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HomeMy WebLinkAboutCOW 2007-10-22 Item 4G - Resolution - Negotiate Agreement for Southcenter Parkway Extension with La Pianta LLC COUNCIL AGENDA SYNOPSIS o y Initials Il LM No. Q i P 1 �lleetinm Date J Prepared by 1 Mayor's review Council review cn:. y`. I 10/08/07 I SK I I 1 10/22/07 I SK I �L u'-- I 1 L.7. 1908 I I I 1 fl 1 1 1 1 ITEM INFORMATION CAS NUMBER: 07-120 I ORIGINAL AGENDA DATE: OCTOBER 8, 2007 AGENDA ITEM TITLE Authorization for the Mayor to negotiate a Road Only Agreement with La Pianta LLC. CATEGORY Discussion Motion E Resolution Ordinance Bid Award Public Hearing Other Mtg Date 10/8/07 Mtg Date Mtg Date 10/22/07 W g Date Mtg Date Mtg Date Mtg Date SPONSOR Council Mayor Adm Svcs DCD Finance Fire LJ Legal Pea Police PW SPONSOR'S This resolution authorizes the Mayor to negotiate an agreement with La Pianta, LLC for the SI:MAL- \RY extension of Southcenter Parkway. REVIlWED BY I I COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte n Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DAIS: RECOMMENDATIONS: SPONSOR /ADMLN. COI\M4ITTEE COST IMPACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Corrunents: 1 MTG. DATE I RECORD OF COUNCIL ACTION 10/08/07 Forward to 10/22/07 Committee of the Whole Meeting MTG. DATE I ATTACHMENTS 10/08/07 I Resolution in Final Form 10/22/07 Resolution in Final Form Letter from Shelley Kerslake dated 03/16/07 1 Development Agreement J: o !i 19,1 d, h; S 19 p8 City of Tukwila Washington Resolution No. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AUTHORIZING THE MAYOR TO NEGOTIATE AN AGREEMENT FOR CONSTRUCTION OF SOUTHCENTER PARKWAY WITH LA PIANTA, LLC. WHEREAS, the City of Tukwila and La Pianta, LLC ("La Pianta have been negotiating a development agreement for the construction of Southcenter Parkway and the development of the La Pianta property for approximately four years; and WHEREAS, both parties have put substantial effort into the negotiation process and have made good faith efforts to come to an agreement; and WHEREAS, the City of Tukwila has received over eighteen million dollars ($18,000,000.00) in grant money from both state and federal sources; and WHEREAS, on August 13, 2007, La Pianta informed the City Council that the parties were at an impasse; and WHEREAS, on August 27, 2007, the Mayor agreed that the negotiations had reached an impasse; and WHEREAS, on August 13, 2007, La Pianta requested that the City Council review the July 6, 2007 La Pianta proposed development agreement (the "La Pianta Agreement and place it on the City Council agenda for a vote on August 27, 2007; and WHEREAS, the Council President chose not to place the La Pianta Agreement on the agenda for consideration until such time as the City Administration considered an agreement to be in the best interests of the City; and WHEREAS, the City of Tukwila believes that the La Pianta Agreement is unacceptable and presents a significant, long -term financial risk to the City; and WHEREAS, on March 16, 2007, the City of Tukwila proposed to La Pianta that the parties enter into an agreement to extend Southcenter Parkway (hereinafter referred to as the "Road Only Agreement and WHEREAS, this "road only" proposal would allow Southcenter Parkway to be extended, thereby utilizing the grant funds in a timely manner and, at the same time, providing infrastructure to support the La Pianta development; and WHEREAS, on September 18, 2007, the City of Tukwila again extended an offer to enter into a Road Only Agreement and asked for a response to that proposal by September 28, 2007; and WHEREAS, La Pianta did not respond to that particular proposal; and WHEREAS, La Pianta has indicated that it needs to know whether the La Pianta Agreement will be accepted by the City or if the project is terminated; -1 Macintosh HD:Users:stacia:Desktop:NS Alternate R Road Onty.doc NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: Section 1. The City Council hereby authorizes the Mayor to attempt to negotiate a Road Only Agreement with La Pianta by November 13, 2007. Section 2. If an agreement has not been reached between the Mayor and La Pianta regarding the "road only" proposal and if the agreement has not been placed on the City Council agenda by the City's Administration by November 13, 2007, the Mayor is authorized to terminate all negotiations with La Pianta. