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RESOLUTION NO: 4 4 10
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
, OF AUBURN, WASHINGTON, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A
. DEVELOPMENT AGREEMENT BETWEEN THE CITY .
AND PARKSTONE INVESTMENTS, INC., TO ALLOW
THE DEVELOPMENT OF THE "RENAISSANCE AT
AUBURN" PROJECT AT 5029 AUBURN WAY NORTH
WHEREAS, former Aubum City Code 14.21, applicable to this project because
of vesting, provided that the CITY could consider entering into a development
agreement in instances when a property owner has a property or a development plan
that warrants considerations of alternatives in how the development should proceed
and in what standards should be used because of unusual property characteristics or
different development factors; and
WHEREAS, Parkstone Investments, Inc. requested the CITY consider
approval of a development agreement to allow development of an 2.67 acre site with
a 120 unit senior apartment and retail project; and WHEREAS, the City of Auburn Comprehensive Plan indicates that higher
density developments and special development standards may be authorized for _
senior housing projeets; and
WHEREAS, the proposed development agreement has been reviewed by the
Public Works and Planning and Community Development Committees of the City
Council; and
Resolution No. 4410
Odober27, 2008
Page 1
WHEREAS, on July 11, 2007, the City Council conducted a duly noticed public
hearing as required by ACC 14.21.050, following which the City Council denied the
proposed development agreement; and WHEREAS, on July 31, 2007, Auburn Senior Apartments, LLC and Parkstone
Investments, Inc., filed a petition seeking review of the land use decision pursuant to
Chapter 36.70C Revised Code of Washington (RCV1); and
WHEREAS, following a review of the pleadings of the City and the Developer,
and a review of the record and having heard oral argument on January 18, 2008, the
King County Superior Court entered an order on February 22, 2008, reversing the
City Council's decision and remanding the development agreement for further consideration based on certain facets that the Superior Court deemed warranted; .
and
WHEREAS, on March 17, 2008, the City Council resumed its hearing on the
proposed development agreement, and following consideration based on the record
established by the court and Section 14.21.010.A of the Auburn City Code, directed
staff to prepare the necessary document memorializing the City CounciPs findings,
conclusions and decision for final review and approval by the City Council; and
WHEREAS, the CITY hereby.finds that the proposed development agreement.
is consistent with the following provisions of ACC 14.21:
1. Land Use Efficiencies. Provide efficient and effective use of Jand, open
~
space and public facilities that result in lower development costs and make
,
housing more affordable.
Resolution No. 4410
October 27, 2008
Page 2 -
2. Improved Transitional Areas. Improve the sensitive development of
transitional areas located befinreen different land uses, environmentally
sensitive areas, and along significant corridors within the city.
3. Implementation of the Comprehensive Plan. Provide development that
is consistent with tfie goals and policies of the comprehensive plan.
4. Enhanced Design Features. Provide building and structural designs that
complemenf surrounding land uses and their environment. Design standards
, should reflect quality site planning, landscaping and building architecture;
. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN;
, WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH
RESOLVES AS FOLLOWS:
Section.1. The Mayor and City Clerk of the City of Aubum are herewith. .
aut_horized to execute a Development Agreement with Parkstone Investments, Inc.
: for the purposes of developing the Renaissance at Auburn project in substantial
conformity with the. copy of said Agreement attached hereto, denominated as Attachment "A" and made a part hereof as though set forth in full herein.
Sect6on 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of this
legislation, including executing a Settlement Agreement and Release document in ,
substantial conformity with the copy of said Agreement attached hereto, denominated
as Attachment "B" and made a part hereof as though set forth in full herein, settling,
releasing and discharging all claims by Parkstone Jnvestments, Inc. that were
Resolution No. 4410
October 27, 2008
Page 3
included or could have been included in Parkstone's Land Use Petition Act Pefition
and Complaint, and related hereto the cases identifed in the recitals of said
Attachment "B."
Section 3. This Resolution shall take effect and be in full force and effect
upon passage and signatures hereon.
DATED and SIGNED this o4~day of O er 2008.
~
~
,
. P ER B. LEWIS, MAYOR ;
, ATfEST:
' Danielle E. Daskam, City Clerk _
APPROVED AS TO FORM:
aniel B. Heid, City Attomey
Resolution No. 4410
October 27, 2008
Page 4
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R@tU171 Addr2S8: PACIF0IC NW TIT AG 52.00
AUbUf~1 CI~/ CIer1C PAGE01 OF 021
CI~/ Of AUbUn1 . . KING4COUNTY34WA7
25 West Main St: -
Auburn, WA 98001
RECORDER'S COVER SHEET
Documenf Title(s) (or transactions contained therein):
Development Agreement PACIFIC NORTHWEST TITLE
~ Sl Z -l ~
Reference Idumber(s) of Documents assigned or released: (~j
.
OAdditional reference #'s on page of_document
Grantor(s)/Borrower(s) (Lasf name first, then first name and initials)
Aubum, City of
Grantee/AssigneeBeneficiary: (Last name first)
1. Parkstone Investments
Legal Description (abbreyiated: i.e: lot, block, plat or section, township, range)
That portion of Tract 30, White River Valley Home Tracts according to the Plat thereof
E Additional legal is on, page 18_ . of:document.
Assessor's Property Tax Parcel/Account Number
9360000189
❑ Assessor Tax # no# yet assigned
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CITY OF AUBURN - PARKSTONE INVESTMENTS, INC.
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of
the,~~~!day of ZgQe~by and between PARKSTONE INVESTMENTS,
INC., a Washington carporation (referned to herein as the "Developer"); and the CITY OF
AUBURN, a State of Washington municipal"rty (the "City°).
