Loading...
HomeMy WebLinkAboutReg 2006-09-05 Item 4 - Public Hearing - Southcenter Square Development Agreement with Wig Properties mo 4.. l er COUNCIL AGENDA SYNOPSIS o/ i2'. Initial, IrE.irl\O. J41 V A 12 d I Meeting Date I Prepared by 1 .11ay or''rm I Cr:raa /ntiew 1 f\ Mt i 08/28 /05 Mcl3 I A. 1 LAO 1 09/05/06_ 1 I �h 1 .K 1 ma 1 1 1 1 1 cf.- 1 1 I 1 1 5, cte ITEM INFORMATION CAS NUMBER: 06-095 I ORIGL\ALAGENDA DATE: 28 AUGUST 2006 AGENDA ITEM TITLE Wig Properties, LIC-SS Development Agreement CATEGORY Di cession Motion R sohuion Ordinance Bid Award Public Hearing 9 Other Altg Dak 8/28/06 AUg Date \Us Date 09/05/06 Attg Date 31t2 Date A &g Dare 09/05/06 Mg Date !SPONSOR Council May»— Adm San.; DCD Finance Fire Le Pent Police P11 SPONSOR'S The development agreement is for the retail redevelopment of the J.C. Penneys warehouse SUMMARY site on Southcenter Parkway including the undeveloped rear 5 acres, which contains wetlands. The agreement stipulates the conditions of use of Tukwila Pond Park for off -site wetland mitigation, approves the development of future public infrastructure adjacent to the project site, and outlines a number of other terms for development between the City and the developer. REVIEWED BY 0 COW Mtg CA &P Cmte PAPS Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planting Comtn. DAZE: August 14, 2006 RECOMMENDATIONS: SPONSOR /ADMIN. Approve Resolution authorizing Mavor to sign Development Agreement COMMrYrEE Schedule public hearing for 9/5/06, followed by approval of Resolution COST IMPACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Continents: MTG. DATE I RECORD OF COUNCIL ACTION 8/28/06 Forward to next Regular Meeting for Public Hearing and consideration of Resolution MTG: DATE ATTACHMENTS 8/28/06 Information Memo and attachment from Public Works Director dated 8/18/06 Draft Developer's Agreement Draft Resolution authorizing Mayor to sign Development Agreement Transportation Committee Minutes from 8/14/06 1 9/05/06 Final Resolution with attached Development Agreement /Exhibits 1 i oJ�S y2 5 cam`\ _PS 4\ %0? 1508 City of Tukwila Was hington Resolution No. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, AUTHORIZING ENTRY INTO A DEVELOPMENT AGREEMENT WITH WIG PROPERTIES LLC -SS FOR THE DEVELOPMENT OF SOUTHCENTER SQUARE. WHEREAS, the City of Tukwila and Wig Properties LLC-SS have proposed to enter into a development agreement under RCW 36.708 for the development of Southcenter Square; and WHEREAS, the City of Tukwila has agreed to allow Wig Properties LLC -SS to create and enhance wetlands in Tukwila Pond Park as compensatory mitigation for filling wetlands on their project's property; and WHEREAS, the Tukwila City Council reviewed the agreement at the Committee of the Whole meeting an August 28,2006; and WHEREAS, a public hearing was held on September 5, 2006 regarding the development agreement and the Tukwila City Council authorized the Mayor to enter into the development agreement and WHEREAS, RCW 36.708.200 requires a development agreement to be adopted by resolution; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA WASHINGTON, HEREBY RESOLVES AS FOLLOW The City Council hereby authorizes the Mayor to enter into a development agreement with Wig Properties, LLC -5S, a copy of which is attached hereto as 'Exhibit A" and by this reference fully incorporated herein, for the development of Southcenter Square at 17200 Southcenter Parkway PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2006. Al 1F-ST/ AUTHENTICATED: Dennis Robertson, Council President Jane E. Cantu, CMC, City Clerk APPROVED AS TO FORM BY: Filed with the City Clerl-• Passed by the City Council Office of the City Attorney Resolution Numhtar Attachments: Exhibit A, Development Agreement G'�w,....., end c-tf,n fl Usc;r ffitp'_cllyMSDATA!4cz`u_cxswRSG Ptcxt a.ltt Nato 8!31/1006 Page 1 of 1 EXHIBIT A DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF TUKWILA AND WIG PROPERTIES LLC -SS, FOR THE SOUTHCENTER SQUARE DEVELOPMENT I. PREAMBLE THIS DEVELOPMENT AGREEMENT is made and entered into this day of September, 2006, by and between the City of Tukwila, a noncharter, optional code Washington municipal corporation, hereinafter the "City," and Wig Properties, LLC -SS, a limited liability company, organized under the laws of the State of Washington, hereinafter the "Developer." 