HomeMy WebLinkAboutCOW 2010-09-13 Item 4D - Agreement - Easement Interest Payment to Lily Pointe for Tukwila 205 Levee Repair for $75,000CAS NUMBER: 10-101
CA 1 EGORY Discussion Motion Resolution Ordinance
Al tg Date 09/13/10 Mtg Date 09/20/10 Mtg Date Mtg Date
SPONSOR'S
SUMMARY
MTG. DATE
09/13/10
09/20/10
MTG. DATE
09/13/10
09/20/10
COUNCIL AGENDA SYNOPSIS
IVleetzng Date
09/13/10
09/20/10
,.dared by
'PA9BG
BG I
1
Inztzals
Mayyr= eveezv
7
ITEM INFORMATION
I ORIGINAL AGENDA DALE: SEPTEMBER 13, 2010
AGENDA ITEM TITLE Tukwila 205 Levee Repair Lily Pointe Easement Interest Payment
per the Real Estate Purchase and Sale Agreement
II
ouncal revzew
//d
1 SPONSOR Council Mayor Adm Svcs DCD Finance n Fire Legal 1 P&R Police ®PIF
The US Army Corps of Engineers completed repairs to the Tukwila 205 Levee in 2008. The
repairs at Site 3 required additional easements from two property owners, Wells Fargo and
Lily Pointe, LLC. The easements will be reimbursed by King County Flood Control District
through the attached Purchase Sale agreement, but King County did not commit to the
interest payment. Lily Pointe's possession and use agreement called for a 12% interest
and the City has been able to renegotiate that interest to 9% or not to exceed $75,000.00.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm.
DATE: 08/24/10
RECOMMENDATIONS:
SPONSOR /ADMIN. Public Works
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$Not to exceed $75,000.00 $0.00 $0.00
Fund Source
Comments:
RECORD OF COUNCIL ACTION
ITEM No.
Bid Award Public Hearing Other
Mtg Date Mtg Date Mtg Date
U Planning Comm.
ATTACHMENTS
Informational Memorandum dated 09/8/10 (revised after UC)
Real Estate Purchase and Sale Agreement Easement
Amendment to Possession and Use Agreement with 9% interest (reference only)
Lily Pointe Possession and Use Agreement (reference only)
Minutes from the Utilities Committee meeting of 08/24/10
1 r1
162
City of Tukwila
INFORMATIONAL MEMORANDUM
TO. Mayor Haggerton
FROM: Public Works Director-
DATE. September 8, 2010
SUBJECT. Tukwila 205 Levee Repair Lily Pointe, LLC (Amended after UC)
Project No. 08 -DRO2
Purchase and Sale Agreement Easement Interest Payment Approval
Jim Haggerton, Mayor
ISSUE
Approve Real Estate Purchase and Sale agreement easement interest payment to Lily Pointe, LLC for
the Tukwila 205 Levee Repair project.
BACKGROUND
The US Army Corps of Engineers completed repairs to the Tukwila 205 Levee in 2008 These repairs
required additional easement widths to allow for laying the levee slopes back to provide a more stable
river bank. The City of Tukwila is responsible (under an agreement with the US Army Corps of
Engineers) to provide all easements necessary for the construction and maintenance of the levee. City
staff worked with the two affected property owners to secure Possession and Use Agreements that
allowed the repair project to move forward quickly and avoid losing federal repair funding The
agreement with Lily Pointe, LLC, called for the City to reimburse the property owner for the value of the
easement plus 12% interest per year from the date of possession until payment. The King County Flood
Control District (District) has committed to reimbursing the City for the actual cost of the easement but
did not commit to the interest payment. Since completion of the Possession and Use Agreement, it has
taken over two years to finish the site survey, appraisal, easement funding approval through the District,
and final easement negotiations through the Corps, District, Lily Pointe, and the City
ANALYSIS
An appraisal has been completed and Lily Pointe has accepted the appraised value of $343,000 The
District is working with a closing agent to complete the transaction and record the easement. Staff
contacted Lily Pointe and explained that the City is required to pay the interest portion of the easement
cost and with the financial hardship the City is currently facing, asked if they would be willing to reduce
the 12% interest rate. After careful consideration, Lily Pointe agreed to reduce the interest rate to 9%
provided we can close the transaction by November 15, 2010 Using this reduced rate, the City will need
to provide approximately $75,000.00 in interest with the final cost determined with the closing date
Staff has reviewed options for funding the interest payment and it is recommended that the 412 Surface
Water fund be used and then reimbursed using the City's share of the Districts Annual Opportunity Fund
over then next several grant cycles. Funding is anticipated at $44,000.00 each year and may be used for
any flood related project. These Opportunity funds are currently programmed in the Annual Small
Drainage Program.
RECOMMENDATION
The Council is being asked to approve the real estate purchase and sale agreement and funding for the
interest portion of this easement acquisition in an amount not to exceed $75,000 00 and consider this
item at the September 13, 2010 Committee of the Whole meeting and subsequent September 20, 2010
Regular Meeting.
