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HomeMy WebLinkAbout18-053 - Valley View Sewer District - Tukwila Village Right of Entry Consent Agreement18-053 Council Approval N/A CONSENT AGREEMENT This Agreement Regarding Temporary Sewer Service ("Agreement") is entered into by and between Valley. View Sewer District, a Washington municipal corporation (referred to herein as "District") and the City of Tukwila, a Washington municipal corporation operating as a non -charter code city (referred to herein as "City"), individually a "Party" and collectively the "Parties," for the purposes set forth below. RECITALS A. WHEREAS, Tukwila Village Development Associates, LLC, a Washington limited liability company (referred to herein as "Developer"), and the City have entered into a Disposition and Development Agreement dated October 30, 2012 (the "DDA") pursuant to which the Developer is pursuing a mixed use development project referred to generally as Tukwila Village (the "Development"); B. WHEREAS, as part of the Development, the Developer was required to provide for sewer and water facilities to serve the Development; C. WHEREAS, in connection with the sewer facilities to be constructed to serve the Development, the Developer entered into a Developer Extension Agreement with the District dated November 19, 2013 (the "DE Agreement"); D. WHEREAS, the DE Agreement required, among other things, the Developer to construct the necessary sewer facilities within an area that would be covered by an easement granting the District the right to operate, maintain, repair and replace the sewer facilities within the easement once the private sewer facilities are conveyed and transferred by the Developer to the District; E. WHEREAS, due to a utility conflict discovered during the Developer's construction of the sewer line and other utilities, the Developer determined that it would not be able to connect to the District's sewer line at the location originally planned and the sewer line was re-routed to a new location; F. WHEREAS, it was subsequently determined that the Developer re-routed the sewer line to a location that resulted in an encroachment on adjacent private property located at 14120 Tukwila International Blvd., Tukwila, Washington (Parcel No. 1523049123) and the adjacent property owner has to date been unwilling to grant an easement to the Developer covering that portion of the existing sewer line encroaching on the adjacent real property; G. WHEREAS, because the Developer is not able to establish that the sewer line is constructed entirely within an area covered by an easement, the District has refused to accept ownership of the sewer line and the sewer line remains the private personal property of the Developer; isf- of 2 onn H. WHEREAS, the Developer has requested the District to allow Developer to connect a building referred to as "Building C" to the private sewer line and be allowed to use the private sewer line to convey wastewater from Building C into the District's public sewer system while the Developer seeks to obtain the necessary easement rights from the adjacent property owner or makes alternative plans for the conveyance of wastewater into the District's public sewer system; and I. WHEREAS, the Developer and District have entered into an Agreement Regarding Temporary Sewer Service dated April 3, 2018 (the "Temporary Sewer Agreement") attached hereto as Exhibit A; and J. WHEREAS, provision of sewer services by the District will require the District to enter upon and inspect property owned by the City, AGREEMENT NOW, THEREFORE, in consideration of the covenants and conditions set forth below, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals provisions set forth above are incorporated into this Agreement by this reference as if set forth in full herein. 2. Consent. The City consents and approves the terms and conditions in the Temporary Sewer Agreement. 3. Right to Inspect. The City grants the District the right to inspect all buildings, structures and sewer facilities located on the subject real property identified in the Temporary Sewer Agreement, including Buildings A and B, to ensure that no wastewater is being collected and conveyed into the District's public sewer system, except for wastewater collected and conveyed from Building C. The City grants the District and its employees and agents the right of entry to the subject real property and any buildings or structures located thereon during reasonable hours in order to perform the inspections authorized by this Section 3. 4. City Obligation to Perform. The City has no obligation to perform any of the responsibilities of the Developer as required by the DE Agreement or the Temporary Sewer Agreement. 5. Miscellaneous. 5.1 Governing Law; Severability. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington. If any court of competent jurisdiction shall determine that any portion of this Agreement is unenforceable, then, to the extent possible, the remaining portions hereof shall be unaffected thereby. 