HomeMy WebLinkAboutCOW 2012-10-22 COMPLETE AGENDA PACKETTukwila City Council Agenda
COMMITTEE OF THE WHOLE
Jim Haggerton, Mayor Counci /members: Joe Duffie Dennis Robertson
David Cline, City Administrator Allan Ekberg Kathy Hougardy
V Sea l, Cou n c il Pr D e'Sea n Q K ate Kr
EXECUTIVE SESSION 6:30 PM 7:00 PM +3
Collective Bargaining Pursuant to RCW 42.30.140(4)(a) (30minutes)
Monday, October 22, 2012, 7:00 PM Tukwila City Hall Council Chambers
1. CALL TO ORDER PLEDGE OF ALLEGIANCE
2. SPECIAL
PRESENTATION
Presentation of proposed 2013 -2014 biennial budget. MayorHaggerton.
3. CITIZEN COMMENT
At this time, you are invited to comment on items not included on this agenda
(please limit your comments to five minutes per citizen). To comment
on an item listed on this agenda, please save your comments until the issue is
presented for discussion.
4. SPECIAL
a. An ordinance regarding the preservation of historical landmarks in the
Pg.1
ISSUES
City.
b. A resolution authorizing the cancellation of outstanding General Fund
Pg,31
claims and payroll checks, 411 Fund Foster Golf Course claims checks,
and Municipal Court checks.
c. Review and discussion of the proposed Disposition and Development
pg,47
Agreement for Tukwila Village.
5. REPORTS
a. Mayor b. City Council
c. Staff d. City Attorney e. Intergovernmental
6. MISCELLANEOUS
7. EXECUTIVE SESSION
S. ADJOURN TO SPECIAL MEETING
SPECIAL MEETING
Ord #2383 Res #1778
1. CALL TO ORDER ROLL CALL
2. CONSENT
a. Approval of Minutes: 10/8/12 (SpeciaiMtg.)
AGENDA
b. Approval of Vouchers.
c. A resolution authorizing the cancellation of outstanding General Fund
claims and payroll checks, 411 Fund Foster Golf Course claims checks,
Pg•31
and Municipal Court checks. [Reviewed and forwarded to Consent by
Finance Safety Committee on 10/16/12.
3. UNFINISHED
Authorize the Mayor to sign the Disposition and Development Agreement
Pg.47
BUSINESS
with Tukwila Village Development Associates, LLC, for Tukwila Village, in
substantial form as the agreement in the agenda packet.
4. ADJOURNMENT
Tukwila City Hall is wheelchair accessible.
Reasonable accommodations are available at public hearings with advance notice to the
City Clerk's Office (206- 433 -1800 or TukwilaCityClerk @TukwilaWA.gov). This notice is available at
www.tukwilawa.gov and in alternate formats with advance notice for those with disabilities.
Tukwila Council meetings are audio taped.
IL—
HOW TO TESTIFY
If you would like to address the Council, please go to the podium and state your name and address clearly for
the record. Please observe the basic riles of courtesy when speaking and limit your comments to five
minutes. The Council appreciates hearing from citizens but may not be able to take immediate action on
comments received until they are referred to a Committee or discussed under New Business.
COUNCIL MEETINGS
No Council meetings are scheduled on the 5th Monday of the month unless prior public notification is given.
Regular Meetings The Mayor, elected by the people to a four -year term, presides at all Regular Council
Meetings held on the 1st and 3rd Mondays of each month at 7:00 p.m. Official Council action in the
form of formal motions, adopting of resolutions and passing of ordinances can only be taken at Regular
Council meetings.
Committee of the Whole Meetings Council members are elected for a four -year term. The Council
President is elected by the Council members to preside at all Committee of the Whole meetings for a
one -year term. Committee of the Whole meetings are held the 2nd and 4th Mondays at 7:00 p.m.
Issues discussed are forwarded to the Regular Council meeting for official action.
GENERAL INFORMATION
At each Council meeting citizens are given the opportunity to address the Council on items that are not
included on the agenda during CITIZENS COMMENTS. Please limit your comments to 5 minutes.
Special Meetings may be called at any time with proper public notice. Procedures followed are the same as
those used in Regular Council meetings.
Executive Sessions may be called to inform the Council of pending legal action, financial, or personnel
matters.
PUBLIC HEARINGS
Public Hearings are required by law before the Council can take action on matters affecting the public interest
such as land -use laws, annexations, rezone requests, public safety issues, etc. Section 2.04.150 of the
Tukwila Municipal Code states the following guidelines for Public Hearings:
The proponent shall speak first and is allowed 15 minutes for a presentation.
2. The opponent is then allowed 15 minutes to make a presentation.
Each side is then allowed 5 minutes for rebuttal.
4. Citizens who wish to address the Council may speak for 5 minutes each. No one may speak a second
time until everyone wishing to speak has spoken.
5. After each speaker has spoken, the Council may question the speaker. Each speaker can respond to the
question, but may not engage in further debate at this time.
6. After the Public Hearing is closed and during the Council meeting, the Council may choose to discuss
the issue among themselves, or defer the discussion to a future Council meeting, without further public
testimony. Council action may only be taken during Regular or Special Meetings.
COUNCIL AGENDA SYNOPSIS
naialr
Meetin Date Prepared by Ma or's review Council review
10/22/12 BM
ITEM INFORMATION
ITEMNO.
4.A.
STAFF SPONSOR: NORA GIERLOFF
ORIGINAL AGENDA DATE: 10/22/12
AGENDA ITEM TITLE An Ordinance regarding the preservation of Historical Landmarks in the City.
CATEGORY Discussion
Mtg Date 10122112
Motion
Mtg Date
Resolution
Mtg Date
Ordinance
Mtg Date 1
Bid Award
Mtg Date
Public Hearing
Mtg Date
Other
Mtg Date
SPONSOR Council Mayor HR DCD Finance Fire IT P &R Police PW
SPONSOR'S The City Council has been briefed about entering into an Interlocal Agreement (ILA) with
SUMMARY King County to provide historical preservation services in the City. One of the
requirements of the ILA is for the City to adopt an Ordinance related to historical
preservation. The attached Ordinance will adopt a new Chapter in Title 16 to address
Historical Landmarks in the City. The Ordinance will only apply to city owned properties.
Private pro will not be impacted by the Ordinance.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 10/8/12 COMMITTEE CHAIR: HOUGARDY
RECOMMENDATIONS:
SPONSOR /ADMIN. Department of Community Development
COMMITTEE Unanimous Approval; Forward to Committee of the Whole
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$6000 $0 $0
Fund Source: N/A
Comments: The Ordinance is cost neutral if the all costs are passed on to the applicant.
MTG. DATE
RECORD OF COUNCIL ACTION
10/22/12
MTG. DATE
ATTACHMENTS
10/22/12
Informational Memorandum dated 9/28/12
Draft Ordinance
King County Code Sections to be adopted by reference
Minutes from Community Affairs and Parks Committee meeting of 6/25/12
Minutes from Community Affairs and Parks Committee meeting of 10/8/12
p
City of Tukwila_
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Community Affairs and Parks
FROM: Jack Pace, Director
BY: Nora Gierloff, Deputy Director
Brandon Miles, Senior Planner
DATE: September 28, 2012
SUBJECT: Ordinance Regarding Historic Preservation
ISSUE
Should the City adopt an Ordinance regarding the preservation of Historic Landmarks in the
City?
BACKGROUND
The City Council has been briefed about entering into an Interlocal Agreement (ILA) with King
County to provide historic preservation services in the City. One of the requirements of the ILA
is for the City to adopt an Ordinance related to historic preservation.
The attached Ordinance will adopt a new Chapter to Title 16. The new chapter will specify the
process, criteria, and method for designating CITY OWNED properties as historic landmarks.
The chapter does not impact properties that are not owned by the City. In the future, the City
Council could consider expanding the Chapter to non -City owned properties.
The draft Ordinance is modeled after King County's Code and in fact, where possible, the
Ordinance adopts by reference portions of King County's Code. Modeling after King County's
Code is being done due to the fact that the City is considering entering into an ILA with the
County.
The following are the major elements of the proposed Ordinance:
1. King County's Landmark and Heritage Commission shall serve as the Landmark
Commission for the City. The City will have one special member who serves on the
Commission. The special member only serves on the Commission when the
Commission reviews a nomination or project within the City. As outlined in the proposed
Ordinance, the special member will be appointed by the Mayor, subject to confirmation
by the City Council. The Commission only has the authority to designate City owned
properties as landmarks, and only after the City Council has permitted the nomination
process to proceed.
2. Various King County Code requirements are cited by reference; however, some changes
have been made.
3. Language was added to make any nomination process cost neutral to the City.
4. Any decision by the Landmark Commission is appealable to the City Council via a
closed record appeal.
5. Once a building or site is granted landmark status, a Certificate of Appropriateness must
be issued by King County for any alternations to the building or site. The Certificate of
Appropriateness will ensure that the proposed work does not significantly alter the
historical character of the structure or site. The applicant would be required to reimburse
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INFORMATIONAL MEMO
Page 2
the City for any costs incurred by the City and the County in review of the Certificate of
Appropriateness.
DISCUSSION
Adoption of the proposed Ordinance is consistent with the City's Comprehensive Plan. When
the City's Comprehensive Plan was drafted in 1995 one of the guiding visions of the Plan was
"respect for the past and present (7)." The Comprehensive plan goes on to state, 'We seek to
protect our shoreline, sensitive areas, and other natural amenities, and our historical landmarks
(8)." The proposed Ordinance will provide a tool to the City to protect existing landmark sites
within the City. While the Ordinance currently only applies to City owned properties, in the
future the City can examine if the Ordinance should be expanded to non -City owned properties.
FINANCIAL IMPACT
None, provided a third party pays all fees for historic preservation services to King County.
RECOMMENDATION
Staff recommends approval of the draft Ordinance and that the draft Ordinance be forwarded to
the October 22, 2012 Committee of the Whole meeting for discussion. Staff will bring the
Ordinance back to the Regular Council once King County has approved the ILA. At the time of
adoption, staff will also hope to have a nominee in place to serve on the Commission.
ATTACHMENTS
Draft Ordinance.
King County Code Sections to be adopted by reference.
Minutes of the June 25, 2012 CAP Meeting.
4 ZADCD n Clerk's\BrandonlHistodcal Presevation Ord Ord10rd. Memo.doc
A
a.,
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, ESTABLISHING NEW REGULATIONS
TO BE CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 16.60
RELATING TO THE PROTECTION AND PRESERVATION OF
LANDMARKS; ESTABLISHING PROCEDURES FOR DESIGNATION
AND PROTECTION OF LANDMARKS; PROVIDING FOR APPEALS
OF THE LANDMARKS COMMISSION; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, historic preservation fosters civic pride in the beauty and
accomplishments of the past and improves the economic vitality of our communities
and
WHEREAS, the City of Tukwila desires to designate, protect, and enhance those
sites, buildings, districts, structures and objects that reflect significant elements of its
cultural, aesthetic, social, economic, political, architectural, ethnic, archaeological,
engineering, and other history; and
WHEREAS, the current provisions of the Tukwila Municipal Code do not adequately
provide for the designation, protection, and enhancement of landmarks; and
WHEREAS, King County is able to provide landmark designation and protection
services to the City of Tukwila, and
WHEREAS, the City has elected to contract with King County to provide such
services; and
WHEREAS, it is in the public interest that the jurisdictions cooperate to provide
efficient and cost effective landmark designation and protection;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Regulations Established. Tukwila Municipal Code (TMC) Chapter
16.60, "Historic Preservation," is hereby established to read as follows:
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CHAPTER 16.60
HISTORIC PRESERVATION
Sections:
16.60.010 Definitions
16.60.020 Landmark Commission
16.60.030 Incorporation of King County Provisions
16.60.040 Historic Resources Review Process
16.60.050 Redesignation of Existing Landmarks
Section 2. TMC Section 16.60.010 is hereby established to read as follows:
16.60.010 Definitions
The following words and terms shall, when used in this chapter, be defined as follows
unless a different meaning clearly appears from the context. The definitions provided
below shall be used in administering this chapter and supersede any definitions found
elsewhere in Title 16. These definitions shall have no meaning or relevance outside of
TMC Chapter 16.60.
1. "Alteration" is any construction, demolition, removal, modification, excavation,
restoration or remodeling of a landmark.
2. "Building" is a structure created to shelter any form of human activity, such as a
house, barn, church, hotel or similar structure. Building may refer to a historically
related complex, such as a courthouse and jail or a house and barn.
3. "Certificate of appropriateness" is written authorization issued by the
Commission or its designee permitting an alteration to a significant feature of a
designated landmark.
4. "Commission" is the Landmark Commission created by this chapter.
5. "Community landmark" is a historic resource that has been designated
pursuant to TMC Chapter 16.60 but which may be altered or changed without
application for or approval of a Certificate of Appropriateness.
6. "Designation" is the act of the Commission determining that a historic resource
meets the criteria established by this chapter.
7. "Designation report" is a report issued by the Commission after a public hearing
setting forth its determination to designate a landmark and specifying the significant
feature or features thereof.
8. "Director" is the director of the City, of Tukwila Department of Community
Development or his or her designee.
9. "District" is a geographically definable area, urban or rural, possessing a
significant concentration, linkage, or continuity of sites, buildings, structures, or objects
united by past events or aesthetically by plan or physical development. A district may
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also comprise individual elements separated geographically but linked by association or
history.
10. "Heritage" is a discipline relating to historic preservation and archaeology,
history, ethnic history, traditional cultures and folklore.
11. "Historic preservation officer" is the King County Historic Preservation Officer or
his or her designee.
12. "Historic resource" is a district, site, building, structure or object significant in
national, state or local history, architecture, archaeology, and culture.
13. "Historic resource inventory" is an organized compilation of information on
historic resources considered to be significant according to the criteria listed in TMC
Section 16.60.030 (B). The Historic Resource Inventory is kept on file by the Historic
Preservation Officer and is updated from time to time to include newly eligible resources
and to reflect changes to resources.
14. "Incentives" are such compensation, rights or privileges or combination thereof,
which the City Council or other local, state or federal public body or agency, by virtue of
applicable present or future legislation, may be authorized to grant to or obtain for the
owner or owners of designated landmarks. Examples of economic incentives include
but are not limited to tax relief, conditional use permits, rezoning, street vacation,
planned unit development, transfer of development rights, facade easements, gifts,
preferential leasing policies, private or public grants -in -aid, beneficial placement of
public improvements, or amenities, or the like.
15. "Interested person of record" is any individual, corporation, partnership or
association that notifies the Commission or the City Council in writing of its interest in
any matter before the Commission.
16. "Landmark" is a historic resource designated as a landmark pursuant to TMC
Chapter 16.60.
17. "Nomination" is a proposal that a historic resource be designated a landmark.
18. "Object" is a material thing of functional, aesthetic, cultural, historical, or
scientific value that may be, by nature or design, movable yet related to a specific
setting or environment.
19. "Owner" is a person having a fee simple interest, a substantial beneficial
interest of record or a substantial beneficial interest known to the Commission in a
historic resource. Where the owner is a public agency or government, that agency shall
specify the person or persons to receive notices under this chapter.
20. "Person" is any individual, partnership, corporation, group or association.
21. "Person in charge" is the person or persons in possession of a landmark
including, but not limited to, a mortgagee or vendee in possession, an assignee of rents,
a receiver, executor, trustee, lessee, tenant, agent, or any other person directly or
indirectly in control of the landmark.
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22. "Preliminary determination" is a decision of the Commission determining that a
historic resource that has been nominated for designation is of significant value and is
likely to satisfy the criteria for designation.
23. "Significant feature" is any element of a landmark the Commission has
designated pursuant to this chapter as of importance to the historic, architectural or
archaeological value of the landmark.
24. "Site" is the location of a significant event, a prehistoric or historic occupation or
activity, or a building or structure, whether standing, ruined, or vanished, where the
location itself maintains a historical or archaeological value regardless of the value of
any existing structures.
25. "Structure" is any functional construction made usually for purposes other than
creating human shelter.
26. "City Council" or "Council" shall refer to the City Council of the City of Tukwila.
Section 3. TMC Section 16.60.020 is hereby established to read as follows:
16.60.020 Landmark Commission
A. The King County Landmark Commission established pursuant to King County
Code (K.C.C.) Chapter 20.62 is hereby designated and empowered to act as the
Landmark Commission for the City pursuant to the provisions of this chapter.
B. The Commission shall have the authority to review nominations and designate
any real property owned by the City of Tukwila as a landmark and to issue a Certificate of
Appropriateness for any property that has been designated as a landmark. The
Commission shall have no authority to review nominations or designate any landmarks
within the City of Tukwila that are not owned by the City of Tukwila.
C. The special member of the King County Landmark Commission provided for in
K.C.C. Section 20.62.030 shall be appointed by the Mayor of the City of Tukwila, subject
to confirmation by the City Council. Such special member shall be a Tukwila resident
who has a demonstrated interest in historic preservation. Such appointment shall be
made for a three -year term. In the event that the special member cannot attend a
required meeting, the chair of the Planning Commission or Vice -Chair may serve as an
alternate Commission member.
D. In the event of a vacancy, an appointment shall be made to fill the vacancy in the
same manner and with the same qualifications as if at the beginning of the term, and the
person appointed to fill the vacancy shall hold the position for the remainder of the
unexpired term.
E. The Commission shall not conduct any public hearings required under this
chapter with respect to properties located within the City of Tukwila until the
Commission's rules and regulations, including procedures consistent with this chapter,
have been filed with the Tukwila City Clerk. All meetings of the Commission shall be
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open to the public. All public hearings to consider a landmark designation within the City
of Tukwila shall be held within the City of Tukwila.
F. The Commission shall file its rules and regulations, including procedures
consistent with this ordinance, with the Tukwila City Clerk.
Section 4. TMC Section 16.60.030 is hereby established to read as follows:
16.60.030 Incorporation of King County Provisions
The following sections of King County Code (K.C.C.) Chapter 20.62 are hereby
adopted and are incorporated by reference herein and made a part of this chapter the
same as though they were set forth herein:
A. K.C.C. Section 20.62.030 "Landmark Commission created membership and
organization."
B. K.C.C. Section 20.62.040 "Designation criteria," except Paragraph A is
amended to read as follows:
Real property owned by the City of Tukwila may be designated as a City of Tukwila
landmark if it is more than 40 years old or, in the case of a landmark district, contains
resources that are more than 40 years old, and possesses integrity of location, design,
setting, materials, workmanship, feeling and association, and:
1. Is associated with events that have made a significant contribution to the
broad patterns of national, state or local history; or
2. Is associated with the lives of persons significant in national, state or local
history; or
3. Embodies the distinctive characteristics of a type, period, style or method of
design or construction, or that represents a significant and distinguishable entity whose
components may lack individual distinction; or
4. Has yielded, or may be likely to yield, information important in prehistory or
history; or
5. Is an outstanding work of a designer or builder who has made a substantial
contribution to the art.
C. K.C.C. Section 20.62.050 "Nomination procedure," except paragraphs E and
F are added to read as follows:
E. The Tukwila City Council shall first issue a Notice to Proceed before any
property owned by the City of Tukwila is considered by the Historic Preservation Officer.
The Notice to Proceed shall be a discretionary, legislative act, with no appeal rights. A
Notice to Proceed may be approved by the City Council via a resolution or motion. No
public hearing is required when considering a Notice to Proceed; however, this shall not
preclude the City Council from allowing public testimony. A Notice to Proceed may be
placed on the regular City Council consent agenda for action.
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F. As part of the consideration of a Notice to Proceed, a fiscally responsible
person or entities shall be identified. The fiscally responsible person or entities shall be
responsible for compensating the City for any charges incurred on the City by King
County related to King County's assistance in the nomination process. The fiscally
responsible person or entities shall also pay to the City an overhead charge of 3% above
those charges that are incurred by King County.
D. K.C.C. Section 20.62.070 "Designation procedure," except all references to
"King County" within this section are changed to read "City of Tukwila
E. K.C.C. Section 20.62.080 "Certificate of Appropriateness procedure," except
paragraph E is added to read as follows:
E. The applicant who submitted an application for a Certificate of
Appropriateness shall be responsible for payment of all fees associated with King
County's review of the Certificate of Appropriateness application, plus a 3% overhead
fee for City staff time. All fees shall be paid directly to the City of Tukwila, which shall
then reimburse King County for their time as specified in the interlocal agreement
between the City and the 'County.
F. K.C.C. Section 20.62.100 —"Evaluation of economic impact."
G. K.C.C. Section 20.62.110 "Appeal procedure," except paragraph A is
amended to read as follows:
A. Any person aggrieved by a decision of the Commission designating or
rejecting a nomination for designation of a landmark or issuing or denying a Certificate of
Appropriateness may, within 35 calendar days of mailing of notice of such designation or
rejection of nomination, or of such issuance or denial or approval of a Certificate of
Appropriateness, appeal such decision in writing to the City Council. The written notice of
appeal shall be filed with the Tukwila City Clerk and shall be accompanied by a statement
setting forth the grounds for the appeal, supporting documents, and argument. The
appellant shall pay an appeal fee of $250 to the City of Tukwila, which shall be provided
to the City within the time frame for filing appeals established by this paragraph. Failure
to provide the required fee shall constitute a failure to file a timely appeal. An appeal
which is not timely filed shall be dismissed by the City Council.
H. K.C.C. Section 20.62.120 "Funding."
K.C.C. Section 20.62.140 "Special valuation for historic properties."
Section 5. TMC Section 16.60.040 is hereby established to read as follows:
16.60.040 Historic Resources Review Process
The official responsible for the issuance of building and related permits shall promptly
refer applications for permits that affect inventoried historic buildings, structures,
objects, sites, districts, or archaeological sites to the King County Historic Preservation
Officer (HPO) for review and comment. For the purposes of this section, "affect" shall
be defined as an application for change to the site of the inventoried property, whether
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through new construction, alterations or excavation. Inventoried properties are those
that are listed in the King County Historic Resource Inventory. The responsible official
shall seek and take into consideration the comments of the HPO regarding mitigation of
any adverse effects affecting historic buildings, structures, objects, sites, or districts.
Section 6. TMC Section 16.60.050 is hereby established to read as follows:
16.60.050 Redesignation of Existing Landmarks
All King County landmarks designated pursuant to the provisions of King County Code
Chapter 20.62 that are located within the boundaries of the City of Tukwila shall be
subject to the provisions of this ordinance and considered City of Tukwila landmarks.
Section 7. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to
other local, state or federal laws, codes, rules, or regulations; or ordinance numbering
and section /subsection numbering.
Section 8. Severability. If any section, subsection, paragraph, sentence, clause or
phrase of this ordinance or its application to any person or situation should be held to be
invalid or unconstitutional for any reason by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of the
remaining portions of this ordinance or its application to any other person or situation.
Section 9. Effective Date. This ordinance or a summary thereof shall be
published in the official newspaper of the City, and shall take effect and be in full force
five days after passage and publication as provided by law.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this day of 2012.
ATTEST /AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk
APPROVED AS TO FORM BY
Office of the City Attorney
Jim Haggerton, Mayor
Filed with the City Clerk
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
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King County Code sections adopted by reference
Note: The adopting ordinance modifies several parts of the paragraphs below; the
language of the ordinance will supersede.
20.62.030 Landmarks commission created membership and organization.
A. There is created the King County landmarks commission which shall consist of
nine regular members and special members selected as follows:
1. Of the nine regular members of the commission at least three shall be
professionals who have experience in identification, evaluation, and protection of historic
resources and have been selected from among the fields of history, architecture,
architectural history, historic preservation, planning, cultural anthropology, archaeology,
cultural geography, landscape architecture, American studies, law, or other historic
preservation related disciplines. The nine regular members of the commission shall be
appointed by the county executive, subject to confirmation by the council, provided that no
more than four members shall reside within any one municipal jurisdiction. All regular
members shall have a demonstrated interest and competence in historic preservation.
2. The county executive may solicit nominations for persons to serve as regular
members of the commission from the Association of King County Historical
Organizations, the American Institute of Architects (Seattle Chapter), the Seattle King
County Bar Association, the Seattle Master Builders, the chambers of commerce, and other
professional and civic organizations familiar with historic preservation.
3. One special member shall be appointed from each municipality within King
County which has entered into an interlocal agreement with King County providing for
the designation by the commission of landmarks within such municipality in accordance
with the terms of such interlocal agreement and this chapter. Each such appointment shall
be in accordance with the enabling ordinance adopted by such municipality.
B. Appointments of regular members, except as provided in subsection C of this
section, shall be made for a three -year term. Each regular member shall serve until his or
her successor is duly appointed and confirmed. Appointments shall be effective on June
1st of each year. In the event of a vacancy, an appointment shall be made to fill the
vacancy in the same manner and with the same qualifications as if at the beginning of the
term, and the person appointed to fill the vacancy shall hold the position for the remainder
of the unexpired term. Any member may be reappointed, but may not serve more than
two consecutive three -year terms. A member shall be deemed to have served one full term
if such member resigns at any time after appointment or if such member serves more than
two years of an unexpired term. The members of the commission shall serve without
compensation except for out -of- pocket expenses incurred in connection with commission
meetings or programs.
C. After May 4, 1992, the term of office of members becomes effective on the date
the council confirms the appointment of commission members and the county executive
shall appoint or reappoint three members for a three -year term, three members for a two
year term, and three members for a one -year term. For purposes of the limitation on
consecutive terms in subsection B of this section an appointment for a one -or a two -year
term shall be deemed an appointment for an unexpired term.
13
D. The chair shall be a member of the commission and shall be elected annually by
the regular commission members. The commission shall adopt, in accordance with K.C.C.
chapter 2.98, rules and regulations, including procedures, consistent with this chapter. The
members of the commission shall be governed by the King County code of ethics, K.C.C.
chapter. 3.04. The commission shall not conduct any public hearing required under this
chapter until rules and regulations have been filed as required by K.C.C. chapter 2.98.
E. A special member of the commission shall be a voting member solely on matters
before the commission involving the designation of landmarks within the municipality
from which such special member was appointed.
F. A majority of the current appointed and confirmed members of the commission
shall constitute a quorum for the transaction of business. A special member shall count as
part of a quorum for the vote on any matter involving the designation or control of
landmarks within the municipality from which such special member was appointed. All
official actions of the commission shall require a majority vote of the members present and
eligible to vote on the action voted upon. No member shall be eligible to vote upon any
matter required by this chapter to be determined after a hearing unless that member has
attended the hearing or familiarized him or herself with the record.
G. The commission may from time to time establish one or more committees to
further the policies of the commission, each with such powers as may be lawfully
delegated to it by the commission.
H. The county executive shall provide staff support to the commission and shall
assign a professionally qualified county employee to serve as a full -time historic
preservation officer. Under the direction of the commission, the historic preservation
officer shall be the custodian of the commission's records. The historic preservation officer
or his or her designee shall conduct official correspondence, assist in organizing the
commission and organize and supervise the commission staff and the clerical and technical
work of the commission to the extent required to administer this chapter.
I. The commission shall meet at least once each month for the purpose of
considering and holding public hearings on nominations for designation and applications
for certificates of appropriateness. Where no business is scheduled to come before the
commission seven days before the scheduled monthly meeting, the chair of the
commission may cancel the meeting. All meetings of the commission shall be open to the
public. The commission shall keep minutes of its proceedings, showing the action of the
commission upon each question, and shall keep records of all official actions taken by it, all
of which shall be filed in the office of the historic preservation officer and shall be public
records.
J. At all hearings before and meetings of the commission, all oral proceedings shall
be electronically recorded. The proceedings may also be recorded by a court reporter if
any interested person at his or her expense shall provide a court reporter for that purpose.
A tape recorded copy of the electronic record of any hearing or part of a hearing shall be
furnished to any person upon request and payment of the reasonable expense of the copy.
K. The commission is authorized, subject to the availability of funds for that
purpose, to expend moneys to compensate experts, in whole or in part, to provide
C!
technical assistance to property owners in connection with requests for certificates of
appropriateness upon a showing by the property owner that the need for the technical
assistance imposes an unreasonable financial hardship on the property owner.
L. Commission records, maps or other information identifying the location of
archaeological sites and potential sites shall be exempt from public disclosure as specified
in RCW 42.17.310 in order to avoid looting and depredation of the sites. (Ord. 14482 70,
2002: Ord. 10474 3,1992: Ord. 10371 1,1992: Ord. 4828 3, 1980).
20.62.040 Designation criteria.
A. An historic resource may be designated as a King County landmark if it is more
than forty years old or, in the case of a landmark district, contains resources that are more
than forty years old, and possesses integrity of location, design, setting, materials,
workmanship, feeling and association, and:
1. Is associated with events that have made a significant contribution to the broad
patterns of national, state or local history; or
2. Is associated with the lives of persons significant in national, state or local
history; or
3. Embodies the distinctive characteristics of a type, period, style or method of
design or construction, or that represents a significant and distinguishable entity whose
components may lack individual distinction; or
4. Has yielded or may be likely to yield, information important in prehistory or
history; or
5. Is an outstanding work of a designer or builder who has made a substantial
contribution to the art.
B. An historic resource may be designated a community landmark because it is an
easily identifiable visual feature of a neighborhood or the county and contributes to the
distinctive quality or identity of such neighborhood or county or because of its association
with significant historical events or historic themes, association with important or
prominent persons in the community or county, or recognition by local citizens for
substantial contribution to the neighborhood or community. An improvement or site
qualifying for designation solely by virtue of satisfying criteria set out in this section shall
be designated a community landmark and shall not be subject to the provisions of
20.62.080.
C. Cemeteries, birthplaces, or graves of historical figures, properties owned by
religious institutions or used for religious purposes, structures that have been moved from
their original locations, reconstructed historic buildings, properties primarily
commemorative in nature, and properties that have achieved significance within the past
forty years shall not be considered eligible for designation. However, such a property shall
be eligible for designation if they are:
1. An integral part of districts that meet the criteria set out in 20.62.040A or if it is:
2. A religious property deriving primary significance from architectural or artistic
distinction or historical importance; or
15
3. A building or structure removed from its original location but which is
significant primarily for its architectural value, or which is the surviving structure most
importantly associated with a historic person or event; or
4. A birthplace, grave or residence of a historical figure of outstanding importance
if there is no other appropriate site or building directly associated with his or her
productive life; or
5. A cemetery that derives its primary significance from graves of persons of
transcendent importance, from age, from distinctive design features, or from association
with historic events; or
6. A reconstructed building when accurately executed in a suitable environment
and presented in a dignified manner or as part of a restoration master plan, and when no
other building or structure with the same association has survived; or
7. A property commemorative in intent if design, age, tradition, or symbolic value
has invested it with its own historical significance; or
8. A property achieving significance within the past forty years if it is of
exceptional importance. (Ord. 10474 4,1992: Ord. 4828 4,1980).
20.62.050 Nomination procedure.
A. Any person, including the historic preservation officer and any member of the
commission, may nominate an historic resource for designation as a landmark or
community landmark. The procedures set forth in Sections 20.62.050 and 20.62.080 may be
used to amend existing designations or to terminate an existing designation based on
changes which affect the applicability of the criteria for designation set forth in Section
20.62.040. The nomination or designation of an historic resource as a landmark shall
constitute nomination or designation of the land which is occupied by the historic resource
unless the nomination provides otherwise. Nominations shall be made on official
nomination forms provided by the historic preservation officer, shall be filed with the
historic preservation officer, and shall include all data required by the commission.
B. Upon receipt by the historic preservation officer of any nomination for
designation, the officer shall review the nomination, consult with the person or persons
submitting the nomination, and the owner, and prepare any amendments to or additional
information on the nomination deemed necessary by the officer. The historic preservation
officer may refuse to accept any nomination for which inadequate information is provided
by the person or persons submitting the nomination. It is the responsibility of the person
or persons submitting the nomination to perform such research as is necessary for
consideration by the commission. The historic preservation officer may assume
responsibility for gathering the required information or appoint an expert or experts to
carry out this research in the interest of expediting the consideration.
C. When the historic preservation officer is satisfied that the nomination contains
sufficient information and complies with the commission's regulations for nomination, the
officer shall give notice in writing, certified mail /return receipt requested, to the owner of
the property or object, to the person submitting the nomination and interested persons of
im
record that a preliminary or a designation determination on the nomination will be made
by the commission. The notice shall include:
1. The date, time, and place of hearing;
2. The address and description of the historic resource and the boundaries of the
nominated resource;
3. A statement that, upon a designation or upon a preliminary determination of
significance, the certificate of appropriateness procedure set out in Section 20.62.080 will
apply;
4. A statement that, upon a designation or a preliminary determination of
significance, no significant feature may be changed without first obtaining a certificate of
appropriateness from the commission, whether or not a building or other permit is
required. A copy of the provisions of Section 20.62.080 shall be included with the notice;
5. A statement that all proceedings to review the action of the commission at the
hearing on a preliminary determination or a designation will be based on the record made
at such hearing and that no further right to present evidence on the issue of preliminary
determination or designation is afforded pursuant to this chapter.
D. The historic preservation officer shall, after mailing the notice required herein,
refer the nomination and all supporting information to the commission for consideration
on the date specified in the notice. No nomination shall be considered by the commission
less than thirty nor more than forty five calendar days after notice setting the hearing date
has been mailed except where the historic preservation officer or members of the
commission have reason to believe that immediate action is necessary to prevent
destruction, demolition or defacing of an historic resource, in which case the notice setting
the hearing shall so state. (Ord. 10474 5,1992: Ord. 4828 5, 1980).
20.62.070 Designation procedure.
A. The commission may approve, deny, amend or terminate the designation of a
historic resource as a landmark or community landmark only after a public hearing. At the
designation hearing the commission shall receive evidence and hear argument only on the
issues of whether the historic resource meets the criteria for designation of landmarks or
community landmarks as specified in K.C.C. 20.62.040 and merits designation as a
landmark or community landmark; and the significant features of the landmark. The
hearing may be continued from time to time at the discretion of the commission. If the
hearing is continued, the commission may make a preliminary determination of
significance if the commission determines, based on the record before it that the historic
resource is of significant value and likely to satisfy the criteria for designation in K.C.C.
20.62.040. The preliminary determination shall be effective as of the date of the public
hearing at which it is made. Where the commission makes a preliminary determination
it shall specify the boundaries of the nominated resource, the significant features thereof
and such other description of the historic resource as it deems appropriate. Within five
working days after the commission has made a preliminary determination, the historic
preservation officer shall file a written notice of the action with the director and mail
copies of the notice, certified mail, return receipt requested, to the owner, the person
submitting the nomination and interested persons of record. The notice shall include:
17
1. A copy of the commission's preliminary determination; and
2. A statement that while proceedings pursuant to this chapter are pending, or
six months from the date of the notice, whichever is shorter, and thereafter if the
designation is approved by the commission, the certificate of appropriateness procedures
in K.C.C. 20.62.080, a copy of which shall be enclosed, shall apply to the described
historic resource whether or not a building or other permit is required. The decision of
the commission shall be made after the close of the public hearing or at the next regularly
scheduled public meeting of the commission thereafter.
B. Whenever the commission approves the designation of a historic resource
under consideration for designation as a landmark, it shall, within fourteen calendar
days of the public meeting at which the decision is made, issue a written designation
report, which shall include:
1. The boundaries of the nominated resource and such other description of the
resource sufficient to identify its ownership and location;
2. The significant features and such other information concerning the historic
resource as the commission deems appropriate;
3. Findings of fact and reasons supporting the designation with specific reference
to the criteria for designation in K.C.C. 20.62.040; and
4. A statement that no significant feature may be changed, whether or not a
building or other permit is required, without first obtaining a certificate of
appropriateness from the commission in accordance with K.C.C. 20.62.080, a copy of
which shall be included in the designation report. This subsection B.4. shall not apply to
historic resources designated as community landmarks.
C. Whenever the commission rejects the nomination of a historic resource under
consideration for designation as a landmark, it shall, within fourteen calendar days of the
public meeting at which the decision is made, issue a written decision including findings
of fact and reasons supporting its determination that the criteria in K.C.C. 20.62.040 have
not been met. If a historic resource has been nominated as a landmark and the
commission designates the historic resource as a community landmark, the designation
shall be treated as a rejection of the nomination for King County landmark status and the
foregoing requirement for a written decision shall apply. Nothing contained herein shall
prevent renominating any historic resource rejected under this subsection as a King
County landmark at a future time.
D. A copy of the commission's designation report or decision rejecting a
nomination shall be delivered or mailed to the owner, to interested persons of record and
the director within five working days after it is issued. If the commission rejects the
nomination and it has made a preliminary determination of significance with respect to
the nomination, it shall include in the notice to the director a statement that K.C.C.
20.62.080 no longer applies to the subject historic resources.
E. If the commission approves, or amends a landmark designation, K.C.C.
20.62.080 shall apply as approved or amended. A copy of the commission's designation
report or designation amendment shall be recorded with the records and licensing
1
services division, or its successor agency, together with a legal description of the
designated resource and notification that K.C.C. 20.62.080 and 20.62.130 apply. If the
commission terminates the designation of a historic resource, K.C.C. 20.62.080 shall no
longer apply to the historic resource. (Ord. 15971 92, 2007: Ord. 14482 71, 2002: Ord.
14176 4,2001: Ord. 11620 14,1994: Ord. 10474 6,1992: Ord. 4828 7,1980).
20.62.080 Certificate of appropriateness procedure.
A. At any time after a designation report and notice has been filed with the
director and for a period of six months after notice of a preliminary determination of
significance has been mailed to the owner and filed with the director, a certificate of
appropriateness must be obtained from the commission before any alterations may be
made to the significant features of the landmark identified in the preliminary
determination report or thereafter in the designation report. The designation report shall
supersede the preliminary determination report. This requirement shall apply whether
or not the proposed alteration also requires a building or other permit. The requirements
of this section shall not apply to any historic resource located within incorporated cities
or towns in King County, except as provided by applicable interlocal agreement.
B. Ordinary repairs and maintenance which do not alter the appearance of a
significant feature and do not utilize substitute materials do not require a certificate of
appropriateness. Repairs to or replacement of utility systems do not require a certificate
of appropriateness provided that such work does not alter an exterior significant feature.
C. There shall be three types of certificates of appropriateness, as follows:
1. Type I, for restorations and major repairs which utilize in -kind materials.
2. Type II, for alterations in appearance, replacement of historic materials and
new construction.
3. Type III, for demolition, moving and excavation of archaeological sites.
In addition, the commission shall establish and adopt an appeals process
concerning Type I decisions made by the historic preservation officer with respect to the
applications for certificates of appropriateness.
The historic preservation officer may approve Type I certificates of
appropriateness administratively without public hearing, subject to procedures adopted
by the commission. Alternatively the historic preservation officer may refer applications
for Type I certificates of appropriateness to the commission for decision. The
commission shall adopt an appeals procedure concerning Type I decisions made by the
historic preservation officer.
Type II and III certificates of appropriateness shall be decided by the commission
and the following general procedures shall apply to such commission actions:
1. Application for a certificate of appropriateness shall be made by filing an
application for such certificate with the historic preservation officer on forms provided
by the commission.
