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Chronology 11 24 2009Tuesday, Oct. 27 -Council tables the matter. Thursday, Oct. 29 -Brent Dille emailed Ben Cushman indicating that the City is waiting for a proposal from Vince McClure, the applicants engineer, in order to set up a meeting between McClure, the City's consulting engineer (Parametrix), the Washington Department of Health, and the City Public Works Department. Brent requested a conceptual plan be provided by McClure no later than Friday the 30t" in order to be prepared for a meeting the following week. To date, no conceptual plan has been received by the City. Friday, Oct. 30 -Brent emails Cushman the draft release with a request for comments or concerns. To date, no comments or concerns have been received. Tuesday, Nov. 2 -Randy Raymond of Parametrix called McClure on the City's behalf to schedule a meeting to discuss requirements for water pressure. Thursday, Nov. 4 -Tim Peterson and Randy Raymond met with McClure. There was no conceptual proposal, but they discussed possible ways to get adequate water pressure at the meter. It is possible the small booster pump currently in the garage can be moved out near (but behind) the meter on the lot. The pressure tank would stay in the garage. The pump would have to be in a hot box, but would not be generated McClure was to have a preliminary design to the City November 9t" at the latest for review and submission to the Department of Health for it's review. Tuesday, Nov. 11 after business hours -McClure emails conceptual design of pump and sewer filter to Randy Raymond and Tim Peterson. Tuesday, Nov. 11 -Council tables matter until Nov. 24. Monday, Nov. 16 -Randy Raymond provides comments to McClure on preliminary design. Tuesday, Nov. 17 -Brent Dille sends email to Cushman requesting comments on draft release form. Tuesday, Nov. 24 -McClure provides revised drawings to Randy Raymond and Tim Peterson. Tuesday, Nov. 24 -Randy Raymond sends plans to the Washington State Department of Health for review and approval. Grant Beck From: Brent Dille [bdille@owensdavies.com] Sent: Tuesday, November 17, 2009 11:35 AM To: Ben Cushman Cc: Ron Harding; Tim Peterson; Grant Beck Subject: Smith Residence Ben, On October 30th I forwarded you the City's release language as promised at the October 27th council meeting and at that time sought your comments relative to the same. I understand from the City that Mr. Smith indicated to council at the last council meeting that the language is "unacceptable". Odd that the City should hear from your client and not from you given your desire to get this matter resolved in a timely fashion. I trust your not expecting to present your agreement to Council without my prior review and approval. I look forward to reviewing your revised settlement agreement the very near future. Best regards, Brent F. Dille ~~ ~~ ~~~~ :+~ll[:4k\E.Yyrk~ I.:l~ti .~ j..~',~r7; 1- r7i . ~~ 1.Sd~fJFPi -~:(7r eu Owens Davies Fristoe Taylor 8~ Schultz, PS 1 1 15 West Bay Drive, Suite 302 Olympia, Washington 98502 Phone: (360) 943-8320 Fax: (360) 943-6150 sosteraard@owensdavies.com CONFIDENTIAL INFORMATION: This email message and any attachments accompanying it may contain confidential information, including information protected byattorney-client privilege. The information is intended for use only by the intended recipient(s). Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message. If you are not the intended recipient, or if this message has been addressed to you in error, please do not read, disclose, reproduce, distribute or otherwise use this transmission. Please promptly notify the sender by reply email and destroy all copies of this message and any attachments. Thank you. IRS CIRCULAR 230 DISCLAIMER: To ensure compliance with requirements imposed by the IRS, we inform you that to the extent this communication contains advice relating to a Federal tax issue, it is not intended to be used, and it may not be used, for (1) the purpose of avoiding any penalties that may be imposed on you or any other person or entity under the Internal Revenue Code or (2) promoting or marketing to another party any transaction or matter addressed herein. Grant Beck From: Randy Raymond [RRaymond@parametrix.com] Sent: Monday, November 16, 2009 5:52 PM To: Vince; 'Doreen Milward'; Tim Peterson; Grant Beck Subject: RE: Smith Residence Attachments: Smith Residence Plan Comments 111609.pdf Please find attached the City's review comments on the Smith Residence temporary water booster system and sanitary sewer odor control measures, provided by Vince McClure on November 11, 2009. The design calculations provided in the submittal have been reviewed and are accepted with no comments. All material and system design comments requiring responses are marked on the final two sheets of the attached package. Once these comments have been addressed to the City's satisfaction, the entire submittal package will be submitted by the City to the Department of Health Regional Engineer for review. In addition to the notes requested on the water booster system plan sheet, conditions regarding responsibility for maintenance and the ultimate removal of the temporary booster system should be addressed in the agreement being negotiated between the Smith