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HomeMy WebLinkAboutCAP 2010-06-28 Item 2A - Amendment - Doak Settlement Agreement 1 3 4 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 day of 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 withm the same timelines as all other applications for building permits submitted to the City for review. Doak agrees to provide Tukwila with three calendar days' notio% applications. Doak v. City of Tukwila First Amendment to Settlement Agreement 6/21/20106/21/20106/16/2010 Pare 1 of 5 5 6 a.Within seven days of rec determine if the applications are complete. In the event that Tukwila Incomplete Application," identifying vihich items are required for the Application, Tukwila shall have five days to review t-lea additional h.Tukwila shall have 13 days from the determination that the application is complete tc complete its Substantive review of the building permit applications. In the event that a correction letter is issued, Tukwila shall have i e k' c response to the correction letter is received to review the revised plans and either approve the permit or issue another correction letter. permits arc approved and r gdy for issuance. 2. Paragraph 11, Building Permits, is hereby amended to read as follows. 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. Hermit 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. Tukwila with three calendar days' notice prior to submission of the building permit applicati ons. determine if the applications arc complete. hi-th2 went that Tukwila 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: complete to complete its substantive review c` the building permit applications. In the event that a correction letter is issued, Tukwila shall have 10 days from the date De; -k's Doak v. City of Tukwila First Amendment to Settlement Agreement 621/20106/21/20106 /16/2010 Pare 2 of 5 its receipt. another correction letter. D permits are approved and ready for issuance. 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 penults. 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.Tukwila agrees to- review Doak's Public `I /cE-I-Es- permit applications '.vithin 30 calendar days of subimttal of complete applications, unless the applications are deemed incomplete a f Zoning, Public Works or Fire Code requirements (Titles 9, 11, 1'l, 16, 18 of the TMC) u" bo all ovicd --te correct any such defieieneie:: within the specified time pen ?c set forth by Public Works ts:. Should Doak respond to a correction cw such response within 30 calendar days of Doak v. City of Tukwila First Amendment to Settlement Aereement 6/21/20106/21/20106/16/2010 Pa 3 of 5 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. 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 fee.; and—the administrative. within 20 days of mutual execution of this t gr ive all new building plan check fees specified by TMC 16 01 250(B) for the applications necessary t-o-i+ b Doak is responsible for the payment of the building permit fees in the same manner as all other aoplicantseffect at the time of issuance of th building permits. Ali—fees—to-13e. v aived or refunded, in the approximate amount of ;;13,3'_ zed in Exhibit K attached to -this Agreement. However, 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. 8 5. Section 30, Expiration of This Agreement, is hereby amended to read as follows: 30. Expiration of ThisSettlement Agreement. Thfse Settlement Agreement shall expire 3936 months from the date of mutual execution of this ^mentFirst 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 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 onginal 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 James Haggerton, Mayor DOAK HOMES, INC. Darryl Doak, Sr., Its President Estrella Doak, Its Vice President Date: Date: Date Doak v. City of Tukwila First Amendment to Settlement Agreement 6/21/20106/21/20106/16/2010 Page 4of5 Darryl Doak, Jr., Its Project Manager Date: Doak v. City of Tukwila First Amendment to Settlement Agreement 6/21/201(X/21/30106 /16/2010 Paae5of5 9 S 122 St Completed Homes Homes Under Construction Remaining Homes to be built S 124 St 1 City of Tukwila Doak Settlement Properties "_z o, DOAK HOMES INC PHOTO 12 DOAK HOMES INC PHOTO 14 TO: JACK PACE LETTER HAND DELIVERED TO CITY OF TUKWILA BY: DARRYL M. DOAK, JR PROJECT MANAGER DOAK HOMES INC. CITY OP' ru ktitu APR 6 2010 15 16 April 15, 2010 City of Tukwila Department of Community Development 6200 Southcenter Blvd. Tukwila, WA 98188 DOAK HOMES INCORPORATED 11812 m 26 AVENUE SW BURIEN, WA 98146 Phone 206 246 -6587 Fax 206 246 -5991 Attn. Jack Pace, Director of Community Development Re: Doak v. City of Tukwila, Final Settlement Agreement- 7/2/2008 Dear Mr. Pace, As we keep track of our settlement agreement of July 2, 2008, the expiration date of this agreement is fast approaching. We were given 30 months from the above date to complete our (10) ten- home development. The completion date is coming up on December 2, 2010. We would like to request extension of our settlement for another three years due to the current economic crisis. Our small business is trying to weather this storm and trying to stay afloat. Instead of closing down our business, we are still trying to continue to build as well as to employ people. We are trying hard to meet the deadlines as per agreement. As you know the economy of our country has collapsed. The real estate market was terribly affected since the end of 2008 with many bank foreclosures and repossessions, where some banks did not even survive it and had to shut down. Consequently, there are no banks lending money to builders, most especially speculative builders like us, as they have many foreclosed homes in their inventory. Our company tried to find a financial institution to lend us construction money but to no avail. We had to fund our own project which meant building one house at a time. Build one, sell it and use the funds to build the next. This has been the most challenging situation for our company in our 21 years of homebuilding. Currently, we have four lots that we are building on, Lots A, B, C, D. We finished and sold Lot A on February 1, 2010 that was on the market for seven (7) months. We finally freed up the funds to build Lot B which we just now completed. This home is closing at the end of this month. Then we can continue to build Lot C or D. We purchased the building permits for these two lots as we felt pressured that we needed to meet deadlines but we can only build one house at a time. We would like to notify you that there is no possible way that we can build and finish the ten -home development as per settlement. The real estate market is expected to improve in another three to four years. We need at least three years extension to finish this development. You must know that the reason is totally out of our control as the economy went into recession and the real estate market took a big hit. Many of our counterparts, other builders, had closed down. We are trying to avoid having to shutdown as we continue to employ ourselves and other people. We need your understanding and consideration in this regard. We do not want to wait till the last minute to resolve this pressing issue. We hope that you will work with us now to come up with a reasonable 17 18 Page 2 expectation for a date of completion. Again as a remindE r, contributing to Tukwila's community housing developme it We are hoping to hear from you soon. Thank you for your Sincerely yours, Darryl E. Doak, SR President and Builder DED:tmd our company has been building and for over ten years. time and consideration. 