2. If an application is made to the director for a permit for any action which
affects a landmark, the director shall promptly refer such application to the historic
19
preservation officer, and such application shall be deemed an application for a certificate
of appropriateness if accompanied by the additional information required to apply for
such certificate. The director may continue to process such permit application, but shall
not issue any such permit until the time has expired for filing with the director the notice
of denial of a certificate of appropriateness or a certificate of appropriateness has been
issued pursuant to this chapter.
3. After the commission has commenced proceedings for the consideration of
any application for a certificate of appropriateness by giving notice of a hearing pursuant
to subsection 3 of this section, no other application for the same or a similar alteration
may be made until such proceedings and all administrative appeals therefrom pursuant
to this chapter have been concluded.
4. Within forty five calendar days after the filing of an application for a certificate
of appropriateness with the commission or the referral of an application to the
commission by the director except those decided administratively by the historic
preservation officer pursuant to subsection 2 of this section, the commission shall hold a
public hearing thereon. The historic preservation officer shall mail notice of the hearing
to the owner, the applicant, if the applicant is not the owner, and parties of record at the
designation proceedings, not less than ten calendar days before the date of the hearing.
No hearing shall be required if the commission, the owner and the applicant, if the
applicant is not the owner, agree in writing to a stipulated certificate approving the
requested alterations thereof. This agreement shall be ratified by the commission in a
public meeting and reflected in the commission meeting minutes. If the commission
grants a certificate of appropriateness, such certificate shall be issued forthwith and the
historic preservation officer shall promptly file a copy of such certificate with the
director.
5. If the commission denies the application for a certificate of appropriateness, in
whole or in part, it shall so notify the owner, the person submitting the application and
interested persons of record setting forth the reasons why approval of the application is
not warranted.
D. The commission shall adopt such other supplementary procedures consistent
with K.C.C. 2.98 as it determines are required to carry out the intent of this section. (Ord.
11620 15,1994: Ord. 10474 7,1992: Ord. 4828 8,1980).
20.62.100 Evaluation of economic impact.
A. At the public hearing on any application for a Type II or Type III certificate of
appropriateness, or Type I if referred to the commission by the historic preservation
officer, the commission shall, when requested by the property owner, consider evidence
of the economic impact on the owner of the denial or partial denial of a certificate. In no
case may a certificate be denied, in whole or in part, when it is established that the denial
or partial denial will, when available incentives are utilized, deprive the owner of a
reasonable economic use of the landmark and there is no viable and reasonable
alternative which would have less impact on the features of significance specified in the
preliminary determination report or the designation report.
20
B. To prove the existence of a condition of unreasonable economic return, the
applicant must establish and the commission must find, both of the following:
1. The landmark is incapable of earning a reasonable economic return without
making the alterations proposed. This finding shall be made by considering and the
applicant shall submit to the commission evidence establishing each of the following
factors:
a. The current level of economic return on the landmark as considered in relation
to the following:
(1) The amount paid for the landmark, the date of purchase, and party from
whom purchased, including a description of the relationship, if any, between the owner
and the person from whom the landmark was purchased;
(2) The annual gross and net income, if any, from the landmark for the previous
five (5) years; itemized operating and maintenance expenses for the previous five (5) years;
and depreciation deduction and annual cash flow before and after debt service, if any,
during the same period;
(3) The remaining balance on any mortgage or other financing secured by the
landmark and annual debt service, if any, during the prior five (5) years;
(4) Real estate taxes for the previous four (4) years and assessed value of the
landmark according to the two (2) most recent assessed valuations;
5) All appraisals obtained within the previous three (3) years by the owner in
connection with the purchase, financing or ownership of the landmark;
(6) The fair market value of the landmark immediately prior to its designation
and the fair market value of the landmark (in its protected status as a designated
landmark) at the time the application is filed;
7) Form of ownership or operation of the landmark, whether sole
proprietorship, for profit or not for profit corporation, limited partnership, joint venture,
or both;
(8) Any state or federal income tax returns on or relating to the landmark for the
past two (2) years.
b. The landmark is not marketable or able to be sold when listed for sale or lease.
The sale price asked, and offers received, if any, within the previous two (2) years,
including testimony and relevant documents shall be submitted by the property owner.
The following also shall be considered:
(1) Any real estate broker or firm engaged to sell or lease the landmark;
(2) Reasonableness of the price or lease sought by the owner;
(3) Any advertisements placed for the sale or lease of the landmark.
c. The unfeasibility of alternative uses that can earn a reasonable economic return
for the landmark as considered in relation to the following:
21
(1) A report from a licensed engineer or architect with experience in historic
restoration or rehabilitation as to the structural soundness of the landmark and its
suitability for restoration or rehabilitation;
(2) Estimates of the proposed cost of the proposed alteration and an estimate of
any additional cost that would be incurred to comply with the recommendation and
decision of the commission concerning the appropriateness of the proposed alteration;
(3) Estimated market value of the landmark in the current condition after
completion of the proposed alteration; and, in the case of proposed demolition, after
renovation of the landmark for continued use;
(4) In the case of proposed demolition, the testimony of an architect, developer,
real estate consultant, appraiser or other real estate professional experienced in historic
restoration or rehabilitation as to the economic feasibility of rehabilitation or reuse of the
existing landmark;
(5) The unfeasibility of new construction around, above, or below the historic
resource.
d. Potential economic incentives and /or funding available to the owner through
federal, state, county, city or private programs.
2. The owner has the present intent and the secured financial ability,
demonstrated by appropriate documentary evidence to complete the alteration.
C. Notwithstanding the foregoing enumerated factors, the property owner may
demonstrate other appropriate factors applicable to economic return.
D. Upon reasonable notice to the owner, the commission may appoint an expert or
experts to provide advice and /or testimony concerning the value of the landmark, the
availability of incentives and the economic impacts of approval, denial or partial denial of
a certificate of appropriateness.
E. Any adverse economic impact caused intentionally or by willful neglect shall not
constitute a basis for granting a certificate of appropriateness. (Ord. 10474 8, 1992: Ord.
4828 10, 1980).
20.62.110 Appeal procedure.
A. Any person aggrieved by a decision of the commission designating or rejecting a
nomination for designation of a landmark or issuing or denying a certificate of
appropriateness may, within thirty -five calendar days of mailing of notice of such
designation or rejection of nomination, or of such issuance or denial or approval of a
certificate of appropriateness appeal such decision in writing to the council. The written
notice of appeal shall be filed with the historic preservation officer and the clerk of the
council and shall be accompanied by a statement setting forth the grounds for the appeal,
supporting documents, and argument.
B. If, after examination of the written appeal and the record, the council determines,
that: 1. An error in fact may exist in the record, it shall remand the proceeding to the
commission for reconsideration or, if the council determines that: 2. the decision of the
22
commission is based on an error in judgment or conclusion, it may modify or reverse the
decision of the commission.
C. The council's decision shall be based solely upon the record, provided that, the
council may at its discretion publicly request additional information of the appellant, the
commission or the historic preservation officer.
D. The council shall take final action on any appeal from a decision of the
commission by adoption of an Ordinance, and when so doing, it shall make and enter
findings of fact from the record and reasons therefrom which support its action. The
council may adopt all or portions of the commission's findings and conclusions.
E. The action of the council sustaining, reversing, modifying or remanding a
decision of the commission shall be final unless within twenty calendar days from the date
of the action an aggrieved person obtains a writ of certiorari from the superior court of
King County, state of Washington, for the purpose of review of the action taken. (Ord.
10474 9,1992: Ord. 4828 11, 1980).
20.62.120 Funding.
A. The commission shall have the power to make and administer grants of funds
received by it from private sources and from local, state and federal programs for purposes
of:
1. Maintaining, purchasing or restoring historic resources located within King
County which it deems significant pursuant to the goals, objectives and criteria set forth in
this chapter if such historic resources have been nominated or designated as landmarks
pursuant to this chapter or have been designated as landmarks by municipalities within
King County or by the State of Washington, or are listed on the National Historic
Landmarks Register, the National Register of Historic Places; and
2. Developing and conducting programs relating to historic preservation and
archaeological resource management. The commission shall establish rules and
regulations consistent with K.C.C. chapter 2.98 governing procedures for applying for and
awarding of grant moneys pursuant to this section.
B. The commission may, at the request of the historic preservation officer, review
proposals submitted by county agencies to fund historic preservation and archaeological
projects through the Housing and Community Development Act of 1974 (42 U.S.C. Secs.
5301 et seq.), the State and Local Fiscal Assistance Act of 1972 (31 U.S.C. Secs. 1221 et seq.)
and other applicable local, state and federal funding programs. Upon review of such grant
proposals, the commission may make recommendations to the county executive and
county council concerning which proposals should be funded, the amount of the grants
that should be awarded, the conditions that should be placed on the grant, and such other
matters as the commission deems appropriate. The historic preservation officer shall keep
the commission apprised of the status of grant proposals, deadlines for submission of
proposals and the recipients of grant funds. (Ord. 14482 72, 2002: Ord. 10474 10, 1992:
Ord. 4828 12,1980).
20.62.140 Special valuation for historic properties.
23
A. There is hereby established and implemented a special valuation for historic
properties as provided in chapter 84.26 RCW.
B. The King County landmarks commission is hereby designated as the local
review board for the purposes related to chapter 84.26 RCW, and is authorized to perform
all functions required by chapter 84.16 RCW and chapter 254 -20 WAC.
C. All King County landmarks designated and protected under this chapter shall
be eligible for special valuation in accordance with chapter 84.26 RCW. (Ord. 14482 73,
2002: Ord. 10474 12,1992: Ord. 9237 1-3, 1989).
20.62.150 Historic Resources review process.
A. King County shall not approve any development proposal or otherwise issue
any authorization to alter, demolish, or relocate any historic resource identified in the
King County Historic Resource Inventory, pursuant to the requirements of this chapter.
The standards contained in K.C.C. 21A.12, Development Standards Density and
Dimensions and K.C.C. 21A.16, Development Standards Landscaping and Water Use
shall be expanded, when necessary, to preserve the aesthetic, visual and historic integrity
of the historic resource from the impacts of development on adjacent properties.
B. Upon receipt of an application for a development proposal located on or
adjacent to a historic resource listed in the King County Historic Resource Inventory, the
director shall follow the following procedure:
1. The development proposal application shall be circulated to the King County
historic preservation officer for comment on the impact of the project on historic
resources and for recommendation on mitigation. This includes all permits for
alterations to historic buildings, alteration to landscape elements, new construction on
the same or abutting lots, or any other action requiring a permit which might affect the
historic character of the resource. Information required for a complete permit application
to be circulated to the historic preservation officer shall include:
a. a vicinity map;
b. a site plan showing the location of all buildings, structures, and landscape
features;
c. a brief description of the proposed project together with architectural
drawings showing the existing condition of all buildings, structures, landscape features
and any proposed alteration to them;
d. photographs of all buildings, structures, or landscape features on the site;
and
e. an environmental checklist, except where categorically exempt under King
County SEPA guidelines.
2. Upon request, the historic preservation officer shall provide information about
available grant assistance and tax incentives for historic preservation. The officer may
also provide the owner, developer, or other interested party with examples of
comparable projects where historic resources have been restored or rehabilitated.
24
3. In the event of a conflict between the development proposal and preservation
of an historic resource, the historic preservation officer shall:
a. suggest appropriate alternatives to the owner /developer which achieve the
goals of historic preservation.
b. recommend approval, or approval with conditions to the director of the
department of development and environmental services; or
c. propose that a resource be nominated for county landmark designation
according to procedures established in the landmarks preservation ordinance (K.C.C.
20.62).
4. The director may continue to process the development proposal application,
but shall not issue any development permits or issue a SEPA threshold determination
until receiving a recommendation from the historic preservation officer. In no event shall
review of the proposal by the historic preservation officer delay permit processing
beyond any period required by law. Permit applications for changes to landmark
properties shall not be considered complete unless accompanied by a certificate of
appropriateness pursuant to K.C.C. 20.62.080.
5. On known archaeological sites, before any disturbance of the site, including,
but not limited to test boring, site clearing, construction, grading or revegetation, the
State Office of Archaeology and Historic Preservation (OAHP), and the King County
historic preservation officer, and appropriate Native American tribal organizations must
be notified and state permits obtained, if required by law. The officer may require that a
professional archaeological survey be conducted to identify site boundaries, resources
and mitigation alternatives prior to any site disturbance and that a technical report be
provided to the officer, OAHP and appropriate tribal organizations. The officer may
approve, disapprove or require permits conditions, including professional archeological
surveys, to mitigate adverse impacts to known archeological sites.
C. Upon receipt of an application for a development proposal which affects a
King County landmark or an historic resource that has received a preliminary
determination of significance as defined by K.C.C. 20.62.020V, the application circulated
to the King County historic preservation officer shall be deemed an application for a
certificate of appropriateness pursuant to K.C.C. 20.62.080 if accompanied by the
additional information required to apply for such certificate. (Ord. 11620 12, 1994).
25
26
City of Tukwila
Community Affairs and Parks Committee
COMMUNITY AFFAIRS AND PARKS COMMITTEE
Meeting Minutes
Jayne 25, 2012 5:00 p.m.
PRESENT
Councilmembers: Kathy Hougardy, Chair; Joe Duffie and Allan Ekberg
Staff: Jack Pace, Nora Gierloff. Dave Johnson, Pat Brodin, David Cline and Kimberly Matej
Guests: Louise Jones Brown, Tukwila Historical Society'; Joan Hernandez, Tukwila Historical Societe:
John Cruce, Tukwila Historical Societe; Julie Koler, King County Preservation Officer
CALL TO ORDER: Committee Chair Hougardy called the meeting to order at 5:03 P.M.
I. PRESENTATIONS
No presentations.
II. BUSINESS AGENDA
A. Parks Recreation Special Events Calendar
As an information only item, Committee Members reviewed the Parks Recreation calendar for Jule and
August. INFORMATION ONLY.
B. Presentation: King County Historic Preservation
Julie Koler, King County Preservation Officer, gave a PowerPoint Presentation on the King County
Regional Historic Presentation Program. A cope of the presentation accompanies the Committee minutes.
As Ms. Koler presented program information, Committee Members, staff and guests asked clariA
questions. Representatives from the Tukwila Historical Society expressed support for the City entering into
an agreement with King County for historic preservation, and stated that they believe the agreement will be
helpful in securing grant funding for work and restoration needed on the current Tukwila Historical Societ<
building which is City owned.
After discussion, the Cormnittee requested that staff prepare a draft interlocal agreement for the King
County Historic Preservation Program and ordinance that would only be applicable to City -owned
properties and archeological sites. Consideration for program applicability to privately owned property may
be explored at a later time. Louis Jones Brown mentioned that the City of Des Moines has an interlocal
agreement specifically for city -owned properties which could be used as a model for Tukwila.
David Cline inquired about known timelines for grants that may be dependent on this interlocal agreement.
Ms. Jones -Brown committed to checking on such dates. In the meantime, Mr. Cline will work with the
Department of Community Development regarding current workload and work plan projects to determine
when this item may return to Committee. RETURN TO A FUTURE COMMITTEE MEETING FOR
REVIEW AND RECOMMENDATION.
III. MISCELLANEOUS
Meeting adjourned at 6:21 p.m.
Next meeting: Monday, July 9, 2012 5:00 p.m. Conference Room 43
k 9 q Committee Chair Approval
Minute y KA vi.
27
W
City of Tukwila
Community Affairs and Parks Committee
COMMUNITY AFFAIRS AND PARKS COMMITTEE
Meeting Minutes
October 8, 2012 5: 00 p.m.
PRESENT
Councilmembers: Kathy Hougardy, Chair; Joe Duffle and Allan Ekberg
Staff: Jack Pace, Nora Geirloff and Kimberly Matej
Guests: Joan Hernandez and John Kruize
CALL TO ORDER: Committee Chair Hougardy called the meeting to order at 5:03 p.m.
I. PRESENTATIONS
No presentations.
II. BUSINESS AGENDA
A. Interlocal Agreement and Ordinance: King County Historic Preservation
Per direction given at the June 25, 2012, Community Affairs Parks Committee meeting, staff is returning
to Committee with a draft interlocal agreement with King County for preservation services and a draft
ordinance (as required by King County) regarding historic preservation.
At the June 25 Community Affairs Parks Committee meeting, the Committee requested that staff prepare
a draft interlocal agreement and ordinance that would only be applicable to City -owned properties and
archeological sites. They mentioned that consideration for program applicability to privately owned
property could be explored at a later time. Staff identified major components listed below in the draft
agreement and ordinance:
Draft Interlocal Agreement:
Tukwila Historical Society is in favor of this agreement as it relates to Old City Hall. Landmark
status could increase their eligibility for certain grants for improvements to Old City Hall.
Staff outlined the potential funding impact such a designation could have on the City if a fiscal
agent in not identified.
Language has been incorporated in the draft agreement which requires the City to pre- authorize any
work performed by King County in an effort to avoid City obligation to pay for unexpected costs.
Draft Ordinance
In addition to creating a Historic Preservation chapter of in Title 16 of the Tukwila Municipal Code
(TMC), the draft ordinance adopts certain sections of the King County Code in regards to
landmarks, nomination, designation, and funding by reference.
The draft ordinance requires identification of a fiscally responsible party prior to charges being
incurred by King County and makes nomination costs neutral to the City.
Makes decisions appealable to the City Council.
Calls for a Tukwila resident to be appointed by the Mayor and confirmed by the Council to sit on
the King County Landmark Commission for a three -year term.
Joan Hernandez expressed concern over the wording of the draft ordinance, which she believed to be
financially burdensome to small non -profit organizations such as the Tukwila Historical Society. Her
interpretation is that there is no flexibility in the draft ordinance as currently written that would allow the City
to take on financial responsibility, in place of a small non profit, if the City Council so desired. In turn, the
Committee felt that the flexibility did exist in the draft ordinance as written; however, Committee member
29
Community Affairs Parks Committee Minutes October 8, 2012 Pape 2
Ekberg offered a non substantive wording change to draft TMC Section 16.60.030 (C)(F) on the top of page
16 of the Committee agenda replacing the words "Prior to... with "As part of the... Additionally, the word
"entity" in the first sentence would be made plural. Committee Chair Hougardy and Committee Member
Ekberg were supportive of the change; however, Committee Member Duffle was not. For clarification,
Committee Member Duffle is in favor of the draft ILA and ordinance, but is not supportive of the wording
change. UNANIMOUS APPROVAL WITH EXCEPTIONS. FORWARD BOTH ITEMS TO
OCTOBER 22 COW FOR DISCUSSION.
III. MISCELLANEOUS
In light of the recent incident at Foster Memorial Park involving the death of a small dog, Committee
Member Duffle suggested that the City place signs in each park reminding park users of the dog leash law in
the Tukwila Municipal Code.
Meeting adjourned at 5:49 p.m.
Next meeting: Monday, October 22, 2012 5:00 p.m. Conference Room 43
Committee Chair Approval
Minute, by h "M.
30
COUNCIL AGENDA SYNOPSIS
nitials
Meeting Date Pre ared by Mayor's review Council review
10/22/12 VC
ITEM INFORMATION
ITEMNO.
Special 2.C.
31
STAFF SPONSOR: VICKY CARLSEN
ORIGINAL AGENDA DATE: 10/22/12
AGENDA ITEM TITLE Resolution authorizing the cancellation of abandoned or unclaimed property for
2012.
CATEGORY Discussion
Mtg Date 10122112
Motion
Mtg Date
Resolution
Mtg Date 10/22/12
Ordinance
Mtg Date
BidAward
Mtg Date
Public Hearing
Mtg Date
❑Other
Mtg Date
SPONSOR Council Mayor .HR DCD Finance Fire IT P &R Police PWI'
SPONSOR'S The resolution authorizes the cancellation of abandoned funds (unclaimed property).
SUMMARY Unclaimed property will be reported to the Department of Revenue (DOR) Unclaimed
Property Section. Unclaimed property will not be remitted to DOR but will be recognized
on the City's financial statements as a liability and restricted cash for 5 years. The Council
is being asked to approve the resolution for cancellation of unclaimed property.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 10/16/12 COMMITTEE CHAIR: QUINN
RECOMMENDATIONS:
SPONSOR /ADMIN. Finance
COMMITTEE Unanimous Approval; Forward to 10/8 C.O.W. and Special Mtg. Consent
COST IMPACT FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0 $0 $0
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
10/22/12
MTG. DATE
ATTACHMENTS
10/22/12
Informational Memorandums dated 10/09/12
Resolution, with attachments
Washington State Unclaimed Property Local Government Guide
Minutes from Finance and Safety Committee meeting of 10/02/12 and 10/16/12
31
32
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Finance Safety Committee
FROM: Peggy McCarthy, Finance Director
BY: Vicky Carlsen, Deputy Finance Director
DATE: October 9, 2012
SUBJECT: 2012 Reporting of Abandoned Property to the WA State Department of
Revenue Unclaimed Property Section
ISSUE
Annual write -off of outstanding and unredeemed General Fund and 411 Foster Golf Fund
accounts payable claims, payroll, and Municipal Court checks.
BACKGROUND
Each year, the City of Tukwila holds abandoned or unclaimed property that is owed either to
individuals or business vendors that must be reported by November 1 st to the Washington State
Department of Revenue Unclaimed Property Section. All local governments are required to
report all unclaimed property except unclaimed restitution. Normal restitution is submitted to the
County Treasurer each month for the Crime Victims Fund. Unclaimed restitution is then reported
each year by the County Treasurer to the State Treasurer.
The dormancy or abandonment period of all accounts payable claims and payroll checks is one
year and Municipal Court checks have an abandonment period of two years.
Current Finance Department policy dictates that all abandoned or unclaimed property be
reported annually to the Washington State Department of Revenue Unclaimed Property Section
through the Council approved resolution process. This is a change from past practice.
Previously, the City would report and remit unclaimed property.
DISCUSSION
The annual proposed resolution totaling $759.70 reflects amounts deemed as abandoned or
unclaimed property. For the 2012 unclaimed property report year, reporting (with option to not
remit) of abandoned General Fund Accounts Payable claims checks total $613.00; 411 Golf
Fund Accounts Payable checks total $125.00; payroll checks total $13.20; and both reporting
and remitting of Municipal Court checks total $8.50.
To the extent possible, those individual property owners with unclaimed accounts payable
claims, payroll, and /or Municipal Court checks of $50.00 or more, have been notified by the City
through the "good faith" effort of being served due diligence letters. These individual property
owners have either not responded to the due diligence notifications and /or cannot be located in
order to claim their property.
33
INFORMATIONAL MEMO
Page 2
Previously, Finance Department policy dictated that all abandoned or unclaimed property other
than restitution be reported and remitted annually to the State through the Council approved
resolution process. Abandoned or unclaimed property included gift certificates /cards sold at the
golf course.
Upon review of the Washington State Unclaimed Property Local Government Guide provided by
Department of Revenue Unclaimed Property Section it was discovered that the City is no longer
required to report or remit unredeemed gift cards. Additionally, the City may not enforce an
expiration date against the customer if the gift card was issued on or after July 1, 2001.
The City also has the option to report but NOT remit certain types of unclaimed property
including uncashed checks. Unclaimed property not remitted to the State would be booked as a
liability and restricted cash on the financial statements. After 5 years, if the funds still have not
been claimed, the City may transfer the funds to the general fund. While the liability would
remain with the City and records would need to be retained until the property is claimed, there is
no requirement to continue to locate the owner.
RECOMMENDATION
We are recommending that the City stop reporting and remitting unredeemed gift cards. We are
also recommending that the City discontinue the practice of remitting unclaimed property, as
allowed by law, to the State.
The Resolution to cancel outstanding claims and payroll checks is still required; however,
language canceling unused gift cards and remitting unclaimed property to the State is not
included in the Resolution. The Council is being asked to consider this Resolution at the
October 22, 2012 Committee of the Whole Meeting and the Special Meeting Consent Agenda to
follow that same evening.
ATTACHMENTS
Resolution canceling outstanding claims and payroll checks, with attachment
Washington State Unclaimed Property Local Government Guide
Minutes from the Finance and Safety Committee meeting of October 2, 2012
34
City of Tukwila
Washington
Resolution No.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, AUTHORIZING THE CANCELLATION
OF OUTSTANDING GENERAL FUND CLAIMS AND PAYROLL
CHECKS, 411 FUND FOSTER GOLF COURSE CLAIMS CHECKS,
AND MUNICIPAL COURT CHECKS.
WHEREAS, the State of Washington, Department of Revenue Unclaimed Property
Section, for the reporting and remittance year 2012, requires a one -year dormancy
period for outstanding claims and payroll checks issued from the General Government
Fund and 411 Foster Golf Course Fund and a two -year dormancy period for Municipal
Court checks; and
WHEREAS, the City of Tukwila Finance Department has made all reasonable
attempts to resolve the outstanding, unredeemed General Fund and 411 Fund claims
and payroll checks and Municipal Court checks; and
WHEREAS, the City Council of the City of Tukwila wishes to cancel all outstanding,
unclaimed General Fund and 411 Fund claims and payroll checks issued prior to July 1,
2011, and Municipal Court checks issued prior to July 1, 2010;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
The Tukwila City Council authorizes the cancellation of General Fund and 411 Fund
claims and payroll checks and Municipal Court checks as detailed on Attachment A and
the 2012 Unclaimed Property Summary Detail Report.
W: \Word Processing \Resolutions \Cancellation of outstanding claims and checks 10 -8 -12
LJ:bjs Page 1. of 2
35
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Special Meeting thereof this day of 1 2012.
ATTEST /AUTH ENTICATED:
Christy O'Flaherty, MMC, City Clerk Verna Seal, Council President
APPROVED AS TO FORM BY:
Shelley M. Kerslake, City Attorney
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Attachment A: WA State Department of Revenue 2012 Unclaimed Property Reporting,
including 2012 Unclaimed Property Summary Detail Report
W: \Word Processing \Resolutions \Cancellation of outstanding claims and checks 10 -8 -12
LJ:bjs Page 2 of 2
36
NUMBER
DATE VENDOR DOR
AMCJU T
000 General Fund
Claims Various
Various Aggregate Various (Claims Checks under $50)
$123.00
4354527
07/19/10 Gah Htoo
160.00
355824
10/18/10 Mubarak Hassan
200.00
356498
12/30/10 EBC
130.00
Total General Fund Claims Checks (Reported, not Remitted)
$613.00
Payroll Various
Various Aggregate Various (Payroll Checks under $50)
$13.20
Total General Fund Payroll Checks (Reported, not Remitted)
$13.20
Municipal Various
Various Aggregate Various (Court Checks under $50)
$8.50
Court
Total Municipal Court Checks (Required Reporting and Remittance)
$8. 50
General Fund Grand Total All Checks:
$63 4.70
411 Foster Golf Course
Claims 355713
10/04/10 Harold Fowler
$125.00
Total 411 Fund Claims Checks (Reported, not Remitted):
$125.00
$0.00
GRAND TOTAL: $759.70
Reporting and remittance summary
Total Claims and Payroll Checks reported, but not remitted to the WA State
Dept. of Revenue Unclaimed Property Section $751.20
Total Municipal Court Checks required to both be reported and remitted to
the WA State Dept. of Revenue Unclaimed Property Section $8.50
Municipal Court Unclaimed Restitution, Check Nos. remitted to County
Treasurer 0.00
Grand Total to be Reported Remitted to WA State DOR/County Treasurer: $759.70
37
Attachment "A"
W;
2012 Unclaimed Property
Summary Detail Report
Treasurer's Checks:
Total All Claims Checks:
738.00
Payroll Checks General 000 Fund: Property Owner:
No outstanding
treasurer's checks to report for 2011 Unclaimed Property filing year.
$0.00
All Code: CK04
523458 01/05/11
0.00
12/31/2010 Payroll
8.96
Total Treasurer's Checks:
523827 03/04/11
Jacob Doss
$0.00
Claims Checks General 000 Fund: Property Owner:
Description:
Total General Fund Payroll Checks:
Check No.
Date
Municipal Court Checks:
Property Owner:
Description:
#354255
07/06/10
Abdi Fowzi
Witness Fee
10.00
General Fund
354264
07/06/10
Victor m. Reyes Gonzales
Witness Fee
10.00
All Code: CK06
X54299
07/06/10
Jeromey Kochen
Witness Fee
1.50
10.00
33107 04/12/10
354376
07/06/10
Scheer Zehnder LLP
Refund Records request dupl pmt
3.00
Eldridge Paul Levy
354527
07/19/10
Gay Htoo
Pmt for Interpreter Services
33156 06/18/10
160.00
Bail refund
355824
10/18/10
Mubarak Hassan
Refund TCC Damage deposit
Total Municipal Court Checks:
200.00
356498
12/30/10
EBC
Refund TCC Damage deposit
130.00
356814
02/22/11
Yatafa Taylor
Witness Fee
10.00
357199
04/18/11
Amanda Schellhase
Witness Fee
10.00
357561
05/26/11
H R Block
Refund Bus Lic fee
20.00
357575
05/26/11
Jose Eber Products
Refund Bus Lic fee
45.00
357611
05/26/11
Shellice Bartholomew
Refund Bus Lic fee
5.00
Total General Fund Claims Checks:
613.00
Claims Checks Golf Course 411 Fund: Property Owner:
Description:
355713
10/04/10
Harold Fowler
Pmt for golf supplies
125.00
411 Fund
Total 411 Fund Claims Checks:
125.00
All Code: CK06
lej 1010912012 10 :28 AM
Total All Claims Checks:
738.00
Payroll Checks General 000 Fund: Property Owner:
Description:
Check No. Date
523458 01/05/11
Brian Allen
12/31/2010 Payroll
8.96
All Code: CK06
523827 03/04/11
Jacob Doss
02/28/2011 Payroll
4.24
General Fund
Total General Fund Payroll Checks:
13.20
Municipal Court Checks:
Property Owner:
Description:
Check No. Date
13596 09/30/09
Trinadee Mary Bigwolf
Bail refund
1.50
33026 11/16/09
Jesse Lee Smith
Bail refund
1.50
33107 04/12/10
Rudy Webb
Bail refund
2.00
33108 04/12/10
Eldridge Paul Levy
Bail refund
1.50
33156 06/18/10
Maye Washington
Bail refund
2.00
Total Municipal Court Checks:
6.50
All General Fund
All Code: MS16
lej 1010912012 10 :28 AM
2012 Unclaimed Property Summary Report
Page 2
2012 Report Year Summary:
Total Claims and Payroll Checks reported, but not remitted to the WA State DOR Unclaimed Property Section: 751.20
Total Municipal Court Checks required to both be reported and remitted to the WA State DOR Unclaimed Property Section: 8.50
Municipal Court Unclaimed Restitution, Check Nos. remitted to County Treasurer 0.00
Grand Total to be Reported and Remitted to WA State DOR/County Treasurer: 759.70
Checks Reporting Detail All
ID Number Date Vendor Amount
General Fund:
Various
Claims 354527 07/19/10
355824 10/18/10
356498 12/30/10
Aggregates- Various (under $50)
Gay Htoo Pmt of Interpreter Svcs
Mubarak Hassan TCC Damage Deposit Refund
EBC TCC Damage Deposit Refund
Total Claims
123.00
160.00
200.00
130.00
Payroll Various
Aggregates- Various (under $50)
Total Payroll
Municipal Various
Court
Aggregates- Various (under $50)
Total Municipal Court
Total General Fund -All
411 Foster Golf Fund:
Various
355713 10/04/10
Aggregates- Various (under $50)
Harold Fowler Pmt for golf supplies
Total 411 Foster Golf Fund
613.00
13.20
0.00
13.20
8.50
0.00
8.50
634.70
125.00
125.00
lej 1010912012 10:28 AM
Washington State
UNCLAIMEDPROPERTY
All |O[a| governments
consisdngofdt�es, towns, coundes.
munidlpal and quasi'munidlpal
corporabonsho|dingundUnned
prop rtymust report �tbvNovember
l each year Local govemmerts
should report all unc|aimedproperty
except unc|aimednestitution and
excess foreclosure proceeds,
Local governnnentsnnsykeepthe
funds for some types ofreported
property Most property held bvlocal
governmentsispnesumedabandoned
after two years, The exceptions are
payro|| checks and uti|itydeposits
or refunds, These are presumed
abandoned after one year:
Xoumuscrepmrcandremic�
Unc|a�med court nnnonies
Trust accounts
UnrefundedutilR deposhs
Unc|a�med debt service paynnents
Unredeemed bonds and coupons
f�u musc reporc 6uc may
rec in fun�s for�
Warrants
Uncashed checks
Property tax cwerpaymeits
or refunds
Abandoned pub|�ctransport��ion
fare cards or passes
NOTE: 2DOG legislation namoved
the requirement to report excess
proceeds from property and irrigation
district tax foreclosures.
me�e�m�=.. mm�...m�
L�a �v mmer� remit �nds
to the []epartment of Revenuethat
could othervv�se be reta�ned,
|ndemnit"ledforremhftec property
Not nesponsible for reknds
I.tt|e-to-no research orcontac
AMBIM
|n the 2OO.5 s|afive session, publk
transpor��on�recardsand pas�s
were inc
�n the prope�ytypes
that nay be retained Fane card
means any pass or instrument. and
the value tnepnesents purchased
for pub|�ctransportation facil�ties
or services, Fare card does not
inc|ude''giftcard''or''giftcertit"IczLe.''
A publktransportation aothority
that holds funds nepnesentingva|ue
on abandonedfarecards maynetain
the f�nds unti| the owner notiFiesthe
authority and estab|�shes ovvnershp
Pubktransportation authority' means
a a ne�iona| transit authoritX
apubkmass system,
ora city transportation aothority
Und�medn�aturedbondsandre|ated
intenest or coupon payments are
considenedabandoned after two years,
Each unredeemedcoupon or intenest
paymentIsreported two yearsafter
Itbecomes payab|e even If the bond
has not matuned
Many local governments use the
services of the stalLe's Fiscal agent
which is the Bank ofNevvYbrk
/B[)NYl. for payiii debt service
on bonds they issue,
Unr bonds
|ntenest/Coupons
Loca|��vernmenr�usin�B{����hav�
owoopcionsxvhen macured 6onds
and/orcouponsareunre�eeme��
Option One: [)ne year after the last.
legal
payment date on maturedbonds,
local governments may send avvritten
requesttothe Fiscal agent: toreLurn
any nemainingunnedeemed bonds
and coupons
According to BONY's contract vvhƒ
the state, the loc�governmentmay
flort:the earningsthzl: accrue during
the one 'year /ormo�) befbne
the local government nequeststhe
funds7woyears after the last legal
p m�
aymentdateontheturedbond
the local government needs to neport
arid nemlt any undaimedmatuned
bonds arid all nemainingunneported
cou
pons or intenestpaymeits,
C}ptiomTwo: Loca|governments
do not have to nequestthe
unnedeemed bonds or coupons
firomtheFiscal agent.Ybu can have
the Fiscal agent report and remitthe
unnedeemedpropertydinect|ytothe
state on your be' The unredeemed
propertyIspresumed abandoned arid
becomes neport able after thneeyears
O ther Fiscal n��mm� mm��~~mm���mm���
Trustees
While uncommon, local governments
ued bonds usin�other
may have Iss
Fiscal agenlLs.orreceived unredeemed
bond monies that vvenenever
neported Th�s property I,; reportab|e
aft er two years
Unclaimed Restitution
IDonotreportundarlmedrestitution
as undaimed propefty In the p�t.this
proli was report able asundaimed
I 'D ropertyThe(�ountyTreasuner
is nequIred to ne
port arid send the
fundstothe State 7reasuner for the
C rimeVIctims Fund eachmonth
Restitution Claims P rocess
|fyou havene arid pald
nestitotion funds to us in the past,
You rnv dir returningovvners
toUndarlmedPro for reknd,
Forfunds sent to the StateTreasuner
for the Crime Act imsFund. you Ml
need tonecover the fu ids fil omthe
Administratorofthe Courts (AO[]
and nepay the owl erdirect|y
Since any undaimed nestitotion should
not reach two yeas abandonment
befone you send Ittothe Crime
Victims Fund.do not neport unclaimed
nestitutionasundaimedprope�y/See
Cancelled W
Unpnesentedvvarr are cancelled
bvstatute after oneyear |f the amount
Is stiU owed tothe ovvneccanceUation
cJavvarnant or checkdoes not
preventabandonme it, Theunder|ylii
UabiUty due the ovvner�snepo�a�e
��oceon �ecor�san� R��n�c
After Five years, alocal government:
may transfer neported and retained
funds to hsgenera| fund,Hovvever,
ir ids must always beavailab|e
forir
Recordsfbrretanedprolimay
be archivecl after Five years.
Clalmants ofretaned pro are
��rr the local govmment
t t t1helir clarlin,
RCWs
r I
elated to
Unclaimed
Property
jut Ut
E U
Unclaimed Property
[)iapoaidonvvh�nv4cdm
c�o�ornoc�oun6
Lomc�n6�oun6�rop�r�y Refer to RCVV 632 1
0nc|�im�6�rop��y
in hon6a ofcicy ��|ic�
0nc|�im�6�rop��y
in hon6a ofs�z�� �ozroi Refer to RCW 63,35
0nc|�im�6�rop��y
in hon6a ofah�r�� Refer to RCVV 63A 0
0nc|�im�6 inmuz�
��raon��rop�r�y
Quest
1- M
gie
Ane w.. r
Why do local governments remit
some property types and only
report other property types?
In �99O. the Lens|atuneenabled
�ocal governmentstokeepthe
f�nds�orundaimedpropertyvvhen
apaymentbv check or warrant
remained uncashed, Since the
names are neportedtoUndaimed
PropertXovvners maysti�� search
one central ti for abandoned
property The�oca|government
mayusethefundsunti�aperson
_Trust funds, bond monies.deposhs.
cred�t balances, arid otherpro
that. has not been issued fbrrefund
bv the �ooal governmentisnemhted
vvith the undaimedpro
\«/hat is the best option for
dealing with bond momies--
take delivery and report, orlet
BONY retain?
Thene are obv�ous advantages
to allowing thesbste's Fisca|agent
BONY toreport arid remitthe
undaimed bonds arid couti
The�oca|�overnmentisne|ieved
from the administirative task of
neportJng arid nem�ttJng the funds
to the state, AdditionaHXBONY
can access the histohoal records
on the bonds to answer any
da�rnant questions,
\«/e. have agolf course and the
pro shop issues gNtoertifioatem.
Do we need to report the
unredeemed giiftoertifioatem?
What if we report and remit the
property and then discover vve
paid the owner?
Ybu car) submit:a(Certit"icaLe
ofHo|der (C01--d) and provide
docun�entaton the ovvnervvas paid
arid vveMH issue arefundtoyou,
Let us know mmediate|ythat. you
have p aid the owner sovveMH not
paythe owl ertwice,
Unreceernec gift
sisc
priorto |u�y are required
tobereported arid rem�tted,
Theon�exce��on vvou�d be
certit"IcaLesissuedforamaLeur
rizes�na�o�ftournamentThe
proshop may not. expinethe
winnings gift certit"icates.