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, a development agreement must set forth the development standards and other provisions that shall apply to, govern and vest the development, use and mitigation of' the development of the real property for the duration specified in the agreement (RCW 36.70B.170(1)); and WHEREAS, for the purposes of this development agreement, "development standards" includes, but is not limited to, all of the standards listed in RCW 36.70B.170 (3); and WHEREAS, a development agreement must be consistent with the applicable development regulations adopted by a local government planning under chapter 36.70A RCW (RCW 36.70B.170 (1)); and WHEREAS, this Development Agreement by and between the City of Tukwila and the Developer (hereinafter the "Agreement relates to the development known as Southcenter Square, which is located at: 17200 Southcenter Parkway (hereinafter the "Subject Property"); and WHEREAS, the Subject Property will contain multiple buildings and tenants, this agreement is only between the Developer and the City; and WHEREAS, the Developer has a tight schedule and permitting and construction will commence on a sequential basis rather than after all the necessary permits are approved due to the national timelines of the anchor tenant and weather related construction timelines; Wig Properties LLC, SS Development Agreement WHEREAS, the City and the Developer agree that each has entered into this Agreement knowingly and voluntarily and agree to be bound by the terms and conditions of this Agreement; and WHEREAS, the Developer provided $33,383.03 towards a traffic concurrency test to be performed by Mirai Transportation Planning and Engineering; WHEREAS, the Subject Property has type III wetlands that total 1 16 acres that the Developer proposes filling and the City agrees that allowing off -site mitigation and enhancement at Tukwila Pond Park per a City approved mitigation plan will be beneficial; and WHEREAS, the City adopted Resolution 1565 authorizing the Mayor to negotiate an agreement with the Developer for use of Tukwila Pond, which is City owned property; and WHEREAS, a development agreement must be approved by ordinance or resolution after a public hearing (RCW 36.70B.200); and WHEREAS, a public hearing for this Development Agreement was held on September 5, 2006, and the City Council approved this Development Agreement by Resolution on September 5, 2006; NOW THEREFORE, in consideration of the mutual promises set forth here, the parties hereto agree as follows: III. AGREEMENT Section 1. The Project. The Project is the development and use of the Subject Property which historically has been referred to as the J C. Penney warehouse site and consists of 18.77 acres in the City of Tukwila. The Project, as described in SEPA file number E04 -019 and in the Board of Architectural Review file number L04 -069, is approximately 230,200 square feet of retail and commercial service uses; accessory uses such as circulation, parking and landscaping; and improvements adjacent to the Subject Property such as utilities, street improvements and off -site wetland mitigation, which are described separately Section 2. The Subject Property The Subject Property for the Project was originally a warehouse and truck terminal service bay for J C. Penney and includes an adjacent undeveloped area. The Subject Property is legally described on Exhibit 2 and shown and shown on Exhibit 1, attached hereto and incorporated herein by this reference. Page 2 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement Section 3. Phasing. The Developer will be responsible for the construction of all the improvements to the Subject Property, such as the parking lots, landscaping, utilities, vehicular and pedestrian circulation, ingress and egress. The Developer will be responsible for constructing the off-site and adjacent public improvements identified in III. Agreement, Section 8. Terms. These improvements shall be completed or substantially complete prior to approval on a final inspection for any building on the Subject Property unless the City approves of and receives a financial guarantee for the outstanding work. Section 4. Exhibits. Exhibits to this Agreement are as follows: Exhibit 1. Subject Property showing right of way dedications Exhibit 2. Subject Property legal description Exhibit 3. Minkler Boulevard typical cross section Exhibit 4. Southcenter Parkway typical cross section Exhibit 5 North and East half street typical cross section Exhibit 6. Off -site Wetland Mitigation site plan. Section 5. Parties to Develonment Agreement. The parties to this Agreement are: A. The "City" is the City of Tukwila, 6200 Southcenter Blvd., Tukwila, WA 98188. B. The "Developer" or Owner is a private enterprise which owns the Subject Property in fee, and whose principal office is located at Wig Properties, LLC -SS 4811 134 Place SE, Bellevue, WA 98006. C. The "Landowner" is a party who acquires all or a portion of the Subject Property from the Developer who, unless othenvise released as provided in this Agreement, shall be subject to the applicable provisions of this Agreement as it relates to the Subject Property or Tukwila Pond Park. Section 6. Protect is a Private Undertaking It