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Home My WebLink AboutCOW 2013-03-11 Item 4A - Public Hearing - Ordinance Approving and Authorizing 223 Andover Park East DevelopmentCOUNCIL AGENDA SYNOPSIS Initials Meeting Date Prepared by Ma is review Council review 02/25/13 DCS �� 149 Lt 03/11/13 DCS ❑ Resolution Mtg Date a ❑ Bid Award Mtg Date 03/18/13 DCS Mtg Date Mtg Date 03/18/13 �- SPONSOR ❑ Council ❑ HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ Pd7'R ❑ Police ❑ PW Mayor SPONSOR'S The owner of 223 Andover Park East (the former Circuit City property) has requested SUMMARY permission to construct buildings that would exceed the current limits for building height and residential units. The Council is being asked review the proposed DA at the 2/25/13 Committee of the Whole. If the Council has suggested changes on 2/25, they will be incorporated into the DA that will come back before the Council on 3/11/13 for a public hearing and further discussion. The Council will be asked to approve the DA on 3/18/13. ITEM INFORMATION ITEM No. 1 STAFF SPONSOR: DEREK SPECK - ORIGINAL AGENDA DATE: 2/ 25/13 AGENDA ITEM TITLE 223 Andover Park East Development Agreement (DA) CATEGORY /1 Discussion 02/25/13 ❑ Motion Mtg Date ❑ Resolution Mtg Date /1 Ordinance ❑ Bid Award Mtg Date .11 Public Hearing ❑ Other Mtg Date Mtg Date Mtg Date 03/18/13 Mtg Date 3/11/13 SPONSOR ❑ Council ❑ HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ Pd7'R ❑ Police ❑ PW Mayor SPONSOR'S The owner of 223 Andover Park East (the former Circuit City property) has requested SUMMARY permission to construct buildings that would exceed the current limits for building height and residential units. The Council is being asked review the proposed DA at the 2/25/13 Committee of the Whole. If the Council has suggested changes on 2/25, they will be incorporated into the DA that will come back before the Council on 3/11/13 for a public hearing and further discussion. The Council will be asked to approve the DA on 3/18/13. REVIEWED BY ❑ COW Mtg. ❑ Utilities Cmte DALE: 1/28/13 /1 CA &P Cmte ❑ F &S Cmte ❑ Transportation Cmte ❑ Parks Comm. ❑ Planning Comm. COMMITTEE CHAIR: E KB E RG ❑ Arts Comm. RECOMMENDATIONS: SPONSOR /ADMIN. COMMII"IEE Mayor's Office Unanimous Approval; Forward to Committee of the Whole COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $ $ Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 02/25/13 Forward to 3/11/13 Committee of the Whole meeting MTG. DATE ATTACHMENTS 02/25/13 Informational Memorandum dated 1/23/13 Letter from Omar Lee dated 1/17/13 Conceptual sketches from Mulvanny G2 architecture firm dated 1/23/13 Mass and scale sketches dated December 2012 Ordinance authorizing the Development Agreement Draft Development Agreement Minutes from the Community Affairs and Parks Committee meeting of 1/28/13 03/11/13 As above 1 2 TO: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Community Affairs and Parks Committee FROM: Derek Speck, Economic Development Administrator DATE: January 23, 2013 SUBJECT: 223 Andover Park East Proposed Development Agreement ISSUE The owner of 223 Andover Park East (the former Circuit City site) has asked the City for permission to construct a building that would exceed some current zoning limits at that site. BACKGROUND In 2010, Omar and Christine Lee, as the managing members of South Center WA LLC, purchased the property at 223 Andover Park East, which was the former Circuit City site. Since that time the owners have conducted preliminary feasibility analysis to redevelop the site. Their current concept is to construct a pair of attached, seventeen story buildings that would be almost 180 feet tall and would comprise approximately 170 hotel guest rooms and 280 residential units. Current zoning at this location does not allow residential units and has a height limit of 115 feet. The owners would now like to perform additional analysis to determine if this project is financially feasible. Before they invest the additional funds necessary for the more in -depth analysis, however, they would like approval of the residential use and additional height. They are not requesting any other approvals at this time. The project would still go through the City's regular design review and building permitting processes. DISCUSSION The key question for the City is whether we want to encourage this type of development in this location. This development would be a significant change for the area. The site is located in the core of the Tukwila Urban Center (TUC), which is between Westfield Southcenter and the Sounder commuter rail station. The TUC is also known to some people as Tukwila's Southcenter District. Bringing this many residents into the Southcenter District will be a significant step toward the area feeling more like a downtown for Tukwila and would have the effect of adding a new neighborhood and constituency. These would also be the tallest buildings in Tukwila. Staff believes this is an excellent project that will serve as a positive catalyst for the City's vision for future growth in the Southcenter District for the following reasons: 1. Fosters a Neighborhood: This project will be a catalyst to create a pedestrian friendly, walkable neighborhood in the core of Tukwila's Southcenter District. The people who 3 INFORMATIONAL MEMO Page 2 would choose to stay or live in this development would do so for the convenient access to the freeways but also for the convenience of walking to restaurants, entertainment, shopping, buses, and the commuter rail station. 