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HomeMy WebLinkAbout19-217 - Bellwether Tukwila LLLP - Restrictive Covenant Agreement (Impact Fee Exemption for Low-Income Housing)Please Return To: When Recorded Return to: City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 Attn: City Clerk 19-217 (a) Council Approval N/A DOC I ENT TITLE: Amendment to City of Tukwila Restrictive Covenant Agreement (Impact Fcc Exemption for Low -Income Housing) GRANTOR: GRANTEE: ABBREVIATED LEGAL: Bellwether Tukwila LLLP, a Washington limited liability limited partnership City of Tukwila, a non -charter, optional code Washington municipal corporation Lot 7, Block 2, and the West 63 feet of Lot 8, Block 2, Third Add. lo Adams Home Tracts, Vol. 15, P. 17. Complete Legal Description on Exhibit A TAX PARCEL NO(S): 004300-0108 REFERENCE NO.: 20191230000521; 20200311900005 AMENDMENT TO CITY OF TUKWILA RESTRICTIVE COVENANT AGREEMENT (Impact Fee Exemption for Low -Income Housing) THIS AMENDMENT TO CITY OF TUKWILA RESTRICTIVE COVENANT AGREEMENT (the "Amendment") is entered into as of June 17 , 2020, between the City of Tukwila, a non -charter optional code Washington municipal corporation (the "City"), and Bellwether Tukwila LLLP, a Washington limited liability limited partnership (the "Bellwether Tukwila"). The City and Bellwether Tukwila are collectively referred to in this Amendment as the "Parties" and individually as a "Party". WITNESETH: WHEREAS, the City and Bellwether Tukwila entered into that certain City of Tukwila Restrictive Covenant Agreement (Impact Fee Exemption for Low -Income Housing) dated December 23, 2019, and recorded under King County Auditor's File No. 20191230000521 on December 30, 2019 (the "Covenant") against the real property owned by Bellwether Tukwila and described in Exhibit A hereto in favor of the City (the "Property"); WHEREAS, pursuant to Boundary Line Adjustment Number L19-0111 recorded under King County Auditor's File No. 2020031190005, the property described in King County Auditor's File No. 20191230000521 underwent a Boundary Line Adjustment, which resulted in the revised legal description as identified herein; WHEREAS, pursuant to TMC 16.26.120(B)(6) and TMC 16.28.120(B)(6), the City has granted an 80% reduction in fire and parks impact fees on the Property; WHEREAS, in accordance with TMC 9.48.125(B)(6), the Property is also eligible for a reduction of transportation impact fees; WHEREAS, the City and Bellwether Tukwila wish to amend the Covenant to include the reduction of transportation impact fees; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency for which are hereby acknowledged, and in consideration of the promises and covenants contained herein, the parties hereby agree as follows. Section 1. Incorporation of Recitals. The foregoing recitals are correct and are hereby incorporated by reference as though fully set forth herein. Amendment to Restrictive Covenant The Confluence - I- Section 2. Amendments. (a) Section 5 shall be amended as follows: 'This Agreement shall be effective on upon the date that the final certificate of occupancy is issued by the City for the Project and shall terminate on the date that is the ten-year anniversary thereof or upon the City's receipt of the full payment of the fire, and parks, and transportation impact fees (together the "Impact Fees") pursuant to Section 8.2 of this Agreement, whoever occurs first (the "Term"). (h) Section 8.2 shall be amended as follows: In the event that Bellwether Tukwila converts the Dwelling Units and Project to a use other than for Low - Income Housing, in violation of Section (4)(i i) of this Agreement, and within 90 days after written notice from the City to Bellwether Tukwila of such default Bellwether Tukwila fails to clearly demonstrate that the Project has not been converted to a use other than Low -Income Housing, Bellwether Tukwila shall pay the City the full ihnpact 1-Fees for the Property then in effect at the time of such conversion and this Agreement shall terminate and be of no further force and effect. Upon receipt of the full payment of the Impact Fees such fee, the City will properly record a termination of this Agreement or provide Bellwether Tukwila with such other evidence of termination of this Agreement as Bellwether Tukwila shall request. Section 9.2 shall be amended as .follows: notices to be given pursuant to this Agreement shall be in writing and shall be deemed given when mailed by certified or registered mail, return receipt requested, to the parties hereto at the addresses set forth below, or .to such other place as a Party may from time .to time designate in writing: With a copy