WITNESSETH: •
WHEREAS, Washingfon State law (RCW 36:706.1707200) permits and allows local
jurisdictions to enter into development agreements to address situations where converfional
development requirements may not accommodate the development in a way that best serves the
needs of the local jurisdiction and the development; and,
- WHEREAS, the City of Aubum adopted Chapter 14.21 of the Aubum City Code to allow
the City to consider development agreements consistent with State law; and
WHEREAS, the Developer desires to develop certain real property owned or controlled by
it, as hereinafter described for the consfiuction and development of the projects hereinafter
described, in accordance witti the development standards designafied in this Agreement; and,
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WHEREAS, pursuant to the authority provided in: Sections 36.1OB.170-200 of the Revised
Code of Washington (RCU1) and Aubum City Code 14.21, the parties her+eto have agreed to enter
into this Agreement to set, forth the term and conditions of the, development on the Properties in
order to protect more fully such development rights, and,
WHEREAS, in connection with the proposed Development, the Developer and the City
recogn¢e that the scope and teim of the planned developments under this Agreement accompGsh
the statutory aims of comprehensive; orderly planning and developmert within the City, thus
providing benefits to the citizens and residents of the City exceeding any deroga~tion from the City's
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. zoning powers for the duration of the Project and provide public benefiis through the donation and
sef'aside of those public facil'fies described and identified in this Agreement; and,
WHEREAS, pursuant to RCW. 36.70B.200 and Aubum City Code 14.21.050, a public ,
hearing was held on the 11th day of July 2007.
NOW, THEREFORE, in consideration of the fioregoing, the mutual covenants of the
parties contained herein, and pursuant to RCW 36.70B.170-200 and Aubum City Code 14.21,
THE PARTIES HERETO AGREE as follows:
SECTION 1. DEFINED TERMS Terrns not othenerise defined herein have the meaning set forth in 36.706.170 RGW, fhe
pmvisions of which are incorporated herein by reference.
SECTION 2. PURPOSE
The Developer desire.s to develop certain real property owned by Supasatit IV LLC and
controlled by Developer by means of a fully executed Commercial and Investment Real Estate
Purchase and Sale Agreement, such real property consisting of approximately 2.67 acres of land,
more or less, located in the City, consisting of the parcel listed on Exhibit A attached hereto and
incorporated herein by reference (the °Property°) for the development of the Renaissance at
Aubum senior housing and Complementary Retail hereinafter described as the °Project°, in
accordance with the development regulations designated in this Agreement,
Pursuant to the State of Washington 36.7013.170: RCW and Aubum City Code 14.21, the
parties hereto haVe agreed to enter into this Agreemenf to set forth the terms and condi5ons of the
development of the Project in order to set forth the development standards and other provisions
that shall apply to and govem and vest the development, use, and mitigaation of the development of
the Project for the duration specified in this Agreement .
The Developer also desires #o obtain from the City in connection with the development of
the Property assurances (i) that the Property will be appropriately wned, (ii) that upon receipt of its
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, developmentiand construction peRnits it may proceed with the development and construction of the
Project; and (i'i~ tiat such development rights will be vested and such permits shall be valid for the
duration of the Project, which the City does hereby agnee to and guarantee for a period of ten (10)
,
years from the date of execution of this Agreement: `
In connection with ttie proposed Project, Developer and the City recagn¢e that the scope
and term of the developments under this Agreement accomplish the stahrtoryaims of
comprehensive planning, and, orderiy development within the City, thus providing benefits to the
citizens and residents of the City exceeding any derogation from the City's zoning powers for the
duration of the Project and pro6ide public benefits through the conshuction.of those public facil'fies
described and identified in this Agreement.
This Agreement describes the plans of development and establishes standards,
guidelines and conditions that will apply to the Project, to prov_ide such predictability to Developer
with regard to future development plans.. These standards are intended tb provide certainty to the
City in planning while permitting a certain degree of flexibility for the Developer in undertaking its
development.
SECTION 3. THE PROPERTY
The Property consists of one parcel as legally described in Exhibit A. Consistent with the
terms ofi this Development Agreement, the Property will be sub-d+ivided and split into two parcels
(the °Propertiesl through rec;obation of a short plat to allow separate IegaF ownership of the
Renaissance at Aubum and the Complementary Retail on the Properties.
SECTION 4. PARTIES
The City is the City of Aubum, a State of Washington municipality, exercising
govemmental functions and ~powers pursuant to the laws of the State of Washington and the
Aubum City Code. The principal office is located at 25 West Main Street, Aubum, Washington
980014998. Development Agreement - Page 3 ' ND: 19241.002 4843-0888-7555v1 . ,
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The Deyeloper, Parkstone investrnents, inc., a Washington corporation, has its principal
offices at 10324 Vaimay Avenue Northwest; Seattle, Washington 98177. Any reference hereafter
to °Developer".:shail be deemed bD inciude any succ essors.and/or assigns of Parkstone
Investments, Inc., as permitted in Section 17.
~ SECTION 5. THE PROJECT .
. The planned Project includes the Renaissance at Aubum and the Complementary Retail. The site
consists of one (1) tax parcel containing a total of appmximately 116,349 square feet or 2.67 acres •
of area located at 5029 Aubum Way North.
The Developec proposes to short plat the, site, dividing the existing tax parcef in4o two (2) separate
legal lots via a short plat to develop and own the two distincfi but complementary project .
components. All appropriate access, use and maintenance easements will 6e granted between the
property owners to insure ~long-term viabil'ity of each complementary use.
The first component is The Renaissance, at Aubum, a 120-unit independent living.senior apartment
commun'rty consisting of a single "four (4) story wood-frame building (the "Renaissancel. The
second component is complementary retail comprised of a single one (1) story building containing
approximately five (5) commerciaUretail bays of 1,200 square feet each, for a total rentable space
of approximately 6,000 square feet (the °Complementary Retaill.
The Developer intends to seek funding from the Washington State Housing Finance Commission
to allow the Renaissance to be age-resficted independent senior housing seNing households with
all primary household members thaf are 62 or older and incume-resfricted serving moderate-
income households that eam less than 60% ofiarea median income adjusted for household size. If
such funding is util'¢ed by the Project, then the long-term age- and income-resfictions will be in
force for a minimum of 44 years fibm the date the Renaissance is placed in service, consistent with
recorded Regulatory Aqreements granted by the Developer to the Washington State Housing
Finance Commission.
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The DevelopershalF have the opfion to substitute market rate senior housing for some or all of the
income-restricted un'its. If Regulatory Agreements are not entered irto by the Developerwith the
Washington State Housing Finance Commission, then _ the Developer shall r+ecord a covenant
against the Property, effective for the life of the Project, resficting the age of all primary household
members to 62 years or older.