2. Supports Existing Business: This project's guests and residents will support existing businesses. 3. Improves City Image: The project will be high quality and will improve the image of Tukwila's Southcenter District and identity for the entire City. 4. Encourages Residential Development: The project will stimulate additional development in the Southcenter District's core by serving as an example of the financial feasibility of residential development. 5. Encourages Apartments in Other Neighborhoods to Improve: The residential units will encourage the private sector to redevelop or renovate existing apartments in Tukwila by showing demand for higher quality units and rents that justify new construction. 6. Supports Comprehensive Plan: This site lies within the core of Tukwila's Urban Center (TUC). The City's Comprehensive Plan has a vision for the TUC to be a "great place for working, shopping, doing business, living, or playing." One of the noted future features is "a core area of high quality, walkable retail, entertainment, housing, public spaces, and employment..." Since this site is located in the TUC core and would add housing that is walkable to transit, retail, and entertainment, it supports the Comprehensive Plan. 7. Supports Housing Targets: The residential units will help the City meet its housing targets as required by the State Growth Management Act and as determined through King County's Countywide Planning Policies. 8. Supports Urban Center Designation: The TUC was designated as one of the region's urban centers, which are described in the Countywide Planning Policies as areas of concentrated employment and housing with direct service by high capacity transit. As such, the TUC earns preferential treatment for transit service and facility improvements. The housing and employment with this project supports the TUC's urban center designation. Southcenter Plan The City of Tukwila is preparing a plan for the Southcenter District. The Plan will present the community's vision for the evolution and continued growth of the area for the next 20 years and will include related changes to zoning and development standards and requirements. Although the Plan is still in development, it appears that the owners' development proposal is very likely to fit within the vision of the Plan. The Tukwila Planning Commission has completed their review of the most recent draft Southcenter Plan documents and approved the draft documents as presented at their October 25, 2012 meeting. Those documents support residential uses at this site but would set a height limit of 70 feet. However, it should be noted that the owners secured a major investor just prior to the Planning Commission's approval and so the height issues inherent in this project were not fully considered. At the Planning Commission's October 25, 2012 meeting, this project was W: \Derek \Omar Lee \Council Memo V2.doc 4 INFORMATIONAL MEMO Page 3 briefly discussed and the Commission indicated strong support. If the Council approves a development agreement allowing this height at this site, the draft Southcenter Plan documents can be revised to take this policy into account. Development Agreement In order to build to this height and allow residential uses at this site, the City would need to either change the zoning for the neighborhood or execute a development agreement for that specific property. Since the City is currently working on the Southcenter Plan it is more appropriate at this time to execute a development agreement for this site. A development agreement would require the Council to hold a public hearing and approve the agreement by ordinance. Staff recommends the basic terms of the agreement to be as follows: 1. The City would grant the current owners the right to construct buildings on the Circuit City parcel up to 180 feet for up to 50% of the lot area. The remainder of the lot would have height limits as determined by the zoning in effect at the time that a complete design review application is submitted. 2. The City would grant the owners the right to include up to 300 residential housing units. 3. The owners must submit a complete building permit application to the City before the end of 2015. Otherwise, these rights expire. Once a complete building permit application is accepted by the City, the vesting rights apply as under State law. 4. The residential housing units must be platted as condos and the water intrusion system must meet the state's laws as required for condos. This agreement would provide the owners almost three years to complete the financial feasibility, complete environmental analysis, secure hotel agreements, arrange financing, complete design review, and create construction documents for building permit submittal. This agreement would not change any other governing regulations. The rest of the zoning codes, building codes, and other development standards would be applied as for any other project. This agreement would not change any fees related to the project. In the future the owners may request the City waive, amend, or defer fees but that would be a future decision for the City Council. Staff is seeking feedback from the Committee on proposed terms. If the Committee is interested in this proposal, then staff will prepare a draft development agreement and ordinance for Council approval. Staff would like the Council to hold a public hearing at the Committee of the Whole meeting on March 11 and schedule a vote for the Regular meeting on March 18. Official notice for the public hearing would be published on February 25. The Committee