Attachments: Real Estate Purchase and Sale Agreement
Lily Pointe Amendment to Possession and Use Agreement Revised
Lily Pointe Possession and Use Agreement
W:\PW Eng \PROJECTSW- DR Projects \08 -DRO2 (205 Levee Repair) \Design Phase \Site 3 \Lily Pointe Final Easement\Info Memo Easement Interest Payment 9- 9- 10.doc
163
164
KING COUNTY FLOOD HAZARD REDUCTION PROGRAM
TUKWILA 205 PROJECT
LILY POINTE PARCEL
REAL ESTATE PURCHASE AND SALE AGREEMENT
EASEMENT
This Agreement is made as of the date this instrument is fully executed by and among LILY
POINTE INVESTMENTS, LLC, a Washington limited liability company "Seller THE CITY
OF TUKWILA, a municipal corporation of the State of Washington "City and KING
COUNTY FLOOD CONTROL ZONE DISTRICT, a quasi municipal corporation of the State of
Washington "District (sometimes the City and the District are collectively referred to herein as
"Buyer for purchase and sale of certain easements situated in King County, Washington,
described on Attachment "A and all rights appurtenant thereto (the "Easement
RECITALS:
1. The City and the Green River Flood Control Zone District "GRFCZD a predecessor
of the District, entered into an Interlocal Cooperation Agreement "ILA to provide for
maintenance of the United States Army Corps of Engineers Lower Green River Section
205 Flood Protection Project "Tukwila 205 Project Said ILA was ratified by the
Board of Supervisors of the GRFCZD under Resolution No. GR1994 -1, on February 7,
1994 and by the City on February 7, 1994. As successor in interest to the GRFCZD, the
District has certain operation and maintenance responsibilities under the terms of the ILA
for the Tukwila 205 Project.
2. Seller, through that certain Possession and Use Agreement Revised between Seller
and the City dated October 14, 2008, as amended by that certain Amendment to
Possession and Use Agreement Revised dated September 2010 (together, the
"PUA agreed to provide certain easements to the City and the District. A form of the
proposed easement was attached to the PUA as Attachment 1.
3. The City in conjunction with the District agreed to pay the appraised value of the
easement rights being granted.
4. The City contracted with Andrew T. Robinson, MAI, to appraise the Easement, has
reviewed the appraisal and agrees with the conclusions of the appraiser. The District
concurs with the City as to this determination of value.
5. Pursuant to the PUA, the City has agreed to pay (and Seller has agreed to accept)
interest on the value of the Easement at a rate of 9% per annum from May 19, 2008
until closing, so long as closing occurs no later than October 15, 2010.
18775202_1.DOC
67893- 0003 /LEGAL 19087945 1
Page 1 of 21 September 2, 2010
NOW THEREFORE, the Seller, City and District agree as follows:
1. PURCHASE PRICE: The total purchase price for the Easement is Three Hundred
Forty Three Thousand and No /100 Dollars (US $343,000.00) "Purchase Price The
Purchase Price is payable by the District at closing in cash. In addition, the City shall deposit the
sum of Seventy Two Thousand Nine Hundred Seventy Two and No /100 Dollars (US
$72,972.00), representing interest from May 19, 2008 until closing at the rate of 9% per annum.
The parties acknowledge that the foregoing amount represents interest due under the PUA
assuming that closing occurs on September 30, 2010. If the transaction contemplated herein
does not close on September 30, 2010, the parties agree that the amount of interest shall be
adjusted (either upward or downward) to account for the actual date of closing. Moreover, if the
transaction does not close on or before October 15, 2010, the parties acknowledge that the
interest rate will revert back to 12% per annum as originally contemplated in the PUA and, in
this event, the parties shall revise the interest rate currently stated in Attachment "A" hereto.
2. TITLE:
2.1 Conveyance of Easement: At closing, Seller will execute and deliver to Buyer the
Easement conveying and warranting good and marketable title to the Easement free and clear of
all defects or encumbrances except those defects and/or encumbrances (if any) identified on
Attachment "B" (collectively, "Permitted Exceptions
2.2 Title Insurance: At closing, Buyer shall receive (at Buyer's expense) a policy of title
insurance for the Easement, dated as of the closing date and insuring Buyer in the amount of the
Purchase Price against loss or damage by reason of defect in Buyer's title to the Easement subject
only to the printed exclusions appearing in the policy form and any Permitted Exceptions.
