HomeMy WebLinkAbout2003 - Agreement - Starfire Sports - 20030317001798Return Address:
Parties: City of Tukwila
Other:
CITY OF TUKWILA
Bob Baker, CMC,
Deputy City Clerk
Office of the City Clerk
6200 Southcenter Blvd.
Tukwila, WA 98188
(206) 433 -1800
Legal Description:
111 111111 11 1111 11
20030317001798
TUKWILA AG 66.00
PAGE 001 OF 048
KING
Y, WA
CITY OF TUKWILA
DOCUMENT RECORDING
COVER SHEET
Document Title(s): AGREEMENT BETWEEN CITY OF TUKWILA AND
STARFIRE SPORTS (Including Exhibits A D)
Starfire Sports
A Not- For -Profit Washington Corporation
(Christopher G. Slatt, Chairman President)
SW '/4, Sec. 13, Twp 23 N., Rge 4 E., W.M.
Govt. Lots 1 2, Sec. 23, Twp 23 N., Rge 4 E., W.M.
Govt. Lots 1 5, Sec. 24, Twp 23 N., Rge 4 E., W.M.
Tract 36, Second Supplement Map of Renton Shore Lands
Blocks 4 -9 12 -17, Gundaker's Interurban Addn.
Assessor's Tax Parcel ID #'s: 1323049080, 2323049001, 2423049030
2954900426
AGREEMENT
BETWEEN
CITY OF TUKWILA
AND
STARFIRE SPORTS
AG'G3 0 5e
AGREEMENT
50357676.02
TABLE OF CONTENTS
Page
ARTICLE 1. RECITALS AND FINDINGS 1
1.1 PARK 1
1.2 INTERGOVERNMENTAL AGREEMENT 1
1.3 PRIVATE OPERATION AND DEVELOPMENT 1
1.4 STARFIRE 1
1.5 FACILITIES 1
1.6 NO PARTNERSHIP 2
1.7 PREMISES 2
1.8 CITY POLICE POWER 2
1.9 PARKING 2
1.10 FINANCING 2
1.11 CONTINUED PARK AND RECREATION USE 3
ARTICLE 2. GROUND AND USE GRANT 3
2.1 PREMISES 3
2.2 POSSESSION, QUIET ENJOYMENT COVENANTS 3
ARTICLE 3. TERM OF AGREEMENT 3
3.1 TERM 3
3.2 OPTION TO RENEW 4
ARTICLE 4. STARFIRE OBLIGATIONS 4
4.1 AGREEMENT 4
4.2 NoT- FOR PROFIT 4
4.3 INVESTMENT 4
4.4 ATHLETIC CENTER BUILDING 4
4.5 FIELDS -TURF 4
4.6 FIELDS GRASS 4
4.7 STADIUM 5
4.8 SOFTBALL FIELDS 5
4.9 EDUCATION SCHOLARSHIPS 5
4.10 CITY 4 T OF JULY CELEBRATION 5
4.11 STARFIRE LIAISON 5
4.12 FACILITIES AND PREMISES 5
4.13 ENTRY BY CITY 6
4.14 HEALTH INSPECTIONS 6
4.15 MAINTENANCE, REPAIR, IMPROVEMENFS 7
4.16 SIGNS 8
4.17 UTILITIES 8
4.18 HAZARDOUS SUBSTANCES 9
4.19 RISK of Loss 9
ARTICLE 5. CITY OBLIGATIONS 10
5.1 AGREEMENT 10
5.2 PICNIC -PLAY AREAS- STORMWATER 10
5.3 STREETS PARKING 10
5.4 LEVEE TRAILS 10
5.5 NAMING RIGHTS SIGNS ZONING 10
5.6 DIRECTIONAL SIGNS 11
5.7 LIQUOR LICENSE 11
5.8 PUBLIC SAFETY 11
5.9 PERMITTING 11
5.10 CITY LIAISON 11
5.11 PROMOTION 11
5.12 FEES AND CHARGES 11
ARTICLE 6. DESIGN CONSTRUCTION OF PREMISES 11
6.1 DESIGN 11
6.2 BUILDING SITE PLANS /ACCESS EASEMENT 12
6.3 CONSTRUCTION /SITE WORK/FENCING 12
6.4 CONSTRUCTION DEADLINES 12
6.5 FAILURE TO MEET CONSTRUCTION DEADLINES /TIME OF ESSENCE 13
6.6 STORMWATER DRAINAGE, SEWER, WATERLINES 13
6.7 DEVELOPMENT AND CONSTRUCTION FEES EXPENSES 13
6.8 NOT A PUBLIC WORKS PROJECT 13
6.9 No LIENS 14
6.10 INSURANCE AND INDEMNIFICATION REQUIREMENTS DURING CONSTRUCTION 14
ARTICLE 7. FINANCING SECURITY INTERESTS 16
7.1 FINANCING No CITY OBLIGATION 16
7.2 MORTGAGES GENERALLY 16
7.3 SECURITY INTEREST IN PREMISES AGREEMENT /CONSENT 16
7.4 LENDER'S RELIANCE ON TERM 17
7.5 SURRENDER OF THE COLLATERAL 17
7.6 NOTICE OF DEFAULT AND LENDER'S RIGHTS 17
7.7 RIGHT TO ASSIGN 18
7.8 DISPOSITION OF INSURANCE 18
7.9 RIGHT TO PARTICIPATE IN LITIGATION 19
7.10 INCORPORATION OF LENDER'S PROTECTION PROVISIONS 19
7.11 RIGHT TO REMOVE COLLATERAL 19
7.12 NOTICES 19
ARTICLE S. TERMINATION 20
8.1 FAILURE TO PERFORM 20
8.2 DEFAULT 20
8.3 REMEDIES ARE CUMULATIVE 21
8.4 DESTRUCTION OF PREMISES USE OF INSURANCE PROCEEDS 21
8.5 DUTIES UPON TERMINATION 22
8.6 EMINENT DOMAIN 22
ARTICLE 9. GENERAL CONDITIONS 23
9.1 RELATIONSHIP OF PARTIES 23
9.2 NoTIcES 23
9.3 REPORTS INFORMATION 24
9.4 PERMITS, LICENSES, TAXES, FEES 24
9.5 INSURANCE 25
9.6 HOLD HARMLESS, INDEMNIFICATION, INDUSTRIAL INSURANCE 26
9.7 SUCCESSORS ASSIGNS 26
9.8 BANKRUPTCY 27
9.9 COMPLIANCE WITH LAWS 27
9.10 NONDISCRIMINATION 27
9.11 CHOICE OF LAW VENUE 28
9.12 COSTS ATTORNEYS' FEES 28
9.13 MODIFICATION 28
9.14 CHANGE IN LAW /RENEGOTIATION 28
9.15 FORCE MAJEURE 28
9.16 WAIVER 29
AGREEMENT 11
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9.17 ILLEGAL PROVISIONS SEVERABILITY 29
9.18 ARTICLE HEADINGS, GENDER, NUMBER 29
9.19 ENTIRE AGREEMENT 29
9.20 COUNTERPARTS 29
9.21 RECORDING 29
Exhibit A Description of PREMISES
Exhibit B Preliminary Building and Site Plans
Exhibit C Starfire Sports FACILITIES
Exhibit D Legal Description of PARK
AGREEMENT
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iii
AGREEMENT
5036767602
1.1 Park.
1.4 STARFIRE.
1.5 Facilities.
AGREEMENT
THIS AGREEMENT "Agreement is entered into effective the 1 day of
March, 2003 (the "EFFECTIVE DATE by and between the CITY OF TUKWILA, a
Washington municipal corporation "CITY and STARFIRE SPORTS, a Washington
non profit corporation "STARFIRE The CITY and STARFIRE are referred to
collectively as the "PARTIES."
In consideration of the promises, covenants, and provisions set forth in this
Agreement, the PARTIES agree as follows:
Article 1. RECITALS AND FINDINGS
The CITY is owner of the property commonly described as Fort Dent Regional
Park (the "PARK legally described in Exhibit D.
1.2 Intergovernmental Agreement.
The CITY acquired the PARK through an INTERGOVERNMENTAL LAND
TRANSFER AGREEMENT BETWEEN KING COUNTY AND THE CITY OF
TUKWILA (January 3, 2003; the, "INTERGOVERNMENTAL AGREEMENT in part
as a result of King County's lack of sufficient, stable revenues to manage and maintain its
parks, open space and recreational facilities.
1.3 Private Operation and Development.
At the time the CITY acquired the PARK from King County, the CITY intended
to provide for private operation, maintenance and further development of a portion of the
PARK, consistent with the INTERGOVERNMENTAL AGREEMENT.
STARFIRE has the experience, ability, and resources to develop and operate park
athletic, recreation and associated facilities "FACILITIES at the PARK. STARFIRE
intends to develop a regional facility for soccer, softball and other athletic and
recreational uses, and to provide scholarships, grants and aid to underprivileged people
throughout King County.
The PARTIES intend this Agreement to be a ground and use concession and
licenses granting STARFIRE the exclusive rights to develop, construct, and operate
FACILITIES, as described more fully in attached Exhibit C. STARFIRE may operate
AG o3 Gs&
Page 1 of 31
1.6 No Partnership.
concessions and impose fees and charges within these areas of the PARK, described
herein, and which said PARK areas will remain property of the CITY.
The PARTIES agree that no joint venture or partnership is formed as a result of
this Agreement.
1.7 Premises.
STARFIRE will be responsible for the design and construction of the
FACILITIES and exterior landscaping (hereinafter collectively referred to as the
"PREMISES blending with the PARK setting. All improvements to the PREMISES
will become property of the CITY at the termination of this Agreement.
1.8 City Police Power.
By entering this Agreement, the CITY does not waive any of its police power
authority and shall retain final permits for the PREMISES.
1.10.1 STARFIRE will be responsible for obtaining all necessary
financing for the development and operation of the PREMISES.
1.10.2 It is mutually understood by the PARTIES that any lender who
provides financing to STARFIRE solely for the development and operation of the
PREMISES will require this Agreement as protection and security for lender "lender
The term "lender" shall also mean the successors and assigns of the lender.
1.9 Parking.
The CITY, and not STARFIRE, will be responsible to provide adequate parking
to support the PREMISES and its operations.
1.10.3 The CITY will acknowledge and consent to lender taking a first
position security interest in this Agreement and the PREMISES; lender taking an
assignment of the right, title, claim and interest of STARFIRE in this Agreement; lender
obtaining the right of substitution for STARFIRE, lender taking possession of the
PREMISES; lender operating the PREMISES pursuant to the terms of this Agreement;
and /or, lender selling, assigning and /or transferring STARFIRE's interest in this
Agreement and /or the PREMISES;
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1.10 Financing.
Page 2 of 31
2.1 PREMISES.
3.1 Term.
1.11 Continued Park and Recreation Use.
This Agreement and uses authorized herein are consistent in all respects with
King County Resolution No. 34571 and the Intergovernmental Agreement. All
covenants and restrictions contained in the INTERGOVERNMENTAL AGREEMENT,
and deed(s) transferring PARK to CITY are incorporated in this Agreement.
Article 2. GROUND AND USE GRANT
2.1.1 CITY hereby grants to STARFIRE an exclusive lease and use
concession of ground, for the development, construction, and operation, of the
PREMISES as described in Exhibit A attached hereto and incorporated by reference.
Preliminary building and site plan is shown in Exhibit B, attached hereto and
incorporated by reference. Any and all development, construction, and improvements of
and to the PREMISES are owned by STARFIRE subject to security interest of lender, if
any. At the termination of this Agreement, other than as a result of condemnation
proceedings, the then existing improvements to the PREMISES will become the property
of and owned by the CITY.
