HomeMy WebLinkAbout09-100 - Contract - Segale Properties (La Pianta LLC) - Tukwila South Development AgreementAfter recording, return to:
CITY OF TUKWILA
Office of the City Clerk
6200 Southcenter Blvd.
Tukwila, WA 98188
(206) 433 -1800
20100726001100
TUKWILA CITY 0 ORD 3681.00
PAGE -001 OF 086
07/26/2010 14'22
KING COUNTY, WA
WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65.04)
DOCUMENT TITLE(S) (or transactions contained therein):
ORDINANCE 2233
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
N/A
Additional reference #s on page of document(s)
GRANTOR(S) (Last name first, then first name and initials)
Segale Properties LLC
GRANTEE(S) (Last name first, then first name and initials)
City of Tukwila
LEGAL DESCRIPTION (abbreviated: i.e., lot, block, plat or section, township,
range)
N/A
ASSESSOR'S PROPERTY TAX PARCEL /ACCOUNT NUMBERS
022204 -9008; 022204 -9011; 022204 -9015; 022204 -9033; 022204 -9037; 022204 -9040;
022204 -9043; 022204 -9057; 023900 -0352; 032204 -9006; 032204 -9047; 032204 -9056;
032204 9062; 032204 9090;032204- 9092; 032204 9093;032204- 9100;032204 -9106;
262304 -9065; 352304 -9008; 352304 -9009; 352304 -9013; 352304- 9015;352304 -9016;
352304 -9018; 352304 -9019; 352304 -9025; 352304 -9027; 352304 -9032; 352304 -9033;
352304-9036; 352304-9038; 352304-9040; 352304-9041; 352304-9045; 352304-9049;
352304 -9050; 352304 -9051; 352304 -9055; 352304 -9065; 352304 -9066; 352304 -9068;
352304 -9078; 352304 -9090; 352304 -9104; 352304 -9108; 352304 -9109; 352304 -9112;
352304 -9115; 352304 -9116; 352304 -9117; 352304 -9118; 352304 -9119; 352304 -9120;
352304 -9121; 352304 -9017; 0322049020; 032204 -9102
Assessor Tax not yet assigned
6. This Amendment shall be recorded against the Tukwila South Property as a
covenant running with the land.
7. Notice address for Segale shall be as follows:
If to Segale: Segale Properties LLC
P.O. Box 88028
Tukwila, Washington 98138-2028
Attn: Mr. Mark A. Segale
8. Except as amended herein, the terms and provisions of the Development
Agreement remain in full force and effect.
In Witness Whereof, the parties have caused this Amendment to be executed, effective on
the day and year set forth on the first page hereof.
CITY OF TUKWILA, a Washington municipal corporation
ME
Date:
Segale Properties LLC, a Washington limited liability corporation
By: Metro L V Id De ent, Inc.,
I
Its: Managep
MO.
A. SeRalv, Vide-President
Date:
After recording, return to:
CITY OF TUKWILA
Office of the City Clerk
6200 Southcenter Blvd.
Tukwila, WA 98188
(206) 433-1800
WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65.04)
DOCUMENT TITLE(S) (or transactions contained therein):
ORDINANCE 2233
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED:
N/A
Additional reference #s on page of document(s)
GRANTOR(S) (Last name first, then first name and initials)
Segale Properties LLC
GRANTEE(S) (Last name first, then first name and initials)
City of Tukwila
LEGAL DESCRIPTION (abbreviated: i.e., lot, block, plat or section, township,
range)
N/A
ASSESSOR'S PROPERTY TAX PARCEL /ACCOUNT NUMBERS
022204-9008; 022204-9011; 022204-9015; 022204-9043; 022204-9057; 032204-9006;
032204 -9090; 032204 -9106; 352304 -9013; 352304 -9015; 352304 -9017; 352304 -9032;
352304 -9040; 352304 -9041; 352304 -9045; 352304 -9049; 352304 -9050; 352304 -9068;
352304 -9118; 352304 -9115
Assessor Tax not yet assigned
Return Address:
City of Tukwila
City Clerks Office
6200 Southcenter Blvd
Tukwila. WA 98188
I
2 0090617000114
CITY OF TUKWIL ORD 167.00
PAGE001 OF 126
06/17/2009 08:48
KING COUNTY, WA
Please print or t information WASHINGTON STATE RECORDER'S Cover Sheet (Rcw 65.04)
Document Title(s) (or transactions contained therein): (all areas applicable to your document must be filled in)
1. Ordinance No ?33 2.
3. 4.
Reference Number(s) of Documents assigned or released:
Additional reference #'s on page of document
Grantor(s) Exactly as name(s) appear on document
1.
2.
Additional names on page of document.
Grantor(s) Exactly as name(s) appear on document
2.
Additional names on page of document.
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
Additional legal is on page of document.
Assessor's Property Tax Parcel /Account Number Assessor Tax not yet
assigned
The Auditor/Recorder will rely on the information provided on this form. The staff will not read the document
to verify the accuracy or completeness of the indexing information provided herein.