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWIIA, WASHINGTON, at a regular meeting thereof on this day of 2007. Verna Griffin, Council President ATTEST /AUTHENTICATED: Jane Cantu, CMC, City Clerk APPROVED AS TO FORM: Office of the City Attorney Filed with the City Clerk: Passed by the City Council: Resolution No.: -2 Macintosh HD:Usecs:stacia:Deskiop:NS Alternate Resolutia1- Road On}/.doc KENYON DISEND, PLLC THE MUNICIPAL LAW FIRM MICHAEL R. KENYON 11 FRONT STREET SOUTH LACEY L. MADCHE BRUCE L. DISEND ISSAQUAH, WASHINGTON 98027 -3820 PETER B. BECKWITH SANDRA S. MEADOWCROFT WWW.KENYONDISEND.COM THOMAS J. GUILFOIL (425) 392 -7090 (206) 628 -9059 RENEE G. WALLS SHELLEY M. KERSLAKE FAX 392 -7071 CHRIS D. BACHA FAX 425) JOSEPH B. LEVAN KARI L. SAND HEIDI L. BROSIUS MONICA A. BUCK KERRI A. JORGENSEN March 16, 2007 KATHRYN J. HARDY Jenny Durkan Attorney at Law 411 University Street, Suite 1200 Seattle, WA 98101 -2519 Re: Tukwila South Development Project Dear Jenny: Attached please find the final proposal offered by the City of Tukwila for the development of the Tukwila South Property. Let me outline briefly what the City is offering in this agreement: The City has taken off the table voluntary mitigation payments for Police and Public Works capital needs related to your project. This saves your client $2,473,730.00. The City has committed to pay $740,000.00 annually for 20 years or in other words $15,000,000.00 to fund a 10 million dollar bond for the construction of the Southcenter Parkway extension. The City has agreed with your client that this project should be treated like all others with respect to RCW 82.02 impact fees; thus, the project will be assessed traffic impact fees' at the time of building permit issuance and will similarly be assessed fire and park impact fees, if adopted by the City, at the time of building permit issuance. All of these impact fees will be whatever fee is in effect at the time the building permit is issued. As you know, the City did not have a true traffic impact system at the time we began our discussions; that has since changed. Given the length of time between our earlier discussions in 2005 and now, as well as the incredible increases in construction costs, the City can not commit to the system we discussed. However, in light of the various contributions your client has committed to make, the City will agree to establish a trip t To vest your client to the 2005 traffic impact fees, as you propose, represents only 7% of today's traffic impact fees for this project and leaves the City with a multi million dollar shortfall for the road improvement projects necessitated by your client's development. The City can not agree to this. C:\ DOCUME- 1\kathyp \LOCALS- 11Temp\XPgrpwise'LTR to Durkan 3- 16- 07.doc/KIS/03/16/07 er-nllrili+ `ira er, T(`Tr111 riTTT:C CTTar 1 442 Jenny Durkan March 16, 2007 Page 2 bank for the first 5166 net new PM peak -hour trips. This will require no upfront payment as was previously agreed to by your client. In addition, the City will agree to reduce the traffic impact fees by 50% for the first 5166 trips, as calculated at the time of building permit issuance. This will require the City to pay $4,342,000.00, or more, to fund those projects. The second 5000 trips will be paid for at the rate of 100% of the then current impact fee when the building permits are issued. The City will vest your client to the current shoreline regulations with the exception of certain setbacks along the river. We had previously discussed allowing enough of an easement to accommodate a 2:1 slope or in some cases a 2:5:1 slope. This has been modified to discuss this concept in terms of feet needed for the easement. This should reduce the amount of debate regarding how much property is needed for a certain slope and also reduces the overall amount of property that will be required for the easement. Moreover, the City has included some positive alternatives for development within this setback area to accommodate your client's need for high- level, campus -style development. The City agrees to restore 178 Street Improvements to the CIP, if the City Council will repeal the resolution declaring it a private project. However, no other commitments related to 178 are included since the construction and funding of the project will be development driven and financed. These issues will be determined in the future once the City is able to evaluate the project's impact and economic significance to the City. The City has assumed the responsibility for all O &M costs related to this project, with no guarantee of project revenues from your client. This represents a $54,000,000.00 commitment from the City's general fund over the life of the agreement. This will be offset by new revenue generated by the project; however, the amount of that revenue is unknown until such time as development occurs. We had previously