2.1.2 The common address of the PREMISES is 6800 Fort Dent Way,
Tukwila WA, 98188.
2.2 Possession, Quiet Enjoyment Covenants.
Except as provided in Articles 4.10 4.13 herein, STARFIRE shall be entitled to
exclusive possession and use of the PREMISES upon commencement of the development
and construction of the PREMISES as defined by Article 6.4 herein. Upon taking
possession of the PREMISES, and subject to STARFIRE's continuing performance and
CITY's remedies under Agreement, STARFIRE shall peaceably and quietly have, hold,
and enjoy the PREMISES at all times during the full term of this Agreement. Every
covenant in this Agreement shall be deemed and treated to be a covenant running with
the PREMISES during the full term of the Agreement, and shall extend to the heirs, legal
representatives, successors, and assigns of the PARTIES. No change in CITY's
ownership of the PREMISES, or rights to the payments hereunder, however
accomplished, shall operate to enlarge the obligations or reduce the rights of STARFIRE.
No change in CITY's ownership of the PREMISES shall be binding upon STARFIRE for
any purpose until STARFIRE shall have been given notice thereof.
Article 3. TERM OF AGREEMENT
The term of this Agreement shall be forty (40) years, commencing upon the
EFFECTIVE DATE.
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3.2 Option to Renew.
4.3 Investment.
The CITY and STARFIRE may renew this Agreement, contingent upon
STARFIRE's full compliance with the terms and conditions of this Agreement and
CITY's written agreement to renew. The PARTIES may modify the Agreement during
the term, as a condition of renewal, or during a renewal term, consistent with
Section 9.13.
Article 4. STARFIRE OBLIGATIONS
4.1 Agreement.
STARFIRE agrees to the terms and conditions of this Agreement.
4.2 Not For Profit.
STARFIRE will serve as the supervisory not for profit corporation for
enhancement and ongoing operation of the FACILITIES.
STARFIRE will raise and invest $6 million in capital expenditures for the
enhancement of the FACILITIES.
4.4 Athletic Center Building.
STARFIRE will construct an athletic center building with two indoor soccer
facilities and associated uses to provide training programs, league play, and tournaments
to the youth and adults of the CITY and surrounding areas.
4.5 Fields Turf.
STARFIRE will construct three new lighted FIFA— sized, championship quality
synthetic turf soccer fields and make these fields available to the youth and adults on
teams from the CITY and surrounding areas.
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4.6 Fields Grass.
4.6.1 STARFIRE will improve and maintain three grass soccer fields
and make these fields available to the youth and adults on soccer teams from the CITY
and surrounding areas.
4.6.2 STARFIRE will maintain for the CITY the existing, northern most
soccer field outside of the PREMISES, consistent with such standards applicable to other
grass soccer fields maintained by STARFIRE within the PREMISES.
Page 4 of 31
4.7 Stadium.
4.8 Softball Fields.
STARFIRE will install new seating, new FIFA -sized championship quality
synthetic turf, and lights for a soccer stadium and make the stadium available to the youth
and adult teams from the CITY and surrounding areas.
STARFIRE may sublease the softball fields to a not for profit organization to
enhance and operate the FACILITIES' softball fields and make these fields available to
CITY -based leagues and tournaments, as well as regional and national tournaments.
AGREEMENT
50167676.02
4.9 Education Scholarships.
4.9.1 STARFIRE will provide athletic skills, educational and
development programs. STARFIRE will also provide team fee scholarships for
disadvantaged youths from the CITY and surrounding areas.
4.9.2 STARFIRE, as part of it's community involvement program, will
provide scholarships, grants, awards, and other benefits to the underprivileged. The
CITY shall be entitled to designate scholarship recipients up to an aggregate amount
equal to 12% of the amount set aside annually by STARFIRE for such scholarships but
not to exceed $25,000 per year. Amounts not designated by the CITY in a calendar year
shall be available for designation by STARFIRE throughout the community.
Additionally, the CITY may request STARFIRE's consideration of requests in excess of
the amounts set forth in this section for STARFIRE's discretionary scholarship and award
program.
4.10 City 4 of July Celebration.
STARFIRE will make all outdoor fields within the PREMISES available for use
by the CITY during the annual 4 of July celebration.
4.11 STARFIRE Liaison.
Upon request by CITY, STARFIRE will provide a dedicated contact person and
liaison with the CITY for all permit and license applications, changes, and variances to
complete the FACILITIES in an expedited manner.
4.12 Facilities and Premises.
STARFIRE will be fully responsible for all costs of improvement, operation and
maintenance of the PREMISES, except as described in Section 5, below.
4.12.1 Incidental Uses
Page 5 of 31
STARFIRE may provide and /or authorize concessions, to include but not be
limited to food and beverages; sale of incidental items directly related to the use of the
FACILITIES including, but not limited to, athletic equipment, clothing, awards and
related merchandise; soap, shampoo, sundries and supplies; and, day care/babysitting,
fitness, training and gym activities.
STARFIRE shall take reasonable precautions in securing the PREMISES during
the full term of this Agreement. STARFIRE shall use the PREMISES for no unlawful
purposes and shall not use or occupy the PREMISES in any manner, which would
constitute a public nuisance or violate State or CITY laws.
The availability of recreational opportunities for CITY residents is a material
consideration for this Agreement. Accordingly and during the full term of this
Agreement, STARFIRE shall continuously conduct and carry on STARFIRE's permitted
uses and shall keep the PREMISES open for business and cause STARFIRE's business to
be conducted therein during the usual business hours of each and every business day as
mutually agreed upon. This provision shall not apply if the PREMISES should be closed
and the business of STARFIRE is temporarily suspended on account of labor strikes,
lockouts, or similar causes beyond the reasonable control of STARFIRE, or for
maintenance, remodeling, repair, or renovation as approved by the CITY in writing
(including approvals of any construction schedules.) STARFIRE covenants and agrees to
provide sufficient personnel, and to keep the PREMISES adequately stocked with
merchandise, recreational equipment, fixtures, and facilities so as to conduct its business
in accordance with sound business practice. STARFIRE, in order to keep its business
commitments, shall be in operation in accordance with sound business practice.
CITY may enter the PREMISES at all times to inspect; provide services required
hereunder; post notices of STARFIRE's noncompliance with the provisions of this
concession, all without being deemed a constructive eviction. Any person or persons who
may have an interest in the purpose of CITY's visit may accompany CITY. CITY has the
right to use any and all means that CITY deems proper to open doors and gates in an
emergency in order to obtain entry to the PREMISES.
STARFIRE shall not knowingly commit or willfully permit to be committed any
act or thing contrary to the rules and regulations prescribed by the local board of health,
or which shall be contrary to the laws, rules or regulations of any federal, state or
municipal authority. STARFIRE shall allow the King County Health Department to make
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4.12.3 Operating Hours Activities
4.12.2 Security and Nuisance During Use
4.13 Entry by CITY.
4.14 Health Inspections.
Page 6 of 31
regular and ordinary inspections of the PREMISES as said health department may deem
proper.
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4.15 Maintenance, Repair, Improvements.
4.15.1 Maintenance
STARFIRE shall, at its sole cost and expense, clean and maintain the PREMISES,
and make repairs, restorations, and replacements to the PREMISES, including without
limitation the heating, ventilating, air conditioning, mechanical, electrical, and plumbing
systems, structural roof, walls, and foundations, roof coverings, sprinkling and irrigation
systems, playing surfaces and the fixtures and appurtenances to the PREMISES as and
when needed to preserve them in "first class" condition and repair (less normal wear from
use) throughout the full term. STARFIRE shall further keep in repair and maintain as
necessary all machinery, equipment and facilities necessary for the playing of sports and
the comfort of players. STARFIRE shall paint the exterior of the buildings (except the
metal) with such frequency as may be required to maintain their good, clean appearance.
All such repairs, restorations, and replacements will be in quality and workmanship at
least equal to the original work or installations. If STARFIRE fails to make such repairs,
restorations, or replacements within ninety (90) days of written notice by CITY, CITY
may make them at the expense of STARFIRE and such expense will be paid by
STARFIRE within fifteen (15) days after delivery of a statement for such expense.
4.15.2 Sidewalks Maintenance
At its sole cost and expense, STARFIRE shall maintain any sidewalks on the
PREMISES in good and presentable condition during the full term of this Agreement,
shall be responsible for correcting any unsafe conditions, and shall be responsible for the
removal of ice and snow from the sidewalks
4.15.3 Janitorial Services
At its sole cost and expense, STARFIRE shall keep the PREMISES clean, and
shall provide sufficient janitorial services to maintain a tidy appearance on and about the
PREMISES. STARFIRE shall provide landscaping maintenance services such that
landscaping on the PREMISES remains healthy, attractive, and well maintained.
4.15.4 Repair of Damage
In the event any damage or injury shall occur to the PREMISES of any kind or
nature whatsoever, STARFIRE shall promptly cause said damage or injury to be fully
repaired at STARFIRE's own cost and expense. In the event STARFIRE fails to
accomplish such repairs within fifteen (15) days of receipt of written notice by the CITY,
then in that event CITY may, but is not required to, enter the PREMISES and accomplish
such repairs and bill STARFIRE who will pay the bill within fifteen (15) days after
delivery of a statement for such expense.
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4.16 Signs.
4.15.5 Improvements
STARFIRE shall be solely responsible for providing adequate funding for any
alterations or improvements as provided in this Agreement and such alterations or
improvements shall be made without cost to the CITY, except as provided in Section 5.3.
4.15.6 Alterations of PREMISES after Construction
After such time as the PREMISES have been completed and accepted as defined
above, STARFIRE shall not make any material alteration to the PREMISES including
any changes to the landscaping, without the CITY's prior written consent, such consent
to not be unreasonably withheld.
STARFIRE may place and maintain signs upon the PREMISES in accordance
with the sign ordinance of the CITY.
4.17 Utilities.
4.17.1 Utility Services and Expense
STARFIRE will pay for all water, gas, garbage, sewage, electricity, telephone,
and other utilities and communications services used by STARFIRE on the PREMISES,
whether or not such services are billed directly to STARFIRE. STARFIRE will also
procure, or cause to be procured, without cost to the CITY, any and all necessary permits,
licenses, or other authorizations required for the lawful and proper installation and
maintenance upon the PREMISES of utility appurtenances and appliances for use in
supplying such utilities and services to and upon the PREMISES. The CITY, upon
request of STARFIRE, and at the sole expense and liability of STARFIRE, will join with
STARFIRE in any application required for obtaining or continuing any such services,
provided that such services do not violate any other applicable provision of this
Agreement. The CITY shall not be held liable for any injury, loss, or damage caused by
or resulting from any interruption or failure of utility services due to any cause
whatsoever, except the CITY's sole negligence. STARFIRE shall not be entitled to any
offset, reduction, or return of consideration as a result of any interruption or failure of
services.
4.17.2 Trash Garbage
STARFIRE shall place all trash and garbage into such areas and containers as are
designed and intended to accommodate the trash and garbage generated within or on the
PREMISES. STARFIRE shall not allow trash and /or garbage to accumulate such that a
nuisance or health hazard results.
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4.18 Hazardous Substances.
4.18.1 Definition
As used herein, the term "Hazardous Substance" means any hazardous, toxic, or
dangerous substance, waste, or material, which is or becomes regulated under any
federal, state, or local statute, ordinance, rule, regulation, or other law now or hereafter in
affect pertaining to environmental protection, contamination, or cleanup.