5.2 Interpretation. Each of the Parties was represented by legal counsel with respect to this Agreement, or was given a reasonable opportunity to consult with their own legal counsel, and have had ample opportunity to review this Agreement. This Agreement shall not be interpreted in favor of or against either Party by reason of whose attorney originally drafted it. 2 5.3 Disputes. Venue for any action that may be brought as a result of any dispute between the Parties hereto in any way arising out of this Agreement shall be in the King County Superior Court. In the event of any such dispute, the Party substantially prevailing in the resolution thereof shall be entitled to receive from the other Party, in addition to any substantive relief, said prevailing Party's reasonable attorneys' fees incurred in the enforcement of the terms of this Agreement. 5.4 Counterparts. This Agreement may be executed in identical counterparts, and once all of the Parties hereto have executed a counterpart, this Agreement shall be fully enforceable, as if all Parties had signed the same original instrument. 5.5 Integration. This Agreement constitutes the full and complete expression of the agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous offers, negotiations or agreements between the Parties. Any amendment or modification to any of the terms hereof shall be in writing, signed by the Parties hereto. Dated this 11‘day of April, 2018. DISTRICT: Valley View Sewer District CITY: City of Tukwila By ,�f' By An ew LaRue Allan Ekberg General Manager Mayor APPROVED AS TO FORM: qa.c.LL Office of the City Attorney ATTEST: Office of the Ci Cler 3 vic EXHIBIT A [Attach Temporary Sewer Agreement Between TVDA and District] 4 AGREEMENT REGARDING TEMPORARY SEWER SERVICE This Agreement Regarding Temporary Sewer Service ("Agreement") is entered into by and between Valley View Sewer District, a Washington municipal corporation (referred to herein as "District") and Tukwila Village Development Associates, LLC, a Washington limited liability company (referred to herein as "Developer"), individually a "Party" and collectively the "Parties," for the purposes set forth below. RECITALS A. WHEREAS, the Developer and the City of Tukwila, a Washington municipal corporation (the "City"), have entered into a Disposition and Development Agreement dated October 30, 2012 (the "DDA"), the terms of which are incorporated herein by this reference, pursuant to which the Developer is pursuing a mixed use development project referred to generally as Tukwila Village (the "Development"); B. WHEREAS, as part of the Development, the Developer was required to provide for sewer and water facilities to serve the Development; C. WHEREAS, in connection with the sewerfacilities to be constructed to serve the Development, the Developer entered into a Developer Extension Agreement with the District dated November 19, 2013 (the "DE Agreement"), the terms of which are incorporated herein by this reference; D. WHEREAS, the DE Agreement required, among other things, the Developer to construct the necessary sewer facilities within an area that would be covered by an easement granting the District the right to operate, maintain, repair and replace the sewer facilities within the easement once the private sewer facilities are conveyed and transferred by the Developer to the District; E. WHEREAS, due to a utility conflict discovered during the Developer's construction of the sewer line and other utilities, the Developer determined that it would not be able to connect to the District's sewer line at the location originally planned and the sewer line was re-routed to a new location; F. WHEREAS, it was subsequently determined that the Developer re-routed the sewer line to a location that resulted in an encroachment on adjacent private property located at 14120 Tukwila International Blvd., Tukwila, Washington (Parcel No. 1523049123) and the adjacent property owner has to date been unwilling to grant an easement to the Developer covering that portion of the existing sewer line encroaching on the adjacent real property; G. WHEREAS, a depiction of the area of encroachment and required sewer easement and a legal description for the required sewer easement are attached hereto as Exhibits A and B, which exhibits are incorporated herein by this reference; 9636568.2 - 089539 -0001 -1- H. WHEREAS, because the Developer is not able to establish that the sewer line is constructed entirely within an area covered by an easement, the District has refused to accept ownership of the sewer line and the sewer line remains the private personal property of the Developer; I. WHEREAS, the Developer has requested that the Developer be allowed to connect a building referred to as "Building C" to the private sewer line and be allowed to use the private sewer line to convey