discussed vesting your client to the current surface water management regulations. The City is still willing to do this, with the exception of the requirements set forth in the federally mandated NPDES Phase II permit that was issued to the City last month. The City must comply with the conditions set forth in the permit; therefore appropriate language reflecting this new development has been added to the Stormwater Appendix. In addition to the above concessions made in this round of negotiations the City is making the following major contributions: One million dollar contribution to the design of Southcenter Parkway. C:\DOCUME- 1\kathyp \LOCALS- 1 \Temp\XPgrpwise\LTR to Durkan 3- 16- 07.doc/KIS /03/16/07 Jenny Durkan March 16, 2007 Page 3 A change of position regarding the requirement of a financial guarantee for project revenues to cover the city expenses related to this project. A willingness to proceed with this project despite the lack of a 404 Permit from the Army Corp of Engineers. A willingness to phase this project and build the Southcenter Parkway Extension without a guarantee of development. The City believes that this is the best package it can propose that is fair and equitable to both the pubic and private partner in this endeavor. Should your client not agree, the City is still willing to enter into an agreement to build the road and address these subsequent issues in an additional development agreement. Thus, attached you will find the City's last proposal regarding the road -only agreement. The City is committed to this project; however, the City must bring closure to these negotiations that started in 2004. Please let us know as soon as possible, which alternative best suits your client's interests. As you know, both proposed agreements are subject to City Council approval. I will unfortunately be tied up until next Thursday. So please contact Rhonda Berry with your response. Very truly yours, KENYON DISEND, PLLC Shelley M. Kerslake Enclosure cc: Mayor Mullet Rhonda Barry TVS Team City Council (w /o enclosures) C:\DOCIJME- 1\kathyp \LOCALS— I \Temp\XPgrpwise\LTR to Durkan 3- 16- 07.doc/KIS /03/16/07 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF TUKWILA AND LA PIANTA, LLC, FOR THE TUKWILA SOUTH DEVELOPMENT PHASE I I. PREAMBLE THIS DEVELOPMENT AGREEMENT is made and entered into this day of 2007, by and between the City of Tukwila, a noncharter, optional code Washington municipal corporation, hereinafter the "City," and La Pianta, a liability partnership, organized under the laws of the State of Washington, hereinafter the "Owner." II. RECITALS WHEREAS, the Washington State Legislature has authorized the execution of a development agreement between a local government and a person having ownership or control of real property within its jurisdiction (RCW 36.70B.170(1)); and WHEREAS, Owner owns or controls approximately 492.6 acres of real property known as the "Tukwila South Property". The general boundaries are S. 178 st. S. 180 Street on the north; S 204 on the south; Orillia Rd. and I -5 on the west; and the Green River on the east. The site is shown on the vicinity map attached hereto as Exhibit 1 and as legally described in Exhibit 2, attached hereto. Approximately 259 of the 498 acres will be annexed to the City on or before April 1, 2007. WHEREAS, The Tukwila South property is located within an Urban Growth Area and is appropriate for urban development pursuant to the Growth Management Act, and the City's adopted Comprehensive Plan. The City will provide public services to the Tukwila South property. WHEREAS, a development agreement must be approved by ordinance after a public hearing (RCW 36.70B.200); and WHEREAS, a public hearing for this Development Agreement was held on and the City council approved this Development Agreement by Ordinance on NOW THEREFORE, in consideration of the mutual promises set forth herein, and the long -term benefit to both the City of Tukwila and Owner, the parties hereby agree as follows: 1 C:\DOCUME -1\ CITY- A-- 1\LOCALS-- 1 \Temp\XPGrpwise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc III. AGREEMENT Section 1. The Project. The master planned development to be sited on the Tukwila South property in accordance with the terms and conditions of this Agreement is called the Tukwila South Project. To service this project it has been determined that the current Southcenter Parkway will need to be extended. This is call the road project for the purposes of this Agreement. Section 2. The Subject Property. The Tukwila South Project is legally described in Exhibit 2 attached hereto and incorporated herein by this