3. CONTINGENCIES:
3.1 The sale of the Easement is contingent on receipt of grant funding and /or
appropriation by the Board of Supervisors of the King County Flood Control Zone District of
funds sufficient to close the sale.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS:
4.1 Seller: Seller represents, warrants and covenants to the Buyer at the date of execution of
this Agreement and the date of closing that:
4.1.1 Authority: Seller, and the person signing on behalf of Seller, has full power and
authority to execute this Agreement and perform Seller's obligations, and if Seller is a
corporation, all necessary corporate action to authorize this transaction has been taken;
18775202_1.DOC
67893- 0003 /LEGAL 19087945 1
Page 2 of 21 September 2, 20I0
165
166
4.1.2 No Leases: The Easement area is not subject to any leases, tenancies or rights of persons
in possession, except those matters described on Attachment `B" hereto and that certain
Amended and Restated Lease Agreement between Seller and Carlyle, Inc., a Washington
corporation, dated December 14. 2007;
4.1.3 Fees and Commissions: Seller shall pay for any broker's or other commissions or fees
incurred by the Seller in connection with the sale of the Easement and Seller shall indemnify and
hold Buyer harmless from all such claims for commission and/or fees; and
4.1.4 Indemnification: Seller agrees to indemnify, defend, and hold harmless Buyer, its
employees, agents, heirs and assigns, from and against any and all damage, claim, liability, or
loss, including reasonable attorney's and other fees, arising out of or in any way connected to the
breach of any representation or warranty contained in this Section 4.1.
4.2 Buyer: Buyer represents, warrants and covenants to the Seller at the date of execution of
this Agreement and the date of closing that:
4.2.1 Authority: Buyer, and all persons signing on behalf of Buyer, have full power and
authority to execute this Agreement and perform Buyer's obligations, and Buyer has taken all
necessary municipal and other action to authorize this transaction;
4.2.2 Fees and Commissions: District shall pay for any broker's or other commissions or fees
incurred by the Buyer in connection with the sale of the Easement and Buyer shall indemnify
and hold Seller harmless from all such claims for commission and/or fees; and
4.2.3 Indemnification: Buyer agrees to indemnify, defend, and hold harmless Seller, its
employees, agents, heirs and assigns, from and against any and all damage, claim, liability, or
loss, including reasonable attorney's and other fees, arising out of or in any way connected to the
breach of any representation or warranty contained in this Section 4.2.
5. CLOSING:
5.1 Time for Closing: This sale will be closed in the office of the Closing Agent not later
than twenty one (21) days from the date of execution of this Agreement.
Buyer and Seller shall deposit in escrow with Closing Agent all instruments, documents, and
moneys necessary to complete the sale in accordance with this Agreement. As used in this
Agreement, "closing" or "date of closing" means the date on which all appropriate documents are
18775202_1.DOC
67893- 0003 /LEGAL 19087945 1
Page 3 of 21 September 2, 2010
recorded and proceeds of the sale are available for disbursement to Seller. The Closing Agent
shall be:
TO SELLER:
Lily Pointe Investments, LLC
4128 West Ames Lake Drive
Redmond, WA 98053
Pacific Northwest Title Company
215 Columbia Street
Seattle, WA 98104
5.2 Prorations; Closing Costs: Seller will pay real property taxes prorated through the date
of closing. Buyer will pay the premium for its title insurance policy, the cost of recording the
Easement from the Seller, and the Closing Agent's escrow fees. The parties acknowledge that
WAC 458 -61A- 206(3) provides an applicable exemption to the payment of real estate excise tax.
Buyer agrees to provide to Closing Agent before closing all documents necessary for the
conveyance of the Easement to qualify for such exemption.
6. NOTICES: Any notices required herein shall be given to the parties at the addresses
listed below:
TO BUYER:
King County Flood Control District
c/o King County Water and Land Resources
Division
Open Space Acquisitions
201 South Jackson Street, Suite 600
Seattle, WA 98104
7. GENERAL: Other than the PUA, this is the entire agreement of the Buyer and Seller
with respect to the Easement and supersedes all prior or contemporaneous agreements between
them, written or oral. This Agreement may be modified only in writing, signed by Buyer and
Seller. Any waivers under this Agreement must be in writing. A waiver of any right or remedy
in the event of a default will not constitute a waiver of such right or remedy in the event of any
subsequent default. This Agreement is for the benefit of and binding upon, Buyer and Seller
and their heirs, personal representatives, successors and assigns. The invalidity or
unenforceability of any provision of this Agreement will not affect the validity or enforceability
of any other provision. Time is of the essence in this Agreement.
8. SURVIVAL OF WARRANTIES: The teens, covenants, representations and
warranties shall not merge in the conveyance, but shall survive closing.
18775202_1.DOC Page 4 of 21 September 2, 2010
67893- 0003 /LEGA L 1 9087945 1
167
168
Signed in duplicate original.
BUYER: King County Flood Control Zone District, a quasi municipal corporation
of the State of Washington.
BY:
Christie True Director
Department of Natural Resources and Parks
Date:
City of Tukwila, a municipal corporation of the State of Washington
BY:
Date:
SELLER: Lily Pointe Investments, LLC, a Washington limited liability company
BY:
Title:
18775202_1.DOC
67893 -0003 /LEGAL 19087945 1
Page 5 of 21 September 2, 2010
Date:
STATE OF WASHINGTON
)SS.
COUNTY OF KING
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that he is authorized to execute the instrument and acknowledged
it as the of King County, acting
on behalf of the King County Flood Control Zone District pursuant to Resolution FCZD2008-
01.2 of said District to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
18775202_1.DOC
67893- 0003 /LEGAL 19087945 1
Printed name
Notary Public in and for the
State of Washington
Residing at
My appointment expires
Page 6 of 21 September 2, 2010
169
170
STATE OF WASHINGTON,
}SS.