is agreed among the parties that the 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, The effective date of this Agreement shall be date of execution by both parties, and shall continue in force for a period of ten years unless extended or terminated as provided herein. Following the expiration of the term as outlined under IV General Provisions, Section 4, or extension thereof, or if sooner terminated, this Page 3 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement Agreement shall have no force and effect, subject however, to post termination obligations of the Developer or Landowner. Section 8. Terms. A. Transportation a) Transportation Concurrencv The City agrees to reimburse to the Developer the difference between the actual cost of the concurrency test, which is based upon the time spent on the analysis and the Developer's contribution of $33,383.03 The City further agrees that a letter of concurrency will be issued by September 1, 2006. b) Transportation Impact Fee The City is authorized to assess and collect transportation impact fees according to rates established in the Concurrency Standards and Transportation Impact Fees Section of the Vehicles and Traffic Chapter(9 48.010 TMC) of the Tukwila Municipal Code, (hereinafter the "TMC.") The fee will be calculated according to the 2006 Impact Fee Schedule (9 48.030 TMC) and is based upon the location of the Project in Zone 1 and its land use category as a Shopping Center that measures 200,000 299,999 square feet. The gross leasable floor area of the Project at the time of building application will be used to calculate the total impact fee, which will then be apportioned to each separate building permit. In accordance with the Transportation Impact Fee Chapter (9 48.050 TMC,) a credit shall be applied toward the Transportation Impact Fee for the fair market value of land dedicated for and new construction of any system improvements that are identified in the City's Capital Improvement Program (CIP Minkler Boulevard lane widening is project number 84 -RWO7 in the CIP and is required as a condition of the Project. The City agrees to apply a credit to the transportation impact fee, not to exceed the impact fee, for the full market value, as determined in a certified appraisal, for the right of way dedicated and for the new construction of any system improvements to Minkler Boulevard. c) Minkler Boulevard Dedication. The Developer agrees to dedicate four feet of right of way along the full length of the southern property line between Southcenter Parkway on the western end to the eastern edge of the Subject Property in order to widen Minkler Boulevard. Exhibit 1 shows the right of way dedication. d) Minkler Boulevard Frontage Improvement. The Developer will improve Minkler Boulevard by widening the street to 36 feet (curb face to curb face) to create three 12 foot lanes, by installing a four foot planting strip and an eight foot sidewalk and by Page 4 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement relocating the street illimination, hydrants and other above ground utilities (with the possible exception of the signal pole and signal control cabinet) so that they are not located within the eight foot sidewalk. Exhibit 3 generally illustrates the improvements. e) Southcenter Parkway Frontage Improvement. The Developer will improve Southcenter Parkway by installing a 4 foot planting strip and an eight foot sidewalk and by relocating the street illumination, hydrants and other above ground utilities so that they are not located within the eight foot sidewalk. Exhibit 4 generally illustrates the improvements. f) New Half Street Dedication and Improvement. In order to comply with Comprehensive PIan policy 10.3.2, which discusses supporting the development of a continuous and comprehensive street network that allows a range of travel route choices, etc., the Developer agrees to dedicate 24.5 feet for right of way and to install "half- street" improvements along the subject property's north and east perimeter. The half street improvements shall be constructed per the City of Tukwila Infrastructure and Design Standards and shall consist of channelization, striping, utilities, travel lanes, curb, gutter, landscaping, sewer, water, street illumination, and sidewalk; and as generally illustrated on Exhibit 5. g) Traffic Signal at the new north half street and Southcenter Parkway The Developer shall be responsible for the design and installation of the signal. Plans for the signal must be approved by the City h) No Protest LID Agreement. Prior to issuance of the first building permit, the Developer shall execute separate no protest LID agreements for the following future projects: 1) 61 Ave South Bridget Widening 2) Tukwila Urban Access/Klickitat Improvement Project The