reference. Section 3. Definitions. As used in this Development Agreement, the following terms, phrases and words shall have the meanings and be interpreted as set forth in this Section. a) "Adopting Ordinance" means the Ordinance which approves this Development Agreement, as required by RCW 36.70B.200. b) "Council" means the duly elected legislative body governing the City of Tukwila. c) "Director" means the City's Community Development Director or Director of Planning and Building. d) "Effective Date" means the effective date of the Adopting Ordinance. e) "Existing Land Use Regulations" means the ordinances adopted by the City Council of Tukwila in effect on the Effective Date, including the adopting ordinances that govern the permitted uses of land, the density and intensity of use, and the design, improvement, construction standards and specifications applicable to the development of the Subject Property, including, but not limited to the Comprehensive Plan, the City's Official Zoning Map and development standards, the Design Manual, the Public Works Standards, SEPA, Concurrency Ordinance, and all other ordinances, codes, rules and regulations of the City establishing subdivision standards, park regulations, building standards. Existing Land Use Regulation does not include non -land use regulations, which includes taxes and impact fees. g) "Landowner" or is the party who has acquired any portion of the Subject Property from the Owner who, unless otherwise released as provided in this Agreement, shall be subject to the applicable provisions of this Agreement. The "Owner" is identified in Section 5 of this Agreement. h) "Road Project" means the design and construction of the Expansion of Southcenter Parkway as specified in Exhibit 3. Section 4. Exhibits. Exhibits to this Agreement are as follows: 2 C:\DOCUME -1\ CITY -A -1 \LOCALS -1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc a) Exhibit 1 Vicinity Map of Tukwila South Project b) Exhibit 2 legal description of the Subject Property c) Exhibit 3 Road Project Project description d) Exhibit 4 Map of Road Project e) Exhibit 5 Cost Estimate for Road Project Section 5. Parties to Development Agreement. The parties to this Agreement are: a) The "City" is the City of Tukwila, 6200 Southcenter Blvd, Tukwila, WA. b) The "Owner" is a private enterprise which owns the Subject Property in fee, and whose principal office is located at Section 6. Tukwila South Proiect is a Private Undertaking. It is agreed between the parties that the Tukwila South Project is a private development and that the City has no interest therein except as authorized in the exercise of its governmental functions. Section 7. Effective Date and Term. This Agreement shall commence upon the effective date of the Adopting Ordinance approving this Agreement, and shall continue in force for a period of 5 years unless extended or terminated as provided herein. Following the expiration of the term or extension thereof, or if sooner terminated, this Agreement shall have no force and effect, subject however, to post termination obligations of the Owner. Section S. Basis of agreement This Agreement establishes certain roles and responsibilities for the phased development of the Tukwila South Project, including but not limited to City commitments for corresponding potential funding and construction of certain public infrastructure improvements benefiting the Tukwila South Project property as well as the community at large and Owner commitments to participate in the funding of certain public improvements, to fund all private aspects of the development and to develop the Tukwila South property consistent with applicable Land Use Policies and Regulations. It is understood that this development will occur in phases and this Agreement represents certain infrastructure construction. It is anticipated that as development occurs additional agreements may be entered into between the parties. 3 C: \DOCUME -4 \CITY- A- 1\LOCALS -1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc Section 9. Infrastructure Reauired to Support Development Infrastructure anticipated to be necessary to support development and the manner in which each will be funded and constructed are discussed in Sections 9.1 -9.3. See Ex and for a description of infrastructure components and corresponding anticipated costs. 