County of King
I hereby certify that I know or have satisfactory evidence that
is /are the person(s) who appeared
before me, and said person(s) acknowledged that he signed this instrument, on oath stated
that he is /are authorized to execute the instrument and acknowledged it as the
of the City of Tukwila to be the free and voluntary act of such party for the
uses and purposes mentioned in this instrument.
Dated:
18775202_1.DOC
67893 0003 /LEGAL 19087945 1
Printed signature
Notary Public in and for the State of Washington,
residing at
My appointment expires
Page 7 of 21 September 2, 2010
STATE OF WASHINGTON,
}SS.
County of King
I hereby certify that 1 know or have satisfactory evidence that is/are
the person(s) who appeared before me, and said person(s) acknowledged that he/she/they
signed this instrument, on oath stated that he/she/they is/are authorized to execute the
instrument and acknowledged it as the of Lily Pointe
Investments, LLC to be the free and voluntary act of such party for the uses and purposes
mentioned in this instrument.
Dated:
18775202_1.DOC
67893-0003/LEGAL19087945.1
Printed name
Notary Public in and for the State of
Washington, residing at
My appointment expires
ATTACHMENTS: Attachment A, Easement
Attachment B, Permitted Exception/Title Report
Page 8 of 21 September 2, 2010
171
172
KING COUNTY FLOOD HAZARD REDUCTION PROGRAM
TUKWILA 205 PROJECT
LILY POINTE PARCEL
ATTACHMENT A
Recording Requested By and Reference City Ordinance No. 2200
When Recorded Mail To:
The City of Tukwila
Office of the City Clerk
6200 Southcenter Blvd
Tukwila, Washington 98188
Grantor:
Grantee(s):
EASEMENT
Lily Pointe Investments, LLC, a Washington Limited Liability Company
The City of Tukwila, a municipal corporation of the State of Washington, and
The King County Flood Control Zone District, a quasi municipal corporation
of the State of Washington
Legal Description (abbreviated): Ptn. NW1 /4, 36 -23 -04
Additional legal description on page 7, hereinafter called Exhibit A.
Assessor's Tax Parcel: 362304 9087 -04
Project: Tukwila -205 Site 3 Levee Repair
THIS AGREEMENT made this day of 2010, by and between Lily
Pointe Investments, LLC, a Washington Limited Liability Company, hereinafter called the
Grantor, and The City of Tukwila, a municipal corporation of the State of Washington, and
The King County Flood Control Zone District, a quasi municipal corporation of the State of
Washington, hereinafter collectively called the "Grantees
Grantor, for and in consideration of the sum of three hundred forty three thousand dollars
($343,000.00) (plus interest at a rate of 9% per annum from May 19, 2008), the receipt and
adequacy of which is hereby acknowledged, hereby grants and conveys to the Grantee(s),
their successors and assigns, agents and licensees certain easements as described below (the
18775202_1.DOC Page 9 of 21 September 2, 2010
67893 0003 /LEGA L 1 9087945 1
"Easements for the purposes set forth herein, under, over and upon those limited
portions of the Property described in Exhibit A, which Easements are more particularly
described in Exhibits B, C, and D attached hereto, and by this reference made a part
hereof, situated in King County, Washington:
1. Flood Protection Levee Easement. A perpetual and assignable right and easement in,
on, over and across the land described in Exhibit B to construct, maintain, repair, operate,
patrol and replace a flood protection levee, including all appurtenances thereto; reserving,
however, to the Grantor, its heirs, successors and assigns, all such rights and privileges as may
be used without interfering with or abridging the rights and easement hereby acquired;
subject, however, to those defects and/or encumbrances (if any) identified on Exhibit E. On the
flood protection levee in this easement, Grantor shall not install, construct, alter, or remove
any structures or improvements, or plant, trim, or remove any vegetation, without prior
approval of Grantee(s).
2. Perpetual Road Easement. A perpetual and assignable easement and right -of -way in,
on, over, and across the land described in Exhibit C for the location, construction, operation,
maintenance, alteration and replacement of a levee access road and appurtenances thereto;
together with the right to trim, cut, fell, and remove therefrom all trees, underbrush,
obstructions and other vegetation, structures, or obstacles within the limits of the levee access
road right -of -way; reserving however, to the Grantor, its heirs, successors and assigns, the
rights to cross over or under the easement and right -of -way for access to their adjoining land;
subject however, to existing easements for public roads and highways, public utilities,
railroads, pipelines, and those defects and/or encumbrances (if any) identified on Exhibit E.
A map showing the location of said easement areas (the "Easement Areas is attached as
Exhibit D.
Except on the flood protection levee itself, Grantor shall have the right to place locked bollards
across access to the Flood Protection Levee Easement and Road Access Easement (collectively
the "Easements so long as the Grantee(s) are provided a key or combination to access the
Easements. Grantee(s) shall give reasonable notice to the Grantor prior to any use of the
Easement Areas for the use, operation or hauling of heavy equipment, including, but not limited
to, dump trucks, excavators and bulldozers.