Developer shall receive a credit against its assessment for the Tukwila Urban Access/Klickitat Improvement project LID for that portion of the Transportation Impact fee paid that is attributable to the Tukwila Urban Access/Klickitat Improvement Project. City agrees to estimate the percent of the Traffic Impact Fee that is attributable to the Tukwila Urban Access/Klickitat Improvement Project. Each agreement to not protest the formation of a future Local Improvement District shall include the right of the Developer and the Owner to protest the methodology and or specific amount of any LID assessment. Page 5 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement i) Developer's Reimbursement Aereement. The Developer will apply to the Public Works Director to establish an assessment reimbursement area per the Developer Reimbursement Agreement Chapter of the TMC (11 16 TIvIC) before construction of public improvements begins. The City will follow its standards and guidelines in administering the reimbursement. At the minimum, the City agrees to enter into a Developer's Reimbursement Agreement with the Developer for the recovery of a pro rata share of the costs for the construction of the new East Street, the new North Street, land for the western portion of the north of the North Street, and for the new signal at the northwest corner of the Subject Property B. Utilities a) Storm Water The Developer will increase the size of the Subject Property's on -site detention to account for the new north and east half streets. The Developer will install water quality treatment facilities in the new public street right of way for the new north and east half streets. The existing storm drain lines on the north and east of the property appear to serve the property to the north. In order to avoid having a private drain line in public right -of- way, the Developer will repair the existing storm drain lines to the City's satisfaction before the City accepts tumover of the storm water lines. The City will allow use of these existing storm water lines on the north and east for the new street drainage if the condition, location, depth and material are acceptable to the City for such use. b) Sanitary Sewer The existing sanitary sewer line on the east appears to serve the property to the north. In order to avoid having a private sewer line in public right -of- way, the Developer will repair or replace the existing sewer line to the City's satisfaction before the City accepts turnover of the sewer lines and if the Developer negotiates its release from its property owner. c) Water Meter Fees The City agrees to waive the Permanent and Water Only meter installation water fee for each new meter in exchange for the new 12 inch main in the new North and East streets. The Cascade Water Alliance Fee shall be paid for each new service connection by the Developer C. Acceptance of Public Improvements The City agrees to assume ownership and maintenance responsibilities following City Council approval of turnover of the public improvements, including the two new half streets and associated utilities, the new signal, and improvements in Minkler Boulevard and Southcenter Parkway, except as stated in the Right of Way Use Chapter (11.12.130 TMC.) Page 6 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement D. Use of Tukwila Pond Park a) Scope of Work. The Developer is hereby granted permission to use Tukwila Pond Park for of site wetland mitigation as outlined in the City approved Mitigation Plan (Armour, August 2006,) (hereinafter the "Plan. The Developer will create .88 acres and enhance 2.6 acres of wetland in the southeast quadrant of Tukwila Pond Park in accordance with the Plan. (Exhibit 6) This mitigation is in compliance with City Tukwila Municipal Code (TMC) Sensitive Area Chapter (18.45 TMC) and compensates for filling wetlands on the Subject Property b) Wetland Mitigation Timing. The Developer will construct the work at Tukwila Pond Park as provided in the Plan including ten years of monitoring and maintenance to ensure compliance with the performance standards established in the Plan. All costs and required permits to perform the work on Tukwila Pond shall be the responsibility of the Developer. Mitigation work must begin in the first dry season after receipt of required permits. A final inspection for the first building permit at the Subject Property will not be approved until at the minimum a financial guarantee for 150% of the value of the work has been submitted to ensure completion and or maintenance of the mitigation site. c) Consideration for Park Property Use. The Developer shall pay the City a one time fee of $86,000 in exchange for the use of Tukwila Pond Park for wetland mitigation on the property This dollar amount is based upon a sales comparison