development of the properties that are the subject of this
Agreement and for which building permits have not been issued will be
required to comply with all applicable standards of the Tukwila Municipal
Code (TMC) in effect at the time of any future application.
2. This Amendment and subsequent amendments shall become effective
immediately following execution by all of the parties.
3. Except as amended herein, the terms and provisions of the original Settlement
Agreement and First Amendment of Settlement Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to be
executed, effective on the day and year set forth on the first page hereof.
CITY OF TUKWILA
If\ � �`-`� Date: /k/ 211
Jim Egerton, M
DOAK HOMES, INC.
D 1 Doak, Sr., ItsiPresident
Estrella Doak, Its ice President
Doak v. City of Tukwila
Second Amendment to Settlement Agreement - 7/16/2013
Page 2 of 3
Date: pr ic/y /5" -O/ 3
Date: - (3
GSM
Darry ak, Jr., I oject laic er
Date: 7- r 8- l 3
Doak v. City of Tukwila
Second Amendment to Settlement Agreement - 7/16/2013
Page 3 of 3
pt/(Ur
08-056(a)
Council Approval 7/21/10
FIRST AMENDMENT TO SETTLEMENT AGREEMENT
BY AND BETWEEN THE CITY OF TUKWILA AND
DARRYL DOAK, SR., ESTRELLA DOAK, DARRYL DOAK, JR.,
AND DOAK HOMES, INC.
THIS FIRST AMENDMENT TO SETTLEMENT AGREEMENT (the
"Amendment is made and entered into this _9N day of __3 &1-4 2010, by and
between the CITY OF TUKWILA (hereinafter "City" or "Tukwila a duly organized
Washington municipal corporation, and DARRYL DOAK, SR., ESTRELLA DOAK,
DARRYL DOAK, JR., and DOAK HOMES, INC. (hereinafter collectively referred to as
"Doak"
I. RECITALS
WHEREAS, the City and Doak entered into that certain Settlement Agreement
dated July 2, 2008; and
WHEREAS, due to the economic downturn in the construction industry, Doak's
ability to complete the terms of the Settlement Agreement prior to its expiration have been
hindered, and Doak has requested an extension of the Settlement Agreement; and
WHEREAS, the City desires to cooperate with Doak by extending the Settlement
Agreement for an additional term of thirty-six (36) months in exchange for elimination of
expedited review for Doak's permit applications and elimination of permit fee waivers;
NOW, THEREFORE, in consideration of the mutual promises set forth herein and
the long -term benefit to both the City and Doak, the parties hereby amend said Agreement
as follows:
II. AGREEMENT
1. Paragraph 1, Building Permits, is hereby amended to read as follows:
6 LOTS AT 50TH AVENUE SOUTH
1. Building Permits. Tukwila agrees to approve four building permits
for single family dwellings on this property and further agrees that Doak's
applications will not be denied based on failure to meet the City's minimum
lot area requirements or to otherwise comply with Tukwila Municipal Code
Section 18.70.030. Doak's building permit applications will be reviewed in
the same manner and within the same timelines as all other applications for
building permits submitted to the City for review.
2. Paragraph 11, Building Permits, is hereby amended to read as follows:
Doak v. City of Tukwila
First Amendment to Settlement Agreement 7/19/2010
Pagel of 3
11 LOTS AT SOUTH 124TH STREET AND 50TH AVENUE SOUTH
11. Building Permits. Tukwila agrees to approve ten building permits
for single family dwellings on this property and further agrees that Doak's
applications will not be denied based on failure to meet the City's minimum
lot area requirements or to otherwise comply with Tukwila Municipal Code
Section 18.70.030. Doak's building permit applications will be reviewed in
the same manner and within the same timelines as all other applications for
building permits submitted to the City for review.
3. Paragraph 15, Public Works Permit, is hereby amended to read as follows:
15. Public Works Permit. All infrastructure improvements to include,
but not limited to, roadway, sidewalk, drainage, sewer and water
connections, fire hydrants, curbs, gutters, etc. shall be accomplished under a
Public Works Permit. Tukwila's standard fees shall apply for all Public
Works permits. Doak agrees that Tukwila shall not grant final occupancy
approval to any of the houses associated with this Agreement until Tukwila
has finalized the Public Works permit. Doak's Public Works permit
applications will be reviewed in the same manner and within the same
timelines as all other applications for Public Works permits submitted to the
City for review.