to: City Attorney City of Tukwila c/o Kenyon-L-Nsend, PLLC 11 Front th Issaquah7-WA 98027 Ogden Murphy Wallace P1,LC 901 5'1' Ave Suite 3500 Seattle, WA 98164 Section 3. Survival of Provisions: Incorporation by Reference. Except as amended by this .Amendment, the terms. of the Covenant shall continue in fUllforce and. effect until the expiration or termination of .the Covenant in accordance with its terms. Section 4. Governing Law, Venue. This Amendment is governed by the laws of the State of Washington. Venue for any action shall be in King County Superior Court. -2- Section 5. Successors and Assigns. This Amendment is binding upon and will inure to the benefit of the Parties and their respective permitted successors and assigns. Section 6. Modification; Headings. This Amendment may not be modified or amended except by an instrument in writing signed by Bellwether Tukwila and the City. The headings in this Amendment are for the purpose of reference only and do not limit or otherwise affect any of the terms hereof. Section 7. No Third -Party Beneficiaries, No Dedication. This Amendment is not intended to confer upon any person other than the Parties to this Amendment any rights or remedies under this Amendment. Nothing in this Amendment shall he deemed to be a gift or dedication of any portion of the re& property referred to herein to the general public nor for any public use or purpose whatsoever. Section 8. Authority. The Parties each represent and warrant that they have full power and actual authority to enter this Amendment and to carry out all actions required of them by this Amendment. All persons are executing this Amendment in their representative capacities and represent and warrant that they have full power and authority to bind their organizations. Section 9. Entire Agreement. This Amendment represents the entire agreement of the Parties with respect to the subject matter hereof. There are no other agreements, oral. or written, except as expressly set forth herein and the Covenant, as amended by this Amendment, supersedes all previous agreements oral or written. Section 10. Further Action. Each Party agrees to execute any and all instruments, documents and resolutions as may be reasonably necessary to effectuate the covenants, terms, conditions and provisions contained herein. Section 11. Matters of Record, This Amendment is subject to all existing easements, licenses, encumbrances, title defects, rnatters of record, reservations and conditions affecting the ..Property. Signatures Fol wl -3 IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by thir respective, duly authorized representatives, as of the day and year first written above. City of Tukwila, a non -charter, optional code Washington municipal corporation C-4(7_,~ ..65e/cg By Allan Ekberg Mayor ATTEST: (T%(cthej By City Clerk APPROVED AS TO FORM: c )(I Saw e By City Attorney Amendment to Resit-. C wenant The Confluence Signature 144I 1 of 2 Bellwether Tukwila LLLP, a Washington limited liability limited partnership By: Bellwether Tukwila GP LLC Its: General Partner By: Bellwether Housing Its: Manager .1,93ted?2,/, ZoycK Susan Boyd Chief Executive Officer Amendment 10 Restrictive Covenant - The Confluence Signature Page 2 of 2 EXHIBIT A 11„1EGAIL, DESCRIPTION LOT 7, BLOCK 2, AND THE WEST 63 FEET OF LOT 8, BLOCK 2, THIRD ADDITION TO ADAMS HOME TRACTS, RECORDED IN VOLUME 15 OF PLATS, PAGE 17, IN KING COUNTY, WASHINGTON. Exhibit A When Recorded Return to: City of Tukwila 6200 Southcenter Blvd. Tukwila, WA 98188 Attn: Ben Hayman DOCUMENT TITLE: GRANTOR: GRANTEE: ABBREVIATED LEGAL: TAX PARCEL NO(S): REFERENCE NO.: 19-217 Council Approval N/A City of Tukwila Restrictive Covenant Agreement (Impact Fee Exemption for Low -Income Housing) Bellwether Tukwila LLLP, a Washington limited liability limited partnership City of Tukwila, a non -charter, optional code Washington municipal corporation Ptn. Lot 8 and all of Lot 7, Block 2, Third Add. to Adams Home Tracts, Vol. 15, P. 17 Complete Legal Description on Exhibit A 004300-0108-00; 004300-0112-04; and 004300-0116-00 N/A CITY OF TUKWILA RESTRICTIVE COVENANT AGREEMENT (Impact Fee Exemption for Low -Income Housing) THIS RESTRICTIVE COVENANT AGREEMENT (this "Agreement") is entered into as of the Z3(.4 day of "Decer,Ogc 2019, (the "Effective Date") between the City of Tukwila, a non -charter, optional code Washington municipal corporation (the "City") and Bellwether Tukwila LLLP, a Washington limited liability limited partnership ("Bellwether Tukwila"). The City and Bellwether Tukwila are collectively referred to in this Development Agreement as the "Parties," and individually as a "Party." Restrictive