9.1 Infrastructure improvements The parties agree that the extension of Southcenter Parkway will be necessary to support full development of the subject property. This extension will be constructed from S. 180 Street to S. 200 between the Tukwila City limits and Southcenter Parkway to provide for additional access to the Tukwila Urban Center and Tukwila South. The City is also constructing the necessary sewer, water, stormwater and other utility system improvements associated with this roadway improvement project as documented in the 90% drawings for Southcenter Parkway that have been completed by David Evans and Associates, except that the final road design will not include bicycle lanes as specified in the 90% drawings. 9.2 Infrastructure Funding A. City Funding Commitments. City agrees to design and construct the Southcenter Parkway Extension and certain other elements of public infrastructure specified below and described in Exhibit 3. The City further agrees that it will expend $14,227,750.00 in grant money received for this road project'. The City intends to utilize limited tax general obligation debt to finance 10 million dollars of the road project. It is understood that an additional 4 million dollars may be received in the form of State grant funds, 2 million in 2007 and 2 million in 2008. If this money is received, the City will apply these sums to the Southcenter Parkway Extension project. B. Owner Funding Commitments Owner agrees to contribute 4 million dollars toward the project. In addition, all land necessary for the road project including the associated stormwater detention ponds, as depicted in Ex 4 will be donated by the Owner to the City at the time of execution of this agreement. If the 4 million dollars, or any part thereof, in additional grant money expected from the State of Washington, as referenced above, is not received by the City, the owner agrees to contribute that additional amount, up to 4 million dollars, to the project. C. Joint Funding Commitments This agreement is premised on the assumption that the project costs will not exceed $31,077,000.00, as outlined in Exhibit 5. In the event the bids received by the City exceed The City has deducted $350,000.00 from the $14,577,750.00 in grant funds to help defray the 1.3 million dollars in design work necessary for the road project. Therefore, the remaining $14,227,750.00 will be applied to the construction of the road project. 4 C:\DOCUME --1 \CITY- A- 1\LOCAIS -1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc 31,077,000, the City is under no obligation to construct the project. In the event of bids in excess of the estimated amount„ the City will immediately notify Owner and Owner may choose, at its sole discretion to provide financing for the project amount that exceeds $31,077,000.00. Section 10 Temporary Closure of Southcenter Parkway The City agrees to close the existing Southcenter Parkway during the construction phase of the project, except for local traffic, and agrees that La Pianta can use the roadway for project purposes provided that La Pianta maintains the roadway during that period of time. Section 11. Further Discretionary Actions. Owner acknowledges that the Existing Land Use Regulations contemplate the exercise of further discretionary powers by the City. These powers include, but are not limited to, review of additional permit applications under SEPA. Nothing in this Agreement shall be construed to limit the authority or the obligation of the City to hold legally required public hearings, or to limit the discretion of the City and any of its officers or officials in complying with or applying Existing Land Use Regulations. Section 12. Annexation Upon execution of this agreement Owner agrees to submit a 60% petition for annexation to the City of Tukwila. Failure of Owner to annex the Tukwila South Property not currently within the City limits will terminate this agreement. Section 13. Additional Development Agreements Necessary The parties agree that other development agreements, in addition to and following this Agreement may be necessary to guide development over time. The parties agree to meet and confer as necessary to expedite the formation of those agreements. IV. GENERAL PROVISIONS Section 1. Assienment of Interests. Riehts. and Oblieations. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of La Pianta, and upon the City. No Party may assign its rights under this Agreement without the written consent of the other Party, which consent shall not unreasonably be withheld. Section 2. Incorporation of Recitals. The Recitals contained in this Agreement, and the Preamble paragraph preceding the Recitals, are hereby incorporated into this Agreement as if fully set forth herein. 