could reconsider this item with the draft agreement and ordinance at its meeting on February 25 and then decide whether to forward the item to the full Council. However, staff recommends the Committee forward this item to the full Council's Committee of the Whole meeting on February 25. That would enable the full council to have extra time to review and discuss the draft agreement and ordinance. W: \Derek \Omar Lee \Council Memo V2.doc 5 INFORMATIONAL MEMO Page 4 FINANCIAL IMPACT There is no additional budget requested for this item. If this project gets developed as proposed, it would generate additional sales and property taxes and fees and additional requests for public service. RECOMMENDATION The Council is being asked to consider this item at the February 25, 2013 Committee of the Whole meeting, hold a public hearing at the March 11, 2013 Committee of the Whole meeting, and take action at the March 18, 2013 Regular Meeting. ATTACHMENTS Letter from Omar Lee dated January 17, 2013 Conceptual sketches from Mulvanny G2 dated January 23, 2013 Mass and scale sketches dated December 2012 W: \Derek \Omar Lee \Council Memo V2.doc 6 South Center WA, LLC 18230 East Valley Highway Suite 195 Washington 98032 Telephone (425) 251 -1600 Facsimile (425) 251 -1900 January 17, 2013 Mayor Haggerton, We have enjoyed working with you and your staff on the future development of our property located at 223 Andover Park East, which was formerly a Circuit City store. We purchased this property in October of 2010, because we like the location and believe in the future of Tukwila's Central Business District (CBD). At our first meeting in late 2010, you and your staff shared your vision for Tukwila's CBD. This meeting inspired us to seriously consider building a pair of seventeen -story towers consisting of apartments and a luxury hotel. To date, we have made a significant investment into evaluating the financial feasibility of this project. However, before taking the next step with the development, we must have certainty regarding the allowable building height. The current zoning height limit is 115 feet. This development project requires up to 180 feet excluding mechanical appendages. We respectfully submit that requesting the City grant us a variance in the form of a development agreement. Although the project will change as our plans develop due to lender /investor requirements and market demand, our current concept is to include 171 hotel rooms and 282 residential units. We will also include some retail and restaurant space on the ground floor. We believe this project is a great opportunity for the City of Tukwila, as it will set the stage for additional developments in the CBD. This project will create many jobs and attract more customers to local businesses. Furthermore, it will improve Tukwila's image by demonstrating its status as a desirable location for large development projects and pro - growth attitude. Our investors and we have a strong track record for developing quality projects (please see a copy of my resume attached hereto). We have developed many retail and commercial properties, office buildings, apartment complexes and shopping malls. Our nearest project is only a few miles away at the Great Wall Shopping Mall in Kent. We transformed what used to be an abandoned hardware store into a thriving Asian shopping mall that provides hundreds of jobs and 7 is now used as a central location for food, entertainment and shopping. We look forward to performing a similar transformation with this currently abandoned Circuit City building. We are very excited to get this project underway and are looking forward to working with you and your staff. Thank you for your support, time and consideration. Very Truly Yours, 8 mar . 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RAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, RELATING TO DEVELOPMENT AGREEMENTS AUTHORIZED PURSUANT TO CHAPTER 18.86 OF THE TUKWILA MUNICIPAL CODE; APPROVING AND AUTHORIZING THE PROPOSED 223 ANDOVER PARK EAST DEVELOPMENT AGREEMENT WITH SOUTH CENTER WA, LLC, A WASHINGTON LIMITED LIABILITY COMPANY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, RCW 36.70B.170, et seq. and Tukwila Municipal Code (TMC) Chapter 18.86 authorize development agreements between the City and persons having ownership or control of real property in order to establish development standards to govern and vest the development, use and mitigation of real properties; and WHEREAS, the City of Tukwila and South Center WA, LLC wish to enter into a Development Agreement for the 223 Andover Park East development, a copy of which is attached hereto as Exhibit A; and WHEREAS, as required pursuant to TMC Section 18.86.050, a public hearing was conducted on the 11th day of March 2013 to take public testimony regarding this Development Agreement, as proposed; and WHEREAS, the City Council, pursuant to City Ordinance No 23xx, approved this Development Agreement as proposed and authorized execution of this Development Agreement; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. The 223 Andover Park East Development Agreement by and between the City of Tukwila and South Center WA, LLC, a copy of which is attached hereto as Exhibit A, is hereby approved, and the Mayor is authorized and directed to execute said Development Agreement on behalf of the City of Tukwila. W: Word Processing \Ordinances\223 APE DA 2 -20 -13 SK:bjs Page 1 of 2 29 Section 2. 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 3. 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 4. 