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Home My WebLink About12-140 - R & N Real Estate - Voluntary Correction Agreement (Smiles @ Southcenter Dentistry) 12-140 Council Approval N/A VOLUNTARY CORRECTION AGREEMENT BETWEEN THE CITY OF TUKWILA AND R&N REAL ESTATE,LLC I. PREAMBLE THIS AGREEMENT is made and entered into this L day of a4 -, 2012, by and between the City of Tukwila, a noncharter, optional code Washington municipal corporation, (the "City" or "Tukwila"), and R&N Real Estate, LLC, a Washington Limited Liability Company, (the "Property Owner"). 11. RECITALS WHEREAS, the Property Owner owns a commercial structure located at 15425 53rd Avenue South, Tukwila, Washington 98188, commonly referred to as Smiles @ Southcenter Dentistry (the "Property"); and WHEREAS, located on the Property is a freestanding, multi-tenant sign(the "Sign") which is depicted in Exhibit"A"; and WHEREAS, the City of Tukwila regulates the placement, installation, and display of signage in the City through TMC Title 19; and WHEREAS, the original permit for the Sign cannot be located, but it is presumed the Sign was permitted and erected in the late 1970s or early1980s, and became non-conforming in or around 1982 with adoption of the City's previous sign code; and WHEREAS, on August 24, 2010, the City's current sign code went into effect pursuant to Ordinance 2303 and the Sign remained non-conforming; and WHEREAS, on April 20, 2011, the City determined that the Sign was refaced in violation of TMC Title 19 and issued a Notice and Order to the Property Owner; and WHEREAS, other adjoining property owners have asserted a property interest in the Sign and have commenced litigation against the Property Owner. The City is not a party to that litigation; and WHEREAS, both the City and the Property Owner wish to resolve the violations at the Property in manner which is fair and equitable to both Parties; and NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: \\kdvm]\VOL2\APPS\CIV\TUKWILA\Contract\Smiles VCA-FINAL-0830.12.doc : A. Photo of Sign B. Legal Description of the Property UUK. AGREEMENT Section 1. Description of the Proper The Property includes King County parcel number 15720-0033 situated within the City of Tukwila, King County` Wuabio§too State as legally described in Exhibit B. Owner.Section 2. Violation Acknowledgment by the Property The Property Owner acknowledges that the City has determined that the oiQo is non-conforming per IMC 19.36 and was refaced by the prior property owner without obtaining the required pen-nits uorequired by IMC Title I9. The Property Owner further acknowledges that on April 20, 2011, the City issued o Notice and Order for the sign violation and on appeal of the Notice and Order was never fi/ed. No tluoa or penalties aboJ( be uumemood against the Property (}nuzer and/or the property for the subject violation. Section 3. Grace Period Established. The Sign shall be subject to the ten /lO\ year grace period established under IMC 19.36.020 (C). The grace period oozuuzeuoed on August 24, 2010, the date of adoption of the current Sign Code pursuant to Ordinance 2303. Au provided io ?MC 19.36.020, the Property Owner may, with a valid non-conforming sign permit` unoplctc zofbcce, copy changes, and electrical repairs to the Sign, subject to all of the limitations listed in TMC 19.36.020 ([)). TTnou application bythe Property Owner, issuance ofonon-conforming sign permit will be not be withheld by the City. The grace period shall not extend beyond August 24, 2020u15:O0PM. After 5:00PMno August 24' 2020, the Sign shall bu subject tothe provisions ofIMClg.36.O3U (B) us the section currently reads oruo hereafter amended. Action.Section 4. Reauired Corrective Within sixty (60) days of execution of this Agreement by the parties, the Property 0wuore shall submit an application for u Non- Conforming Sign Permit and oFreestanding Sign Permit application to the City to remedy the previous, uouoouf000bzg modifications b» the Sign which have occurred. Such application shall not be denied, and the City will grant alloo-Contonoing Sign Permit and Freestanding Sign Permit iu accordance with the terms of this ogceozocn1. Within the context of these permits, the City will also allow the electricity 0o the Sign toberestored. Section 5. Release of All Claims by the Property Owner. The Property Owner hereby releases and discharges the City and its nffiuia)m, ccopin}eoo, agents and representatives, from any and all claims, demands, liabilities, and causes of action of every kind that have arisen from or are related to the Sign