4.18.2 Information
STARFIRE shall keep upon the PREMISES, in a location accessible to CITY, on
request during normal business hours, copies of all reports regarding hazardous or toxic
materials in the PREMISES that STARFIRE has provided to any governmental agency in
the previous quarter. STARFIRE shall, upon request by CITY and at STARFIRE's
expense, provide CITY with a copy of any such report. In the event of any accident,
spill, or other incident involving hazardous or toxic matter that STARFIRE is required to
report to any governmental agency, STARFIRE shall immediately report the same to the
CITY and supply CITY with all information and reports with respect to the same,
together with STARFIRE's clean -up or remediation plan and schedule. If such clean -up
or remediation plan is not acceptable to CITY in CITY's sole discretion, CITY may so
notify STARFIRE and, upon 48 hours prior written notice (or without notice if so
required by an emergency) may enter on the PREMISES to conduct the cleanup or
remediation and charge STARFIRE the costs thereof. All information described herein
shall be provided to CITY regardless of any claim by STARFIRE that it is confidential or
privileged, provided that the CITY shall not publish or disclose the information to any
third party except as pursuant to Chapter 42.17 RCW.
STARFIRE agrees to hold harmless, protect, indemnify, and defend CITY from
and against any damage, loss, claim, or liability, INCLUDING Attorney's fees and costs,
resulting from STARFIRE's use, disposal, transportation, generation, and/or sale of any
Hazardous Substances. The CITY agrees to hold harmless, protect, indemnify, and
defend STARFIRE from and against any damage, loss, claim, or liability, including
attorney's fees and costs, resulting from (a) Hazardous Substances existing on the
PREMISES as of the EFFECTIVE DATE of this Agreement; or (b) Hazardous
Substances thereafter used, disposed of, or generated on the PREMISES by the CITY.
These indemnities will survive the termination of this Agreement, whether by expiration
of the Term or otherwise.
All personal property of any kind or description whatsoever on the PREMISES
shall be at STARFIRE's sole risk, and CITY shall not be liable for any damage done to,
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4.18.3 Indemnification
4.19 Risk of Loss.
Page 9 of 31
5.3 Streets Parking.
or loss of, such personal property. However, STARFIRE is not responsible for losses or
claims of stolen property during the CITY's use periods.
Article 5. CITY OBLIGATIONS
5.1 Agreement.
CITY agrees to the terms and conditions of this Agreement.
5.2 Picnic Play Areas Stormwater.
The CITY will maintain all existing picnic, barbecue, restrooms, play and other
community- access areas located within the PARK that are not part of the PREMISES,
including water retention facilities and lift stations, consistent with such standards
applicable to other municipal parks owned and operated by the CITY.
5.3.1 The CITY will maintain all streets, bridges, and parking areas,
including landscaping, located within or adjacent to or providing access to and egress
from the PARK and the PREMISES, consistent with applicable CITY standards.
5.3.2 The CITY will be responsible to provide adequate parking to
support the PREMISES and its operations.
5.5 Naming Rights Signs Zoning.
5.5.1 The CITY grants to STARFIRE all rights to PREMISES naming,
and advertising. Provided, however, the reference "Tukwila," "City of Tukwila," or
other reference to "Tukwila" as approved by the CITY shall be incorporated into names
and signage when feasible. The CITY agrees to work with STARFIRE to modify the
sign code to facilitate appropriate signage for the PREMISES and its events.
5.5.2 The CITY agrees to work with STARFIRE to modify the zoning
code to facilitate the development of any FACILITIES not otherwise permitted outright
under the zoning code.
5.4 Levee Trails.
The CITY will maintain, or cause to be maintained by others, the levee and trails
outside the PREMISES but within the PARK, consistent with applicable CITY and King
County standards.
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Page 10 of 31
5.6 Directional Signs.
5.7 Liquor License.
5.8 Public Safety.
5.9 Permitting.
5.10 City Liaison.
The CITY will install directional signage to the FACILITIES as appropriate in
various locations throughout the CITY.
The CITY will support STARFIRE obtaining a liquor license for the
FACILITIES through the established City Council approval process.
The CITY will provide police and fire services to the PARK and the PREMISES
consistent with applicable CITY standards.
The CITY will attempt to expedite all permits, licenses and other municipal
approvals required for completion and operation of the FACILITIES.
The CITY will provide a dedicated contact person and liaison with STARFIRE
for all permit and license applications, changes, and variances to complete the
FACILITIES in an expedited manner
The CITY's tourism and marketing department will use its best efforts to promote
and support the FACILITIES within the business community for the benefit of CITY and
the enhanced recreational use of the PARK.
CITY grants and authorizes STARFIRE to establish and collect rents, fees and
charges, and retain all revenues, including special event /tournament parking revenues, for
use of FACILITIES; excluding the 4 of July. Provided, however, STARFIRE will be
subject to the City Parking Tax.
6.1.1 STARFIRE shall retain a licensed architect or licensed
professional engineer, registered in the State of Washington, who shall design the
FACILITIES and exterior landscaping (the PREMISES), which shall visually blend with
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5.11 Promotion.
5.12 Fees and Charges.
Article 6. DESIGN CONSTRUCTION OF PREMISES
6.1 Design.
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the setting. The CITY shall have the right to approve the final design of the PREMISES
consistent with established CITY zoning and /or design code.
6.1.2 Where required by applicable provisions of law, STARFIRE
shall comply with the Americans with Disabilities Act of 1990 (ADA) in the design,
construction, and operation of the PREMISES.
6.2 Building Site Plans /Access Easement.
STARFIRE shall retain a licensed architect or licensed professional engineer,
registered in the State of Washington, to prepare building and site plans for the
PREMISES, which shall reference the structure, utilities generally, and landscape plan.
The CITY shall have the right to approve the final building and site plans, such approvals
to not be unreasonably withheld. Upon its approval of the final building and site plans,
the CITY will grant to STARFIRE an access easement from the PREMISES to the public
right -of -way. Upon being granted, the access easement shall run for the term of this
Agreement and shall be part of the PREMISES.
6.3 Construction /Site Work /Fencing.
STARFIRE shall be solely responsible for all development and construction of
the PREMISES and shall be responsible for the site work, all required permits and
grading. STARFIRE shall properly barricade the work area and install signage directing
unauthorized person from entering onto the building site during any phase of
development or construction. Unless otherwise agreed fencing shall be placed around the
work area. In addition, the building site shall be kept in a clean and organized condition
during development periods. STARFIRE shall be responsible for site security, traffic and
pedestrian warnings at the site during the development and construction phases.
6.4 Construction Deadlines.
6.4.1 STARFIRE shall be required to commence development of the
PREMISES within six (6) months of the EFFECTIVE DATE of this Agreement.
Commencement of development of the PREMISES is defined as that date upon which
STARFIRE files its first application for a project permit, as defined in
RCW 36.70B.020(4).
6.4.2 STARFIRE shall be required to complete the development and
construction of the PREMISES within one (1) year of the EFFECTIVE DATE of this
Agreement. Completion of the development and construction of the PREMISES is
defined as that date upon which all final occupancy permits are obtained by STARFIRE
for all structures on the PREMISES.
6.4.3 STARFIRE may phase construction of FACILITIES on the
PREMISES. PROVIDED, within one (1) year of commencement of construction, the
FACILITIES shall have completed construction sufficient to provide, for use under this
AGREEMENT Page 12 of 31
50367676.02
AGREEMENT
50367676.02
Agreement, athletic and recreation fields in a condition and to an extent in excess of that
provided at PARK as of the EFFECTIVE DATE.
6.5 Failure to Meet Construction Deadlines /Tune of Essence.
6.5.1 Except as provided in Section 9.15 herein, it is mutually
understood and agreed that failure by STARFIRE to meet the development and
construction deadlines shall constitute a material breach of this Agreement by
STARFIRE and the CITY, at its option, can terminate this Agreement for cause pursuant
to Article 8. Time is of the essence with this Agreement.
6.5.2 Notwithstanding Section 6.4 and 6.5.1, STARFIRE's obligation
to commence construction shall not begin until the CITY has issued its building permit
for the FACILITIES.
6.6 Stormwater Drainage, Sewer, Water Lines.
STARFIRE will be responsible for relocating storm drains, sewers, and water
lines to the PREMISES, as required to complete development and construction of the
PREMISES.
6.7 Development and Construction Fees Expenses.
6.7.1 STARFIRE shall be responsible for obtaining and paying for
necessary permits, fees, and expenses associated with the development and construction
of the PREMISES. In addition, STARFIRE shall be responsible for any additional costs
for inspections billed to the CITY by any government agency, including but not limited
to the City of Tukwila, King County, or the State of Washington.
6.7.2 Notwithstanding Section 6.7.1, STARFIRE shall not be obligated
to pay permit fees, CITY utility connection charges (if any), and expenses, including any
transportation impact or environmental mitigation fees in an aggregate amount in excess
of $100,000.00 excluding utility meter fees. CITY shall be responsible for any such fees
in excess of the amount set forth in this Section 6.7.2.
6.8 Not a Public Works Project.
6.8.1 The development and construction of the PREMISES is not a
public works project requiring the payment of prevailing wages. STARFIRE is the
developer and the CITY is not an owner, partner, joint venturer, nor maintains any other
business relationship with STARFIRE. The CITY is not involved with, nor has any
responsibilities for, the bidding, contracting or operations of the PREMISES and will
occupy no space in or enjoy use of the PREMISES. STARFIRE does not deem itself
required to pay prevailing wages nor will STARFIRE be obligated to pay or to contract
for prevailing wages or any other standard of payment controls associated with this
project. This provision is a material part of the consideration for this Agreement.
Page 13 of 31
6.8.2 The project signage and all literature, advertising by either the
CITY or STARFIRE shall not indicate in any manner that this is a CITY project,
contract, or other misleading statement indicating that this project is a public work project
directly or indirectly.
AGREEMENT
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6.9 No Liens.
Except liens and encumbrances of any lender pursuant to Article 6 herein, it is
mutually understood and agreed that STARFIRE shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of the CITY in the fee interest in the
PREMISES retained by CITY or the PARK, or to charge the rentals payable hereunder
for any claim in favor of any person dealing with STARFIRE, including those who may
furnish materials or perform labor for any construction or repairs, and each such claim
shall affect and each such lien shall attach to, if at all, only the right and interest granted
to STARFIRE by this Agreement. If any such liens are filed, CITY may, without
waiving its rights and remedies for breach, and without releasing STARFIRE from its
obligations hereunder, require STARFIRE to post security in form and amount
reasonably satisfactory to CITY or cause such liens to be released by any means CITY
deems proper, including payment in satisfaction of the claim giving rise to the lien.
STARFIRE shall pay to CITY upon demand any sum paid by CITY to remove the liens.
Further, STARFIRE agrees that it will save and hold the CITY harmless from any and all
loss, cost, or expenses based on or arising out of the asserted claims or liens, except those
of the lender, against this Agreement or against the right, title, and interest of the CITY in
the PREMISES and the PARK or under the terms of this Agreement, including
reasonable attorney's fees and costs incurred by CITY in removing such liens, and in
enforcing this paragraph. Additionally, it is mutually understood and agreed that this
paragraph is intended to be a continuing provision applicable to future repairs and
improvements after the initial construction phase.
6.10 Insurance and Indemnification Requirements During Construction.
6.10.1 Indemnification Hold Harmless
STARFIRE shall require its construction contractors and subcontractors to
defend, indemnify and hold the CITY, its officers, officials, employees and volunteers
harmless from any and all claims, injuries, damages, losses or suits including attorney
fees, arising out of or in connection with the performance of this Agreement, except for
injuries and damages caused by the sole negligence of the CITY.