of wetland properties from an appraisal by Stickland, Heischman and Hoss, Inc. dated September 2005 and must be paid prior to issuance of any building or public works permit (except for the demolition permit) for the Subject Property d) Liability Insurance while working in Tukwila Pond Park. The Developer will carry public liability and property damage insurance with carriers satisfactory to the City in the following amounts: i. 50,000 property damage ii. 500,000 public liability (each person) iii. $1,000,000 public liability (each occurrence) The Developer will provide the City with endorsements naming the City as an additional insured and with certificates of insurance prior to start of construction and with 30 days notice prior to cancellation. e) Performance Bond. The Developer will furnish to the City, prior to start of construction, a performance bond in an amount of 150% of the contract in a form acceptable to the City Page 7 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement f) Protection of Work. Pronerty and Persons. The Developer will adequately protect the work, adjacent property and the public and shall be responsible for any damage or injury due to his act or neglect. The Developer will permit and facilitate observation of the work by the City and its agents and public authorities at all times. g) Indemnification. The Developer shall indemnify, defend and hold harmless the City its officers, agents and employees, from and against any and all claims, losses or liability, including attorney's fees, arising from injury or death to persons or dame to property occasioned by an act, omission or failure of the Developer its officers, agents and employees, in performing the work required by this Agreement. With respect to the performance of this Agreement and as to claims against the City its officers, agents and employees, the Developer expressly waives its immunity under Title 51 of the Revised code of Washington, the Industrial Insurance Act, for injuries to its employees and agrees that the obligation to indemnify, defend and hold harmless provided for in this paragraph extends to any claim brought by or on behalf of any employee of or contractor for the Developer. This waiver is mutually negotiated by the parties. This paragraph shall not apply to any damage resulting from the sole negligence of the City, its agents and employees. To the extent any of the damages referenced by this paragraph were caused by or resulted from the concurrent negligence of the City its agents or employees, this obligation to indemnify, defend and hold harmless is valid and enforceable only to the extent of the negligence of the Developer, its officers, agents and employees. E. Permitting The City will issue a permit for demolition, clearing, grading, preloading and utility work prior to the Board of Architectural Review public hearing and decision. This approval will allow the Developer to begin preliminary site work as well as fill 1 16 acres of type 3 and unregulated wetlands on the Subject Property The Developer assumes the risk of proceeding prior to final site plan approvals. G. Recycling Program The Developer shall designate recycling space that meets or exceeds City standards and work with the City to maintain an effective recycling program including recycling of plastic film apparel bags, paper cardboard bottles and cans. Recyclable collection points and haul routes shall be designed to minimize impacts to pedestrian and vehicle routes. Section 9. Vested Rights. During the term of this Agreement, unless terminated in accordance with the terms herein, the Developer is assured, and the City agrees to the following: Page 8 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement A. Vesting of the Project will occur when the City determines that the Developer has submitted a complete building permit application in accordance with the Vesting section of the Buildings and Construction Chapter (16.60.080 TMC.) B. The provisions of the TMC excluding building and fire codes of TMC Chapter 16, in effect on the vesting date, shall apply to the Project, except as otherwise provided for in this Agreement or by State or Federally mandated laws preempting the City's authority to vest regulations for the Project. C. In addition, pursuant to RCW 36.70B.170 (4) (Development Agreements Authorized) the City reserves authority to impose new or different officially adopted regulations of general applicability; but only if, and to the extent required by a serious threat to public health and safety as determined by the City Council and only after notice and an opportunity to be heard has been provided to the Developer. The Project shall not be subject to any development moratoria the City may adopt subsequent to the effective date of this Agreement