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HomeMy WebLinkAbout08-036 - La Pianta LLC - Reimbursement for Tukwila 205 Levee Repair Design (Sites 3 and 5) P FIRST ADDENDUM TO VN O e t 6- AGREEMENT FOR REIMBURSEMENT THIS FIRST ADDENDUM TO AGREEMENT FOR REIMBURSEMENT "First Addendum dated for reference purposes as the Lb' day of wk 2008, is by and between LA PIANTA LLC, a Washington limited liability corporation "La Pianta and the CITY OF TUKWILA, a Washington municipal corporation "CITY RECITALS A. The City and La Pianta previously executed an Agreement for Reimbursement pertaining to the U S Army Corps of Engineers' "The Corps Levee Repair Project for Tukwila 205, Sites 3 and 5 B The Agreement for Reimbursement provides for, inter alia, the City to enter into a Cooperation Agreement with the Corps, pursuant to which the City as "Public Sponsor" would request that the Levee Repair Project include a "betterment" in the form of a levee retaining wall "Levee Wall along property owned by La Pianta. C The Agreement for Reimbursement also provides for inter alia, La Pianta to reimburse the City for any and all City payments made under the City's Cooperation Agreement with the Corps. D La Pianta believes that construction of the Levee Wall will be less expensive, and that therefore the reimbursement obligations to the City will be less, if La Pianta constructs the Levee Wall rather than the Corps E Under the terms of the Cooperation Agreement, the City is responsible for future operation and maintenance of the levee F In consideration for the Corps' consent to allow La Pianta to construct the Levee Wall, and the opportunity to realize cost savings that La Pianta believes its own construction will provide, La Pianta is willing to enter into an addendum to the Reimbursement Agreement, set forth below, concerning the costs of and directives by a construction manager to be retained by the City, as well as the potential liability that may arise by virtue of construction of the Levee Wall The City is also willing to enter into such an Addendum so long as the City is not responsible for additional costs or liability resulting from La Pianta's construction of the Levee Wall rather than the Corps' Now therefore, for good and valuable consideration, and receipt and sufficiency of which are acknowledged, the parties agree that the Reimbursement Agreement is amended by addition of the following provisions C \Documents and Settmgs \MSegale \Local Settings \Temporary Internet Files \OLK5D\Final First 1 Addendum doc 1 0�� ADDENDUM TO AGREEMENT 1 Scope of Work If the Corps consents and La Pianta elects to construct the Levee Wall, La Pianta shall construct the Levee Wall from approximately Station 8 +50 southward to the south terminus of the Site 5 levee repair project. The work shall include, but not limited to a. Site /Subgrade Preparation b Concrete Formwork c Reinforcing Steel d. Concrete 2 Design, Specifications, Codes, and Standards If the Corps consents and La Pianta elects to construct the Levee Wall, La Pianta shall do so in accordance with the requirements of the design drawings and specifications and all applicable codes and standards including, but not limited to the applicable provisions of a. U S Army Corps of Engineers Design PL 84 -99 Levee Rehabilitation Tukwila 205 Sites 3 5, Green River dated June 4, 2008 Exhibit A. b U S Army Corps of Engineers Tukwila Levee Repair Special Provisions, including the following (Exhibit B) 1) Specification Section 01000 2) Specification Section 01160 3) Specification Section 01355 4) Specification Section 01561 5) Specification Section 01563 6) Specification Section 01565 c WSDOT /APWA "Standard Specifications for Road, Bridge, and Municipal Construction" Latest Edition, Divisions 1 -9 d. King County Washington Road Standards, Latest Edition. e Quality Control /Quality Assurance Plan Tukwila 205 Concrete Retaining Wall Exhibit C 3 Retention of a Construction Manager and Project Inspector Using its normal procedures, and applying its normal bid criteria for cost, the City will hire a consultant firm "Construction Manager to fulfill the City's construction management obligations under the Cooperation Agreement with the Corps of Engineers "Construction Management Services Through the Construction Manager, the City will follow the Quality Control /Quality Assurance Plan Tukwila 205 Concrete Retaining Wall. C \Documents and Settings\MSegale \Local Settings \Temporary Internet Files \OLK5D \Final First 2 Addendum.doc 4 Quality Control/Quality Assurance Requirements If La Pianta elects to construct the Levee Wall, La Pianta shall be responsible for controlling and documenting construction quality control /quality assurance activities to assure that the completed Levee Wall project meets the requirements of the design, "Quality Control/Quality Assurance Plan Tukwila 205 Concrete Retaining Wall and all applicable specifications, codes, and standards. Specific responsibilities and requirements include, but are not limited to a. Laying out work to ensure that the wall elevations and alignment comply with the contract drawings La Pianta shall retain a Washington State registered surveyor to lay out and stake the work. The surveyor shall provide copies of all survey records to the Construction Manager b Documentation of quality assurance quality control. La Pianta shall prepare and provide to the City's construction manager a daily, written quality assurance quality control report "QA/QC Report The QA/QC Report shall be submitted to the City's Construction Manager within 24 -hours after the date covered by the report. A copy of a sample report is included as part of the QA /QC Plan, Exhibit C The QA/QC Report shall comply with the Quality Control /Quality Assurance Plan Tukwila 205 Concrete Retaining Wall (Exhibit C) c Performance of required construction and materials testing. La Pianta shall retain the services of a qualified materials testing lab for such tests as compaction, backfill gradation, concrete compressive strength, concrete air entrainment, concrete slump, etc