family and the City. Please contact me with any questions regarding the review comments. Parametrix 4othAn~tiuersecr~, ~~69-~®a~ inspired people .inspired solutions . making a difference Randy Raymond, P.E. Senior Engineer, Municipal Services Group phone: 253.863.5128 fax: 253.863.0946 cell: 253.306.2954 rraymond(c~parametrix.com Before printing, please think green. From: Vince [mailto:mcclurepllc@comcast.net] Sent: Wednesday, November 11, 2009 5:48 PM To: 'Doreen Milward'; Randy Raymond; 'Tim' Subject: Smith Residence AI I, Attached are my calculations and sketches for the Smith residence. I think this should work for everyone. Tim and Randy, if you need changes or have comments, please let me know. I've asked for delivery receipts since the file is large. If it doesn't go through, I'll break it into parts. Thanks, Vince OWENS r~ DAVIES E. Rnbert Fristoe Don W Taylor Frank j. Owens Theodore D. Schultz Richard G Phillips, Jr. Michael LY! Mayherry ICirkM. j/eis Matthew B. Edwards BrerrtF. Dille Inhn V. Lyman Denise W Derricntt ATTORNEYS AT LAW StreetAddress 1115 WestBayDriv~ Suite 302 Olympia, Washington 98502 VIA FACSIMILE Mr. Benjamin D• Cushman Cushman Law Offices, P.S. 924 Capital Way South Olympia, WA 48501 Re; Palisades West/Smith Dear Mr. Cushman; November 9, 2009 MailingAddress P.O. Box 187 Olympia, Vashington 98507 Phone (360) 943-8320 Facsivnile (360) 943-61 SO www.nwensdavies.com I understand that Tim Peterson, Public Works Director for the City of Yelm, Randy Raymond, Engineer for Parametrix, and Vince McClure met last Thursday to come up with an engineering solution for the booster pump and pressure sustaining valve requirements. It is my further undersfianding that Vince McClure, your clients' engineer, is to provide drawings either this affernoon or tomorrow for the City's and Department of Health's review. On Friday, October 30, I forwarded to you the City's required release language to be included in any plat modification. To this date, I have not received your comments on the City's language. Consequently, because we don't have all the information necessary to move forward on this matfier, it is staff's intention to give an update to the Council as to the progress that is being made and table this for another two weeks in order to allow thorough review of Mr. McClure's engineering solutions and far you to draft a plat amendment to reflect those solutions. Should you have any questions or concerns, please do nofi hesitate to contact me. I remain , . , Very truly yours, OWENS DAVIES FRISTOE LOR & SCHULIZ, P Brent F. Dilie BFD/sa cc City of Yelm {p /~ ~~ .j1~,7~/'y~rfpl~tCt;/j?, (:~t ':-%~i '/ fC)J/~EY1 ~x~rGt}i'~C;i { F./~j~'c~j xii,(.~d gb b'Lb,...3 .{. (~.~..)L~: ~:~ ~~1-f l~ltld ~i ~~•Ldd Lit'? ~ 1.:,)> Grant Beck From: Brent Dille [bdille@owensdavies.com] Sent: Friday, October 30, 2009 3:19 PM To: Ben Cushman Cc: Tim Peterson; Grant Beck; Ron Harding; Ron Harding; Shelly Badger; Stephanie Ray Subject: Release Language Attachments: Release Language.pdf Ben, Attached please find the City accepted release language which would be required to be included in any amendment to the Palisades West Plat. We still need to address the liability of the Smith's successor. Please call ore-mail me with any questions or concerns. Best regards, Brent Dille, Esq. ~~~El~~ ~A~~L~E~ ~E~~L~~~~E ~'A~]L~]E~ ~ ~~C]H[l[J1]L~'7, ~o~o 1115 West Bay Dr. P.O. Box 187 Olympia, WA 98507 360-943-8320 360-943-6150 (Fax) CONFIDENTIAL INFORMATION: This email message and any attachments accompanying it may contain confidential information, including information protected by attorney-client privilege. The information is intended for use only by the intended recipient(s). Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message. If you are not the intended recipient, or if this message has been addressed to you in error, please do not read, disclose, reproduce, distribute, disseminate, or otherwise use this transmission. Please promptly notify the sender by reply email and destroy all copies of this message and any attachments. Thank you. IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that to the extent this communication contains advice relating to a Federal tax issue, it is not intended to be used, and it may not be used, for (1) the purpose of avoiding any penalties that maybe imposed on you or any other person or entity under the Internal Revenue Code or (2) promoting or marketing to another parry any transaction or matter addressed herein. Release by Smith's. The Smith's, for themselves, their heirs, successors, assigns, agents and representatives (both individually and in their representative capacities) hereby release and discharge the City of Yelm (the "City") its officials, directors, attorneys, employees, staff, insurers, heirs, successors, assigns, agents, and representatives (both individually and in their representative capacities), of all past, present or future claims, penalties, damages, obligations, demands, costs and causes of action of every kind or nature whatsoever, known or unknown, liquidated or unliquidated, matured or contingent, Choate or inchoate, whether based in statute, tort, contract or other theory of recovery, which may now exist or hereafter accrue by reason of any acts, omissions or transactions, occurring