wastewater from Building C into the District's public sewer system while the Developer seeks to obtain the necessary easement rights from the adjacent property owner or makes alternative plans for the conveyance of wastewater into the District's public sewer system; and J. WHEREAS, the Parties desire to enter into this Agreement to document the terms and conditions pursuant to which the District is willing to accept wastewater from the Developer's private sewer line on a temporary basis. AGREEMENT NOW, THEREFORE, in consideration of the covenants and conditions set forth below, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals provisions set forth above are incorporated into this Agreement by this reference as if set forth in full herein. 2. Conditional Acceptance of Wastewater from Building C. Subject to the terms of this Agreement, the District is willing to accept on a temporary basis wastewater being generated from Building C which will be conveyed through the Developer's private sewer facility located on the subject real property and into the District's public sewer system. Nothing in this Agreement shall be interpreted to mean that the District has agreed to accept legal title and ownership of the private sewer facilities used to convey wastewater from Building C to the District's public sewer system. As private sewer facilities, the Developer shall remain solely responsible for the maintenance, repair and replacement of the private sewer facilities until such time that the private sewer facilities are conveyed and transferred to the District in accordance with the terms of the DE Agreement. The District's agreement to accept wastewater from Building C shall be subject to the following limitations: 2.1 The Developer shall undertake diligent efforts to obtain the necessary easement rights covering the private sewer facilities from the adjacent property owner or secure other necessary easement rights. The costs and expenses of acquiring the necessary easement rights shall be the sole responsibility of the Developer. 2.2 In the event the owner of the adjacent real property initiates legal action against the Developer and/or the District seeking an order requiring the Developer's private sewer facilities to be relocated off of the adjacent real property, the Developer shall be solely responsible for defending any such claims asserted against the Developer. The District may, at its sole option, defend against any such claim asserted against the District or tender the defense 636568.2 - 089539 -0001 -2- of the claim to the Developer. In any case, the Developer shall be responsible for all costs, expenses and attorneys' fees incurred by the District in defending against any such claims by the adjacent property owner. 2.3 In the event a court enters a temporary restraining order, injunction, judgment or order requiring the Developer to: (a) cease conveying wastewater through the private sewer line, or (b) relocate the private sewer line off of the adjacent real property, the Developer shall comply with the terms of any lawful order or judgment, subject to the Developer's right to appeal any adverse ruling. Further, the Developer shall be required to ensure that sewer service is maintained to the tenants and occupants of Building C through the use of a temporary sewer bypass system or other similar private sewer facility until such time as the Developer is able to provide for a permanent connection to the District's public sewer system within an easement as required by the terms of the DE Agreement. All costs and expenses associated with the temporary sewer bypass system or other similar private sewer facility shall be the sole responsibility of the Developer. 2.4 The District's willingness to accept wastewater from Building C on a temporary basis during the term of this Agreement shall not be viewed as a determination that the Developer has the legal right to do so. Any decision made by the Developer to begin conveying wastewater through the private sewer facilities shall be the sole decision of the Developer and any consequences associated with that decision shall not be attributable to the District in any way. 3. No Additional Connections. No other buildings located on the subject real property, including the buildings generally referred to as "Building A" and "Building B," shall be allowed to connect to the private sewer line, or any other sewer line on the property, that conveys wastewater into the District's public sewer system until such time as the following requirements are satisfied: 3.1 The Developer shall obtain the necessary easement rights as required under the terms of the DE Agreement and the sewer line shall be conveyed and transferred to the District pursuant to a bill of sale; 3.2 The Developer shall pay all general facility charges and connection charges due and owing at the District's current rates in effect at the time of connection. The Developer will receive a credit for any pre -paid general facility charges and connection charges previously paid, but the Developer will be required to pay the difference between the general facility charges and connection charges previously paid and the current rates in effect at the time of connection. 