La Pianta shall document all materials and construction test results and provide them to the City's Construction Manager as an attachment to the Daily QA/QC Report. A list of qualified labs is provided at Exhibit D d. Provision for public safety, traffic control, and site access control during construction. La Pianta shall ensure that construction is executed in a safe manner and in accordance with applicable OSHA and other safety standards e Implementation of Best Management Practices. La Pianta shall implement all Best Management Practices and associated erosion and run -off control measures as required by and in accordance with WSDOT Standard Specification Section 8 -01 3(10) and the current King County Storm Water Manual f Documentation of construction progress La Pianta shall take or cause to be taken daily photos documenting construction progress Photos shall be digital JPEG format. La Pianta shall provide copies of daily construction progress photos to the City's Construction Manager daily as an attachment to La Pianta's Daily QA /QC Report. 5. Coordination of Contractors Due to the fact that a length of the Levee Wall and associated water -side features are being built by the U S Army Corps of Engineers' contractor, and La Pianta is C \Documents and Settings \MSegale \Local Settings \Temporary Internet Files \OLK5D\Final First 3 Addendum.doc building the remaining length of the Levee Wall, La Pianta shall ensure that it and the Corps' contractor coordinate and communicate in advance and continuously during construction to determine the requirements, construction features, and schedule coordination that will need to be addressed in order to insure a smooth and effective construction effort. La Pianta shall convene a coordination meeting between it, the Corp's construction contractor, the City and its Construction Manager, and the Corps prior to construction to discuss the details of how the section being built by La Pianta shall be terminated and prepared for "tie in" by the follow -on Corps of Engineers' contractor and the wall's finish such that there is an even and consistent surface The meeting shall also address the coordination of construction scheduling, completion date requirements, the two contractors' areas of work, construction area access, and coordination required to complete the overall project in 2008 More coordination meetings may be initiated by the City or the Corps as necessary 6. Submittals La Pianta shall be required to submit the following documentation to the City's Construction Manager The list is not to be considered all inclusive of all submittals that are required. a. Offsite Disposal Plan b Compaction Testing Plan c Borrow Site Testing Reports d. Compaction Testing Reports e Design analysis and calculations for form design, including methodology of design. See WSDOT Standard Specifications Section 6 -02 3(16) f Form materials, including manufacturer's data, literature describing form materials, accessories, and releasing agents g. Formwork drawings, including details, dimensions, points, supports, studding /shoring, and sequence of removal. h. Concrete Reinforcement System Detail drawings showing reinforcing steel placement, schedules, sizes, grades, and splicing /bending details. i Reinforcing Steel Certified copies of mill reports attesting that reinforcing steel furnished meets the requirements of the contract specifications. J Concrete Mix Design k. Methods for Conveying and Placing Concrete 1 Data Manufacturer's literature for o Air Entraining Admixture o Accelerating Admixture o Water Reducing or Retarding Admixture o Curing Materials o Expansion Joint Filler Strips o Joint Sealants o Waterstops o Backer rod m. Aggregate certification and test reports C \Documents and Settings \MSegale \Local Settings \Temporary Internet Files \OLK5D\Final First 4 Addendum.doc n. Concrete Materials o Progress Schedule and weekly look -ahead schedules. See WSDOT Standard Specifications Section 1 -08 3 and Section 1 -08 3(2)D 7 Costs to the Parties In addition to its reimbursement obligations set forth in Section 3 of the Reimbursement Agreement, La Pianta shall be responsible for all costs associated with its own construction of the Levee Wall, and shall reimburse the City for all costs incurred by the City for Construction Management Services 8. Construction Timeframes The Corps has established a completion date of August 1, 2008 for the Levee Wall, to include the forms being stripped from the retaining wall, however, the concrete does not need to be fully cured. La Pianta has requested a completion date of August 15, 2008 If the Corps consents and La Pianta elects to extend the completion date to August 15, 2008, La Pianta shall comply with the following conditions a. La Pianta shall construct the wall starting at the southern end and proceed north. b La Pianta shall strip and remove all forms from the entire Levee Wall no later than August 15, 2008 c When constructing the Levee Wall, La Pianta shall achieve the required 4,000 psi minimum compressive strength on all concrete by August 15, 2008 d. In the event that La Pianta does not accomplish the work by August 15, 2008 and the Corps' contractor incurs additional costs as a result of La Pianta's delay, La Pianta shall be responsible for paying all such additional costs. La Pianta's deposit and all other payments required from La Pianta under the Reimbursement Agreement Section Method of Payment shall be used to pay for the additional costs 9 Two -Year Guarantee Period La Pianta shall be responsible for correcting all City identified defects in workmanship and material for a period of two (2) years after Final Acceptance, as defined in WSDOT Standard Specification Section 1 -05 12, of the Levee Wall. La Pianta shall start work to remedy such defects within 7 calendar days of written notice of discovery thereof by the City and shall complete such work within the time stated in the notice In emergencies, where damage may result from delay or where loss of service may result, such corrections may be made by the City or