to the date of this Agreement or occurring hereafter and arising out of or relating to the approval of a plat amendment to Palisades West and the permitting of the Smith's residence located on Lot 15, therein. Indemnification. Smith's do hereby agree to indemnify and hold the City harmless from and against and agrees to defend the City against any and all losses, claims, damages, liabilities and obligations of any kind and description, including any attorney fees incurred by the City in investing, defending or settling such losses, damages, liabilities and obligations, arising out of the Palisades West Plat Amendment dated and matters directly related thereto including any future Department of Health requirements should additional water system improvements be required to provide adequate water pressure at the meter of Lot 15, approval of occupancy of the home without providing required fire flows, and any and all liability associated with sewer system improvements required due to damage to the sewer system from operation of a STEP tank on lot 15 without the required pressure sustaining valve, including claims against the City by the homeowners for odors or damage to the internal home plumbing The City agrees to give prompt notice to Smith once the City has actual knowledge of any claims as to which indemnity shall be sought, and shall permit Smiths (at their expense) to assume the defense of any such claim or any litigation resulting there from; provided that counsel for the Smiths, who shall conduct the defense of said claim or litigation (including appeals), shall be reasonably satisfactory to the City, and the City may participate in such defense at its own expense; provided, further, that the failure by the City to give notice as provided herein shall not relieve Smith of their obligations hereunder. The City, in the defense of any such claim or litigation, shall, except with the consent of Smith, consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term, the giving by the claimant or plaintiff to Smith of a release from all liability in respect to such claim or litigation. Insurance. Smith's Insurance Requirements. Smith shall maintain the following coverage in the following amounts: (1) Commercial General Liability Insurance covering the insured against claims of Bodily Injury', Personal InjuryZ and Property Damage, arising out of Smith's assumed liabilities or use of the their property, including the performance by Smith of the indemnity agreements (including liability for complying with any Department of Health requirements) as set forth in this Agreement, for limits of liability not less than: (i) Bodily Injury and Property Damage Liability $1,000,000.00 Each Occurrence and $2,000,000.00 Annual Aggregate3; and (ii) Personal Injury Liability $1,000,000.00 Each Occurrence and $2,000,000.00 Annual Aggregate. Liability policies obtained should be extended to include Contractual Liability4, Fire Legal Liability5 and Premises Medical Expenses6. (2) Property Damage Insurance covering any damage to the City's sewer system due to lack of a sewer pressure sustaining valve or claims by others for claims against the City by the homeowners, including bit not limited to, for odors or the cost of installing the booster pump station previously approved for the Palisades West subdivision in the event the station is required to be installed by the Department of Health or damage to the internal home plumbing or due to insufficient fire flow to the Palisades West plat, loss caused by fire. Such insurance shall be written on an all risks of physical loss or damage basis, for the full replacement cost value new without deduction for depreciation of the covered items. 'Injury to the body of a person. The term is usually specifically defined in liability and health insurance policies and there are variations in individual definitions. Injury to a person other than bodily injury. Liability for personal injury from such wrongs as defamation, false arrest, invasion of privacy and other intentional torts usually can be insured through an endorsement to a standard general liability policy. 3The maximum amount of coverage that an insurer will pay for all losses during a specific period of time, usually the contract period, no matter how many separate accidents may occur. 4Liability assumed by contract or agreement, and which would not otherwise exist. 5 Coverage for bodily injury and property damage as a result of fire to premises to you. 6 Coverage which responds regardless of fault and will pay reasonable expenses for the following: first aid; medical; surgical and dental services; ambulance, hospital, nursing and funeral services. (3) Form of Policies. The minimum limits of policies of insurance required of Smith under this Agreement shall in no event limit the liability of Smith under this Agreement. Such insurance shall (i) name the City of Yelm, and any other party so specified, as an additional insured; (ii) specifically covering the liability assumed by Smith under this Agreement; (iii) be issued by an insurance company licensed in Washington State and rated A + XII or better in "Bests" Insurance Guide, or such other companies as approved by the City in its sole discretion; (iv) be primary insurance as to all claims