unless necessitated by a serous threat to the public health safety and welfare. D In the development of the Project on the Subject Property, the development rights, obligations, terms and conditions specified in this Agreement, are fully vested in the Developer and may not be changed or modified by the City, except as may be expressly permitted by, and in accordance with, the terms and conditions of this Agreement, including the Exhibits hereto, or as expressly consented thereto by the Developer. Section 11. Minor Modifications. A. Modifications to the Aereement. The Mayor of Tukwila is hereby authorized to approve minor modifications that are necessarily and generally consistent with this Agreement. B. Modifications to the Proiect. The City Public Works and Community Development Directors are authorized to approve minor modifications that are necessary and generally consistent this Agreement. Such minor revisions shall not require an amendment to this Agreement and shall include: any revisions within the scope and intent of the original Project approvals; any revisions within the scope of the environmental documents; or any revisions that meet the provisions or processes of the TMC. Section 12. Further Discretionary Actions. Developer 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 Page 9 of 15 08/18/2006 Wig Properties LLC SS Development Agreement of the City and any of its officers or officials in complying with or applying Existing Land Use Regulations. Section 13. Existing Land Use Fees and Impact Fees. Fees adopted by the City by ordinance as of the Effective Date of this Agreement may be increased by the City from time to time and are applicable to permits and approvals for the Subject Property, as long as sueh fees apply to similar applications and projects in the City IV. GENERAL PROVISIONS Section 1. Assignment of Interests. Rights. and Obligations. This Agreement shall be binding and inure to the benefit of the Parties. No Party may assign its rights under this Agreement without the written consent of the other Party, which consent shall not unreasonably be withheld. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors, and assigns of Wig Properties, LLC and the City 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. Section 3. Severahilitv. 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 Developer does not construct the Project as identified in this Agreement, and does not submit a complete building permit application, per TMC 16, for development of the Subject Property that is consistent with approvals within three years from the effective date of this Agreement. B. This Agreement shall expire and be of no further force and effect if the development contemplated in this Agreement, and all of the permits and/or approvals issued by the City for such development, are not substantially underway prior to expiration of such permits and/or approvals. Nothing in this Agreement shall extend the expiration date of any permit or approval issued by the City for any development. Page 10 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement C. This Agreement shall terminate upon the expiration of the term identified in III Agreement, Section 7 or when the Subject Property has been fully developed, which ever first occurs, and all of the Developer'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. D. This Agreement shall terminate upon the abandonment of the Project by the Developer. The Developer shall be deemed to have abandoned the Project if/when application for development permits for the construction of the retail buildings or requests for revisions are not received in the allotted time frame. E. This Agreement may terminate pursuant to IV General Provisions, Section 3 Severability or Section 10 Default. Section 5. Effect noon Termination on Developer Obligations. Termination of this Agreement as to the Developer of the Subject Property or any portion thereof shall not affect any of the Developer'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, any other conditions of any other development specified in the Agreement to continue after the termination of this Agreement or obligations to pay assessments, liens, fees or taxes. Section 6. Effects upon Termination on City. Upon any termination of this Agreement as to the Developer of the Subject Property, or any portion thereof, the entitlements, conditions of development, limitations on fees and all other terms and conditions of this Agreement shall no longer be vested hereby with respect to the property affected by such termination (provided that vesting of such entitlements, conditions or fees may then be established for such property pursuant to then existing planning and zoning laws). Section 7. Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance of all material terms of this Agreement by any party in default hereof. Section 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 or the U.S. District Court for Westem Washington. 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. Page 11 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement Section 10. Notice of Default/Onnortunity to Cure/Disnute 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 Partv 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 organisations. Section 14. Terms Running with the Land. The terms 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 Developer, 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 Page 12 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement 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 a Developer contained in this Agreement, as such duties and obligations pertain to the portion of the Subject Property sold, assigned or transferred to it. Section 15. Releases. Developer, 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 16. Notices. Notices, demands, correspondence to the City and Developer shall be sufficiently given if dispatched by pre -paid first-class mail to the addresses of the parties as designated in III Agreement, 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 17. 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 18. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a party or a Landowner to challenge this Agreement or any provision herein alleging the negligence or wrongdoing of Developer, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer and/or Landowner(s). In such event and to such extent, Developer 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 19. No Presumntion 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 20. 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. Page 13 of 15 08/18/2006 Wig Properties LLC, SS Development Agreement Section 21. Recording. Developer shall record an executed copy of this Agreement with the King County Auditor, pursuant to RCN 36.70B.190, no later than fourteen (14) days after the Effective Date. Section 22. Legal Representation. In entering into this Agreement, Developer represents that it has been advised to seek legal advice and counsel from its attorney conceming the legal consequences of this Agreement; that it has carefully read the foregoing A 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. Page 14 of 15 08/18/2006 Wig Properties LLC, SS D evelopment Agreement Print name: NOTARY PUBLIC in and for the State of Washington Residing at Commission expires: 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: Q\HOMEMOJRA'. aeys\808osdeva .DOC Page 15 of 15 08/18/2006 J y� 3 o a III m GI tt to to 0 r- TA kk b.' $y k N f ƒ 2 ©fi tee ƒt CC n w das- 0 g C i& a 6 EXHIBIT 2 SUBJECT PROPERTY LEGAL DESCRIPTION DEVELOPER'S PARCEL AND KOHL'S PARCEL THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER AND OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTTT -ON 26, TOWNSHIP 23 NORTH, RANGE 4 EAST, W i4 DESCRIBED AS FOLLOWS COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 26; THENCE NORTH 88 °05'42" WEST ALONG THE NORTH LINE OF SAID SOUTHEAST QUARTER, A DISTANCE OF 2678.68 FEET TO THE EAST LINE OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER; THENCE SOUTH 01 °12'25" WEST ALONG SAID EAST LINE 657 29 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "A THENCE CONTINUING SOUTH 01 °12'25" WEST 24 50 TO THE POINT OF BEGINNING; THENCE NORTH 88 °00'36" WEST 70 13 FEET; THENCE SOUTH 85 °29'26" WEST 72 16 FEET; THENCE SOUTH 86 °59'24" WEST 135 75 FEET; THENCE NORTH 88 °00'36" WEST 152 79 FEET; THENCE SOUTH 81 °59'24" WEST 174 39 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 34 50 FEET, AND A CENTRAL ANGLE OF 49 °36'53 THENCE SOUTHWESTERLY ALONG SAID CURVE AN_ARC LENGTH OF 29 87 FEET TO THE EAST RIGHT -OF -WAY MARGIN OF SOUTHCENTER PARKWAY; THENCE SOUTH 01 08'35" WEST ALONG SAID EAST RIGHT -OF -WAY MARGIN 534 72 FEET; THENCE SOUTH 87 55'27" EAST 1267.66 FEET; THENCE NORTH 01 49'10" EAST 603 37 FEET; THENCE NORTH 88 00'36" WEST 648 40 FEET TO THE POINT OF BEGINNING; TOGETHER WITH THAT PORTION OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 26; COMMENCING AT AFOREMENTIONED POINT "A THENCE NORTH 88 00'36" WEST 413 26 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 81 °59'24" WEST 180 41 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 34 50 FEET AND A CENTRAL ANGLE OF 67 °55'15 THENCE NORTHWESTERLY ALONG SAID CURVE AN ARC LENGTH OF 40 90 FEET TO THE EAST RIGHT -OF -WAY MARGIN OF SOUTHCENTER PARKWAY; THENCE NORTH 01 08'35" EAST ALONG SAID EAST RIGHT -OF -WAY MARGIN 15 86 FEET; 746E err 5 THENCE SOUTH 88 °00'36" EAST 213 12 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 756,907 FEET, OR 17 3762 ACRES MORE OR LESS