King County Flood Control Zone District, in which case the cost shall be borne by La Pianta. In the event La Planta does not accomplish the corrections in the time specified, the work will be otherwise accomplished and the cost of same shall be paid by La Pianta within 7 calendar days of written notification. C \Documents and Settings\MSegale \Local Settings \Temporary Internet Files \OLK5D \Final First 5 Addendum.doc This two -year guarantee period shall be in addition to all responsibilities and requirements of La Pianta under the law and this Agreement, and shall not be construed to limit the statutes of limitations or repose in any way 10 Indemnification La Pianta shall indemnify, defend and hold the City harmless from all damages arising from the construction of the Levee Wall, except for damages due to the sole fault or negligence of the City or the City's Construction Manager Should a court of competent jurisdiction determine that RCW 4 24 115 applies, the indemnification set forth herein shall be valid and enforceable only to the extent of La Pianta's negligence Solely for the purposes of enforcement of this Agreement, La Pianta hereby waives its immunity under industrial insurance, Title 51 RCW The parties mutually negotiated this waiver 11 Termination or Suspension If at any time, (1) the Corps terminates the Cooperation Agreement, or (2) the Corps instructs La Pianta to cease construction of the Levee Wall, or (3) La Pianta fails to carry out its obligations under this Reimbursement Agreement or the First or any other Addendum thereto after notice and a reasonable opportunity to cure, then the City may terminate or suspend La Pianta's work on the construction of the Levee Wall, unless the Corps determines that continuation of work on the Levee Wall is in the interest of the Corps or is necessary in order to satisfy agreements between the City and the Corps or any other interests in connection with the Levee Repair Project. For purposes of this Section, "notice" shall mean three (3) business days, except in the event of an emergency, in which case the City may require the cure immediately "Reasonable opportunity to cure" shall include completion within the construction schedule determined by the Corps However, deferral of future performance under the Reimbursement Agreement or any Addendum thereto shall not affect existing obligations or relieve the parties of liability for any obligation previously incurred. Should the Corps decide that the Corps shall continue to construct the Levee Wall, La Pianta's deposit and all other payments required from La Pianta under the Reimbursement Agreement Section Method of Payment shall be used to pay for the costs of construction. In the event either party elects to terminate this Amendment pursuant to this paragraph, both parties shall conclude their activities relating to the construction of the retaining wall and proceed to a final accounting in accordance with Agreement Section 3 Method of Payment. 12. Exhibits A. U S Army Corps of Engineers Design PL 84 -99 Levee Rehabilitation Tukwila 205 Sites 3 5, Green River dated June 4, 2008 C \Documents and Settings \MSegale \Local Settings \Temporary Internet Files \OLKSD\Final First Addendum.doc B U S Army Corps of Engineers Tukwila Levee Repair Special Provisions C Quality Control /Quality Assurance Plan Tukwila 205 Concrete Retaining Wall D List of Qualified Testing Labs 13 Reimbursement Agreement Obligations Not Affected Except for the addition of the sections of this First Addendum, nothing in this First Addendum shall be deemed to affect, amend, or modify the obligations set forth in the Reimbursement Agreement, which is hereby ratified by the parties. The parties have caused this First Addendum to be executed effective as of the day and year set forth on the first page above LA PIANTA LLC A Washington limited Liability Corporation By- Metro Land Development, Inc Its Manager By- Name Mark A. SegC le Its Vice -Pre de.it CITY OF TUKWILA, A Washington municipal corporation By Na Jim a gerto ayor C \Documents and Settings \MSegale \Local Settings \Temporary Internet Files \OLK5D \Final First 7 Addendum.doc Dv-c3� e4aerize oeo 3401) Al C ca�c,l Mo`C�a� 6 a o� AGREEMENT FOR REIMBURSEMENT THIS AGREEMENT FOR REIMBURSEMENT "Agreement dated for reference purposes as of the W of YVI 2008, is by and between LA PIANTA LLC, a Washington limited liability corporation ("La Pianta and the CITY OF TUKWILA, a Washington municipal corporation "City RECITALS A. Flood Protection Project 1. The Levee The U S Army Corps of Engineers "The Corps previously constructed a levee "The Levee along the west bank of the Green River with the City Pursuant to a previously granted easement for flood control, a portion of the Levee is located on property owned by La Pianta. 2. Levee Repair The Levee was damaged during a storm, and the Corps has directed that certain repairs and modifications be made immediately to the Levee in order to maintain the Levee's federal certification, as well as to protect adjacent property owners and the public from flooding "Levee Repair Project Pursuant to a "Local Cooperation Agreement" between the "Local Sponsor" (here, the City) and the Corps, the Corps has designed and will construct the Levee Repair Project, with its costs to be borne by the United States. The Levee Repair Project, as depicted in the Corps' Design PL 84 -99 Levee Rehabilitation Tukwila 205 Sites 3 and 5, Green River Sheets 1 through 16 dated April 8, 2008 (the "Original Design consists of relocating and reconstructing the Levee further landward, away from the Green River 3. Levee Repair Design The project design depicted in the Original Design is based in part on a federal mandate that requires that the design be the most cost effective Design elements that exceed the federal minimum standards for a cost effective design are deemed by the Corps to be "betterments," which the Corps will construct only if paid for by the "Public Sponsor 4. Property Required for Levee Repairs The Local Cooperation Agreement requires that the City