5 C:\DOCUME -11 CITY- A- 1\LOCALS- 1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc Section 3. Severability. The provisions of this Agreement are separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of this Agreement, or the validity of its application to other persons or circumstances. Section 4. Termination. This Agreement shall expire and/or terminate as provided below: A. This Agreement shall expire and be of no further force and effect if the development contemplated in this Agreement is not substantially underway by September 2008. Nothing in this Agreement shall extend the expiration date of any permit or approval issued by the City for any development. A. B. This Agreement shall terminate upon the expiration of the term identified in Sectio or when the road project has been completed, which ever first occurs, and all of the Owner's obligations in connection therewith are satisfied as determined by the City. Upon termination of this Agreement, the City shall record a notice of such termination in a form satisfactory to the City Attorney that the Agreement has been terminated. C. This Agreement may also terminate pursuant to Section 3 Severability, Section 10 Default, or Section 12 Annexation. Section 5. Effect upon Termination on Owner Obligations. Termination of this Agreement as to the Owner of the Subject Property or any portion thereof shall not affect any of the Owner's obligations to comply with the City Comprehensive Plan and the terms and conditions or any applicable zoning code(s) or subdivision map or other land use entitlements approved with respect to the Subject Property. Section 6. Effects upon Termination on City. Upon any termination of this Agreement, prior to commencement of the Road Project, by the Owner the City shall promptly return grant funding to the granting entities. Section 7. Specific Performance. The parties 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 8. Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. Venue for any action shall lie in King County Superior Court. Section 9. Attorneys' Fees. In the event of any litigation or dispute resolution process between the Parties regarding an alleged breach of this Agreement, neither Party shall be entitled to any award of attorneys' fees. 6 CADOCUME --1\ CITY -A —I \LOCALS— I \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc Section 10. Notice of Default/Opportunity to Cure/Dispute Resolution. A. In the event a Party, acting in good faith, believes the other Party has violated the terms of this Agreement, the aggrieved Party shall give the alleged offending Party written notice of the alleged violation by sending a detailed written statement of the alleged breach. The alleged offending Party shall have thirty (30) days from receipt of written notice in which to cure the alleged breach. This notice requirement is intended to facilitate a resolution by the Parties of any dispute prior to the initiation of litigation. Upon providing notice of an alleged breach, the Parties agree to meet and agree upon a process for attempting to resolve any dispute arising out of this Agreement. A lawsuit to enforce the terms of this Agreement shall not be filed until the latter of (a) the end of the 30 day cure period or (b) the conclusion of any dispute resolution process. B. After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other party or Landowner to this Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition, the City may decide to file an action to enforce the City's Codes, and to obtain penalties and costs as provided in the Tukwila Municipal Code for violations of this Development Agreement and the Code. Section 11. No Third -Party Beneficiaries. This 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 signatory to this Agreement shall have any third -party beneficiary or other rights whatsoever under this Agreement. No other person or entity not a Party to this Agreement may enforce the terms and provisions of this Agreement. Section 12. Integration. This Agreement and its exhibits represent the entire agreement of the parties with respect to the subject matter hereof. There are not other agreements, oral or written, except as expressly set forth herein. Section 13. Authority. The Parties each represent and warrant that they have full power and actual authority to enter into this Agreement and to carry out all actions required of them by this Agreement. All persons are executing this Agreement in their representative capacities and represent and warrant that they have full power and authority to bind their respective organizations. Section 14. Covenants Running with the Land. The conditions and covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the land and the benefits and burdens shall bind and inure to the benefit of the parties. The