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 , 2013. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Exhibit A — Development Agreement W: Word Processing \Ordinances\223 APE DA 2 -20 -13 SK:bjs 30 Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Page 2 of 2 DEVELOPMENT AGREEMENT FOR THE 223 ANDOVER PARK EAST DEVELOPMENT THIS DEVELOPMENT AGREEMENT ( "Development Agreement ") is entered into as of the day of , 2013 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 South Center WA, LLC, a Washington limited liability company ( "Developer "), pursuant to the authority of RCW 36.708.170, et seq. and Chapter 18.86 of the Tukwila Municipal Code, and in consideration of the mutual benefits to be derived. The City and Developer are sometimes collectively referred to in this Development Agreement as the "Parties," and individually as a "Party." The Parties have entered into this Development Agreement with reference to the following facts: I. RECITALS WHEREAS, RCW 36.70B.170, et seq. and TMC Ch. 18.86 authorize development agreements between the City and persons having ownership or control of real property in order to establish development standards to govern and vest the development, use and mitigation of real properties; and WHEREAS, the site of this dev ° �� eat i� 9 � ted in the core of the Tukwila Urban Commuter Rail Station; and Center, between Westfield Southcenter Mar WHEREAS, the proposed development ? for the construction of a pair of attached, 17- story buildings which would be 180 feet in height and would comprise approximately 170 hotel guest rooms and 280 residential units; and WHEREAS, this site lies within the core of Tukwila's Urban Center (TUC). The Tukwila Urban Center Element o F the Comprehensive PIan outlines a vision for the TUC to be a "great place for working, shopping, doing business, living, or playing." One of the noted future features is "a core area of high quality, walkable retail, entertainment, housing, public spaces, and employment..." This site is located in the TUC core and would add housing that is walkable to transit, retail, and entertainment; thus, it supports the Comprehensive Plan; and WHEREAS, Tukwila's Urban Center is one of the region's 17 designated urban centers. The Countywide Planning Policies defines and envisions urban centers as areas of concentrated employment and housing with direct service by high - capacity transit. This proposed development would place concentrated employment and housing within the core of the Tukwila Urban Center and helps the City meet the intended purpose of the urban center; and WHEREAS, this development will be a catalyst to create a pedestrian friendly, walkable neighborhood in the core of Tukwila's Urban Center. People who would choose to stay or live in this development would do so for the convenient access to the freeways but also for the 1 31 convenience of walking to restaurants, entertainment, shopping, buses, and the commuter rail station; and WHEREAS, the development will be of high quality and will improve the image of Tukwila's Southcenter District and identity for the entire City; thereby having the potential to attract further high quality development; and WHEREAS, This development will stimulate additional residential development in the area by demonstrating the financial feasibility of this type of development and demonstrating demand for high quality housing stock; and WHEREAS, residential units will assist the City in meeting its housing targets as required by the Growth Management Act and as determined through King County's Countywide Planning Policies; and WHEREAS, the City has a goal to encourage ownership of housing as a method to foster stability in our population and schools. This project would be developed with the ability to readily convert to condominiums; and WHEREAS, as required pursuant to TMC 18.86.050, a public hearing was conducted on the 11th day of March, 2013 to take public testimony regarding this Development Agreement, as proposed; and WHEREAS, the City Council, pursuant to City Ordinance No. approved this Development Agreement as proposed and authorized execution of this Development Agreement; and WHEREAS, pursuant to TMC 18.86.080, the decision of the City Council to approve or reject Developer's request for a development agreement is a discretionary, legislative act; and WHEREAS, the Parties desire to enter into this Development Agreement upon the terms and conditions. as set forth herein, NOW, THEREFORE, in consideration of the mutual agreements contained herein, as well as other valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the City and Developer hereby agree as follows: II. AGREEMENT Section 1. Incorporation of Recitals. The Parties agree that the foregoing recitals are true and correct to the best of their knowledge and are incorporated by this reference as though fully set forth herein. Section 2. Proiect Description. This development involves the construction of two attached 17 -story buildings and related parking facilities. The Property is located within the 2 32 Tukwila. Urban Center. Exhibit A (legal description) and B (site map). Use of the Property will consist of approximately 170 hotel guest rooms and 280 residential units, as well as related parking facilities. Section 3. Statement of Authority and Intent. This Development Agreement is entered into pursuant to the authorization of RCW 36.70B.170 and TMC 18.86 and is intended and designed to vest this development to certain terms and conditions. Other than those terms and conditions specifically identified in this Agreement, the City's regulatory codes in effect at the time of a complete building permit application are accepted by the City shall apply. Section 4. Development Standards; Conditions. 