Covenant Agreement — The Confluence Page 1 of 6 RECITALS WHEREAS, the City seeks to promote the development of affordable housing; WHEREAS, pursuant to Sections 16.26.040 and 16.28.040 of the Tukwila Municipal Code ("TMC"), the City shall collect fire and parks impact fees from applicants seeking development approval from the City, such fees which are to be collected from the applicant at the time a building permit is issued; WHEREAS, Bellwether Tukwila is the fee owner certain real property located at 3703, 3705, 3707 and 3481 South 152nd Street, Tukwila, WA, and as legally described on Exhibit A attached hereto (the "Property"); WHEREAS, Bellwether Tukwila has applied to the city for a building permit to construct certain improvements on the Property, including a multifamily development containing dwelling units all of which will be Low -Income Housing as that term is defined under TMC 16.26.030(11) and TMC 16.28.030(10) such definition which is incorporated in Section 2 of this Agreement (such development, the "Project", and further defined in Section 2 of this Agreement); WHEREAS, pursuant to TMC 16.26.120(B)(6) and TMC 16.28.120(B)(6), fire and parks impact fees may be reduced for Low -Income Housing where requested by a property owner and granted subject to certain criteria (the "Exemption Criteria"); WHEREAS, pursuant to TMC 16.26.120(B)(6) and 16.28.120(B)(6), Bellwether Tukwila has timely applied to the City for a reduction in fire and parks impact fees; WHEREAS, the City has found that the Project satisfies the Exemption Criteria; WHEREAS, in exchange for certain restrictions on the Property, the City has agreed to grant an exemption under TMC 16.26.120 and TMC 16.28.120, pursuant to which the Project will be granted an 80% reduction in fire and parks impact fees (the "Impact Fee Exemption"); WHEREAS, pursuant to TMC 16.26.120(B)(6)(b) and TMC 16.28.120(B)(6)(b), the owner of a property receiving an exemption from fire and parks impact fees must record a covenant against such property in accordance with Revised Code of Washington (RCW) Section 82.02.060(3); and WHEREAS, in consideration of the Impact Fee Exemption, and pursuant to those requirements set forth immediately above, Bellwether Tukwila agrees to the restrictions, covenants and obligations set forth herein, which will run with and be a burden on the Property and will be binding on any subsequent purchaser, grantee, owner or lessee and any other person or entity having any right, title or interest therein and upon their respective heirs executors, administrators, devisees, successors and assigns of any purchaser, grantee, owner or lessee of the Property. Restrictive Covenant Agreement — The Confluence Page 2 of 6 AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency for which are hereby acknowledged, and in consideration of the promises and covenants contained herein, the parties hereby agree as follows. Section 1. Incorporation of Recitals. The foregoing recitals are correct and are hereby incorporated by reference as though fully set forth herein. Section 2. Definitions In addition to other terms defined in in the Code and elsewhere in this Agreement, the following terms have the meanings set forth below. Area Median Income or AMI means the median gross household income, adjusted for household size, for King County, as defined and established annually by the U.S. Department of Housing and Urban Development as the Seattle -Bellevue WA HUD Metro FMR Area. Dwelling Units means the dwelling units in the Project used as Low -Income Housing. Low -Income Housing means housing where monthly costs, including utilities other than telephone, do not exceed 30% of the resident's household monthly income and where household monthly income must be 80 percent or less of the King County Median family income adjusted for family size as reported by the U.S. Department of Housing and Urban Development. Project means that portion of the Property to be used as a multifamily building containing Dwelling Units all of which will be Low -Income Housing as that term is defined under TMC 16.26.030(11) and TMC 16.28.030(10) and related building infrastructure, parking and yard areas, and does not include any portion of the Property dedicated or otherwise reserved for public use. Section 3. Statement of Authority. This Agreement is entered pursuant to RCW 82.02.060 and Chapter 16.26 and 16.28 TMC. Section 4. Project Requirements. During the Term of this Agreement, the Bellwether Tukwila covenants and agrees to comply with each of the following requirements: (i) Bellwether Tukwila shall rent seventy-eight (78) of the Dwelling Units to households whose income