4. Paragraph 24, Refund of Fees and Waiver of Fees, is hereby amended to read as
follows (note that footnotes 3 and 4 in the original Settlement Agreement remain in full
force and effect and said footnotes have not been re- printed here due to formatting
constraints):
24. Fees. Doak is responsible for the payment of building permit fees in
the same manner as all other applicants. In addition, Doak agrees that it is
responsible for common water and sewer hook up fees, traffic impact fees
and any other fees applicable to Doak's projects that are charged in the same
manner to other properties in Tukwila.
5. Section 30, Expiration of This Agreement, is hereby amended to read as follows:
30. Expiration of Settlement Agreement. The Settlement Agreement
shall expire 36 months from the date of mutual execution of this First
Amendment. To avoid the creation of orphan lots, Doak shall develop the
lots in either "adjacent order" (e.g., lot 1, then lot 2, then lot 3, etc.) or
"opposing order" (start at one end of the private street and develop the lots
on opposite sides of the street in "pairs," e.g., lots 1 10, then lots 2 9,
then lots 3 8, etc.). In no event shall orphan lots be created...; Doak's
Doak v. City of Tukwila
First Amendment to Settlement Agreement 7/19/2010
Page 2 of 3
obligations set forth in Sections 23 (Compensation) and 28 (Release) shall
survive termination of this Agreement, and Doak shall be obligated to
dismiss the Lawsuit and Appeal regardless of the lack of issuance of any
building permit(s). Doak shall be entitled to develop the lots that are the
subject of this Agreement in conformance with the terms of the Agreement
so long as the building permits for the properties are issued before the
expiration of the Agreement consistent with Section 20 and thereafter remain
valid. Upon the expiration of this Agreement, however, any future
development of the properties that are the subject of this Agreement and for
which building permits have not been issued will be required to comply with
the Development Standards in effect at the time of any future application.
6. This Amendment shall become effective immediately following execution by all
of the parties.
7. Except as amended herein, the terms and provisions of the original Settlement
Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed, effective on the day and year set forth on the first page hereof.
CITY OF TUKWILA
9,)±1-1
ayor j
n �J
APPRO S RM BY:
Date:7 a l
ce of the.ty &alley
DOAK HOMES, INC.
A Date: 112./ a
Darry`tDoak, Sr., Its President 7
A a/Gte) 2 °--.)/U0—PrP e-- Date:
Estrella Doak, Its Vice President
Date: ~7 Z� IO
arpoalc lts ro Manager
Doak v. City of Tukwila
First Amendment to Settlement Agreement 7/19/2010
Page 3 of 3
SETTLEMENT AGREEMENT P- 5,6
Approal
THIS SETTLEMENT AGREEMENT is made and entered into as of the date of
the last party signing below, by and between DARRYL DOAK, SR., ESTRELLA
DOAK, DARRYL DOAK, JR., DOAK HOMES, INC. (hereinafter collectively referred
to as "Doak and the City of Tukwila, a duly organized Washington municipal
corporation (hereinafter "Tukwila" or "the City
RECITALS
A. Doak filed a First Amended Land Use Petition, Petition for Writ of Mandate,
and Complaint for Damages against Tukwila in June 2007 in King County Superior
Court alleging various claims related to violation of the Land Use Petition Act (Chapter
36.70C RCW), 42 U.S.C. 1983, Chapter 64.40 RCW and the state and federal
constitutions, respectively King Co. Superior Court Cause No. 07 -2- 17181 -9KNT and
U.S.D.C. Cause No. 07 -1148 MJP (hereinafter collectively referred to as "the Lawsuit
The Lawsuit was removed to federal court in July 2007, was remanded to King County
Superior Court in January 2008, and remains pending. In addition Doak filed with the
City of Tukwila a "claim against the City of Tukwila for tort damages" dated June 29,
2007.
B. Doak filed an administrative appeal of Tukwila's denial of its development
permit applications for ten lots at South 124 Street and 50 Avenue South in August
2007 (hereinafter "Appeal The Appeal remains pending.