G1t certit"IcaLes issued |uIy
200 and �aterdo not need
tobereportedbotyoumaynot
enfbrcean ex date against
the cus��mecand you may not
char�e any �nd of�n���ity
or serv�ce6ee mstthe
unused balance,
in Phone.
360) 705-6706
�Press "O` for assistance)
T6111 Free:
1 -800-435-2429
(Washington State only)
Fax:
(360) 586-2 163
E-maflL
ucp@dor.wa.gov
MaflL WasNngton State
Department of Revenue
UndWmed Property Section
PO Box 47489
Olymp�a,WA 98504-7489
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City 0 Tukwila
Finance and Safety Committee
FINANCE AND SAFETY COMMITTEE
Meeting Minutes
October 2, 2012 5:15p.m.; Conference Room 43
PRESENT
Councilmembers: De' Sean Quinn, Chair; Dennis Robertson and Kate Kruller
Staff: David Cline, Peggy McCarthy, Vicky Carlsen, Chris Flores, Bob Giberson, Bob Benedicto,
Gail Labanara and Kimberly Matej
CALL TO ORDER: Committee Chair Quinn called the meeting to order at 5:15 p.m.
I. PRESENTATIONS
No presentations.
II. BUSINESS AGENDA
A. Resolution: Annual Cancellation of Accounts Receivable (Past Due and Returned Checks)
Staff is seeking Council approval of an annual resolution to cancel (write -off) account receivables deemed
uncollectible. This year's annual account receivable write -off totals $8,777.89.
Staff reviewed the process by which Accounts Receivable determines items as uncollectible. This year's
write -offs are lower than last year's which can be attributed to: less accidents caused by unknown or
uninsured motorists, and a change to the Tukwila Municipal Code which withholds business licenses
and /or renewals until such debts are paid to the City. The City is also utilizing a different debt collection
agency. UNANIMOUS APPROVAL. FORWARD TO OCTOBER 15 CONSENT AGENDA.
B. Resolution: Annual Cancellation of Outstanding Claims and Unredeemed Property
At staff request, this item has been moved to the October 16, 2012, Finance Safety Committee meeting.
New information has become available that may affect the processing of this annual cancellation.
RETURN TO OCTOBER 16 FINANCE SAFETY COMMITTEE MEETING.
C. Proposed Facilities Plan
Staff is seeking Committee confirmation of the need for a Facilities Plan for the City, as well as input on
the proposed Facilities Plan included in the Committee agenda packet.
Staff utilized a PowerPoint presentation to provide the Committee with an overview and summary of a
proposed Facilities Plan, which outlines options for the replacement and /or retrofit of City buildings. After
the presentation, and a brief discussion, the Committee confirmed that there is a need for the City to have a
Facilities Plan. Additional comments from the Committee Members are bulleted below:
Committee Member Robertson:
Believes that a Facilities Plan is the right thing to do; however, it appears to be more logical
to wait for the conclusion of the Strategic Plan to ensure the Facilities Plan is supported by
the Strategic Plan outcomes. Has some inquiries about prioritization, but relates
prioritization back to the conclusion of the Strategic Plan.
Committee Member Kruller:
Believes there may be some timing concerns in consideration of the current economy.
Requested benchmarking to identify what similar and /or surrounding jurisdictions are
doing in regard to facilities.
45
0 yofTulwlla
Finance and Safety Committee
FINANCE AND SAFETY COMMITTEE
Meeting Minutes
October 16, 2012 5:1 Sp.m.; Conference Room #3
PRESENT
Councilmembers: De'Sean Quinn, Chair; Dennis Robertson and Kate Kruller
Staff: Vicky Carlsen, Mike Villa and Kimberly Matej
CALL TO ORDER: Committee Chair Quinn called the meeting to order at 5:15 p.m.
I. PRESENTATIONS
No presentations.
II. BUSINESS AGENDA
A. Resolution: Annual Cancellation of Outstanding Claims and Unredeemed Property
Upon recent Finance staff review of information provided in the Department of Revenue's Unclaimed
Property Section it was determined that City is no longer required to report or remit unredeemed gift cards,
and is required to report, but not remit unclaimed property. Further, the City cannot enforce gift card
expiration dates if the card was issued after July 1, 2001; and unclaimed property can be transferred to the
fig,& general fund after five years, but the City's liability, although indefinite, is highly unlikely.
In consideration of these changes, staff has made revisions to the annual resolution, removing reference to
unused gift cards and the remittance of unclaimed property. Staff is seeking approval of this an annual
resolution writing -off unredeemed and outstanding items, with recommended changes, which will be
reported to the Washington State Department of Revenue. This includes the cancellation of outstanding
General Fund Claims, Payroll Checks, and Municipal Court Checks. The total amount of abandoned or
unclaimed property is $759.70. FORWARD TO OCTOBER 22 COW FOR DISCUSSION.
B. Police Update: 2012 3rd Quarter Report
As information only, staff utilized a PowerPoint presentation to update the Committee on items of
significance that occurred in the Police Department during the third quarter. The information included
highlights, crime statistics and crime reduction strategies. A copy of the PowerPoint was included in the
Committee agenda packet. INFORMATION ONLY.
III. MISCELLANEOUS
At the October 11, 2012, Budget Work Session, the Council requested an actuarial report on the City's Self
Insured Heathcare Plan with information from the past two to three years, present, and future as appropriate.
The Council agreed that the information could be presented to the Finance Safety Committee. Staff has
been in contact with the actuarial that will be presenting this information, and is requesting that the
presentation be given to full Council as a more efficient means of utilizing the actuarial's time and City
funds for the presentation. The Committee gave approval for presentation to the full Council in place of the
Committee.
Meeting adjourned at 6:02 p.m.
Next meeting: Tuesday, November 6, 2012 5:15 p.m. Conference Room #3
Committee Chair Approval
Minutes by KAM.
M
COUNCIL AGENDA SYNOPSIS
Initial r
Meeting Date
Pre ared by
Mayor's review
Co q? review
09/10/12
DCS
Resolution
Mtg Date
Ordinance
Mtg Date
Bid Award
Mtg Date
09/24/12
DCS
SPONSOR Council Mayor .HR DCD Finance Fire IT P &R Police PW
SPONSOR'S City administration and Tukwila Village Development Associates (TVDA), LLC have agreed
SUMMARY on deal terms for TVDA to develop Tukwila Village. The proposed DDA is attached for
review and approval, to include a staff report outlining the changes. The Council is being
asked to review and discuss the DDA at the Committee of the Whole meeting this evening
and then forward it on to the Special Meeting to follow for approval.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 9/24/12 COMMITTEE CHAIR:
10/15/12
DCS
Fund Source:
Comments:
MTG. DATE
10/22/12
DCS
Forward to the Committee of the Whole meeting of 9/24/12
09/24/12
v
ITEM INFORMATION
ITEMNO.
4.C.
Special 3
A
STAFF SPONSOR: DEREK SPECK
ORIGINAL AGENDA DATE: 9/10/12
AGENDA ITEM TITLE Tukwila Village Proposed Disposition and Development Agreement (DDA)
CATEGORY Discussion
Mt g Date 10/22/12
Motion
Mtg Date 10/22/12
Resolution
Mtg Date
Ordinance
Mtg Date
Bid Award
Mtg Date
Public Hearing
g Date
Mt
Other
Mt
g Date
SPONSOR Council Mayor .HR DCD Finance Fire IT P &R Police PW
SPONSOR'S City administration and Tukwila Village Development Associates (TVDA), LLC have agreed
SUMMARY on deal terms for TVDA to develop Tukwila Village. The proposed DDA is attached for
review and approval, to include a staff report outlining the changes. The Council is being
asked to review and discuss the DDA at the Committee of the Whole meeting this evening
and then forward it on to the Special Meeting to follow for approval.
REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte
Utilities Cmte Arts Comm. Parks Comm. Planning Comm.
DATE: 9/24/12 COMMITTEE CHAIR:
RECOMMENDATIONS:
SPONSOR /ADMIN. Mayor
COMMITTEE.
COST IMPACT FUND SOURCE
EXPENDITURI7 REQULRED AMOUNT BUDGETED APPROPRIATION REQUIRED
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
09/10/12
Forward to the Committee of the Whole meeting of 9/24/12
09/24/12
Forward to a future meeting
10/15/12
MTG. DATE
ATTACHMENTS
09/10/12
Informational Memorandum dated 9/6/12, with attachments
9/24/12
Informational Memorandum dated 9/19/12
Proposed Disposition and Development Agreement (DDA)
Preliminary Site Plan
10/15/12
Informational Memorandum dated 10/9/12
10/22/12
Informational Memrandum dated 10/18/12
Proposed Disposition and Development Agreement
A
p
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
City Council
FROM: Derek Speck, Economic Development Administrator
DATE: October 18, 2012
SUBJECT: Tukwila Village Proposed Disposition and Development Agreement
ISSUE
City administration requests City Council approval of the proposed Disposition and
Development Agreement for Tukwila Village.
BACKGROUND
In 1998 the City adopted the Pacific Highway Revitalization Plan which was developed over four
years with extensive public and professional input. The Revitalization Plan listed strategies and
actions to, in the words of then Mayor John "Wally" Rants, "...bring a new vitality and image to
Pacific Highway South." One of the strategies included in the 1998 Revitalization Plan included
the purchase of blighted properties under the urban renewal law for future development. By
January 2000 the City had renamed our section of Pacific Highway to its current name as
Tukwila International Boulevard. In 2000 the City adopted an Urban Renewal Plan that
designated a seven block urban renewal area centered around the intersection of Tukwila
International Boulevard and South 144 Street. The Plan also proposed an urban renewal
project at that intersection. That proposal became the Tukwila Village project.
Since 2000, the City has invested nearly $9 million in acquiring approximately six acres of
property and the associated businesses and residences and preparing the site. The city has
gone through three rounds of issuing requests for qualifications /proposals from the private
sector to develop the site, has extensively marketed the site, and has worked through various
stages of negotiations with developers. The most recent request for qualifications was issued in
March 2011.
On June 6, 2011, the City Council selected Tukwila Village Development Associates, LLC
(TVDA) as the developer for Tukwila Village. Since that time, the City and TVDA have been
negotiating a Disposition and Development Agreement (DDA), which is the contract that outlines
the roles and responsibilities of the City and TVDA and other conditions for the sale of the
Tukwila Village property to TVDA. The City and TVDA have also been negotiating with the King
County Library System (KCLS) in order for a KCLS branch library to be built on the site.
On December 19, 2011, City staff presented the key proposed deal terms to the City Council.
During 2012 the City staff and TVDA continued negotiations and work on the project. As part of
the negotiations, the City and TVDA have engaged in considerable site planning and design
discussions. TVDA has been performing due diligence, geotechnical and civil engineering
studies, site planning, and architectural and landscape design work for the proposed
i
INFORMATIONAL MEMO
Page 2
development. They are on a schedule to submit the project for design review approval within a
few months of the approval and execution of the DDA.
On September 10, 2012 City staff presented an overview of the key terms for the proposed
DDA. A draft proposed DDA was presented to the Council on September 24, 2012 and
included on the Council's agenda of October 15, 2012. A revised proposed DDA is attached to
this memo and recommended for Council approval.
DISCUSSION
The attached proposed DDA has been edited from the draft presented at the September 24
Council meeting primarily to correct typos, complete all references to attachments, add a table
of contents, and add exhibits. The main substance has not significantly changed. The staff
memorandum dated September 6, 2012 that was included in the agenda item for the September
10, 2012 Council meeting provided an overview of the key terms of the agreement and it still
reflects the proposed DDA.
RECOMMENDATION
The Council is being asked to approve the Disposition and Development Agreement and
consider this item at the October 22, 2012 Committee of the Whole meeting and subsequent
October 22, 2012 Special Meeting.
ATTACHMENTS
Proposed Disposition and Development Agreement
50
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE CITY OF TUKWILA
and
TUKWILA VILLAGE DEVELOPMENT ASSOCIATES, LLC
Tukwila Village
Dated as of .2012
51
52
TABLE OF CONTENTS
RECITALS.................................................................................................... ..............................1
ARTICLE 1
DEFINITIONS, EXHIBITS, SCHEDULE AND CC &Rs ..............................4
Section1.1 Definitions ..............................4
Section1.2 Exhibits .............................11
ARTICLE 2
DEVELOPER PREDISPOSITION REQUIREMENTS .............................12
Section 2.1 Conditions Precedent .............................12
Section2.2 Deposit .............................12
A
Delivery of Deposit .............................12
B
Refund of Deposit .............................13
C
Application of Deposit .............................13
D.
Termination /Revocation .............................13
Section 2.3 Site Plan and Design Review Submittals .............................13
A.
Site Plan Submittal and Approval .............................13
B.
Design Review Application Submittal and Approval .............................14
C.
Proposed Site Plan Conformance .............................14
Section 2.4 Phasing; Development Parcels .............................15
A
In General .............................15
B
City Review and Approval .............................15
C.
Plaza Parcel; First Development Phase .............................15
D
Additional Approvals .............................15
E
Library Parcel; Timing .............................15
Section 2.5 Boundary Line Adjustment .............................16
Section 2.6 Street Vacation .............................16
A
Legislative Action .............................16
B.
Final Approval; Meaning .............................16
C.
Street Vacation Agreements; Retained Easements .............................16
Section 2.7 Entitlements and Vesting .............................17
A
Development Agreement .............................17
1. Additional Height .............................17
2 Design Review .............................17
a Vision Statement .............................17
b. Focal Point Design .............................18
C. Buildings Along Eastern Boundary .............................18
d. Minimum Interior Height .............................18
e. Landscaping Standards .............................18
B
Condition Precedent .............................18
C
Naming Rights .............................18
D
Signage .............................18
Section 2.8 Community Plaza and Commons Ownership and Management ...............19
A
Intent .............................19
B.
Development of Outdoor Plaza .............................19
C.
Development of Indoor Community Commons .............................19
D.
Purchase of Community Plaza Parcel .............................20
i 53
E. Covenants, Conditions and Restrictions .............................20
1 Intent and Purpose .............................20
2 Recording .............................20
3 Changes to CC &Rs .............................20
4. Amendment or Termination After Recording .............................20
5. Relationship to This Agreement .............................21
6 Effect of CC& Rs .............................21
7 Term .............................21
F. Management and Operation .............................21
G Long -Term Lease .............................22
1 Scheduling .............................22
2. Plaza Maintenance .............................22
3. Commons Maintenance .............................22
4. Plaza and Commons Repair .............................22
5 Commons Utilities .............................23
6 Non -Fixed Assets .............................23
7. Property Taxes; Insurance .............................23
H Dissolution .............................23
I Developer Contribution .............................23
Section2.9 Library .............................23
A. Establishment of Library Parcel .............................23
B. Purchase and Sale Agreement with KCLS .............................23
C. Infrastructure Improvements Benefiting Library Parcel; Reimbursement ............24
D. KCLS Development Agreement; Easements; Parking .............................24
Section 2.10 Temporary Construction Easement .............................25
Section 2.11 Restaurant /Retail Space Covenant .............................25
Section 2.12 Police Resource Center .............................26
Section 2.13 Other Approvals .............................26
A. On- Street Parking Approval .............................26
B. Other Off -site Infrastructure Improvements .............................27
C Other Approvals .............................27
D Evidence of Approvals .............................27
Section 2.14 Construction Contracts .............................27
Section 2.15 Financing Plan .............................28
Section 2.16 Evidence of Availability of Funds .............................29
Section 2.17 Performance and Payment Guarantee .............................29
ARTICLE 3 CITY RESPONSIBILITIES .............................29
Section 3.1 Permits and Approvals .............................29
A City Assistance .............................29
B. City Retains Discretion .............................29
ARTICLE 4 DISPOSITION OF PROPERTY .............................30
Section4.1 In General .............................30
Section4.2 Opening Escrow .............................30
Section 4.3 Development Parcel Purchase Price .............................30
Section 4.4 Residual Land Value Analysis .............................30
A In General .............................30
54 ii
B.
Adjusted Residual Land Value .............................30
C.
Process for Determination of Residual Land Value Analysis .............................31
1. Submittal of Proposed Residual Land Value Analysis .............................31
2 Construction Costs .............................31
3 City Review .............................31
4 Remedies .............................32
D.
Determination of Purchase Price .............................32
1 Conditions Precedent .............................32
2. Submission of Proposal .............................32
3 City Response .............................33
4 Remedies .............................34
E
Purchase Price .............................34
F.
Minimum Residential Unit Value .............................34
Section4.5 Escrow Closing .............................35
A.
Selection of Escrow Agent .............................35
B
Closing and Conveyance .............................35
C
Conditions Precedent .............................35
1 Delivery by City .............................35
2 Delivery by Developer .............................36
3 Other Instruments .............................36
4 Other Conditions .............................36
Section4.6 Title .............................37
A
Condition of Title .............................37
B
No Adverse Action .............................37
C
Title Insurance .............................37
Section 4.7 Condition of the Property .............................37
A.
Disclosure; Due Diligence Review Period .............................37
Section4.8 Title Review .............................38
A.
Review of Title Information .............................38
1 Review Documents .............................38
2. Developer's Title Notice to City .............................39
3 City's Response .............................39
B
"As Is" Purchase .............................40
C
Survival .............................41
D
Acknowledgment .............................41
E.
Developer's Release of the City .............................41
F
Scope of Release .............................41
G.
Costs of Escrow and Closing .............................42
1 Prorations .............................42
2 Title Insurance .............................42
H
Recordation .............................42
LDelivery
of Documents .............................43
J.
Real Estate Commissions .............................43
ARTICLE 5
CONSTRUCTION OF THE DEVELOPMENT .............................43
Section 5.1 Basic Obligations .............................43
Section 5.2 Developer Performed Street, Utilities and Related Work .........................44
Section 5.3 Description of Developer Infrastructure Work .............................45
iii 55
A Street Improvements .............................45
B Storm Water Utilities .............................45
C Other Utilities .............................45
D South 144 Street .............................45
E. Other Infrastructure Improvements .............................45
Section 5.4 Construction Pursuant to Plans .............................45
A General Requirement .............................45
B "As Built" Plans .............................46
Section 5.5 Estoppel Certificate of Completion .............................46
Section5.6 Entry by the City .............................46
ARTICLE 6 OBLIGATIONS DURING AND AFTER CONSTRUCTION .............................47
Section 6.1 Applicability .............................47
Section 6.2 Additional Operating Covenants for Retained Improvements
47
A. Expansion, Reconstruction or Demolition .............................47
Section 6.3 General Indemnity and Insurance .............................47
A General Indemnity .............................47
B. Required Insurance Coverage .............................48
C. General Contractor's Insurance .............................48
D. General Insurance Requirements .............................48
1 In General .............................48
2. Additional Insureds .............................48
3. Additional Requirements .............................48
Section 6.4 Hazardous Materials .............................49
A. Basic Developer Obligations .............................49
B. Notification to City; City Participation .............................49
C. Developer Indemnification .............................50
Section6.5 Taxes .............................50
Section 6.6 Damage or Destruction to Developer Responsibility Area ........................50
Section6.7 CC &Rs Obligations .............................50
ARTICLE 7 ASSIGNMENT AND TRANSFERS .............................51
Section 7.1 Definition of Transfer .............................51
Section 7.2 Purpose of Restrictions on Transfer .............................51
Section 7.3 Prohibited Transfers .............................51
Section 7.4 Permitted Transfers .............................51
Section 7.5 Other Transfers in City's Sole Discretion .............................52
Section 7.6 Effectuation of Permitted or Otherwise Approved Transfers ....................52
ARTICLE 8 SECURITY FINANCING AND RIGHTS OF HOLDERS .............................53
Section 8.1 Security Financing Interests; Permitted and Prohibited
Encumbrances............................................................... .............................53
Section 8.2 Holder Not Obligated to Construct .............................54
Section 8.3 Notice of Default and Right to Cure .............................54
Section 8.4 Failure of Holder to Complete Development .............................54
Section 8.5 Right of City to Cure .............................54
Section 8.6 Right of City to Satisfy Other Liens .............................55
Section 8.7 Holder to be Notified .............................55
56 iv
Section 8.8 Modifications .............................55
ARTICLE 9 DEFAULT AND REMEDIES .............................55
Section 9.1 Application of Remedies .............................55
Section 9.2 No Fault of Parties .............................55
A. Bases For No Fault Termination .............................55
1. Street Vacation Agreement .............................56
2. Final Street Vacation Approval .............................56
3 Site Plan Approval .............................56
4. Boundary Line Adjustment .............................56
5. Development Agreement .............................56
6 CC &Rs .............................56
7. Phased Development Plan .............................56
8. Temporary Construction Easement .............................56
9 Construction Contract .............................56
10 Financing Plan .............................56
11. Agreement with KCLS .............................56
12. Design Document Approval .............................56
13 Outdoor Plaza .............................57
14 Commons .............................57
15. Performance and Payment Bond .............................57
16. Residual Land Value Analysis .............................57
17 Purchase Price .............................57
18 Mutual Agreement .............................57
B. Termination Notice; Effect of Termination .............................57
Section9.3 Fault of City .............................57
A City Event of Default .............................57
B. Notice and Cure; Remedies .............................57
Section 9.4 Fault of Developer .............................58
A. Developer Event of Default .............................58
B. Notice and Cure; Remedies .............................60
1 Prior to Closing .............................60
2. Between Closing and Estoppel Certificate of Completion ........................60
3. After Estoppel Certificate of Completion .............................61
Section 9.5 Right of Reverter .............................61
Section 9.6 Option to Repurchase, Reenter and Repossess .............................62
Section 9.7 Plans, Work Product and Studies .............................63
Section9.8 Survival .............................63
Section 9.9 Rights and Remedies Cumulative .............................63
Section 9.10 Renegotiation .............................63
Section 9.11 Communication; Dispute Avoidance; Arbitration .............................64
A. Communication and Discussion .............................64
B Arbitration .............................64
ARTICLE 10 GENERAL PROVISIONS .............................65
Section 10.1 Notices, Demands and Communications .............................65
A Method .............................65
1 Addresses .............................65
v 57
2
Special Requirement .............................66
Exhibit A -1
Section 10.2
Excusable Delay (Force Majeure) .............................66
Depiction of the Property
Section 10.3
Inspection of Books and Records .............................66
Exhibit D
Section 10.4
Title of Parts and Sections .............................67
(to be inserted
Section 10.5
Non Liability of Officials, Employees and Agents .............................67
Exhibit F
Section 10.6
Time of the Essence; Calculation of Time .............................67
Approved Site Plan (to be inserted
Section 10.7
Applicable Law; Interpretation; Fair Construction .............................67
Section10.8
Severability .............................67
CC &Rs approved pursuant to Section 2.8(E) (to be
Section 10.9
Legal Actions; Venue .............................67
Exhibit I
Section 10.10
Binding Upon Successors; Covenants to Run With Land .........................68
Section 2.10 (to be inserted
Section 10.11
Parties Not Co- Venturers .............................68
Section 10.12
Provisions Not Merged With Deed .............................68
Financing Plan approved pursuant to Section 2.15 (to be
Section 10.13
Entire Understanding of the Parties .............................68
Section10.14
Approvals .............................69
A City Actions .............................69
B Standard
of Approval .............................69
Section 10.15
Authority of Developer .............................69
Section 10.16
Amendments .............................69
Section 10.17
Multiple Originals; Counterparts .............................69
Section 10.18
Operating Memoranda .............................70
Section 10.19
Good Faith and Reasonableness .............................70
Section 10.20
Successors and Assigns .............................70
Section 10.21
Estoppel Certificates .............................70
Section10.22
Waiver .............................71
Section 10.23
Rights and Remedies Cumulative .............................71
Section 10.24
Discrimination .............................71
Section 10.25
Nonwaiver of Governmental Rights .............................71
EXHIBITS
Exhibit A
General Description of the Property
Exhibit A -1
Legal Description of the Property
Exhibit B
Depiction of the Property
Exhibit C
Form of Statutory Warranty Deed
Exhibit D
Phased Development Plan approved pursuant to Section 2.4
(to be inserted
Exhibit E
Street Vacation Agreement (to be inserted
Exhibit F
Preliminary Site Plan
Exhibit F -1
Approved Site Plan (to be inserted
Exhibit G
Approved Development Agreement in conformance with
Section 2.7 of this Agreement (to be inserted
Exhibit H
CC &Rs approved pursuant to Section 2.8(E) (to be
inserted
Exhibit I
Temporary Construction Easement approved pursuant to
Section 2.10 (to be inserted
Exhibit J
Construction Contracts approved pursuant to Section
2.14(A) (to be inserted
Exhibit K
Financing Plan approved pursuant to Section 2.15 (to be
58 vi
vii 59
inserted)
Exhibit L
KCLS Development Agreement (Section 2.9) (to be
inserted)
Exhibit M
Police Resource Center Agreement (Section 2.12) (to be
inserted)
Exhibit N
Statement of Purpose and Design for the Outdoor Plaza
pursuant to Section 2.8(B) (to be inserted)
Exhibit O
Statement of Purpose and Design for the Commons
pursuant to Section 2.8(C) (to be inserted)
Exhibit P
Performance and Payment Guarantee pursuant to Section
2.17 (to be inserted)
Exhibit Q
Residual Land Value Analysis approved pursuant to
Section 4.4 (to be inserted)
Exhibit R
Form of DDA Memorandum (to be inserted)
Exhibit S
Legal Description of benefited property pursuant to Section
2.6 (to be inserted)
Exhibit T
Parking Easement (to be inserted)
Exhibit U
Legal Description of 41" Avenue to be vacated (to be
inserted)
ATTACHMENT NO. 1 TO MEMORANDUM OF DDA Legal
Description of the Property
vii 59
M-8
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR THE
TUKWILA VILLAGE DEVELOPMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement is
entered into and is effective as of the day of 2012 (the "Effective Date by
and between the City of Tukwila, a municipal corporation operating under the laws of the State
of Washington as a non charter code city (the "City and Tukwila Village Development
Associates, LLC, a Washington limited liability company (the "Developer The City and
Developer are sometimes collectively referred to in this Agreement as the "Parties," and
individually as a "Party." The Parties have entered into this Agreement with reference to the
following facts:
RECITALS
A. These Recitals refer to and utilize certain capitalized terms that are defined in
Section 1.1 of this Agreement. The Parties intend to refer to those definitions in connection with
their use in these Recitals. The Parties further intend that the meaning given terms in these
Recitals shall have the same meaning throughout this Agreement.
B. The City of Tukwila owns approximately 164,000 square feet of land plus
approximately 23,000 square feet of 41" Avenue right of way on the northeast corner of Tukwila
International Boulevard plus approximately 90,000 square feet of land on the southeast corner of
Tukwila International Boulevard, totaling approximately 6.4 acres. The City intends this
Property to be used for a Development it calls Tukwila Village.
C. In 2007 the Tukwila City Council adopted the following vision statement for
Tukwila Village:
Tukwila Village will be a welcoming place where all residents can
gather and connect with each other. This mixed -use development
will draw upon Tukwila's strengths and include a library, a
neighborhood police resource center, retail, restaurants, public
meeting space, and an outdoor plaza. The Village may also
include office, live /work, and residential space. This active,
vibrant place will set high standards for quality and foster
additional neighborhood revitalization and civic pride.
D. On March 30, 2011, the City issued a request for qualifications for a proposal to
develop the Property and on June 6, 2011 the City Council selected Developer as the most
qualified among the applicants to develop the Property.
E. The Parties' intent is for the City to sell all of the City -owned Tukwila Village
Property to Developer except for a portion on the northeast corner of the intersection of Tukwila
International Boulevard and South 144 Street intended for a branch of the King County Library
System (the "Library Parcel
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F. Developer shall be allowed to transfer ownership of Development Parcels to
Affiliates of Developer for purposes of facilitating the financing and Development of the
Improvements for each of the Development Parcels.
G. Developer shall be allowed to transfer ownership of a Development Parcel to
another single asset entity owned or controlled by Developer to facilitate the development and
public use of an outdoor community plaza and indoor community commons (the "Plaza Parcel
subject to certain commitments described herein to grant possession and use of such Plaza Parcel
(and the improvements thereto) to a local community -based organization formed, facilitated or
selected by the City and Developer.
H. The boundaries of the Library Parcel, the Development Parcels and the Plaza
Parcel shall be confirmed pursuant to boundary line adjustments proposed by Developer and
approved by the City. Developer shall submit the boundary line adjustment application or
binding site improvement plan along with its initial design review application for City approval
and it shall be recorded prior to issuance of the building permits.
L As of the Effective Date, the City is the owner of the Property generally described
in Exhibit "A" and depicted in attached Exhibit "B and legally described in Exhibit "A -1"
J. The City and Developer propose to develop the Property generally in the manner
described in the foregoing Recitals, and more specifically in the manner described and depicted
in the Preliminary Site Plan attached hereto as Exhibit "F and as follows. The Parties' intent is
for the Development of the Property to consist of a mix of uses that serves the residents of the
development, the surrounding neighborhood, and the entire City by providing a place where
people can reside, gather and interact with each other. The Parties further intend that this
Agreement shall be recorded, in the form of the DDA Memorandum, upon Closing and shall
bind Developer and its successors and assigns and transferees and shall be a condition running
with the land until such time at the Estoppel Certificate of Completion is issued, as to each
Development Parcel, or the Agreement is otherwise terminated as to a particular Development
Parcel.
K. Upon satisfaction of certain specified preconditions, the City will convey the
Property (or individual Development Parcels thereof) to Developer and Developer will develop
the Property (or individual Parcels thereof), consisting generally of the following uses and
elements with the corresponding minimum areas or dwelling units:
1. Uses and Sizes
a. Office Space
b. Police Resource Center
C. Retail
d. Indoor Community Commons
20,000 square feet
2,000 square feet
11,000 square feet
2,000 square feet
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e. Outdoor Community Plaza 20,000 square feet
f. Housing Units 380 units'
2. Medical /Dental Office Space Developer shall use its best efforts to
secure a medical and dental clinic consisting of approximately 20,000 square feet to occupy the
Office Space referenced above.
3. Library Space The City shall use its best efforts to secure a 10,000 square
foot library branch of the King County Library System for the Library Parcel, as hereinafter
defined. Developer shall use its best efforts to coordinate development of the Property and the
Library Parcel in cooperation with the King County Library System in a fashion that creates
efficiencies for infrastructure improvements and such that the two properties function for
vehicles and pedestrians as one integrated development.
4. Income Limits on Non -Age Restricted Housing The Parties intend for the
non -age restricted housing to meet the minimum income restrictions necessary to qualify for
federally tax exempt bond financing. Accordingly, with respect to the housing units that are not
age- restricted, to the extent necessary to meet the minimum qualifications for tax exempt bond
financing, approximately 20% of such units may be restricted to households earning 50% or less
than the area median gross income. The balance of such non -age restricted housing units shall
have no household income restrictions.
5. Income Limits on Age- Restricted Housing The Parties intend for the age
restricted (i.e., "senior housing units to be available to a range of household incomes while
enabling all of the housing units to qualify for a real property tax exemption and tax exempt
bond financing. The Parties also intend for a majority of the age- restricted housing units to
qualify for federal low income housing tax credits. Accordingly, at least 20% of the age
restricted housing units shall have no household income restrictions and at least 30% of the age
restricted housing units shall either have no household income restrictions or be subject to
household income restrictions not less than 80% of area median gross income. The balance of
such age- restricted housing units may have household income restrictions not less than 50% of
area median gross income. The housing units that are both age- and income restricted may also
have rent restrictions to the extent necessary to qualify for federal low income housing tax
credits.
6. Other Uses Beyond the minimum required uses identified in K(1) of the
Recitals hereto, the Parties' intend the Development to be allowed to include any uses that are
allowed under the City's zoning code.
L. Developer shall be allowed to develop the Property in up to four (4) separate
phases; provided, however, the Plaza Parcel shall be developed in conjunction with the first
Development Phase.
At least seventy -five percent (75 of the housing units shall be age restricted (elderly housing) as defined under
the applicable federal fair- housing laws.
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M. The proposed Development is consistent with the City's Comprehensive Plan and
the Tukwila Village Vision statement and will promote the goals and objectives of the
Comprehensive Plan to revitalize the area in and around Tukwila Village.
N. Developer has represented, and the City has determined, that Developer has the
necessary experience, skill, and ability to carry out the commitments contained in this
Agreement.
WITH REFERENCE TO THE FACTS RECITED ABOVE, the City and Developer
agree as follows:
ARTICLE 1
DEFINITIONS, EXHIBITS, SCHEDULE AND CC &Rs
Section 1.1 Definitions In addition to the terms defined elsewhere in this Agreement,
the following definitions shall apply:
"Affiliate" means, when used in connection with Developer, any Person who owns or
controls, is owned or controlled by, or is under common ownership or control with,
Developer, and "Affiliates" mean all such Persons.
"Agreement" means this Disposition and Development Agreement.
"Approved Construction Plans" means all plans and specifications in connection with the
construction of the Improvements associated with a Development Phase, including, but
not limited to, final architectural drawings and specifications, final structural engineering
plans, final civil engineering plans, final Landscaping plans and specifications, and
typical materials, finishes and colors for all residential, retail, commercial and Plaza
components, upon which the City is ready to issue all applicable site development,
engineering and building permits.
"Approved Development Loan" means, as to a Development Phase, any construction or
permanent loan approved by the City as part of the Approved Financing Plan pursuant to
Section 2.14, and that requires all proceeds of such loan to be used exclusively for
acquisition of the Development Parcels, site development and /or the construction of
Improvements for the Development Phase.
"Approved Site Plan" means the site plan for the Development as approved by the City
through the Board of Architectural Review "BAR design review process.
"Boundary Line Adjustment" or "BLA" means any revision to the legal description of
one or more lots or parcels included in the Property through an approved legal process of
a boundary line adjustment, lot consolidation, binding site plan, or any combination
thereof.
"Business Day" means a day on which the offices of the City are open to the public for
business.
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"Casualty" means any damage or destruction to the Developer Responsibility Area, not
authorized in this Agreement, in excess of Fifty Thousand Dollars ($50,000).
"CC &Rs" means the covenants, conditions and restrictions recorded at the time of
conveyance of each Development Parcel relating to the rights, duties and obligations to
operate and maintain the Plaza Parcel, as more specifically set forth in Section 2.8(E)
hereof.
"City" means the City of Tukwila, a municipal corporation operating as a non charter
code city under the laws of the state of Washington. Those acting on behalf of the City
may include the Mayor, City employees and authorized consultants.
"City Council" means the Tukwila City Council.
"City Event of Default" has the meaning given in Section 9.3.
"Closing" means the closing of escrow through which the City will convey its fee estate
in a Development Parcel or Parcels to Developer or in the Library Parcel to the KCLS.
"Closing Date" means the date of Closing of escrow with respect to a Development
Parcel or the Library Parcel.
"Commons" means the building (or portion thereof) located within boundaries of the
Plaza Parcel that is leased, or intended to be leased, to the Community Organization, as
more specifically described in Section 2.8.
"Construction Contract" means the fixed price or guaranteed maximum price
construction contract between Developer and the General Contractor for construction of
the Improvements associated with a Development Phase, as submitted by Developer and
approved by the City pursuant to Section 2.14 hereof.
"Construction Documents" means, collectively, all Approved Construction Plans upon
which Developer, and Developer's several Contractors, shall rely in connection with the
construction of the Improvements associated with a Development Phase, and the
Construction Schedule.
"Construction Schedule" means the schedule for construction of all Improvements
associated with a particular Development Phase.
"Contaminant(s)" means all hazardous substances as defined under the Environmental
Standards.
"Contractors" means, collectively, the General Contractor and any other contractors or
subcontractors retained directly or indirectly by Developer, the General Contractor, or
any Tenant in connection with the construction of the Improvements associated with the
Development, including the initial tenant improvements within the Development. The
term "Contractors" shall not include any contractor or subcontractor separately retained
5 65
by the owner of a Residential Unit following the sale of such Residential Unit by
Developer.
"DDA Memorandum" means the memorandum of this Agreement, substantially in the
form attached hereto as Exhibit "R to be recorded as provided in Section 4.5(C)(1)(f)
hereof.
"Deed" means the statutory warranty deed by which the City will convey its fee estate in
a Development Parcel to Developer or the Library Parcel to the KCLS at the Closing
thereof. The form of such Deed is attached hereto as Exhibit "C
"Deposit" means the good faith deposit provided by Developer pursuant to Section 2.2 in
the amount of One Hundred Thousand Dollars ($100,000), and specifically does not
include interest that is earned on the Deposit.
"Design Guidelines" and "Design Standards" means collectively, the design criteria,
standards and specifications set forth in this Agreement, the Development Agreement, the
City of Tukwila Land Use Regulatory Code, the approved Phased Development Plan, the
CC &Rs and other legal requirements that affect the Development.
"Developer" means Tukwila Village Development Associates, LLC, a Washington
limited liability company, or any successor thereto as permitted pursuant to the terms of
this Agreement. With reference to any covenant set forth herein, "Developer" shall also
mean and include any subsequent purchaser or assignee of an interest in all or part of the
Retained Improvements.
"Developer Event of Default" has the meaning given in Section 9.4.
"Developer- Performed Additional Site Work" shall mean and refer to the Developer
work described in Section 5.3 hereof.
"Developer Responsibility Area" means all portions of the Property owned or controlled
by Developer from time to time, including all portions occupied by, in the possession of,
or subject to control by Developer pursuant to the Temporary Access Easement described
in Section 2.10 hereof. For purposes of this Agreement, all portions of the Plaza Parcel
under the control of the Community Organization from time to time, including without
limitation, the Parking Improvements and the Street Improvements, shall be deemed to be
controlled by Developer and, consequently, shall be deemed to be a part of the Developer
Responsibility Area.
"Development" means and refers to the Tukwila Village development in its entirety
including all Improvements to be constructed and developed on or in connection with the
Property by Developer or its Contractors in accordance with this Agreement. The
proposed Development is generally described in Recital J, and is more specifically
described and depicted in the Preliminary Site Plan attached hereto as Exhibit "F" and the
Approved Site Plan attached hereto as Exhibit "F -1
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"Development Impact Fees" means the development impact fees imposed by the City
pursuant to Chapter 82.02 RCW in connection with the development of the Property.
"Development Parcels" shall mean and refer to each parcel or lot comprising the Property
either as legally described in Exhibit "A -1 or as may hereafter be altered or adjusted or
combined pursuant to a Boundary Line Adjustment.
"Development Phase" shall mean and refer to the planned development of a separate
Development Parcel or Parcels comprising a portion of the Property wherein such
Development Parcel or Parcels will be permitted and developed by Developer, or an
Affiliate thereof, as a single project and pursuant to a common plan of financing and the
approved Phased Development Plan. A Development Phase may include related off -site
utility, transportation or similar improvements.
"Dispute" shall mean an issue or controversy that arises between the Parties concerning
the observance, performance, interpretation or implementation of any of the terms,
provisions, or conditions contained in this Agreement or the rights or obligations of either
Party under this Agreement.