6.10.2 Commercial General Liability Insurance
STARFIRE shall require its construction contractors to procure and maintain, for
the duration of construction of the facility, insurance against claims for injuries to persons
or damage to property, which may arise from or in connection with the performance of
Page 14 of 31
the work hereunder by the construction contractors and subcontractors, their agents,
representatives, employees or subcontractors. All said policies shall name the City of
Tukwila as an additional named insured and shall include a provision prohibiting
cancellation or reduction in the amount of said policies except upon thirty (30) days prior
written notice to the CITY. STARFIRE shall require its construction contractors to
maintain minimum commercial general liability insurance limits of no less than
$1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products
completed operations aggregate limit.
STARFIRE shall require its construction contractors to procure and maintain, for
the duration of construction of the facility, Builders Risk insurance covering interests of
the CITY and the construction contractor in the work. Builders Risk insurance shall be
on a all -risk policy form and shall insure against the perils of fire and extended coverage
and physical loss or damage including flood and earthquake, theft, vandalism, malicious
mischief, collapse, temporary buildings and debris removal. This Builders Risk
insurance covering the work will have a deductible of $5,000 for each occurrence, which
will be the responsibility of the construction contractor. Higher deductibles for flood and
earthquake perils may be accepted by the CITY upon written request by STARFIRE and
written acceptance by the CITY. Any increased deductibles accepted by the CITY will
remain the responsibility of the construction contractor. The Builders Risk insurance
shall be maintained until final acceptance of the work by STARFIRE. STARFIRE shall
require its construction contractors to maintain Builders Risk insurance in the amount of
the completed value of the project with no coinsurance provisions.
AGREEMENT
50367676 02
6.10.3 Builders Risk Insurance
6.10.4 Subcontractors
STARFIRE shall require its construction contractors to include all subcontractors
as insureds under its policies or shall furnish separate certificates and endorsements for
each subcontractor. All coverages for subcontractors shall be subject to all of the same
insurance requirements as stated herein for the construction contractor.
6.10.5 Verification of Coverage
STARFIRE shall furnish the CITY with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the additional insured
endorsement, evidencing the Commercial General Liability insurance of the construction
contractor before commencement of the work. Before any exposure to loss may occur,
STARFIRE shall file with the CITY a copy of the Builders Risk insurance policy that
includes all applicable conditions, exclusions, definitions, terms and endorsements related
to this project.
Page 15 of 31
AGREEMENT
503676!6.01
Article 7. FINANCING SECURITY INTERESTS
7.1 Financing No CITY Obligation.
STARFIRE shall be solely responsible for all financing requirements for all
construction, maintenance, repairs, or subsequent improvements to the PREMISES. The
CITY shall be under no obligation directly or indirectly to pay for any labor, material, or
improvement associated with the PREMISES except as provided herein or mutually
agreed upon. STARFIRE shall, in applying and obtaining financing, inform any lender
that the CITY has no financial obligations associated with the construction, maintenance,
repairs or subsequent improvements to the PREMISES.
7.2 Mortgages Generally.
STARFIRE, and its successors and assigns, shall have the unrestricted right to
mortgage its interests under this Agreement, subject, however, to the limitations herein.
As used herein, "Leasehold Mortgage" shall include any such mortgage(s) or deed(s) of
trust on the Estate created by this Agreement; "Purchase Money Mortgage" shall include
any Mortgage granted to STARFIRE (or STARFIRE's successors) in connection with the
sale of the interest in this Agreement; and "Estate" shall mean the estate of STARFIRE
created by this Agreement upon and subject to all the terms and conditions of this
Agreement. Any such Mortgage shall be subject to the rights of CITY hereunder in
accordance with all the terms and conditions of this Agreement. In no circumstances and
under no condition shall CITY's fee interest in the PARK be encumbered by, subject to
or subordinate to a Mortgage.
7.3 Security Interest in PREMISES Agreement /Consent.
The CITY consents to the grant, transfer, pledge and assignment of any and all
right, title, claim, interest of STARFIRE in and to this Agreement and in the PREMISES,
and in any building facility, personal property and fixtures in the PREMISES
"Collateral to lender for financing purposes. The CITY shall recognize lender's first
priority security interest in the Collateral and the CITY hereby subordinates any and all
interest of the CITY in said Collateral to lender. STARFIRE acknowledges that the
CITY will not grant any security interest to any lender in CITY real property nor will the
CITY allow any encumbrance of any kind or nature whatsoever upon, or in any manner
on its title to CITY real property. In the event of default by STARFIRE to lender, in
addition to all its rights and remedies available at law and equity, lender may enforce
and /or foreclose its security interest /interests in the Collateral. CITY agrees that in
connection with any such default, and all without further consent of CITY, lender may:
7.3.1 Acquire STARFIRE's interest in the Collateral either by a deed
in lieu of foreclosure or actual foreclosure;
Page 16 of 31
7.3.2 Rent and /or grant a ground and use concession of the
PREMISES subject to this Agreement pending foreclosure of the Collateral by lender;
7.3.3 Assign, sell and /or transfer the Collateral in whole or in part to
any person or entity;
7.3.4 Take possession of any or all of the Collateral, obtain right of
substitution for STARFIRE and operate said Collateral; and /or
The CITY acknowledges that STARFIRE, in making application for financing,
may be required to have an assurance that the terms of this Agreement will extend
beyond the term of the financing term. By its signature to this Agreement, the CITY
confirms its authority to provide the forty (40) year Agreement term conditioned solely
upon STARFIRE maintaining current payments and remaining in full compliance with
the terms and conditions of this Agreement. Additionally, the CITY acknowledges that,
after any original financing commitments by STARFIRE have been satisfied, these
financing provisions shall be applicable to all future advances or financing required by
STARFIRE and used solely for the improvements and repairs of the PREMISES.
AGREEMENT
50367616 02
7.3.5 Appoint a receiver.
7.4 LENDER's Reliance on Term.
7.5 Surrender of the Collateral.
No surrender of Collateral or the PREMISES subject to this Agreement or any
other act of STARFIRE shall be deemed to terminate this Agreement. CITY will not
terminate this Agreement voluntarily by agreement with STARFIRE unless lender has
been previously notified in writing and has consented to the termination in writing. This
Agreement shall not be amended or modified unless lender has been previously notified
in writing and has consented to such amendment or modification in writing.
7.6 Notice of Default and Lender's Rights.
7.6.1 Notice of Default
If STARFIRE defaults under this Agreement or if any event occurs which would
give CITY the right to terminate, modify, amend or shorten the term of this Agreement,
CITY shall take no steps to exercise any right it may have under this Agreement without
first giving lender written notice of such default in accordance with Article 7.12 below.
A copy of each and every notice of default served or sent by CITY or its agent to or upon
STARFIRE pursuant to this Agreement shall be sent contemporaneously to lender in
accordance with Article 7.12 below. Such notice of default shall specify the event or
events of default then outstanding and the time period at the end of which the indicated
action would become effective.
Page 17 of 31
If the notice of default given by CITY to lender relates to a monetary default and
STARFIRE has not cured such monetary default within thirty (30) days after lender
receives the notice and STARFIRE's failure to cure results in CITY desiring to terminate
this Agreement, CITY may terminate this Agreement if such monetary default is not
cured by either STARFIRE or lender within forty -five (45) days after lender receives the
notice of default.
If the notice of default given by CITY to lender relates to a non monetary default
and STARFIRE has not cured, or diligently pursued curing, such non monetary default
within thirty (30) days after lender receives the notice, CITY shall take no action to
terminate this Agreement if:
a. Within sixty (60) days after CITY's notice to lender regarding STARFIRE's
failure to cure (or failure to diligently pursue a cure) lender notifies CITY of its
intent to realize upon its security interest and commences realization within sixty
(60) days thereafter, and diligently pursues realization; and
b. Lender pays CITY at time of notification all monies or performances due that
may be in default up to the day lender notifies CITY of lender's intent and further
pays or performs all consideration that accrues during the period after lender so
notifies CITY and completes such other performances that may be required or
come due under this Agreement.
CITY shall not terminate this Agreement because of STARFIRE's breach of any terms of
this Agreement relating to the solvency of STARFIRE or the institution of any
bankruptcy, insolvency, receivership or related action by or against STARFIRE as long
as lender cures any default under this Agreement by STARFIRE as provided herein,
except that lender shall not be required to cure any defaults relating to solvency of
STARFIRE.
Lender shall have the right to assign its interest in the Collateral. Upon the
purchaser's, assignee's or transferee's assumption and agreement to perform and be
bound by all of the terms of this Agreement, lender shall be relieved from further liability
under this Agreement. If a lender finances the purchaser, assignee or transferee, said
lender shall be subject to all obligations as set forth in this Agreement.
7.8 Disposition of Insurance.
Should the Collateral suffer any loss which is covered by casualty insurance, and
the insurance proceeds are used to restore any improvements made by STARFIRE, CITY
AGREEMENT
50367676.02
7.6.2 Termination for Monetary Default
7.6.3 Termination for Non Monetary Default
7.7 Right to Assign.
Page 18 of 31
agrees that STARFIRE and lender shall have the right to such proceeds so long as none
of CITY'S property, utilities or other services therein are damaged or such damages are
repaired. In the event the CITY's land is substantially damaged and STARFIRE's
improvements have been repaired, CITY shall only participate in the insurance proceeds
to the extent necessary to repair and restore CITY's land and any of CITY'S
improvements on or in the ground to the same condition the land was at the
commencement of this Agreement, or in the same condition at the time of the casualty.
Other than as described herein, CITY shall have no claim to insurance proceeds that are
attributable to STARFIRE's interest in the Collateral.
7.9 Right to Participate in Litigation.
Lender shall have the right to participate in any litigation, arbitration or dispute
directly affecting the Collateral or interest of STARFIRE or lender therein, including,
without limitation, any suit, action, arbitration proceeding, condemnation proceeding or
insurance claim. CITY, upon instituting or receiving notice of any such litigation,
arbitration or dispute will promptly notify lender of the same.
7.10 Incorporation of Lender's Protection Provisions.
Lender shall be a beneficiary of all rights of STARFIRE herein including but not
limited to the warranty, indemnity, hold harmless, choice of law and venue, costs and
attorney's fees as provided herein.
7.11 Right to Remove Collateral.
In the event lender exercises its rights under its Collateral and realizes upon the
Collateral, CITY agrees that lender is entitled to remove the Collateral, including but not
limited to building facility, furniture, movable trade fixtures and equipment, from the
PREMISES at any reasonable time and that the Collateral shall remain personal property
even though the trade fixtures may he affixed to or placed upon the PREMISES. In the
event lender so realizes on its Collateral, CITY waives any right, title, claim, lien or
interest in the Collateral.
7.12 Notices.
All notices, copies of notices, consents or other communications to lender given
under this Agreement to lender must be in writing and shall be effective when received.
Such communications shall be given in person to an officer of lender, addressed to lender
at an address as provided by lender.
AGREEMENT Page 19 of 31
50167676
Article 8. TERMINATION
8.1 Failure to Perform.
8.1.1 Obligation to Perform
Nothing herein shall imply any duty upon CITY to do any work, which under any
provision of this concession STARFIRE may be required to perform, and the
performance thereof by CITY shall not constitute a waiver of STARFIRE's default.
CITY shall not in any event be liable for inconvenience, annoyance, and disturbance in
its activities in the PARK, however shall not permit a loss of business, or other damage to
STARFIRE by reason of its actions pertaining to the PARK.