Owner, Landowner and every purchaser, assignee or transferee of an interest in the Subject Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect to the Subject Property, or such portion thereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of an Owner contained in this 7 C:\DOCUME —l\ CITY -A--1 \LOCALS- 1 \TemplXPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc Agreement, as such duties and obligations pertain to the portion of the Subject Property sold, assigned or transferred to it. Section 15. Amendment to Agreement; Effect of Agreement on Future Actions. This Agreement may be amended by mutual consent of all of the parties, provided that any such amendment shall follow the process established by law for the adoption of a development agreement (see, RCW 36.70B.200). Section 16. Releases. Owner, and any subsequent Landowner, may free itself from further obligations relating to the sold, assigned, or transferred property, provided that the buyer, assignee or transferee expressly assumes the obligations under this Agreement as provided herein. Section 17. Notices. Notices, demands, correspondence to the City and Owner shall be sufficiently given if dispatched by pre -paid first -class mail to the addresses of the parties as designated in Section 5. Notice to the City shall be to the attention of both the City Administrator and the City Attorney. Notices to subsequent Landowners shall be required to be given by the City only for those Landowners who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence. Section 18. Police Power. Nothing in this Agreement shall be construed to diminish, restrict or limit the police powers of the City granted by the Washington State Constitution or by general law. Section 20. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a party to challenge this Agreement or any provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Owner and/or Landowner(s). In such event, Owner and/or such Landowners shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to, attorneys' fees and expenses of litigation, and damages awarded to the prevailing party or parties in such litigation. The Developer and/or Landowner shall not settle any lawsuit without the consent of the City. The City shall act in good faith and shall not unreasonably withhold consent to settle. Section 21. No Presumption Against Drafter. 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. Section 22. Headings. The headings in this Agreement are inserted for reference only and shall not be construed to expand, limit or otherwise modify the terms and conditions of this Agreement. 8 C:\DOCUME --1 \CITY -A -1 \LOCALS-- 1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc Section 23. Recording. Owner shall record an executed copy of this Agreement with the King County Auditor, pursuant to RCW 36.70B.190, no later than fourteen (14) days after the Effective Date. Section 24. Legal Representation. In entering into this Agreement, Owner represents that it has been advised to seek legal advice and counsel from its attorney concerning the legal consequences of this Agreement; that it has carefully read the foregoing Agreement and knows the contents thereof, and signs the same of its own free act; and that it fully understands and voluntarily accepts the terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Development Agreement to be executed as of the dates set forth below: OWNER/DEVELOPER: CITY OF TUKWILA By By Its Its Mayor ATTEST: By City Clerk APPROVED AS TO FORM: By City Attorney STATE OF WASHINGTON ss. COUNTY OF On this day of 2006, 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 his/her free and voluntary act and deed for the uses and purposes therein mentioned, and on oath stated that he /she is authorized to execute said instrument. Print name: 9 C:\DOCUME —I\ CITY -A--1 \LOCALS- 1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc NOTARY PUBLIC in and for the State of Washington Residing at Commission expires: 10 C:\DOCUME -1 \CITY -A -1 \LOCALS- 1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc STATE OF WASHINGTON ss. COUNTY OF On this day of 2006, before me personally appeared and said person acknowledged that he /she signed this instrument, on oath stated that he /she was authorized to execute the instrument, and acknowledged as the of the City of Tukwila to be the free and voluntary act of said party for the uses and purposes mentioned in this instrument. Print name: NOTARY PUBLIC in and for the State of Washington Residing at Commission expires: 11 C:\DOCUME —I\ CITY -A -1 \LOCALS--- 1 \Temp\XPGrpWise \TVS DEVELOPMENT AGREEMENT Feb. 28, 2007.doc