4.1 Effective Period of this Agreement. This Development Agreement shall be valid until December 31, 2015. If Developer has not submitted, and the City has not accepted, a complete building permit application and building permits have not been secured for the development by that date, this Development Agreement shall be void and development may occur on the subject site pursuant to the then - adopted development regulations. 4.2 Application of Development Standards. RCW 36.70B.180(7)(d) and TMC 18.86.030 authorize the establishment of design standards by a development agreement. More specifically, TMC 18.86.030 provides that. a development agreement may allow development standards different from those otherwise imposed under the Tukwila Municipal Code in order to provide flexibility to achieve public benefits, respond to changing community needs, or encourage modifications that provide the functional equivalent or adequately achieve the purposes of otherwise applicable City standards. Pursuant thereto and during the Effective Period, the provisions of this Section 4 set forth the development standards that differ from or supplement those standards set forth in the City's development regulations. Accordingly, the following development standards shall apply to and govern and vest the development and use of the Project in lieu of any conflicting or different standards or requirements elsewhere in the Governing Regulations. 4.3 Additional Building Height. The maximum building height for 50 percent of the site shall be 180 feet. The remainder of the site would be limited in height by the zoning code in effect that the time of complete building permit application. This increase in building height is consistent with the goats of the Comprehensive Plan to encourage residential development within the Urban Center and is consistent with the City's vision of increased urban density. 4.4 Residential Units. The City will allow up to 300 residential housing units to be constructed on the Site. 4.5 Condominium Designation. In order to receive a Certificate of Occupancy the Developer must demonstrate that a Washington condominium declaration has been recorded for all residential units built, along with the survey map and plans, which show surveying data for the overall parcel, as well as details of buildings and the location of units. These documents must be in conformance with RCW 64.34 et seq. In addition, all applicable development plans 3 33 submitted to the City for the residential building must show that the Site's water intrusion system meets the Washington State standards for condominium development. Section 5. Major and Minor Amendments - Development Agreement. All proposed amendments to the Development Agreement shall be considered in accordance with this Section 5. 5.1 Process. The Mayor may approve Minor Amendments to the Development Agreement proposed by the City or Developer and mutually agreed to by the Parties. Such approval shall be in writing and the resulting amendment shall be incorporated into this Development Agreement as an amendment. The City Council may approve Major Amendments to the Development Agreement in accordance with the same process for approval of the Development Agreement. A Major Amendment to the Development Agreement approved by the City Council, and mutually agreed to by the Parties, shall be incorporated into this Development Agreement as an amendment pursuant to Section 21 hereof. 5.2 Minor Amendment Defined. A proposed amendment to the Development Agreement shall be considered a minor amendment if the proposed amendment does not modify the Governing Regulations or Section 4 (Development Standards; Conditions) hereof, does not materially modify the size or scope of the development, and does not modify the Vesting Period or term of this Development Agreement. 5.3 Major Amendment Defined. A proposed amendment to the Development Agreement shall be considered a Major Amendment if the proposed amendment does not constitute a Minor Amendment. 5.4 Determination. An application for a Minor Amendment shall be made to the Mayor. The application shall describe the proposed Minor Amendment in sufficient detail such that the Mayor can determine whether or not the proposal qualifies as a Minor Amendment. If the application does not provide sufficient information, the Mayor may request additional information from the Developer or reject the application. Upon receipt of sufficient information to determine if the proposal set forth in the application constitutes a Minor Amendment, the Mayor shall determine if the proposal constitutes a Minor Amendment. In the event that the Mayor determines that the proposed amendment is a Minor Amendment, the Minor Amendment may be administratively approved by the Mayor. In the event that the Mayor determines that the proposal constitutes a Major Amendment, the Developer shall submit the proposal in accordance with the same process for approval of a Development Agreement, withdraw its proposed amendment, or modify and re- submit its proposed amendment. The determination of the Mayor shall be a final decision. Section 6. Further Discretionary Actions. Developer acknowledges that the Development Agreement contemplates the exercise of further discretionary powers by the City. These powers include, but are not limited to, review of permit applications