HomeMy WebLinkAbout18-120 - Azhaar LLC / Xalwo Kismaayo LLC - Public Safety Plan Settlement Agreement18-120
Council Approval 6/18/18
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
AZHAAR, LLC and XALWO KISMAAYO LLC ("Osman") and the CITY OF TUKWILA
("City"), a Washington municipal corporation ("the City"), collectively ("the Parties"), hereby
enter into this Settlement Agreement, which shall become effective upon mutual execution by the
Parties.
I. RECITALS
A. On November 6, 2017, the Tukwila City Council adopted Ordinance No. 2554, authorizing the
City to acquire all property rights necessary to complete its Public Safety Plan Projects (the
"Projects") through negotiation and/or the use of eminent domain, if necessary.
B. On December 14, 2017, the City filed a Petition in Eminent Domain ("Petition") to acquire
property located at 15025 and 15029 Tukwila International Boulevard, Tukwila, Washington, also
known as King County Parcel No. 004100-0513 (the "Property").
C. Omar Osman, doing business as Azhaar, LLC, is a lessee on the Property and was served with
the City's Petition on December 28, 2017. Omar Osman, doing business as Xalwo Kismaayo
LLC, is a sublessee on the Property and was served with the City's Petition on December 21, 2017.
Xalwo Kismaayo LLC appeared on April 24, 2018.
D. The City contends that: 1) the City is not required to pay Osman relocation assistance pursuant
to state and federal law; and 2) Ordinances 2550 and 2554 are valid. Osman contends that: 1)
Ordinances 2550 and 2554 are invalid; and 2) they are entitled to relocation assistance pursuant
to state and federal law regardless of the validity of Ordinances 2550 and 2554.
E. The Parties desire to resolve any and all issues related to the City's acquisition of the Property
by entering into this Agreement. The Parties intend that this Agreement will fully resolve these
matters and Osman waives any and all rights to bring litigation related to the City's acquisition of
the Property, the Projects, or relocation expenses.
NOW, THEREFORE, for and in consideration of obligations and exchange of promises set forth
herein, the Parties agree as follows:
I. AGREEMENT
1. City Payment. The City shall pay Osman the sum of Ninety -Five Thousand Dollars and
No/100 ($95,000.00), which payment shall be made to Osman as follows: (1) payment in the
amount of $50,000 to be paid within thirty (30) days of mutual execution of this Agreement; and
(2) payment of the remaining balance of $45,000 to be paid within thirty (30) days after Osman
has vacated the Property and such vacation has been verified by the City, provided that all other
settlement conditions have also been met and Osman has provided a completed W-9 to the City.
The second payment shall not be made if Osman has not vacated the Property by March 31, 2019,
as required by Section 2 herein. Payments will be made by check made payable to Azhaar LLC
SETTLEMENT AGREEMENT - 1
and Xalwo Kismaayo LLC and mailed to: c/o Omar Osman, 3730 South 148th Street, Apartment
68, Tukwila, Washington 98168-5302.
2. Possession and Rent. Osman must cease operations and vacate the Property on or before
March 31, 2019. If the City acquires title to the Property prior to March 31, 2019, and Osman is
still a tenant on the Property, the City agrees to enter into a lease agreement with Osman for
continued use of the Property through March 31, 2019, rent free. The City will be responsible for
payment of any leasehold excise tax owing. Osman agrees to enter into a lease agreement with
the City within fifteen (15) days of the date that the City acquires title to the Property. Free rent
will be offered only to Omar Osman, as managing member of Azhaar, LLC and Xalwo Kismaayo
LLC. Osman will be required to pay all insurance, utilities, and property maintenance expenses.
The lease shall require Osman to obtain commercial general liability written with limits no less
than $1,000,000 each occurrence, $2,000,000 general aggregate, as well as property insurance
covering the full value of Osman's property and improvements with no coinsurance provisions.
The lease shall require that Osman provide reasonable access to the Property for the purpose(s) of
permitting the City and its agents to conduct surveys, building assessments, and other related
inspections. The lease shall provide that Osman may remain on the Property until March 31, 2019,
provided the City has acquired the Property prior to that date. Osman may terminate said lease at
any time with fifteen (15) days' written notice to the City. Osman agrees that it will not enter into
any subleases relating to the Property. Until the City has acquired title to the Property, Osman
will be responsible for abiding by the terms of his lease with the current owner of the Property.
Should Osman fail to vacate the Property by March 31, 2019, the second payment to
be made by the City to Osman under Section 1 herein shall not be made, and the City, in its sole
discretion, may seek repayment of the initial payment made to Osman under Section 1 of this
Agreement. The City will consider any personal property left behind on the premises by Osman
to be abandoned property of no value. Osman consents to having any such personal property,
garbage, or waste disposed of by the City.
Osman shall bear sole and exclusive responsibility for all tax liabilities and penalties,
if any, which any taxing authority, federal or state, may ultimately determine to be owed by him
for payments made pursuant to this Agreement. Osman expressly acknowledges that the City has
made no representations concerning the tax liability of the payments paid under this Agreement
and therefore Osman has not relied upon any such representations.