8.1.2 Payments to Other Parties
Except as otherwise expressly provided hereunder, all obligations of STARFIRE
under this Agreement will be performed by STARFIRE at STARFIRE's sole cost and
expense. If STARFIRE fails to pay any sum of money owed to any party other than
CITY for which STARFIRE is liable hereunder, or if STARFIRE fails to perform any
other act on its part to be performed hereunder, and such failure continues for ten days
after notice thereof by CITY, CITY may, without waiving or releasing STARFIRE from
its obligations, make any such payment or perform any such other act to be made or
performed by STARFIRE. STARFIRE shall pay CITY, on demand, all sums so paid by
CITY and all necessary incidental costs, together with interest thereon at the lesser of 11/2
percent per month or the maximum rate permissible by law, from the date of such
payment by CITY.
CITY will not be in default unless CITY fails to perform an obligation within
sixty (60) days after notice by STARFIRE, which notice must specify the alleged breach;
provided that if the nature of CITY's obligation is such that more than sixty (60) days are
reasonably required for cure, then CITY will not be in default if CITY commences to
cure within sixty (60) days of STARFIRE's notice and thereafter diligently pursues
completion and completes performance within a reasonable time.
The occurrence of any one or more of the following events constitutes a default
under this Agreement by STARFIRE: (1) STARFIRE shall be in default of the
performance of any covenants, conditions, or provisions of this Agreement, other than the
covenants for the payment of consideration required by this Agreement, where such
failure continues for a period of sixty (60) days after written notice is given by CITY
provided that if the nature of STARFIRE's obligations is such that more than sixty (60)
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50362676.02
8.2 Default.
8.2.1 CITY's Default
8.2.2 STARFIRE's Default
Page 20 of 31
days are reasonably required for cure, STARFIRE will not be in default if STARFIRE
commences to cure within sixty (60) days of CITY'S notice and thereafter diligently
pursues completion and completes performance within a reasonable time; or (2)
STARFIRE shall be adjudged a bankrupt, make a general assignment for the benefit of
creditors, or take the benefit of any insolvency act, or if a permanent receiver and trustee
in bankruptcy shall be appointed for STARFIRE's estate and such appointment is not
vacated within sixty (60) days; or (3) PREMISES become vacant or deserted for a period
of sixty (60) days; or (4) if this Agreement shall be assigned or the PREMISES sublet
other than in accordance with the terms of this AGREEMENT and such default is not
cured within thirty (30) days after written notice to STARFIRE; or (5) STARFIRE shall
fail to make any payment when due, or fail to make any other payment required
hereunder when due, when that failure is not cured within thirty (30) days after mailing of
written notice thereof by CITY.
8.2.3 Default for Other Cause
This Agreement may be immediately terminated for other cause by a party if the
other party substantially fails to perform its obligations under this Agreement, through no
fault of the terminating party, and the non performing party does not commence
correction of the failure of performance within sixty (60) days of the terminating party's
sending notice to the non performing party.
8.3 Remedies Are Cumulative.
Remedies under this Agreement are cumulative; the failure to exercise on any
occasion any right shall not operate to forfeit such remedy.
AGREEMENT
5036767602
8.4 Destruction of PREMISES Use of Insurance Proceeds.
8.4.1 Unless otherwise mutually agreed by the PARTIES, in the event
the PREMISES are destroyed or injured by fire, earthquake, or other casualty, then
STARFIRE shall proceed to rebuild and restore the PREMISES, or such part thereof as
may be injured as aforesaid. In the event of any loss covered by the insurance policies
described and required pursuant to Article 9.5.1 herein, unless this Agreement shall be
terminated as provided herein, the proceeds of such insurance policies shall be used by
STARFIRE first to rebuild and restore the PREMISES and replace the improvements,
fixtures, and equipment, which may be damaged or destroyed by such casualty.
8.4.2 Notwithstanding the forgoing, in the event the PREMISES are
destroyed by fire, earthquake or other casualty STARFIRE may elect to restore the
PREMISES to a condition equivalent to or better than existed as of the EFFECTIVE
DATE, and terminate the AGREEMENT without further obligation except as otherwise
provided in this Agreement.
Page 21 of 31
8.6 Eminent Domain.
8.5 Duties upon Termination.
Upon termination of this agreement, and unless otherwise arranged, STARFIRE
shall remove from the PARK all its personal property, goods, and effects. In the event
that STARFIRE fails to perform this duty at termination, the CITY may cause such
removal to be made and said personal property, goods, and effects to be stored, the cost
and expense to be paid by STARFIRE. It is mutually understood and agreed that the real
property constituting the PREMISES of this Agreement is the real property of the CITY
and that all improvements to said real property shall revert to the CITY at the termination
of this Agreement.
The following rules shall govern the rights and duties of the PARTIES in the
event of interference with STARFIRE's use on possession of the PREMISES as a result
of the exercise of eminent domain or private purchase in lieu thereof.
8.6.1 Rights of Termination
If the whole of the PREMISES shall be taken for any public or quasi public use
under any statute or by right of eminent domain, or by private purchase in lieu thereof,
then this Agreement shall automatically terminate as of the date that title shall be taken.
If more than twenty -five percent (25 of the PREMISES shall be so taken and if the
taking renders the remainder thereof unusable for the purposes for which the PREMISES
were concessioned, then CITY and STARFIRE shall each have the right to terminate this
Agreement on thirty (30) days notice to the other given within ninety (90) days after the
date of such taking. Provided, however, that if the CITY is exercising its rights of
eminent domain, a fair value shall be placed on this Agreement and the PREMISES with
the compensation thereof awarded solely to STARFIRE, or lender pursuant to its security
interest, if any.
8.6.2 Non Termination
If any part of the PREMISES shall be so taken and this Agreement is not
terminated, then the CITY shall, at its own cost and expense, restore the remaining
portion of the PREMISES to the extent necessary to render it reasonably suitable for the
purposes for which it was concessioned.
8.6.3 Compensation
The compensation awarded or paid upon such a total or partial taking of the
PREMISES and /or this Agreement shall belong to and be apportioned between the CITY
and STARFIRE in accordance with their respective interests under this Agreement as
determined by a court of competent jurisdiction. Additionally, STARFIRE may prosecute
any claim directly against the condemning authority for the costs of removal of the
goodwill, stock, trade fixtures, furniture and other personal property belonging to
AGREEMENT Page 22 of 31
50160676.02
STARFIRE. CITY shall have no claim to condemnation proceeds that are attributable to
STARFIRE's interest in the Collateral, nor shall lender have any interest in CITY's
condemnation proceeds, if any.
Article 9. GENERAL CONDITIONS
9.1 Relationship of PARTIES.
9.1.1 Independent Status
The PARTIES intend that an independent relationship shall be created by this
Agreement. Nothing contained herein shall create the relationship of principal and agent
or of partnership or of joint venture between the parties hereto, and neither the method of
computation of consideration nor any other provision contained herein shall be deemed to
create any relationship between the parties hereto other than the relationship of CITY as
granting a ground and use concession to STARFIRE. STARFIRE has the experience,
ability, and resources to develop and operate the FACILITIES and is performing
independent functions and responsibilities within its field of expertise. STARFIRE, its
personnel and agents are independent contractors and not employees of the CITY. No
agent, employee, servant, or representative of STARFIRE shall be deemed to be an
employee, agent, servant or representative of the CITY. STARFIRE and its personnel
have no authority to bind the CITY or to control the CITY's employees. As an
independent contractor, STARFIRE is responsible for its own management. The CITY's
administration and enforcement of this Agreement shall not be deemed an exercise of
managerial control over STARFIRE or its personnel.
9.1.2 No Third Party Rights Created
It is mutually understood and agreed that this Agreement is solely for the benefit
of the PARTIES hereto and gives no right to any other party except as provided by
Article 7 herein.
It is mutually understood and agreed that no joint venture or partnership is formed
as a result of this Agreement.
Except as provided in Article 7 herein, any notice required or permitted hereunder
must be in writing and will be effective upon the earlier of personal delivery or three days
after being mailed by certified mail, return receipt requested, addressed to STARFIRE or
to CITY at the address for that party designated herein. Either party may specify a
different address for notice purposes by written notice to the other, except that CITY may
in any event use the PREMISES as STARFIRE's address for notice purposes. All notices
shall be delivered to the following addresses:
AGREEMENT
50367676.02
9.1.3 Joint Venture /Partnership
9.2 Notices.
Page 23 of 31
When requested by the CITY, STARFIRE shall furnish periodic reports and
documents on matters covered by this Agreement. The reports and documents shall be
furnished in the time and form requested. STARFIRE shall maintain accounting records
in accordance with Generally Accepted Accounting Principles (GAAP) for non profit
entities.
STARFIRE shall possess a current Tukwila Business License and shall obtain all
regulatory licenses and permits, including all construction and building permits,
necessary to fulfill STARFIRE's obligations under this Agreement at STARFIRE's sole
expense. Each party agrees to execute such additional or other documents as may be
required to fully implement the intent of this Agreement.
AGREEMENT
50367676.02
CITY Address
City of Tukwila
Attn: City Administrator
6200 Southcenter Boulevard
Tukwila, WA 98188
9.3 Reports Information.
9.4 Permits, Licenses, Taxes, Fees.
9.4.1 Permits, Licenses, Other Documents
9.4.2 Taxes Fees
STARFIRE Address
Starfire Sports
Attn: Christopher Slatt
P.O. Box 48299
Burien, WA 98148 -0299
As an independent contractor, STARFIRE shall be solely responsible for all taxes,
fees and charges incurred, including but not limited to license fees, business and
occupation taxes, workers' compensation and unemployment benefits, all federal, state,
regional, county and local taxes and fees, including income taxes, property taxes, permit
fees, operating fees, surcharges of any kind that apply to any and all persons, facilities,
property, income, equipment, materials, supplies or activities related to STARFIRE's
obligations under this Agreement.
9.4.3 Leasehold Excise
CITY shall be responsible for payment of leasehold excise tax, if any, under this
Agreement.
9.4.4 Admissions Tax
The CITY acknowledges that STARFIRE, as a non profit entity, is not subject to
the CITY's admissions tax. In the event the CITY's admissions tax is made applicable to
non -profit entities, including STARFIRE, all amounts collected and paid by STARFIRE
Page 24 of 31
to CITY as admissions taxes shall be a credit against (i.e., deducted from) amounts
otherwise payable by STARFIRE to CITY under this Agreement.
9.5 Insurance.
9.5.1 Fire, Earthquake, Casualty Insurance
STARFIRE agrees that, at all times during the full term of this Agreement and at
its own expense, STARFIRE shall, at its sole cost and expense, maintain in full force and
effect adequate fire, flood, earthquake, and other casualty coverage covering the
PREMISES and its contents, including all personal property, fixtures, and improvements.
Such policy shall include a replacement cost endorsement. STARFIRE shall obtain and
file with the CITY's Risk Manager a Certificate of Insurance evidencing such coverage.
All such insurance coverage shall include a thirty -day cancellation notice to STARFIRE
and the CITY. Adequacy of coverage is defined as insurance sufficient to restore the
PREMISES to its pre casualty condition.
9.5.2 Liability Insurance
Prior to the commencement date of this Agreement, STARFIRE, at its own
expense shall obtain and file with the CITY's Risk Manager a Certificate of Insurance
evidencing commercial general liability insurance coverage "CGL providing coverage
of at least $1,000,000 per occurrence and $1,000,000 general aggregate. This Certificate
of Insurance shall be subject to approval by the CITY's Risk Manager as to company,
terms and coverage, and said approval shall not be unreasonably withheld. The CGL
shall name the CITY as an additional insured and must fully protect the CITY from any
and all claims and risks and losses in connection with any activities or omissions by
STARFIRE by virtue of this Agreement. The CGL policy shall remain in full force and
effect at STARFIRE's sole expense for liability for property damage or personal injury
that may occur in connection with activities or omissions by STARFIRE, and provide
coverage for the full term of this Agreement. STARFIRE shall insure that the CITY's
Risk Manager is given thirty calendar days prior written notice, by certified mail, of any
cancellation, lapse, reduction or modification of such insurance.