under SEPA. Nothing in this Development Agreement shall be construed to limit the authority or the obligation of the City to hold legally required public hearings, or to limit the discretion of the 4 34 City and any of its officers or officials in complying with or applying Governing Regulations and the development standards and conditions set forth in Section 4 hereof Section 7. Existing Land Use Fees and Impact Fees. Generally applicable land use fees and impact fees adopted by the City by resolution or ordinance as of the effective date of this Development Agreement may be increased by the City from time to time, and the new fees applied to subsequent permits and approvals for the Property. Section 8. Specific Performance. The Parties specifically agree that damages are not an adequate remedy for breach of this Development Agreement, and that the Parties are entitled to compel specific performance of all material terms of this Development Agreement by any Party in default hereof. Section 9. Termination. This Development Agreement shall expire and/or terminate on the earlier of the terminationlexpiration provisions set forth as follows: 9.1 This Development Agreement shall terminate upon the expiration of the Effective Period identified in Section 4 hereof. 9.2 Upon termination of this Development Agreement, the City shall record a notice of such termination in a form satisfactory to the, City Attorney that the Development Agreement has been terminated. Section 10. Assignment and Assumption, The Developer shall have the right to sell, assign or transfer this Development Agreement with all its rights, title and interests therein to any person, firm or corporation at any time during the term of this Development Agreement. Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Subject Property, at least 30 days in advance of such action. Section 11. Covenants Running With the Land; Recording. The conditions and covenants set forth in this Development Agreement and incorporated herein by the Exhibits shall run with the land and the benefits and burdens shall bind and inure to the benefit of the Parties. The Developer, and every purchaser, assignee or transferee of an interest in the Property, or any portion thereof, shall be obligated and bound by the terms and conditions of this Development Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect to the Property, or such portion thereof, sold, assigned or transferred to it. Any such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of a Developer contained in this Development. Agreement, as such duties and obligations pertain to the portion of the Property sold, assigned or transferred to it. Section 12. Amendment to Agreement; Effect of Agreement on Future Actions, This Development Agreement may be amended by mutual consent of all of the Parties, provided that any such amendment shall follow the process established for Major and Minor Amendments as set forth in this Development Agreement. 5 35 Section 13. Releases. Developer, and any subsequent owner, may be released from further obligations relating to the sold, assigned, or transferred portion of the Property, provided that the buyer, assignee or transferee expressly assumes the obligations under this Development Agreement as provided herein. Section 14. No Third -Party Beneficiary. This Development Agreement is made and entered into for the sole protection and benefit of the Parties hereto and their successors and assigns. No other person shall have any right of action based upon any provision of this Development Agreement. Section 15. Interpretation, The Parties intend this Development Agreement to be interpreted to the full extent authorized by law as an exercise of the City's authority to enter into development agreements pursuant to RCW 36.7013.170, et seq., and this Development Agreement shall be construed to exclude from the scope of this Development Agreement and to reserve to the City, only that police power authority which is prohibited by law from being subject to a mutual agreement with consideration. This Development Agreement has been reviewed and revised by legal counsel for both Parties, and no presumption or rule construing ambiguity against the drafter of the document shall apply to the interpretation or enforcement of this Development Agreement. �> Section 16. Notice. All communications, notices, and demands of any kind that a Party under this Development Agreement requires or desires to give to any other Party shall be in writing and either (i) delivered personally, (ii) sent by facsimile transmission with an additional copy mailed first class, or (iii) deposited in the US. mail, certified mail postage prepaid, return receipt requested, and addressed as follows 36 If to the Cit City of Tukwila 620() Southcenter Boulevard Tukwila, WA 98188 Attn: Mayor's Office With a copy to: City Attorney City of Tukwila Kenyon Disend, P1LLC 11 Front Street South Issaquah, Washington 98027-3820 General: 425-392-7090 Fax: 425- 392 -7071 6 If to Developer: South Center WA, LLC 18230 East Valley Highway, Suite 195 Kent, WA 98032 425-251-1600 Notice by hand delivery or facsimile shall be effective upon receipt. If deposited in the mail, notice shall be deemed delivered forty -eight (48) hours after deposited. Any Party at any time by notice to the other Party may designate a different address or person to which such notice or communication shall be given. Section 17. Excusable Delay (Force Maieure). In addition to specific provisions of this Development Agreement, and notwithstanding anything