C. Doak and Tukwila now desire to settle and resolve all claims relating to the
Lawsuit and Appeal without further expense or delay.
AGREEMENT
Now, Therefore, in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration, the parties agree as
follows:
6 LOTS AT 50TH AVENUE SOUTH
1. Building Permits. Tukwila agrees to approve four building permits for single
family dwellings on this property and further agrees that Doak's applications will not be
denied based on failure to meet the City's minimum lot area requirements or to otherwise
comply with Tukwila Municipal Code Section 18.70.030. Doak agrees to provide
Tukwila with three calendar days' notice prior to submission of the building permit
applications.
a. Within seven days of receiving the building permit applications, Tukwila will
determine if the applications are complete. In the event that Tukwila
determines that the applications are incomplete, it shall issue a "Notice of
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page l of 12
0
Incomplete Application," identifying which items are required for the
application to be complete. After Doak responds to the Notice of Incomplete
Application, Tukwila shall have five days to review the additional information
and determine if the application is complete.
b. Tukwila shall have 13 days from the determination that the application is
complete to complete its substantive review of the building permit
applications. In the event that a correction letter is issued, Tukwila shall have
10 days from the date Doak's response to the correction letter is received to
review the revised plans and either approve the permit or issue another
correction letter.
c. Tukwila has met its obligations under this section once it notifies Doak that
the permits are approved and ready for issuance.
2. Boundary Line Adiustment. Tukwila agrees to approve a BLA sufficient to
create 4 buildable lots with 4 separate parcel numbers. Doak agrees to provide Tukwila
with three calendar days' advance notice prior to submission of the BLA applications.
The layout of the lots shall be consistent with the layout depicted in the "Site Plan for tax
parcels 017900 -1730 and 0179001755," prepared by Alliant Engineering, attached hereto
as Exhibit A.
a. Within seven days of receiving the applications, Tukwila will determine if the
applications are complete. In the event that Tukwila determines that the
applications are incomplete, a "Notice of Incomplete Application" will be
issued that identifies which items are required for the application to be
complete. After Doak responds to the Notice of Incomplete Application,
Tukwila shall have five days to review the additional information and
determine if the application is complete.
b. Tukwila shall have 23 days from the determination that the application is
complete to complete its substantive review of the BLA applications. In the
event that a correction letter is issued, Tukwila shall have 14 days from the
date Doak's response to the correction letter is received to review the revised
plans.
c. Tukwila has met its obligations to the time period listed above once it notifies
Doak that the Boundary Adjustment Application is ready for recording. Doak
is responsible for obtaining the necessary signatures from King County and
for having the BLA application recorded with King County. Tukwila shall
not be responsible for any delays by Doak or King County in reviewing and
recording the final documents.
3. Legality of Lots Modified Via Boundary Line Adjustment. Tukwila agrees
that the four lots modified as part of the BLA application shall be considered
"conforming lots" and, in the case of destruction of any of the houses on those lots, the
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page 2 of 12
houses shall be allowed to be rebuilt, provided the replacement houses comply with the
development standards set forth herein.
4. Water and Sewer. Tukwila agrees to allow Doak to saw cut asphalt on 50
Avenue South to install necessary water and sewer infrastructure to the four proposed
houses. The Sewer and Water infrastructure installed by Doak shall comply with Titles
11, 14 and 16 of the Tukwila Municipal Code, and Chapters 7 and 8 of the City of
Tukwila Public Works Department's Development Guidelines and Design and
Construction Standards. Doak shall be responsible for patching the roadway in a manner
approved by Tukwila's Public Works Department. All street restoration work shall
comply with Tukwila's Public Works Standards. Doak will not be required to provide a
complete overlay for all of 50 Ave South. Doak shall be responsible for the payment of
asphalt mitigation fees charged in the same manner to other applicants. Doak agrees to
raise the elevation of the storm water catch basin fronting the property at Doak's expense.