General purpose access to the Properties shall be provided via a single curb cut on Aubum Way
North, and channelization shall be provided within Aubum Way North to prevent left tums into/from
the Properties. In addition, the Developer shall provide: 1) a secondary emergency access curb
cut from Aubum Way North on the north end of the Property, which access shall be used only for
emergency access, and 2) stub road improvements on the northwestem edge of the Property, to
allow for a potential future connection to a road constructed by others west of the Property. The. Developer shall continue to caoperate with neighboring propefies, as those properties change
ownership or control, or as such properties are proposed for development, to work toward
providing a second general purpose access to the Property.
SECTION 6. CERTAINTY OF DEVELOPMENT AGREEMENT
6.01 DeveloqmentAQr+eement Deemed Controllinq. This Agreement, once recorded,
and any terms, conditions, maps,notes, reference.s, or regulations which are a part of the
Agreement shall be considered enforceable elements of the Aubum City Code. In the case of an _
explicit conflict with any other provisions of the Aubum City Code, this Agreement shall take
precedence.
6.02 Vestin . The Developer shall have the vested right to develop the Project
described in Section 5 for a period of ten (10) years from the date of execution of this Agr+eement,
subject only to the exception in subsection 6.05. The Gity's ordinances, resolutions, rules and
regulations, and official policies goveming permitted land uses, density, design, improvement, and ,
construction standarcJs for the Project shall be those C'~ty ordinances, resolutions, rules and : •
" regulations, and official policies in force as of May 31, 2007.
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6.03 Subseauent Actions., This Agreement shall not prevent the City, in reviewing
subsequent development applications for different projects on the property, from applying new
rules, regulations, and policies which do not conflict with those rules, regulations, and policies
applicable to the subject property, nor shall this Agreement prevent the City from denying or
conditionally approving any subsequent development applica6on on the basis of such new rules,
regulations, and policies. , -
6.04 Chanqes in State or.Federal Law. In the event that state or federal laws or -
regulations, enacted after this Agreement has been entered into, prevent or preclude compliance
m(fth one (1) or more of the provisions of the Agreement, such provisions of the Agreement shall be
modified or suspended as may be necessary to comply with such state or federal laws or
regulations follawing modification procedures in Section 14 for an amendment or cancellation.
6.05 Ememencv Sftuations. The City may suspend the issuance of building peRnits
for the planned Project, 'rf it finds that continued construction would place surrounding residents or
the immediate community, or both, in a condition dangerousto their health or safety, or both.
SECTION 7. CONSOLIDATED PLAN
The Project as proposed is in material compliance with the planning goals and objectives
of the City, as set forth in the City of Aubum 2004 - 2008 Consolidated Plan.
SECTION 8. COMPREHENSNE PLAN
The Project as proposed is in material compliance with the planning goals and objectives
of the City, as set forth in the City of Aubum Comprehensive. Plan, as amended in December 2007.
The project density is consistent with:Plan policies that support higher densfies for senior housing
projects.
SECTION 9. APPROVED U$ES 8 STANDARD$ FOR DEVELOPMENT
9.01 Permitted Uses. This Agreement authorizes the development of a four-story,
120 unit apartment building - designed for independent senior I'nring, together with associated -
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ND: 19241.002 48434888-7555v1
parking, landscaping, outdoor plaza and other amenities,as depicted on the site plan (Exhibit B):
(The parties ackrrowledge that the site plan will need to be revised to incorporate the secondary
emergency access curb cut and stub road improvements described in Section 5.) The Agreement
also authorizes the construcction of a maximum 6000 sq. ft. single story retail building. Future
. commercial uses in the retail building shall be as allowed in the G3 Heavy Commercial Zone as of
May 31, 2007. This Agreement negates the need ibr the Developer to obtain a Condi6onal Use
Permit to construct apartments'within the existing C3 Heavy Commercial zone.
9.02 Off-Street Patkin4. Off-street parking facilities for the planned Project are as set
forth on the site plan attached hereto as Exhibit B. A minimum of 100 parking stalls shall be
provided on-site for the Project.
9.03 Landscaping. Landscaping for the planned Project is as set forth in Exhibit B, ,
attached to this Agreement and made part hereof. -
9.04. Public Facilities/lnfrastructure. The following types of public facilities and
infrastructure will service the Project that require City review and approval: storm water systems,
road and related improvements (including curb, gutter, and sidewalks, channelization 'within Aubum
Way North to prevent left tums into/from the site), and other eligible project components. All public
facil'rtesrinfrastructure shall be insfalled by the Developer and inspected and approved by the City.
All public facilifiesfinfrastructure shall 6e constructed to City of Aubum standards as in effect as of
May 31, 2007.
9.05 Future short alaf. This Agreement authorizes the Developer to divide the
Properly into two lots through a short plat process, with one lot containing the retail building and
one lot containing the Renaissance. This short plat shall not impact the #otal number of dwelling
units allowed in the Renaissance. The Developer shall pmvitle cross-accQSS and parking
agreements between the two par+cels. Approval of the sfiort plat will follow the City's established
review and approval process, provided that no additional 3EPA itview shall be required for the
short plat process.
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ND: 19241:002 4843-0888-7555v1
9.06 Other standards. Ali development standards of the C3 Heavy Commercial zone
and other applicable sections of the Aubum Zoning Code, Aubum City Code, and Aubum Design
Standards in effect on May 31, 2007 shall apply to the Project, unless other-wise modfied herein.
9.07. Develoaees Obliaafions: Nothing in this Section shall be deemed to alter the
~obligation of the Developer to obtain all peRnits necessary before the commencement of each
~ phase of the development of each of the Properties. ~
9.08 Additional Conditions of Aaproval. The Developer shall be obligated to
undertake and complete the following measures:
a. Prior to issuance of a Csrtificate of Occupancy, the Developer shall have
purchased a van with at least a 12 person capacity to provide shuttle senrice exclusively
for residents of the Project For the Iife of the Project, assigned staff shall be responsible ,
for using such van to provide a shuttle senrice for residents on a specific schedule of
reasonable hours seven days per week, 365 days per year; e.g. ftom 9:00 a:m. to 9:00
p:m. -
b. Prior to the time each residert moves into a unit,,information shall be provided on
how the van senrice operates, and also how the site is accessed by private vehicle..