3. Permit Fee Credit. Should Osman decide to relocate its business operations to another
location within the City of Tukwila, Osman shall be entitled to a permit fee credit of up to $5,000
to be applied to any permit fees required by the City of Tukwila related to tenant improvements
made by Osman at such new location. This credit can be applied to any land use, building permit,
mechanical permit, electrical permit, plumbing permit, sign permit, or public works permit. This
credit is non -transferable, has no cash value, and shall expire on January 1, 2021.
4. Participation in Condemnation Proceedings and Release. In exchange for the payments,
free rent, and permit fee credit provided to Osman under this Agreement, Osman knowingly and
voluntarily agrees to release and forever discharge the City (including its past and present officers,
SETTLEMENT AGREEMENT -2
officials, directors, shareholders, employees and successors in interest) from all claims, demands,
liabilities, and causes of action of any nature related in any way to the City's acquisition of the
Property, the Project, relocation assistance under chapter 8.26 RCW or federal law, or arising from
Omar Osman's current lease agreement with Hee Yeol Kang, whether the bases of such claims,
demands, liabilities, and/or causes of action are currently known or unknown and whether such
claims, demands, liabilities, and/or causes of action have accrued in the past or will first accrue in
the future. Osman agrees not to contest public use and necessity of the Project or to otherwise
interfere, directly or indirectly, with the Project (including but not limited to appeal of any Project
permits) and agrees to grant the City immediate possession and use upon the City's request for
such. Such possession and use agreement shall allow the City reasonable access to the Property
for the purposes of Project planning, studies, environmental assessments, survey work, and the
like.
5. Subleases and Assignment. Osman affirms and acknowledges that is has no subleases
in the tenant space it currently occupies. Osman agrees not to enter into any subleases, and Osman
shall not assign or subcontract any portion of the services contemplated by this Agreement without
the express written consent of the City. Osman will ensure that the Property is vacant on or before
March 31, 2019.
6. No Admissions. This Agreement does not constitute an admission of liability by the
Parties. In the event of future inquiries, the Parties agree not to disparage any other with respect
to the subject matter of this Agreement. This paragraph does not preclude or otherwise impact the
City's obligation to comply with the Public Records Act, nor does it preclude either party from
seeking to enforce the teiinis of this Agreement. In any dispute resolution proceeding between the
Parties in connection with this Agreement, the prevailing party will be entitled to recover its
reasonable attorneys' fees and costs from the other party.
7. Authority. The signatories to this Agreement represent that they have the full right and
authority to enter into this Agreement on behalf of the Parties and the full right and authority to
fully bind the Parties to the terms and obligations of this Agreement. Osman further represents
affirms and acknowledges that there are no subleases to the tenant space it currently occupies, and
Osman expressly agrees not to enter into any such subleases.
8. Counterparts. This Agreement may be executed in duplicate counterparts, in which case
each executed counterpart shall be deemed to be an original and all counterparts together shall
constitute one and the same instrument. Signed versions of this Agreement transmitted by
facsimile copy or electronic mail shall be the equivalent of original signatures on original versions.
9. Entire Agreement; Venue; Attorneys' Fees. This Agreement contains all of the
agreements of the Parties with respect to any matter covered or mentioned in this Agreement. No
provision of this Agreement may be amended or modified except by written agreement signed by
the Parties. This Agreement shall be governed by and construed in accordance with the laws of
the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to
enforce any term of this Agreement, the parties specifically understand and agree that venue shall
be properly laid in King County, Washington. The prevailing party in any such action shall be
entitled to its attorneys' fees and costs of suit.
SETTLEMENT AGREEMENT - 3
10. Knowing and Voluntary Execution. The Parties hereto enter into this Agreement
knowingly, willingly, voluntarily, freely, and without any coercion. The parties have been advised
to consult with an attorney concerning this Agreement and have had adequate opportunity to seek
the advice of legal counsel in connection with this Agreement.
THE CITY OF TUKWILA XALWO KISMAAYO LLC
a Washington municipal corporation
By:
Name: 11 a-ri E11.
Title: ryi a- o f
Approved as to form:
Rachel B. Turpin
City Attorney
-2--18
Omar Osman
Managing Member
AZHAAR, LLC
Omar Osman
Managing Member
NOTARY ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Omar Osman signed this instrument
and, on oath, stated that he was authorized to execute the instrument and acknowledged it as the
Managing Member of both Azhaar, LLC and Xalwo Kismaayo LLC, to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument.
s„.VA L rthis3 l day of
s‘\\�‘11ii1
_w �c�510N F4AP/, //
O• RAiy tit
= at OTAR
/fir 0 W'`\� ASH `~
, 2018.
l'rmted Name: l34-4-.) `-' ,r! /..-t
Notary Public in and for the State of Washington.
My commission expires / 2 `Z 2 /
SETTLEMENT AGREEMENT - 4