thereunder and provide that any insurance carried by the City is not excess and noncontributing with any insurance requirement of Smith; (v) provide that said insurance shall not be canceled or coverage changed unless thirty (30) days prior written notice shall have been given to the City; and (vi) contain a cross liability' endorsement or severability of interest clause acceptable to the City. Certificate of Insurance. A certificate of insurance coverage issued by the insurance carrier for each policy of insurance required to be maintained by the Smiths under this Agreement shall be delivered to the City upon or before the approval of the plat amendment and thereafter, with respect to policy renewals, within thirty (30) days prior to the expiration of the term of each such policy. Each of said certificates of insurance and each such policy of insurance required to be maintained by the Smith's hereunder shall expressly evidence insurance coverage as required by this Agreement. All such policies shall be written as primary policies not contributing with and not in excess of coverage which the City may carry. In the event any insurance premium remains delinquent for more than seven (7) days, the City may, upon ten (10) days written notice to the Smiths of such delinquency, elect to pay the insurance premium and the amount of any premium, plus interest at the rate of twelve percent (12%) per annum, and costs, including reasonable attorney's fees, shall, in accordance with RCW shall be a lien upon the Smith property. The said lien for payment of such insurance premiums and charges shall have priority over all other liens and encumbrances recorded or unrecorded. Suit to recover a money judgment for unpaid insurance premiums shall be maintainable without foreclosure or waiving the lien securing the same. 'Liability between two different insurers of a single liability insurance policy. A cross liability clause says that each insured will be treated as though the policy applied separately to each. Grant Beck From: Ben Cushman [bencushman@cushmanlaw.com] Sent: Thursday, October 29, 2009 2:24 PM To: Brent Dille Cc: Ron Harding; Grant Beck; Tim Peterson; Ron Harding; Shelly Badger; Doreen Milward Subject: RE: Palisades West Brent - This timeline might be unreasonably short. The reality is that we presented workable solutions months ago which the City staff has yet to acknowledge. We attempted to get this matter before the Council a month and half ago -and Staff resisted and delayed the presentation. When we finally got the matter before the Council, and the Council instructed staff to work with us, Staff still refused to do so. Now my clients have lost their house. They have to find alternative living arrangements, which may tie them down for a year. That gives us more time to work out occupancy, but it also means that my clients have incurred real costs and damages as a result of the Yelm Staff's dithering and delay, which my clients need to have covered. I am meeting with my clients this afternoon to discuss their options and plans for moving forward. Ben Cushman From: Brent Dille [mailto:bdille@owensdavies.com] Sent: Thursday, October 29, 2009 1:56 PM To: Ben Cushman Cc: mayor@ci.yelm.wa.us; Grant Beck; timp@ci.yelm.wa.us; ronh@ci.yelm.wa.us; Shelly Badger Subject: Palisades West Ben, Please be advised that Tim Peterson, director if public works, is awaiting your engineer's proposal on the storage tank in order to set-up a meeting with Parametrix, your engineer and the Department of Health. The city requests they receive a conceptual plan prior to this meeting in order to ensure it is a productive one. Consequently, the City needs to hear from your engineer by early tomorrow (Friday) in order to set up this meeting next week in order to ensure that this process remains on track for the November 10th Council meeting. Please let me know if you have any questions or concerns. Best regards, Brent Dille, Esq. ~~~El~~ ~A~~L~E~ ~E~~L~~~~E ~'A~]L~]E~ ~ ~~C]H[l[J1]L~'7, ~o~o 1115 West Bay Dr. P.O. Box 187 Olympia, WA 98507 360-943-8320 360-943-6150 (Fax) CONFIDENTIAL INFORMATION: This email message and any attachments accompanying it may contain confidential information, including information protected by attorney-client privilege. The information is intended for use only by the intended recipient(s). Delivery of this message to anyone other than the intended recipient(s) is not intended to waive any privilege or otherwise detract from the confidentiality of the message. If you are not the intended recipient, or if this message has been addressed to you in error, please do not read, disclose, reproduce, distribute, disseminate, or otherwise use this transmission. Please promptly notify the sender by reply email and destroy all copies of this message and any attachments. Thank you. IRS Circular 230 Disclaimer: To ensure compliance with requirements imposed by the IRS, we inform you that to the extent this communication contains advice relating to a Federal tax issue, it is not intended to be used, and it may not be used, for (1) the purpose of avoiding any penalties that maybe imposed on you or any other person or entity under the Internal Revenue Code or (2) promoting or marketing to another party any transaction or matter addressed herein.