"Effective Date" means the date set forth in the first paragraph of this Agreement.
"Environmental Standards" mean all federal, state and local environmental Laws and
ordinances and all rules and regulations promulgated thereunder, whether currently in
effect or enacted or amended from time to time in the future, including but not limited to
the Endangered Species Act "ESA the Resource Conservation and Recovery Act
"RCRA the Comprehensive Environmental Response, Compensation, and Liability
Act "CERCLA the Clean Air Act as amended (42 U.S.C. 1857, (c) -8), the Clean
Water Act, Section 308 of the Federal Water Pollution Control Act, as amended (33
U.S.C. 1318), the Toxic Substances Control Act, Hazardous Waste Management Act (Ch.
70.105 RCW) and state dangerous waste regulations (Ch. 173.303 WAC), and the Model
Toxic Substances Control Act "MTCA" RCW 70.105.1), et seq. and Ch. 173.340 WAC),
and also including but not limited to any guidelines, levels and standards currently in
effect or enacted or amended from time to time in the future by the applicable federal,
state or local regulatory authority for addressing any contamination of any sort.
"Escrow Agent" means such title company or qualified escrow agent upon which the
Parties may subsequently agree, with which an escrow shall be established by the Parties
to accomplish the Closing as provided in this Agreement.
"Estoppel Certificate of Completion" means a certificate defined in Section 5.5 hereof.
"Financing Plan" means, as to each Development Phase, the following documents to be
submitted by Developer for City approval in accordance with Section 2.14 hereof:
A development budget (including all acquisition costs, direct or "hard" costs,
indirect or "soft" costs, and financing costs) for acquiring and developing the
Development Parcel or Parcels and constructing the Improvements associated
with a Development Phase. The development budget shall be based on the
7 67
Approved Construction Plans. At City's request, the development budget shall
also include as supporting documentation the same development budget
information provided to lenders and investors for procuring the debt and equity
funds including (but not limited to) the Construction Contract.
A description of any joint ventures, partnerships, financing arrangements or
conveyances that Developer proposes to enter into in order to provide funds for
acquiring, developing and constructing the applicable Development Phase.
A copy of all commitments obtained by Developer to provide financing as
reflected in the development budget, including interim construction financing,
permanent financing, and other financing from external sources (including
proposed joint ventures or partnerships), certified by Developer to be true,
accurate and complete.
Evidence in form satisfactory to the City demonstrating that Developer and other
equity investors or partners and lenders for all sources of equity or loans
identified in the development budget have sufficient capital or funds available to
fulfill the commitments identified in the development budget.
"Force Majeure" means the occurrence of one or more of those events described in
Section 10.4 of this Agreement, permitting an extension of time for performance of
obligations under this Agreement.
"General Contractor" means a licensed, experienced and financially responsible general
contractor with whom Developer has entered into a Construction Contract for
construction of the Improvements associated with a Development Phase.
"Improvements" means all buildings, structures, improvements and fixtures now or
hereafter rehabilitated, placed or constructed in, under or upon the Property, including the
Landscaping, and all driveways, roadways, sidewalks, public amenities, fences, paved
areas, utility distribution facilities, lighting, signage and other infrastructure or frontage
improvements to be constructed or installed by Developer, or others, on the Property.
"Indemnified Parties" means, collectively, the City, and its officers (elected and
appointed), employees, attorneys, agents, and successors and assigns.
"King County Library System" or "KCLS" means the King County Rural Library
District.
"Known Contaminant" means any Contaminant, (i) that is discovered by Developer
during pre Closing site investigation; (ii) that is mentioned in any Review Materials as
actually or possibly present in, under or upon a Development Parcel, or any part of the
Developer Responsibility Area, and (iii) the presence of which may reasonably be
inferred from (1) the presence of a mentioned Contaminant (as, for example, the possible
presence of contaminated soil may be reasonably inferred from the presence of an
underground storage tank), or (2) the possible degradation of a mentioned Contaminant;
provided, however, that the term "Known Contaminant" shall not include any
68 8
Contaminant that is introduced in, under, upon or emanating from a Development Parcel
following the Closing.
"Landscape" shall mean the landscaping elements of all outdoor public or private
Improvements, including, without limitation, plants, trees and other vegetation,
"hardscape" surfaces, fences, lighting, planters, trellises, seating, furniture, fixtures and
artwork.
"Later Discovered Pre Conveyance Contaminants" shall mean any Contaminants that are
not Known Contaminants but that existed in, under, upon or emanating from a
Development Parcel prior to the Closing.
"Law(s)" shall mean all present and future applicable laws, ordinances, rules, regulations,
resolutions, authorizations, environmental standards, orders, decrees and requirements of
all federal, state, City and municipal governments, the departments, bureaus or
commissions thereof, authorities, boards or officers, any national or local board of fire
underwriters, or any other body or bodies exercising similar functions having or
acquiring jurisdiction over all or any portion of the Property, including the City acting in
its governmental capacity, or other legal requirements. References to "Laws" shall be
interpreted broadly to include government actions, however exercised, and shall include
laws, ordinances and regulations now in force or hereinafter enacted or amended.
"Library Parcel" means a portion of the Property located at the northeast corner of the
intersection of Tukwila International Boulevard and South 144 Street, as more
specifically defined in Section 2.9(A) hereof, which the City intends to be developed with
a branch of the King County Library System.
"Mayor" means the Mayor of the City of Tukwila, or his or her designee.
"Permitted Exceptions" means the following liens, encumbrances, easements,
encroachments, clouds, conditions, rights of occupancy or possession, as they may relate
to the condition of title to the Property or to an individual Development Parcel:
applicable building and zoning Laws and regulations;
the provisions of this Agreement as evidenced by the DDA Memorandum;
the provisions of the CC &Rs pursuant to Section 2.8(E) of this Agreement;
the provisions of any easements granted by Developer and /or City to the KCLS
pursuant to Section 2.9(D) hereof as a condition of the KCLS Development
Agreement between Developer and the KCLS;
the provisions of any easements granted by Developer and /or City pursuant to
Section 2.6 hereof as a condition of the Street Vacation Agreement;
any lien for current taxes and assessments or taxes and assessments accruing
subsequent to recordation of the Statutory Warranty Deed;
9 69
liens, encumbrances, easements, encroachments, clouds, conditions, rights of
occupancy or possession shown as exceptions on the title report and which are
Permitted Exceptions allowed pursuant to Section 4.8 hereof, and
any other matters permitted by Developer in accordance with Section 4.8 hereof.
"Person" means and includes any individual, corporation, partnership, association, joint
stock company, limited liability company, political subdivision, public corporation,
taxing districts, trust, or any other legal entity.
"Plaza" means the outdoor portion of the Plaza Parcel, excluding the Commons, as
shown on the Preliminary Site Plan or, if revised, as shown on the Approved Site Plan,
and as more specifically described in Section 2.8 hereof.
"Plaza Parcel" means the portion of the Property identified as the Plaza Parcel as shown
on the Preliminary Site Plan or, if revised, as shown on the Approved Site Plan. The
Plaza Parcel includes the Plaza and the Commons and is more specifically described in
Section 2.8 hereof.
"Preliminary Plans" means, as to each Development Phase, the architectural and /or
engineering plans, specifications, drawings, elevations, and related documents for the
construction or installation of the Improvements.
"Preliminary Site Plan" means the site plan attached hereto as Exhibit "F
"Property" shall mean and include, collectively, those lots and parcels described in
Recitals E and I, and more particularly described and shown in the attached Exhibit "A-
F (Legal Description) and Exhibit "B" (Depiction of the Property), and shall mean and
include such lots and parcels as altered or combined pursuant to a BLA pursuant to
Section 2.5 hereof. "Property" shall not include the Library Parcel unless and until the
Library Parcel is released by the City to Developer pursuant to Section 2.9(B) hereof.
"Proposed Site Plan" means the site plan submitted by Developer to the BAR in
connection with a design review application for a Development Phase and as revised by
successive iterations prior to building permit approval for the Development Phase by the
City. "Purchase Price" shall mean the full dollar amount of the purchase price including
the allocable portion of the Deposit as determined in accordance with Section 2.2 hereof,
plus the amount of readily available funds in U.S. currency that Developer, pursuant to
Section 4.4 of this Agreement, shall be required to pay into escrow as the total amount of
the consideration to be paid to the City for the purchase of an individual Development
Parcel.
"Release" has the same meaning as that term is defined pursuant to the Model Toxic
Substances Control Act "MTCA" RCW 70.105D.020(25)) as now or hereafter amended.
"Remediation" or "Remedial Action" means any action or expenditure to identify,
eliminate, or minimize any threat posed to human health or the environment by
70 10
Contaminants or other environmental conditions in, under or upon the Property,
consistent with the applicable Laws and Environmental Standards in accordance with this
Agreement, including (if applicable) a Site Specific Clean -up Action Plan "SCAPS
filed with and approved by the Washington State Department of Ecology.
"Retained Improvements" means, all Improvements upon the Property, in whole or in
part, exclusive of those improvements that will be conveyed to the City or to the KCLS
and any utility system improvements constructed or installed by or on behalf of utility
providers (e.g., sanitary sewer, water, natural gas, electrical power, telecommunications,
internet and cable TV); and exclusive of Improvements upon the Library Parcel (if
conveyed to the KCLS).
"Site" means any physically separate and distinct Parcel or Parcels of the Property which
Parcel or group of Parcels is proposed as the location for development or for some other
activity which requires a permit or approval pursuant to TMC Titles 16, 17 or 18.
"Term" means the term of this Agreement, commencing on the Effective Date and ending
on the earlier of (1) the completion of the performance of all obligations of the Parties
pursuant to this Agreement, or (2) the date of any termination of this Agreement in
accordance with the provisions hereof.
"Transfer" has the meaning given in Section 7.1 hereof.
Section 1.2 Exhibits.
The following exhibits are attached to (or upon preparation and /or approval) will be
attached to) and incorporated into this Agreement as though fully set forth herein:
Exhibit A
General Description of the Property
Exhibit A -1
Legal Description of the Property
Exhibit B
Depiction of the Property
Exhibit C
Form of Statutory Warranty Deed
Exhibit D
Phased Development Plan approved pursuant to Section 2.4 (to be
inserted
Exhibit E
Street Vacation Agreement (to be inserted
Exhibit F
Preliminary Site Plan
Exhibit F -1
Approved Site Plan (to be inserted
Exhibit G
Approved Development Agreement in conformance with Section
2.7 of this Agreement (to be inserted
Exhibit H
CC &Rs approved pursuant to Section 2.8(E) (to be inserted
Exhibit I
Temporary Construction Easement approved pursuant to Section
2.10 (to be inserted
Exhibit J
Construction Contracts approved pursuant to Section 2.11(A) (to
11 71
Exhibit U Legal Description of 41" Avenue to be vacated (to be inserted)
ARTICLE 2
DEVELOPER PREDISPOSITION REQUIREMENTS
Section 2.1 Conditions Precedent
As conditions precedent to the Closing, the conditions set forth in this Article 2 must first
be met by the times specified for such conditions, subject to Force Majeure. If a recognized
Force Majeure event results in a delay such that satisfaction of all conditions set forth in this
Article 2 will require more than fifteen (15) months from the Effective Date, then the Parties
shall confer in good faith to seek mutually acceptable actions to proceed with the development of
the Property under the circumstances of such delay; provided, however, that this Agreement may
not be terminated without the mutual consent of the Parties if the satisfaction of all conditions in
this Article is delayed beyond fifteen (15) months from the Effective Date as a result of a
recognized Force Majeure event.
Section 2.2 Deposit
A. Delivery of Deposit No later than thirty (30) days following the Effective Date,
Developer shall deliver to the City, in the form of readily available funds, the sum total of One
Hundred Thousand ($100,000) Dollars (the "Deposit as a good faith deposit to be held by
the City. The City shall promptly deposit the amount in a separate account, such as an account in
which the City typically invests funds on a short -term basis.
72 12
be inserted)
Exhibit K
Financing Plan approved pursuant to Section 2.14 (to be inserted)
Exhibit L
KCLS Development Agreement (Section 2.9) (to be inserted)
Exhibit M
Police Community Resource Agreement (Section 2.12) (to be
inserted)
Exhibit N
Statement of Purpose and Design for the Outdoor Plaza pursuant to
Section 2.8(B) (to be inserted)
Exhibit O
Statement of Purpose and Design for the Commons pursuant to
Section 2.8(C) (to be inserted)
Exhibit P
Personal Guarantee pursuant to Section 2.11(D) (to be inserted)
Exhibit Q
Residual Land Value Analysis approved pursuant to Section 4.4 (to
be inserted)
Exhibit R
Form of DDA Memorandum (to be inserted)
Exhibit S
Legal Description of benefited property pursuant to Section 2.6 (to
be inserted)
Exhibit T
Parking Easement (to be inserted)
Exhibit U Legal Description of 41" Avenue to be vacated (to be inserted)
ARTICLE 2
DEVELOPER PREDISPOSITION REQUIREMENTS
Section 2.1 Conditions Precedent
As conditions precedent to the Closing, the conditions set forth in this Article 2 must first
be met by the times specified for such conditions, subject to Force Majeure. If a recognized
Force Majeure event results in a delay such that satisfaction of all conditions set forth in this
Article 2 will require more than fifteen (15) months from the Effective Date, then the Parties
shall confer in good faith to seek mutually acceptable actions to proceed with the development of
the Property under the circumstances of such delay; provided, however, that this Agreement may
not be terminated without the mutual consent of the Parties if the satisfaction of all conditions in
this Article is delayed beyond fifteen (15) months from the Effective Date as a result of a
recognized Force Majeure event.
Section 2.2 Deposit
A. Delivery of Deposit No later than thirty (30) days following the Effective Date,
Developer shall deliver to the City, in the form of readily available funds, the sum total of One
Hundred Thousand ($100,000) Dollars (the "Deposit as a good faith deposit to be held by
the City. The City shall promptly deposit the amount in a separate account, such as an account in
which the City typically invests funds on a short -term basis.
72 12
B. Refund of Deposit Upon notice of termination of this Agreement pursuant to
Section 9.2(B) of this Agreement and upon demand made to the City in writing by Developer
and received within sixty (60) days following the Effective Date, the Deposit shall be refunded to
Developer in full. Thereafter, the portion of the Deposit available for refund shall decrease by
Ten Thousand Dollars ($10,000) for each additional consecutive thirty (30) day period until no
portion of the Deposit is available for refund. For example, the refundable portion of the Deposit
for a notice of termination and demand received by the City on the 75 day following the
Effective Date would be Ninety Thousand Dollars ($90,000) and on the 105' day following the
Effective Date would be Eighty Thousand Dollars ($80,000). At such time as the total Deposit
becomes non refundable, the City shall have no obligation to return any remaining balance of the
Deposit to Developer except in the case of a City Event of Default.
C. Application of Deposit The Deposit, unless refunded as set forth in subsection
(B) above, shall be held, maintained and reserved by the City for the term of this Agreement to
be applied to the Purchase Price of each of the Development Parcels as set forth herein. At the
time of Closing as to each Development Parcel, the City shall apply the allocable portion of the
Deposit to the Purchase Price of the Development Parcel. The allocable portion of the Deposit
shall be expressed as a percentage and shall be determined based upon the gross square footage
of the Development Parcel which is the subject of the conveyance (the "Subject Development
Parcel in proportion to the total combined gross square footage of all of the Development
Parcels (the "Combined Development Parcels The allocable percentage of the total
combined gross square footage of the Combined Development Parcels represented by the gross
square footage of the Subject Development Parcel shall be multiplied by the total Deposit
amount to determine the portion of the Deposit allocable to the Purchase Price of the Subject
Development Parcel. For example, if the total combined gross square footage of the Combined
Development Parcels equals 250,000 square feet and the gross square footage of the Subject
Development Parcel equals 50,000 square feet, the Subject Development Parcel represents 20%
of the total combined gross square footage of the Combined Development Parcels. The Deposit
amount of $100,000 would be multiplied by 20% to arrive at $20,000 as the allocable portion of
the Deposit to be applied to the Purchase Price of the Subject Development Parcel ($100,000 x
20% $20,000).
D. Termination /Revocation In the event of termination, expiration or revocation of
this Agreement for any reason other than a City Event of Default, the City shall be entitled to
retain any remaining balance of the Deposit (including any interest earned thereon) to defray a
portion of the City's costs under this Agreement and to compensate the City for the lost
opportunity of making available the Development Parcels for an alternative development during
the Term of this Agreement.
Section 2.3 Site Plan and Design Review Submittals.
A. Site Plan Submittal and Approval Developer shall, on or before the 90 day
following the Effective Date, submit an application to the City for architectural design review
with respect to the first Development Phase in accordance with the requirements of TMC Ch.
18.60, including a Proposed Site Plan. The Proposed Site Plan submitted for review and
approval with the application shall substantially conform to the Preliminary Site Plan attached
hereto as Exhibit "F" and shall include, conform to and identify as to each proposed
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Development Parcel, the information required pursuant to TMC Ch. 18.60 and the following
elements:
1. Lines marking the boundaries of the existing lots(s) or parcel(s), provided
that any existing lot boundary to be eliminated or altered should be a dashed line and so noted.
2. Locations of existing and proposed public or private roads and easements,
including private access easements.
3. Location of proposed new property lines and numbering of each lot or
parcel.
4. Location, dimension and purpose of existing and proposed easements and
encumbrances, including but not limited to parking easements.
5. Location of any proposed dedications.
6. Description, location and size of existing and proposed utilities, storm
drainage facilities and roads to serve the Property.
7. Expected location and setbacks of proposed new buildings, parking areas
and driveways.
The Proposed Site Plan, if approved through the City's design review process, will
become the "Approved Site Plan provided that, the Proposed Site Plan may be modified by
Developer during design review pursuant to TMC Ch. 18.60 in response to issues raised by the
Board of Architectural Review. Upon approval pursuant to TMC Ch. 18.60, the Approved Site
Plan shall be incorporated in this Agreement as Exhibit "F -1" Development of the Property
shall conform to the Approved Site Plan, any conditions attached thereto, and any approved
amendments thereto.
B. Design Review Application Submittal and Approval Each application submitted
to the City for architectural design review for a proposed Development Parcel in accordance with
the requirements of TMC Ch. 18.60, shall include any modifications to the Proposed Site Plan,
the information required pursuant to TMC Ch. 18.60 and the following elements:
1. Conceptual floor plans, floor areas and elevations of proposed new
buildings and other structures.
2. Conceptual Landscaping plan.
3. A table of uses, elements, floor areas and housing units consistent with
Section "K" of the Recitals.
4. Identification of facilities in conformance with Section 2.11
(Restaurant /Retail Space Covenant) of this Agreement.
5. Identification of facilities in conformance with Section 2.12 (Police
Resource Center) of this Agreement.
C. Proposed Site Plan Conformance Prior to submittal of the Proposed Site Plan for
design review, Developer shall submit the Proposed Site Plan to the City for the Mayor's review
and approval of conformance with the Preliminary Site Plan. In the event that the Mayor
determines that the Proposed Site Plan does not substantially conform to the Preliminary Site
Plan, then at the request of Developer, the Proposed Site Plan shall be submitted to the City
Council for its review and approval of the Proposed Site Plan as an amendment to this
Agreement.
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Section 2.4 Phasing, Development Parcels
A. In General Developer shall have the right to develop the Property in multiple
Development Phases to facilitate financing and ownership, to aid in the timing of and sequencing
of construction, and to attain flexibility to adjust to market demand and other factors. In the
event that Developer intends to develop the Property in multiple Development Phases, Developer
shall submit its plan for phased development to the City (the "Phased Development Plan for
its review and approval prior to, or contemporaneous with, submittal of its proposed BLA
application to the City. The Development Parcels that are associated with each Development
Phase, including the Plaza Parcel, may be owned, operated and managed separately, although
initially developed under the control of Developer or an Affiliate.
B. City Review and Approval The City shall have the right to review and approve
the Phased Development Plan, including the development of the Plaza Parcel, for the purpose of
ensuring compliance with this Agreement and to ensure that the Additional Development Work
associated with each proposed Development Phase, as described at Section 5.2 of this
Agreement, will fully support the Improvements associated with each Development Phase in the
event that future Development Phases are delayed or not completed by Developer. The Phased
Development Plan shall include and identify:
1. A summary of the site plan and design review elements listed in Section
2.3 (Site Plan and Design Review Submittals) to be included within each Development Phase;
2. A proposed Construction Schedule and sequencing for the acquisition of
the affected Development Parcels and development of the Improvements for each Development
Phase, including Developer Additional Work associated with each Development Phase (e.g.,
infrastructure improvements, utilities, driveways and Landscaping).
C. Plaza Parcel; First Development Phase Developer shall develop the Plaza Parcel
contemporaneously with, and as part of, the development of the first Development Phase.
D. Additional Approvals The City shall have the right to require and approve
easements for utilities, vehicular access, pedestrian access, shared parking, and shared
maintenance for each Development Phase to ensure that the entire Development functions as an
integrated whole even if the Development Parcels and /or Development Phases come under
separate ownership and management.
E. Library Parcel; Timing The City shall use its best efforts to require the KCLS to
submit a proposed site plan with respect to the Library Parcel and a conceptual architectural
design for the proposed library branch building by the time Developer submits a design review
application for the first Development Phase. This is to ensure the City and Developer have
information on how the site plan and the architectural design for the proposed library branch
building will be compatible with the overall Development, and in particular, the Improvements
on the Development Parcels adjacent to the Library Parcel.
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Section 2.5 Boundary Line Adjustment
A Boundary Line Adjustment "BLA will be required to alter and /or combine the
existing boundaries of certain Parcels comprising all or part of the Property to create and define
the Plaza Parcel and Library Parcel, and the Development Parcels to accommodate Developer's
proposed Development Phases as approved pursuant to Section 2.4 hereof. Developer shall, in
conformance with Section 2.9(D) hereof, as soon as practicable after the Effective Date, work
with the KCLS to establish the proposed boundaries of the Library Parcel, submit an application
to the City pursuant to TMC Ch. 17.08 for a proposed BLA. Prior to submittal of the application
for a BLA, Developer shall submit its proposed BLA application to the Mayor for review and
approval for consistency with this Agreement. Such approval shall be in writing and shall, for
purposes of TMC 18.06.045, constitute the City's designation of Developer as applicant seeking
approval of the BLA. Final approval of the BLA in accordance with TMC 18.06.045 shall not be
recorded until Closing on the sale of the Development Parcels for the first Development Phase.
Upon final approval of the BLA, Exhibits "A" and "B" shall be amended to conform to the
revised legal descriptions and depictions of the Development Parcels resulting from the BLA.
Developer shall be responsible for all costs associated with applying for and obtaining
approval of a BLA pursuant to TMC Ch. 17.08, although an allocable portion of such costs shall
be taken into account in the Residual Value Analysis for each Development Parcel.
Section 2.6 Street Vacation
A. Legislative Action 41" Avenue is a public right of way thata portion of the
Property and is abutted by property owned by a third party and described in Exhibit "S" attached
hereto. The City and Developer acknowledge and agree that Developer's obligations as set forth
in Section 4.4 hereof to purchase the Property are contingent upon Final City Council Approval
of vacation of that portion of 41" Avenue as depicted and described on Exhibit "U" attached
hereto "Street Vacation Upon Final City Council Approval of such vacation, that vacated
portion of 41" Avenue shall become available for development as part of the Property.
B. Final Approval, Meaning "Final City Council Approval" shall mean thirty (30)
days following the effective date of the City Council ordinance granting the Street Vacation;
provided that, in the event that such Final City Council Approval is subject to challenge in a
court of competent jurisdiction, such challenge shall be considered an event of Force Majeure
and during that time period, such obligations of Developer shall remain contingent until such
time as a final non appealable decision is entered by a court of competent jurisdiction either
upholding the street vacation or otherwise dismissing the action. In the event that Final City
Council Approval of the Street Vacation is materially altered by a final non appealable decision
of a court of competent jurisdiction, such that the materials rights, duties and obligations of
either Party are altered, the Parties agree to meet in good faith to negotiate amendments to
reform this Agreement, upon such terms and conditions as are mutually agreeable by the Parties,
so as to carry out the Party's intent as expressed herein.
C. Street Vacation Agreements, Retained Easements City and Developer
acknowledge that certain third parties with real property interests near or abutting that portion of
41" Avenue to be vacated, and utility providers with utility facilities located within that portion
of 41" Avenue to be vacated, may be impacted by vacation of 41" Avenue. The City and
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Developer acknowledge and agree that certain third parry agreements may be necessary to
accommodate such third parties as a condition of Final City Council Approval of the Street
Vacation (hereinafter "Street Vacation Agreement(s) The City and Developer further
acknowledge and agree that vacation of 41" Avenue will require a reservation of certain
temporary and permanent easements over, under and across the Development Parcels to
accommodate relocation of existing utilities and to provide access to and from the public
roadways. For example, it is anticipated that the Street Vacation must include a reservation of a
temporary non exclusive access easement over and across 41" Avenue for the benefit of the
property described in Exhibit "S It is further acknowledged and agreed, that such Street
Vacation Agreements may provide for (i) certain Improvements to accommodate both temporary
and permanent access over and across the Development Parcels, (ii) easements for conveyance
and connection to stormwater system improvements to facilitate the collection and conveyance
of storm and surface water from adjacent property, and (iii) other accommodations to facilitate
approval of such Street Vacation Agreements. Upon the Effective Date, the City and Developer
agree that they will begin to work cooperatively with each other to secure from the adjacent
property owners such Street Vacation Agreements as are reasonable and necessary to facilitate
and expedite the Street Vacation of 41" Avenue and will negotiate such reservation of rights and
easements upon the Property reasonably necessary to accommodate the terms and conditions of
such Street Vacation Agreements.
The City and Developer shall, in conjunction with the Street Vacation and the Street
Vacation Agreements, mutually agree upon the allocation of the costs associated with City
and /or Developer obligations under the Street Vacation Agreements.
Section 2.7 Entitlements and Vesting
A. Development Agreement The Parties desire to enter into a development
agreement pursuant to RCW 36.7013.170 et. seq. (the "Development Agreement to set forth
the development standards and other provisions that shall apply to and govern and vest the
development, use and mitigation of the development of the Property for the duration specified in
such Development Agreement. The Parties intend that Developer's obligation to acquire and
develop the Property, in whole or in part, and the City's obligation to convey the Property, in
whole or in part, pursuant to the terms and conditions of this Agreement, shall be contingent
upon and subject to the Development Agreement providing for the following:
1. Additional Height The maximum building heights for buildings A and D
as shown on the Preliminary Site Plan shall be seventy (70) feet.
2. Design Review The Proposed Site Plan, the proposed design of the Plaza
and the Commons, and the proposed design of each building or other structure on each
Development Parcel, shall be subject to approval by the BAR under the rules and regulations
forming the City's design review approval process and development standards "Design
Review The design standards and review criteria applicable to the Property shall, in addition
to the criteria set forth at TMC 18.60.050 and the City's design and permitting rules and
regulations, include criteria consistent with the following:
a. Vision Statement The City's Vision Statement for Tukwila
Village.
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b. Focal Point Design The Preliminary Site Plan represents the
relationship of proposed new buildings to the Plaza and the neighborhood and, as such, focal
points, such as prominent building corners, must have a defined architectural expression and
visual interest. By way of example and not limitation, such defined architectural expression and
visual interest may include a rounded or chamfered wall, a tower, transparency, or architectural
lighting at night.
C. Buildings Along Eastern Boundary If any portion of buildings B
or E as shown on the Preliminary and Proposed Site Plan is proposed to be located within 30 feet
of an adjacent property that is zoned LDR, MDR, or HDR, the City may require portions of the
building to have greater setbacks and /or lower height limits than allowed under the City's
existing zoning codes or development standards, provided that the average setbacks and /or
height limits allowable shall be consistent the City's existing zoning codes or development
standards. The City may encourage building facade modulation and /or height modulation in
order to reduce the visual impact on adjacent properties, but such modulation shall not be
mandated solely to reduce density that is otherwise allowable under the City's existing zoning
codes or development standards and that is consistent with the intent of the Parties under the
Development Agreement.
d. Minimum Interior Height Non residential uses at street level shall
have a floor -to -floor height of at least 15 feet. This height shall be as measured from the primary
entry of the tenant space(s) intended to occupy the street level.
e. Landscaping Standards Normal landscaping standards and
requirements under the City's existing zoning codes and development standards shall apply to
the Property, provided that the specific Landscaping standards and requirements set forth in the
corresponding "Statement of Purpose and Design" for the Plaza and the Commons shall be
reflected in the design review submittals for the Plaza Parcel.
B. Condition Precedent City Council approval of the contemplated Development
Agreement upon terms and conditions mutually agreed to by the Parties is a condition precedent
to any obligation of Developer herein to purchase any of the Development Parcels. The Parties
agree that, upon the Effective Date, representatives thereof shall meet in good faith to negotiate
mutually agreeable terms and conditions of the contemplated Development Agreement that, upon
approval by the City Council and execution by the City and Developer in accordance with the
applicable requirements and procedures set forth in the City's Municipal Code and consistent
with applicable state law, shall be attached hereto and incorporated herein as Exhibit "G In the
event that such Development Agreement is not approved and does not become binding upon the
Parties within sixty (60) days of the Effective Date, either Party may, until such time as the
Development Agreement is approved and binding upon the Parties, give notice of termination of
this Agreement in accordance with the provisions of Article 9.2.
C. Naming Rights Upon Closing for the first Development Phase, Developer shall
have the right to name the Development.
D. Signage Upon Closing for each Development Phase, Developer shall have the
right to control all signage upon the Development Parcels contained within the Development
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Phase, subject to compliance with the City's signage code. Developer anticipates a monument
sign for the benefit of KCLS located on the Library Parcel, and also anticipates other
appropriately placed and scaled monument signs for the benefit of the other retail or commercial
tenants and the individual apartment communities.
Section 2.8 Community Plaza and Commons Ownership and Management
A. Intent The Parties intend that the Development shall include a separate
Development Parcel consisting of the Plaza and the Commons to be known and referred to as the
"Plaza Parcel The completed Improvements to the Plaza Parcel (the Plaza and the Commons
more specifically described below in subsections B and C hereof) are intended as a community
amenity that will serve a variety of users including residential, retail or commercial tenants,
customers, visitors and members of the public. The Plaza Parcel is intended to facilitate a
diverse set of activities including those that are active or passive, formal or informal, group or
individually oriented, and planned or spontaneous. The Plaza Parcel may function as a
pedestrian destination, a place for public art, a setting for recreation and relaxation, and a place
for public and private gatherings, events and activities.
B. Development of Outdoor Plaza Development of the Plaza Parcel shall include an
outdoor community plaza (the "Plaza consisting of a minimum of 20,000 square feet of Site
area and located generally as reflected in the Preliminary and Approved Site Plans attached
hereto as Exhibits "F" and "F -1 As soon as practical after the Effective Date, Developer and
the City shall enter into good faith negotiations to develop and mutually agree upon a
"Statement of Purpose and Design" for the Plaza to describe the intended use and design
guidelines for the Plaza, to include, by way of example and not limitation, design elements for
such things as surface materials, structures, Landscaping, fencing, and gates. The Statement of
Purpose and Design for the Plaza shall, upon approval of the Parties, be attached hereto
as Exhibit "N The BAR shall consider the "Statement of Purpose and Design" as criteria when
approving the final Approved Site Plan and Plaza design elements. Developer shall be obligated
to commence and complete development and construction of the Plaza (in accordance with the
Statement of Purpose and Design for the Plaza) in conjunction with the first Development Phase.
Developer shall bear all costs associated with development and construction of the Plaza;
provided that, the allocable costs thereof shall be taken into account in the Residual Land Value
Analysis.
C. Development of Indoor Community Commons Development of the Plaza Parcel
shall include a finished indoor community space (the "Commons consisting of a minimum of
2,000 square feet of usable floor area generally located as reflected in the Preliminary and
Approved Site Plans attached hereto as Exhibits "F" and "F -1" As soon as practical after the
Effective Date, Developer and the City shall enter into good faith negotiations to develop and
mutually agree upon a "Statement of Purpose and Design" for the Commons to describe the
intended use and design guidelines for the Commons. The Statement of Purpose and Design for
the Commons shall, upon approval of the Parties, be attached hereto as Exhibit "O The BAR
shall consider the "Statement of Purpose and Design" as criteria when approving the exterior
design elements of the Commons. Developer shall be obligated to commence and complete
development and construction of the Commons (in accordance with the Statement of Purpose
and Design for the Commons) in conjunction with the first Development Phase. Developer shall
19 79
bear all costs associated with development and construction of the Commons; provided that, the
allocable costs thereof shall be taken into account in the Residual Land Value Analysis.
D. Purchase of Community Plaza Parcel As a condition precedent to the City's
obligation hereunder to convey, in whole or in part, the Development Parcel(s) to be developed
as part of the first Development Phase, Developer shall, contemporaneous with the purchase of
the initial Development Parcel(s), purchase the Plaza Parcel which shall be considered as part of
the first Development Phase for purposes of the Residual Land Value Analysis. The Plaza Parcel
shall be developed contemporaneous with and as part of the first Development Phase and the
costs associated with development and construction of the Improvements thereon shall be
allocated as an Additional Deduction for purposes of the Residual Land Value Analysis.
E. Covenants, Conditions and Restrictions
1. Intent and Purpose The City and Developer shall, as soon as practical
after the Effective Date of this Agreement, develop mutually acceptable covenants, conditions
and restrictions (the "CC &Rs that, upon mutual approval by the Parties, shall be attached
hereto and incorporated into this Agreement as Exhibit "H The Parties intend that the CC &Rs
will establish the terms and conditions upon which the Plaza Parcel shall be dedicated, managed,
maintained and operated exclusively as a community amenity and the reciprocal rights, duties
and obligations associated with the Development Parcels. The Parties intend that the Plaza
Parcel shall not be used or developed for uses inconsistent with the express and authorized uses
and purposes as set forth in the CC &Rs. In conformance herewith, the CC &Rs shall be drafted
to ensure that the Plaza Parcel remains a public amenity that will benefit not only the private
property owners within the Development but the community at large.
2. Recording As a condition of Closing on the conveyance of each
Development Parcel to Developer, Developer agrees to subject its interest in each such Parcel to
the CC &Rs thereafter encumbering the Development Parcels and the Community Plaza Parcel as
set forth herein. At Closing of each Development Parcel, Developer shall cause the CC &Rs to
be recorded against the Property in substantially the form attached as Exhibit "H or with only
such changes as are approved in writing by the City.
3. Changes to CC &Rs The City shall approve any revision to the CC &Rs,
and Developer agrees to subject its interests in each Development Parcel to amendments of the
CC &Rs, if such amendment is necessary to: (i) bring any provision into compliance with any
applicable government statute or regulation or judicial determination; (ii) enable any reputable
title insurance company to issue title insurance coverage on the Property or any other property
that is subject to such CC (iii) otherwise satisfy the requirements of any government agency
or governmental regulations; and (iv) satisfy the purpose of the City to provide for the long -term
management, maintenance and operation of the Plaza Parcel; provided, however, that any
amendment proposed pursuant to the preceding clauses (i) through (iv) hereunder shall not be
permitted without the prior written consent of Developer, or successor, if it will have a material
adverse effect on any substantive right of Developer hereunder or adversely affect title to the
Development Parcels.
4. Amendment or Termination After Recording Notwithstanding any
provision of the CC &Rs or otherwise, following recordation of the CC &Rs against any
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Development Parcel, and so long as Developer (as declarant under the CC &Rs) maintains sole
control of the Development Parcel(s) subject to the CC &Rs, Developer shall not amend or
terminate the CC &Rs without the prior written approval of the City.
5. Relationship to This Agreement The Parties acknowledge and agree that
this Agreement (including any documents executed pursuant to this Agreement) on the one hand,
and the CC &Rs on the other hand, may set forth similar or related duties and obligations of
Developer (as a Party to this Agreement, and as the declarant and the owner of Improvements
subject to the CC &Rs) with respect to the use, operation, and maintenance of the Development
or portions thereof, that in some instances, the scope, method, or manner for performance of such
duties and obligations may vary between this Agreement (including any documents executed
pursuant to this Agreement) on the one hand, and the CC &Rs on the other hand; and that
Developer is required to comply with and implement its respective duties and obligations under
this Agreement (including any documents executed pursuant to this Agreement), and the
CC &Rs. Nothing in the CC &Rs shall modify, amend, supersede, impair, or otherwise affect the
duties and obligations of Developer to the City under this Agreement (including any documents
executed pursuant to this Agreement). Nothing in this Agreement (including any documents
executed pursuant to this Agreement) shall modify, amend, supersede, impair, or otherwise affect
the duties and obligations of Developer (as declarant or owner of Improvements within the
Development) under the terms of the CC &Rs. The terms of this Agreement (including any
documents executed pursuant to this Agreement) and the CC &Rs shall be interpreted
harmoniously to give effect to the terms of all such documents to the greatest extent possible. In
the event of any direct and irreconcilable inconsistency between the terms of this Agreement
(including any documents executed pursuant to this Agreement) on the one hand, and the terms
of the CC &Rs with respect to the Retained Improvements on the other hand, the terms of this
Agreement (including any documents executed pursuant to this Agreement) shall control to the
extent of any such direct and irreconcilable inconsistency.
6. Effect of CC &Rs The CC &Rs shall, at the time of conveyance of each
Development Parcel, create mutual equitable servitudes upon the Plaza Parcel and each
Development Parcel in favor of every other Development Parcel and shall create reciprocal
rights and obligations in, between and among all persons and /or entities having any right, title or
interest in and to any Development Parcel and the Plaza Parcel, or any part thereof. In addition,
said CC &Rs shall run with such portions of the Property comprising the Development Parcels
and the Plaza Parcel and shall be binding upon all Parties having or acquiring any right, title or
interest in and to the Development Parcels and the Plaza Parcel, and shall inure to the benefit of
the City, each Development Parcel owner and each successor in interest of such Development
Parcel owner.
7. Term It is the Party's intent that the obligations under the CC &Rs shall
be of definite duration to coincide with the forty (40) year term of the lease.
F. Management and Operation Developer shall, in cooperation with the City and no
later than the one hundred eighty (180) days after receiving building permits for the first
Development Phase, do all things reasonable and necessary to form an independent, community-
based non -profit organization (hereafter "Community Organization that will, through a lease
agreement, manage, operate, maintain and promote the use of the Plaza and the Commons, and
any facilities located thereon, in a manner consistent with the CC &Rs. The goal of the
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Community Organization shall be to implement and carry out the purposes set forth in the
CC &Rs for the management, maintenance and operation of the Plaza Parcel, with the goal of
being financially self sufficient through the collection of rental and user fees and solicitation of
grants from outside agencies. Toward that end, Developer and the City shall agree upon a plan
for the formation of the independent, community -based non -profit organization, including its
initial mission, articles of incorporation, bylaws, composition of board and officer positions, and
board member selection. The governing board of the Community Organization shall represent
both the interests of the community at large, and the private owners and tenants of the
Development.