Nothing in this grant shall be deemed to be a grant of access to the general public or for
recreational uses. The scope of this grant is expressly limited to the Grantee(s), their employees
and contractors, for the limited purposes described in this Agreement.
If in the use of the Easements granted above, the Grantee(s) shall damage other property of
the Grantor or shall cause damage to the Easement Areas as a result of activity that is not
18775202_1.DOC
67893 0003 /LEGAL 1 9087945 1
Page 10 of 21 September 2, 2010
173
174
permitted by this Agreement, each Grantee shall repair, replace and restore, at the Grantee's
sole expense, said damage.
Each Grantee shall maintain and keep in full force and effect a policy of general liability
insurance in an amount not less than One Million Dollars per occurrence, and provide Grantor
with a certificate of insurance or self insurance and will name Grantor, its successors and assigns
as Additional Insureds in the event one or both of the Grantee(s) should choose not to self insure.
Each Grantee may self insure its obligations hereunder. Other than in the event of Grantor's
gross negligence, each Grantee shall indemnify and hold Grantor, its successors and assigns
harmless from all claims, damages or causes of action, including attorneys' fees and court costs,
arising from that Grantee's use of the Easements.
The rights, conditions, covenants and provisions contained in this Agreement shall inure to
the benefit of and be binding on the parties hereto and their respective heirs, administrators,
executors, successors and assigns and shall run with the land.
18775202_1.DOC
67893 0003 /LEGAL 19087945 1
Page 11 of 21 September 2, 2010
WITNESSETH, the said Grantor has hereunto signed their naives the day and year first above
written.
GRANTOR: Lily Pointe Investments, LLC, a Washington Limited Liability Company
BY
GRANTEE: The City of Tukwila, a municipal corporation of the State of Washington.
BY
Name:
Title:
Name:
Title:
GRANTEE: King County Flood Control Zone District, a quasi municipal corporation
BY:
18775202_1.DOC
67893- 0003 /LEGAL l 9087945 1
Acting pursuant to Resolution No. FCZD2008 -01.2 of said Grantee
Name:
Title:
Page 12 of 21 September 2, 2010
175
176
STATE OF WASHINGTON
ss.
COUNTY OF KING
On this day of 2010, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally appeared
to me known to be the person who
signed as of Lily Pointe Investments, LLC, a Washington Limited
Liability Company that executed the within and foregoing instrument, and acknowledged said
instrument to be the free and voluntary act and deed of said Limited Liability Company for
the uses and purposes therein mentioned, and on oath stated that he /she was duly elected,
qualified and acting as said officer of the Limited Liability Company, and that he /she was
authorized to execute said instrument on behalf of said Limited Liability Company.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first
above written.
18775202_1.DOC
67893- 0003 /LEGA L 1 9087945 1
Print Name:
Notary Public in and for the State of Washington,
residing at
My commission expires:
Page 13 of 21 September 2, 2010
STATE OF WASHINGTON
COUNTY OF KING
On this day of 2010, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally appeared
to me known to be the person who
signed as of the City of Tukwila, a municipal
corporation of the State of Washington, that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that was
duly elected, qualified and acting as said officer of the corporation, that was
authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of
said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first
above written.
18775202 1.DOC
67893- 0003 /LEGAL 1 9087945 1
ss.
Print Name:
Notary Public in and for the State of Washington,
residing at
My commission expires:
Page 14 of 21 September 2, 2010
177
178
STATE OF WASHINGTON
ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and said person acknowledged that he signed this
instrument, on oath stated that he is authorized to execute the instrument and acknowledged
it as the of King County, acting
on behalf of the King County Flood Control Zone District pursuant to Resolution FCZD2008-
01.2 of said District to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
18775202_1.DOC
67893 0003 /LEGAL 19087945.1
Printed name
Notary Public in and for the
State of Washington
Residing at
My appointment expires
Page 15 of 21 September 2, 2010
EXHIBIT A
UNDERLYING PROPERTY PARCEL(S)
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, described as follows:
Beginning at the northwest corner of said Section 36;
Thence south 01 °19'01" west along the west line of said Section 36, a distance of
1,355.89 feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east,
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
01 °32'04" to the south line of the north 36 feet of Government Lot 4 in said Section 36;
Thence south 88 °46'19" east along said south line a distance of 372.81 feet;
Thence south 01°13'41" west a distance of 305.00 feet;
Thence north 88 °46'19 west a distance of 50.00 feet to the TRUE POINT OF
BEGINNING;
Thence south 88 °46'41" east along a line 100 feet south of and parallel to the south line
of that parcel of land leased to Sperry Rand Corporation as surveyed and monumented
on the ground in 1968, and recorded under King County Recording Number 6356645, a
distance of 420.58 feet, more or less, to the top of the left bank of the Green River;
Thence along said top of the left bank of the Green River the following courses and
distances:
south 07 °00' east a distance of 115 feet;
south 01°06' west a distance of 104 feet;
south 09 °12' west a distance of 106 feet;
south 26 °49' west a distance of 102 feet;
south 47 °21' west a distance of 103 feet;
south 60°15' west a distance of 40 feet;
south 74 °35' west a distance of 60 feet;
Thence west a distance of 106 feet;
north 67 °30' west a distance of 107 feet;
north 26 °19' west a distance of 104 feet;
north 20 °22' west a distance of 103 feet;
north 21°54' west a distance of 105 feet;
north 32 °38' west a distance of 116 feet;
north 44 °04' west a distance of 34 feet, more or less, to a point from which the TRUE
POINT OF BEGINNING bears north 69 °38'41" east;
Thence leaving said top of left bank north 69 °38'41" east a distance of 225 feet more or
less, to the TRUE POINT OF BEGINNING.