obtain and provide to the Corps all lands, easements, and rights -of -way determined by the Government to be necessary for construction, operation, and maintenance of the Levee Repair Project. For the Levee Repair Project, the City must obtain a flood protection easement, accompanying access easements, C•\Documents and Settings \jpawlicki.SEGALEBP\Local Settings \Temporary Internet Files \OLK150\Final Version 1 for Reimbursement (4)_1 (2).DOC and temporary construction area easements from multiple property owners along the Green River, including La Pianta. B. City Property Acquisition The City has sought to acquire the easements required by the Corps from La Pianta. When La Pianta declined to provide the requested easements, the City filed a Petition for Condemnation and Eminent Domain against La Pianta and others under King County Superior Court Cause No 08 -2- 16966 -9 KNT to acquire those easements over certain tracts of land, including certain tracts of land owned by La Pianta (the "Condemnation Action C. La Pianta Preferred Design La Pianta prefers that the Corps modify the Original Design and substitute construction of a vertical wall in lieu of simply relocating the existing Levee, along with a 2 1 backslope. La Pianta seeks to redevelop its property and, accordingly, desires to retain use of its land by reducing the size of the Levee Repair Project's footprint. D Corps -City Cooperation Agreement Any modification to the Corps' Original Design will be governed by a Cooperation Agreement entered into, or to be entered into, between the Corps and the City That agreement expressly provides that "the Public Sponsor shall be solely responsible for any increases in costs resulting from betterments and all such increased costs will be paid in advance by the Public Sponsor Because the addition of the Levee Wall would, in the view of the Corps, constitute a "betterment," the Corps will alter the original Levee Repair Project design only if the difference in total project costs (including environmental review, design, and construction) is paid for by the City In view of the increased property value and redevelopment opportunities afforded by the Levee Wall as compared to the Corps' original design of the Levee Repair Project, La Pianta desires the City to request that the Corps redesign and construct the Levee Repair Project to include La Pianta's preferred Levee Wall and enter into a Corps -City Cooperation Agreement. The City desires that La Pianta commit to reimburse the City for all costs paid by the City to the Corps as a result of the change from the Corps' original Levee Repair Project design to La Pianta's preferred Levee Wall design, that La Pianta provide the necessary easements to the City at no cost, and meet other obligations. Now therefore, for good and valuable consideration, and receipt and sufficiency of which are acknowledged, the parties agree as follows CADocuments and Settings \jpawlicki.SEGALEBP\Local Settings \Temporary Internet Files \OLK150\Final Version2 for Reimbursement (4)_1 (2).DOC AGREEMENT I Redesign of the Levee Repair Project Upon full execution of tlus Agreement and receipt of the deposit required by Section 3.a below, the City will request in writing that the Corps modify the design of the Levee Repair Project to include the Levee Wall on La Pianta's property The City's letter will request that the Levee Wall be constructed as an extension of the retaining wall shown in the Original Designs on Site Plan 2, Plate Number C -103, Sheet 5 of 16, dated April 8, 2008, and that the Levee Wall be constructed from approximately Station 8 +50 southward to the south terminus of the Site 5 levee repair project. 2. Corps -City Cooperation Agreement The City will execute the Corps -City Cooperation Agreement in the form required by the Corps to permit construction of the Levee Repair Project. Note Article I- Definitions and General Provisions, Paragraph A states, "Site 5 also includes a betterment feature consisting of approximately 855 linear feet of retaining wall in place of a landward side levee prism." Further, Article IV Method of Payment, Paragraph A states, "Rehabilitation Effort costs are currently estimated to be $1,359,000 and the Public Sponsor's "City share (cash and services in kind) of the total Rehabilitation Effort costs is currently estimated to be $0 00 The Public Sponsor is 100% responsible for the betterment costs currently estimated to be $650,000 3. Method of Payment La Pianta shall reimburse the City for any and all City payments made under the Cooperation Agreement, including without limitation all deposits, cash contributions, and/or cash or other payments made for the costs of any betterments to the Rehabilitation Effort and/or to satisfy any financial obligations set forth in Article II.C, II.G, and Article IV of the Cooperation Agreement. La Pianta shall reimburse the City as follows a. La Punta shall pay a deposit by a certified check payable to the City in the amount of Six Hundred Fifty Thousand Dollars ($650,000 00), or the amount specified in Article IV A of the Corps -City Cooperation Agreement, whichever is greater, within five (5) calendar days of execution of this Agreement. b Should the Corps request additional payments from the City after payment of the initial deposit specified in Article IV A, La Pianta shall reimburse the City by delivery of a certified check to the City in the amount requested by the Corps, within five (5) calendar days of notice by the City c. In the event that any funds advanced by La Pianta as a deposit are greater than the total of charges imposed by the Corps on the City under the Corps -City Cooperation Agreement (the "Final Cost then the City shall reimburse the difference to La Punta, without C\Documents and Settings \jpawlicki.SEGALEBP\Local Settings \Temporary Internet Files \OLK150\Final Version3 for Reimbursement (4)_1 (2).DOC interest, within ten (10) calendar days of receipt of the Final Cost from the Corps. For example, in the event that La Pianta elects to construct the Levee Wall to the