under federal, utu1c or local law. This zclouoc is intended tnbs oD-ozuonopamubzg and to fully resolve all claims, demands, liabilities,and causes of action between the Parties existing at this time. It is further understood and agreed that this Agreement is not to he construed as an admission ofliability on the part of the City of Tukwila, orhy its officials, agents, or employees,by whom liability is expressly denied. The Parties do not intend the release contained in this paragraph to release future claims, if any, for breach of this Agreement or any false representations herein. The foregoing release does not extend to, and in no way alters, any of the rights of the adjoining' proporh'owura. xuuvmxv/oz2wPxn\crVnoK*zL^\Coouoot\mmumvcA FINAL nxso.zu.mm Section 6. Recording. Upon execution of this Agreement, the City shall record the Agreement against the Property with King County. The Property Owner shall reimburse the City for all King County recording fees, within twenty-one (2l) days nfrecording. Land.Section 7. Covenants Running with the The conditions and covenants set forth in this Agreement shall run with the land, and the benefits and burdens shall bind and inure tothe benefit of the Parties. The Property ()vvocr and every purchaser, assignee or transferee of an iutccea1 in the Property, or any portion 1hernof, abo}l he obligated and bound by the tcooe and conditions nf this Agreement, and shall he the beneficiary thereof and u party thereto, but only with respect to the Property, or such portion thereof, mold, assigned oz transferred{n i1. Any such purchaser, assignee or transferee obu|l observe and fully perform all of the duties and obligations of the Property Owner contained inthis Agreement, as such duties and obligations pertain to the portion of the Property sold, assigned or transferred toit. Section 8. Effective Date. This Agreement shall ho effective upon final execution byboth Parties. Obligations.Section 9. Assi2nment of Interests, Rights, and This Agreement shall be binding and inure to the benefit of the Parties. No Party may assign its rights under this Agreement without the written consent of the other Party, which consent shall not unreasonably be withheld. This Agreement shall be binding upon and shall inure to the benefit ofthe heirs, successors, and assigns of the Property Owner and the City. Section 10. Incorporation of Recitals. The Preamble and Recitals contained in this Agreement are hereby incorporated into this Agreement as if fully set forth herein. Section 11. Specific Performance. The Parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance of all material terms of this Agreement by any party in default hereof. Section 12. Governin2 Law and Venue. This Agreement shall he construed and enforced iu accordance with the laws of the State ofWashington. Venue for any action shall lie in King County Superior Court oz the United States District Court for Western Washington. Section 13. Attorney's Fees. In the event of any litigation or dispute resolution prmotux between the Parties regarding an alleged breach of this Agreement, the prevailing party shall be entitled to any award ofattorney's fees. Section 14. Entire Algeement and Amendments. This Agreement represents the eotjco ug7oenzeot between the Parties with respect to the subject matter herein. This Agreement aopermcdcm all other written and/or oral agreements between the Parties relating to the Sign orthe Property. Either party may request cb4ogoa in the Agreement. Proposed obuogom vvbicb are mutually agreed upon shall be incorporated by written amendments to this Agreement. xxuvm/nxOLzmppw\cnxroxw/LA\Cvutruu\emxesvcA FINAL ua.m./zuoc Section 15. Severability and Survival. The provisions of this Agreement are separate and severable. The invalidity of any ukuume sentence, paragraph, subdivision, section, or portion or the invalidity of the application thereof to any person m circumstance, shall not affect the validity of the remainder of this Agreement, or the validity of its application to other persons or circumstances. The provisions of this /\grec0000t, which by their oeomo and context are reasonably intended to survive the oozop}otioo` expiration or cauosUm±imn of this Agreement, shall survive termination of this Agreement. Beneficiaries.Section 18. No Third-Party This Agreement is for the benefit ofthe Parties hereto only and is not intended to benefit any other person or entity, and no person or entity not a signatory to this Aorscoueot shall have any third-party bcecfioiuzy or other dobtn whatsoever under this Agreement. No