18775202_1.DOC
67893 0003 /LEGAL 19087945.1
Page 16 of 21 September 2, 2010
179
180
EXHIBIT B
FLOOD PROTECTION LEVEE EASEMENT
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, lying landward of the ordinary high water mark of the left bank of the
Green River and riverward of a line described as follows:
Beginning at the northwest comer of said Section 36;
Thence south 01 °19'01" west along the west line of said Section 36, a distance of
1,355.89 feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east,
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
01 °32'04" to the south line of the north 36 feet of Government Lot 4 in said Section 36;
Thence south 88 °46'19" east along said south line a distance of 372.81 feet;
Thence south 01°13'41" west a distance of 305.00 feet;
Thence north 88 °46'19 west a distance of 50.00 feet to the hereinafter referred to as point
Thence south 88 °46'41" east along a line 100 feet south of and parallel to the south line
of that parcel of land leased to Sperry Rand Corporation as surveyed and monumented
on the ground in 1968, and recorded under King County Recording Number 6356645, a
distance of 369.60 feet to the TRUE POINT OF BEGINNING OF SAID DESCRIBED
LINE, thence the following courses and distances:
south 01°52'11" east a distance of 35.17 feet;
south 01 °5F04" east a distance of 122.78 feet;
south 01 °44'32" west a distance of 104.47 feet;
south 12 °1F25" west a distance of 36.04 feet;
south 20 °48'04" west a distance of 51.57 feet;
south 33 °48'38" west a distance of 62.76 feet;
south 53 °39'34" west a distance of 37.11 feet;
south 63 °03'02" west a distance of 79.27 feet;
south 80 °57'48" west a distance of 35.11 feet;
south 67 °52'45" west a distance of 61.80 feet;
north 83 °48'22" west a distance of 111.43 feet more or less, to the terminus of said line
herein described, at a point which is located south 70 °57'20" west 216.98 feet, and
south 27 °23'15" east 461.50 feet from point "A" referenced herein.
18775202_1.DOC
67893 0003 /LEGA L 190 8 7945 1
Page 17 of 21 September 2, 2010
Levee Access:
EXHIBIT C
PERMANENT ACCESS ROAD EASEMENT
LEGAL DESCRIPTION
That portion of Section 36, Township 23 North, Range 4 East, W.M., in King County,
Washington, described as follows:
Beginning at the northwest corner of said Section 36;
Thence south 01 °19'01" west along the west line of said Section 36, a distance of
1,355.89 feet;
Thence easterly along a curve to the left, the center of which bears north 02 °45'45" east
having a radius of 336.00 feet, an arc distance of 9.00 feet, through a central angle of
01 °32'04" to the south line of the north 36 feet of Government Lot 4 of said Section 36;
Thence south 88 °46'19" east along said south line a distance of 274.87 feet;
Thence along a curve to the right, the center of which bears south 01°13'41" west having
a radius of 50.00 feet, an arc distance of 78.54 feet, through a central angle of 90 °00'00
Thence south 01 °13'41" west a distance of 255.00 feet to the TRUE POINT OF
BEGINNING;
thence south 88 °46'19" east a distance of 48.00 feet;
thence south 01°13'41" west a distance of 33.27 feet;
thence along a line hereinafter referred to as line "X south 69 °38'41" west a distance of
259.75 feet more or less to the westerly boundary of property described in Exhibit "A"
herein;
thence northerly and along said westerly boundary to a point on a line distant 30 feet
northwesterly of said line "X" measured perpendicularly thereto;
thence north 69 °38'41" east to a point which bears south 01 °13'41" west from the TRUE
POINT OF BEGINNING;
thence north 01°13'41" east 20.00 feet more or less to the TRUE POINT OF
BEGINNING.