Corps' specifications, and the Corps accepts the Levee Wall as so constructed and charges the City an amount less than the amounts paid by La Pianta pursuant to this Section, then upon request made by La Pianta, the City will refund to La Pianta all sums paid by La Pianta to the City that the City is not required to remit to the Corps under the terms of the Corps -City Cooperation Agreement, less any costs incurred by the City for construction management of the Levee Wall. d. If the Final Cost is greater than the amount advanced by La Pianta, then La Pianta shall pay the difference to the City by certified check within five (5) calendar days of notice from the City 4 Dismissal of La Pianta from Condemnation Action Within ten (10) days of La Pianta's execution and delivery to the City of this Agreement, receipt of signed easements in the form approved by the Corps, and receipt by the City of King County Flood Control Zone District's written acceptance of the maintenance responsibility and all costs associated therewith for the Levee Wall, the City shall dismiss La Pianta from the Condemnation Action. 5. No Design Precedent The inclusion of the Levee Wall in the Site 5 Levee Repair Project scope of work shall not establish, and shall not be cited by La Pianta as evidence of, a design precedent for any future maintenance, repair, or new levee construction projects. 6. Cooperation The parties shall cooperate in good faith with each other, and with their respective employees, contractors and agents, to effect this Agreement 7 Other Agreements 7.1 Time of the Essence. Time is of the essence of this Agreement and of every provision hereof. 7.2 Entire Agreement. This Agreement represents the entire agreement of the parties with respect to its subject matter There are no other agreements, oral or written, with respect to that subject matter except as expressly set forth in this Agreement, and this Agreement supersedes all previous agreements, oral or written. 8. Remedies If La Pianta fails to timely pay the deposit to the City as required by Section 3.a., the City may request that the Corps proceed with the Levee Repair Project as depicted in the Corps' C \Documents and Settings \ipawlicki.SEGALEBP\Local Settings \Temporary Internet Files \OLK150\Final Version4 for Reimbursement (4)_1 (2).DOC Original Designs. The parties agree that damages are not an adequate remedy for breach of any other provision of this agreement, and that the City is entitled to seek specific performance of this Agreement in such an event. The parties have caused this Agreement to be executed effective as of the day and year set forth on the first page above. LA PIANTA LLC, a Washington limited Liability Corporation By- Metro Land Developmen Inc., Its Manager B 1 Name Mark A. S al Its Vice- Presid CITY OF TUKWILA, a Washington municipal corporation By- Jim a gerton, It�5�or 2 rii �i CADocuments and Settings \jpawlicki.SEGALEBP\Local Settings \Temporary Internet Files \OLK150\Final Versions for Reimbursement (4)_1 (2).DOC Recording Requested By And When Recorded Mail To The City of Tukwila I Department of Public Works 6300 Southcenter Blvd, Suite 100 20080604000332 Tukwila, Washington 98188 WLR -DNRP EA5 0 00 Attn Ryan Larson 06/04 09546 KING COUNTY, WA EASEMENT AGREEMENT Grantor(s) La Pianta LLC, a Washington Limited Liability Company Grantee(s) The City of Tukwila, a municipal corporation of the State of Washington, and The King County Flood Control Zone District, a quasi municipal corporation of the State of Washington Legal Description (abbreviated) Ptn of Lot 4, BLA 93 -0085, Recording No 9311301961, Parcel B, BLA L99 -0008, Recording No 9906099010, and Parcels A, D E, BLA L02 -029, Recording No 20021007900001 Additional legal description on page 10, hereinafter called Exhibit A. Assessor's Tax Parcel ID 3523049015, 3523049018, 3523049019, and 3523049121 Project: Tukwila -205 Levee THIS EASEMENT AGREEMENT (this "Agreement is made as of the '30f_" day of ITI" 2008, by and among La Pianta LLC, a Washington limited liability company, hereinafter called "Grantor and The City of Tukwila, a municipal corporation of the State of Washington, and The King County Flood Control Zone District, a quasi municipal corporation of the State of Washington, each hereinafter called a Grantee and both hereinafter collectively called "Grantees" RECITALS A. Grantees have certain legal responsibilities with respect to the repair, maintenance and reconstruction of the Tukwila 205 Flood Control Project located in the City of Tukwila, Washington (the "Project B Grantor owns certain real property located adjacent to the Project. C The parties desire to enter into an agreement to create certain easements for the inspection, repair, maintenance and reconstruction of the Project as described and subject to the terms and conditions set forth below AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows 1 Grant of Easements Grantor hereby grants and conveys to the Grantees, their successors and assigns easements (the "Easements subject to the terms and conditions set forth in this Agreement, under, over and upon those limited portions of the real property described in Exhibit A (the "Property which are more particularly described in Exhibits B, C, and D attached hereto and by this reference made a part hereof, situated in King County, Washington, all for the specific and limited purposes set forth below EASEMENT PAGE 1 99999- 2033/LEGAL 14316665 1 1 Flood Protection Easement. A perpetual right and easement in favor of Grantees in the land described in Exhibit B to construct, maintain, repair, operate, patrol and replace a flood control structure, including all appurtenances thereto "Flood Protection Easement reserving, however, to Grantor, its successors and assigns, all such rights and privileges as may be used without interfering with or abridging the rights and easement hereby acquired 2 Access Road Easement. A perpetual easement and right of -way in favor of the Grantees for ingress and egress for the sole purposes of inspection, repair and maintenance of the Flood