at initial occupancy is at or below 50% of AMI and otherwise meeting the requirements for Low -Income Housing and shall rent twenty-one (21) of the Dwelling Units with two (2) or more bedrooms to households whose income at initial occupancy is at or below 60% of AMI; and Restrictive Covenant Agreement — The Confluence Page 3 of 6 (ii) Bellwether Tukwila shall not use the Project for any purpose other than for Low - Income Housing. Section 5. Term. This Agreement shall be effective on upon the date that the final certificate of occupancy is issued by the City for the Project and shall terminate on the date that is the ten-year anniversary thereof or upon the City's receipt of the full fire and parks impact fee pursuant to Section 8.2 of this Agreement, whichever occurs first (the "Term"). Section 6. Reporting. Bellwether Tukwila agrees to submit to the City, or its designee, such information and reports as City may reasonably require to demonstrate compliance with the terms of this Agreement, including but not limited to: (a) verification of the tenant's income at initial occupancy, (b) household size, (c) Dwelling Unit size and (d) rent of the Dwelling Unit. Section 7. Covenants Run With the Property. Bellwether Tukwila hereby declares its express intent that, during the Term, the covenants, restrictions, agreement, and obligations set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon successors in title, including any purchaser, grantee or lessee of any portion of the Property, any other person or entity having any right, title, or interest therein and upon their respective heirs, executors, administrators, devisees, successors and assigns of any purchaser, grantee, or lessee of any portion of the Property. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof or interest therein shall contain an express provision making such conveyance subject to the covenants, restrictions, charges and easements contained herein; provided, however, that any such contract, deed or other instrument shall conclusively be held to have been executed, delivered, and accepted subject to such covenants, regardless of whether or not such covenants are set forth or incorporated by reference in such contract, deed, or other instrument. Section 8. Default. 8.1 In the event Bellwether Tukwila fails to perform or abide by the restrictions of Section (4)(i) of this Agreement, and such failure, to the extent curable, is not cured within ninety (90) days after delivery of written notice from the City, such notice which shall include, but not be limited to setting forth the number of Dwelling Units in default of such restrictions (a "Rent Default Notice"), the City may institute and prosecute any proceeding at law or equity to abate, prevent or enjoin any such violation or to compel specific performance by Bellwether Tukwila of its obligations hereunder; provided that, Bellwether Tukwila shall not be required by any provision herein to evict a tenant. During such 90-day period, Bellwether Tukwila shall have the right to cure the default set forth in the Rent Default Notice, including but not limited to by submitting to the City a reasonable explanation for such default, and entering into a written agreement with the City setting forth a plan to effect a cure and any other conditions of such settlement. 8.2 In the event that Bellwether Tukwila converts the Dwelling Units and Project to a use other than for Low -Income Housing, in violation of Section (4)(ii) of this Agreement, and Restrictive Covenant Agreement — The Confluence Page 4 of 6 within 90 days after written notice from the City to Bellwether Tukwila of such default Bellwether Tukwila fails to clearly demonstrate that the Project has not been converted to a use other than Low -Income Housing, Bellwether Tukwila shall pay the City the full fire and parks impact fees for the Property then in effect at the time of such conversion and this Agreement shall terminate and be of no further force and effect. Upon receipt of payment of such fee, the City will promptly record a termination of this Agreement or provide Bellwether Tukwila with such other evidence of termination of this Agreement as Bellwether Tukwila shall request. Section 9. Other. 9.1 Severability. The invalidity of any clause, part or provision of this Agreement shall not affect the validity of the remaining portions hereof. 