5. Development Standards. Doak agrees that the elevations of the four proposed
houses on 50 Avenue South will vary in design, materials and color and further agrees
to incorporate front porches and to minimize the street presence of garages on the various
elevations. The elevations and floor plans for the four proposed houses on 50 Avenue
South are attached to this Agreement as Exhibit B. The building footprint shall be
limited to 40% per lot. Doak agrees to comply with the impervious surface limitation
found in TMC 8.25.020 (E).
6. Survey Stakes. Replacement of survey stakes that allegedly have been altered
or removed by Tukwila's contractor for Phase II of the Allentown/Foster Point Water,
Sewer and Surface Water Improvement Project, R.L. Alia Company (hereinafter "Alia
is a private matter between Doak and Alia.
7. Underground Electrical Permit. Seattle City Light "SCL inspected the
underground electrical work performed at the property, but Tukwila's contractor filled
the ditch prior to City inspection. Tukwila agrees to adopt, ratify and/or approve SCL's
inspection of this work, or otherwise sign off on the inspection, without cost to Doak.
Doak agrees to provide Tukwila sufficient proof of a favorable inspection by SCL.
11 LOTS AT SOUTH 124TH STREET AND 50TH AVENUE SOUTH
8. Small Lot Development. Tukwila agrees to allow Doak to develop 10 single
family compact houses as depicted in the following: the approved, final site plan
prepared by Alliant Engineering and attached hereto as Exhibit C; the approved
conceptual street detail attached hereto as Exhibit D; the approved elevations and floor
plans attached hereto as Exhibit E and F; the approved landscaping plan and planting
schedule attached hereto as Exhibit G; the side and rear elevation details attached hereto
as Exhibit H; and the fencing detail attached hereto as Exhibit J. It is the parties' intent
that the houses will be built and landscaping will be provided consistent with the
approved plans attached as exhibits hereto, and Doak agrees that the property will be
developed in compliance with all applicable TMC zoning requirements. Minor revisions,
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page 3 of 12
if any, due to unforeseen circumstances, will be addressed through the Dispute
Resolution procedures set forth in paragraph 22 herein.
a. Tukwila agrees to accept that density based on 44,710 square feet divided by
6500 equals 6.9; and that 6.9 times 1.5 equals 10.35. Tukwila agrees not to
subtract the area of the private road serving the development from any density
calculation such that the density allows for development of 10 compact single
family houses. The building footprint for each lot' shall be limited to 35
percent of the lot area, with the following exceptions: (1) the 35 percent
footprint limitation shall not apply to lots 2 and 3, provided applicable setback
requirements are met, consistent with the City's e -mail dated December 10,
2007, a copy of which is attached hereto as Exhibit I; and (2) the allowable
maximum building footprint for lot 8 can be 1290 (approximately 35.06389
percent).
b. Tukwila further agrees that fireplaces may extend into the setback areas, up to
a maximum of 18 inches.
c. Decks in the rear of the homes are exempt from the 35 percent footprint
limitation, provided decks are no greater than 18 inches tall, meet the side
setback requirements, and are no closer than five feet from the rear property
line. Decks cannot be placed below any required exit window nor can the
decks hinder Fire Department ladder access.
d. Backyards may be fenced; however, fences shall not extend past the rear
elevation of the homes. Doak shall construct, or cause to be constructed, a
fence parallel to South 124th Street as depicted in Exhibit J attached hereto.
9. Private Road Improvements and Maintenance. Doak agrees to construct the
private road in conformance to the conceptual street layout attached hereto as Exhibit D.
As part of the BLA application, Doak shall provide Tukwila with a copy of a shared
maintenance agreement for the private road. The private road, sidewalk, and on- street
parking shall be located within a private tract. Maintenance and ownership of this tract
shall be divided between all homes within the development. The shared maintenance
agreement shall be recorded on all lots that are subject to the BLA application. The
following note shall be placed on the face of the BLA document: "The City of Tukwila
has no responsibility to build, improve, maintain or otherwise serve the private road or
any stormwater facilities on site."
10. Environmental Review. Tukwila agrees that no further environmental review
is needed for the proposed project.