G. Long -Term Lease After the Community Organization is formed and governing
board established and seated, Developer and the Community Organization shall negotiate,
approve and execute a long -term lease agreement granting the Community Organization
possession and use of the Plaza and Commons for an initial term of forty (40) years from the date
the City issues a certificate of occupancy for the first Development Phase for an annual lease
payment of One Dollar ($1.00) (the "Plaza Parcel Lease The terms of the Plaza Parcel Lease
shall substantially conform to the following:
1. Scheduling The Community Organization shall have the right, duty and
obligation to manage and schedule, and may charge rental or user fees for, the use of the Plaza
and the Commons, and any related facilities, including setting usage policies (such as frequency
and hours of use), rental rates, user fees, and security deposits. It is intended by the Parties that
the Community Organization shall establish and revise from time to time, and implement, a
program (the "Public Activities Program for regular public activities on the Plaza for
community events and activities that make the Plaza and Development a focal point of
community involvement.
2. Plaza Maintenance The owners of the Development Parcels, and their
successors in interest, shall jointly provide for the ongoing maintenance of the Plaza's
Landscaping, Improvements, and other infrastructure and pay for related utilities including
electricity, sanitary sewer, water, stormwater and solid waste. The Community Organization
shall reimburse the owners of the Development Parcels for 50% of the ongoing maintenance and
utility costs. The Community Organization shall reimburse the owners of the Development
Parcels for 100% of solid waste and cleanup costs related to renters or users scheduled by the
Community Organization.
3. Commons Maintenance The owners of the Development Parcels, and
their successors in interest, shall be jointly responsible for maintaining the structural
components, mechanical systems (including HVAC, plumbing, and electrical), and exterior of
the Commons. The Community Organization shall be responsible for maintaining the interior
non structural components such as floor surfaces, wall surfaces, doors, and windows.
4. Plaza and Commons Repair The owners of the Development Parcels, and
their successors in interest, shall be jointly responsible for the costs of repairing any damage to
the Plaza and the Commons resulting from ordinary wear and tear and damage caused by users
not scheduled by the Community Organization, including damage to Landscaping, lighting,
Improvements, and other infrastructure. The Community Organization shall be responsible for
the costs of repairing any damage to the Plaza and the Commons caused by renters or users
82 22
scheduled by the Community Organization, including damage to Landscaping, lighting, all
improvements, and other infrastructure.
5. Commons Utilities The Community Organization shall be responsible for
obtaining all utility service for the Commons and paying all related utility service fees, including
electricity, sanitary sewer, water, stormwater and solid waste.
6. Non -Fixed Assets The Community Organization shall be responsible for
maintenance and capital replacement of all indoor and outdoor non -fixed assets, including
furniture and equipment.
7. Property Taxes, Insurance The Community Organization shall be
responsible for paying all property taxes and insurance attributable to the Plaza and Commons
and their related Improvements.
H. Dissolution The formation documents of the Community Organization shall
provide that, in the event of the dissolution (voluntary or involuntary) of the Community
Organization, the net assets of the non profit organization (including but not limited to the rights
and responsibilities granted under the Plaza Parcel Lease) shall be transferred to another local
community -based organization approved by the City and Developer. In the event the City and
Developer are unable to agree on another local community -based organization, at the City's
election, the Community Organization's net assets and the Plaza Parcel Lease shall be assigned
to the City.
L Developer Contribution Developer shall make a one -time start -up donation of
not less than $50,000 to the Community Organization within ninety (90) days after the formation
of the Community Organization. Neither Developer nor the City shall have any responsibility to
pay for or contribute to the ongoing management and operating expenses of the Community
Organization or its successor; provided that, nothing herein shall modify any obligations of
Developer or the owners of the Development Parcels under the CC &Rs.
Section 2.9 Library
A. Establishment of Library Parcel The City has identified City -owned land
adjacent to the Property consisting of approximately 20,000 to 25,000 gross square feet located
in the northeast corner of the intersection of Tukwila International Boulevard and South 144
Street for future development of a branch of the King County Library System (the "Library
Parcel The approximate location and configuration of the Site area proposed for the Library
Parcel is generally depicted in the Preliminary Site Plan. It is intended that the boundaries of the
Library Parcel will be established through a Boundary Line Adjustment application submitted to
the City by Developer, which Boundary Line Adjustment shall be a condition precedent to the
sale of the Library Parcel to the KCLS. KCLS, the City and Developer shall mutually agree
upon the proposed boundaries for the Library Parcel. Developer hereby waives any right to
acquire or develop the Library Parcel except as provided herein.
B. Purchase and Sale Agreement with KCLS The City shall use its best efforts to
secure a purchase and sale agreement "Library Purchase and Sale Agreement and
development agreement with KCLS for KCLS to acquire the Library Parcel and develop and
23 83
construct a new library branch on the Library. In the event that the City and KCLS do not close
on the conveyance of the Library Parcel to KCLS on or before the closing date as set forth in the
Library Purchase and Sale Agreement, then Developer shall have the right to purchase, and the
City agrees to convey to Developer, the Library Parcel on substantially the same terms and
conditions as provided for with respect to the remainder of the Property, except as otherwise
provided herein. The City agrees that, in the event that the Library Purchase and Sale Agreement
becomes effective after the Effective Date of this Agreement, the closing date established for the
conveyance of the Library Parcel to the Library shall be no later than December 31, 2013;
provided that, this time period shall be tolled for excusable delay in accordance with Section
10.2 hereof (Force Majeure).
C. Infrastructure Improvements Benefiting g ibrary Parcel, Reimbursement Subject
to appropriate and satisfactory arrangements for reimbursement of Developer for an allocable
portion of the cost thereof, to be set forth in the KCLS Development Agreement, Developer shall
be responsible for the design, engineering, development, construction and maintenance of all
roads, parking, sidewalks, frontage improvements, drainage systems, utility systems, extensions
and connections (collectively, the "Library Off -Site Infrastructure on or adjacent to the
Property or adjacent right of way necessary to serve the Library Parcel. The owner of the Library
Parcel shall have responsibility for the design, engineering, development, construction and
maintenance of all Library on -site infrastructure located on or under the Library Parcel and
making utility service connections. Developer agrees to work cooperatively with KCLS to
design, develop and construct the Library Off -Site Infrastructure improvements to be consistent
and compatible with the proposed development of the Library Parcel by KCLS. The Parties
intend that KCLS shall be responsible for reimbursement to Developer of the proportional
design, engineering, development, construction and maintenance costs for Library Off -Site
Infrastructure.
The City shall include in the Library Purchase and Sale Agreement, an obligation for
KCLS to reimburse a reasonable and proportional share of Developer's costs for design,
engineering, development and construction and maintenance of shared infrastructure, e.g. roads,
parking, sidewalks, frontage improvements, drainage systems, and other utility systems;
provided that, such obligation shall be contingent upon conveyance of the Library Parcel to
KCLS and mutual written agreement by and between Developer and KCLS regarding the
allocation of such shared infrastructure costs to KCLS.
D. KCLS Development Agreement, Easements, Parking It is anticipated that KCLS
and Developer will work cooperatively to reach an agreement between the KCLS and Developer
to determine the boundaries of the Library Parcel, to determine the allocable cost of Library Off
Site Infrastructure, for Developer to construct and install such Library Off -Site Infrastructure,
and to provide reciprocal easements for such Library Off -Site Infrastructure. It is further
anticipated that such an agreement will provide for a parking easement (or similar rights) for the
benefit of the Library Parcel to the extent necessary to meet parking requirements for the
development of the Library Parcel, and for Developer to make the necessary Improvements to
the Property such that sufficient parking is available for the Library Parcel to meet parking
requirements for the development of the Library Parcel under applicable City Municipal Code
and to allow a certificate of occupancy to be issued for KCLS to occupy and use the
Improvements to the Library Parcel. Upon the effective date of the agreement between the
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KCLS and Developer (the "KCLS Development Agreement such agreement shall be
attached hereto and incorporated herein as Exhibit "L
Section 2.10 Temporary Construction Easement
As soon as practical after the Effective Date of this Agreement, and prior to Closing with
respect to the first Development Phase, the Parties shall mutually agree upon the terms and
conditions of a temporary construction easement (the "Temporary Construction Easement
The purpose of the Temporary Construction Easement shall be, among other things, to:
A. Provide Developer and the Contractors access to and use of the Property for
construction staging and storage of equipment and materials to otherwise facilitate making
Improvements to the Property;
B. Authorize installation and construction of the Library Off -Site Infrastructure;
C. Authorize installation and construction of Improvements required for Developer
Infrastructure Work (as defined pursuant to Section 5.2);
D. Authorize demolition and removal of the roadway for that portion of 41" Avenue
upon Final Street Vacation Approval (as defined pursuant to Section 2.6);
E. Authorize the grant of temporary access required pursuant to the Street Vacation
Agreement(s);
F. Address ownership of Library Off -Site Infrastructure improvements and
compensation to the City for use of City -owned property encumbered by the Temporary
Construction Easement; and
G. Allocate liability for activities upon City -owned property and provide for
indemnification and liability insurance for the protection of the City for activities upon City
owned property.
The Temporary Construction Easement, upon execution by the Parties, shall be attached
hereto and incorporated into this Agreement as Exhibit "I"
Section 2.11 Restaurant /Retail Space Covenant.
The City has a strong desire for the first Development Phase to include a coffee shop and
at least one non franchise restaurant. As part of the Design Review process for the first
Development Phase, Developer and City shall mutually agree on the location and size of a retail
space intended for a coffee shop and a retail space intended for a non franchise restaurant.
Developer shall use its best efforts to lease the designated spaces for a coffee shop and for a non
franchise restaurant and covenants not to lease these spaces to users other than for a coffee shop
and for a non franchise restaurant for at least two (2) years from the date the City issues an
Estoppel Certificate of Completion for the residential component of the first Development Phase.
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Section 2.12 Police Resource Center
As soon as practicable after the Effective Date, Developer and the City shall meet and
negotiate in good faith the terms and conditions of an agreement (the "Police Resource Center
Agreement for the lease of a space (the "Lease within the Development for use by the City
as a neighborhood police resource center (the "Police Resource Center
It is intended by the Parties that the Police Resource Center Agreement shall include
substantially all material terms and conditions of the City's Lease of space for the Police
Resource Center, including, but not limited to, the following:
A. Lease of at least 2,000 square feet of office and administrative space to be used by
the City as a neighborhood Police Resource Center in a location satisfactory to Developer and
the City, which shall be identified in the Approved Site Plan;
B. Such office and administrative space shall be in a finished condition ready for
move -in satisfactory to Developer and the City;
C. The Lease shall provide the City three (3) easily accessible, surface parking
spaces satisfactory to Developer and the City reserved exclusively for Police use only, including
one (1) parallel street parking space immediately adjacent to the Police Resource Center along
South 144 Street;
D. The City shall pay rent at the then fair market rental rate for like -kind office space
comparable to the Police Resource Center in the vicinity, taking into account the level of tenant
improvements and finishes requested by the City, and shall be subject to the good faith
negotiation of the Parties but at a starting rate not to exceed $12.00 per square foot per year plus
allocable triple -net expenses; and
E. The initial Lease term shall be for a minimum of five (5) years and the Lease shall
grant the City the option to renew its Lease for up to two (2) consecutive five (5) year terms at
the same lease rate adjusted for inflation and /or market conditions.
Upon the effective date of the Police Resource Center Agreement, the same shall be
attached hereto as Exhibit "M
Section 2.13 Other Approvals
A. On- Street Parking Approval Developer may request City approval to construct
some limited on- street parking adjacent to certain Development Parcels as shown on the
Preliminary and Approved Site Plans attached hereto as Exhibit "F" and Exhibit "F -1". If
Developer's traffic consultant and the City's Traffic Engineer support this request, the City
Administration will support the request and agrees to process the request as soon as practical. It
is anticipated that the recommendations of Developer's traffic consultant will also include such
matters as right in, right out only turn lanes. Accordingly, such other traffic- related
recommendations shall be subject to the approval of the City's Traffic Engineer.
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B. Other Off -site Infrastructure Improvements Certain other off -site infrastructure
improvements may be necessitated based on certain pending decisions by Developer, such as the
introduction of parallel parking within the City's right of way along a portion of Tukwila
International Boulevard separated from traffic by channelization, or the relocation of all or
portions of the existing crosswalk across Tukwila International Boulevard to better align the
crosswalk with a major pedestrian access point for the Development (the "Other Off -site
Infrastructure Improvements Accordingly, Developer shall be responsible for the costs of such
Other Off -site Infrastructure Improvements, but such costs shall be taken into account in the
Residual Land Value Analysis. Such Other Off -site Infrastructure Improvements shall be subject
to approval by the City pursuant to the Design Review process set forth in Section 2.7 hereof.
C. Other Approvals Within the time frames set forth in the Phased Development
Plan, along with the reasonable and diligent assistance (if necessary) of the City, Developer shall
apply to all other government agencies and public utilities for any other permits, approvals, and
"service availability" letters (such as for water, sewer, and electricity) necessary for the
development of each Development Phase consistent with this Agreement, and shall diligently
pursue procurement of such other permits, approvals, and "service availability" letters.
D. Evidence of Approvals Within the time frames set forth in the Phased
Development Plan, Developer shall submit to the City evidence that all City permits and
approvals (including approval of the BLA), and all other permits, approvals, and "service
availability" letters necessary for development of each Development Phase in accordance with
this Agreement have been obtained or approved. Only upon delivery of such evidence in form
satisfactory to the City, shall the conditions of Section 4.5(c) for conveyance of the Development
Parcels contained in such Development Phase be deemed to have been met. If such evidence is
not delivered within the applicable time frames specified in the Phased Development Plan, this
Agreement may be terminated by the City pursuant to Section 9.2(B) of this Agreement.
Section 2.14 Construction Contracts
A. At least thirty (30) days prior to submission of a Construction Contract to the City
pursuant to Section 4.4 hereof (Residual Land Value Analysis), Developer shall submit to the
City the proposed Construction Contract with the General Contractor for the proposed
Development Phase, together with the Approved Construction Plans. The City shall, for the sole
purpose of ensuring that the Construction Contract accurately reflects the anticipated
Construction Costs that will be utilized for purposes of the Residual Land Value Analysis as set
forth in Section 4.4 of this Agreement, review the Construction Contract and Approved
Construction Plans and either approve or disapprove the submitted Construction Contract within
thirty (30) calendar days from the date the City receives the proposed Construction Contract. If
the proposed Construction Contract is not approved by the City, then the City shall notify
Developer in writing of the reasons for disapproval and the required revisions to the previously
submitted Construction Contract. Developer shall thereafter submit a revised Construction
Contract within thirty (30) days of the notification of disapproval. The City shall either approve
or disapprove the revised Construction Contract within thirty (30) days of the date such revised
Construction Contract is received by the City.
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If the City disapproves the revised proposed Construction Contract, this Agreement may
be terminated pursuant to Section 9.2. Only upon City approval of a Construction Contract shall
the pre- disposition condition set forth in this Section 2.14 be deemed to have been met.
B. Following City approval of a Construction Contract pursuant to this Section 2.14,
Developer may, without City approval, make changes to such Construction Contract that are
consistent with, and do not cause the Construction Contract to be out of compliance with, this
Agreement; provided, however, that Developer shall first provide the City with notice, clearly
indicating the nature of the proposed changes, not less than ten (10) days before Developer enters
into an agreement with the General Contractor to effectuate such changes. Developer shall not
make any changes to a Construction Contract previously approved by the City pursuant to this
Section 2.14 that would cause the Construction Contract to be out of compliance with this
Agreement without the prior written consent of the City. Notwithstanding the foregoing,
changes to the Construction Contract involving changes to the Construction Plans or related
specifications that are attached to or incorporated in the Construction Contract shall be subject to
the provisions of Section 10.14(A) (City Actions) and 10.18 "Operating Memoranda and not
to the provisions of this paragraph B.
C. Subject to the provisions of Section 2.14(A) and the provisions of paragraph B
hereof, prior to, and as a further condition of the Closing, Developer and the General Contractor
shall execute the Construction Contract substantially in the form approved by the City and
deliver a fully executed copy of the Construction Contract to the City.
Section 2.15 Financing Plan
After the City has notified Developer that all necessary building and engineering permits
for a Development Phase are ready to be approved, Developer shall submit to the City the
proposed Financing Plan for that Development Phase for its review and approval. The City shall
either approve or disapprove the proposed Financing Plan within thirty (30) days from the date
the City receives the proposed Financing Plan. If the proposed Financing Plan is not approved
by the City, then the City shall notify Developer in writing of the reasons for disapproval and the
required revisions to the previously submitted Financing Plan. Developer shall thereafter submit
a revised Financing Plan within thirty (30) days of the notification of disapproval. The City shall
either approve or disapprove the revised Financing Plan within thirty (30) days of the date such
revised Financing Plan is received by the City. The City shall approve the initial or revised
Financing Plan if it contains the elements described in the definition of the Financing Plan
contained in Section 1.1 hereof, and demonstrates the availability of sufficient funding to pay the
total development costs associated with the Development Phase and all other obligations of
Developer under this Agreement associated with the Development Phase, as reflected in the
approved Financing Plan and as evidenced by firm commitments for such funding that are
consistent with the terms of this Agreement and subject only to industry standard funding
conditions and a satisfactory budgetary outcome with respect to the Purchase Price of the
Development Parcel(s) involved in the Development Phase under the Residual Land Value
Analysis.
If the City disapproves the revised Financing Plan, this Agreement may be terminated
pursuant to Article 9. Only upon City approval of a Financing Plan shall the pre- disposition
condition of this Section 2.15 be deemed to have been met.
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Developer shall submit any material revisions to an approved Financing Plan to the City
for its review and approval. Any revised proposed Financing Plan shall be considered and
approved or disapproved by the City in the same manner and according to the same timeframe
set forth above for the initial Financing Plan. Until a revised Financing Plan is approved by the
City, the previously approved Financing Plan shall govern the financing of the Development
Phase.
Section 2.16 Evidence of Availability of Funds
Prior to Closing, Developer shall submit to the City evidence reasonably satisfactory to
the City that any conditions to the release or expenditure of funds described in the approved
Financing Plan have been met or will be met at the Closing and that such funds will be available
at the Closing for commencing construction of the Development Phase. Only upon delivery of
such evidence in form satisfactory to the City shall the pre- disposition condition of this Section
2.16 be deemed to have been met. If such evidence is not received within the time frames set
forth in the Phased Development Plan, this Agreement may be terminated by the City pursuant to
Article 9.
Section 2.17 Performance and Payment Guarantee
Prior to Closing with respect to each Development Parcel, Developer shall submit
evidence satisfactory to the City of the existence of an unconditional personal performance and
payment guarantee from Developer and /or the principals of Developer in favor of Developer's
Lender guaranteeing completion of construction of the Improvements with respect to each
applicable Development Phase and guaranteeing against construction cost overruns with respect
to such Development Phase (the "Performance and Payment Guarantee An executed copy of
the Performance and Payment Guarantee with respect to each Development Phase shall be
attached hereto as Exhibit "P."
ARTICLE 3
CITY RESPONSIBILITIES
Section 3.1 Permits and Approvals
A. City Assistance The City shall provide reasonable assistance to Developer in
obtaining any City issued permits and approvals, and all other permits, approvals, and "service
availability" letters necessary for construction of the Improvements.
B. City Retains Discretion Developer acknowledges that execution of this
Agreement in no way limits the discretion of the City or any other government agency in
connection with the permit and approval process with respect to the Development. Any
approvals provided for herein are independent of, in addition to, and do not in any way obligate
the City with respect to usual and customary City permitting, code compliance and other
regulatory reviews, except that the City shall use its best efforts to expedite such reviews. The
outcome of any such regulatory review is independent of and is in no way biased, prejudiced or
predetermined in any way by this Agreement. Nothing in this Agreement is intended or shall be
29 89
construed to require that the City exercise its discretionary authority under its regulatory
ordinances to further the Development nor bind the City to do so. Except as otherwise expressly
stated herein or in the Development Agreement, the City will process applications for permits
and approvals associated herewith as if such applications were made without any City
participation in the Development, to the extent not preempted by federal laws, regulations or
other requirements.
ARTICLE 4
DISPOSITION OF PROPERTY
Section 4.1 In General Developer has, pursuant to Section 2.4 herein, established
Development Phases for development of the Property and has, pursuant thereto, identified the
Development Parcels to be included in each Development Phase. The following provisions for
disposition of the Development Parcels shall apply to the conveyance of each Development
Parcel associated with each Development Phase.
Section 4.2 Opening Escrow To accomplish the Closing as to each Development
Parcel within a Development Phase, the Parties shall, as to each Development Phase, establish an
escrow with the Escrow Agent and shall execute and deliver to the Escrow Agent written
instructions that are consistent with this Agreement; provided that, escrow shall not open until
after all required pre- disposition conditions precedent to Closing, as set forth in this Agreement,
have been met as to each such Development Phase, unless otherwise agreed to in writing by the
Parties.
Section 4.3 Development Parcel Purchase Price As a condition of the Closing,
Developer and the City shall establish and agree upon the Purchase Price for each Development
Parcel associated with the Development Phase subject to Closing, based upon the Adjusted
Residual Land Value as determined in accordance with Section 4.4 of this Agreement.
Section 4.4 Residual Land Value Analysis
A. In General The Parties intend to establish the Purchase Price for each
Development Parcel, including the Plaza Parcel, based upon the Adjusted Residual Land Value
determined through the residual land value analysis agreed upon pursuant to Section 4.4(D) of
this Agreement (the "Residual Land Value Analysis provided that, the Purchase Price shall
not be less than the Minimum Residential Unit Value amount as set forth in in Section 4.4(F)
below. The Residual Land Value Analysis estimates the value of land "Residual Land Value
by subtracting total development costs, including by way of example, direct construction costs
(hard costs), architectural and engineering fees, Development Impact Fees, permit fees and other
soft costs, financing costs, and an agreed upon Developer profit and a return on Developer
equity, from an agreed upon total project value based on market supportable net operating
income based on projected stabilized rents, operating expenses and an agreed upon market
capitalization rate.
B. Adjusted Residual Land Value The Parties intend that certain development costs
(collectively, the "Additional Deductions such as the development and construction costs
associated with off -site Developer Additional Work (excluding the allocable costs of Library
90 30
Off -site Infrastructure for the Libarary Parcel to be paid for or reimbursed by KCLS),
infrastructure Improvements required pursuant to the Street Vacation Agreements, and
Improvements to the Plaza Parcel including the Commons, shall be allocated to each
Development Parcel on a pro -rated basis resulting in a downward adjustment of the Residual
Land Value (the "Adjusted Residual Land Value
C. Process for Determination of Residual Land Value Analysis
1. Submittal of Proposed Residual Land Value Analysis The Parties shall
mutually agree upon the Residual Land Value Analysis to be applied to determine the Purchase
Price of each Development Parcel. Toward that end, prior to opening escrow on the first
Development Phase, Developer shall submit a proposal to the City for the Residual Land Value
Analysis to be applied to each Development Parcel under this Agreement (the "Residual Land
Value Analysis Proposal'). The Residual Land Value Analysis Proposal shall be consistent
with the Developer Obligations set forth in subsection E below, shall include all material factors,
methodology, adjustments (including Additional Deductions) and calculations to be used in
determining the Adjusted Residual Land Value, and shall identify the sources of the information,
data, and development costs that will be relied upon in conducting the Residual Land Value
Analysis. If certain development costs should be allocated among different Development Parcels,
Developer shall identify the methodology and basis for such cost allocations (for example, if
Improvements are made on two or more Development Parcels under a single Construction
Contract, the related development and constructions costs must be allocated to each
Development Parcel).
2. Construction Costs Construction costs for purposes of the Residual Land
Value Analysis shall be based upon the lump sum bids for construction of the Improvements
upon each Development Phase as set forth in an approved Construction Contract between
Developer and the Contractor. The Parties recognize, however, that such lump sum bid prices
within a Construction Contract may need to be segregated for different components of the
Improvements in order to determine the proper cost allocation for purposes of determination of
the Adjusted Residual Land Value (for example, the costs associated with Developer Additional
Work within a Construction Contract may be allocable among the Development Parcels in
multiple Development Phases, where the remainder of the costs within a Construction Contract
may be allocable among the Development Parcels in a single Development Phase; thus, the
allocation of costs associated with such Developer Additional Work must be determined
separately from the costs associated with Improvements within a single Development Phase.)
The Improvements shall be consistent with the Approved Construction Plans.
3. City Review Upon receipt, the City shall review and evaluate the
Residual Land Value Analysis Proposal and may retain the services of a consultant for such
purposes, the cost of which shall be borne by the City. The City shall have twenty (20) business
days from receipt of the Residual Land Value Analysis Proposal to evaluate the Proposal and to
reject or approve the same, or request further information. In the event that the City does not give
notice of its rejection or request for additional information within twenty (20) business days of
receipt of the Proposal, then the Residual Land Value Analysis Proposal shall be deemed
approved by the City. In the event that the City rejects the Residual Land Value Analysis
Proposal, the City will give written notice of such rejection within twenty (20) business days of
receipt of the Proposal, together with a detailed explanation of the reasons for such rejection. If
31 91
the City requires additional information to evaluate the Residual Land Value Analysis Proposal,
the City will provide written notice to Developer of its request for additional information.
Developer shall have fifteen (15) business days from receipt of notice to provide the requested
information to the City. The City will then have an additional ten (10) business days to evaluate
and respond to the Residual Land Value Analysis Proposal. The Parties will continue with a like
process until such time as an agreed upon Purchase Price is determined, or the Parties elect to
exercise their remedies set forth below.
4. Remedies In the event that the Parties, after using good faith efforts, are
unable to mutually agree upon a Residual Land Value Analysis Proposal, either Party may give
notice of termination of this Agreement pursuant to Section 9.2(B) hereof, or may, upon mutual
agreement, subject the Dispute to mediation or arbitration pursuant to Section 9.11 hereof, or
mutually agree to negotiate amendments to the terms and conditions of this Agreement to
address the nature of the Dispute.
D. Determination of Purchase Price
1. Conditions Precedent The Adjusted Residual Land Value for each
Development Parcel will not be determined and the Purchase Price agreed upon until:
are ready to be issued;
known;
the City has notified Developer that all permits are approved and
b. all final permit fees and charges and Development Impact Fees are
C. an approved Construction Contract for the Development Phase has
been executed with a General Contractor;
d. the BLA is approved and ready to be recorded;
e. an approved Financing Plan has been established to the satisfaction
of the City pursuant to Section 2.14 hereof,
f. Developer has submitted to the City satisfactory evidence of
availability of funds pursuant to Section 2.15 hereof,
g. the Final City Council Approval of the Street Vacation has been
given within the meaning of Section 2.6(B) of this Agreement and the Street Vacation
Agreements have been fully executed and are binding upon the Parties thereto; and
f. Developer has submitted to the City satisfactory evidence of
insurance pursuant to Section 6.3(B) hereof.
2. Submission of Proposal Upon mutual agreement of the Parties that the
foregoing conditions have been satisfied, Developer will then apply the agreed upon Residual
Land Value Analysis to determine the proposed Adjusted Residual Land Value (the "Adjusted
Residual Land Value Proposal') for each Development Parcel using the agreed upon Residual
92 32
Land Value Analysis, and provide written notice to the City of the same. The Adjusted Residual
Land Value Proposal shall identify all material factors, data and information utilized in the
calculation and the source and reliability of such factors, data and information, and shall include,
explain and identify the following:
a. a comprehensive project proforma including a comprehensive
development and construction budget, Developer profit and return on Developer equity,
financing costs, tax credits and grants, rate of return on equity, sources and uses of funds, net
operating income based on projected stabilized rents and operating expenses, and estimated
market capitalization rate;
b. documentation supporting the included factors, data and
information reasonably satisfactory to the City including, by way of example, copies of the
approved Construction Contract for the construction of the Improvements with respect to to each
Development Parcel, a copy of the lender's appraisal, and a market study or appraisal upon
which rents are projected;
C. any cost of any Improvements which will be allocated among the
Development Parcel(s) as Additional Deductions;
applicable);
d. binding contracts for environmental Remediation or abatement (if
e. firm written commitments for all debt financing and equity
investment, subject only to industry standard funding conditions and a satisfactory budgetary
outcome with respect to the Purchase Price of the Development Parcel(s) involved in the
Development Phase under the Adjusted Residual Land Value Proposal; and
f. the nature and amount of each material item in the development
and construction budget and the methodology for all cost allocations and Additional Deductions.
3. City Response The City shall have ten (10) business days from receipt of
Adjusted Residual Land Value Proposal for each Development Parcel to evaluate the Proposal
and to reject or approve the same, or request further information. In the event that the City does
not give notice of its rejection or request for additional information within ten (10) business days
of receipt of the Adjusted Residual Land Value Proposal, then the Proposal will be deemed
approved by the City and shall be deemed the agreed upon Purchase Price for the applicable
Development Parcel(s). In the event that the City rejects the Proposal, the City will give written
notice of such rejection within ten (10) business days of receipt of the Proposal, together with a
detailed explanation of the reasons for such rejection. If the City requires additional information
to evaluate the Adjusted Residual Land Value Proposal, the City will provide written notice to
Developer of its request for additional information. Developer shall have ten (10) business days
from receipt of notice to provide the requested information to the City. The City will then have
an additional ten (10) business days to evaluate and respond to the Adjusted Residual Land
Value Proposal. The Parties will continue with a like process until such time as an agreed upon
Purchase Price is determined.
33 93
4. Remedies In the event that the Parties, after using good faith efforts, are
unable to mutually agree upon the Adjusted Residual Land Value, either Party may give notice
of termination of this Agreement pursuant to Section 9.2(B) hereof, or may, upon mutual
agreement, subject the Dispute to mediation or arbitration pursuant to Section 9.11 hereof, or
mutually agree to negotiate amendments to the terms and conditions of this Agreement to
address the nature of the Dispute.
Developer may not request that the City issue approved permits for a particular
Development Phase until Developer has deposited the agreed upon Purchase Price into escrow in
accordance with the procedures set forth herein.
E. Purchase Price The Purchase Price for each Development Parcel shall be the
Adjusted Residual Land Value for each such Development Parcel; provided, however, that the
Purchase Price may be determined in accordance with subsection 4.4(F) hereof in the event that
the Adjusted Residual Land Value does not equal or exceed the applicable Minimum Residential
Unit Value.
F. Minimum Residential Unit Value
1. For purposes of this Agreement, the minimum residential unit value shall
be $10,000 per housing unit (the "Minimum Residential Unit Value In the event that the
Adjusted Residual Land Value for the applicable Development Parcel(s) within a Development
Phase results in a Residential Unit Value (as defined below) that is less than the Minimum
Residential Unit Value, then the City may exercise its rights as set forth below in Section
4.4(F)(3) below.
2. The residential unit value (the "Residential Unit Value shall be
determined as follows: All proposed retail, commercial or office space for the Development
Phase, as set forth in the Approved Construction Plans, shall be converted into an equivalent
number of residential dwelling units "Equivalent Residential Units based on the average
floor area of the proposed residential dwelling units in the affected Development Phase. The
Parties shall then determine the actual total number of actual residential dwelling units proposed
for the Development Phase as set forth in the Approved Construction Plans and add this number
to the total number of Equivalent Residential Units for the Development Phase to determine the
total deemed number of residential dwelling units for the Development Phase (the "Deemed
Number of Residential Dwelling Units The Parties shall then calculate the "Total Adjusted
Residual Land Value" by adding together the Adjusted Residual Land Value for each
Development Parcel in the Development Phase. The Total Adjusted Residual Land Value shall
then be divided by the Deemed Number of Residential Dwelling Units to determine the
Residential Unit Value.
3. In the event that the Residual Unit Value, as determined pursuant to
Section 4.4(F)(2) above, does not equal or exceed the Minimum Residential Unit Value, the City
may request an upward adjustment of the Purchase Price such that a corresponding increase in
the Total Adjusted Residual Land Value would result in a Residual Unit Value at least equal to
the Minimum Residential Unit Value. In the event that Developer rejects the change in the
Purchase Price proposed by the City, and the City rejects any counter proposal by Developer,
then either Party may terminate the Agreement with respect to the purchase of any Development
94 34
Parcels that have not yet closed escrow. The Agreement shall remain in full force and effect
with respect to any Development Phase or Development Parcel that has closed escrow.
Section 4.5 Escrow /Closing
A. Selection of Escrow Agent Prior to and as a further condition of the Closing, the
City shall (i) select an Escrow Agent reasonably acceptable to Developer to conduct the Closing
for the purchase and sale of each Development Parcel, and (ii) Developer and the City shall
agree upon escrow instructions to be delivered to the Escrow Agent. The escrow instructions
shall be consistent with subsections B and C below.
B. Closing and Convey The Closing shall occur after (1) the Purchase Price for
each Development Parcel to be conveyed has been deposited into escrow in accordance with
Section 4.4 hereof, (2) all pre- disposition conditions in Article 2 hereof have been satisfied by
Developer or waived in writing by both Parties (it being agreed that such pre- disposition
conditions are for the benefit of both Parties), (3) the Parties have deposited all documents
required to convey title, (4) all conditions set forth in subsection C below have been satisfied,
and (5) at the time of the Closing, there is no uncured City Event of Default or Developer Event
of Default.
C. Conditions Precedent Unless otherwise agreed to in writing by the Parties, the
following are conditions precedent to, and are simultaneous conditions of, the Closing:
1. Delivery by City On or prior to the Closing Date, City shall deposit with
Escrow Agent, and shall deliver copies to Developer and its counsel (to the extent not previously
delivered) at least five (5) days prior to the Closing Date, any closing costs which are the
responsibility of City hereunder, and the following:
a. The Statutory Warranty Deed, substantially in the form attached
hereto as Exhibit "C duly executed and acknowledged by City, in recordable form, and ready for
recordation on the Closing Date, together with a duly executed real estate excise tax affidavit;
b. Any reconveyance documents required to eliminate of record any
existing deeds of trust, mortgages and other security documents which are a lien on the
Development Parcel(s), and any affidavit required to eliminate the Title Company's exception,
other than Permitted Exceptions;
C. Such resolutions, authorizations, certificates or other corporate
and /or partnership documents or agreements relating to the City, as shall be reasonably required by
Developer or Title Company in connection with this transaction;
d. The original of the final approved BLA, within the meaning of
Section 2.5 hereof, duly executed and acknowledged by the City, in recordable form, and ready for
recordation on the Closing Date;
e. A certified copy of the ordinance granting Final City Council
Approval of the Street Vacation, within the meaning of Section 2.6 hereof, duly executed and
acknowledged by the City, in recordable form, and ready for recordation on the Closing Date;
35 95
f. The DDA Memorandum, substantially in the form attached hereto
as Exhibit "R in recordable form, duly executed and acknowledged by the City and Developer,
and ready for recordation on the Closing Date;
g. Any other documents, instruments, addenda, records,
correspondence or agreements called for hereunder which have not previously been delivered.
2. Delivery by Developer On or before the Closing Date, Developer shall
deposit with Escrow Agent the Purchase Price and any closing costs which are the responsibility
of Developer hereunder, and the following:
a. The CC &Rs substantially in the form attached hereto as Exhibit
duly executed and acknowledged by Developer, in recordable form, and ready for
recordation on the Closing Date;
b. The original of the parking easement benefiting the Library Parcel
in conformance with Section 2.9(D) hereof, substantially in the form attached hereto as Exhibit
"T duly executed and acknowledged by Developer, in recordable form, and ready for
recordation on the Closing Date; provided that, this condition shall not apply if the KCLS has not
timely entered into a purchase and sale agreement with the City in conformance with Section
2.9(B) hereof, and provided further that this condition shall only apply to those Development
Parcels that will be encumbered by such parking easement.
3. Other Instruments City and Developer shall each deposit such other
instruments as are reasonably required by Escrow Agent or otherwise required to close the
escrow and consummate the purchase of the Development Parcel(s) in accordance with the terms
hereof.
Closing:
4. Other Conditions The following are further conditions precedent to
a. Developer's delivery to the City of a copy of the KCLS
Development Agreement between Developer and the KCLS, in conformance with Section 2.9(D)
hereof, duly executed and acknowledged by Developer and KCLS; provided that, this condition
shall not apply if the KCLS has not timely entered into a purchase and sale agreement with the
City in conformance with Section 2.913 hereof.
b. Developer's delivery to the City of Certificates of Insurance in
form reasonably satisfactory to the City demonstrating compliance with the insurance
requirements of Section 6.3(B).
C. Developer's delivery to the City of its Performance and Payment
Guarantee substantially in the form attached hereto as Exhibit "P"
d. City notification that it is ready to issue the necessary grading,
demolition, engineering and building permit(s) for the Development Phase, subject to payment of
the required permit fees (if not already accomplished).
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Section 4.6 Title
A. Condition of Title The City shall convey to Developer, marketable and insurable
fee simple title to the each of the Development Parcels comprised within each Development
Phase, by execution and delivery of a Statutory Warranty Deed substantially in the form attached
hereto as Exhibit "C subject to the Permitted Exceptions.
B. No Adverse Action City hereby agrees from and after the date of execution of
this Agreement, until the Closing or the termination of this Agreement, that it (i) will take no
action not contemplated in this Agreement that will adversely affect title to the Property, (ii) will
not lease, rent, mortgage, encumber, or permit the encumbrance of all or any portion of the
Property without Developer's prior written consent, except as otherwise provided in this
Agreement, and (iii) will not, except as otherwise provided in this Agreement, enter into any
written or oral contracts or agreements with respect to the operation of the Property which cannot
be canceled on not more than thirty (30) days' notice without premium or penalty.
C. Title Insurance Through the Closing, the City shall cause the Escrow Agent or
other Title Company reasonably acceptable to Developer to issue an ALTA Owner's Policy
(Form 1970) insuring Developer's interest in the Property subject only to the Permitted
Exceptions and such other exceptions as may be caused by Developer (the "Title Policy
Section 4.7 Condition of the Property
A. Disclosure, Due Diligence Review Period Developer, its employees, contractors
and agents shall have the right to enter upon each Development Parcel where necessary to
conduct activities necessary for preliminary testing for future development of the Property.
Developer understands that the City has assembled the Property for redevelopment, and thus,
with the exception of the dedicated public right of way, has not conducted activities upon or
occupied the Property. The City shall provide or make available to Developer for inspection and
copying to the extent available or within City's possession or control: any leases, all appraisals
of each Development Parcel, all soils reports or environmental surveys or audits of each
Development Parcel, all correspondence with any governmental authorities regarding each
Development Parcel, and any other documents and information in the possession or control of
City and pertaining to each Development Parcel, and all other items which Developer deems
reasonably necessary to conduct its due diligence review of each Development Parcel (the "Due
Diligence Review Materials City shall also instruct its consultants, agents, and
representatives to produce or make available to Developer at no cost to Developer the Due
Diligence Review Materials in the possession or control of such consultants, agents, and
representatives.