Residents shall be provided extra copies of the materials pertaining to site access and
encouraged to share that information with their guests.
c. At least 30 days,.prior to aritcipated issuance of a Certificate of Occupancy, the .
Developer shall submif an application for a special permit to allow directional signs to the
Project The City Engineer shall promptiy review the application and determine the
. required size of sign lettering to be legible at posted speeds, the number and location of
signs to be posted within the public right of way by the DeVeloper on Aubum Way North
just to the south of 49th $treet, on 49th Street at 6 Street; and on B Street near 277th
Street, in order to direct drivers to the Property from the south. The, directional sign
requirement nuns with the pnoperty and will be the obligation of the owner to maintain in
seroiceable condition until such time as the Cityr detetmines the signs are nof needed.
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d. Prior to issuance of a Gertficate of Occupancy, a six foot solid fence shall be
installed along the westem boundary of the Property. Evergreen landscaping shall be
installed by the Developer in.a two foot wide area on the adjacent property, west of this
solid fence, with a species selected that has a minimum three foot height at time of
planting and a height of at least 10 feet at maturity. The Developer shall be responsible
for,maintaining the fence and landscaping. Fencing and landscaping shall conform to the
. code requirements in effect on May 31, 2007.
. SECTION 10. ENVIRONMENTAL PROCEDURE
This Agreement is a pmject as defined by the Washington State Environmental Policy Act
(SEPA). A Mitigated Determination of Non-Signficance 'was issued in compliance with the,
environmental procedures as outlined in the City of Aubum City Code, Chapter 16.06 on May 30,
2007. The Mfigated Determination of Non-Significance and related :mitigation measures, are set
forth in Exhibit C, attached to this Agreement and made part hereof.
SECTION 11. IMPACT FEES
The Developer agrees to pay in full all applicable impact fees (including but not limited to
traffic, parks, fire, and school, to the extent that they apply) in effect as of the date of the
application of the building pennit: As to the currently pending building permit, as provided for in
Aubum City Code 19.04.040 (traffic),19.06.040 (fire), and 19.08.030 (parks), the amount of impact
fees to be paid shall be based upon the impact fee schedules in effect on May 31, 2007, the date a
complete building permit application was submitted for the Renaissance. All applicable impact fees
shall be paid in full prior to commencement of any construuction or site work, and the Developer
shall provide written notice to the Building Division thirty (30) days prior to commencement of any construction or site work:
SECTION 12. GOVERNMENT APPROVALS ~
Should the Developer at any time require the approyal of any non-City govemmental body
or boaro, whether of local, regional, state or federal jurisdiction,, the Developer shall bear the sole
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cASt and responsibility for obtaining the approval. The City, upon request by Developer, shall lend
its full cooperabon and affiRnative support if it deems such would be in the interest of timely
performance under this Agreement, and such cooperation and support would not compromise the ,
- responsib'ilities of the City, including its responsibilities to the Developer as set forth in this
Agreement The Developer shall compensate the Gity for its costs involving such acfions in ,
accbrdance with an agreemerrt for payment of such costs as negotiated by the parfies. Nothing
contained herein is designed to relieve the Developer of the necessity of complying with the laws
, goveming the permitting requirements, conditions, terms or resfrictions. -
SECTION 13. PUBLIC NOTICE AND HEARINGS
The City represents and waRants that it has conducted at least one public hearing and
has pu6lished notice of intent to consider this Agreement in accordance with the requirements of
36.706.200 and Aubum CityCode 14.21.050.
SECTION 14. AMENDMENT MODIFICATION, OR TERMINATION
This agreement may be amended, modified or terminated in conformitq with the
requirements of RCW 36.706.470-200, and other applicable laws, nules,or regulations, and upon
mutual consent of the parties, which mutual consent of the parties shall be evidenced by a written
agr+eement therefore, signed by the parties hereto. It is provided, however, that nothing in this
Section shall limit or otherwise affect the City's ability to terminate unilaterally or modiiy this
Agreement as a result of periodic review, in conformiry with the requiremenfs of RCW 36.706.170-
200, and other applicable laws, rules or r+egulations.
The Planning.Director may interpret the words and meanings of this Agreement in oroer to
re,solve conflicts in interpretation.
Pursuant to Aubum City Code 14.21.090, minor adjusfinents may be made and approved
by the Planning Directur. Minor adjustments are those uuhich do not violate the teRns of the
. Agreement Major adjustrnerds are those which, wheri determined by the Planning Director, violate
the terms of the Agreement. When the Planning Director deteRnines a change constitutes a major
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adjustrnent, an amendment to the Agreement is required and the process is the same as a new
application.
SECTION 15. PERIODIC REVIEW REQUIRED
This Agneement shall be reviewed by the City periodically at least every 12 months from
the date this Agreement is entered into, at which review the Developer, oc successor in interest
;
thereto, shall be required to demonstrate good faith compliance with this Agreement
The body to conduct such review shall be the. Planning and Communitj+ Development Comm'ittee (the "Committee") of the Aubum City CouriciL
SECTION 16. RESULTS OF PERIODIC REVIEW
16.01 If the Committee has reason to believe that the Developer may not be complying
with the terms of this Agreement, written notice specifying the non-compliance shall be given to the Developer and.the Developer shall have thirty (30) days to bring the project into compliance:
16.02 Public HearinQ. If the Committee has reasons to believe that the Developer has
not brought the Project into compliance after such written notice, the Committee may conduct a
public hearing at which time the Developer must demonstrate good faith compGance with the terms
of this Agreement. The burden on this issue is upon the Developer. The Committee shall
determine upon the basis of substantial evidence whether or not the Developer has, for the period
under review, complied in good faith with the terms and condifions of this Agneement.
16.03 Compliance. If the Gommittee .finds and determines on the basis of substantial
evidence that the Developer has complied in good fdb with the teRns and conditions of this
Agreement during the period under review, no further action is required. However, rf it is
determined on the bas+s ofi substantial evidence that the Developer has not complied in good faith
with the ferms and condfions of'this Agreement during the,period of review, proceedings may be
initiated to terminate or modify this Agreement
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SECTION 17. GENERAL PROVISIONS
' 17.01 -Notices. Demands . and Communications. Formal notices, demands and
' communications between the'City and the Developer shall be sufficiently given'if, and shall not be
deemed given unless, dispatched by cerfified mail, postage prepaid, retumed receipt requested, or
dervered personally, to the principal offices of the City and the Developer as follows:
City Develoaer
Mayor Mr: Daniel Stoner
City of Aubum Parkstone InVestments, Inc.