1 The individual lot area shall not include the private access road, sidewalks, or on- street parking.
2 SEPA DNS issued July 11, 2007 for the construction of ten homes.
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page 4 of 12
11. Building Permits. Tukwila agrees to approve ten building permits for single
family dwellings on this property and further agrees that Doak's applications will not be
denied based on failure to meet the City's minimum lot area requirements or to otherwise
comply with Tukwila Municipal Code Section 18.70.030. Doak agrees to provide
Tukwila with three calendar days' notice prior to submission of the building permit
applications.
a. Within seven days of receiving the building permit applications, Tukwila will
determine if the applications are complete. In the event that Tukwila
determines that the applications are incomplete, it shall issue a "Notice of
Incomplete Application," identifying which items are required for the
application to be complete. After Doak responds to the Notice of Incomplete
Application, Tukwila shall have five days to review the additional information
and determine if the application is complete.
b. Tukwila shall have 13 days from the determination that the application is
complete to complete its substantive review of the building permit
applications. In the event that a correction letter is issued, Tukwila shall have
10 days from the date Doak's response to the correction letter is received to
review the revised plans and either approve the permit or issue another
correction letter.
c. Tukwila has met its obligations under this section once it notifies Doak that
the permits are approved and ready for issuance.
12. Boundary Line Adiustment. Tukwila agrees to approve a BLA sufficient to
create 10 buildable lots with 10 separate parcel numbers. Doak agrees to provide
Tukwila with three calendar days' advance notice prior to submission of the BLA
applications.
a. Within seven days of receiving the applications, Tukwila will determine if the
applications are complete. In the event that Tukwila determines that the
applications are incomplete, a "Notice of Incomplete Application" will be
issued that identifies which items are required for the application to be
complete. After Doak responds to the Notice of Incomplete Application,
Tukwila shall have five days to review the additional information and
determine if the application is complete.
b. Tukwila shall have 23 days from the determination that the application is
complete to complete its substantive review of the BLA applications. In the
event that a correction letter is issued, Tukwila shall have 14 days from the
date Doak's response to the correction letter is received to review the revised
plans.
c. Tukwila has met its obligations to the time period listed above once it notifies
Doak that the Boundary Adjustment Application is ready for recording. Doak
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page 5 of 12
is responsible for obtaining the necessary signatures from King County and
for having the BLA application recorded with King County. Tukwila shall
not be responsible for any delays by Doak or King County in reviewing and
recording the final documents.
13. Legality of Lots Modified Via Boundary Line Adiustment. Tukwila agrees
that the 10 lots modified as part of the BLA application shall be considered "conforming
lots" and, in the case of destruction of any of the houses on those lots, the houses shall be
allowed to be rebuilt, provided the replacement houses comply with the development
standards set forth herein.
14. Water and Sewer. In the same manner as other new building permit
applicants, Doak agrees that it is responsible for installation of waterlines and water
meters as necessary to service the 10 proposed compact single family houses. The Sewer
and Water infrastructure installed by Doak shall comply with Titles 11, 14 and 16 of the
Tukwila Municipal Code, and Chapters 7 and 8 of the City of Tukwila Public Works
Department's Development Guidelines and Design and Construction Standards.
Planning staff has confirmed that three sewer stubs have been located along the property,
and Tukwila agrees to permit Doak to connect more than one house per sewer stub. Prior
to final approval by Tukwila's Public Works Department, Doak agrees to sign and have
recorded a shared maintenance agreement for the shared sewer stubs and to have
recorded a hold harmless provision on all lots absolving the City of liability with regards
to having a shared sewer stub. The language of the shared maintenance agreement for the
shared sewer stubs, as well as the hold harmless provision absolving the City of liability
with regard to houses having shared sewer stubs, shall be subject to the prior approval of
Tukwila's Public Works Department. Doak is free to remove any pavement installed by
the City that encroaches on Doak's property.
15. Public Works Permit. All infrastructure improvements to include, but not
limited to, roadway, sidewalk, drainage, sewer and water connections, fire hydrants,
curbs, gutters, etc. shall be accomplished under a Public Works Permit. Tukwila's
standard fees shall apply for all Public Works permits. Doak agrees that Tukwila shall
not grant final occupancy approval to any of the houses associated with this Agreement
until Tukwila has finalized the Public Works permit. Tukwila agrees to review Doak's
Public Works permit applications within 30 calendar days of submittal of complete
applications, unless the applications are deemed incomplete or fail to meet Building,
Zoning, Public Works or Fire Code requirements (Titles 9, 11, 14, 16, 18 of the TMC)
pursuant to Tukwila's issuance of a correction letter, in which case Doak will be allowed
to correct any such deficiencies within the specified time periods set forth by Public
Works standards and generally applied to other applicants. Should Doak respond to a
correction letter issued by Tukwila, Tukwila agrees to review such response within 30
calendar days of its receipt.
