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HomeMy WebLinkAbout11-097 - City of Kent - Permitting Authority for Tukwila South Wetland Mitigation Area 11 -097 Council Approval 6/20/2011 INTERLOCAL AGREEMENT BETWEEN THE CITY OF TUKWILA AND THE CITY OF KENT GRANTING PERMITTING AUTHORITY TO TUKWILA FOR THE TUKWILA SOUTH WETLAND MITIGATION AREA THIS INTERLOCAL AGREEMENT "the Agreement') is entered into by and between the CITY OF TUKWILA, a State of Washington municipal corporation "Tukxvila"), and the CITY OF KENT, a State of Washington municipal corporation "Kent and in conformity with Chapter 39.34, Revised Code of Washington "RCW RECITALS WHEREAS, Segale Properties LLC is the proponent of a mixed -use development project, located within the City of Tukwila, commonly referred to as the "Tukwila South Project''; and WHEREAS, as mitigation for certain elements of the Tukwila South Project, Segale Properties LLC is required to implement a wetland mitigation plan, which plan has been approved by the City of Tukwila; and WHEREAS, the majority of the Tukwila South Project is in the City of Tukwila, however, a portion of the area identified as a wetland mitigation area for the Tukwila South project is within the jurisdictional limits of the City of Kent. The subject wetland mitigation area is described in Exhibit A, attached and incorporated herein by reference "Wetland Mitigation Area and WHEREAS, pursuant to a separate agreement, Segale Properties LLC has acquired fee simple interest in and to the drainage ditch previously owned by King County Drainage District No. 2 (the "District which drainage ditch is a single parcel located within the Wetland Mitigation Area and extends into the jurisdictions of Tukwila, Kent and King County. As part of its mitigation work, Segale Properties LLC shall relocate the portion of the existing Johnson Creek ditch north of S. 204 Street and within Tukwila's jurisdiction to a new area adjacent to the northern boundary of S. 204 Street. The east fork of the drainage ditch w=ithin Kent's jurisdiction shall remain unaffected. Upon completion of the above described revisions, Segale Properties is required pursuant to its agreement with the District to transfer and convey to the District the fee simple interest in and to the revised drainage ditch; and WHEREAS, Tukwila and Kent agree that granting permitting authority to Tukwila on behalf of Kent for the Wetland Mitigation Area will provide greater consistency for the Tukwila South project and cost efficiencies for both parties; and WHEREAS, this Agreement is authorized by the Interlocal Cooperation Act, RCW 39.34; Page 1 NOW THEREFORE, in consideration of the following recitals and the mutual promises and covenants contained herein, it is agreed as follows: AGREEMENT 1. Pumose of Interlocal Agreement. The purpose of this Agreement is to provide an efficient pennitting and monitoring process for the Wetland Mitigation Area to avoid the inherent uncertainty of two separate review processes. 2. Review and Decision Making Process for Permitting and Annrovals Needed for the Wetland Mitigation Area. 2.1 Kent shall be responsible for issuing and inspecting any right -of -way or utility permits for the Wetland Mitigation Area. Tukwila shall be solely responsible for receiving, processing, enforcing, and monitoring all other permits or applications for the Wetland Mitigation Area pursuant to the Tukwila Municipal Code and any pertinent state and federal statutes. Tukwila shall verify that the applicant has obtained all state and federal permits required for the Wetland Mitigation Area. 2.2 Tukwila shall require that the applicant record a Sensitive Area Easement, in a form and manner approved by Kent, containing all critical areas and critical area buffers in the Wetland Mitigation Area in accordance with Kent City Code 11.06.640. The Sensitive Area Easement shall allow the District's continued use, repair and maintenance of the drainage ditch located on parcel number 0322049049. 2.3 Tukwila shall notify Kent when Tukwila sends the project work in the Wetland Mitigation Area to final acceptance and closeout and begins the monitoring and maintenance periods. 2.4 Tukwila shall send Kent copies of the following items: 2.4.1 Any permits or approvals issued by Tukwila, state or federal agencies for the Wetland Mitigation Area. 2.4.2 Any pre construction meeting notices for the Wetland Mitigation Area. 2.4.3 Any communication regarding construction and installation schedule for the Wetland Mitigation Area. 2.4.4 All critical areas mitigation monitoring reports for the Wetland Mitigation Area. 2.5 For applications that require public notice, Tukwila must include Kent on Page 2 the list of agencies who will receive notice. Response to the notice will be required, for Kent to be a party of record. 2.6 Tukwila's processing and review of permits and applications for the Wetland Mitigation Area shall include but not be limited to: rendering decisions to approve, condition, or deny such applications; conducting inspections; issuing correction notices, permit extensions and completion of extensions; approving final construction; and evaluating compliance with approved conditions. 2.7 Tukwila shall process the boundary line adjustment application to be filed by Segale Properties LLC to effect the changes discussed in the fourth recital, provided however, nothing herein shall require either Tukwila or Kent to secure King County's consent to the proposed boundary line adjustment. 2.8 Appeals of any decisions by Tukwila shall be processed by Tukwila pursuant to applicable Tukwila Municipal Code provisions. 3. Duration and Termination, This Agreement shall begin upon written execution by both parties and will continue until terminated. Either party may terminate this Agreement by providing written notice of such intent to terminate at least ninety (90) days prior to the termination date. Upon termination of this Agreement Tukwila shall provide Kent with a copy of the files and records of all permit applications received or processed under this Agreement. In the event of termination, Tukwila agrees to provide any further information or assistance regarding the Tukwila South project or the Wetland Mitigation Area as Kent may thereinafter reasonably require. Upon termination, Tukwila shall not be required to assign any portion of its rights, if any, in performance bonds or other surety pertaining to construction or maintenance activities to be undertaken in the Wetland Mitigation Area to Kent; provided, however, that nothing in this Agreement shall be construed to preclude Kent, upon termination, from requiring Segale Properties LLC to submit a performance bond or other surety pertaining to construction or maintenance activities to be undertaken in the Wetland Mitigation Area directly to Kent, in accordance with applicable provisions of the Kent City Code, including, but not limited to Kent City Code Section 11.06.570. 