to the contrary in this Development Agreement, neither Party shall be in default in the performance or the failure of performance of its obligations under this Development 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 Party 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 Development 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 Party 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 Party claiming the extension. An extension of time for the duration of such event will be deemed granted if notice by the Party claiming such extension is sent to the other as to any of the above causes other than Permit Delays, within 10 days from the commencement of the cause and such extension of time is not rejected in writing by the other Party within 10 days of receipt of the notice (such extension of time is referred to herein as "Force Majeure "). Times for performance under this Development Agreement may also be extended in writing by the City and Developer in accordance with Section 11 herein. 7 37 Section 18. Indemnification. Except as otherwise specifically provided elsewhere in this Development Agreement and any Exhibits hereto, each Party shall protect, defend, indemnify and hold harmless the other Party and their officers, agents, and employees, or any of them, from and against any and all claims, actions, suits, liability, loss, costs, expenses, and damages of any nature whatsoever, which are caused by or result from any negligent act or omission of the Party's own officers, agents, and employees in performing services pursuant to this Development Agreement, In the event that any suit based upon such a claim, action, loss, or damage is brought against a Party, the Party whose negligent action or omissions gave rise to the claim shall defend the other Party at the indemnifying Party's sole cost and expense; and if final judgment be rendered against the other Party and its officers, agents, and employees or jointly the Parties and their respective officers, agents, and employees, the Parties whose actions or omissions gave rise to the claim shall satisfy the same; provided that, in the event of concurrent negligence, each Party shall indemnify and hold the other Parties harmless only to the extent of that Party's negligence. The indemnification to the City hereunder shall be for the benefit of the City as an entity, and not for members of the general public. Section 19. Applicable Law and Attorneys' Fees. This Development Agreement shall be construed and enforced in accordance with the laws of the State of Washington. If litigation is initiated to enforce the terms of this Development Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and costs from the non- prevailing Party. Venue for any action shall lie in King County Superior Court or the U.S. District Court for Western Washington. Section 20. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a Party, or successor or assign of Developer, to challenge this Development Agreement or any provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer and/or successor(s) or assign(s). In such event, Developer and/or such successor(s) or assign(s) shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including, but not limited to, attorneys' fees and expenses of litigation, and damages awarded to the prevailing party or parties in such litigation. The Developer and /or such successor(s) or assign(s) shall not settle any lawsuit without the consent of the City. The City shall act in good faith and shall not unreasonably withhold consent to settle. Section 21. Sev erability. If any phrase, provision or section of this Development Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Development Agreement is rendered invalid or unenforceable according to the terms of any statute of the State of Washington which became effective after the effective date of the ordinance adopting this Development Agreement, and either Party in good faith determines that such provision or provisions are material to its entering into this Development Agreement, that Party may elect to terminate this Development Agreement as to all of its obligations remaining unperformed. 8 38 Section 22. Authority. Each Party respectively represents and warrants that it has the power and authority, and is duly authorized, to enter into this Development Agreement on the terms and conditions herein stated, and to deliver and perform its obligations under this Development Agreement. Section 23. Exhibits and Appendices incorporated. Each Exhibit attached hereto or referenced is incorporated herein by such reference as if fully set forth herein. Section 24. Headings. The headings in this Development Agreement are inserted for reference only and shall not be construed to expand, limit or otherwise modify the terms and conditions of this Development Agreement. Section 25. Time of the Essence. Time is of the essence of this Development Agreement and of every provision hereof. Unless otherwise set forth in this Development Agreement, the reference to "days" shall mean calendar days. If any time for action occurs on a weekend or legal holiday in the State of Washington, then the time period shall be extended automatically to the next business day. Section 26. Entire Agreement. This Development Agreement, . and the DDA referenced herein, represents the entire agreement of the parties with respect to the subject matter hereof. There are no other agreements, oral or written, except as expressly set forth herein and this Development Agreement supersedes all previous agreements, oral