16. Extension of Underground Utilities and Demolition Permits. Tukwila agrees
to extend the expiration period of existing underground utilities and demolition permits
for six months from the date of final execution of this Agreement by the parties. The
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
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City will grant no extensions to these permits. If the permits expire, Doak is required to
obtain new permits in the same manner as other applicants within the City and shall be
responsible for all associated costs.
GENERAL PROVISIONS
17. Building Plans. Tukwila agrees to return all unused building plans previously
submitted by Doak; however, Tukwila must retain one set of originals for each building
permit submitted in order to comply with Washington State records retention
requirements.
18. Building and Fire Code. Doak agrees that it is required to construct all
proposed structures in compliance with Title 16 of the TMC. With regards to Fire
requirements, the proposed houses on the larger parcel will not comply with distance
requirements from the existing fire hydrants. Thus, Doak must install a fire hydrant or
hydrants in order to comply with the prescribed distance standards. However, if
residential fire sprinklers are installed in all of the houses, Tukwila will waive the fire
hydrant requirement.
19. Stormwater. Doak is required to comply with the 1998 King County Surface
Water Design Manual in the same manner as other members of the public.
20. Expiration of Permits. All building permits issued before the expiration of
this Agreement shall expire within the time frames established in the International
Building Code pursuant to TMC 16.04.020 (2)(a). All building permits shall expire
within 180 days of permit issuance if no work is commenced or work is abandoned.
Doak understands that Tukwila shall not provide any extensions to the subject building
permits. Should a building permit expire for a lot subject to this Agreement, any new
permit application for that lot will not be afforded the benefits of the expedited
procedures set forth in paragraphs 1 and/or 12 or the fee waivers set forth in paragraph
24, but will be subject to the regular permit process and fee schedule applied to other
applicants within the City. Such new permits shall, however, be afforded the benefits of
the remainder of this Agreement provided that they are issued prior to the expiration of
the Agreement. Tukwila will not waive any permit fees should new permits need to be
obtained.
21. Single Contact Person. Tukwila agrees that Brandon Miles, or his successor,
will be the single point of contact on behalf of Tukwila to coordinate any concerns
between Tukwila and Doak with respect to the subject developments and implementation
of the terms of this Agreement. However, the single contact person shall not be
responsible for coordinating building, fire or public works inspections, and Doak shall
utilize the City's standard procedures for such inspections.
22. Dispute Resolution. This section shall govern any disputes or questions of
interpretation of this Agreement that may arise between the parties. The parties agree
that cooperation and communication are essential to resolving issues efficiently. The
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Final Settlement Agreement 7/2/2008
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Parties agree to exercise their best efforts to resolve any disputes that may arise through
this dispute resolution process rather than through other external means. The parties
agree to use their best efforts to prevent and resolve potential sources of conflict at the
lowest level and to use good faith negotiations by engaging in the following dispute
escalation process should any such disputes arise:
a. Level One. The Doaks and Senior Planner Brandon Miles, or his successor,
shall meet to discuss and attempt to resolve the dispute in a timely manner. If
they cannot resolve the dispute within ten (10) calendar days after referral of
that dispute to Level One, either party may refer the dispute to Level Two.
b. Level Two. The Doaks and Planning Supervisor Minnie Dhaliwal, or her
successor, shall meet to discuss and attempt to resolve the dispute in a timely
manner. If they cannot resolve the dispute within ten (10) calendar days after
referral of that dispute to Level Two, either party may refer the dispute to
Level Three.
c. Level Three. The Doaks and Department of Community Development
Director Jack Pace, or his successor, shall meet to discuss and attempt to
resolve the dispute in a timely manner.
d. In the event the dispute is not resolved at Level Three within ten (10) calendar
days after referral of that dispute to Level Three, the parties are free to file suit
or agree to alternative dispute resolution methods such as mediation or
arbitration. At all times prior to resolution of the dispute, the parties shall
continue to perform under this Agreement in the same manner and under the
same terms as existed prior to the dispute to the extent possible.