AGREEMENT
50367676 02
9.5.3 Release and Waiver of Subrogation
Any policy of insurance carried by either CITY or STARFIRE pursuant to any
obligation under this Agreement, shall, to the extent available, contain a waiver of
subrogation clause on the part of the insurer. Such waiver shall apply to damages to
adjacent property. Notwithstanding any other provision of this Agreement, neither CITY
nor STARFIRE shall be liable to the other party or to any insurance company (by
subrogation or otherwise) insuring the other party for any loss or damage to any building,
structure or tangible personal property of the other occurring in or about the PREMISES
or PARK, even though such loss or damage might have been occasioned by the
negligence of such party, its agents or employees, if such loss or damage is covered by
property insurance issued by an insurance carrier authorized or licensed by the Insurance
Page 25 of 31
Commissioner of the State of Washington to issue lines of insurance, benefiting the party
suffering such loss or damage or was required under the terms of this Agreement to be
covered by insurance by the party covering the loss.
Each party hereto agrees to be responsible and assumes liability for its own
wrongful or negligent acts or omissions, or those of its officers, agents, or employees to
the fullest extent required by law. Each party agrees to save, indemnify, defend, or hold
the other party harmless against all liability, loss, damages, and expenses, including costs
and attorney's fees, resulting from actions, claims and lawsuits arising or alleged to have
arisen, in whole or in part, out of or in consequence of the acts or failures to act of the
other party, its employees, its subcontractors, its agents, or its assigns, which arise in any
way out of the performance of this Agreement. In the case of negligence of both the
CITY and STARFIRE, any damages allowed shall be levied in proportion to the
percentage of negligence attributable to each party, and each party shall have the right to
seek contribution from the other party in proportion to the percentage of negligence
attributable to the other party.
AGREEMENT
50167676.02
9.6 Hold Harmless, Indemnification, Industrial Insurance
9.6.1 Hold Harmless Indemnification
9.6.2 Industrial Insurance
The PARTIES have specifically negotiated STARFIRE's waiver of its immunity
under Title 51 RCW, which is hereby waived for purposes of STARFIRE's
indemnification and hold harmless of the CITY, including the duty to defend. This
provision shall be inapplicable to the extent such action, claim, or lawsuit is judicially
found to arise solely from the acts or failures to act of the CITY.
9.7 Successors Assigns.
9.7.1 The CITY and STARFIRE each agree to be bound to the other
party in respect to all covenants, agreements, and obligations contained in this
Agreement. Except as provided in Article 7 and 9.7.2 herein, neither party shall assign
the Agreement in part or as a whole, without the written consent of the other. Except as
provided in Article 4.8 herein, STARFIRE shall not sublease any of the PREMISES,
without written notice to and approval of the CITY.
9.7.2 The CITY acknowledges that STARFIRE is authorized under
this Agreement, without further CITY approval, to enter into space leases, rental
agreements, and /or grant sub concessions within the PREMISES for individual facility
operations; food and beverage services; athletic equipment operation, sales and service;
and, similar supporting concessions consistent with Section 4.12.1.
9.7.3 When requested, approval by the CITY of a subcontract or
assignment shall not be unreasonably withheld.
Page 26 of 31
9.7.4 In the event of an assignment, subcontracting, or delegation of
duties, STARFIRE shall remain responsible for the full and faithful performance of this
Agreement and the assignee, subcontractor, or other obligor shall also become
responsible to the CITY for the satisfactory performance of the services, facilities, or
equipment assumed. The CITY may condition approval upon the delivery by the
assignee, subcontractor, or other obligor of its covenant to the CITY to fully and
faithfully complete the requirements or responsibility undertaken under this Agreement.
9.7.5 Notwithstanding the foregoing, provided STARFIRE is not in
default, STARFIRE may assign its interest in this Agreement without seeking CITY's
consent to a parent or subsidiary. Except as otherwise provided herein, all of the
covenants, conditions, and provisions of this Agreement are binding upon and inure to
the benefit of the PARTIES and their respective heirs, personal representatives,
successors, and assigns.
9.8 Bankruptcy.
9.10 Nondiscrimination.
Except as provided in Article 7 herein, PARTIES agree that if STARFIRE is
adjudged bankrupt, either voluntarily or involuntarily, then this AGREEMENT, at the
option of the CITY, may be terminated effective on the day and at the time the
bankruptcy petition is filed.
9.9 Compliance with Laws.
STARFIRE, its officers, employees, and agents shall comply with applicable
federal, state, county, and local laws, statutes, rules, regulations, and ordinances, in
performing its obligations under this Agreement. Such compliance shall include abiding
by all applicable federal, state and local policies to ensure equal employment opportunity
based on ability and fitness to all persons regardless of race, creed, color, national origin,
religion, sex, physical handicaps or age. STARFIRE shall comply with applicable laws
pertaining to employment practices and employee treatment. Conditions of the Federal
Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety
and Health Act of 1973 (WISHA), and standards and regulations issued under these Acts
must be complied with. STARFIRE agrees to indemnify and hold harmless the CITY
from all damages assessed for STARFIRE's failure to comply with the Acts and
Standards issued thereunder. STARFIRE is also responsible for meeting all pertinent
local, state and federal health and environmental regulations and standards applying to
any operation in the performance of this Agreement.
PARTIES shall not discriminate in employment or services to the public on the
basis of race, color, national origin, sex, religion, age, marital status, or disability, except
for employment actions based on bona fide occupational qualification.
AGREEMENT Page 27 of 31
50367676.02
This Agreement shall be interpreted according to the laws of the State of
Washington. Any judicial action to resolve disputes arising out of this Agreement shall
be brought in King County Superior Court.
9.11 Choice of Law Venue.
9.12 Costs Attorneys' Fees.
In any action brought to enforce any provision of this Agreement, including
actions to recover sums due or for the breach of any covenant or condition of this
Agreement, or for the restitution of the PREMISES to the CITY or eviction of
STARFIRE during the term or after expiration thereof, the substantially prevailing party
shall be entitled to recover from the other party all reasonable costs and reasonable
attorney's fees incurred, including the fees of accountants, appraisers, and other
professionals, at trial or on appeal, and without resort to suit.
9.13 Modification.
This Agreement may only be modified by written instrument signed by both
PARTIES.
9.14 Change in Law /Renegotiation.
The PARTIES agree that changes in federal, state or local laws or regulations that
materially modify the terms and conditions of the Agreement and result in a detrimental
change in circumstances or a material hardship for either party in performing this
Agreement may be the subject of a request by a requesting party to renegotiate this
Agreement or negotiate Agreement amendments and the responding party agrees to
renegotiate fairly with the requesting party.
Provided that all other requirements of this Agreement are met, any party shall not
be deemed to be in default and shall not be liable for failure to perform under this
Agreement if that party's performance is prevented or delayed by acts of God including
landslides, lightning, forest fires, storms, floods, freezing and earthquakes, civil
disturbances strikes or labor interference, acts of the public enemy, wars, blockades,
public riots, breakage, explosions, accident to machinery, equipment or materials,
unavailability of required materials, governmental restraint or other causes, whether of
the kind enumerated or otherwise, which are not reasonably within the control of that
obligated party "Force Majeure"). If as a result of a Force Majeure event, an obligated
party is unable wholly or partially to meet its obligations under this Agreement, it shall
give the other party promptly written notice of the Force Majeure event, describing it in
reasonable detail. The obligated party's obligations under this Agreement shall be
suspended, but only with respect to the particular component of obligations affected by
the Force Majeure and only for the period during which the Force Majeure exists.
AGREEMENT
50367676.02
9.15 Force Majeure.
Page 28 of 31
9.16 Waiver.
Failure to enforce any provision of this Agreement shall not be deemed a waiver
of that provision. No waiver of any right or obligation of either party hereto shall be
effective unless in writing, specifying such waiver, executed by the party against whom
such waiver is sought to be enforced. Waiver of any right or power arising out of this
Agreement shall not be deemed waiver of any other right or power.
9.17 Illegal Provisions Severability.
Should any part of this Agreement be found void, illegal, or unenforceable, the
balance of the Agreement shall remain in full force and effect.
9.18 Article Headings, Gender, Number.
Article paragraph headings are not to be construed as binding provisions of this
concession; they are for the convenience of the PARTIES only. The masculine,
feminine, singular and plural of any word or words shall be deemed to include and refer
to the gender and number appropriate in the context.
9.19 Entire Agreement.
This Agreement and its Exhibits constitutes the entire agreement between the
PARTIES, and the PARTIES acknowledge that there are no other agreements, written or
oral, that have not been set forth in the text of this Agreement.
9.20 Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
9.21 Recording.
Upon the execution of this Agreement the CITY will cause this Agreement to be
recorded with the land use records of King County, Washington.
IN WITNESS WHEREOF, this Agreement has been entered into between the
City of Tukwila and Starfire Sports as of the 1 day of March, 2003.
AGREEMENT Page 29 of 31
50167676 02
STARFIRE SPORTS
a not for profit Washington corporation
Bv:
APPROVED AS TO FORM:
City Attorney
ATTEST:
LIST OF EXHIBITS
Exhibit A Description of PREMISES
Exhibit B Preliminary Building and Site Plans
Exhibit C Starfire Sports FACILITIES
Exhibit D Legal Description of PARK
AGREEMENT
50367676.03
Page 30 of 31
Christopher G. Slatt, Chairman Ypres Pd
CITY OF TUKWILA
a Washington municipal corporation
Steven M. Mullet, Mayor
STATE OF WASHINGTON
ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that STEVEN M. MULLET is
the person who appeared before me, and said person acknowledged that she signed this
instrument, on oath stated that vas authorized to execute the instrument and
acknowledged it as the Mayor o the CITY OF TUKWILA to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument.
Given under my1}antl•3rndpfticial seal this (221) day o
c ap1NIS r..
At 'w 5 g10N i l' I I r
4 tiOTAR Y 9 �n;
:o
i OF W A
STATE OF WA N%444 N
ss.
COUNTY OF KING
ar
On this 2.0 day of C A. 20Q4before rr, c mp t earec e6r
CHRISTOPHER G. SLATT, to me known to a e the CHAIRMANof STA FIRE
SPORTS, a not for -profit Washington corporation, that executed the within and
foregoing instrument and acknowledged the 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 he was authorized to execute and in fact executed said instrument on behalf of
the corporation.
Given underlaz,11,Qtd and official
=i, ENNIS 0,rr
'�g*iia 9iy 1t
i o NOTARY y i i
Type /Print Name' M'(2 g1 /1)1 S <-H oIJ
Notary Public in and for the
State of Washington residing at
My Commission expires
AGREEMENT Page 31 of 31
50160676.02
seal this od day of ,Lr°4.2166 2003.
Type /Print Namep/ y7L16 thV 13 e l
Notary Public in and for the
State of Washington residing at
My Commission expires 2
2003.
The PREMISES consist of the FACILITIES (as defined at Exhibit C) and exterior
landscaping but does not include the fee ownership of the PARK real property (see
Exhibit D) upon which the PREMISES are located, and as more particularly described as
follows:
THE PREMISES SHALL BE THAT PORTION OF THE REAL PROPERTY
DESCRIBED IN EXHIBIT D TO THE AGREEMENT BETWEEN CITY AND
STARFIRE (EFFECTIVE MARCH 1, 2003, "AGREEMENT AS MORE
PARTICULARLY SHOWN IN EXHIBIT B TO THE AGREEMENT AS THAT
PROPERTY WITHIN THE DASHED LINES AND MORE GENERALLY
DESCRIBED IN SAID EXHIBIT B AS "SOFTBALL COMPLEX," "STARFIRE
ATHLETIC CENTER, [TOGETHER WITH] FIELDS 1,2,3 AND 4," AND FIELDS
5,6 AND 7."