4. Right to Inspect. The Developer hereby grants the District the right to inspect all buildings, structures and sewer facilities located on the subject real property, including Buildings A and B, to ensure that no wastewater is being collected and conveyed into the District's public sewer system, except for wastewater collected and conveyed from Building C. The Developer grants the District and its employees and agents the right of entry to the subject real property and any buildings or structures located thereon during reasonable hours in order to perform the 9636568.2 - 089539 -0001 -3- inspections authorized by this Section 4. In the event the Developer denies the District the right to inspect the real property, and any buildings or structures located thereon, the Developer shall be deemed to be in breach of this Agreement and the District shall have the right to terminate this Agreement immediately by issuance of a written notice of termination. The City similarly granted the District the right to inspect all buildings, structures and sewer facilities located on the subject real property, including Buildings A and B, pursuant to a Consent Agreement dated October , 2017. 5. Intent of this . Agreement. The intent of this Agreement is to allow the Developer time to acquire the necessary easement rights from the adjacent property owner or to relocate the private sewer line to another location where easement rights may be obtained for the benefit of the District. Once the Developer has secured the necessary easement rights, the Developer will be able to transfer and convey the private sewer facilities to the District in accordance with the terms of the DE Agreement. Until such time as that occurs, the District shall not have any ownership interest in the Developer's private sewer facilities. By entering into this Agreement, the District is not taking a position for or against the Developer or for or against the adjacent property owner. Rather, the District is attempting to provide an interim solution or process that may be used by the Developer and the adjacent property owner to resolve this matter in accordance with mutually agreeable terms and conditions. 6. Term of Agreement — Termination of Sewer Service. This Agreement shall be effective upon full execution by the District and Developer and will continue for a period of two (2) years. The Developer shall have the option to extend the term of the Agreement for one additional six (6) month period; provided that the Developer provides the District with its written notice to exercise its option to extend the Agreement at least thirty (30) days before the expiration of the initial term. The District and the Developer may also agree to extend this Agreement for an additional period upon such terms and conditions that are mutually agreeable to the Parties, which agreement shall be set forth in writing and signed by both the District and the Developer. If at the expiration of the initial or any extended term of this Agreement, the Developer has not secured the easement rights necessary to cover the subject sewer line, the Developer agrees that it shall be required to: (a) terminate conveying any wastewater from Building C through that portion of the private sewer line that encroaches on the adjacent real property and into the District's public sewer system, and (b) disconnect the private sewer line from the District's public sewer system. In the event the Developer fails or refuses to disconnect the private service line from the District's public sewer system, the District shall have the right to disconnect the private service line from the District's public sewer system, without further action or approvals being required. The costs and expenses incurred by the District to disconnect the private sewer line from the District's public sewer system shall be reimbursed by the Developer within thirty (30) days of receipt of an invoice. 7. Release. Except with respect to performance under this Agreement, the Developer hereby releases the District, including the District's officials, employees, engineers and agents, from any and all claims (whether formally or informally asserted), damages or injuries in any way arising out of or relating to the events that led to the construction of the sewer facilities that encroached on the adjacent real property. 