25 West Main Street 10324 Valmay Avenue Northwest
" Aubum, Washington 980014998 Seattle, Washington 98177
17.02 Service of Process. All senrices of prncess shall be effective if served in person
or through substitution on those individuals designated for acceptance of other communication
pursuant to Section 17.01.
17.03 Conflict of tnteresfs. No member, official or employee of the City shall make any
decision relating to the Agreemenf which affects his or her personal interests or the interests of any
corporation, partnership or association in which he or she is d'irectly or indirectly interested.
The Developer warrants that it` has not paid or given, and shall not pay or give, any third
person any money or other consideration for obtaining this Agreement.
17.04 Non-Liabilfir of Cfir Officials Emalovees. and AQents.. No member, official,
employee or agent of the City shall be personally liable to the Developer, or any successor in
interest, in the event of any default or bmach by the City or for any amount which may become due
to the Developer or successor oron any,obligation under the terms of:this Agreement
17.05 Enforced Delav. Performance by either party under:this Agreement shall not be
deemed to be in default where delays or defaults are due fo war; insurrection; strikes, lock-outs;
riots; floods; earthquakes; fires; casualties; acts of God; acts of the pub6c enemy, epidemics;
quarantine restrictions; fieight embargoes; lack of transportation; govemmental resfictions of
priority; litigation (including sub filed by thircl partie.s conceming or arising out of this Agreement);
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`unusually severe weather, inability to secure necessary labor, materials or toois; acts or failure to
act of any public or govemmental: authority or entity (other than the acts or failure to act of the City
which shall not excuse performance by the City), or any other causes (other than lack of funds of
Developeo beyond the control or without the fault of the party claiming an extension of time to
perform. An extension of time for any such cause shall be for a period of the enforced delay and
. shall commence to run from the commencement of the cause, if notice by the. party claiming such
extension is sent bo the other party within fifteen (15) calendar days of the commencement of the
cause.. Times of performance under this Agreement may also be extended in writing by the City's
Mayor or designee. .
17:06 Plans and Data. _ If the Developer defaults or fails to comply with the requirements hereof, and the default or failure is not properly cured, the Developer shall deliver to .
the City's Mayor any and all plans and data conceming any proposed pubGc improvements -
pursuant to this Agreemenf which shall thereafter be the property of the City at no additional cost to
the City. .
17.07 Provisions Not Meraed with Deeds. None of the provisions of this Agreement
are intended to or shall be merged by:the Statutory Warraniy Deeds of the Property.
17.08 Tffle of Parts and.Sections. Any 6tles of the Parts, Sections or Subsections of
this Agreement are inserted fior convenience of reference only and shatt be disregarded in
construing or interpreting any 'part of its provisions.
17.09 Hold Harmle'ss. The Developer shall indemnify and hold hartnless the City and
theic officers, agents and employees, or any of them from any and al{ claims, actions, su'rts, liability,
loss, costs; expenses, and damages of any nature whatsoever, by any reason of or arising ouf of
the negligent act or omission.of the Developer, its officers, agents, employees; or any of them
rela6ng to or arising out of the performance of this Agreement If a final judgment is rendered'
against the City, its officers, agents, employees and/or any. of them, or jantiy against the City and
the Developer and their respective, officers, agents and employees, or any of them, the Developer
shall satisfy the same to the extent that such judgment was due to the Developers negligent acts -
or omissions. ,
Development Agreement - Page 13
ND: 19241.002 4843-0888-7555v1
17.10 Enforcement Riqhts and Remetlies Cumulative. This Agreemert shall be
~ enfoiceable by the City, Developer, or successor-in-interest notwithstanding any change in any
applicable general or specific plan, zoning, subdivision, or building regulation adopted by the Ciry
which alters or amends the rules, regulations, or policies specified in this Agreement: Enforcement
, may be through any remedy-or enfor+cement method or process, or combination thereof, allowed
under law and/or equfty. Except as otherwise stated in this Agreement, the rights and remedies of
the Pardes are cumulative, and:the exercise or failure to exercise one or more of these rights or ,
, remedies by either party shall not preclude the exercise by it, at the same time or different times, ofany right or remedy for the same default or any other default by the other party.
17.11 Ri4ht of Entrv: During the life of this Agreement and until all improvements
required under this Agreement to be completed are completed, the Developer shall grant to the
City, its agents, employees and representatives the right ofientry on to the Property during noRnal
,
, business hours. -
17.12 Real Estate Commissions. Neither parly shall be rresponsible to the other for any
real estate commissions or brokerage fees which may arise from, this Agreement or otherwise be '
incurred by the other party.
17.13 Aaalicable Law. This Agreement shall be interpreted under and pursuant to the
laws of the State of Washington. Venue for any legal action brought hereunder shall be in the King County Superior Court 17.14 Severabil' . If any term, provision, covenant oc condition of this Agreement is.
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall continue in full force and effect unless the rights and obligations of the parties haye
been materially altered or abridged by such invalidation, voiding or unenforceabil'ity. 17.15 Leqal Actions. In the event any legal action is commenc:ed to interpret or to
enforce the terms of this Agreement, or to coIlect damages as a result of any breach of the
Agreement, the party preva'iling in any such action shall be entitled to recover against the party not
prevailing all reasonable attomey fees and costs incumed in the action.
Development Agreement - Page 14
ND: 19241.002 4843-0888-7555v1
17.16 Bindinq Upon Successors. This Agreement shall be binding upon and inure to
the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the
parties hereto except that there shall be no transfer of any interest tD any of the parties hereto
except pursuant to the terms of this Agreement. Any reference in this Agreement to a specifically
named party shall be deemed to apply tD any successor heir, administrator, executor or assign of
such party who has acquired.an` interest in compliance. with the teRns ofi this Agreement, or under
law.
. 17.17 Parties Not Co-ventures. Nothing in this. Agreement is intended to or does
establish the parties as partners, co-ventures, or principal and agent with one another, nor employees and/or employers of each other.