Control Project in, on, over and across the land described in Exhibit C (the "Access Road Easement together with the right to trim, cut, fell, and remove therefrom all trees, underbrush, and other vegetation, obstructions, structures, or obstacles within the limits of the easement and right -of -way; reserving however, to Grantor, its successors and assigns, all such rights and privileges as may be used without interfering with or abridging the rights and easement hereby acquired, this grant of easement being subject, however, to all easements, reservations, covenants, conditions and restrictions of record Grantees acknowledge that the Access Road Easement Area, as described in (b) below, is currently paved to within a few feet of the Flood Control Project and is used for ingress and egress for nearby commercial buildings Accordingly, Grantees and their employees, contractors and agents, shall not park vehicles or store equipment on the Access Road Easement Area (a) Grantor reserves the right to relocate the Access Road Easement from time to time so long as the substituted site is of reasonably comparable size and is suitable for the purposes of this easement. (b) Except in cases of emergency, Grantees shall give written notice to Grantor of its intent to enter onto the Access Road Easement Area (as that term is defined below) no less than forty -eight (48) hours prior to each entry in order to allow Grantor sufficient time to remove any vehicles and other property of Grantor or its tenants that may be present within the easement area. In cases of emergency Grantees shall give such notice as may be reasonable under the circumstances (c) The Access Road Easement shall be located in the area of land described and depicted in Exhibit C (the "Access Road Easement Area (d) Promptly after the exercise of this right to enter onto and use the Access Road Easement, Grantees, and each of them, and their respective employees, contractors and agents, shall restore the surface of the Access Road Easement to the condition existing prior to the entry, shall repair any damage occasioned by its or their entry onto and use of the Easement, and shall leave the Access Road Easement Area in good, neat, clean and safe condition 3 Temporary Work Area Easement. A temporary easement and right of way in favor of Grantees in, on, over and across the land described in Exhibit D from the date of this Easement Agreement through December 31, 2008, which date may be extended as mutually agreed to by the parties to allow completion of the levee rehabilitation repair construction for Project Job No GRE -3 -07, for the purpose of a work area (the "Temporary Work Area Easement including the right to EASEMENT PAGE 2 99999- 2033/LEGAL 14316665 1 temporarily stockpile fill and waste material thereon, move, store and remove equipment and supplies, erect and remove temporary structures on the land and to perform any other work necessary and incident to the construction of improvements to the Flood Control Project, together with the right to trim, cut, fell, and remove therefrom all underbrush, obstructions, structures, or obstacles within the limits of the Temporary Work Area Easement excepting, however, trees, which Grantees shall not disturb, injure, move, remove or damage, reserving however, to Grantor, its successors and assigns, all such rights and privileges as may be used without interfering with or abridging the rights and easement hereby acquired, this grant of easement being subject, however, to all easements, reservations, covenants, conditions and restrictions of record (a) The Temporary Work Area Easement shall be located in the area of land described in Exhibit D (the "Temporary Easement Area Grantees shall maintain the Temporary Easement Area in good, neat, clean and safe condition (b) Promptly after the exercise of this right to enter onto and use the Temporary Work Area Easement, Grantees, and each of them, and their respective employees, contractors and agents, shall remove all stockpiled material and all equipment and personal property of Grantees, or either of them, and of their respective employees, contractors and agents, clean the surface of the Temporary Work Area Easement of any waste, restore the surface of the Temporary Work Area Easement to the condition existing prior to the entry, and repair any damage occasioned by its or their entry onto and use of the Easement. 2. Security for Road Access Easement No later than December 31, 2008, Grantees shall place and install locked bollards across the Road Access Easement at the toe of the Flood Control Project where it meets the Road Access Easement Area, and, if the Road Access Easement is relocated, shall promptly place and install locked bollards at the same relative location in the new Road Access Easement Area Immediately upon installation of the bollards, Grantees shall provide to Grantor a key or combination to open the bollards, and shall ensure that Grantor has one or more keys, and /or an accurate combination or combinations, at all times so that Grantor has the ability at all times to open the bollards The bollards shall be reasonably designed and placed so as to minimize any interference with use of the Road Access Easement Area by Grantor and its tenants 3. No Rights Created in Public Nothing in this grant shall be deemed to be to be a gift or dedication of land to the public, or a grant of access to the general public or for recreational uses. The scope of this grant is expressly limited to Grantees, for their use and for the use of their employees and contractors, for the limited purposes described in this Agreement. 