636568.2 - 089539 -0001 -4- 8. Indemnification and Hold Harmless; Performance Bond. 8.1 The Developer shall indemnify, defend and hold the District and its elected officials, employees, agents, attorneys, and engineers harmless from and against all losses and claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recovered against the District arising from or relating to the Agreement, or by reason of the act or omission of the Developer, Developer's agents or employees, or the contractor in the performance of any work, and for any cost or expense incurred by the District in connection therewith, including overhead expense, legal expense, attorneys' fees and costs attributable thereto; and if suit in respect to the foregoing is filed, the Developer shall appear and defend the same at its own cost and expense, and if judgment is rendered or settlement made requiring payment of damages by the District, the Developer shall pay the same. 8.2 The Developer shall be required to provide the District with a performance bond in an amount not less than $100,000.00 to secure the Developer's performance of the obligations required by this Agreement. 8.3 The terms and provisions of Section 8 shall survive the termination or expiration of this Agreement. 9. Reimbursement for Costs and Expenses. The Developer agrees to reimburse the District for the legal fees incurred by the District relating to drafting and negotiating this Agreement. Payment shall be made within thirty (30) days of receipt of an invoice. 10. Miscellaneous. 10.1 Governing Law; Severability. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington. If any court of competent jurisdiction shall determine that any portion of this Agreement is unenforceable, then, to the extent possible, the remaining portions hereof shall be unaffected thereby. 10.2 Interpretation. Each of the Parties was represented by legal counsel with respect to this Agreement, or was given a reasonable opportunity to consult with their own legal counsel, and have had ample opportunity to review this Agreement. This Agreement shall not be interpreted in favor of or against either Party by reason of whose attorney originally drafted it. 10.3 Disputes. Venue for any action that may be brought as a result of any dispute between the Parties hereto in any way arising out of this Agreement shall be in the King County Superior Court. In the event of any such dispute, the Party substantially prevailing in the resolution thereof shall be entitled to receive from the other Party, in addition to any substantive relief, said prevailing Party's reasonable attorneys' fees incurred in the enforcement of the terms of this Agreement. 9636568.2 - 089539 -0001 -5- 10.4 Counterparts. This Agreement may be executed in identical counterparts, and once all of the Parties hereto have executed a counterpart, this Agreement shall be fully enforceable, as if all Parties had signed the same original instrument. 10.5 Integration. This Agreement constitutes the full and complete expression of the agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous offers, negotiations or agreements between the Parties. Any amendment or modification to any of the terms hereof shall be in writing, signed by the Parties hereto. �� ,4pr�'I Dated this 3 day of prittirer, 201% DISTRICT: DEVELOPER: Valley View Sewer District By a Diel- An J,Qa, eneral Manager 636568.2 - 089539 -0001 4ati$2.- Tukwila Village Development Associates, LLC y Its h4 GtIZ 4. -6- EXHIBIT A Depiction of Area of Encroachment and Required Sewer Easement i 11-N50.39.28"W 74.10' (RADIAL) 50' ' ./A=0.30'12" R=1960.00' L=17.22" ra icr 50' S25°49'1 6"E 15.62' SEWER EASEMENT S73.14.00V 10.10' GRAPHIC SCALE 0 .50 100 1"WO FEET 014 pft. Q om\la BRIAN GILLOOLY ■ 200 9, N 0 CO E 0 a File:P:\ 15000s\ 15255\survey\1' 5255tEXH37—sewer.dwg SCALE: HORIZONTAL 1'=100' VERTYC N/A Cf yi , 4.G EVO 18215 72ND AVENUE SOUTH KENT, WA 98032 (425)251-6222 (425)251-8782 FAX CIVIL ENGINEMIoNG, LAND PLANNING, SURVEYING, ENVIRONMENTAL SERVICES DESIGNED XXX 'DRAWN For: TUKWILA VILLAGE J08 NUMBER 15255 15255L.037.DQC Title: SEWER EASEMENT STM If -CHECKED BDG 'APPROVED BDG IDATE $HE€r 1 of 1 9636568.2 - 089539 -0001 -7- EXHIBIT B Legal Description of Required Sewer Easement That portion of the Southeast quarter of the Southwest quarter of Section 15, Township 23 North, Range 4 East, Willamette Meridian, more particularly described as follows: BEGINNING at the Northwest corner of Parcel A of Lot Consolidation L13-021, recorded under Recording No. 20150428900001, Records of King County, Washington, being a point on the East margin of Tukwila International Boulevard; THENCE North 73°i4'00" East, 10.10 feet along the North Line of said Parcel A; THENCE North 25°49'16" West, 15.62 feet to said East margin, being a point on a non -tangent curve, the radius of which bears North 80°39'27" West; THENCE Southerly along said East margin, .along the arc of a curve concave to the West, having a radius of 1,960.00 feet, through a central angle of 00°30'12", and an arc length of 1722 feet to the POINT OF BEGINNING. Project Name: Tu6swda Village June 2, 2015 t3DGfsfrn 15255L034.doc Exhibit: 15255EXH37-sewer.dwg 636568.2 - 089539 -0001 Page 1 of 1 -8-