Developer shall have fifteen (15) days from the date that City delivers all of the Due
Diligence Review Materials to Developer (the "Due Diligence Review Period in which to
conduct its review of the Property and the Due Diligence Review Materials. Said review may
include, at Developer's election, a physical and engineering inspection of the Property and an
environmental assessment, all at Developer's cost and expense. Developer shall also have the
right to obtain surveys of the Property, at its cost and expense. The City agrees to cooperate with
and assist Developer in the physical inspection of the Property and obtaining the Due Diligence
Review Materials. Developer shall repair any damage to the Property caused by Developer, its
37 97
employees or agents during such physical inspection of the Property. During the Due Diligence
Review Period, Developer and its employees, agents and consultants shall have free access to the
Property and the books and records relating thereto for such purposes.
Developer shall provide the City copies of any environmental testing and site
assessments, any geotechnical testing and exploration, and any topographical and /or boundary
survey, as each step is completed. If, during such Due Diligence Review Period, Contaminants
or geotechnical hazards become evident that were not previously identified, Developer and the
City may renegotiate the terms and conditions of this Agreement, or otherwise terminate this
Agreement pursuant to Section 9.2 hereof.
At Developer's request, the City shall agree to allow Developer to perform any necessary
and appropriate environmental Remediation or abatement of any Known Contaminants in, on,
under and upon the Developer Responsibility Area, before or after the Closing on the purchase of
such affected portion of the Property, provided that the City approves the Remediation or
abatement plan and budget. As a condition of such agreement, the Parties agree to extend the
Due Diligence Review Period as necessary to complete the Remediation prior to Closing. The
costs associated with any necessary and appropriate environmental Remediation or abatement to
the Property, whether performed before or after the Closing on the purchase of such portion of
the Property, shall be included as a development cost in connection with the Residual Land
Valuation Analysis for purposes of the determination of the applicable Purchase Price of any
corresponding Development Parcel(s).
Developer shall deliver written notice to the City and Escrow Agent on or before the
close of business on the last day of the Due Diligence Review Period that it has either (1)
approved the Due Diligence Review Materials and the results of Developer's independent
investigation and intends to proceed with the purchase of the Property, or the purchase of
Development Parcels comprising a specific Development Phase, or (2) it has elected to terminate
this Agreement, whereupon this Agreement shall terminate and neither Party shall have any
further rights or obligations hereunder.
Failure of Developer to provide such notice on or before the close of business on the last
day of the Review Period shall be deemed an election by Developer not to terminate this
Agreement as provided in (2) of the above paragraph. In this respect, City acknowledges that
Developer may terminate this Agreement on or before the last day of the Review Period at
Developer's sole and absolute discretion if Developer is not satisfied for any reason with the
Property.
Section 4.8 Title Review
A. Review of Title Information Developer shall be entitled to review all title
information regarding the Development Parcels comprised within a Development Phase as
follows:
1. Review Documents As soon as reasonably possible following mutual
execution of this Agreement but, in any event, within fifteen (15) days of the Effective Date
hereof, the City shall provide Developer with the following documents and materials:
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a. Current extended coverage preliminary commitments for title
insurance for the Development Parcels (collectively, the "Title Report issued by the title
company selected by City (the "Title Company together with complete and legible copies of
all general or special exceptions noted therein;
b. Copies of all existing and proposed easements, covenants,
restrictions, agreements or other documents which affect the Development Parcels and which are
not disclosed by the Title Report, or, if, to the best of City's knowledge, no such documents
exist, a certification by the City to that effect;
C. Any surveys of the Property in the City's possession;
d. Statement of (and, if available, copies of) any other matters of any
nature of which City has knowledge and which affect title to any part of the Development
Parcels, whether or not of record and whether or not visible or ascertainable by inspection of the
Development Parcels, and whether or not otherwise known to Developer.
2. Developer's Title Notice to City Developer shall advise the City in
writing within fifteen (15) business days after the date Developer has received the last of the
materials to be delivered by City to Developer, under this Section 4.8, what exceptions to title, if
any, will be acceptable to Developer. Only those exceptions set forth at Section 1.1 (definition
of Permitted Exceptions) and such additional exceptions approved in writing by Developer, or as
otherwise proved herein, shall be included as Permitted Exceptions. Any liens, encumbrances,
easements, restrictions, conditions, covenants, rights, right of way and other matters affecting
title to the Development Parcels which are created and which may appear of record or be
revealed by the survey or otherwise, after the date of the Title Report but before the Closing Date
(collectively "the Intervening Liens shall also be subject to Developer's approval and
Developer shall have fifteen (15) business days after notice in writing of any Intervening Lien,
together with a description thereof and a copy of the instrument creating or evidencing the
Intervening Lien, if any, to submit written objections thereto or to give City notice of acceptance
thereof in the manner set forth above. If Developer fails to notify City within said time period,
Developer shall be deemed to have disapproved the condition of title to the Development
Parcels.
3. City's Response City shall have ten (10) business days after receipt of
Developer's objections to give Developer written notice: (i) that City will remove any
objectionable exceptions from title and provide Developer with evidence satisfactory to
Developer of such removal, or provide Developer with evidence satisfactory to Developer that
said exceptions will be removed on or before the Closing; or (ii) that the City elects not to
remove such exceptions. If City gives Developer notice under clause (ii), Developer shall have
ten (10) business days to elect to proceed with the purchase and take the Development Parcels
subject to such exceptions (which exceptions shall then constitute Permitted Exceptions), or to
terminate this Agreement. If Developer shall fail to give the City written notice of its election
within said ten (10) business days, Developer shall be deemed to have elected not to proceed
with the purchase. If the City shall give notice pursuant to clause (i) and shall thereafter fail to
remove any such objectionable exceptions from title prior to the Closing Date, and Developer is
unwilling to take title subject thereto, such failure shall be a City Event of Default hereunder and,
without limiting Developer's rights and remedies against the City, Developer may elect to
39 99
terminate this Agreement and the City shall be liable for Developer's costs and expenses
incurred hereunder (including title and escrow costs and reasonable attorney's fees) after the City
notifies Developer that it will remove objectionable exceptions. Notwithstanding the provisions
of this Section 4.8, the City agrees to eliminate all financial liens or encumbrances on the
Property at or prior to Closing, and if the City fails to do so, Developer may, at its option, cause
any remaining financial liens or encumbrances to be satisfied in full at Closing, in which event
the Purchase Price shall be reduced by the amount advanced by Developer to satisfy such
financial liens or encumbrances.
B. "As Is" Purchase Developer specifically acknowledges and agrees that the City
is selling and Developer is buying each of the Development Parcels on an "as is, with all faults"
basis, and that Developer is not relying on any representations or warranties of any kind
whatsoever, express (except as expressly set forth in this Agreement) or implied, from the City
as to any matters concerning each of the Development Parcels, including without limitation: (1)
the quality, nature, adequacy and physical condition of the each of the Development Parcels
(including, without limitation, topography, climate, air, water rights, water, gas, electricity,
utility services, grading, drainage, sewers, access to public roads and related conditions); (2) the
quality, nature, adequacy, and physical condition of soils, geology and groundwater; (3) the
existence, quality, nature, adequacy and physical condition of utilities serving each of the
Development Parcels; (4) the development potential of each of the Development Parcels, and the
use, habitability, merchantability, or fitness, suitability, value or adequacy of each of the
Development Parcels for any particular purpose; (5) the zoning or other legal status of each of
the Development Parcels or any other public or private restrictions on the use of each of the
Development Parcels; (6) the compliance of each of the Development Parcels or its operation
with any applicable codes, Laws, regulations, statutes, ordinances, covenants, conditions and
restrictions of any governmental or quasi governmental entity or of any other person or entity;
(7) the presence or absence of Hazardous Materials on, under or about each of the Development
Parcels or the adjoining or neighboring property; and (8) the condition of title to each of the
Development Parcels (except as otherwise expressly provided in Section 4.6(A) (B)).
Developer affirms that Developer has not relied on the skill or judgment of the City or
any of its respective agents, employees or contractors to select or furnish each of the
Development Parcels for any particular purpose, and that the City makes no warranty that any of
the Development Parcels are fit for any particular purpose. Developer acknowledges and agrees
that it shall use its independent judgment and make its own determination as to the scope and
breadth of its due diligence investigation which it made relative to each of the Development
Parcels and shall rely upon its own investigation of the physical, environmental, economic and
legal condition of each of the Development Parcels (including, without limitation, whether the
Property is located in any area which is designated as a special flood hazard area, dam failure
inundation area, earthquake fault zone, seismic hazard zone, high fire severity area or wildland
fire area, by any federal, state or local government department). Developer undertakes and
assumes all risks associated with all matters pertaining to the location of each of the
Development Parcels in any area designated as a special flood hazard area, dam failure
inundation area, earthquake fault zone, seismic hazard zone, high fire severity area or wildland
fire area, by any federal, state or local government or City department.
Without limiting the generality of the foregoing provisions of this subsection (B),
Developer specifically acknowledges and agrees that: (1) the City shall have no responsibility for
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the suitability of each of the Development Parcels for development, and if the conditions of each
of the Development Parcels are not entirely suitable for development, then Developer shall put
each of the Development Parcels in a condition suitable for Development at its cost; and (2) if
there is a discovery following the Closing of any Later Discovered Pre Conveyance
Contaminants, Developer shall be solely responsible, at its cost, for any required Remediation of,
and any third -party damages related to, such Later Discovered Pre Conveyance Contaminants.
C. Survival The terms and conditions of this Section 4.8 shall expressly survive the
Closing, shall not merge with the provisions of the Statutory Warranty Deed(s), or any other
closing documents and shall be deemed to be incorporated by reference into the Statutory
Warranty Deed. The City is not liable or bound in any manner by any oral or written statements,
representations or information pertaining to each of the Development Parcels furnished by any
contractor, agent, employee, servant or other person. Developer acknowledges that the Purchase
Price reflects the "As Is" nature of this purchase and sale transaction and any faults, liabilities,
defects or other adverse matters that may be associated with any of the Development Parcels.
Developer has fully reviewed the disclaimers and waivers set forth in this Agreement with
Developer's legal counsel and understands the significance and effect thereof.
D. Acknowledgment Developer acknowledges and agrees that: (1) to the extent
required to be operative, the disclaimers of warranties contained in this Section 4.8 are
"conspicuous" disclaimers for purposes of all applicable Laws and other legal requirements; (2)
the disclaimers and other agreements set forth in this Section 4.8 are an integral part of this
Agreement; (3) the Purchase Price has been adjusted to reflect the same; and (4) the City would
not have agreed to sell any of the Development Parcels to Developer for the applicable Purchase
Price without the disclaimers and other agreements set forth in this Section 4.8.
E. Developer's Release of the City Subject to City performance of the City
obligations under this Agreement, Developer, on behalf of itself and anyone claiming by,
through or under Developer hereby waives its right to recover from and fully and irrevocably
releases the City, the City Council and their respective council members, appointees, employees,
officers, directors, representatives, attorneys and agents (the "City Released Parties from any
and all claims, responsibility and /or liability that Developer may have or hereafter acquire
against any of the City Released Parties for any costs, loss, liability, damage, expenses, demand,
action or cause of action arising from or related to: (1) the condition (including any construction
defects, errors, omissions or other conditions, latent or otherwise), valuation, salability or utility
of each of the Development Parcels, or suitability of any Development Parcel for any purpose
whatsoever; (2) the presence of any Hazardous Materials (other than Known Contaminants); and
(3) any information furnished by the City Released Parties under or in connection with this
Agreement.
F. Scope of Release The release set forth in subsection (E) of this Section 4.8
includes claims of which Developer is presently unaware or which Developer does not presently
suspect to exist which, if known by Developer, would materially affect Developer's release of
the City Released Parties. Developer specifically waives the provision of any statute or principle
of law that provides otherwise. In this connection and to the extent permitted by law, Developer
agrees, represents and warrants that Developer understands and acknowledges that factual
matters now unknown to Developer may have given or may hereafter give rise to causes of
action, claims, demands, debts, controversies, damages, costs, losses and expenses which are
41 101
presently unknown, unanticipated and unsuspected, and Developer further agrees, represents and
warrants that the waivers and releases herein have been negotiated and agreed upon in light of
that realization and that Developer nevertheless hereby intends to release, discharge and acquit
the City Released Parties from any such unknown causes of action, claims, demands, debts,
controversies, damages, costs, losses and expenses. Accordingly, Developer, on behalf of itself
and anyone claiming by, through or under Developer, hereby assumes the above mentioned
risks.
Notwithstanding the foregoing, this release shall not apply to, nor shall the City be
released from, the City's actual fraud or misrepresentation or the City's obligation to perform the
City obligations under this Agreement.
G. Costs of Escrow and Closing
1. Prorations. All revenues and all expenses of each Development Parcel,
including but not limited to, water and utility charges, amounts payable under any leases, annual
permits and /or inspection fees (calculated on the basis of the respective periods covered
thereby), and other expenses normal to the ownership, use, operation and maintenance of the
Property shall be prorated as of 12:01 a.m. on the Closing Date. It is acknowledged that any
revenue or expense amount which cannot be ascertained with certainty as of Closing shall be
prorated on the basis of the Parties' reasonable estimate of such amount, and shall be the subject
of a final proration forty -five (45) days after Closing, or as soon thereafter as the precise
amounts can be ascertained. A statement setting forth such agreed -upon prorations signed by
City and Developer shall be delivered to Escrow Agent. Real property taxes shall be paid in
accordance with Ch. 84.60 RCW. Any outstanding LID or other assessments against any
Development Parcel shall be satisfied in full by the City at Closing. Any rents collected by
Developer after Closing shall be retained by Developer and the City shall not be entitled to any
credit for the same.
2. Title Insurance City shall pay the premium for the standard coverage
component of the extended owner's policy of title insurance required under Section 4.6(c)
hereof. Developer shall pay the costs of any new surveys, the premium for any extended
coverage component of the extended owner's policy of title insurance requested by Developer,
and all recording costs. The City shall complete and execute the real estate excise tax affidavit
and shall pay any excise tax due in connection with this transaction. Developer and the City
shall share equally the cost of escrow fees in connection with any Closing.
H. Recordation Provided that Escrow Agent has not received prior written notice
from either Party that an agreement of either Party made hereunder has not been performed, or to
the effect that any condition set forth herein has not been fulfilled, or that Developer has elected to
terminate its rights and obligations hereunder pursuant to Sections 9.2 or 9.3 hereof, and further
provided that the Title Company has issued or is unconditionally prepared and committed to issue
to Developer the Title Policy, then Escrow Agent is authorized and instructed at 8:00 a.m. (or as
soon thereafter as possible) on the Closing Date, pursuant to joint escrow instructions to be
executed by Developer and City, to:
1. Record the Deed(s) in the official records of King County, Washington;
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2. Deliver the other documents described in Section 4.5(C) hereof,
4.5(C) hereof.
3. Record any reconveyance documents delivered by City pursuant to Section
L Delivery of Documents Upon Closing, all statements and documents to be
delivered to Developer shall be delivered to:
Tukwila Village Associates, LLC
c/o Pacific Northern Construction Company, Inc., Manager
201 27th Avenue SE, Building A, Suite 300
Puyallup, WA 98374
Upon the Closing, all statements and documents to be delivered to City shall be delivered
to:
City of Tukwila
Office of the Mayor
6200 Southcenter Boulevard
Tukwila, Washington 98188
J. Real Estate Commissions Except as set forth below, each Parry represents and
warrants that it has not entered into any agreement, and has no obligation, to pay any real estate
commission in connection with the transaction contemplated by this Agreement. If a real estate
commission is claimed through either Parry in connection with the transaction contemplated by
this Agreement, then the Party through whom the commission is claimed shall indemnify, defend
and hold the other Parry harmless from any liability related to such commission. The Parties'
respective obligations to indemnify each other under this Section 4.8 shall survive termination of
this Agreement, and shall be interpreted broadly so as to apply to any legal or administrative
proceeding, arbitration, or enforcement action.
ARTICLE 5
CONSTRUCTION OF THE DEVELOPMENT
Section 5.1 Basic Obligations
Developer shall cause construction of the Improvements in accordance with the terms of
this Agreement. Subject to Force Majeure, Developer shall cause commencement and
completion of construction of the Improvements associated with each Development Phase within
the times set forth in Section 9.4. Developer shall perform the terms of this Agreement in
accordance with the following standards:
A. All construction hereunder shall comply with, and be performed in
accordance with, the Design Guidelines, the Approved Site Plan, this Agreement and all
applicable Environmental Standards, free and clear of all liens (other than in connection with
approved Financing Obligations).
43 103
B. Developer shall cause all work performed in connection with construction
of the Development to be performed in compliance with: (1) all applicable Laws, ordinances,
rules and regulations of federal, state, county or municipal governments or agencies; and (2) all
rules and regulations of any fire marshal, health officer, building inspector, or other officer of
every governmental agency of the City now having or hereafter acquiring jurisdiction. The work
shall proceed only after procurement of each and every required permit, license, approval or
other authorization that may be required by any governmental agency having jurisdiction, and
Developer shall be responsible for the procurement and maintenance thereof, as may be required
of Developer and all Persons engaged in work on the Property.
C. Developer agrees to use its reasonable best efforts to seek and obtain all
permits and financing necessary to construct the Improvements with respect to each
Development Phase and shall thereafter diligently design, construct and complete the
Improvements in a good and workmanlike manner and of good quality.
D. Developer agrees to use materials that are of high quality and
workmanship. Developer agrees to utilize high quality construction materials consistent with
Class A mixed -use development and market rate residential rental apartment properties,
notwithstanding that a portion of the rental apartments included in the development are intended
to be restricted and affordable to low- to moderate income individuals and households.
Examples of the quality of such construction materials include Developer's Arrowhead Gardens
Apartments development in West Seattle and Victoria Park Apartments development in Lake
City. Materials such as synthetic stucco, plastic storefront window systems, standard cinder
block, aluminum /plastic /vinyl siding, or faux cladding shall not be used on any building facades.
Section 5.2 Developer- Performed Street, Utilities and Related Work
Without limiting the generality of the obligations set forth in Section 5.1 hereof, as part
of the construction of the Improvements associated with the first Development Phase, Developer
shall cause performance of Developer performed street, City utility (storm water) and non -City
utility (all other utlities), and work related to the Street Vacation Agreements as set forth at
Section 5.3 hereof (collectively, the "Developer Infrastructure Work The Parties
acknowledge and agree as follows with respect to the performance of such Developer
Infrastructure Work:
A. The performance of the Developer Infrastructure Work is an integral component
of the overall construction of the Development;
B. Close coordination is required between performance of the Developer
Infrastructure Work and the simultaneous construction of the first Development Phase and the
proposed future development of the Library Parcel;
C. Timely completion of the Developer Infrastructure Work contemporaneous with
development of the first and second Development Phases is essential to the successful
development of the Property; and
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D. Performance of the Developer Infrastructure Work in accordance with the
requirements of the Street Vacation Agreements is essential to the successful development of the
Property.
Section 5.3 Description of Developer Infrastructure Work.
A. Street Improvements Developer shall construct all street improvements depicted
in the Approved Site Plan in accordance with standard City requirements to construct public
infrastructure and frontage improvements abutting the Development Parcels. Developer shall, in
addition, construct such street improvements as may be set forth in, and in accordance with, the
terms and conditions of the Street Vacation Agreements.
B. Storm Water Utilities Developer shall construct all storm water utility system
improvements depicted in the Approved Site Plan or Approved Constructions Plans in
accordance with standard City requirements, and, in addition, shall construct such improvements
as may be set forth in, and in accordance with, the terms and conditions of the Street Vacation
Agreements.
C. Other Utilities Developer shall coordinate and cause relocation, adjustment,
installation, and construction of all other utility system improvements (natural gas, electric,
telecommunications, cable, sanitary sewer and water) as depicted in the Approved Site Plan or
Approved Constructions Plans so that such work is substantially performed and completed prior
to completion of construction of the first and second Development Phases.
D. South 144 1 Street The City's Capital Improvement Plan (CIP) includes a project
to rebuild South 144 Street between Tukwila International Boulevard and 42 Avenue South.
This project is currently unfunded, but the City agrees to commence a study to evaluate the
project and design the improvements. The City agrees to make this a high priority project and to
actively seek outside funding to design and construct the improvements for the City's South
144 Street CIP project. If the City is successful in receiving funding to construct the City's
South 144 Street CIP project, such that Developer does not have to construct such frontage
improvements, such frontage improvement costs will not be taken into account in the Residual
Land Value Analysis.
E. Other Infrastructure Improvements Certain other infrastructure costs may be
necessitated based on certain pending decisions by Developer such as the introduction of parallel
parking within the City right of way along a portion Tukwila International Boulevard separated
from traffic by channelization, or the relocation of all or portions of the existing crosswalk across
Tukwila International Boulevard to better align the crosswalk with a major pedestrian access
point serving the Development.
Section 5.4 Construction Pursuant to Plans
A. General Requirement Developer shall cause construction of the Improvements
for each Development Phase in accordance with the Approved Site Plan (or modifications
thereto permitted by this section), the approved Phased Development Plan, and the terms and
conditions of the Development Agreement and all City and other governmental approvals and
this Agreement. Nothing in this section shall preclude or modify Developer's obligation to
45 105
obtain any required City approval of changes in the Approved Site Plan or Phased Development
Plan.
B. "As Built" Plans Within forty-five (45) days after issuance of an Estoppel
Certificate of Completion for the Development, Developer shall submit to the City a complete
set of "as built" plans for any Improvements that will be dedicated or conveyed to the City.
Section 5.5 Estoppel Certificate of Completion
For each Development Phase, when the obligations of Developer under this Agreement
as to each such Phase have been met, Developer may request issuance of, and upon such request
the City shall issue, a certificate to such effect (an "Estoppel Certificate of Completion in a
form recordable in the Official Records of the County of King, which the City shall do within
thirty (30) days of such a request that meets the above requirements.
Except as set forth in the following paragraph, an Estoppel Certificate of Completion
shall constitute a conclusive determination that the covenants in this Agreement with respect to
the obligations of Developer, as to such Development Phase, to construct the Improvements and
to pay the Purchase Price, have been met and that such covenants no longer constitute covenants
that run with and burden the Development Parcels subject to such Estoppel Certificate of
Completion. Such certification shall not be deemed a notice of completion under the Tukwila
Municipal Code, nor shall it constitute evidence of compliance with or satisfaction of any
obligation of Developer to any holder of deed of trust securing money loaned to finance the
Development or any portion thereof, except as otherwise independently provided in such deed of
trust.
An Estoppel Certificate of Completion shall not constitute a conclusive determination of
the satisfaction of the requirements of the obligation and indemnification set forth in Section
4.8Q), 6.3(A), 6.4(c), 9.7 or 10. which shall expressly survive issuance of an Estoppel Certificate
of Completion. An Estoppel Certificate of Completion shall not relieve Developer of its
covenants pursuant to Section 6.2 (Operating Covenants) or Section 2.8(E) (CC &Rs) hereof,
which covenants shall expressly survive issuance of an Estoppel Certificate of Completion.
Upon issuance of an Estoppel Certificate of Completion, Developer shall cause the same
to be recorded upon the Development Parcels subject to the Estoppel Certificate of Completion.
Section 5.6 Entry by the City
Developer shall permit the City, through its officers, agents, or employees, to enter the
Property at all reasonable times to inspect the construction work with respect to the
Improvements in each Development Phase to determine that such work is in conformity with the
Approved Site Plan, the Phased Development Plan, the Development Agreement or to inspect
the Property for compliance with this Agreement. The City is under no obligation to (a)
supervise construction, (b) inspect the Property, or (c) inform Developer of information obtained
by the City during any inspection, except that the City shall inform Developer of any information
it obtains or discovers during inspection that could reasonably or foreseeably affect the rights or
obligations of a Party under this Agreement. Developer shall not rely upon the City for any
supervision or inspection. The rights granted to the City pursuant to this Section 5.6 are in
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addition to any rights of entry and inspection the City may have in exercising its municipal
regulatory authority, and such special or additional rights hereunder shall terminate with respect
to each Development Phase upon such time as Developer is entitled to issuance of an Estoppel
Certificate of Completion for such Development Phase.
ARTICLE 6
OBLIGATIONS DURING AND AFTER CONSTRUCTION
Section 6.1 Applicability Developer shall comply with the provisions of this Article
6: (a) for the applicable time period specified in the various sections of this Article 6; or (b) if no
specified time period is set forth in a particular section, throughout the Term of this Agreement.
Section 6.2 Additional Operating Covenants for Retained Improvements
A. Expansion, Reconstruction or Demolition For a period of twenty (20) years
following issuance of an Estoppel Certificate of Completion, Developer shall not cause or permit
any material change in use of the Retained Improvements without the prior written approval of
the City, which approval shall not be unreasonably withheld, conditioned or delayed.
Section 6.3 General Indemnity and Insurance
A. General Indemnity With the exception that neither this subsection nor any other
provisions of this Agreement shall be construed to require indemnification by Developer to a
greater extent than allowed under the Laws and policies of the State of Washington, Developer
shall indemnify, defend (with counsel reasonably acceptable to the City), and hold harmless the
Indemnified Parties against all suits, actions, claims, causes of action, costs, demands, judgments
and liens arising out of Developer's or the Contractors' performance or non performance under
this Agreement or arising in connection with entry onto, ownership of, occupancy in, or
construction on the Property by Developer, the Contractors, or the Tenants. This indemnity
obligation shall not extend to any claim to the extent such claim is attributable to or arising from
the applicable Indemnified Party's negligence or the City's failure to perform its obligations
under this Agreement. Developer's obligation to indemnify under this Section 6.3(A) shall
survive termination of this Agreement, and shall be interpreted broadly so as to apply to any
legal or administrative proceeding, arbitration, or enforcement action.
The indemnification, defense and hold harmless obligations of Developer under this
subsection and elsewhere in this Agreement or the Exhibits hereto (sometimes collectively, the
"Indemnification Obligations shall not be limited by the amounts or types of insurance (or
the deductibles or self insured retention amounts of such insurance) which Developer is required
to carry under this Agreement. In claims against any of the Indemnified Parties by an employee
of Developer, or anyone directly or indirectly employed by Developer or anyone for whose acts
Developer may be liable, the Indemnification Obligations shall not be limited by amounts or
types of damages, compensation or benefits payable by or for Developer or anyone directly or
indirectly employed by Developer or anyone for whose acts Developer may be liable. The
Indemnification Obligations of Developer shall be independent of and in addition to the
Indemnified Parties' rights under the insurance to be provided by Developer under this
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Agreement. The duty to defend hereunder is wholly independent of and separate from the duty
to indemnify.
B. Required Insurance Coverage Developer shall cause to be maintained and kept
in force, at the sole cost and expense of Developer, the following insurance for the Developer
Responsibility Area:
1. Comprehensive General Liability Insurance with limits of not less than
$1,000,000 per occurrence and a combined single limit of $2,000,000 in the aggregate plus
Comprehensive Excess Liability Insurance of not less than $5,000,000 for Bodily Injury and
Property Damage, including premises operations, underground and collapse, completed
operations, contractual liability, independent contractor's liability, broad form property damage
and personal injury, and covering, without limitation, all liability to third parties arising out of or
related to Developer's performance of its obligations under this Agreement or other activities of
Developer at or about the Property and the Development.
2. Vehicle Liability Insurance with limits of not less than $1,000,000 per
occurrence and a combined single limit of $2,000,000 in the aggregate for Bodily Injury and
Property Damage, including any automobile or vehicle whether hired or owned by Developer.
limits.
3. Worker's Compensation Insurance in an amount not less than the statutory
C. General Contractor's Insurance Developer shall cause the General Contractor to
maintain insurance of the types and in at least the minimum amounts described in subsections
(1), (2) and (3) of Section 6.3(B) hereof, and shall require that such insurance shall meet all of
the general requirements of subsection (D) of this Section 6.3.
D. General Insurance Requirements
1. In General The insurance required by this Section 6.3 shall be provided
under an occurrence form, and Developer shall maintain (or cause to be maintained) such
coverage continuously throughout the Term of this Agreement (except for the General
Contractor's insurance requirement set forth in subsection (C) of this Section 6.3, which shall be
maintained until Developer is entitled to issuance of an Estoppel Certificate of Completion).
Should any of the required insurance be provided under a form of coverage that includes an
annual aggregate limit or provides that claims investigation or legal defense costs be included in
such annual aggregate limit, such annual aggregate limit shall be twice the occurrence limits
specified above.
2. Additional Insureds The insurance policies required pursuant to this
Section 6.3 (other than Worker's Compensation insurance) shall be endorsed to name as
additional insureds the City and their respective officials (appointed and elected), officers,
agents, attorneys and employees (collectively, the "Additional Insureds
3. Additional Requirements All insurance policies shall contain:
a. An agreement by the insurer to give the City at least thirty (30)
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days' notice prior to cancellation (including, without limitation, for non payment of premium) or
any material change in said policies;
b. An agreement by the insurer that such policies are primary and
non contributing with any insurance that may be carried by the City;
C. A provision that no act or omission of Developer shall affect or
limit the obligation of the insurance carrier to pay the amount of any loss sustained;
d. A waiver by the insurer of all rights of subrogation against the
Additional Insureds in connection with any loss or damage thereby insured against;
e. Upon the City's request at any time during the Term of this
Agreement, Developer shall provide certificates of insurance, in form and with insurers
reasonably acceptable to the City, evidencing compliance with the requirements of this section,
and shall provide complete copies of such insurance policies, including a separate endorsement
naming the Additional Insureds as additional insureds.
All insurance companies providing coverage pursuant to this Section 6.3 shall be
insurance organizations authorized by the Insurance Commissioner of the State of Washington to
transact the business of insurance in the State of Washington, and shall have an A. M. Best's
rating of not less than "AN11
Section 6.4 Hazardous Materials
A. Basic Developer Obligations Developer shall keep and maintain Developer
Responsibility Area in compliance with, and shall not cause or permit Developer Responsibility
Area to be in violation of, any Environmental Standards. Developer shall not use, generate,
manufacture, store or dispose of in, on, or under Developer Responsibility Area or transport to
the Developer Responsibility Area any Hazardous Materials, except such of the foregoing as
may be legally and customarily kept and used in and about the construction and operation of like
kind mixed use retail and residential developments.
B. Notification to City, City Participation Developer shall immediately notify and
advise the City in writing if at any time it receives written notice of. (1) any and all enforcement,
cleanup, removal or other governmental or regulatory actions instituted, completed or threatened
against Developer or the Developer Responsibility Area pursuant to any Environmental
Standards; (2) all claims made or threatened by any third party against Developer or the
Developer Responsibility Area relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Contaminants (the matters set forth in clauses (1) and (2) above
are referred to as "Hazardous Materials Claims and (3) the Developer's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the Developer
Responsibility Area that likely could cause part or all of the Developer Responsibility Area to be
classified as meeting or exceeding clean -up levels (contaminant levels requiring Remedial
Action) under Environmental Standards, or to be otherwise subject to any restrictions on the
ownership, occupancy, transferability or use of the Developer Responsibility Area under any
Environmental Standards. The City shall have the right to join and participate in, as a party if it
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so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials
Claims.
C. Developer Indemnification Developer shall indemnify, defend (with counsel
reasonably acceptable to the City), and hold harmless the Indemnified Parties from and against
any loss, damage, cost, expense or liability the City may incur directly or indirectly arising out of
or attributable to the use, generation, storage, release, threatened release, discharge, or disposal
by Developer, its Contractors, or the Tenants of Contaminants in, on, under, or emanating from
the Developer Responsibility Area, including without limitation: (1) the costs of any required or
necessary Remediation of the Developer Responsibility Area, and the preparation and
implementation of any closure, Remedial or other required plans; and (2) all reasonable costs and
expenses incurred by the City in connection with clause (1), including but not limited to
reasonable attorneys' fees. Developer's obligation to indemnify under this Section 6.4(C) shall
survive termination of this Agreement, and shall be interpreted broadly so as to apply to any
legal or administrative proceeding, arbitration, or enforcement action.
Section 6.5 Taxes
Developer shall pay when due all real property taxes and assessments assessed and levied
on the Development Parcels acquired by Developer that are attributable to the period following
the Closing and shall remove any levy, lien or attachment made on any other portion of the
Developer Responsibility Area. Developer may, however, contest the validity or amount of any
tax, assessment, or lien on any portion of the Developer Responsibility Area.
Section 6.6 Damage or Destruction to Developer Responsibility Area
Developer shall promptly notify the City of any Casualty with respect to the Developer
Responsibility Area, and shall diligently seek to procure all insurance proceeds that may be
available to compensate for such Casualty. To the extent economically feasible as a result of the
availability of insurance proceeds and any other funds Developer elects to provide for such
purpose, Developer shall promptly commence and diligently pursue restoration or replacement of
the portion of the Developer Responsibility Area that was damaged by such Casualty. To the
extent economically feasible as a result of the availability of insurance proceeds and any other
funds Developer elects to provide for such purpose, the restored or replaced property shall be
substantially equal in value, quality, and use to the value, quality, and use of such damaged
property immediately before the Casualty.
Section 6.7 CC &Rs Obligations
Developer shall comply with and enforce the terms of the CC &Rs with respect to the
Developer Responsibility Area. In addition to any rights and remedies provided to the City
under this Agreement, the City and Developer shall have the right to enforce the terms of the
CC &Rs as fully provided in the CC &Rs.
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ARTICLE 7
ASSIGNMENT AND TRANSFERS
Section 7.1 Definition of Transfer As used in this Article 7, the term "Transfer"
means:
A. Any total or partial sale, assignment or conveyance, or any trust or power, or any
transfer in any other mode or form, of or with respect to this Agreement or of or with respect to a
Development Parcel or any part thereof or any interest therein or of the Improvements
constructed thereon, or any contract or agreement to do any of the same; or
B. Any total or partial sale, assignment or conveyance, or any trust or power, or any
transfer in any other mode or form, of or with respect to any legal or equitable ownership interest
in Developer or any partner, member or shareholder of Developer, or any contract or agreement
to do any of the same.
Section 7.2 Purpose of Restrictions on Transfer This Agreement shall be exclusively
between the City and Developer. This Agreement is entered into solely for the purpose of the
development and subsequent use of the Property and the use and operation of the Plaza Parcel in
accordance with the terms of this Agreement. The qualifications and identity of Developer are of
particular concern to the City, in view of:
A. The importance of the redevelopment, use, operation and maintenance of the
Development to the general welfare of the community; and
B. The fact that a change in ownership or control of the owner of a Development
Parcel, or any other act resulting in a change in ownership of the Parties in control of Developer,
is for practical purposes a transfer or disposition of Development Parcel and the Development.
It is because of the qualifications and identity of Developer that the City is entering into
this Agreement with Developer and that Transfers are permitted only as provided in this
Agreement.
Section 7.3 Prohibited Transfers
The limitations on Transfers set forth in this Section 7.3 shall apply to each Development
Parcel until the Developer is entitled to issuance of an Estoppel Certificate of Completion for the
Improvements upon said Development Parcel. Except as expressly permitted in this Agreement,
Developer represents and agrees that Developer has not made or created, and will not make or
create or suffer to be made or created, any Transfer, either voluntarily or by operation of law,
without the prior approval of the City. Any Transfer made in contravention of this Section 7.3
shall be void and shall be deemed to be a default under this Agreement, whether or not
Developer knew of or participated in such Transfer.
Section 7.4 Permitted Transfers
Notwithstanding the provisions of Section 7.3, the following Transfers shall be permitted
(subject to satisfaction of all applicable conditions to such Transfer):
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A. Any Transfer creating a Security Financing Interest consistent with the Financing
Plan approved by the City pursuant to Section 2.15 (as demonstrated to the City's reasonable
satisfaction), or otherwise consistent with the provisions of Section 8.1.
B. Any Transfer directly resulting from the foreclosure of a Security Financing
Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest.
C. Any Transfer to another Washington limited liability company in which
Developer is the sole manager or managing member with majority ownership interest (as
demonstrated to the City's reasonable satisfaction), so long as the City first reasonably
determines that such entity has and will maintain sufficient net worth to complete the
Development as contemplated by this Agreement.
D. Any Transfer of Development Parcels consisting of a single Development Phase
to a Washington limited partnership in which Developer, or another Washington limited liability
company in which Developer is the sole manager or managing member with majority ownership
interest (as demonstrated to the City's reasonable satisfaction), is the sole or managing general
partner, so long as the City first reasonably determines that the such entity has and will maintain
sufficient net worth to complete the Development Phase as contemplated by this Agreement..
E. Developer is currently owned by the Senior Housing Assistance Corporation
"SHAC and Pacific Northern Construction Company, Inc. "PNCC Any Transfer of any or
all of SHAC or PNCC ownership or management rights with respect to Developer to any
existing shareholders, key employees or new or existing wholly -owned subsidiaries or other
entities owned and controlled by SHAC or PNCC, such that SHAC, PNCC and their Affiliates
continue to own and control, directly or indirectly, 100% of Developer.
Section 7.5 Other Transfers in Citv's Sole Discretion.
Any Transfer not permitted pursuant to an express provision of Section 7.4 shall be
subject to prior City approval in accordance with this Section 7.5, which the City may grant or
deny in its sole discretion. In connection with such a proposed Transfer, Developer shall first
submit to the City information regarding such proposed Transfer, including the proposed
documents to effectuate the Transfer, a description of the type of the Transfer, and such other
information as would assist the City in considering the proposed Transfer, including where
applicable, the proposed transferee's financial strength and the proposed transferee's experience,
capacity and expertise with respect to the development, operation and management of mixed use
developments containing a Class A retail component similar to the Development. The City shall
approve or disapprove the proposed Transfer, in its sole discretion, within sixty (60) days of the
receipt from Developer of the information specified above. The City shall specify in writing the
basis for any disapproval. A failure by the City to act within such sixty (60) day period shall
constitute a disapproval of the proposed Transfer.
Section 7.6 Effectuation of Permitted or Otherwise ADDroved Transfers.
A. Not less than thirty (30) days prior to the intended effectiveness of a Transfer
described in Section 7.4, Developer, or the holder of a security interest requesting a Transfer
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pursuant to Section 7.4 (B) (hereinafter "Secured Party shall deliver to the City a notice of
the date of effectiveness of the intended Transfer, a description of the intended Transfer, and
such information about the intended Transfer and the transferee as is necessary to enable the City
to determine that the intended Transfer meets the standards for a Transfer under Section 7.4 as
applicable. Unless the City notifies Developer prior to the specified date of the intended
Transfer that the intended Transfer does not meet the standards for a Transfer under Section 7.4,
as applicable, stating with reasonable specificity the reasons for such conclusion, the intended
Transfer shall be permitted.
B. Within five (5) Business Days after the completion of any Transfer permitted
pursuant to Section 7.4, or approved in the City's sole discretion pursuant to Section 7.5,
Developer shall provide the City with notice of such Transfer.
