HomeMy WebLinkAboutUtilities 2010-08-24 Item 2C - Discussion - Tukwila 205 Levee Repair - Lily Pointe Easement Interest PaymentTO:
City of Tukwila
INFORMATIONAL MEMORANDUM
Mayor Haggerton
FROM: Public Works Director
DATE: August 17, 2010
SUBJECT: Tukwila 205 Levee Repair Lily Pointe
Project No. 08 -DRO2
Easement Interest Payment
ISSUE
Approve interest payment to Lily Pointe LLC for the Tukwila 205 Levee Repair project.
Attachments: Letter from Lily Pointe on established value and interest payment
Lily Pointe Possession and Use Agreement
W: \PW Eng\PROJECTS\A- DR Projects \08 -DR02 (205 Levee Repair)\Design Phase \Site 3 \Lily Pointe Final Easement \Info Memo Easement Interest Payment doc
Jim Haggerton, Mayor
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.
Per the Possession and Use Agreement, the City will need to provide approximately $106,000.00 in
interest at the time of closing.
Staff has reviewed options for funding the interest payment and it is recommended that the 412
Surface Water be used and then reimbursed using the City's share of the District's Annual
Opportunity Fund over then next several grant cycles. Funding is anticipated at $44,000 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 funding for the interest of this easement acquisition in the
amount of $106,000 and consider this item at the September 13, 2010 Committee of the Whole
meeting and subsequent September 20, 2010 Regular Meeting.
July 2, 2010
City of Tukwila
Tukwila City Hall
6200 Southcenter Blvd.
Tukwila, WA 98188
Sincerely,
Lily Pointe Investments, LLC
4128 West Ames Lake Drive NE Redmond, Washington 98053
RE: Tukwila -205 Site 3 Levee Repair Project
Lily Pointe Investments, LLC Property (TPIN 362304- 9087 -04)
To Whom It May Concern,
We have received and reviewed the appraisal prepared by GVA Kidder Mathews dated February
24, 2009, which assesses the value of our property before and after the granting of those
permanent easements across the property that are necessary for the above referenced project. We
agree that the $343,000 is a fair valuation of the easements.
However, $89,198.97 in interest must be paid in addition to the above valuation amount. As you
know, Lily Pointe entered into a Revised Possession and Use Agreement dated October 14, 2008
to allow the City and County immediate use of the easement areas until the parties could resolve
the issue of just compensation and final easements could be granted. Section 4 of the Revised
Possession and Use Agreement states that upon final valuation of the easements, the City would
pay Lily Pointe the amount determined plus 12% interest per annum from May 19, 2008 until
final payment was made. We calculate such interest to be $89,198.97, assuming that payment is
made on July 20. 2010.
Please let us know if you disagree with the above calculation or if you have any questions
regarding this letter. We look forward to finalizing the remaining details of the actual easement
document.
John Deininger Carol -Ann O'Mack
Manager, Lily Pointe Investments, LLC Co- Manager
PL 84 -99 Tukwila 205
Levee Rehabilitation
PROJECT
POSSESSION AND USE AGREEMENT REVISED
08o tI (aj
Tax Accounts 362304-9087 -04
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 Agreement contains pertain
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 afire Green River (The "Project"). Delay in acquisition and
construction of the 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 Agreement is being entered into under threat of condemnation
and shall be subject to just compensation by the City (in an amount that will be determmined upon a
mutually acceptable settlement or trial) in order to compensate Owner far the Easements. Nothing heroin
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. tithe 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 8.12.090.
3, The parties agree that if condemnation proceedings are instituted by the City, this Agreement
shall be deemed to satisfy the requirements of a stipulated Order of Ia ei...diate 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 shall be May 19, 2008. The City agrees that upon final valuation of Easement Area,
whether by mutual agreement or by trial, 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 paymeznt. The parties agree to use canxtnercially reasonable efforts to negotiate a
mutually acceptable settlement on valuation of the Easement Area as soon as possdale 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.
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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 fbir market value or just compensation by either party to the Agreement.
6. If condemnation proceedings are instituted, any payment of costs and attorneys fees shall be
governed by the provisions ofRCW 8.25.070 and 8.25.075.
7. If in 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 of their employees or agents
damage any portion of the 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 poesession and use of the Easement Area by the County or
the Carps. The obligations contained in this Section 7 shall survive the granting of the
Easements, whether the Easements are granted by Attachment 1 or by condemnation action.
3. 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 of this Agreement. Waiver of any
default shall not be deemed to be a waiver of any other or subsequent default.
Dated: /O /I 7
OWNER: Lily O to Inve eats, Washingr ted Liability Company
BY
CITY:
'Name: e eff _OL.9sJAi Q flv ..14.
Title: P1r
The City of Tukwila, a municipal corporation of the State of Washington.
BY
GJlt
Tit tier Jr
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