17.18 Warranfies. The City expresses no warranty or other representation to the
Developer other than those expressed within this Agreement, as to fitness or condition of the
Property.
17:19 Reasonable Aqarovals. The approval of a party of any documentation or
• submissions herein called for shall not be unreasonably withheld unless the text clearly indicates a
differert standarcf. All such approvals shall be given or denied in a timely and expeditious fasfiion:
17.20 Recordation. Within 10 days after the effective date of this Agreement, or any
modfication or the cancellation thereof, the City Clerk shall have this Agreement, or the '
modfication or cancellation notice, mcorded with the County Recorder of tGng County.
17.21 Execution of Ofher pocumentation. The City and the Developer agree tD
execute any further documentation that may be necessary tD carry out the intent and obligations
under this Agreement. ' 17.22 Comalete Understandin4 of the Parties. This Agreement is executed in two (2).
duplicate originals, each of wfiich is deemed to be an original. This Agreement consists of 16 pages and attached Exhibits and' constitutes the entire understanding and agreement of the
parties.
Development Agreement - Page 15
ND: 19241.002 4843-0888-7555v1
DATED this 17 d y of
CI ONE IN ST S, INC.
701-
Peter Levuis, Mayor anie. Stoner, P id
Dated: OCT -2 7 2008 Dated: NouDKgev, 1008
Att
D-anleHe Daskam, City Clerk -
prov as t
, iel ei , ity ey .
Development Agreement - Page 16
ND: 19241.002 4843-0888-7555v1
EXHlBIT A
,
THAT PORTION OF TRACT 30, WHTfE RNER VALLEY HOME TRACTS, ACCORDING
TO THE PLAT THEREOF RECORDED IN VOLUME 13 OF PLATS, PAGE(S) 17, IN KING
COUNTY; WASHINGTON, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID TR.ACT 30;
THENCE SOUTH 0°10'32" WEST ALONG TIiE WEST LINE OF SAID TRACT, A
DISTANCE OF 300 FEET TO TIiE TRUE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 00° I0'32" WEST 370.8 FEET;
THENCE'SOUTH 89049'28" EAST 211.21 FEET TO TFE EAST LINE OF SAID.TRACT 30;
THENCE NORTH 0°12'39" EAST ALONG SAID EAST L1NE 370.8 FEET; TI~NGE NORTH 89049'28" 'V~EST 210.44 FEET TO TFiE TRUE POINT OF BEGINNING;
AND
THAT PORTION OF TRACT 3 1, WHITE RNER HOME TRAGTS, ACCORDING TO THE
PLAT THEREOF RECORDED IN VOLUME 13 OF PLATS, PAGE($) 17, IN KING
COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
,
BEGINNING AT THE NORTHWEST CORNER OF SAID TRACT 31;
TTiENCE SOUTH 1058'00" WEST ALONG THE WEST L1NE OF SAID TRACT 559.30 FEET
TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING SOUTH 1958'00" WEST ALONG SAID WEST i,INE 114.27 FEET;
THENCE NORTH 59029' 10" EAST ALONG A RADIAL LINE 243.52 FEBT TO THE
WESTERLY LINE OF PRIMARY STATE HIGHWAY NO. 5;
THENCE NORTHERLY ALONG SAID WESTERLY LINE, BEING THE ARC OF A CURVE
TO THE RIGHT HAVING A RADNS OF 2905 FEET AN ARCH DISTANCE OF 90.69 FEET;
THENCE SOiTTH 610 16'29" WEST ALONG A R.ADIAL LINE 183.67 FEET TO THE TRUE
POINT OF BEGIlINING; EXCEPT THAT PORTION THEREOF LYIlVG WITHIN TBE FOLLOWING DESCRIBED
TRACT: • •
BEGINNING AT THE POINT OF INTERSECTION OF THE EAST LINE OF SAID TRACT
31 WTI'H THE WESTERLY LINE OF STATE ROAD NO. 5; THENCE SOUTH ALONG THE EA3T LINE OF SAID TRACT 31, A DISTANCE OF 7 FEET;
THENCE SOUTH 59027'. WEST 49 FEET;
THENCE NORTH 32°16' WEST 124 FEET; .
THENCE NORTH 65031' EAST 53 FEET, MORE OR LESS, TO THE WESTERLY LINE OF
SAID STATE ROAD NO. 5; THENCE SOUTHEASTERLY ALONG SAID WESTERLY LINE 112 FEET, MORE OR
LESS, TO THE POINT OF BEGINNING, AND .
THAT PORTION OF TRACT 31, WHITE RNER VAI:LEY HOME TRACTS, ACCORDING
TO THE PLAT THEREOF RECORDBD IN VOLUME 13 OF PLATS, PAGE(S) 17, IN KING
COUNTY, WASHINGTON,,DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID TRAGT 30 OF SAID PLAT;
THENCE SOUTH 0°10'32" WEST ALONG THE WEST LINE OF SAID TRACT 30, A
DISTANCE OF 300 FEET;
THENCE SOUTH 89°49'28" EAST TO THE WEST LINE OF SAID TRACT 31 AND TBE
TRUE POINT OF BEGINNING;
THENCE SOUTH 0012'39" WEST TO A POINT LI'IING 559.30 FEET-SOUTH OF T'HE
NORTHWEST CORNER OF SAID TRACT:31;
. . EXHIBIT A .
THENCE INORTH 61916'29". EAST. 183.67 FEET, MORE OF LESS, TO THE
SOUTHWESTERLY LINE OF PRIMARY STATE HIGHWAY NO. 5; .