C. No Transfer otherwise permitted pursuant to Section 7.4, or approved in the
City's sole discretion pursuant to Section 7.5, shall be permitted unless, at the time of the
Transfer, the person or entity to which such Transfer is made, by an agreement reasonably
satisfactory to the City and in form recordable among the land records of the County of King,
expressly agrees to perform and observe, from and after the date of the Transfer, the obligations,
terms and conditions of Developer under this Agreement and any ancillary agreements entered
into by Developer pursuant to this Agreement with respect to the Development Parcels and the
Development being transferred; provided, however, that no such transferee shall be liable for the
failure of its predecessor to perform any such obligation. Anything to the contrary
notwithstanding, the holder of a Security Financing Interest whose interest in the Property is
acquired by, through or under a Security Financing Interest or is derived immediately from any
holder thereof shall not be required to give to the City such written agreement until such holder
or other person is in possession of the Property, or applicable portion thereof, or entitled to
possession thereof pursuant to enforcement of the Security Financing Interest
D. In the absence of specific written agreement by the City (which the City may
grant or withhold in its sole discretion), no Transfer permitted by this Agreement or approved by
the City shall be deemed to relieve the transferor from any obligations under this Agreement.
ARTICLE 8
SECURITY FINANCING AND RIGHTS OF HOLDERS
Section 8.1 Security Financing Interests_ Permitted and Prohibited Encumbrances.
Mortgages, deeds of trust, and other real property security instruments are permitted to be
placed upon the Property only as authorized by this Section 8.1. Any security instrument and
related interest authorized by this Section 8.1 is referred to as a "Security Financing Interest."
Developer shall promptly notify the City of any Security Financing Interest that has been or will
be created or attached to a Development Parcel.
Until Developer is entitled to issuance of an Estoppel Certificate of Completion,
Developer may place mortgages, deeds of trust, or other reasonable methods of security on the
Property only for the purpose of securing any Approved Development Loan.
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Following the time Developer is entitled to issuance of an Estoppel Certificate of
Completion, Developer may place any mortgages, deeds of trust, and other real property security
interest it desires on the Property.
Section 8.2 Holder Not Oblivated to Construct.
The holder of any Security Financing Interest authorized by this Agreement is not
obligated to construct or complete any Improvements or to guarantee such construction or
completion; nor shall any covenant or any other provision in conveyances from the City to
Developer evidencing the realty comprising the Property or any part thereof be construed so to
obligate such holder. However, nothing in this Agreement shall be deemed to permit or authorize
any such holder to devote the Property or any portion thereof to any uses, or to construct any
improvements thereon, other than those uses or Improvements provided for or authorized by this
Agreement.
Section 8.3 Notice of Default and Right to Cure.
Whenever the City, pursuant to its rights set forth in Article 9, delivers any notice or
demand to Developer with respect to the commencement, completion, or cessation of the
construction of a Development Phase, the City shall at the same time deliver to each holder of
record of any Security Financing Interest creating a lien upon the Property or any portion thereof
a copy of such notice or demand. Each such holder shall (insofar as the rights of the City are
concerned) have the right, but not the obligation, at its option, within thirty (30) days after the
receipt of the notice, to cure or remedy or commence to cure or remedy any such default or
breach affecting the Development Phase and to add the cost thereof to the security interest debt
and the lien on its security interest. Nothing contained in this Agreement shall be deemed to
permit or authorize such holder to undertake or continue the construction or completion of the
Development Phase (beyond the extent necessary to conserve or protect such Improvements or
construction already made) without first having expressly assumed in writing Developer's
obligations to the City relating to the Development Phase under this Agreement. In such event,
the holder must agree to complete the Development Phase in the manner provided in this
Agreement and such holder shall assume all rights and obligations of Developer under this
Agreement with respect to such Development Phase and shall be entitled, upon written request
made to the City, to an Estoppel Certificate of Completion for the Development Phase from the
City.
Section 8.4 Failure of Holder to Complete Development
In any case where six (6) months after default by Developer in completion of
construction of a Development Phase under this Agreement, the holder of record of any Security
Financing Interest, having first exercised its option to construct, has not proceeded diligently
with construction, the City shall be afforded those rights against such holder it would otherwise
have against Developer under this Agreement.
Section 8.5 Right of City to Cure
In the event of a default or breach by Developer of a Security Financing Interest prior to
the completion of a Development Phase, and if the holder has not exercised its option to
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complete the Development Phase, the City may, upon prior written notice to Developer, cure the
default, prior to the completion of any foreclosure. In such event the City shall be entitled to
reimbursement from Developer of all costs and expenses incurred by the City in curing the
default. The City shall also be entitled to a lien upon the Development Phase to the extent of
such costs and disbursements. The City agrees that such lien shall be subordinate to any Security
Financing Interest, and the City shall execute from time to time any and all documentation
reasonably requested by Developer or holder to effect such subordination.
Section 8.6 Right of City to Satisfy Other Liens
After the Closing and after Developer has had a reasonable time to challenge, cure, or
satisfy any liens or encumbrances on the Property or any portion thereof, and has failed to do so,
in whole or in part, the City shall, upon prior written notice to Developer, have the right to
satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall
require Developer to pay or make provision for the payment of any tax, assessment, lien or
charge so long as Developer in good faith shall contest the validity or amount therein and so long
as such delay in payment shall not subject the Property or any portion thereof to forfeiture or
sale.
Section 8.7 Holder to be Notified
Unless this requirement is waived in writing by the City, Developer shall insert each term
contained in this Article 8 into each Security Financing Interest or shall procure
acknowledgement of such terms contained in this Article 8 by each holder of a Security
Financing Interest prior to its coming into any security right or interest in the Property or portion
thereof.
Section 8.8 Modifications
If a holder of a Security Financing Interest should, as a condition of providing financing
for development of all or a portion of the Development, request any modification of this
Agreement in order to protect its interests in the Development or this Agreement, the City shall
consider such request in good faith consistent with the purpose and intent of this Agreement and
the rights and obligations of the Parties under this Agreement.
ARTICLE 9
DEFAULT AND REMEDIES
Section 9.1 Application of Remedies
This Article 9 shall govern the Parties' rights to terminate this Agreement and the Parties'
remedies for breach or failure under this Agreement.
Section 9.2 No Fault of Parties
A. Bases For No Fault Termination The following events constitute a basis for a
Party to terminate this Agreement without the fault of the other:
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I Street Vacation Agreement Developer, the third parties and the City,
despite good faith efforts, are unable to reach mutual agreement upon a Street Vacation
Agreement in accordance with Section 2.6 of this Agreement.
2. Final Street Vacation Approval The Final Street Vacation Approval,
despite good faith efforts, cannot be accomplished within the time period set forth in Section 2.6
of this Agreement.
3. Site Plan Approval Developer, despite good faith efforts, is unable to
obtain an Approved Site Plan pursuant to Section 2.4 of this Agreement.
4. Boundary Line Adjustment Developer, despite good faith efforts, is
unable to obtain preliminary or final approval of a Boundary Line Adjustment pursuant to
Section 2.5 of this Agreement that conforms to the Preliminary or Approved Site Plans.
5. Development Agreement Developer, despite good faith efforts, is unable
to obtain City approval of a Development Agreement in conformance with Section 2.7 of this
Agreement.
6. CC &Rs The Parties, despite good faith efforts, are unable to reach
agreement upon the CC &Rs pursuant to Section 2.8(E) of this Agreement.
7. Phased Development Plan The Parties, despite good faith efforts, are
unable to reach agreement upon a Phased Development Plan pursuant to Section 2.4 of this
Agreement.
8. Temporary Construction Easement Developer, despite good faith efforts,
is unable to obtain City approval of a Temporary Construction Easement pursuant to Section
2.10 of this Agreement.
9. Construction Contract Developer, despite good faith efforts, is unable to
obtain City approval of a Construction Contract pursuant to Section 2.11(A) of this Agreement.
10 Financing Plan The Parties, despite good faith efforts, are unable to reach
agreement upon a Financing Plan pursuant to Section 2.14 of this Agreement.
11. Agreement with KCLS Developer, despite good faith efforts, is unable to
agree on the terms of the KCLS Development Agreement with the KCLS for, among other
things, construction of the Library Off -Site Infrastructure and reimbursement of an allocable
share of the cost thereof, provided, that the KCLS timely elects to enter into an agreement with
the City to acquire the Library Parcel in accordance with Section 2.9 of this Agreement.
12. Design Document Approval Developer, despite good faith efforts, is
unable to obtain Approved Construction Plans pursuant to Section 2.7(A)(2) and of this
Agreement.
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13. Outdoor Plaza The Parties, despite good faith efforts, are unable to reach
agreement upon a Statement of Purpose and Design for the Plaza pursuant to Section 2.8(B) of
this Agreement.
14. Commons The Parties, despite good faith efforts, are unable to reach
agreement upon a Statement of Purpose and Design for the Commons pursuant to Section 2.8(C)
of this Agreement.
15. Performance and Payment Bond Developer, despite good faith efforts, is
unable to obtain City approval of its performance and payment bond pursuant to Section 2.11(D)
of this Agreement.
16. Residual Land Value Analysis The Parties, despite good faith efforts, are
unable to reach agreement upon the residual land value analysis pursuant to Section 4.4 of this
Agreement.
17. Purchase Price The Parties, despite good faith efforts, are unable to reach
agreement upon a Purchase Price pursuant to Section 4.4 of this Agreement.
18. Mutual Agreement Developer and City (and any third party) are unable,
despite good faith efforts, to come to mutual agreement upon any agreement or understanding
that is material to this Agreement and for which mutual agreement is required under this
Agreement.
B. Termination Notice; Effect of Termination Upon the happening of an event
described in Section 9.2(A), and at the election of either Party, this Agreement may be
terminated by written notice to the other Party or the Parties may mutually agree to renegotiate
the terms and conditions of this Agreement pursuant to Section 9.10 herein. Upon a termination
pursuant to Section 9.2(A), any costs incurred by a Party in connection with this Agreement and
the Development shall be completely borne by such Party and neither Party shall have any rights
against or liability to the other, except with respect to: (1) disposition of the Deposit as set forth
in Section 2.2, as applicable; and, (2) the survival of certain terms of this Agreement as provided
in Section 9.8.
Section 9.3 Fault of City
A. City Event of Default Except as to events constituting a basis for termination
under Section 9.2, each of the following events, if uncured after expiration of the applicable cure
period, shall constitute a "City Event of Default
1. Except as provided in Section 9.2, the City without good cause fails to
convey the Property within the time and in the manner specified in Article 4 and Developer is
otherwise entitled to such conveyance.
2. The City breaches any other material provision of this Agreement.
B. Notice and Cure; Remedies Upon the happening of an event described in Section
9.3(A), Developer shall first notify the City in writing of its purported breach or failure. The
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City shall have sixty (60) days from receipt of such notice to cure such breach or failure;
provided, however, that if such breach or failure cannot reasonably be cured within such sixty
(60) day period and the City has commenced the cure within such sixty (60) day period and
thereafter is diligently working in good faith to complete such cure, the City shall have such
longer period of time as may reasonably be necessary to cure the breach or failure.
Notwithstanding anything to the contrary herein, if the City and Developer are in good faith
disputing whether the City has caused a breach or failure of performance of this Agreement, then
the City shall not be deemed to have caused such breach or failure of performance until the City
has been determined by a court of competent jurisdiction to have caused a breach or failure under
this Agreement. If the City does not cure within the applicable cure period set forth above, then
the event shall constitute a "City Event of Default," and Developer shall be entitled to the
following rights and remedies: (1) terminate in writing this entire Agreement; (2) prosecute an
action for damages against the City; (3) seek specific performance of this Agreement against the
City; (4) exercise any other remedy against the City permitted by Law or under this Agreement;
and /or (5) seek re- negotiation of the Agreement pursuant to Section 9.10 herein.
Section 9.4 Fault of Developer
A. Developer Event of Default Except as to events constituting a basis for
termination under Section 9.2, each of the following events, if uncured after expiration of the
applicable cure period, shall constitute a "Developer Event of Default
1. Developer does not attempt diligently and in good faith to cause
satisfaction of all pre- conditions to Closing set forth in Article 2 and Article 4 with respect to
each Development Phase, or Developer does not diligently and in good faith close escrow on the
purchase of the affected Development Parcels, in accordance with the time frames set forth in the
approved Phased Development Plan.
2. Developer refuses for any reason (including, but not limited to, lack of
funds) to accept conveyance from the City of the Property within the time and in the manner
specified in Article 4, unless a condition set forth in this Agreement to Developer's obligations to
accept conveyance has not been satisfied or waived in writing by Developer.
3. Subject to Force Majeure, Developer fails to construct a Development
Phase in the manner and within the timeframes set forth in the Phased Development Plan or
Article 5 hereof.
4. Subject to Force Majeure, Developer fails to comply with the following
deadlines for a given Development Phase:
a. Developer fails to obtain the issuance of grading, foundation,
building, structural, mechanical, electrical, or plumbing permits within thirty (30) days after
Closing, unless such permits are withheld by the City without justification;
b. Developer fails to begin grading within sixty (60) days of Closing,
unless the grading permit is withheld by the City without justification; or
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C. Developer fails to begin foundation construction within ninety (90)
days from Closing or to complete construction within eighteen (18) months of Closing.
5. Subject to Force Majeure, Developer fails to comply with the following
deadlines:
a. Developer does not submit the first Development Phase for Design
Review within ninety (90) days of the Effective Date;
b. Developer does not submit a completed application for the second
Development Phase for Design Review within eighteen (18) months of the Effective Date;
C. In the event that the Phased Development Plan provides for more
than two (2) Development Phases, Developer does not submit a completed application for
Design Review for any subsequent Development Phase within the time period required in the
approved Phased Development Plan;
d. As to each Development Phase, Developer does not submit
building permit applications to the City within one hundred twenty (120) days of the Design
Review approval for such Development Phase, or
e. As to each Development Phase, Developer does not Close and take
ownership of the applicable Development Parcel(s) within sixty (60) days of Building Permit
approval for such Development Phase.
6. Developer attempts or completes a Transfer except as permitted under
Article 7.
7. Developer fails to pay the Purchase Price for the applicable Development
Parcel(s), at the time and in the amount required, pursuant to Section 4.4.
8. Developer breaches any material provision of Article 6 or any other
material provision of this Agreement.
9. Any representation or warranty of Developer contained in this Agreement
or in any application, financial statement, certificate or report submitted to the City in connection
with this Agreement proves to have been incorrect in any material and adverse respect when
made and continues to be materially adverse to the City.
10. A court having jurisdiction shall have made or entered any decree or order
(a) adjudging Developer to be bankrupt or insolvent, (b) approving as properly filed a petition
seeking reorganization of Developer, seeking any arrangement for Developer under the
bankruptcy law or any other applicable debtor's relief law or statute of the United States or any
state or other jurisdiction, (c) appointing a receiver, trustee, liquidator, or assignee of Developer
in bankruptcy or insolvency or for any of their properties, or (d) directing the winding up or
liquidation of Developer.
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11. Developer shall have assigned its assets for the benefit of its creditors
(other than pursuant to a Security Financing Interest) or suffered a sequestration or attachment of
or execution on any substantial part of its property, unless the property so assigned, sequestered,
attached or executed upon shall have been returned or released within ninety (90) days after such
event.
12. Developer shall have voluntarily suspended its business, or Developer
shall have been dissolved or terminated.
13. Developer fails to submit its Deposit within the time period set forth in
Section 2.2 herein.
B. Notice and Cure; Remedies Upon the happening of any event described in
Section 9.4(A), the City shall first notify Developer in writing of its purported breach or failure.
Developer shall have sixty (60) days from receipt of such notice to cure such breach or failure;
provided, however, that if such breach or failure cannot reasonably be cured within such sixty
(60) day period and Developer has commenced the cure within such sixty (60) day period and
thereafter is diligently working in good faith to complete such cure, Developer shall have such
longer period of time as may reasonably be necessary to cure the breach or failure; and provided,
further, however, that a default described in Paragraph (9) of Section 9.4(A) shall constitute a
Developer Event of Default immediately upon its occurrence without need for notice and without
opportunity to cure. Notwithstanding anything to the contrary herein, if Developer and the City
are in good faith disputing whether Developer has caused a breach or failure of performance of
its obligations under this Agreement, then Developer shall not be deemed to have caused such
breach or failure of performance until Developer has been determined by a court of competent
jurisdiction to have caused a breach or failure of performance under this Agreement. If
Developer does not cure within the applicable cure period set forth above, then the event shall
constitute a Developer Event of Default and the City shall be afforded all of the following rights
and remedies:
1. Prior to Closing With respect to a Developer Event of Default occurring
prior to the Closing, the City shall be entitled to: (a) terminate in writing this entire Agreement;
(b) retain the Deposit as set forth in Section 2.2(B); and (c) exercise the rights and remedies
described in Section 9.10. In the alternative, the City may seek to renegotiate the terms and
conditions of this Agreement pursuant to Section 9.10 hereof. The above remedies shall
constitute the exclusive remedies of the City for a Developer Event of Default occurring prior to
the Closing.
2. Between Closing and Estoppel Certificate of Completion With respect to
a Developer Event of Default occurring after the Closing but prior to the date Developer is
entitled to issuance of an Estoppel Certificate of Completion, the City shall be entitled to: (a)
terminate in writing this Agreement; (b) retain the Deposit to the extent set forth in Section
2.2(C); (c) prosecute an action for damages against Developer; (d) seek specific performance of
this Agreement against Developer; (e) exercise the rights and remedies described in Sections 9.5,
9.6, 9.9 and 9.10; and/or (f) exercise any other remedy against Developer permitted by law or
under the terms of this Agreement.
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3. After Estoppel Certificate of Completion With respect to a Developer
Event of Default occurring after Developer is entitled to an Estoppel Certificate of Completion,
the City shall be entitled to: (a) prosecute an action for damages against Developer; (b) seek
specific performance of this Agreement against Developer; and /or (c) exercise any other remedy
against Developer permitted by law or under the terms of this Agreement.
Section 9.5 Right of Reverter
A. If this Agreement is terminated pursuant to Section 9.4(B)(2) following the
Closing and prior to the time when Developer is entitled to issuance of an Estoppel Certificate of
Completion, then the City may, in addition to other rights granted in this Agreement, re -enter and
take possession of the Development Parcel with all Improvements thereon, and revest in the City
the estate previously conveyed to Developer by the City with respect to the Development Parcel.
For each Deveeopment Phase, the City's rights under this Section 9.5 shall terminate and be of no
further force and effect once Developer is entitled to an Estoppel Certificate of Completion for
that particular Development Phase.
B. Such right of reverter shall be subordinate and subject to and be limited by and
shall not defeat, render invalid, or limit:
Any Security Financing Instrument with respect to the Property;
2. Any rights or interests provided in this Agreement for the protection of the
holder of a Security Financing Interest with respect to the Property; or
3. The CC &Rs.
C. Upon revesting in the City of title to a Development Parcel as provided in this
Section 9.5, the City shall use its best efforts to resell the Development Parcel as soon as
possible, in a commercially reasonable manner and consistent with the Tukwila Village Vision
Statement, to a qualified and responsible party or parties (as determined by the City) who will
assume the obligation of making or completing the Development on the Development Parcel or
such other improvements acceptable to the City in accordance with the uses specified for the
Property in the Tukwila Village Vision Statement and in a manner satisfactory to the City. Upon
such resale of the Property, the proceeds thereof shall be applied as follows:
1. First, to reimburse the City on its own behalf for all costs and expenses
incurred by the City, including, but not limited to salaries of personnel and legal fees incurred in
connection with the recapture, management, and resale of the Development Parcel (but less any
income derived by the City from any part of the Development Parcel in connection with such
management); all taxes, installments of assessments payable prior to resale, and water and sewer
charges with respect to the Development Parcel (or, in the event the Development Parcel is
exempt from taxation or assessment or such charges during the period of ownership by the City,
an amount equal to the taxes, assessments, or charges that would have been payable with respect
to the Development Parcel was not so exempt); any payments made or necessary to be made to
discharge any encumbrances or liens existing on the Property at the time of revesting of title in
the City or to discharge or prevent from attaching or being made any subsequent encumbrances
or liens due to obligations, defaults, or acts of Developer, its successors or transferees;
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expenditures made or obligations incurred with respect to the making or completion of the
Improvements on the Development Parcel or any part thereof, and any amounts otherwise owing
the City by Developer and its successors or transferee.
2. Second, to reimburse the City for damages to which it is entitled under this
Agreement by reason of the Developer Event of Default.
3. Third, to reimburse Developer, its successor or transferee, up to the
amount equal to: the Purchase Price for the Development Parcel, plus the fair market value of the
improvements Developer has placed on the Development Parcel, less any gains or income
withdrawn or made by Developer from the Development Parcel or the Improvements thereon.
Notwithstanding the foregoing, the amount calculated pursuant to this paragraph (3) shall not
exceed the fair market value of the Development Parcel together with the Improvements thereon
as of the date of the Developer Event of Default which gave rise to the City's exercise of the
right of reverter.
4. Any balance remaining after such reimbursements shall be retained by the
City as its property.
D. The rights established in this Section 9.5 are to be interpreted in light of the fact
that the City will convey the Property to Developer for development and not for speculation.
Section 9.6 Option to Repurchase, Reenter and Repossess
A. The City shall have the additional right, at its option, to repurchase, reenter, and
take possession of a Development Parcel with all Improvements thereon, if this Agreement is
terminated pursuant to Section 9.4(B)(2) after the Closing and prior to the time when Developer
is entitled to issuance of an Estoppel Certificate of Completion. As to a particular Development
Phase, the City's rights under this Section 9.6 shall terminate and be of no further force and
effect once Developer is entitled to an Estoppel Certificate of Completion, as to such
Development Phase.
Such right to repurchase, reenter, and repossess, to the extent provided in this Agreement,
shall be subordinate and subject to and be limited by and shall not defeat, render invalid, or limit:
Any Security Financing Instrument with respect to the Development
Parcel;
2. Any rights or interests provided in this Agreement for the protection of the
holder of a Security Financing Interest with respect to the Development Parcel; or
3. The CC &Rs.
B. To exercise its right to repurchase, reenter and take possession with respect to the
Development Parcel, the City shall pay to Developer in cash an amount equal to: the Purchase
Price for the Development Parcel, plus the lesser of the (1) actual cost and (2) the fair market
value of the improvements existing on the Development Parcel at the time of the repurchase,
reentry, and repossession, less any gains or income withdrawn or made by Developer from the
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Development Parcel or the Improvements thereon, less the amount of any liens or encumbrances
on the Development Parcel which the City assumes or takes subject to, less any damages to
which the City is entitled under this Agreement by reason of the Developer Event of Default.
Section 9.7 Plans_ Work Product and Studies.
If this Agreement is terminated pursuant to Section 9.4, then Developer shall promptly
deliver, and assign to the City, all of Developer's rights to its development work product related
to any affected Development Phase or Development Parcel, all environmental assessments or
documentation, market studies, architectural or engineering plans, drawings and specifications,
design and engineering studies, or the like, as of the date of termination. The City shall
indemnify, defend, and hold harmless Developer from and against any Developer loss arising out
of the City's use of the delivered items.
Section 9.8 Survival
Upon termination of this Agreement under this Article 9, those provisions of this
Agreement that recite that they survive termination of this Agreement shall remain in effect and
be binding upon the Parties notwithstanding such termination.
Section 9.9 Rights and Remedies Cumulative
Except as otherwise provided, the rights and remedies of the Parties are cumulative, and
the exercise or failure to exercise any right or remedy shall not preclude the exercise, at the same
time or different times, of any right or remedy for the same default or any other default, provided
that any damages or recovery shall be non duplicative.
Section 9.10 Renegotiation
In the event that after this Agreement becomes effective one or more of the changes or
circumstances set forth below in subsections (A) (G) occurs, then the City and Developer agree
to enter into good faith negotiations to amend this Agreement so as to enable the City and
Developer to address, in a manner reasonably acceptable to the City and Developer, such change
or other development which formed the basis for the negotiations. The City and Developer
recognize that the purpose of the negotiations would be to preserve, to the maximum extent
consistent with the original scope, intent and purpose of the City and Developer, the benefits
bargained for by each Party.
A. An event of Force Majeure materially alters the ability of a Party to perform its
obligations under this Agreement;
B. The State of Washington or any agency thereof or any agency of the federal
government require Developer or the City to act in a manner which is inconsistent with any
material provision of this Agreement;
C. Any term, article, section, subsection, paragraph, provision, condition, clause,
sentence, or other portion of this Agreement, or its application to any person or circumstance,
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shall be held to be illegal, invalid or unconstitutional for any reason by any court or agency of
competent jurisdiction;
D. Because of a change in circumstances, the City or Developer believes that
amendments to this Agreement are necessary or appropriate;
E. The Parties are unable to reach mutual agreement upon a submittal, agreement or
understanding under circumstances in which this Agreement requires mutual agreement of the
Parties;
F. A provision in this Agreement establishes the right of a Party to seek re-
negotiation of this Agreement; or
G. The City and Developer otherwise believe that amendments to this Agreement are
necessary or appropriate.
Section 9.11 Communication; Dispute Avoidance; Arbitration
A. Communication and Discussion The Parties are fully committed to working with
each other throughout the Term of this Agreement and agree to communicate regularly with each
other at all times so as to avoid or minimize Disputes. The Parties agree to act in good faith to
prevent and resolve potential sources of conflict before they escalate into a Dispute. The Parties
each commit to resolving a Dispute in an amicable, professional and expeditious manner and
agree that in the event a Dispute arises, they will attempt to resolve any such Disputes through
discussions between representatives of each Party.
B. Arbitration If a Dispute cannot be resolved through discussions by each Party's
representative, the Dispute shall be submitted to binding arbitration in the City of Tukwila or
Seattle, Washington. The arbitration shall be administered by and subject to the arbitration rules
of JAMS, which shall appoint a single arbitrator for the purpose of determining all matters
submitted to arbitration. The arbitrator shall be a person who, by virtue of background, training,
or experience, is knowledgeable in matters of the type covered by the Agreement and the
selection of such arbitrator shall be subject to the consent of both Parties, which consent shall not
be unreasonably withheld, conditioned or delayed. Either Party may commence arbitration by
serving upon the other Party a written demand for arbitration in a manner consistent with the
notice requirements of this Agreement, with a copy of same to be delivered to the local JAMS
office in Tukwila or Seattle, Washington. To the maximum extent practicable, any arbitration
proceeding hereunder shall be concluded within ninety (90) days of the filing of the Dispute with
JAMS. No provision of, nor exercise of any rights under, this Section 9.11 shall limit the rights
of either Party and the submission of any matter to arbitration shall not suspend the performance
of either Party, including (but not limited to) the payment of the Deposit or other amounts due
from Developer under this Agreement. The decision of the arbitrator shall be conclusive, final
and binding upon the Parties. The arbitrator shall be entitled to award compensatory and
equitable relief only and may not award punitive damages. Each Party shall pay its own costs
and expenses, including attorneys' fees, except when the matter was submitted to arbitration by
the substantially non prevailing Party and is determined by the arbitrator to be frivolous in
nature, in which case, upon the request of the substantially prevailing Party, the arbitrator shall
be entitled to award costs and expenses, including reasonable attorneys' fees, with respect to
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such frivolous matter to the substantially prevailing Party. Judgment upon any award obtained
from arbitration may be entered in a court of appropriate jurisdiction.
ARTICLE 10
GENERAL PROVISIONS
Section 10.1 Notices. Demands and Communications.
A. Method Any notice or communication required hereunder to be given by the
City or Developer shall be in writing, and may be given either personally, by facsimile
transmission, by reputable overnight courier, or by registered or certified mail, return receipt
requested. If delivered by registered or certified mail, a notice shall be deemed to have been
given and received on the first to occur of. (1) actual receipt by any of the addressees designated
below as a party to whom notices are to be sent; or (2) five (5) days after the registered or
certified letter containing such notice, properly addressed, with postage prepaid, is deposited in
the United States mail. If delivered personally, by facsimile transmission or by overnight
courier, a notice shall be deemed to have been given when delivered to the party to whom it is
addressed. Either Party may at any time, by giving ten (10) days' written notice to the other
Party pursuant to this Section, designate any other address in substitution of the address to which
such notice or communication shall be given.
1. Addresses Notices shall be given to the Parties at their addresses set forth
below:
If to the City to:
City of Tukwila
Attn: Mayor
6200 Southcenter Boulevard
Tukwila, Washington 98188
General: 206 433 -1800
Fax: 206 433 -1833
With a copy to:
City Attorney
City of Tukwila
Kenyon Disend, PLLC
11 Front Street South
Issaquah, Washington 98027 -3820
General: 425- 392 -7090
Fax: 425- 392 -7071
If to Developer to:
Tukwila Village Development Associates, LLC
Attn: Bryan M. Park, Manager
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c/o Pacific Northern Construction Company, Inc.
201 27th Avenue SE, Building A, Suite 300
Puyallup, WA 98374
General: (253) 231 -5001
Fax: (253) 231 -5010
2. Special Requirement If failure to respond to a specified notice, request,
demand or other communication within a specified period would result in a deemed approval, a
conclusive presumption, a prohibition against further action or protest, or other adverse result
under this Agreement, the notice, request, demand or other communication shall state clearly and
unambiguously on the first page, with reference to the applicable provisions of this Agreement,
that failure to respond in a timely manner could have a specified adverse result.
Section 10.2 Excusable Delay (Force Majeure).
In addition to specific provisions of this Agreement, and notwithstanding anything to the
contrary in this Agreement, neither Parry shall be in default in the performance or the failure of
performance of its obligations under this Agreement, or in the delay of its performance, where
such failure or delay is due to war, insurrection, strikes, lock -outs or other labor disturbances,
one or more acts of a public enemy, war, riot, sabotage, blockade, embargo, floods, earthquakes,
fires, quarantine restrictions, freight embargoes, lack of transportation, court order, delays or
failures of performance by any governmental authority or utility company (so long as the Parry
seeking the extension has adequately complied with the applicable processing requirements of
such governmental authority or utility company), delays resulting from changes in any applicable
Laws, rules, regulations, ordinances or codes, or a change in the interpretation thereof by any
governing body with jurisdiction, delays resulting from the weather or soils conditions which
necessitate delay, delays resulting from litigation (including suits filed by third parties
concerning or arising out of this Agreement) or any other cause (lack of funds of Developer,
Developer's inability to finance the construction of the Development, and Developer's inability
to lease the Improvements, are not causes beyond the reasonable control or without the fault of
Developer) beyond the reasonable control or without the fault of the Parry claiming an extension
of time to perform or an inability of performance. The extension of time for any cause shall be
from the time of the event that gave rise to such period of delay until the date that the cause for
the extension no longer exists or is no longer applicable, in each case as evidenced by a notice
from the Parry claiming the extension. An extension of time for the duration of such event will
be deemed granted if notice by the Parry claiming such extension is sent to the other as to any of
the above causes other than Permit Delays, within ten (10) days from the commencement of the
cause and such extension of time is not rejected in writing by the other Parry within ten (10) days
of receipt of the notice (such extension of time is referred to herein as "Force Majeure Times
for performance under this Agreement may also be extended in writing by the City and
Developer.
Section 10.3 Inspection of Books and Records
Until twelve (12) months following the issuance of the final Estoppel Certificate of
Completion of the last Development Phase of the Development, the City shall have the right at
all reasonable times and upon at least twenty -four (24) hours previous notice to inspect and copy
(at the City's own expense) the books, records and all other documentation of Developer directly
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pertaining to its obligations under this Agreement. Developer shall have the right at all
reasonable times to inspect and copy the books, records and all other documentation of the City
pertaining to its obligations under this Agreement.
Section 10.4 Title of Parts and Sections
Any titles of the sections or subsections of this Agreement are inserted for convenience of
reference only and shall be disregarded in interpreting any of its provisions.
Section 10.5 Non Liability of Officials, Employees and Agents
No member, official, employee or agent of the City shall be personally liable to
Developer, or any successor in interest, in the event of a City Event of Default; provided that, the
City agrees that is shall indemnify the Developer from and against all suits, actions, claims,
causes of action, costs, demands, judgments and liens to the attributable to the intentional
misconduct of such member official, employee or agent of the City.
Section 10.6 Time of the Essence, Calculation of Time.
Time is of the essence in this Agreement. Except as otherwise expressly provided herein,
all periods of time referred to herein shall include Saturdays, Sundays, and legal holidays in the
State of Washington, except that if the last day of any period falls on any Saturday, Sunday, or
legal holiday in the State of Washington, the period shall be extended to include the next
Business Day.
Section 10.7 Applicable Law, Interpretation; Fair Construction
This Agreement shall be interpreted under the laws of the State of Washington. All
pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the context may require. The Parties hereby acknowledge and agree
that each was properly represented by counsel, that this Agreement has been reviewed and
revised by counsel for each Party, and was negotiated and drafted at arms' length so that the
judicial rule of construction to the effect that any ambiguities are to be construed against the
drafting Party shall be inapplicable in the interpretation of this Agreement. The provisions of
this Agreement shall be construed as a whole according to their common meaning and consistent
with the other provisions contained herein in order to achieve the objectives and purposes of this
Agreement, and not strictly for or against either Party.
Section 10.8 Severability If any term, provision, covenant, clause, sentence or any
other portion of the terms and conditions of this Agreement or the application thereof to any
person or circumstances shall apply, to any extent, become invalid or unenforceable, the
remainder of this Agreement shall continue in full force and effect, unless rights and obligations
of the Parties have been materially altered or abridged by such invalidation or unenforceability.
Section 10.9 Legal Actions, Venue. In the event any action is brought to enforce any of
the provisions of this Agreement, the Parties agree to be subject to the jurisdiction of the King
County Superior Court for the State of Washington or, when there is diversity jurisdiction, in the
United States District Court for the Western District of Washington. In the event any proceeding
67 127
is instituted to interpret or enforce any provision or resolve any Dispute under this Agreement,
including, without limitation, any action in which a declaration of rights is sought or an action
for rescission, and any subsequent action or proceeding to enforce any judgment entered
pursuant to an action on this Agreement, the prevailing Parry shall be entitled to recover from the
losing Parry its reasonable attorneys', paralegals', accountants', and other experts' fees and all
other fees, costs, and expenses, as determined by the judge or arbitrator at trial or arbitration, as
the case may be, or on any appeal or review, in addition to all other amounts provided by law.
This provision shall cover costs and attorneys' fees related to or with respect to proceedings in
Federal Bankruptcy courts, including those related to issues unique to bankruptcy law. In the
case of the attorneys' fees payable to the City when the City has been represented by legal
counsel employed within the City of Tukwila City Attorney's Office, the attorneys' fees shall be
measured by the reasonable attorneys' fees that would have been paid by the City had it instead
been represented by outside counsel in the matter.
Section 10.10 Binding Upon Successors, Covenants to Run With Land This Agreement
shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors
in interest, and assigns of each of the Parties, and, except as provided in Section 5.5 herein
(Estoppel Certificate of Completion), the terms of this Agreement shall constitute covenants
running with the land; provided, however, that that there shall be no Transfer of any interest by
any of the Parties hereto except pursuant to the express terms of this Agreement. Any reference
in this Agreement to a specifically named Parry shall be deemed to apply to any successor, heir,
administrator, executor, successor, or assign of such Parry who has acquired an interest in
compliance with the terms of this Agreement or under law.
Section 10.11 Parties Not Co- Venturers Nothing contained in this Agreement shall
create any partnership, joint venture or other arrangement between City and Developer. The
Parties intend that the rights, obligations, and covenants in this Agreement and the collateral
instruments shall be exclusively enforceable by the City and Developer, their successors and
assigns. No term or provision of this Agreement shall be for the benefit of any person, firm,
organization or corporation not a Parry hereto, and no such other person, firm, organization or
corporation shall have any right or cause of action hereunder, except as may be otherwise
expressly provided herein.
Section 10.12 Provisions Not Merged With Deed None of the provisions of this
Agreement shall be merged by the deed or any other instrument transferring title to any portion
of the Property, and neither the deed nor any other instrument transferring title to any portion of
the Property shall affect this Agreement.
Section 10.13 Entire Understanding of the Parties This Agreement, the recitals, the
exhibits referenced herein, and any subsequent agreements or instruments contemplated by this
Agreement to be entered into by the Parties, or made an exhibit hereto, constitute the entire
understanding and agreement of the Parties with respect to the conveyance of the Property and
Development of the same. All recitals and exhibits referenced herein are incorporated into and
made a part of this Agreement as though fully set forth herein.
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Section 10.14 Approvals
A. City Actions Whenever any approval, notice, direction, consent, request,
extension of time, waiver of condition, termination, or other action by the City is required or
permitted under this Agreement, such action may be given, made, or taken by the Mayor,
without further approval by the City Council, and any such action shall be in writing. The City
hereby authorizes the Mayor to take the actions described above, as determined appropriate by
the Mayor, on behalf of the City; provided that, any amendment or modification of the
Agreement not specifically authorized in this Agreement, shall be approved by the City Council.
B. Standard of Approval Whenever this Agreement grants the City or Developer
the right to take action, exercise discretion or make allowances or other determinations, the City
or Developer shall act reasonably and in good faith, except where a sole discretion standard is
specifically provided.
Section 10.15 Authority of Developer The persons executing this Agreement on behalf
of Developer do hereby covenant and warrant that:
A. Tukwila Village Development Associates, LLC is a duly authorized and existing
Washington corporation;
B. Tukwila Village Development Associates, LLC is and shall remain in good
standing and qualified to do business in the State of Washington;
C. Tukwila Village Development Associates, LLC has full right, power and authority
to enter into this Agreement and to carry out all actions on its part contemplated by this
Agreement;
D. The execution and delivery of this Agreement were duly authorized by proper
action of Tukwila Village Development Associates, LLC, and no consent, authorization or
approval of any person is necessary in connection with such execution and delivery or to carry
out all actions on Developer's part contemplated by this Agreement, except as have been
obtained and are in full force and effect;
E. The persons executing this Agreement on behalf of Tukwila Village Development
Associates, LLC have full authority to do so; and
F. This Agreement constitutes the valid, binding and enforceable obligation of
Tukwila Village Development Associates, LLC.
Section 10.16 Amendments Except as may be otherwise provided herein, this
Agreement may not be amended or rescinded in any manner except by an instrument in writing
signed by a duly authorized representative of each Party hereto, and approved by the City
Council.
Section 10.17 Multiple Originals, Counterparts This Agreement may be executed in
multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
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Section 10.18 Operating Memoranda The Parties acknowledge that the provisions of
this Agreement require a close degree of cooperation, and that new information and future events
may demonstrate that changes are appropriate with respect to the details of performance of the
Parties under this Agreement. The Parties desire, therefore, to retain a certain degree of
flexibility with respect to the details of performance of those items covered in general terms
under this Agreement. If and when, from time to time during the term of this Agreement, the
Parties find that refinements or adjustments regarding details of performance are necessary or
appropriate, they may effectuate such refinements or adjustments through a memorandum
(individually, an "Operating Memorandum and collectively, "Operating Memoranda
approved by the Parties which, after execution, shall be attached to this Agreement as addenda
and become a part hereof. This Agreement describes some, but not all, of the circumstances in
which the preparation and execution of Operating Memoranda may be appropriate.