4 Grantees' Indemnification of Grantor Grantees, and each of them, and their respective successors and assigns, shall protect, indemnify, defend and hold Grantor, and its successors and assigns, harmless from and against any and all loss, costs, claims, suits, liabilities, causes of action and expenses of any kind or nature (including reasonable attorneys' fees) arising out of, related to, or incurred by reason of the exercise of the easement rights EASEMENT PAGE3 99999- 2033/LEGAL 14316665 1 granted hereunder Without limiting the generality of the foregoing, Grantees, and each of them, shall protect, indemnify, defend, and hold harmless Grantor, and its successors and assigns, from and against any and all loss, costs, claims, suits, liabilities, causes of action and expenses of any kind or nature (including reasonable attorneys' fees) arising out of, related to, resulting from or incurred by reason of or based upon, the release onto or from Grantor's property by Grantees, or either of them, or any of their respective employees, agents, contractors and /or licensees, of any hazardous or toxic materials or substances, or the violation by any such party of any law or laws regulating the handling, treatment, storage, disposal, release, or transport of any hazardous or toxic materials or substances 5. Insurance Each Grantee shall maintain and keep in full force and effect a policy of general liability insurance in an amount not less than One Million Dollars per occurrence, and shall provide Grantor with a certificate of insurance or self insurance from time to time upon Grantor's request, and will name Grantor, its successors and assigns as Additional Insureds in the event one or both of the Grantees should choose not to self- insure Each Grantee may self- insure its obligations hereunder Except to the extent of any gross negligence on the part of Grantor, each Grantee shall indemnify and hold Grantor, its successors and assigns harmless from all claims, damages or causes of action, including attorneys' fees and court costs, arising from that Grantee's use of the Easements. 6 Binding on Successors and Assigns, Limited Right to Assign The rights, conditions, covenants and provisions contained in this Agreement shall inure to the benefit of and be binding on the parties hereto and their respective heirs, administrators, executors, successors and assigns and shall run with the land Grantees and each of them shall have the right to assign their rights and interests under this Agreement to any one or more governmental entities that are created and then existing under the laws of the State of Washington that have legal responsibilities in connection with the inspection, maintenance, repair, rehabilitation and replacement of the Flood Control Project. 7 Eminent Domain If any part of any easement area is taken by any governmental agency in the exercise of its power of eminent domain, the award granted under such proceedings, or any settlement in lieu thereof, for the taking of such property shall be wholly payable to Grantor If less than all of the easement area is taken, the easement granted herein shall continue in full force and effect with respect to the portion of the easement area not taken If all of any easement area is taken, the easement granted herein shall terminate and the obligations hereunder of Grantor and Grantee shall automatically cease and terminate as to that easement area when possession is transferred to the condemning agency except with respect to any obligations with respect to events occurring prior to the termination of the easement. 8 Grantor's Reserved Use Notwithstanding anything in this Agreement to the contrary, Grantor reserves the right to engage in any uses that are compatible with the full enjoyment by Grantees of the rights granted in this Agreement. 9 Miscellaneous (a) In the event of any action or arbitration by any party to this Agreement for breach of or to enforce any provisions or rights hereunder, the reasonable costs and expenses incurred by the substantially prevailing party in such action, including, EASEMENT PAGE4 99999- 2033/LEGAL 14316665 1 but not limited to, such substantially prevailing party's reasonable attorneys' fees, shall be paid by the other party or parties to such action or arbitration (b) Neither this Agreement nor any acts of any party shall be deemed or construed by the parties hereto, or any of them, or by any third person, to create the relationship of principal and agent, or of partnership, or of joint venture, or of any association (c) Any modification, waiver, amendment, discharge or change of this Agreement shall be valid only if the same is in writing and signed and acknowledged by all of the parties, and an original thereof is recorded in the real property records of King County, Washington (d) In the event any term, covenant, condition, provision, or easement contained in this Agreement is held to be invalid, voided or otherwise unenforceable, by any court of competent jurisdiction, such holding shall in no way affect the validity or enforceability of any other term, covenant, condition, provision, or easement contained in this Agreement. (e) Paragraph captions are inserted as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or any of its provisions 10 Completion of Agreement This Agreement shall not be binding on Grantor until (i) it has been executed and acknowledged by all parties, and (ii) a copy of the fully executed and acknowledged Agreement has been delivered to Grantor EASEMENT PAGE 5 99999- 2033/LEGAL 14316665 1 Entered into as of the day and year first above written GRANTOR. LA PIANTA LLC, a Washington limited liability company By Metro Land pevelo p ent, Inc. Its Manager By 9 Mark A. Segale, Vi a President GRANTEE THE CITY OF TUKWILA, a municipal corporation of the State of Washington By QV,� 1 1 I L rye W itle t4 o r GRANTEE DISTRICT KING COUNTY FLOOD CONTROL ZONE a quasi municipal corporation By Acting pursuant to Resolution No FCZD2008 -01 2 of said Grantee Name Title of Kina Countv EASEMENT PAGE6 99999- 2033/LEGAL 14316665 1 STATE OF WASHINGTON ss COUNTY OF KING On this 30�day of May, 2008, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Mark A. Segale to me known to be the person who signed as Vice President of the Manager of La Pianta LLC, a Washington limited liability company that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said Limited Liability Company for the uses and purposes therein mentioned, and on oath stated that he /she