CITY AND STARFIRE AGREE THAT A MORE COMPLETE DESCRIPTION OF
THE PREMISES SHALL BE DEVELOPED AND ADDED TO THIS EXHIBIT A, AS
NECESSARY TO IMPLEMENT THE AGREEMENT AND UPON REQUEST BY
EITHER PARTY.
AGREEMENT
50361676.02
EXHIBIT A
Description of PREMISES
Exhibit A
Exhibit 'B' Preliminary
Building Site Plan
S1ARFIRE FACILITY BOUNDARY
A tt
O
7/
r
AGREEMENT
50367676.02
GREEN RNE1
LEVEE
SOFIRALL COURID(
1MINIENANCE FACIUTIES
XISnNG
ACCESS
9RIDGE
ACCESS
BRIDGE
GREEN RNER
GREEN RNE
LEVEE
L%ISItNL
r,RANOS1ANn5 Ti
-4
Exhibit B
AGREEMENT
5036]67602
EXHIBIT C
STARFIRE SPORTS FACILITIES
The FACILITIES will be comprised of 13 athletics fields, consisting of an athletic center
building housing two indoor soccer fields, and associated facilities, one outdoor soccer
stadium field, six outdoor soccer fields, and four or more softball fields and other athletic
and recreational facilities that may be developed in conjunction therewith.
The FACILITIES may provide on the PREMISES for a range of field sports and
community events, including but not limited to soccer, softball and baseball, rugby,
lacrosse, and cricket.
Exhibit C
Filed For Record At Request Of
AFTER RECORDING RETURN TO:
King County
Asset Management Section
ADM -ES -0500
500 King County Admin. Bldg.
500 Fourth Avenue
Seattle, WA 98104
Grantor
Grantee
Legal
Tax Acct
The Grantor, KING COUNTY, a political subdivision of the State of Washington, for and in
consideration of mutual benefits, pursuant to King County Ordinance No. 14550, does hereby
bargain, sell, and convey unto the CITY OF TUKWILA, a municipal corporation of the State of
Washington, the following described lands, situate in King County, Washington, and referred to
herein as the "Property
FORT DENT PARK
Tax Account No. 132304 -9080
A tract of land in the SW 1/4 of Section 13, Township 23 North, Range 4 East,
W.M., in King County, Washington, described as follows: Commencing at the
S.W. comer of said Section 13; thence N. 29 °51' W. 114.7 feet; thence N. 66 °21'
E. 153.9 feet; thence S. 66'57' E. to a point on the Easterly margin of the
Chicago, Milwaukee, St. Paul Pacific Railroad Co. right of way and the true
point of beginning; thence Northeasterly along said Easterly margin of the
Chicago, Milwaukee, St. Paul Pacific Railroad Co. right of way 108 feet, more
or less, to a point on the Southerly margin of Tract 33 of Renton Shorelands 2nd
Supplement, records of King County, Washington; thence Easterly along said
Southerly margin of Tract 33, 33 feet, more or less, to the Westerly margin of
County Road No. 8 (known as Monster Road); thence Southeasterly along said
Westerly margin of County Road No. 8, 104 feet, more or less, to a point which
bears N.74 °13'19" E. from a point within said tract of land which is located on the
Southerly margin of a permanent easement recorded under King County
Auditor's File No. 7202010402 and granted to King County for the P -1 Drainage
Page 1 of
AGREEMENT
50367616 02
EXHIBIT D
Legal Description of PARK
BARGAIN AND SALE DEED
King County, Washington
City of Tukwila
SW 1/4, Sec. 13, Twp 23 N., Rge 4 E., W.M.
Govt. Lots 1 2, Sec. 23, Twp 23 N., Rge 4 E., W.M.
Govt Lots 1 5, Sec. 24, Twp 23 N., Rge 4 E., W.M.
Tract 36, Second Supplement Map of Renton Shore Lands
Blocks 4-9 12 -17, Gundaker's Interurban Addn.
1323049080, 2323049001, 2423049030 295490 -0426
Exhibit D
Channel, said point being described by Washington State Lambert Grid
Coordinates (North Zone) N 176, 376.52, E 1, 650, 378.61; thence continuing
Southeasterly along said Westerly margin of County Road No. 8 along a curve to
the left having a radius of 300 feet, the center of which bears N. 25 °21'49" E., an
arc distance of 50.74 feet; thence S. 74 °13'19" W. 68.84 feet; thence S.
83 °41'02" W. 60.83 feet; thence along a curve to the right having a radius of
667.96 feet, the center of which bears N.15 °46'41" W. an arc distance of 108.45
feet, more or less, to the Easterly margin of the Chicago, Milwaukee, St. Paul
Pacific Railroad Co. right of way; thence Northeasterly along said Easterly
margin 24 feet, more or less, to the true point of beginning.
SUBJECT TO: 1) Easement in favor of Drainage District No. 1 for flood control
works, as recorded under Recording No. 4717788; 2) Pacific American
Commercial Co. for ingress and egress, as recorded under Recording No.
5833513; 3) Harold R. Iverson and Marion E. Iverson, for ingress and egress, as
recorded under Recording No. 5833514.
Tax Account No. 232304 -9001
All of Government Lots 1 and 2 in Section 23, Township 23 North, Range 4 East,
W.M.; ALSO all that portion of Government Lots 1 and 5 in Section 24, Township
23 North, Range 4 East, W.M., AND all that part of the Lake in Sections 23 and
24 lying West of the right of way of main lines of Chicago, Milwaukee and St.
Paul Railway; ALSO Tract 36, Second Supplement Map of Renton Shore Lands
as shown on the official maps thereof on file in the Office of the Commissioner of
Public Lands at Olympia, Washington.
EXCEPT right of way of Northern Pacific Railway Co.; LESS Coal
Minerals and the right to explore for and mine the same;
TOGETHER WITH and subject to the terms of all easements appurtenant to
the above described property; EXCEPT that certain easement granted to
Pacific American Commercial Co. on the 25th day of July, 1963, by
Container Corporation of America, and recorded in Volume 4616 of Deed,
records of King County, at pages 668, 669 and 670, Auditor's File No.
5833513.
Tax Account No. 242304 -9030
All those parts or portions of Lots 1 and 5, in Section 24, Township 23 North,
Range 4 East, W.M., in King County, Washington, bounded and described as
follows:
Beginning on the West boundary of the RIW of the Burlington Northern, Inc.,
formerly the Northern Pacific Railway Co., at a point which is 550 feet South
and about 100 feet East of the N.W. corner of said Section 24, and running
thence Southeasterly a distance of 300 feet to a point which is distant 70
feet Westerly from, measured at right angles to, said Burlington Northern,
Inc. R/W boundary; thence Southeasterly parallel to and distant 70 feet
Paee 2 of 1—
Westerly from said R/W boundary to White River; thence Easterly along said
White River to said R/W boundary; thence Northwesterly along said West
boundary of Burlington Northern, Inc. R/W to point of beginning.
SUBJECT TO: Restrictions and reservations contained in that certain
Warranty Deed to King County, as recorded under Recording No.
7502100393.
Tax Account No. 295490 -0426
That portion of vacated Blocks 4 to 9, inclusive, and vacated Blocks 12 to 17,
inclusive, of Gundaker's Interurban Addition to Seattle (Vacated), according to
plat recorded in Volume 14 of Plats, page 46, in King County, Washington, and
vacated streets adjoining, more particularly described as follows:
Commencing at Highway Engineer's Station P.O.T. (2M) 127 +75.0 on the
2M -line shown on the State Highway Map of Primary State Highway No. 1
(SR405) Green River Interchange, Sheet 2 of-4 Sheets, established by
Commission Res. No. 1192, February 19, 1962; thence Northeasterly at
right angles of said 2M -line North 30 °27'06" East 284.88 feet; thence
tangent to the preceding course along the arc of a curve to the left having a
radius of 300 feet and a central angle of 08 °19'06 an arc length of 43.56
feet; thence tangent to the preceding curve North 22 °08'00" East 309.43
feet; thence North 30 °35'15" East 60.00 feet to the True Point of Beginning
of the parcel to be described herein; thence, from said True Point of
Beginning from a tangent that bears North 59 °24'45 West along the arc of a
curve to the left having a radius of 60.00 feet and a central angle of
89 °41'29 an arc length of 93.92 feet; thence, North 59 °24'45" West 183.62
feet, more or less, to the bank of the Green River; thence along the bank of
the Green River North 30 °04'58" East 116.17 feet to a point thereon; thence
leaving said bank of the Green River South 37 °36'40" East 137.76 feet;
thence South 55 °24'30" East 50.12 feet; thence South 59 °24'45" East 66.73
feet; thence South 30 °35'15" West 1.82 feet to the True Point of Beginning,
SUBJECT TO: 1) Covenant to bear the cost of construction or repair of
road crossing, easement for which was granted over adjacent property by
instrument, as recorded under Recording No. 5833515, 5990555 and
5990556; 2) Right of the State of Washington in and to that portion, if any, of
the land described which lies below the line of ordinary high water of the
Green River; 3) Any change in the boundary or legal description of the
property due to any shift or change in the course of the Green River; 4)
Rights and easement of the public for commerce, navigation, recreation and
fisheries; and 5) Restrictions on the use of the and resulting from the rights
of the public or riparian owners to use any portion which is now, or has
been, covered by water.
TOGETHER WITH THE FOLLOWING DESCRIBED EASEMENT:
Pave 3 of 7
Grantor hereby assigns all its rights, privileges and obligations, subject to
the approval of such assignment by the State of Washington, in the
easement granted by the State of Washington Department of Natural
Resources on June 19, 1974, attached to this Deed as Exhibit A, for right of
way for the construction, use and maintenance of a county road bridge
upon, over and across the following described shorelands in King County,
Washington, to wit:
Those portions of the shorelands of the second class and bed of the Green
River, owned by the State of Washington, situate in front of Government Lot
1, Section 23, and the W. H. Gilliam D. L. C. in Section 24, Township 23
North, Range 4 East, W.M., included within the limits of a strip 60 feet in
width, having 30 feet of such width on each side of the following described
centerline:
Beginning at a point in said Government Lot 1, which is N 2° 36' 20" W
459.17 feet from the east quarter section corner of said Section 23, running
thence S 59° 24' 11" E 199.9 feet to a point in the W. H. Gilliam D. L. C. No.
41, which is N 22° 57' 22" E 387.65 feet from the west quarter section
corner of said Section 24, and the terminal point of this centerline
description, having an area of 0.18 acre, as shown on the plat thereof on file
in the office of the Commissioner of Public Lands at Olympia, Washington.
Subject, however, to any rights to be acquired pursuant to the provisions of
Chapter 158, Session Laws of 1959.
RESERVED UNTO KING COUNTY WASHINGTON, THE FOLLOWING
DESCRIBED EASEMENTS ON THE PROPERTY:
1) Easement for drainage channel, as recorded under Recording No.
7203020421; 2) Agreement with Burlington Northern, Inc. for operation and
maintenance of a flood control drainage channel, as recorded under
Recording No. 7302060451; 3) Agreement with the State of Washington for
maintenance of a drainage channel, as recorded under Recording No,
7305220394; 4) Aquatic Easement granted by the State of Washington, as
recorded under Recording No. 8006100511; 5) Easement for drainage canal
granted by Burlington Northern, Inc., as recorded under Recording No,
8002110444.