THENCE NOR'I'HEASTERLY. AL.ONG SOUTHWESTERLY LINE TO A. POINT WHICH
BEARS SOUTH 89°49'28" EAST FROM THE TRUE POINT OF BEGINNING;
THENCE NORTH 89049'28" WEST TO THE TRUE POINT OF BEGINNING;
EXCEPT THAT PORTION THEREOF CONDEMNED IN ICING COUNTY SUPERIOR
COURT CAUSE NUMBER 626590; AND
EXCEP'T THAT PORTION THEREOF LYING WITHIN THE EOLLOWIlNG DESCRIBED TR.AC'I':
BEGINNING AT THE POINT OFINTERSECTION OF THE EAST LINE OF SAID TRAGT
31 WTTH TBE WESTERLY LINE OF STATE ROADNO. 5; .
THENCE SOUTH ALONG TBE EAST-LINE OF SAID TRACT 31, A DISTANCE OF 7 FEET; THENCE SOUTH 59027' WEST 49 FEET;
THENCE NORTH 320I6' WEST 224 FEET;
THENCE NORTH 65031' EAST.53 FEET, MORE OR LESS, TO TFE WESTERLY LINE OF
SAID STA`PE ROAD NO. 5; THENCE SOUTHEASTERLY ALONG SAID WESTERLY LINE 112 FEET, MORE OR
LESS, TO THE POINT OF BEGINNING;
EXCEPT PORTIONS AS CONDBMNED IN CITY OF ALTBURN. ORDINANCE NUMBERS
2511 AND 2659.
• ~ ~
EXHIBIT R
20'-0" EMERGENCY ONLY ACCESS WITH NUMBER OF PAGES 1_ .
REMOVABLE BOLLARDS
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20'-0" STUB ROAD IPAPROVEMENTS
RENAISSANCE AT AUBURN SENIOR
SITE ADDRE55: 5029 AUBURN WAY NORTti, aUBURN, WA
,
~ , EXHIBIT «B»
..t. L vA* . -.-u.a.~-. . ~
~
Peter B. Lewis, Ma)
- WAS HINGTON 25 wesr nnain meet * nubum wA 9aooi-499e * www.aubumwa.gov * 253-931-3
. FINAL M1TtGATED
DETERM(NATION OF NON-SIGNFICANCE • SEP07-0003
DESCRIPTION OF PROPOSAL: Development Agreement to ailow the construcdon of a 120 unit
senior apartment proJect. and 6000 sq, ft: retaii bufldng on a 2:67 acre site within a°C3° Heavy
Commeraaf zone districc;t.. •
. PROPONENT: Keith Jarnes, Legato Gonsulting 4.OCATION:, 5029 Aubum Way North; west side of the street LEAD AGENCY: City of Aubum MtTICATtON MEASURES: • 1. Compensatory flood storage vin'll be required to. mitigate the dispiacemeM of 8ood storag!e
voiume at a i. to 1 ratio caused by filt keing placed foc conshudion activvities.
• 2 Ldt tuin channel'¢ation shap be instaUed in Aubum WayNotth to the satisfaction of the City
Engineer to miNgate potential left tumirig movement impads: . 'The tead agency for this proposal has determined that it does nvf have a probable significant adverse Impact on the enviconinerit. An environmentai impad statement (ElS) is not required
under RCIi/ 43.21 C:030(2)(c). This dec;ision was made after reView o# a compteted environmerdal
chedcfist and other iryformation on file with the lead agency. This infortnatiort is available on the
•pWblic on request. . : .
' REOPONStBLE 'OFFICtAL: Oavid.Osalci, AICP . POStT10W'i1TLE: Interim Diredar of Planning,.Buiiding _ ADDRESS• 25 Wes~ Mai ~efopment . .
and . Aubum, 1NA 98001. (253 090 . .
DATE ISSUED: . Mav 30. 2007 SIGNATURE:
. Note: This determination does rtot constttute approval of the propQsal. Approval of the
proposal can oniy.be made, by the legislative or administrative body vested with that
authority: The proposal is required to meetap applicabte regulations: .
Any person aggrievecl of this finaF deteRninafion may file an appeal with the Aubum City Cleric
within 21 days of the date of lssuanoe of this notice., All appeals of the above detemiination must
be filed by 5:00 P.M. on June 20: 200 vviM reauired fee. . :
. . . EXHIBIT "C" .
. . AUBURN * MORE -rHM You uMAGu-tE
. . 'v
SETTLEIVIENT AGREEMEN'T AND RELEASE
This Settlement Agreement and Release (the "Settlement Agreement") is made and
entered into this J-7 "-'-day of October, 2008, by and between Aubum Senior Apartments LLC
and Park:stone Investments, Inc. ("Plaintiffs"), and the City of Auburn, including all elected
officials, various department heads, and employees ("Defendant").
RECITALS
A..: Plaintiffs asked Defendant to enter into a Development Agreement (DA) pursuant
to Auburn City Code (ACC) Ch. 14.21 for construction of a 120-unit affordable senior apartment
coininunity with complementary retail uses. If approved, the DA would have allowed Plaintiffs .
to develop their property with greater density than would otherwise be allowed pursuant to a
Conditional Use Permit (CUP) from the City. _
B. At an open public meeting held July 11, 2007, after a public heazing, the City
Council declined to enter into a Development Agreement with Plaintiffs.
C. On or about July 31, 2007, Plaintiffs timely filed a Summons and Land Use
Petition and Complaint for Damages in the Superior Court for King County, Cause No. 07-2- -
25163-4 KNT (hereinafter the "LUPA Petition and ComplainY');
D. In the LUPA Petition and Complaint, Plaintiffs alleged that the Defendant's
decision to withhold authorization for the Mayor to sign their proposed Development Agreement
was arbitrary, capricious, and unlawful; and subjected Defendant to a claim for damages,
attorneys fees and costs pursuant to RCW Ch. 64.40.
E. The Superior Court conducted a hearing with regazd to Petitioners' LUPA appeal
on January 18, 2008. By Order dated February 22, 2008, the Superior Court reversed the City
Council's decision and remanded the' matter back to the City Council for further action.
Subsequently, the Court also entered.an Order setting Plaintiffs' damage claims for trial on
February 23, 2009.
F. The City timely filed a Notice of Appeal to the Court of Appeals,. Division I,
seeking review of "the Order on. Land Use Petition, entered on February 22, 2008," Cause No.
61426-6 ("the Appeal"). By letter dated October 9, 2008, the Court entered an Order staying the
appeal until October 30, 2008.
G. On October 27, 2008, the City Council passed Resolution No. 4410, which
approved a Development Agreement with Plaintiffs on terms acceptable to both parties.
H. The Defendant herein expressly and unequivocally denies all the claims asserted
against it by Plaintiffs in the above-referenced legal proceedings.
Page 1
r
I. The parties desire to enter into this Settlement Agreement in order to provide for
the full settlement and discharge of a11 claims by the Plaintiffs which are or might have been
made against the Defendant in the LUPA Petition and Complaint, upon the terms and conditions ,
set forth herein.