08-056 COUNCIL APPROVED 5-5-08 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 SETTLEMENT AGREEMENT 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: Doak v City of Tukwila Final Settlement Agreement 7/2/2008 Page 1 of 12 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 peimit applications. a. Within seven days of receiving the building permit applications, Tukwila will determine if the applications are complete. In the event that Tukwila deteiniines that the applications are incomplete, it shall issue a "Notice of 19 Incomplete Application," identifyi: ig 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 substa itive 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 respo: ise 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 und this section once it notifies Doak that the peiniits are approved and ready fc•r 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 th 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 went that Tukwila determines that the applications are incomplete, a "Not ice 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 eview 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 issue 1., 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 twplication is ready for recording. Doak is responsible for obtaining the nece 3sary 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 Bounlary Line Adiustment. Tukwila agrees that the four lots modified as part of the BLA application shall be considered "confoiming 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 2 0 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 stoinn 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 21 if any, due to unforeseen circumstances, will be addressed through the Dispute Resolution procedures set forth in paragraph 22 ierein. a. Tukwila agrees to accept that densit_ 7 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 footp:int 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 wish 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 art. exempt from the 35 percent footprint limitation, provided decks are no gi eater than 18 inches tall, meet the side setback requirements, and are no cic ser 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 a:: depicted in Exhibit J attached hereto. 9. Private Road Improvements and Mai:itenance. 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. Vaintenance 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 ar 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, maintai 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. 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 oft °n homes. Doak v. City of Tukwila Final Settlement Agreement 7/2/2008 2 2 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 infoiniation 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 23 Doak v City of Tukwila 2 4 Final Settlement Agreement 7/2/2008 Page 6 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 Adjustment. 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 Peimits. Tukwila agrees to extend the expiration period of existing underground utilities and demolition penults for six months from the date of final execution of this Agreement by the parties. The 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. Buildinv 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 peunits shall expire within 180 days of pennit issuance if no work is commenced or work is abandoned. Doak understands that Tukwila shall not provide any extensions to the subject building pulpits. 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 Doak v City of Tukwila Final Settlement Agreement 7/2/2008 Page 7of12 25 Parties agree to exercise their best efforts to re; olve 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 aris a. Level One. The Doaks and Senior :Tanner Brandon Miles, or his successor, shall meet to discuss and attempt to i esolve the dispute in a timely manner. If they cannot resolve the dispute with n ten (10) calendar days after referral of that dispute to Level One, either part may refer the dispute to Level Two. b. Level Two. The Doaks and Plann ng Supervisor Minnie Dhaliwal, or her successor, shall meet to discuss and ittempt 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 Tw o, 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 res elution 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 tem.'s as existed prior to the dispute to the extent possible. 23. Compensation. Upon execution of his 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 Tukwilz 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 p+,rmit 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 FMC 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 peen lts. All fees to be waived or refunded, in the approximate amount of $43,814.36, are itemized in Doak v City of Tukwila Final Settlement Agreement 7/2/2008 2 6 Page 8 of 12 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 by 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 by 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 deteuuined 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. Doak v City of Tukwila Final Settlement Agreement 7/2/2008 Page 9 of 12 27 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 peimits 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 peitnitted 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 2 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. Doak v City of Tukwila Final Settlement Agreement 7/2/2008 Page 11 of 12 29 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 temis or provisions of this Agreement. CITY OF TUKWILA "6 Mayor DOAK HOMES, INC. Aia a o _44 Liarryl Doak, Si Its President Estrella Doak, Its Vice President „e Hoak, J- r,Px-ojf Manager Doak v. City of Tukwila Final Settlement Agreement 7/2/2008 30 Page 12 of 12 Datc: Date. 3'.,?co g Data. 7-3- •G'U� Data. 7 3. 2