SITUATE IN THE CITY OF TU WILA, KING COUNTY, WASHINGTON A ti §'AS 'WIG PROPERTIES .1W-4: NEW RETAIL SITE l_ v JOHA,NN G WASSERMANN, P L S ry F�`� BRH JOB NO 95254 08 i r i JULY 13, 2006 =,.tee BUSH, ROED HITCHINGS, P L 2009 MINOR AVENUE EAST 7fi� ,6 SEATTLE, WA 98102 (206) 323 -4144 P4CI t e f 5 LEGAL DESCRIPTION DEVELOPER'S PARCEL THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER AND OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 26, TOWNSHIP 23 NORTH, RANGE 4 EAST, W M DESCRIBED AS FOLLOWS COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 26; THENCE NORTH 88 °05'42" WEST ALONG THE NORTH LINE OF SAID SOUTHEAST QUARTER, A DISTANCE OF 2678 68 FEET TO THE EAST LINE OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER; THENCE SOUTH 01 12'25" WEST ALONG SAID EAST LINE 657 29 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT "A THENCE CONTINUING SOUTH 01 °12'25" WEST 24 50; THENCE NORTH 88 00'36" WEST 70.13 FEET; THENCE SOUTH 85 29'26" WEST 20 13 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 85 °20 WEST 52 03 FEET; THENCE SOUTH 86 °59'24" WEST 135 75 FEET; THENCE NORTH 88 00'36" WEST 152 79 FEET; THENCE SOUTH 81 °59'24" WEST 174.39 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 34.50 -FEET, AND A CENTRAL ANGLE OF 49 36'53 THENCE SOUTHWESTERLY ALONG SAID CURVE AN ARC LENGTH OF 29 87 FEET TO THE EAST RIGHT -OF -WAY MARGIN OF SOUTHCENTER PARKWAY; THENCE SOUTH 01 08'35" WEST ALONG SAID EAST RIGHT -OF -WAY MARGIN 534.72 FEET; THENCE SOUTH 87 55'27" EAST 1267 66 FEET; THENCE NORTH 01 49'10" EAST 259 20 FEET; THENCE NORTH 88 WEST 382 55 FEET; THENCE SOUTH 01 59'24" WEST 13 83 FEET; THENCE NORTH 88 °00'3 WEST 357 00 FEET; THENCE NORTH 01 °59'24" EAST 355.72 FEET TO THE POINT OF BEGINNING; TOGETHER WITH THAT PORTION OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 26; COMMENCING AT AFOREM✓NTIONED POINT "A THENCE NORTH 88 °00'36" WEST 413 26 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 81 °59'24" WEST 180 41 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 34 50 FEET AND A CENTRAL ANGLE OF 67 °55'15 THENCE NORTHWESTERLY ALONG SAID CURVE AN ARC LENGTH OF 40 90 FEET TO THE EAST RIGHT -OF -WAY MARGIN OF SOUTHCENTER PARKWAY; MS 3 et 5 THENCE NORTH 01 °08'35" EAST ALONG SAID EAST RIGHT -OF -WAY iii =RGIN 15.86 FEET; THENCE SOUTH 88 °00'36" EAST 213 12 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 497,638 FEET, OR 11.4242 ACRES MORE OR LESS SITUATE IN THE CITY OF TUKWILA, KING COUNTY, WASHINGTON WASS WIG PROPERTIES VAS. NEVI RETAIL SITE 0 0 JOHANN G WASSERMANN, P L S BRH JOB NO. 95254 08 JULY 13, 2006 /v sai� a BUSH, ROED HITCHINGS, INC P 957 12 -za0 2009 MINOR AVENUE EAST 77/3 SEATTLE, WA 98102 (�j (206) 323 -4144 Pas 4 ee5 LEGAL DESCRIPTION KOHL'S PARCEL THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER AND OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 26, TOWNSHIP 23 NORTH, RANGE 4 EAST, W M DESCRIBED AS FOLLOWS COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 26; THENCE NORTH 88 °05'42" WEST ALONG THE NORTH LINE OF SAID SOUTHEAST QUARTER, A DISTANCE OF 2678 68 FEET TO THE EAST LINE OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER; THENCE SOUTH 01 12'25" WEST ALONG SAID EAST LINE 657.29 FEET; THENCE CONTINUING SOUTH 01 °12'25" WEST 24.50 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 88 °00'36" EAST 648.40 FEET; THENCE SOUTH °49'10" WEST 344 17 FEET; THENCE NORTH 88 00'36" WEST 382 55 FEET; THENCE SOUTH 01 59'24" WEST 13 83 FEET; THENCE NORTH 88 °00'36" WEST 357 00 FEET; THENCE NORTH 01 °59'24" EAST 355.72 FEET; THENCE NORTH 85 29'26" EAST 20 13 FEET; THENCE SOUTH 88 °00'36" EAST 70.13 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 259,269 SQUARE FEET, OR 5 ACRES, MORE OR LESS. SITUATE IN THE CITY OF TUKWILA, KING COUNTY, WASHINGTON WA 8, WIG PROPERTIES 'i'° NEW RETAIL SITE Cr ft/ G. WASSERMANN, P L.S Z Am- BRH JOB NO. 95254 08 a,.- JULY 13, 2006 LUWD BUSH, ROED HITCHINGS, INC 2009 MINOR AVENUE EAST rer SEATTLE, WA 98102 1 6 e0 (206) 323 -4144 r t t\ \t t Y 1 t t k 4 t t l F} i i t \i 4 t t i t \i t 0 t` t i t t `t i j l t 0 1 V 0 i t Vs U VI Z 6 z N 1 41 I o i Cad 0 k 0 Cest Q rjt t i V 0 eta tti 1 N. V lc, if p, p t1 O s. U \---17\------------°- i i, 14 11 e z 4 1 1 4 o w o i 30 is Z N F}_ 1 1 1 0 Y1 Y W 71' m� 1 it I zUF to f j 1 1 t I i V W 0 11 1 U U r 11 tr ..i 11 y 4 1 Y Q 11 H S 3: 11 1 11 1 a it' %EI 11 i W M 11 1 uu to Z l 1 1 611 ti i t 1 Y 0I 1 z °u' 1 F 11 uss Q to 1111 t1 5 o- 11 1 t 1 11 1 11 1 11 1 1 1 11 1 t 1 5 11 1 1 It 1 0 t t t I u t e of V\ tAl 5 �s CC 1 Z. at V p t LoP -01 t VA 1 5 i, V' In A S tt v U 1 C r O t �dt lAa 4 ZQ. 4 t a r O .a 'm `t Z. cA x t o tis �v t w t t ,a 5 t t t e 5 44 l y O- S Z Isom ved .anopuy i c i o m 1 "a 2 2 a CO N =o R La to 4 J c (6 O 0 cp 'a c C �g d I d v m m c6 U I— N (n co 0 w