23. Compensation. Upon execution of this Agreement, Doak agrees to dismiss
with prejudice the pending Lawsuit and Appeal and to fully release and waive all claims
against Tukwila, including attorneys' fees and costs, as more specifically agreed to in
Paragraph 28 of this Agreement, and Tukwila shall pay Doak the amount of Fifty
Thousand Dollars ($50,000.00 U.S.) by check within 20 days of mutual execution of this
Agreement.
24. Refund of Fees and Waiver of New Fees. Tukwila agrees to refund all
building permit fees charged by Tukwila's Department of Community Development (not
including the demolition permits), mechanical permit fees, plumbing permit fees and the
administrative appeal fee previously paid by Doak with respect to the subject properties
within 20 days of mutual execution of this Agreement. Tukwila further agrees to waive
all new building plan check fees specified by TMC 16.04.250(B) for the applications
necessary to implement the terms of this Agreement. Doak is responsible for the
payment of the building permit fee at the time of issuance of the building permits. All
fees to be waived or refunded, in the approximate amount of $43,814.36, are itemized in
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Final Settlement Agreement 7/2/2008
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Exhibit K attached to this Agreement. However, Doak agrees that it is responsible for
common water and sewer hook up fees, traffic impact fees and any other fees applicable
to Doak's projects that are charged in the same manner to other properties in Tukwila.
25. Attorneys' Fees and Costs. The parties to this Settlement Agreement agree
that each party shall be responsible for its own attorneys' fees and costs incurred in
resolving this dispute and entering into this Settlement Agreement. Should any party
undertake any legal action arising from this Agreement, attorneys' fees and costs shall be
awarded to the prevailing party in the event that the non prevailing party's position is
found to be frivolous.
26. Non -Legal Costs. Tukwila and Doak shall bear their own non -legal fees and
costs, including but not limited to architect and engineering fees and costs, as they were
originally incurred in connection with the matters covered by this Agreement.
27. Transferability. Doak may assign this Agreement to another party upon not
less than sixty (60) days' prior written notice to the City and attainment of Tukwila's
prior approval, which approval shall not be unreasonably withheld.
28. Release bv Doak. Doak, on behalf of itself, its affiliates, and its successors
and assigns, releases and forever discharges and covenants not to sue with respect to any
and all claims, rights, demands, and causes of action, whether known or unknown,
liquidated or unliquidated (including attorneys' fees and costs), which Doak has, had, or
could have asserted against Tukwila, its affiliates, its past or present officers, elected
officials, directors, agents, representatives, past or present employees and their respective
heirs, executors or administrators and assigns, and that arose from the beginning of time
to the date of this Agreement and which relate in any way to the matters that were raised
or could have been raised in the Lawsuit and/or Appeal and/or the claim against Tukwila
for tort damages dated on or about June 29, 2007 and filed with the City on behalf of
Doak.
29. Release bv Tukwila. Tukwila, on behalf of itself, its affiliates and its
successors and assigns, releases and forever discharges and covenants not to sue with
respect to any and all claims, rights, demands, and causes of action, whether known or
unknown, liquidated or unliquidated (including attorneys' fees and costs), which Tukwila
has, had, or could have asserted against Doak, its affiliates, its past or present officers,
directors, agents, representatives or employees and its respective heirs, executors, or
administrators and assigns, and that arose from the beginning of time to the date of this
3 This amount represents a good faith estimate based on current information and the exact amount refunded
and waived could vary and will be determined at the time of building permit submittal.
4 Doak shall not be required to comply with TMC 14.17.050's condition of full payment of the King
County Sewer Capacity Charge prior to issuance of a building permit for any property described in this
Agreement. Doak remains responsible for compliance with the King County Code for all King County
Sewer Capacity Charges and must disclose such charges as outstanding obligations on the Seller's
disclosure statement per RCW 64.06.020 for each of the properties subject to this Agreement.