was duly elected, qualified and acting as said officer of the corporation, and that he /she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written SUSAN A. THOMAS Notary Public state of Washington Print 1`4 �e .Salym W, rhk� My Commission Expires Notary Public in for the State of Washington, May 01, 2010 residing at: i My commission expires /do /D STATE OF WASHINGTON ss. COUNTY OF KING On this 30' of (1'1 a--q 2008, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared T; m 14- to me known to be the person who signed as YY1 sta e City of Tukwila, a municipal corporation of the State fo Washington, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that lql, was duly elected, qualified and acting as said officer of the corporation, that h Cs was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written o� Print Name 0a a PL Notary Public in and for the State of Washington, A ;L v ia residing at: 7 6,or -v- 7 a c�; v My commission expires (a—('1-1t STATE OF WASHINGTON ss COUNTY OF KING I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that _he signed this instrument, on oath stated that _he is authorized to execute the instrument and acknowledged it as the of King County, acting on behalf of the King County Flood Control Zone District pursuant to Resolution FCZD2008 -01.2 of said District to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated Print Name Notary Public in and for the State of Washington, residing at: My appointment expires EXHIBIT A UNDERLYING PROPERTY PARCEL(S) LEGAL DESCRIPTION Lot 4 as shown on Boundary Line Adjustment No 93 -0085 recorded under recording number 9311301961 Also, Parcels A, D and E shown on Boundary Line Adjustment No L02 -029, recorded under recording number 20021007900001 Also, Parcel B shown on Boundary Line Adjustment No L99 -0008, recorded under recording number 9906099010 EXHIBIT B FLOOD CONTROL EASEMENT AREA LEGAL DESCRIPTION ALL THOSE PORTIONS OF LAND DESCRIBED AS LOT 4 AS SHOWN ON BOUNDARY LINE ADJUSTMENT NO 93 -0085 RECORDED UNDER KING COUNTY AUDITOR'S FILE NO 9311301961, AND LAND DESCRIBED AS PARCEL "D" ON BOUNDARY LINE ADJUSTMENT NO L02 -029, RECORDED UNDER KING COUNTY AUDITOR'S FILE NO 20021007900001, LYING WESTERLY OF THE ORDINARY HIGH WATER MARK ON THE LEFT BANK OF THE GREEN RIVER AND EASTERLY OF THE FOLLOWING DESCRIBED LINE. BEGINNING AT THE NORTHEASTERLY CORNER OF THE AFOREMENTIONED LOT 4, THENCE WESTERLY ALONG THE NORTH LINE OF SAID LOT 4 ALONG A CURVE CONCAVE TO THE NORTH THE RADIAL CENTER OF WHICH BEARS NORTH 20 20'04 "WEST A DISTANCE OF 336 00 FEET, THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 00 44'43" AN ARC LENGTH OF 4 37 FEET, THENCE LEAVING SAID NORTH LINE SOUTH 53 36'41 "WEST 91 03 FEET TO A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 27 83 FEET, THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 23 59'08" AN ARC LENGTH OF 11 65 FEET, THENCE SOUTH 29 37'33 "WEST 91 54 FEET TO A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 117 83 FEET, THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05 31'44 AN ARC LENGTH OF 11 73 FEET, THENCE SOUTH 24 0549 "WEST 88 46 FEET, THENCE SOUTH 22 34'48 "WEST 71 63 FEET, THENCE SOUTH 18 39'07 "WEST 97 03 FEET TO A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 37 83 FEET, THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 21 09'15" AN ARC LENGTH OF 13 97 FEET, THENCE SOUTH 02 30'07 "EAST 59 72 FEET, THENCE SOUTH 01 02'09 "EAST 103 01 FEET TO A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 102 17 FEET, THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05 28'08" AN ARC LENGTH OF 9 75 FEET, THENCE SOUTH 04 2659 "WEST 166 45 FEET, THENCE SOUTH 02 54'29 "WEST 84 06 FEET, THENCE SOUTH 05 08'41 "WEST 253 64 FEET, MORE OR LESS, TO INTERSECT THE EASTERLY BOUNDARY OF THE AFOREMENTIONED LOT 4, AND BEING THE TERMINUS OF THIS LINE. ALL SITUATE IN THE EAST HALF OF SECTION 35, TOWNSHIP 23 NORTH, RANGE 4 EAST OF THE W M, CITY OF TUKWILA, KING COUNTY, WASHINGTON EXHIBIT B FLOOD CONTROL EASEMENT AREA SITE DEPICTION 5 a y S 2405'49' W 88.46' S 22°3448' W M r I I O (A L!1 7 0 W s N pj co W 1 DELTA 23°59'08' 4 RADIUS 27.83' a LENGTH 11.65 z O DELTA 0531'44' j W RADIUS =117.83' a� LENGTH 11.37' o O DELTA =915' RADIUS 37.83' LENGTH -13.97 1� 5 O DELTA 0528'08' RADIUS 102- 7 LENGTH 975 DELTA RADIUS 336.00 LENGTH 4.37 3 s EASEMENT PAGE 12 99999 -2033A EGAL14316665.1 EXHIBIT C ACCESS ROAD EASEMENT AREA LEGAL DESCRIPTION AN INGRESS AND EGRESS EASEMENT OVER SEGALE PARK DRIVE "A" AS SHOWN ON CITY OF TUKWILA BOUNDARY LINE ADJUSTMENT AS RECORDED UNDER KING COUNTY RECORDERS NO 9906099010 AND ITS EXTENSION SOUTHERLY TO INTERSECT THE SOUTH LINE OF PARCEL "A" OF TUKWILA BOUNDARY LINE ADJUSTMENT AS RECORDED UNDER KING COUNTY RECORDERS NO 20021007900001 ALSO A 20 FOOT WIDE INGRESS AND EGRESS EASEMENT OVER A PORTION OF PARCELS "D" AND "E" OF CITY OF TUKWILA BOUNDARY LINE ADJUSTMENT AS RECORDED UNDER KING COUNTY RECORDERS NO 20021007900001 AND OVER A PORTION OF PARCEL "B" OF CITY OF TUKWILA BOUNDARY LINE ADJUSTMENT AS RECORDED UNDER KING COUNTY RECORDERS NO 9906099010, SAID 20 FOOT WIDE EASEMENT BEING DESCRIBED AS FOLLOWS COMMENCING AT THE NORTHWEST CORNER OF THE AFOREMENTIONED PARCEL "E THENCE SOUTH 66 31'27 "EAST ALONG THE NORTH LINE OF SAID PARCEL "E" A DISTANCE OF 992 96 FEET TO AN ANGLE POINT ON SAID NORTH LINE, ALSO BEING THE POINT OF BEGINNING FOR THIS DESCRIPTION, THENCE SOUTH 54 15'07 "EAST 207 68 FEET, THENCE SOUTH 66 34'09 "EAST 87 00 FEET, THENCE NORTH 23 25'51 "EAST 20 00 FEET, THENCE NORTH 66 34'09 "WEST 84 84 FEET, THENCE NORTH 54 15'07 "WEST 207 80 FEET TO THE EAST LINE OF PARCEL "A" OF SAID BOUNDARY LINE ADJUSTMENT AS RECORDED UNDER KING COUNTY RECORDERS NO 20021007900001, THENCE SOUTH 29 14'17 "WEST ALONG SAID EAST LINE 20 13 FEET TO THE POINT OF BEGINNING n EXHIBIT C" ACCESS ROAD EASEMENT SOUTH 180th STREET N.T.S. A "W q, a 4 a� e e O U 2 Q EASEMENT PAGE 14 99999- 20331LEGAL 14316665 I EXHIBIT D ,WORK AREA EASEMEN TEMPO EPICTIot`I SITE D E XHIBIT D sou -n-1 1g th STREET I f h a z0 Id ,f Q WORK AREA f o J t f PAGE 15 EASEME 1g316665 99999- 20331LEG