9.2 Notices. All notices to be given pursuant to this Agreement shall be in writing and shall be deemed given when mailed by certified or registered mail, return receipt requested, to the parties hereto at the addresses set forth below, or to such other place as a Party may from time to time designate in writing: Owner: City: Bellwether Tukwila LLLP c/o Bellwether Housing 1651 Bellevue Avenue Seattle, WA 98122 City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 With a copy to: City Attorney City of Tukwila c/o Kenyon Disend, PLLC 11 Front Street South Issaquah, WA 98027 9.3 Governing Law, Venue. This Agreement is governed by the laws of the State of Washington. Venue for any action shall be in King County Superior Court. 9.4 Successors and Assigns. This Agreement is binding upon and will inure to the benefit of the Parties and their respective permitted successors and assigns. 9.5 Modification; Headings. This Agreement may not be modified or amended except by an instrument in writing signed by the Bellwether Tukwila and the City. The headings in this Agreement are for the purpose of reference only and do not limit or otherwise affect any of the terms hereof. Restrictive Covenant Agreement — The Confluence Page 5 of 6 9.6 No Third -Party Beneficiaries, No Dedication. This Agreement is not intended to confer upon any person other than the Parties to this Agreement any rights or remedies under this Agreement. Nothing in this Agreement shall be deemed to be a gift or dedication of any portion of the real property referred to herein to the general public nor for any public use or purpose whatsoever. 9.7 Authority. The Parties each represent and warrant that they have full power and actual authority to enter this Agreement and to carry out all actions required of them by this Agreement. All persons are executing this Agreement in their representative capacities and represent and warrant that they have full power and authority to bind their organizations. 9.8 Entire Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof. There are no other agreements, oral or written, except as expressly set forth herein and this Agreement supersedes all previous agreements oral or written. 9.9 Further Action. Each Party agrees to execute any and all instruments, documents and resolutions as may be reasonably necessary to effectuate the covenants, terms, conditions and provisions contained herein. 9.10 Matters of Record. This Agreement is subject to all existing easements, licenses, encumbrances, title defects, matters of record, reservations and conditions affecting the Property. [no further text; signatures appear on following pages] Restrictive Covenant Agreement — The Confluence Page 6 of 6 IN WITNESS WHEREOF, the parties have caused this Restrictive Covenant Agreement to be signed by their respective, duly authorized representatives, as of the day and year first written above. City of Tukwila, a non -charter, optional code Washington municipal corporation By an erg Mayor ATTEST: By 2.z3/101 City Clerk APPROVED TO FORM: By STATE OF WASHINGTON ) ss COUNTY OF KING On this 23"-' e day of "P- cl'1141-76 2019, before me personally appeared -1/4,01 , to me known to be the 11:14-i- c37"" of the City of Tukwila, and acknowledged said iistrument to be the free and voluntary aWand deed of said entity, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument. In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written. TRAAt I WON OTAlia o . -:•; 0 — / 15, l'o,„70.2 ,s• l'"N‘‘"I,‘ // WAS' - (Signature ofNotary) t7=5 oto ,k-"‘iii (Legibly Print or Stamp Name of Notary) Notary public in and for the State of Washington My appointment expires /0 Restrictive Covenant Agreement - The Confluence Signature Page 1 of 2 Bellwether Tukwila LLLP, a Washington limited liability limited partnership By: HRG Development LLC Its: General Partner By: Bell Its: Mana Susanh d Chief Executive Officer STATE OF WASHINGTON ) ss . COUNTY OF KING I certify that I know or have satisfactory evidence that Susan Boyd is the person who appeared before me and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Chief Executive Officer of Bellwether Housing, the manager of HRG Development LLC, the general partner of Bellwether Tukwila LLLP, to be the free and voluntary act such nonprofit corporation on behalf of such company on behalf of such partnership for the uses and purposes mentioned in the instrument. DATED: Ve i9.-(7( \AA/; (Print N4m i) n ," 71 Residingat - v My appointment expires: - () 1 7 - Restrictive Covenant Agreement - The Confluence Signature Page 2 of 2 EXHIBIT A LEGAL DESCRIPTION LOT 7, BLOCK 2, THIRD ADDITION TO ADAMS HOME TRACTS, RECORDED IN VOLUME 15 OF PLATS, PAGE 17, IN KING COUNTY, WASHINGTON. AND THE WEST 63 FEET OF LOT 8, BLOCK 2, THIRD ADDITION TO ADAMS HOME TRACTS, ACCORDING TO PLAT RECORDED IN VOLUME 15 OF PLATS, PAGE 17, RECORDS OF KING COUNTY, WASHINGTON. Restrictive Covenant Agreement - The Confluence Exhibit A