AGREEMENT
The parties agree as follows:
1. Release and Discharge.
aIn consideration of the payment set forth in Section 4, below, and City approval of
the Development Agreement described in. Recital G, above, Plaintiffs hereby release and forever
discliarge Defendant from any and all past, present, or future claims, demands, obligations,
aetions; causes of action; claims, rights; -damages, costs, attomeys' fees, iosses of services,
expenses and compensation of any nature whatsoever, whether. based on tort, contract, civil rights law; or other theory of recovery, including, but not limited to, claims under RCW Ch.
64.40, which the Plaintiffs now have, or which may hereafter accrue or otherwise be acquired,
which aze, or might have been, the subject of the LUPA Petition and Complaint, including any
future claim of Plaintiffs' representa.tives -or heirs regarding the LUPA Petition and Complaint, which have resulted or may result from the alleged acts or omissions of the Defendant.
This release and discharge shall also apply to Defendant's past, present, and future
officers, attomeys, agents, servants, representatives, employees, predecessors and successors in
interest, and assigns, and all other persons, firms, or corpora.tions with whom any of the former
have been, are now, or may hereafter be affiliated.
b. This release is fully binding and constitutes a complete settlement by the Plaintiffs
and Defendant, their heirs, assigns, and successors of all claims which are, or might have been,
the subject of the LUPA Petition and Complaint.
c. This release shall not operate as a bar to any action to enforce the DA.
2. Dismissal of Pending Lawsuits and Appeals.
In further consideration of the payment set forth in Section 4, below, Plaintiffs agree to
dismiss, with prejudice and without fees, the LUPA Petition and Complaint identified herein,
within ten (10) days of the effective date of this Settlement Agreement. In retum, Defendant also
agrees to dismiss the Appeal with prejudice and without fees,
3. Denial of Liabilitv. It is understood and agreed_to by the parties that this settlement is a compromise of a .
disputed claim, and the payment is not to be construed as an ad.mission of liability on the patt of
Page 2
~
the Defendant, by whom liability is expressly denied. It is further agreed that any payment or
other concession/release made in this Settlement Agreement shall not be construed or asserted as
an admission of liability, wrongdoing, or fault by any party.
4. Pavment.
In consideration of the release and discharge set forth in Section 1, above, the Defendant
agrees to pay Plaintiffs the sum of $200;000, within five (5) days of the effective da.te of this
Settlement Agreement.
5. Attornevs' Fees.
All parties hereto sha11 bear all attorneys' fees and costs incurred by them arising from
the actions of their own counsel iri connection with the LUPA Petition and Complaint, the
Appeal, and tliis Settlement Agreement, and the matters referred to herein.
6. Governina Law.
This Settlement Agreement sha11 be construed and interpreted in accordance with the
- laws of the State of Washington.
7. Additional Docuffients.
,
All parties agree to cooperate fully and execute any and all supplementary documents and .
to take all additional actions which may be necessary or appropriate to give full force and effect
to the basic terms and intent of this Settlement Agreement.
8. No 'I'hird-Partv Beneficfaries.
Except as may be expressly provided herein, this Settlement Agreement is for the benefit
of the parties hereto only and is not intended to benefit any other person or entity, and no person
or entity not a party to this Settlement Agreement sha11 have any third-party beneficiary or other
righfs whatsoever hereunder.
9. SeverabilitvLSavings Clause:
Should any part of this Settlement Agreement or any pmvision contained in this Agreement
be rendered or declared invalid, the invalidation of such part or portion of this Agreement shall not
invalidate the remaining portions thereof. The remaining parts and provisions of this Agreement
shall remain in full force and effect.
Page 3
i
10. Modafications lbv Written Aereement Only.
The obligations in this SettlementAgreement may be modified only by written agreement of
the parties; signed by duly authorized representatives of each of the settling parties. Any such modification shall not affect any other provision of this Settlement Agreement.
11. Entire Agreement.
This Settlement Agreement constitutes the entire agreement between the parties. This
Settlement Agreementis fully integrated and constitutes the complete and final agreement between.
the parties. All previous agreements, offers, counteroffers, and negotiations are. merged herein.
There are no other or further agreements which modify the terms of this Settlement Agreement.
This Settlement Agreement cannot be modified or amended in any way (except in writing as set
forth in 3ection 10, above).
12. Authoritv to Bind.
In executing this Settlement Agreement, each party acknowledges that the person or persons
signing on his/her/its behalf have authority to bind the party he/she/it represents. Each party further
represents that the per"son or persons signing on his/her/its belialf are competent and of lawful age, -
have been fully advised by counsel in connection with the execution of this Agreement, and that
such persons do so freely and voluntarily.
13. Obligation of Good Faith and. Fair Dealins.
The parties agree that each of the parties is giving up certain rights, claims, and defenses in
executing this Settlement Agreement, and each party hereby agrees to act in good faith in carrying
out its respective duties and obligations herein.
14. Headings Not Controlling.
The paragraph headings included-herein are for reference only and are not a part of this
Settlement Agreement. The headings shall not control or alter the meaning of this Settlement
Agreement as set forth in the text.
15. Equal Particiaation in Drafting.
The parties have each participated and had an equal opportunity to participate in the
drafting of this Settlement Agreement: No ambiguity sha11 be construed against any party based
upon a claim that such party drafted the ambiguous language.
Page 4
16. Effectiveness.
This Settlement Agreement sha11 become effective following execution by each party and
24 calendaz days following approval of tYie Development Agreement described in Recital G,
above, and upon confirmation by tlie Developer that no timely appeal of the Development
Agreemerit was filed.
17. Acknowledeement.
The Plaintiffs and Defendant hereby acknowledge by their signature below that they have
had the advice of counsel of their own choosing with regard to the meaning and intent of this
SetElement Agreement, and that said counsel has explained the full legal import of this
Settlexnent Agreement to them.
_
DATED: rV Od~Pf ~Z N a ~t
Plaintiff
DATED: ,
Plaintiff .
OCT 2 7 2008 .
DATED: OF A '
r---
~
B : Peter B. Lewis
Its: 1Vlayor
ND: 19241.002 4830-8074-2659v 1
~
Page 5