or written. THIS SECTION INTENTIONALLY LEFT BLANK 9 39 AS OF THE DATE FIRST WRITTEN ABOVE, the Parties evidence their agreement to the Terms of this Development Agreement by signing below: Attes By: CITY: CITY OF TUKWILA, a municipal corporation By: Jim Haggerton Mayor Christy O'Flaherty, City Cle Approved As To Form: By: 40 Shelley Kerslake City Attvrze DEVELOPER: South Center WA, LLC By: 10 Omar Lee Manager STATE OF WASHINGTON ) )ss COUNTY OF On , 20, before me, the undersigned, a Notary Public, personally appeared JIM HAGGERTON, personally known to me (or proved to me on the basis of satisfactory evidence) as the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity as MAYOR OF THE CITY OF TUKWILA, and that by his signature on the instrument the entity upon behalf of which he acted, executed the instrument. STATE OF WAS COUNTY OF WITNESS my hand and official seal. Print Name: NOTARY PUBLIC in and for the State of Washington, residing at My commission expires: On , 0 before me, the undersigned, a Notary Public, personally appeared OMAR LEE, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, as MANAGER OF SOUTH CENTER WA, LLC, and that by his signature on the instrument the entity upon behalf of which he acted, executed the instrument. WITNESS my hand and official seal. Print Name: NOTARY PUBLIC in and for the State of Washington, residing at My commission expires: 11 41 Exhibit A Exhibit B EXHIBITS: Legal Description of Property Depiction of the Property 12 42 Exhibit A Legal Description of the Property ANDOVER INDUSTRIAL PARK # 2 PORTION OF TRACT 9 - BEGIN NW CORNER TH SELY ALONG CURVE TO LEFT RADIUS OF 573.69 FT CENTER BEARING N 86 -37- 32 E ARC DISTANCE OF 15.07 FT TO POB TH S 88 -25 -27 W 208.90 FT TH S 88 -25- 14 E 140.09 FT TH S 88 -25 -27 E 224.93 FT TAP ON E LINE OF TRACT 9 TH ALONG PERIMETER OF TRACT 9 S 01 -05 -08 W 273 FT TH N 88 -25 -27 W 505.43 FT TH N 14 -39 -30 W 184.47 FT TH ALONG CURVE TO RIGHT RADIUS OF 573.69 FT ARC DISTANCE OF 97.91 FT TO POB 13 43 SS 0031 10 Exhibit B Depiction of the Property a v, v 3032 6.58 BAKER BLV D «90.5 5' 0037 x201 32537 y» 90 4575; » «n« a«, Sr 859« Sr «e c 0075 Subject Propert 022320 7E. ANDOVER IN USTR |AL PARK NO. 3 14 52134 y 0080 148507 e 3.41 AC 0090 0,30 wa 008) 130 1 094-0026 9405 4- 30 ys 45 City of Tukwila Community Affairs and Parks Committee COMMUNITY AFFAIRS AND PARKS COMMITTEE Meeting Minutes January 28, 2013 — 5:15 p.m. PRESENT Councilmembers: De'Sean Quinn, Acting Chair; Kathy Hougardy (filling in for Allan Ekberg) and Kate Kruller Staff: Jack Pace, Bob Benedicto, Kathy Stetson, Derek Speck, Evie Boykan, Peggy McCarthy, David Cline and Kimberly Matej Guests: Omar Lee, South Center WA LLC; Christine Lee, South Center WA LLC; Jerry Quinn, MulvannyG2; Craig Davenport, MulvannyG2; Cho Suzumura, MulvannyG2 CALL TO ORDER: Acting Committee Chair Quinn called the meeting to order at 5:22 p.m. The order of agenda items was changed from that as outlined on the original agenda cover sheet in order to accommodate attendees. I. PRESENTATIONS No presentations. II. BUSINESS AGENDA A. Memorandum of Understanding: Joint Human Services Application and Funding Program Staff is seeking Council approval to enter into a Memorandum of Understanding (MOU) with 19 cities, including Tukwila, for the implementation of a joint human services application and funding program. This item is being brought forward to Council as it is comparable to, and largely considered an interlocal agreement, and all such agreements require Council approval. Staff explained that the MOU formalizes processes for application and online reporting for human services funding that has been utilized since 2010. Overall, the program creates administrative efficiency, reduces costs, and coordinates activities. The program will be managed by the City of Kent and will cost the City of Tukwila $500 annually. UNANIMOUS APPROVAL. FORWARD TO FEBRUARY 4 REGULAR MEETING CONSENT AGENDA. B. Proposed Development Agreement: 223 Andover Park East Staff is seeking Committee approval to forward a proposed development agreement to full Council for discussion. The agreement is regarding the property located at 223 Andover Park East (the former Circuit City site). A development agreement is being considered for this site because the proposed development would conflict with current zoning limits for the site. Specifically, the building height would be 180 feet, surpassing the current City limit of 115 feet in this location as well as incorporating 280 residential units into the development in an area that does not currently allow residential. The developers are interested in conducting additional studies, research, and analysis in order to determine the feasibility of the project. However, prior to investing substantial monies for such they are seeking to enter into a development agreement that would approve the residential dwellings and additional height. This agreement would not provide design approval. It would provide the developers with almost three years to complete the feasibility studies, additional analysis and create construction documents for building permits. The agreement would not change any other governing regulations. After discussion among Committee Members, staff and developer representatives, the Committee was in favor of this item moving forward to full Council for discussion. A draft development agreement will be submitted to full Council for review, after which a public hearing will he scheduled as appropriate. UNANIMOUS APPROVAL. FORWARD TO FEBRUARY 25 COW FOR DISCUSSION. 47