18775202_1.DOC
67893- 0003 /LEGAL 1 9087945 1
Page 18 of 21 September 2, 2010
181
182
18775202_1.DOC
67893- 0003 /LEGAL 19087945 1
EXHIBIT D
MAP OF PROPERTY AND EASEMENTS
Page 19 of 21 September 2, 2010
Tukwila 205: Site 3 Easements
Temporary Staging and Work Area Easement
Permanent Levee Easement
Permanent Access Easement
Parcel Boundaries
75 0 75 150 Feat
18775202_1.DOC
67893 0003 /LEGAL 19087945 1
3623049095
3623049094
Page 20 of 21
3623049017
September 2, 2010
183
184
KING COUNTY FLOOD HAZARD REDUCTION PROGRAM
TUKWILA 205 PROJECT
LILY POINTE PARCEL
Those special exceptions listed on Pacific Northwest Title Company Title Commitment #661078
dated October 8, 2007, as supplemented by Supplemental Report #1 dated July 9, 2008,
Supplemental Report #2 dated September 2, 2010 and Supplemental Report #3 dated September
3, 2010 (which Title Commitment and Supplements are incorporated into this Agreement by this
reference), numbered 1, 2, 3, 4, 5, 6, 9, 10, 15 and general taxes and assessments that are not yet
due and payable.
18775202_1.DOC
67893 0003 /LEGAL 19087945 1
ATTACHMENT B
PERMITTED EXCEPTIONS /TITLE REPORT
Page 21 of 21 September 2, 2010
After Recording Return to:
City of Tukwila
Office of City Clerk
6200 Southcenter Blvd.
Tukwila, WA 98188
Legal Description (abbreviated):
Assessor's Tax Parcel Number:
Reference Number of Documents
Assigned, Released or Amended:
67893 0003 /LEGAL19014185 1
Amendment to Possession and Use Agreement Revised
Grantor: Lily Pointe Investments, LLC, a Washington limited liability company
Grantee: The City of Tukwila, a Washington municipal corporation
Ptn. NW1 /4, 36 -23 -04
Full legal on p. 4
362304 9087 -04
20081103000918
REFERENCE ONLY
THIS AMENDMENT TO POSSESSION AND USE AGREEMENT REVISED (this
"Amendment is made this day of 2010 by and between the City
of Tukwila, a Washington municipal corporation (the "City and Lily Pointe Investments, LLC,
a Washington limited liability company "Lily Pointe
The City and Lily Pointe are parties to that certain Possession and Use Agreement
Revised dated October 14, 2008 and filed under King County Recording No. 20081103000918
(the "PUAR The PUAR concerns the underlying property described on EXHIBIT A attached
hereto and incorporated herein. Section 4 of the PUAR requires the City to pay to Lily Pointe
the amount determined as the final valuation of the Easement Area "Final Value plus twelve
percent (12 interest per annum as accrued from May 19, 2008 through the date of final
payment "Original Rate Due to the recent financial downturn, the City seeks and Lily Pointe
has agreed to grant a reduction of the Original Rate on the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are acknowledged, the City and Lily Pointe hereby amend the PUAR as follows:
1. Reduction of Interest Rate. The parties agree to reduce the Original Rate to
nine percent (9 interest per annum "Reduced Rate Therefore, the second sentence of
Section 4 of the PUAR is hereby revised to read as follows: "The City agrees that upon final
185
186
valuation of the Easement Area, whether by mutual agreement or by trial, the City shall pay to
Owner the amount determined plus nine percent (9 interest per annum as accrued from the
Date of Possession through the date of final payment."
2. Condition of Reduced Rate. The Reduced Rate is conditioned upon Lily Pointe
receiving payment in full of the Final Value, plus all interest that has accrued thereon, no later
than October 15, 2010. If full and final payment is not received by such date, then the Reduced
Rate shall become void and the Original Rate shall be automatically reinstated.
3. Ratification; Interpretation. Except as expressly amended herein, the PUAR
remains in full force and effect unamended, and all of the terms and provisions of the PUAR are
ratified and confirmed.
4. Execution of Amendment. This Amendment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year first above written.
"CITY"
The City of Tukwila,
a Washington municipal corporation
By:
Name:
Title:
67 893 0003 /LEGAL19014185 1
-2-
"LILY POINTE"
Lily Pointe Investments, LLC,
a Washington limited liability company
By:
Name: Carol -Ann O'Mack
Title: Manager
REFERENCE ONLY
POSSESSION AND USE AGREEMENT REVISED
Ogo3W
PL 84 -99 Tukwila 205 Tax Accounts 362304. 9087 -04
Levee Rehabilitation
PROJECT
TRACT OR OTHER PROPERTY IDENTIFICATION
This Agreement is entered into by and between The City of Tukwila, a municipal corporation of the State
of Washington (the "City') and Lily Pointe Investments, LLC, a Washington Limited Liability Company
(the "Owner"). This document supersedes the previously recorded Possession and Use Document
recorded under King County records number 20080604000331.
RECITALS
A. The document attached as Attachment 1 to this Possession and Use Az,,;..,-,rent contains certain
easements rights (the "Easements that are necessary for repairs and improvements to the Tukwila 205
Federally Certified Levee under the guidelines for the U.S. Army Corps of Engineers PL 84-99 Levee
Rehabilitation Effort along the Left Bank of the Green River (The "Project"). Delay in acquisition and
construction ofthe Project is contrary to the public interest_
B. Owner is the owner of that certain real property (the "Property") commonly known as 6801 S. 180th
Street, Tukwila, Washington, and more particularly described on Attachment 2.