other person or entity not o party to this Agreement may enforce the tc000 and provisions of this AgzornzsuL Section 19. Authori . The Parties each represent and warrant that they have full power and actual authority to enter into this /\grconcnt and to carry out all actions required ofthoouby this Agreement. All persons are czcoding this Agreement iu their representative capacities and represent and warrant that they have fb[( power and authority to bind their respective organizations. Notices.Section 20. Notices, demands, or correspondence to the City and Property Owner shall bomoffiuicntiv given i[dispatched 6y pre-paid first-class mail to the addresses provided by the executing yuz1co below. Notice to the City shall be to the attention of both the Director of Community Development and the City Attorney. Noboco to subsequent property owners shall be required tobs given by the City only for those property owners who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other nfnew addresses for such notices, docouVdm or correspondence, Section 21. Police Power. Nothing in this Agreement ubn1l be construed to diminish, restrict or limit the police powers of the City granted bythe VVumbiugtnn State Constitution or by general law. Drafter.Section 22. No Presumption A2ainst This Agreement has been reviewed and revised by legal counsel for both Parties and no presumption or rule that ambiguity shall be construed against the party drafting the document shall apply to the interpretation or enforcement of this Agreement. Headings.Section 23. The headings in this Agreement are inserted for reference only and shall not bo construed to expand, limit or otherwise modify the tcoom and 000cbtioou of this Agreement. Representation.Section 24. Legal In entering into this Agreement, the Property Ovvucx represents that it has been advised to seek legal advice and counsel from its attorney oouCczuiug the legal 0000cgncocsm of this Agreement; that it has carefully read the foregoing Agreement and knows the contents tbczenf, and signs the muuzo as its on/u free act; and that it fully understands and voluntarily accepts the terms and conditions of this AgTeoroort. \16m/n/oz2w»po\cn/nuozwLAxznotran*stnocnvcA'FINAL-oo.so./zuoc IN WITNESS WHEREOF, the Parties hereto have caused this Voluntary Correction Agreement to be executed as of the dates set forth below: PROPERTY OWNER: CITY OF TUKWILA: By: By: Jack P ce,DC Director R&N Real Estate, LLC City of Tukwila 15425 53 rd Ave S 6200 Southcenter Boulevard Tukwila, WA 98188 Tukwila, WA 98168 \\kdvml\VOL2\APPS\CfV\TUKWILA\Contract\Smiles VCA-FINAL-08.30.12.doc STATE OF WASHINGTON ) ) ss. COUNTY OF KING On this day of 2012, before me personally appeared VA" &SEAL , to me known to be the individual that executed the within and foregoing; instrument, and acknowledged the said instrument to be her free and voluntary act and deed for the uses and purposes therein mentioned, and on oath stated that she is authorized to execute said instrument. V r y DaA�� Am.Vbvi Notary Public state Of Washington Notary Public in and for the State of WASHINGTON KATHERINE M MARTIN residing at �*j AvJLNU PK09�' M Appointment Expires Mar 30,2016 V Appoint El My commission expires: STATE OF WASHINGTON ) ) ss. COUNTY OF KING On this day of November— 2012, before me personally appeared to me known to be the individual that executed the within and foregoing instrument, and acknowledged the said instrument to be her free and voluntary act and deed for the uses and purposes therein mentioned, and on oath stated that she is authorized to execute said instrument. 44 Notary Public in and for the State of WASHINGTON residing at My commission expires: \\kdvnil\VOL2\APPS\CIV\TUKWILA\Contract\Smiles VCA-FINAL-08.30.12.doc exhibit a photo of sign EXHIBIT B Legal Description of the Property THAT PORITION OF THE EAST 300 FEET OF LOT 3, BROOKVALE GARDEN TRACTS,ACCORDING TO THE PLAT THEROF RECORDED IN VOLUME 10 OF PLATS, PAGE 47 IN KING COUNTY, WASHINGTON, LYING NORTH OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE WEST QUARTER CORNER OF SECTION 23,TOWNSHIP 23 NORTH, RANGE 4 EAST, W.M., IN KING COUNTY WASHINGTION; THENCE SOUTH 00 42'00"WEST A DISTANCE OF 993.00 FEET; THENCE SOUTH 880 12'00" EAST A DISTANCE OF 642.00 FEET; THENCE 00 42'00" EAST A DISTANCE OF 184.20 FEET TO THE TRUE POINT BEGINNING OF SAID LINE; THENCE N880 12'00" WEST A DISTANCE OF 300 FEET AND THE TERMINUS OF SAID LINE; EXCEPT THAT PORITION OF THE CITY OF TUKWIAL FOR STREET PURPOSES BY DEED RECORDED AGUST 1, 1979 UNDER RECORDING NO. 7908010989 King County Parcel#115720-0033