4. Indemnification. 4.1. Tukwila shall indemnify and hold harmless Kent and its officers, agents, employees, and elected officials or any of them from any and all claims, actions, suits, liability, loss, costs, expenses and damages of any nature whatsoever by any reason of or arising out of any act or omission of Tukwila, its officers, agents, employees and elected officials, or any of them relating to or arising out of the performance of this Agreement. In the event that any suit based upon such a claim, action, loss or damage is brought against Kent, Tukwila shall defend the same at its sole cost and expense, provided that Tukwila retains the right to participate in said suit if any principle of governmental or public law is involved; and if final judgment be rendered against Kent or its officers, agents, employees and elected officials, or any of them, or jointly against Kent and Tukwila and their respective officers, agents, employees and elected officials, or any of them, Tukwila shall satisfy the same. Page 3 4.2. Kent shall indemnify and hold harmless Tukwila and its officers, agents, employees and elected officials, or any of them, from any and all claims, actions, suits, liability, loss, costs, expenses and damages of any nature whatsoever, by any reason of or arising out of any act or omission of Kent, its officers, agents, employees and elected officials, or any of them, relating to or arising out of the performance of this Agreement. In the event that any suit based upon such a claim, action, loss or damage is brought against Tukwila, Kent shall defend the same at its sole cost and expense; provided that Kent retains the right to participate in said suit if any principle of governmental or public law is involved; and if final judgment be rendered against Tukwila or its officers, agents, employees and elected officials, or any of them, or jointly against Tukwila and Kent and their respective officers, agents, employees and elected officials, or any of theirs, Kent shall satisfy the same. 5. Dispute Resolution. It is the parties' intent to resolve any disputes relating to the interpretation or application of this Agreement informally through discussions at the staff level with the respective departmental Directors and Administrators. In the event disputes cannot be resolved informally at the staff level, resolution shall be sought by each city's City Administrator or Chief Administrative Officer, as the case may be, within thirty (30) days of written notice from either parry of a failure to resolve the dispute at the staff level, and if unsuccessful, then the parties agree to submit the dispute to non binding mediation/dispute resolution. The mediation/dispute resolution process shall be determined via mutual agreement of the parties and the selection of a Mediator must be jointly agreed upon by the parties. Venue for any action relating to the interpretation or enforcement of this Agreement shall be solely in King County Superior Court. 6. Independent Contractor. Each party to this Agreement is an independent contractor with respect to the subject matter herein. Nothing in this Agreement shall make any employee of Tukwila an employee of Kent, and vice versa, for any purpose, including, but not limited to, for withholding of taxes, payment of benefits, worker's compensation pursuant to Title 51 RCW, or any other rights or privileges accorded to either party's employee by virtue of their employment. At all times pertinent hereto, employees of Tukwila are acting as Tukwila employees and employees of Kent are acting as Kent employees. 7. Partial Invalidity. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. Any provisions of this Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provisions hereof, and such other provisions shall remain in full force and effect. 8. Assiiinability. The rights, duties and obligations of either party to this Agreement may not be assigned to any third party without the prior written consent of the other parry, which consent shall not be unreasonably withheld. 9. No Third -Party Rights. Except as expressly provided herein, nothing in this Agreement shall be construed to permit anyone other than the parties hereto and their successors and assigns to rely upon the covenants and agreements herein contained nor to give any such Page 4 third parry a cause of action (as a third -party beneficiary or otherwise) on account of any nonperformance hereunder. 10. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and no other verbal or written assurance or promise by any party hereto is effective or binding unless included in this Agreement. Proposed changes that are mutually agreed to shall be incorporated by a written amendment hereto. 11. Filina With Auditor. This Agreement shall be filed with the King County Auditor pursuant to RCW 39.34.040. CITY OF TUKWILA CITY OF KENT B '��J B e Y• Y• Print N Jiml erton -'rint Name: �yI vor Suzette Coo o Its: avor v Its: N avor Date: 3, Ia. a01 Date: Exhibit A Legal Description of Wetland Mitigation Area in the City of Kent Page 5 EXHIBIT A Legal Description of Wetland Mitigation Area Parcel "A TPN 0322049102 Beginning at a stone monument which is the southeast corner of Section 3, Township 22 North, Range 4 East, W.M., in King County, Washington; thence S89 °36'00 "W, along the south line of said Section 3, a distance of 1326.60 feet to the TRUE POINT OF BEGINNING; thence S89 °36'00 "W, along said section line, 866.40 feet; thence N26 °08'00 "E 1477.50 feet to the south line of South 204 th Street; thence S89 °37 '00"E, along said road, 791.30 feet; thence S35 °36'00 "W 973.80 feet, along the west bank of drainage ditch; thence S00 °3 8'00 "W 522.90 feet, along the west bank of drainage ditch, to the POINT OF BEGINNING. Parcel "B Portion of TPN 0322049049 Together with those 30 and 40 foot strips lying within the southeast quarter of Section 3, Township 22 North, Range 4 East, W.M., condemned on the 7 of October, 1905 for drainage ditch right of way for benefit of Drainage District Number 2 in King County Superior Court Cause Number 47302.