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Final Settlement Agreement 7/2/2008
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Agreement and which relate in any way to the matters that were raised or could have
been raised in the Lawsuit and/or Appeal.
30. Expiration of This Agreement. This Agreement shall expire 30 months from
the date of mutual execution of this Agreement. To avoid the creation of orphan lots,
Doak shall develop the lots in either "adjacent order" (e.g., lot 1, then lot 2, then lot 3,
etc.) or "opposing order" (start at one end of the private street and develop the lots on
opposite sides of the street in "pairs," e.g., lots 1 10, then lots 2 9, then lots 3 8,
etc.). In no event shall orphan lots be created. Doak's obligations set forth in Sections 23
(Compensation) and 28 (Release) shall survive termination of this Agreement, and Doak
shall be obligated to dismiss the Lawsuit and Appeal regardless of the lack of issuance of
any building permit(s). Doak shall be entitled to develop the lots that are the subject of
this Agreement in conformance with the terms of the Agreement so long as the building
permits for the properties are issued before the expiration of the Agreement consistent
with Section 20 and thereafter remain valid. Upon the expiration of this Agreement,
however, any future development of the properties that are the subject of this Agreement
and for which building permits have not been issued will be required to comply with the
Development Standards in effect at the time of any future application.
31. No Admission. This Agreement is not an admission of liability or
wrongdoing by either party.
32. Choice of Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Washington.
33. Free Will. Doak and Tukwila hereby represent and warrant that its
representatives have entered into this Agreement of their own free will and in accordance
with their own judgment and upon advice of their own legal counsel and state that they
have not been induced to enter into this Agreement by any statement, act or
representation of any kind or character on the part of anyone except as expressly set forth
in this Agreement.
34. Authority. The individual signatories to this Agreement represent that they
have been duly authorized to execute this Agreement on behalf of the parties they purport
to represent herein.
35. Amendments. This Agreement may not be amended or modified except by a
writing, signed by the parties to be bound thereby, or signed by their respective attorneys
as authorized.
36. Notices. All notices, demands, requests, and other communications required
or permitted hereunder shall be in writing and shall be deemed delivered on the earlier of
(i) three days after posting of registered or certified mail, postage prepaid, addressed to
the addressee at its address set forth below or (ii) actual receipt by the addressee, at the
address listed as follows:
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page 10 of 12
TO CITY:
City of Tukwila
Attn: City Clerk
6200 Southcenter Blvd.
Tukwila, WA 98188
With a copy to:
Ms. Shelley Kerslake, Esq.
Kenyon Disend, PLLC
11 Front St. S.
Issaquah, WA 98027
TO DOAK:
Doak Homes, Inc.
11812 26th Avenue SW
Burien, WA 98146
With a copy to:
Mr. Charles Klinge, Esq.
Groen, Stephens Klinge, LLP
11100 N.E. 8 Street, Suite 750
Bellevue, WA 98004
37. Entire Agreement. This Agreement constitutes the final written expression of
all the terms of this Agreement and is a complete and exclusive statement of the terms of
the Agreement.
38. Counterparts. This Agreement may be executed in counterparts by one or
more of the parties named herein and all such counterparts once so executed shall
together be deemed to constitute one final agreement, as if one document had been signed
by all parties hereto; and each such counterpart, upon execution and delivery, shall be
deemed a complete original, binding the parties to this Agreement. This Agreement may
close with the use of facsimile signatures.
39. Effectiveness. This Agreement shall become effective immediately following
execution by all of the parties; provided, however, that the releases as described in this
Agreement shall not take effect until Doak has received from Tukwila the settlement
payment described in Paragraph 17.
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Final Settlement Agreement 7/2/2008
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40. Captions. The captions contained in the paragraphs of this Agreement are for
convenience of reference only and do not in any way limit, expand or modify the terms or
provisions of this Agreement.
CITY OF TUKWILA
Date:
�Ik s agge ,Mayor
DOAK HOMES, INC.
Date:
Payl Doak, Sr, Its President
Date:
Estrella Doak, Its Vice President
Date:
9a1T'y Tr Manager
Doak v. City of Tukwila
Final Settlement Agreement 7/2/2008
Page 12 of 12