C. Owner and City acknowledge that this A rd is being entered into under threat of condemnation
and shall be subject to just compensation by the City (in an amount that will be determined upon a
mutually acceptable settlement or trial) in order to compensate Owner for the Easements_ Nothing herein
shall be construed as a waiver ofthe Owner's right to object to any further use or occupancy of any other
portion of the property that the City may require in the future.
D. The Owner wishes additional time to resolve any questions it may have concerning the Easements,
including the issue ofjust compensation.
AGREEMENT
1. For and in consideration of payment by the City to the Owner for the Easements, in an amount to
be negotiated by the parties or determined at trial, the Owner grants to City possession and use of
those portions of the Property subject to the Easements (the "Easement Area.") for Project
purposes.
2. The parties agree that the Easement Area is necessary for a public use of the City. if the parties
cannot agree as to the amount ofjust compensation due the Owner and the City institutes
condemnation proceedings. the Owner will not object to the City's entry of an Order Adjudicating
Public Use and Necessity, as provided in RCW 5.12.090.
3. The parties agree that if condemnation proceedings are instituted by the City, this Agreement
shall be deemed to satisfy the requirements ofa stipulated Order oflmmediate Use and
Possession. This Agreement shall continue in effect until said proceedings have terminated and
the Easement Area is finally acquired by the City.
4. The parties agree that the "Date of Possession" and the "Date of Valuation" for the Easement
Area shalt be May 19, 2008. The City agrees that upon final valuation of Easement Area,
whether by mutual agreement or bytrial, the City shall pay to Owner the amount determined plus
twelve percent (12 interest per annum as accrued from the Date of Possession through the date
of final payment. The parties agree to use commercially reasonable efforts to negotiate a
mutually acceptable settlement on valuation of the Easement .Area as soon as possible after the
Date of Possession; however, should the parties fail to reach a mutually acceptable settlement
within six (6) months of the Date of Possession, the parties shall proceed to trial.
Page 1 of 13 p rAr
REFERENCE ONLY
20081103000918.002
187
188
5. Nothing in this Agreement shall be deemed to waive any right either party may have to a
subsequent adjudication of just compensation pursuant to state law. Neither this Agreement nor
the basis for the payment made pursuant to this Agreement shall be construed as evidence of or
an admission of fair market value or just compensation by either parity to the Agreement.
6. If condemnation proceedings are instituted, any payment ofcoats and attorneys fees shall be
governed by the provisions ofRCW 8.25.070 and 8.25.075.
7. !fin the use of the Easement Area the City, the King County Flood Control Zone District (the
"County") or the Army Corps of Engineers (the "Corps') or any oftheir employees or agents
damage any portion ofthe Property (including, but not limited to the Easement Area), the City
shall be solely responsible for ensuring that the Property is repaired, replaced and restored.
Additionally, other than in the event of Owner's gross negligence, the City shall indemnify,
defend and hold Owner, its successors and assigns harmless from and against all claims, damages
(to property, improvements or otherwise), injury to persons, expense, loss, liability, causes of
action or suit of any kind, including attorneys' fees and court costs, arising from or related to the
rights granted to the City herein or the possession and use of the Easement Area by the County or
the Corps. The obligations contained in this Section 7 shall survive the granting ofthe
Easements, whether the Easements are granted by Attachment 1. or by condemnation action.
8. This Agreement, including its attachments, is the complete expression of the terms hereto and any
other representations, whether oral or in writing not incorporated in this Agreement are excluded.
Time is of the essence of the performance of the provisions oftbis Agreement. Waiver of any
default shall not be deemed to be a waiver of atty other or subsequent defaullt.
Dated: ./0/ 5c
i
OWNER: Lily 9 to Inve etas, Washingtp red Liability Company
BY
'Name: e ►_dL ircf Q'G�1 C
Title: 0
The City of Tukwila, a municipal corporation of the State of Washington.
CITY:
BY Y�
Tit ficAr
Page 2 of 12
REFERENCE ONLY
20081103000918.003
Utilities Committee Minutes August 24, 2010 Page 2
C. Tukwila 205 Levee Repair Lily Pointe Easement Interest Payment
Staff is requesting Council approval to make an interest payment not to exceed $106,000 to Lily
Pointe Investments, LLC for possession and use of easements that were needed for the Tukwila 205
j Levee Repair Project in 2008.
The agreement between the City and Lily Pointe required the City to reimburse Lily Pointe (property
owner) for the value of the easement plus 12% annual interest from the date of possession until
payment. King County Flood Control District will reimburse the City for the cost of the easement,
but not the interest. UNANIMOUS APPROVAL. FORWARD TO SEPTEMBER 13 COW FOR
DISCUSSION.
III. MISCELLANEOUS
Meeting adjourned at 5:21 p.m.
Next meeting: Tuesday, September 14, 2010 5:00 p.m. Conf. Room No. 1.
Committee Chair Approval
Minutes by KAM. Reviewed by GL.
189
190