Operating Memoranda may be executed on the City's behalf by its Mayor. Operating
Memoranda shall not require prior notice or hearing, and shall not constitute an amendment to
this Agreement. Any substantive or significant modifications to the terms and conditions of
performance under this Agreement shall be processed as an amendment of this Agreement in
accordance with Section 10. 16, and must be approved by the City Council.
Section 10.19 Good Faith and Reasonableness The Parties intend that the obligations of
good faith and fair dealing apply to this Agreement generally and that no negative inference be
drawn by the absence of an explicit obligation to be reasonable in any portion of this Agreement.
The obligation to be reasonable shall only be negated if arbitrariness is explicitly permitted, such
as in the case of a Party being allowed to make a decision in its "sole judgment" or "sole
discretion
Section 10.20 Successors and Assigns This Agreement shall be binding upon and inure
to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of
the Parties hereto except that there shall be no Transfer of any interest by any of the Parties
hereto except pursuant to the express terms of this Agreement. Any reference in this Agreement
to a specifically named Party shall be deemed to apply to any successor, heir, administrator,
executor or assign of such Party who has acquired its interest in compliance with the terms of
this Agreement, or under law.
Section 10.21 Estoppel Certificates Except as otherwise provided at Sectoin 5.5 of this
Agreement, the City and Developer shall at any time and from time to time, within twenty (20)
days after written request by the other, execute, acknowledge and deliver, to the Party requesting
same or to any prospective mortgagee, assignee or subtenant designated by Developer, a
certificate stating that (i) this Agreement is in full force and effect and has not been modified,
supplemented or amended in any way, or if there have been modifications, identifying such
modifications; and if this Agreement is not in force and effect, the certificate shall so state; and
(ii) to its knowledge, all conditions under the Agreement have been satisfied by the City or
Developer, as the case may be, and that no defenses or offsets exist against the enforcement of
this Agreement by the other Party, or, to the extent untrue, the certificate shall so state. The
Party to whom any such certificate shall be issued may rely on the matters therein set forth and
thereafter the Party issuing the same shall be estoppel from denying the veracity or accuracy of
the same.
130 70
Section 10.22 Waiver No waiver by any Parry of any provision of this Agreement or
any breach thereof shall be of any force or effect unless in writing by the Parry granting the
wavier; and no such waiver shall be construed to be a continuing waiver. The waiver by one
Parry of the performance of any covenant, condition, or promise shall not invalidate this
Agreement nor shall it be considered a waiver by such Parry of any other covenant, condition, or
promise hereunder. The waiver by either or both Parties of the time for performing any act shall
not constitute a waiver of the time for performing any other act or an identical act required to be
performed at a later time.
Section 10.23 Rights and Remedies Cumulative Except as otherwise expressly stated in
this Agreement, the rights and remedies of the Parties are cumulative, and the exercise or failure
to exercise one or more of such rights or remedies by either Parry shall not preclude the exercise
by it, at the same time or different times, of any right or remedy for the same default or any other
default by the other Party.
Section 10.24 Discrimination Developer, for itself and its successors and assigns,
agrees that during the development of the Property, Developer will not discriminate against any
employee or applicant for employment because of race, color, religion, age, sex, marital status,
sexual orientation, handicap or national origin.
Section 10.25 Nonwaiver of Government Rights The Parties understand that the City by
making and entering into this Agreement, is not obligating the City to give governmental
approvals or to take particular governmental action, except as otherwise expressly stated herein
or in the Development Agreement.
THIS SECTION INTENTIONALLY LEFT BLANK
71 131
AS OF THE DATE FIRST WRITTEN ABOVE, the Parties evidence their agreement to
the Terms of this Agreement by signing below:
CITY:
CITY OF TUKWILA, a municipal corporation
Jim Haggerton
Mayor
Attest:
By:
Christy O'Flaherty, City Clerk
Approved As To Form:
Shelley Kerslake
City Attorney
DEVELOPER:
TUKWILA VILLAGE DEVELOPMENT
ASSOCIATES, LLC
in
Bryan M. Park
Manager
132 72
Exhibit A
General Description of the Property
The parcels A through I as indicated on the map below. Parcel J is not included.
Assessor tax parcel numbers:
152304 9092 -02, 152304 9096 -08, 152304 9242 -01, 155420 0005 -09,
155420 0015 -07, 155420 0020 -00, 155420 0030 -08, 155420 0036 -02,
155420 0037 -01, 155420 0033 -05, 155420 0035 -03, and
155420 0034 -04.
155420 0010 -02
155420 0025 -00
Note: This is not a plat of survey. It is provided as a convenience to identify and locate the land
subject to this Agreement with references to streets and other land.
-AL7.
M
133
Exhibit A
General Description of the Property
(continued)
The parcels K through Q as indicated on the map below.
Assessor tax parcel numbers:
004000 0145 -08, 004000 0146 -07, 004000 0180 -04, 004000 0191 -01, 004000 0194 -08,
004000 0196 -06, 004000 0198 -04
Note: This is not a plat of survey. It is provided as a convenience to identify and locate the land
subject to this Agreement with references to streets and other land.
295
J 3T�
r
f
1
f
f
ur,
3�
_U 8 4 S
V2V
134
Exhibit A -1
Legal Descriptions of the Property
PARCEL A:
THAT PORTION OF LOT 9 IN BLOCK I OF LADIES C'LARK'S GARDEN ADDITION TO THE CITE` OF
SEATTLE. AS PER PLAT RECORDED IN VOLUME 15 OF PLATS. PAGE 12. RECORDS OF KING COUNTY
AUDITOR, AND OF THE SOUTHEAST 1.4 OF THE SOUTHWEST 1 4 OF SECTION 15. TOES ?NSHIP 2
NORTH. RANGE 4 EAST W.M.. DESCRIBED AS FOLLO N S:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTH 812.6 FEET OF THE EAST 425 5 FEET OF
SAID SOUTHEAST L 4.
THENCE SOUTH 01 WEST 200 FEET TO THE TRUE POINT OF BEGINTNING OF THIS
DESCRIPTION,
THENCE SOUTHWESTERLY TO A POINT ON THE EASTERLY LINE OF PACIFIC HIGHIVAY SOUTH
(STATE ROAD NO 1 DISTANT SOUTHERLY 2 FEET f AS -IEASU,RED ALONG SAID EASTERLY
LINE) FROM THE INTERSECTION OF SAID EASTERLY LINE WITH THE NORTH LINE OF THE SOUTH
812.6 FEET OF SAID SOUTHEAST 1/4
THENCE SOUTHERLY ALONG SAID EASTERLY HIGHWAY LINE TO THE SOUTH LINE OF SAID LOT 9'.
THENCE EASTERLY ALONG SAID SOUTH LINE TO THE SOL, CORNER THEREOF:
THENCE SOUTHERLY TO A POINT O'_*I THE NORTHERLY LINE OF A TRACT C'ONV'EYED TO ZIBA
HL NTINGTON BY DEED RECORDED UNDER KING COUNTY RECORDING NO. 412'
THENCE EASTERLY ALONG SAID NORTH LINE TO A POINT WHICH BEARS SOUTH 01 0 2 7, 30" WEST
FROM THE TRUE POINT OF BEGINNING;
THENCE CONTINUING EAST TO A POINT 405.04 FEET WEST FROM THE EAST LINE OF SAID
SOUTHEAST 1A OF SOUTH SOUTHWEST 1(4:
THENCE NORTH PARALLEL WITH SAID EAST LINE 6 FEET
THENCE NORTHWESTERLY TO THE TRUE POINT OF BEGINNING.
PARCEL A -1:
A NON EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER A STRIP OF LAND 2 0 FEET IN
WIDTH THE SOUTHERLY LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTH LINE OF THE NORTH 505.1 FEET OF THE EAST 5 25.5 FEET
OF THE SOUTH 512.6 FEET OF THE SOUTHEAST 1,4 OF THE SOUTHWEST 14 OF SECTION 15.
TOWNSHIP 25 NORTH. RANGE 4 EAST W.M.. 100 FEET DISTANT EAST OF THE NORTHWEST CORNER
OF SAID S1
THENCE SOUTH 01 0 2 730" WEST 200 FEET TO THE TRUE POINT OF BEGINrNING OF THE SOUTHERLY
LINE OF THE EASEMENT HEREIN DESCRIBED:
THENCE SOUTHWESTERLY TO A POINT ON THE EASTERLY _MARGIN OF PACIFIC HIGHWAY SOUTH
(STATE ROAD NO I WHICH POINT IS 250.50 FEET SOUTHERLY AS MEASURED ALONG SAID
HIGHWAY FRO.M A POINT IN THE EAST _MARGIN OF SAID HIGHWAY DISTANT 23 40 FEET. MORE OR
LESS. WEST OF THE WEST LINE OF THE SUBDIVISION HEREIN DESCRIBED AND ON THE NORTH
LINE THEREOF AS THE SAME IS PRODUCED WESTERLY
SITUATE IN THE CITY OF TUKWILA COUNTY OF KING. STATE OF WASHINGTON.
135
Exhibit A- I
Legal Descriptions of the Property
(continued)
PARCEL B:
THE NORTH 185.90 FEET OF THE SOUTH 43,09 FEET OF THE WEST 505 FEET OF THE EAST 1.0311 FEET
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 15. TOWNSHIP 1 -3
NORTH. R-ANTGE 4 EAST. W.M.. LYING EASTERLY OF WASHINGTON STATE HIGHWAY NO. I
(PACIFIC HIGHWAY SOUTHJ,
SITUATE IN THE CITY OF T UKWILA COUNTY OF KING. STATE OF WASHINGTON.
PARCEL C:
LOTS I THROUGH 6 INCLUSIVE. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED
IN VOLUME 48 OF PLATS. PAGE 21. IN KING COUNTY. -WASHINGTON:
PARCEL D:
THE SOUTH 245 FEET OF THE WEST 505 FEET OF THE EAST 1031 FEET OF THE SOUTHEAST 1A OF
THE SOUTHWEST L4 OF SECTION 15. TOWNSHIP 1 -3, NORTH. RANGE 4 EAST W.M.. LYING EASTERLY
OF THE STATE HIGHWAY NO. 1:
EXCEPT THE SOUTH 20 FEET THEREOF CONVEYED TO KING COUNTY FOR ROAD BY INSTRUMENT
RECORDED UNDER RECORDING NO. 1158645.
AND EXCEPT THAT PORTION OF THE SOUTHEAST 14 OF THE SOUTHWEST 14 OF SECTION I5.
TOWNSHIP 23 NORTH. RANGE 4 EAST W.M.. LYING SOUTHWESTERLY OF THE ARC OF A CIRCLE
HAVING A RADIUS OF 12.5 FEET WHICH IS TANGENT TO THE NORTH RIGHT OF WAY LINE OF
SOUTH 144TH STREET AND THE EAST RIGHT OF WAY LINE OF PACIFIC' HIGHWAY SOUTH.
CONVEYED TO KING COUNTY BY DEED RECORDED UNDER RECORDING NO. 7409040396:
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING. STATE OF WASHINGTON.
PARCEL E:
LOT A OF SHORT PLAT N.O. 90 -9 -SS. RECORDED UNDER RECORDING NO 9010240314. BEING A
PORTION OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 48
OF PLATS. PAGE 21. IN KING COUNTY WASHINGTON:
PARCEL F:
LOT B OF SHORT PLAT NO. 90-9-SS. RECORDED UNDER RECORDING NO. 9010 3 14. BEING A
PORTION OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 48
OF PLATS. PAGE 21. IN KING COUNTY. WASHINGTON:
136
Exhibit A -1
Legal Descriptions of the Property
(continued)
PARCEL G:
THE NORTH 220 FEET OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN
VOLUME 48 OF PLATS. PAGE =1. IN KING COUNTY. WASHINGTON,
EXCEPT THE NORTH 13 FEET THEREOF;
PARCEL H:
LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN' 48 OF PLATS.
PAGE 21 IN KING COUNTY. WASHINGTON,
EXCEPT THE NORTH 220 FEET THEREOF,
AND EXCEPT THE SOUTH 84 FEET THEREOF.
PARCEL I:
THE SOUTH 84 FEET OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN
VOLUME 48 OF PLATS. PAGE =1. IN KING COUNTY. WASHINGTON,
PARCEL K:
THAT PORTION OF THE NORTH 10;.12 FEET OF LOT 13 LYING EASTERLY OF STATE ROAD NO I IN
BLOCK 2 OF ADAMS HOME TRACT,.). AS PER PLAT RECORDED IN VOLUME 11 OF PLATS. PAGE 31.
RECORDS OF KING COUNTY.
EXCEPT THOSE PORTIONS OF LOT 13 CONVEYED FOR ROAD PURPOSES TO KING COUNTY. STATE
OF WASHINGTON. RECORDED UNDER RECORDING No 7501150141 AND TO THE STATE OF
WASHINGTON RECORDED UNDER RECORDING NO 9603 RECORDS OF KING COUNTY.
SITUATE IN THE CITY OF T COUNTY OF KING. STATE OF WASHINGTON.
137
Exhibit A -1
Legal Descriptions of the Property
(continued)
PARCEL L:
THE WEST 60 FEET OF THE NORTH 83, FEET OF LOT 14 IN BLOCK 2 OF ADAMS HOME TRACTS. AS
PER PLAT RECORDED IN VOLUME 11 OF PLATS. PAGE 1. RECORDS OF KING COUNTY.
SITUATE IN THE CITY OF T COUNTY OF KING. STATE OF WASHINGTON.
PARCEL M:
THAT PORTION OF LOTS 1s :AND 14 IN BLOCK 2 OF ADAM HOME TRACTS. AS PER PLAT RECORDED
IN VOLUME I I OF PLATS. PAGE S1. DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 60 FEET EAST AND 159 FEET NORTH OF THE SOUTHWEST CORNER OF
TRACT 14,
THENCE IVESTERLY 100 FEET:
THENCE NORTHERLY 1 -6 FEET.
THENCE WESTERLY -5.51 FEET TO THE EASTERLY MARGIN OF PACIFIC HIGHW AY SOUTH:
THENCE NORTHEASTERLY ALONG SAID HIGHWAY 3.74 FEET,
THENCE EASTERLY 109.8 FEET:
THENCE NORTHERLY 1 -2.20 FEET:
THENCE EASTERLY 60 FEET.
THENCE SOUTHERLY 70.60 FEET TO POINT OF BEGINNING.
SITUATE IN THE COLTNTY OF KING. STATE OF INASHINGTON.
PARCEL N:
THAT PORTION OF LOTS 12. 13,AND 14 IN BLOCK 2 OF ADAMS HOME TRACTS. AS PER PLAT
RECORDED IN VOLUME 11 OF PLATS PAGE 1. DESCRIBED AS FOLLOWS:
BEGINNING 60 FEET EAST AND 125 FEET NORTH OF THE SOUTHIVEST CORNER OF TRACT 14.
THENCE IVESTERLY 198.14 FEET TO THE EASTERLY MARGIN OF PACIFIC' HIGHIVAY SOUTH,
THENCE NORTHEASTERLY ALONG SAID HIGHWAY 63,.02 FEET,
THENCE EASTERLY "5.51 FEET,
THENCE SOUTHERLY 26 FEET.
THENCE EASTERLY 100 FEET:
THENCE SOUTHERLY 34 FEET TO POINT OF BEGINNING.
SITUATE IN THE COUNTY OF KING. STATE OF IVASHINGTON.
1w;
Exhibit A -1
Legal Descriptions of the Property
(continued)
PARCEL 0:
LOT 14 IN BLOCK 2 OF ADAMS HOME TRACTS. AS PER PLAT RECORDED IN VOLUME 11 OF PLATS.
PAGE 31. RECORDS OF KING COUNTY
EXCEPT THE WEST 60 FEET THEREOF.
SITUATE IN THE CITY OF T COUNTY OF KING. STATE OF WASHINGTON.
PARCEL P:
THE WEST 28.6 FEET OF LOT 15 IN BLOCK OF ADAMS HOME TRACTS. AS PER PLAT RECORDED IN
VOLUME I I OF PLATS. PAGE 31. RECORDS OF KING COUNTY:
SITU; ATE IN THE CITY OF T COUNTY OF KING. STATE OF WASHINGTON.
PARCEL Q
LOT 15. BLOCK 2. ADAMS HOME TRACTS. ACCORDING TO THE PLAT THEREOF. RECORDED IN
VOLUME I I OF PLATS. PAGE 31. IN KING COUNTY.
EXCEPT THE WEST 29.5 FEET THEREOF:
AND EXCEPT THE SOUTH 11.5 FEET THEREOF,
AND EXCEPT THE EAST 3.0 FEET THEREOF.
139
.l
Exhibit B
Depiction of the Property
141
142
Exhibit C
Form of Statutory Warranty Deed
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
STATUTORY WARRANTY DEED
GRANTOR, City of Tukwila, a municipal corporation operating under the laws of the state of
Washington as a non charter code city, for and in consideration of
in hand paid, conveys and warrants to GRANTEE Tukwila Village
Development Associates, LLC, a Washington limited liability company, the following described
real estate, situated in the County of King, state of Washington:
See Exhibit "A" (Legal Description) attached hereto and incorporated herein by this
reference.
1. The Property is conveyed subject to the Permitted Exceptions set forth on Exhibit
"B" attached hereto and incorporated herein by this reference, the Disposition and Development
Agreement (the "DDA entered into by and between Grantor and Grantee dated as of the
day of 20 that certain Development Agreement (the "Development
Agreement approved by the Tukwila City Council pursuant to Ordinance No. and
the Conditions, Covenants and Restrictions recorded contemporaneously herewith.
2. The Grantor shall have the right, at its option, to reenter and take possession of the
Property, with all improvements thereon, and revest in the Grantor the estate conveyed to the
Grantee with respect to the Property, if the DDA is terminated pursuant to Section 9.4 of the
DDA prior to the time Grantee is entitled to issuance of an Estoppel Certificates of Completion.
Such right to reenter, repossess and revest shall be subordinate and subject to and be limited by
and shall not defeat, render invalid, or limit:
EM
a. Any mortgage, deed of trust or other security instrument permitted by the
b. Any rights or interest provided in the DDA for the protection of the holder
of such mortgages, deeds of trust or other security instruments; or
3. In the event there is a conflict between the provisions of this Statutory Warranty
Deed and the DDA, it is the intent of the Parties hereto and their successors in interest that the
DDA shall control.
143
IN WITNESS WHEREOF, the Grantor has executed this Statutory Warranty Deed
effective on this day of 20
GRANTOR:
City of Tukwila, a municipal corporation
Its:
STATE OF WASHINGTON)
)ss
COUNTY OF
On 20 before me, the undersigned, a Notary Public, personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the within
instrument, and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
145
.r.
Exhibit D
Phased Development Plan approved pursuant to Section 2.4
(to be inserted
147
p
Exhibit E
Street Vacation Agreement
(to be inserted
149
150
Exhibit F
Preliminary Site Plan
Prsed
Libra
Propefty
Line
151
Exhibit F -1
Approved Site Plan
(to be inserted
152
Exhibit G
Approved Development Agreement in conformance with Section 2.7 of this Agreement
(to be inserted
153
154
Exhibit H
CC &Rs approved pursuant to Section 2.8(E)
(to be inserted
155
156
Exhibit I
Temporary Construction Easement approved pursuant to Section 2.10
(to be inserted
157
KWAM
I "IC
Exhibit J
Construction Contract(s) approved pursuant to Section 2.14(A)
(to be inserted
159
ME
Exhibit K
Financing Plan approved pursuant to Section 2.15
(to be inserted
161
162
Exhibit L
KCLS Development Agreement
(to be inserted)
163
WE
Exhibit M
Police Resource Center Agreement
(to be inserted
165
M
Exhibit N
Statement of Purpose and Design for the Outdoor Plaza
(to be inserted
167
p
Exhibit O
Statement of Purpose and Design for the Commons
(to be inserted
169
170
Exhibit P
Performance and Payment Guarantee
(to be inserted
171
172
Exhibit Q
Residual Land Value Analysis
(to be inserted
173
174
Exhibit R
Form of DDA Memorandum
(to be inserted
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Tukwila
6200 Southcenter Blvd.
Tukwila, WA 98188
Attn: xx
(Space Above This Line For Recorder's Use)
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
(the "Memorandum is made as of 200, by and between the City of Tukwila, a
municipal corporation operating under the laws of the state of Washington as a non charter code
city (the "City and Tukwila Village Development Associates, LLC, a Washington limited
liability company (the "Developer This Memorandum confirms that the City and Developer
entered into that certain Disposition and Development Agreement, dated as of (the "DDA
The DDA sets forth certain rights and obligations of the City and Developer with respect to
conveyance, development, operation, maintenance and transfer of ownership interests in that
certain real property in Tukwila, WA, described in the attached Attachment No. 1 Such rights
and obligations as set forth in the DDA constitute covenants running with the land and are
binding upon the City, Developer, and their respective permitted successors in interest under the
DDA until such time as an Estoppel Certificate of Completion is issued by the City pursuant to
the DDA; provided that, certain covenants set forth in the DDA shall survive issuance of the
Estoppel Certificate of Completion.
This Memorandum is prepared for the purpose of recordation, and it in no way modifies
the provisions of the DDA. A complete copy of the DDA is on file with the Office of the
Tukwila City Clerk and was approved pursuant to Resolution No. of the Tukwila City
Council.
175
176
CITY
CITY OF TUKWILA, a municipal corporation
Its:
TUKWILA VILLAGE DEVELOPMENT
ASSOCIATES, LLC
in
Its:
177
E]WZ.l
INAW
STATE OF WASHINGTON
COUNTY OF
ss
On before me, personally appeared
personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s)
or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
STATE OF WASHINGTON
COUNTY OF
)ss
On before me, personally appeared
personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s)
or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
179
WE
Exhibit S
Legal Description of Benefited Property
(to be inserted
181
99.7w
IKOTA
Exhibit T
Parking Easement
(to be inserted
183
WE
Exhibit U
Legal Description of 41" Avenue to be vacated
(to be inserted
185
W .R.
ATTACHMENT NO. 1 TO MEMORANDUM OF DDA
Legal Description of the Property
PARCEL A:
THAT PORTION OF LOT 9 IN BLOCK I OF LADIES C'LARK'S GARDEN ADDITION TO THE CITY OF
SEATTLE. AS PER PLAT RECORDED IN VOLUME 15 OF PLATS. PAGE 12. RECORDS OF ZING COUNTY
AUDITOR, AND OF THE SOUTHEAST 1.4 OF THE SOUTHWEST 1 4 OF SECTION 15. TOtS'NSHIP 2
NORTH. RANGE 4 EAST W.M.. DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTH 812.6 FEET OF THE EAST 425.5 FEET OF
SAID SOUTHEAST L 4.
THENCE SOUTH 01 0 2 "730" NEST 200 FEET TO THE TRUE POINT OF BEGININING OF THIS
DESCRIPTION,
THENCE SOUTHWESTERLY TO A POINT ON THE EASTERLY LINE OF PACIFIC HTG14W AY SOUTH
(STATE ROAD NO 11). DISTANT SOUTHERLY 250.50 FEET (AS MEASURED ALONG SAID EASTERLY
LINE') FROM THE INTERSECTION OF SAID EASTERLY LINE WITH THE NORTH LINE OF THE SOUTH
512.6 FEET OF SAID SOUTHEAST 1i4:
THENCE SOUTHERLY ALONG SAID EASTERLY HIGHWAY LINE TO THE SOUTH LINE OF SAID LOT 9:
THENCE EASTERLY ALONG SAID SOUTH LINE TO THE SOL, CORNER THEREOF:
THENCE SOUTHERLY TO A POINT ON THE NORTHERLY LINE OF A TRACT CONVEYED TO ZIBA
LNTINGTON BY DEED RECORDED UNDER KING COUNTY RECORDING NO. 412
THENCE EASTERLY ALONG SAID NORTH LINE TO A POINT WHICH BEARS SOUTH 01 WEST
FROM THE TRUE POINT OF BEGINNING,
THENCE CONTINUING EAST TO A POINT 405.04 FEET WEST FROM THE EAST LINE OF SAID
SOUTHEAST l4 OF SOUTH SOUTHWEST 1i4:
THENCE NORTH PARALLEL WITH SAID EAST LINE 65 FEET:
THENCE NORTHWFSTERL.Y TO THE TRC "E POINT OF BEGINNING.
PARCEL A -1:
A NON EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER A STRIP OF LAND 2 €7 FEET IN
WIDTH THE SOUTHERLY LINE OF WHICH IS DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE NORTH LINE OF THE NORTH 395.1 FEET OF THE EAST 5 _5.5 FEET
OF THE SOUTH 812.6 FEET OF THE SOUTHEAST 14 OF THE SOUTHWEST 1/4 OF SECTION 15.
TOIA'NSHIP 23 NORTH. RANGE 4 EAST W.M.. 100 FEET DISTANT EAST OF THE NORTHWEST CORNER
OF SAID SUBDIVISION:
THENCE SOUTH 01 0 2 730" NEST 200 FEET TO THE TRUE POINT OF BEGININING OF THE SOUTHERLY
LINE OF THE EASEMENT HEREIN DESCRIBED:
THENCE SOUTHWESTERLY TO A POINT ON THE EASTERLY MARGIN OF PACIFIC HIGHWAY SOUTH
{STATE ROAD NO I) WHICH POINT IS 25 0.50 FEET SOUTHERLY AS MEASURED ALONG SAID
HIGHWAY FROM A POINT INT THE EAST MARGIN OF SAID HIGHWAY DISTANT 2- FEET. MORE OR
LESS. NEST OF THE WEST LINE OF THE SUBDIVISION. HEREIN DESCRIBED AND ON THE NORTH
LINE THEREOF AS THE SAME IS PRODUCED WESTERLY:
SITUATE IN THE CITY OF TUKWILA COUNTY OF KING. STATE OF WASHINGTON.
187
ATTACHMENT NO. I TO MEMORANDUM OF DDA
Legal Description of the Property
(continued)
PARCEL B:
THE NORTH 185.90 FEET OF THE SOUTH 43,09 FEET OF THE WEST 505 FEET OF THE EAST 1.0311 FEET
OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 15. TOWNSHIP 23
NORTH. RANGE 4 EAST. W.M.. LYING EASTERLY OF WASHINGTON STATE HIGHWAY NO. I
(PACIFIC HIGHWAY SOUTHJ,
SITUATE IN THE CITY OF TL KWILA COUNTY OF KING. STATE OF WASHINGTON.
PARCEL C:
LOTS I THROUGH 6 INCLUSIVE. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED
IN VOLUME 48 OF PLATS. PAGE 21 e IN KING CO WASHINGTON:
PARCEL D:
THE SOUTH 245 FEET OF THE WEST 50 FEET OF THE EAST 1031 FEET OF THE SOUTHEAST L/4 OF
THE SOUTHWEST L4 OF SECTION 15. TOWNSHIP 23, NORTH. RANGE 4 EAST W.M.. LYING EASTERLY
OF THE STATE HIGHWAY NO. 1:
EXCEPT THE SOUTH 20 FEET THEREOF CONVEYED TO KING COUNTY FOR ROAD BY INSTRUMENT
RECORDED UNDER RECORDING NO. 1158645.
AND EXCEPT THAT PORTION OF THE SOUTHEAST 14 OF THE SOUTHWEST 14 OF SECTION 15.
TOWNSHIP 23 NORTH. RANGE 4 EAST W.M.. LYING SOUTHWESTERLY OF THE ARC OF A CIRCLE
HAVING A RADIUS OF 12.5 FEET WHICH IS TANGENT TO THE NORTH RIGHT OF WAY LINE OF
SOUTH 144TH STREET AND THE EAST RIGHT OF WAY LINE OF PACIFIC' HIGHWAY SOUTH.
CONVEYED TO KING COUNTY BY DEED RECORDED UNDER RECORDING NO. 7409040396:
SITUATE IN THE CITY OF TUKWILA. COUNTY OF KING. STATE OF WASHINGTON.
PARCEL E:
LOT A OF SHORT PLAT NO. 90 -9 —SS. RECORDED UNDER RECORDING NO 9010240314. BEING A
PORTION OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 48
OF PLATS. PAGE 21. IN KING COUNTY. WASHINGTON:
PARCEL F:
LOT B OF SHORT PLAT NO. 90-9—SS. RECORDED UNDER RECORDING NO. 9010 3 14. BEING A
PORTION OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 48
OF PLATS. PAGE 21. IN KING COUNTY. WASHINGTON:
E m-m
ATTACHMENT NO. I TO MEMORANDUM OF DDA
Legal Description of the Property
(continued)
PARCEL G:
THE NORTH 220 FEET OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN
VOLUME 48 OF PLATS. PAGE =1. IN KING COUNTY. WASHINGTON,
EXCEPT THE NORTH 13 FEET THEREOF,
PARCEL H:
LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 48 OF PLATS.
PAGE 21 IN KING COUNTY. WASHINGTON,
EXCEPT THE NORTH 220 FEET THEREOF,
AND EXCEPT THE SOUTH 84 FEET THEREOF.
PARCEL I:
THE SOUTH 84 FEET OF LOT 7. CHERRY LANE. ACCORDING TO THE PLAT THEREOF RECORDED IN
VOLUME 48 OF PLATS. PAGE =1. IN KING COUNTY. WASHINGTON,
PARCEL K:
THAT PORTION OF THE NORTH 10 5 12 FEET OF LOT 13 LYING EASTERLY OF STATE ROAD NO I IN
BLOCK 2 OF ADAMS HOME TRACTS. AS PER PLAT RECORDED IN VOLUME I I OF PLATS. PAGE 31.
RECORDS OF KING COUNTY.
EXCEPT THOSE PORTIONS OF LOT 13 CONVEYED FOR ROAD PURPOSES TO KING COUNTY. STATE
OF WASHINGTON. RECORDED UNDER RECORDING NO "501150141 AND TO THE STATE OF
WASHINGTON RECORDED UNDER RECORDING NO 9603 RECORDS OF KING COUNTY.
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING. STATE OF WASHINGTON.
PARCEL L:
THE WEST 60 FEET OF THE NORTH 83 FEET OF LOT 14 IN BLOCK 2 OF ADAMS HOME TRACTS AS
PER PLAT RECORDED IN VOLUME I I OF PLATS. PAGE 1. RECORDS OF KING COUNTY.
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING. STATE OF WASHINGTON.
I We
ATTACHMENT NO. I TO MEMORANDUM OF DDA
Legal Description of the Property
(continued)
PARCEL M:
THAT PORTION OF LOTS 13 AND 14 IN BLOCK 2 OF ADAM HOME TRACTS. AS PER PLAT RECORDED
IN VOLUME I I OF PLATS. PAGE 31. DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 60 FEET EAST AND 159 FEET NORTH OF THE SOUTHWEST CORNER OF
TRACT 14,
THENCE IVESTERLY 100 FEET:
THENCE NORTHERLY 1 -6 FEET.
THENCE WESTERLY -5.5I FEET TO THE EASTERLY MARGIN OF PACIFIC HIGHWAY SOUTH.
THENCE NORTHEASTERLY ALONG SAID HIGHWAY 3.74 FEET,
THENCE EASTERLY 109.85 FEET:
THENCE NORTHERLY 1 -2.20 FEET:
THENCE EASTERLY 60 FEET.
THENCE SOUTHERLY 70.60 FEET TO POINT OF BEGINNING.
SITUATE IN THE COLTNTY OF KING. STATE OF WASHINGTON.
PARCEL N:
THAT PORTION OF LOTS 12. 13,AND 14 IN BLOCK 2 OF ADAMS HOME TRACTS. AS PER PLAT
RECORDED IN VOLUME I I OF PLATS PAGE 31. DESCRIBED AS FOLLOWS:
BEGINNING CO FEET EAST AND 125 FEET NORTH OF THE SOUTHIVEST CORNER OF TRACT 14�
THENCE IVESTERLY 198.14 FEET TO THE EASTERLY MARGIN OF PACIFIC HIGHIVAY SOUTH,
THENCE NORTHEASTERLY ALONG SAID HIGHWAY G 02 FEET,
THENCE EASTERLY 78.51 FEET,
THENCE SOUTHERLY 26 FEET.
THENCE EASTERLY 100 FEET.
THENCE SOUTHERLY 34 FEET TO POINT OF BEGINNING.
SITUATE IN THE COUNTY OF KING. STATE OF IVASHINGTON.
PARCEL 0:
LOT 14 IN BLOCK 2 OFADA-MS HOME TRACTS. AS PER PLAT RECORDED IN VOLUME 11 OF PLATS.
PAGE 31. RECORDS OF KING COUNTY.
EXCEPT THE WEST 60 FEET THEREOF.
SITUATE IN THE CITY OF TUKWILA, COUNTY OF KING. STATE OF WASHINGTON.
I•s]
ATTACHMENT NO. I TO MEMORANDUM OF DDA
Legal Description of the Property
(continued)
PARCEL P:
THE WEST 28.6 FEET OF LOT 15 IN BLOCK 2 OF ADAMS HOME TRACTS. AS PER PLAT RECORDED IN
VOLUME 11 OF PLATS. PAGE 51. RECORDS OF KING COUNTY:
SITUATE IN THE CITY OF TUKWILA. COUNTY OF KING. STATE OF �N`ASHINGTON.
PARCEL Q
LOT 15. BLOCK Z. ADAMS HOME TRACTS, ACCORDING TO THE PLAT THEREOF. RECORDED IN
VOLUME 11 OF PLATS. PAGE 51. IN KING COUNTY.
EXCEPT THE WEST 29.5 FEET THEREOF:
AND EXCEPT THE SOUTH 11.5 FEET THEREOF,
AND EXCEPT THE EAST 3.0 FEET THEREOF.
191
192
Upcoming Meetings Events
October /November 2012
22nd (Monday)
23rd (Tuesday)
24th (Wednesday)
25th (Thursday)
26th (Friday)
27th (Saturday)
Community
Utilities Cmte,
COPCAB,
Planning
Tukwila Int'l.
Affairs Parks
5:00 PM
6:30 PM
Commission,
Blvd. Action
Cmte,
(CR 91)
(CR 95)
6:30 PM
Crate's
5:00 PM
(Council
Trash Pickup Day
(CR 93)
Chambers)
0:00
9:00 10:00 .AAi
City Council
r
Executive
Session,
For location contact
6:30 PM
Rick
at rickN,forschler. ore
City Council
Committee of
Fall Recycling
the Whole Mtg.,
Collection Event
7:00 PM
OZY
(Council
Chambers).
C.O.W. to be
immediately
9:00 Any to 3:00 PM
followed by a
Tukwila Village site at
Special Meeting.
the corner of S. 144th
St. 41stAve. S.
Look under "City
Headlines' at
www.tukwilawa.gov
for additional
information.
29th (Monday)
30th (Tuesday)
31st (Wednesday)
1st (Thursday)
2nd (Friday)
3rd (Saturday)
A ym Nsrve*
Equity
Can't "I
Diversity
Commission,
5:15 PM
ED
6:00 8:00 PM
Tukwila Tree
Tukwila
and
Community
Environment
Center
Advisory
$2.00 /child.
Committee
Purchase dinner
Meeting
from Sister
6:00 8:00 PM
SUNDAY, Nov. 4
Cities to get
(CR 92 6300
(at 2:00 Any)
FREE admission
SouthcenterBlvd)
and early entry
Daylight Saving
at 5:45 PM.
Time Ends
Parents must
New Solid
accompany
Waste
their children.
Recycling
Concessions will
Service begins
be available.
today with
Waste
Management.
City Council Committee of Whole (C.O.W.) Meeting: 2nd 4th Mon., 7:00 PM, Council Chambers at City Hall.
City Council Regular Meeting: 1st 3rd Mon., 7:00 PM, Council Chambers at City Hall.
Community Affairs Parks Committee: 2nd 4th Mon., 5:00 PM, Conf Room #3 (A) Special Events Calendar. (B) Grant
agreement for• Duwamish Gardens project (C) Supplemental agreement for additional design ivorkfor Duwamish Gardens project.
COPCAB (Community Oriented Policing Citizens Adv. Board): 4th Wed., 6:30 PM, Conf Rm #5. Phi Huynh (206 -433- 7175).
Equity Diversity Commission: 1st Thurs., 5:15 PM, Conf. Room #3. Contact Joyce Trantina at 206 433 -1850.
Finance Safety Committee: 1st 3rd Tues., 5:15 PM, Conf. Room #3
Library Advisory Board: 3rd Wed., 7:00 PM, Foster Library. Contact Stephanie Gardner at 206 767 -2342.
Parks Commission: 3rd Wed., 5:30 PM, Senior Game Room at Community Center. Contact Dave Johnson at 206 -767 -2308.
Planning Commission /Board of Architectural Review: 4th Thurs., except 2nd Thursday in Nov. Dec., 6:30 PM,
Council Chambers at City Hall. Contact YVynetta Bivens at 206 431 -3670.
Transportation Committee: 1st 3rd Mon., 5:00 PM, Conf. Room
Tukwila Historical Society: 3rd Thurs., 7:00 Pm, Tukwila Heritage Cultural Center, 14475 59` Avenue S. Contact Pat Brodin at
206 433 -1861.
➢Tukwila Int'l. Blvd. Action Cmte: 2nd Tues., 7:00 PM, Tukwila Community Center. Contact Chief Villa at 206 -433 -1815.
Utilities Committee: 2nd 4th Tues., 5:00 PM, Conf. Room #1 (A) NPDES Program —Lower Duwamish Conveyance DOE Grant
application. (B) Water, Seaver, and Surface Water Rates for 2013. (C) Water and Seaver Comprehensive Plans. (D) Surface Water
Comprehensive Plan for Revieiv Chapters 1 -4.
Tentative Agenda Schedule
MONTH
MEETING 1-
MEETING 2
MEETING 3
MEETING 4
REGULAR
C.O.W.
REGULAR
C.O.W.
October
1
8
15
22
See agenda packet
cover sheet for this
week's agenda
(October 22, 2012
Committee of the Whole
Meeting).
November
5
13 (Tuesday)
19
26
Special Presentation:
Public Hearing:
Unfinished Business:
Swearing in of
Grant Agreement for
Tax Levy Legislation.
Commander Jon
Duwamish Gardens
Harrison.
project.
Special Issues:
Supplemental
Public Hearing:
Update on the self
Agreement for
g
funded plan.
additional design work
An ordinance
Grant Agreement for
for Duwamish Gardens
vacationg right of
Duwamish Gardens
project.
way within the City of
Project.
Tukwila dedicated for
street purposes
Supplemental
generally described as
Agreement for
portions of
additional design work
Southcenter Parkway
for Duwamish Gardens
between
project.
approximately South
180 Street and
existing City limits.
An ordinance for the
amended street
vacation for
Southcenter Parkway.
Unfinished Business:
An ordinance
vacationg right of
way within the City of
Tukwila dedicated for
street purposes
generally described as
portions of
Southcenter Parkway
between
approximately South
180 Street and
existing City limits.
An ordinance
vacating right -of -way
within the City of
Tukwila dedicated for
street purposes,
generally described as
portions of South
200 Street and Frager
Road.
Interlocal Agreemenr
with King County
Office of Historic
Preservation.
M