RESERVED UNTO KING COUNTY, WASHINGTON, THE FOLLOWING
DESCRIBED EASEMENT ON THE PROPERTY:
Grantor hereby reserves a permanent utility easement with the following
terms:
A) The County owns Utility facilities located on and under the Property. An
easement for these Utility facilities had been granted to Municipality of Metropolitan
Page 4 of F
Seattle (hereinafter Metro) by document dated July 30, 1962, recorded under King
County Recorder's number 5469169( "Metro Easements Since the granting of the
Metro Easements, the County purchased the Property, and the County and Metro
merged, thereby causing a merger of title between the Property and the Metro
Easements. This Reservation of Easement shall supercede and replace the
language of the Metro Easements.
B) The County's agreement to convey the Property to the City is conditioned
upon the County's reservation of a permanent utility easement.
C) The City and County, by accepting and recording this utility easement
reservation, hereby mutually covenant and agree as follows:
1) The County hereby reserves, for the purposes stated below, a permanent
utility easement over, across, along, in, upon and under the Property referred to as
the Utility Easement Area and more particularly described as follows:
That portion of Government Lots 1 and 5, Section 24, Township 23 North,
Range 4 East, W.M., and Government Lot 2, Section 23, Township 23 North,
Range 4 East, W.M., in King County, Washington, lying within a strip of land
50 feet in width, 25 feet on each side of the following described centerline:
Beginning on the Southwesterly margin of the right of way of the Burlington
Northern, Inc., formerly the Northern Pacific Railway Company, at a point
which is 25 feet Northerly of, measured at right angles to, the Green River;
Thence South 86 °12'08" West 25.43 feet;
Thence North 34 °19'06" West 491.72 feet to Point "A
Thence continuing North 34 °19'06" West 160.39 feet to the beginning of a
tangent curve to the right having a radius of 500 feet;
Thence along said curve a distance of 88.39 feet through a central angle of
10 °07'44" to the beginning of a reverse curve to the left having a radius of 500
feet;
Thence along said curve a distance of 85.73 feet through a central angle of
9 °49'28" to a point of tangency;
Thence North 34 °00'48" West 149.71 feet to the beginning of a tangent curve
to the left having a radius of 500 feet;
Thence along said curve a distance of 48.02 feet through a central angle of
5 °30'08" to a point of tangency;
Thence North 39 °30'56" West 91.35 feet to the beginning of a tangent curve
to the right having a radius of 500 feet;
Thence along said curve a distance of 45.35 feet through a central angle of
5 °11'50" to a point of tangency;
Thence North 34 °19'06" West 739.52 feet;
Thence North 79 °19'06" West 28.67 feet;
Thence North 89 °41'02" West 33.97 feet;
Thence South 67 °48'58" West 173.89 feet to Point "B
Thence continuing South 67 °48'58" West 115.14 feet;
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Thence North 67 °11'02" West 29.91 feet to a point on the centerline of the
Green River Bridge projected Southerly;
Thence Northerly along said projected centerline 10 feet, more or less, to the
Green River, and the terminus of said line.
Together with a strip of land 20 feet in width, the centerline of which is
described as follows:
Beginning at a point South 55 °40'54" West 25 feet from the above described
Point "A";
Thence South 55 °40'54" West 400 feet;
Also together with a strip of land 20 feet in width, the centerline of which is
described as follows:
Beginning at a point South 22 °11 East 25 feet from the above described
Point "8";
Thence South 22 °11'02" East 40 feet
2) The Utility Easement being granted herein is for the purpose of installing,
constructing, operating, maintaining, removing, re- constructing, repairing, replacing
and using sewer pipeline, pipelines, re- claimed water lines or other transmission or
conveyance lines, including but not limited to communication lines or devices and
optic lines with all connections, manholes and appurtenances thereto (hereinafter
collectively referred to as "facilities within the Utility Easement Area, together with
the right of ingress to and egress from said described property for the foregoing
purposes.
3) The term of the utility easement shall be perpetual, and shall be appurtenant
to, be binding upon, and run with the Property.
4) County shall, if the above described Property is disturbed by the
maintenance, removal, repair or replacement of the facilities specified herein, restore
the surface of the above described Property as nearly as possible to the condition in
which it existed at the commencement of said maintenance, removal, repair or
replacement.
5) County shall indemnify, defend and hold harmless City, its elected officials,
staff, officers, agents and employees, from and against any and all claims, actions,
suits, liability, loss, costs, expenses, and damages of any nature whatsoever,
including costs and attorneys fees in defense and costs on appeal thereof, for
injuries, sickness or death of persons or damage to property, which is caused by or
arises out of said County, its officers, agents, or employees' errors or omissions in
the performance of activities related to this easement, provided, however, that
County's obligation to indemnify, defend and hold harmless shall not extend to
injuries, sickness, death or damage caused by or resulting from the sole negligence
of City, its elected officials, officers, agents or employees. County agrees that it's
obligations under this paragraph extend to any claim, demand, and/or cause of action
brought by or on behalf of any of it's employees, or agents. For this purpose, County
by mutual negotiation, hereby waives as respects the City only, any immunity that
would otherwise be available against such claims under the Industrial Insurance
provisions of Title 51 RCW.
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6) City shall indemnify, defend and hold harmless County, its elected officials,
staff, officers, agents and employees, from and against any and all claims, actions,
suits, liability, loss, costs, expenses, and damages of any nature whatsoever,
including costs and attorneys fees in defense and costs on appeal thereof, for
injuries, sickness or death of persons or damage to property, which is caused by or
arises out of said City, its officers, agents, or employees' acts, errors or omissions on
the Property, both inside and outside the Utility Easement Area, provided, however,
that City's obligation to indemnify, defend and hold harmless shall not extend to
injuries sickness, death or damage caused by or resulting from the sole negligence of
County, its elected officials, officers, agents or employees. City agrees that it's
obligations under this paragraph extend to any claim, demand, and /or cause of action
brought by or on behalf of any of it's employees, or its agents. For this purpose, City,
by mutual negotiation, hereby waives, as respects the County only, any immunity that
would otherwise be available against such claims under the Industrial Insurance
provisions of Title 51 RCW.
7) All right, title, and interest that may be used and enjoyed without interfering
with the Reservation of Utility Easement rights are reserved to the City. Except as
otherwise provided herein, and after the date of this agreement, the construction,
installation, or maintenance of any structures, whether temporary or permanent, shall
be absolutely prohibited within the above described permanent easement area and
shall be deemed an unreasonable interference with County's easement rights unless
specifically approved in writing by the County. Moreover, as to such non- approved
structures, the provisions of paragraph 4 and 5 above, shall not apply.
RESERVED UNTO KING COUNTY, WASHINGTON, THE FOLLOWING
DESCRIBED EASEMENT ON THE PROPERTY:
Grantor hereby reserves a permanent river protection easement, which shall be a
perpetual easement for the purposes of accessing and constructing, inspecting,
monitoring, reconstructing, maintaining and repairing, river bank protection and /or
other flood related works, including installing, inspecting and maintaining all
vegetation and any other appurtenances thereto across, in, under, on, over and upon
the following portions of the Property:
All portions of the Property that are riverward of a line that is parallel
to and thirty (30) feet landward of the stable top of the river bank on
the Green River "Easement Area as constructed or
reconstructed, together with reasonable ingress and egress upon
the Property to access the Easement Area.
Grantor shall have the right at such time as may be necessary and at the Grantor's
sole discretion, to enter upon the Property and to have unimpeded access to, in and
through the Easement Area for the purposes of exercising the Grantor's rights as
described herein.
Grantee agrees not to plant non- native vegetation within the Easement Area and not
to remove or otherwise alter any improvements installed by Grantor, including any
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native vegetation that may be planted and any flood protection works that may be
constructed, within the Easement Area, without the prior approval of Grantor.
Nothing contained herein shall be construed as granting any license, permit or right,
otherwise required by law, to Grantee with respect to the Property and the Easement
Area.
For the purposes of this river protection easement, the term "native vegetation" shall
mean vegetation comprised of plant species, other than noxious weeds (as identified
on the State of Washington noxious weed list found at Washington Administrative
Code Chapter 16 -750, as amended from time to time), which are indigenous to the
coastal region of the Pacific Northwest and which reasonably could have been
expected to naturally occur at the site.
Neither Grantor nor Grantee is hereby obligated to future maintenance, repair or
other action related to the above described exercise of easement rights. This river
protection easement and /or any flood related works constructed or to be constructed
within the Easement Area shall not be construed as granting any rights to any third
person or entity, or as a guarantee of any protection from flooding or flood damage,
and nothing contained herein shall be construed as waiving any immunity to liability
granted to Grantor by any state statute, including Chapter 86.12 of the Revised Code
of Washington, or as otherwise granted or provided for by law.
The rights, conditions, and provisions of this easement shall inure to the benefit of
and be binding upon the heirs, executors, administrators, and successors in interest
and assigns of Grantor and Grantee.
SUBJECT TO THE FOLLOWING COVENANTS, WHICH ARE INTENDED TO BE
RUNNING COVENANTS BURDENING AND BENEFITING THE PARTIES
SUCCESSORS AND ASSIGNS:
The City, as required by RCW 36.89.050, covenants that the Property shall be
continued to be used for open space, park, or recreation facility purposes or that
other equivalent facilities within the County shall be conveyed to the County in
exchange therefore.
The City covenants that it shall abide by and enforce all terms, conditions and
restrictions in King County Resolution 34571, including that the City covenants that
the Property will continue to be used for the purposes contemplated by Resolution
34571, that the Property shall not be transferred or conveyed except by agreement
providing that such lands shall continue to be used for the purposes contemplated by
Resolution 34571, and that the Property shall not be converted to a different use
unless other equivalent lands and facilities within the County or City shall be received
in exchange therefore.
The City acknowledges that there are outstanding bonds that were used to finance
the Property and covenants that it shall not use the Property in a manner that would
cause the interest on County bonds related to the Property to no longer be exempt
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from federal income taxation. If the City intends to take an action that could affect the
tax exempt status of any outstanding bonds, such as transferring the property,
limiting the public use of the Property, or causing the Property to be privately
managed, the City may request in writing that the County concur that such action will
not affect the tax exempt status of any outstanding bonds. Such request must
contain sufficient information regarding the intended use of the Property for the
County and its bond counsel to fully evaluate the proposal. If the County concurs, the
County may not subsequently assert that such action violates this covenant. In
determining whether a requested action will or will not affect the tax exempt status of
any outstanding bonds, the County agrees to use good faith, to not unreasonably
withhold concurrence, and to make its determination or to ask for additional
information within 45 days of a written request to do so by the City. If the County fails
to respond to the City's request or ask for additional information within the 45 day
period, the County may not subsequently assert that such action violates this
covenant. If the County asks for additional information within the 45 day period, the
County will have an additional 30 days from the receipt of the additional information to
make its determination or the County may not subsequently assert that said action
violates this covenant.
The City further covenants that it will not limit or restrict access to and use of the
Property by non -city residents in any way that does not also apply to city residents.
The City covenants that if differential fees for non -city residents are imposed, they will
be reasonably related to the cost borne by city taxpayers to maintain, improve or
operate the Property for parks and recreation purposes.
The City acknowledges that a portion of the Green River Trail runs across the
Property and covenants to maintain in perpetuity the Trail for public trail purposes
and to maintain in perpetuity the connections between the Trail on the Property with
the portions of the Green River Trail that are outside of the Property.
The City covenants that it shall place the preceding covenants in any deed
transferring the Property or a portion of the Property for public park, recreation or
open space uses.
Dated this day of 20
KING COUNTY, WASHINGTON
BY
TITLE
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