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2009 09 24 Proposed Cushman AgreementAGREEMENT AS TO WAIVER AND RELEASE IN EXCHANGE FOR OCCUPANCY Parties. This Agreement is entered into between Andrew and Cynthia Smith (the Smiths), the owners of Lot 15 of Palisades West, and the City of Yelm (City). 2. Purpose. The purpose of this Agreement is to release the City from liability as to any claim that could be made against the City by the Smiths arising from inadequate fire suppression water flow volumes at Lot 15 in the Plat of Palisades West. In exchange, the City shall amend the plat conditions as shown in Paragraph 5 below, in order to allow an occupancy permit to be issued for the Smiths' residence which has been constructed on Lot 15. 3. Duration. This Agreement shall expire at the time the water booster pump has been installed for the Plat of Palisades West and serves Lot 15 therein. 4. Recitals. a. On December 11, 2007, the Yelm City Council approved Palisades West Final Plat, with the addition of two conditions: No building permit shall be issued within this subdivision, until a booster pump is installed by the developer and approved by the City of Yelm which provides adequate fire flow per the Internal Fire Code and City of Yelm standards, provided that a building permit may be issued for a model home if a fire protection plan is approved by the City of Yelm Fire Marshal and SE Thurston Fire/EMS. 2. No certificate of occupancy for any habitable structure shall be issued until a sewer roll seal is installed by the developer and approved by the City of Yelm. On February 12, 2008, the Final Plat for Palisades West was recorded with these two conditions added as "Notes" to the Final Plat. b. On September 17, 2008, the Smiths, through their contractor, paid all building application and school mitigation fees, and the City of Yelm issued Residential Building Permit No. BLD-08-0326-YL for the Smith residence on Lot 15 of the Plat of Palisades West, Tax Parcel No. 67110001500, located at 10756 Palisades St. SE, Yelm. The building permit application stated the building owner as Andrew & Cynthia Smith, the engineer as Rowell Engineering, and the General Contractor as Triance Homes. The Parties acknowledge and agree that at the time the Smiths' building permit was issued, neither of the upgrades identified as Plat Notes #1 and #2 in Paragraph 4.a above had been installed, yet the only potentially allowable exception to Plat Condition #1 was for a model home. The Parties further acknowledge and agree there was nothing on the Smiths' building permit application to suggest that the Smith residence was to be a model home. On or around March-April 2009 as the Smith residence was nearing completion, the developer of Palisades West, Steven Chamberlain, FH1, LLC relayed that he was (and as of this date continues to be) unable to obtain the anticipated funding for the water and sewer upgrades specified in Plat Notes #1 and #2. As an alternative, the Smiths' contractor met with the Fire Chief and Deputy Fire Chief of the S.E. Thurston Fire & EMS to discuss a fire protection plan for the Smith residence that would provide adequate fire protection and suppression without the water booster pump. d. By letter dated April 6, 2009, the S.E. Thurston Fire & EMS has developed a Fire Protection Plan for the Smith residence (copy attached at Exhibit A). This Plan has several options and two different methods for achieving the full fire flow of 1,066 gallons per minute, which the Fire Department has stated would be needed in a 2 worst case scenario if a fire were 100% involved. The letter also states that due to the close proximity of the fire station, combined with an early detection system, a fire with greater than 25% involvement would be unlikely. The Parties acknowledge and agree this April 6, 20091etter functions as the Fire Protection Plan for the Smith residence, and that the referenced "early detection system" which includes smoke detectors, would be most effective if the residence were occupied. The Parties further acknowledge and agree that a vacant house is at greater risk for fire vandalism than an occupied house, and that the potential for loss of life, while less of a risk in a vacant house, still has risk factors due to unauthorized occupancy by vandals and vagrants. The City of Yelm Comprehensive Water Plan identifies a minimum fire flow design standard of 750 gallons per minute for a single family residence, and 1,500 gpm for new "developments" or "system modifications". The Parties acknowledge and agree that based on the aforementioned Fire Protection Plan, Lot 15 can maintain and exceed the 750 gpm design standard for asingle-family residence. Only after the water booster pump is installed, may additional lots in Palisades West be occupied, at which time the system modification would be implemented and Palisades West could begin to fully function as a new development. As to Note #2 on the Final Plat of Palisades West requiring a sewer roll seal, the Parties acknowledge and agree that the increase of one single-family residence's sewage usage does not trigger the need for this upgrade. Only after the sewer roll seal is installed, may additional lots in Palisades West be occupied. g. Relying on the Smiths' Fire Protection Plan for an occupied residence at 10756 Palisades St. SE, weighed against the existing risk of liability to the City from fire and vandalism to the presently-unoccupied Smith residence, and mitigated by the prohibition against additional occupancies in Palisades West until the Final Plat Conditions #1 and #2 upgrades are installed, the Parties acknowledge and agree that granting occupancy to the Smiths' residence at Lot 15 of Palisades West would not create undue risk of harm from fire or other causes. Amendment to Final Plat. Based on the foregoing recitals, the Parties agree to an amendment of Notes #1 and #2 to the final plat of Palisades West, as follows: No building permit shall be issued within this subdivision, except for Lot 15, until a booster pump is installed by the developer and approved by the City of Yelm which provides adequate fire flow per the Internal Fire Code and City of Yelm standards, provided that a building permit may be issued for a model home if a fire protection plan is approved by the City of Yelm Fire Marshal and SE Thurston Fire/EMS. 2. No certificate of occupancy for any habitable structure shall be issued, except for Lot 15, until a sewer roll seal is installed by the developer and approved by the City of Yelm. 6. Waiver and Release. In exchange for the above-stated amendments to the final plat of Palisades West, which would enable an occupancy permit to be issued to Lot 15, and after such occupancy has been granted, Andrew and Cynthia Smith agree to waive any claim that could be made if the Smiths were to suffer damages from fire due to inadequate water volume for fire suppression, and release the City from any liability therein, until such time as the water booster pump upgrade has been installed. DATED this day of September, 2009. Andrew Smith Cynthia Smith 4 DATED this day of , 2009. CITY OF YELM By [insert name and title]