"I am signing below and paying an additional $50 recording fee (as provided in RCW 36.18.010 and
referred to as an emergency nonstandard document), because this document does not meet margin and
formatting requirements. Furthermore, I hereby understand that the recording process may cover up or
otherwise obscure some part of the text of the original document as a result of this request."
Signature of Requesting Party
Note to submitter: Do not sign above nor pay additional $50 fee if the document meets margin /formatting requirements)
ATTEST/ AUTHENTICATED:
al'a?
Christy O'Flafrty, CMC, City
APPROVED AS TO
Office of the Cit tor/iey
BY:
Attachment: Exhibit A Development Agreement
City of Tukwila
Washington
Ordinance No. 2233
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, ADOPTING BY REFERENCE A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF TUKWILA AND LA PIANTA LLC
FOR THE TUKWILA SOUTH DEVELOPMENT; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, the "Tukwila South Project" comprises approximately 512 acres of real
property, and La Pianta LLC owns or controls approximately 503 of those acres, which is
known as the "Tukwila South Property," generally located between the boundaries of
South 178th Street /South 180th Street on the north; South 204th Street on the south; Orillia
Road and Interstate 5 on the west; and the Green River on the east; and
WHEREAS, the Tukwila South Property is located within an Urban Growth Area and
is appropriate for urban development pursuant to the Growth Management Act and the
City's adopted Comprehensive Plan; and
WHEREAS, La Pianta intends to develop the Tukwila South Property consistent with
the Tukwila South Master Plan, which envisions the creation of a major new employment
and housing base on the Tukwila South Property; and
WHEREAS, the City Council accordingly desires to enter into a Development
Agreement with La Pianta LLC for the Tukwila South development; and
WHEREAS, a public hearing was held for this Development Agreement on May 18,
2009;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Development Agreement Adopted. The City of Tukwila hereby adopts the
"Development Agreement by and between the City of Tukwila and La Pianta LLC, for the
Tukwila South Development," a copy of which is attached hereto as "Exhibit A" and by this
reference fully incorporated herein.
Section 2. 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 3. 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
Special Meeting thereof this 8th day of June 2009.
W. \Word Processing \Ordinances \Tukwila South Development Agreement.doc
LV:ksn 06/05/2009
Jim Haggerton Mayor
Filed with the City Clerk:
Christy O'Flaherty
Passed by the City Council: L 5' i
Published: e LS f'. 9
Effective Date: (c= c
Ordinance Number: .3
Page 1 of 1
DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF TUKWILA 09 100
Council Approval 6/08/09
AND LA PIANTA LLC, FOR THE By Ordinance No. 2233
TUKWILA SOUTH DEVELOPMENT
THIS DEVELOPMENT AGREEMENT "Agreement is made and entered into this
10th day of June, 2009, by and between the CITY OF TUKWILA "CITY a non charter,
optional code Washington municipal corporation, and LA PIANTA LLC, a Washington limited
liability company "La Pianta
I. RECITALS
WHEREAS, the Washington State Legislature has authorized the execution of
development agreements between a local government and a person having ownership or control
of real property within its jurisdiction and between a local government and a person owning real
property outside its boundaries as part of a proposed annexation, pursuant to RCW 36.70B.170
through RCW 36.70B.210.
WHEREAS, the "Tukwila South Project" (hereinafter defined) comprises approximately
512 acres of real property, which site is shown on the vicinity map attached hereto as Exhibit 1,
and La Pianta owns or controls approximately 503 of those acres, which is known as the
"Tukwila South Property" and legally described in Exhibit 2. The Tukwila South Project is
generally located between the boundaries of South 178 Street/South 180 Street on the north;
South 204 Street on the south; Orillia Road and Interstate -5 on the west; and the Green River on
the east. Approximately 259 acres will be annexed to the City pursuant to this Agreement.
WHEREAS, the Tukwila South Property is located within an Urban Growth Area and is
appropriate for urban development pursuant to the Growth Management Act, and the City's
adopted Comprehensive Plan. The City will provide public services to the Tukwila South
Property, with the exception of power and water.
WHEREAS, La Pianta intends to develop the Tukwila South Property consistent with the
Tukwila South Master Plan "Master Plan"). The Master Plan envisions the creation of a major
new employment and housing base on the Tukwila South Property. The plan calls for
approximately ten million square feet of development that would be accommodated in a
combination of campus style research and office environments with a mix of other supporting
uses such as retail, residential, commercial, hotel and flex tech "Tukwila South Project The
Tukwila South Project will use the topographic and environmental constraints of the site to
define the limits of its development area, as shown on Exhibit 3 "Development Areas" and
"Non- Development Areas The Tukwila South Project includes the extension of Southcenter
Parkway in an alignment along the west edge of the valley floor "Southcenter Parkway
Project thus, functioning as the major transportation arterial through the site. The Tukwila
South Project will also contain an integrated, internal circulation system of streets, sidewalks and
pedestrian connections that link its various developments and will serve vehicles, cyclists and
pedestrians.
06/10/2009
-1- Exhibit A to Ordinance No. 2233
WHEREAS, La Pianta's goals for the Tukwila South Project are for a return on
investment, quality public infrastructure and service, certainty regarding the costs and flexibility
in how and when it develops. The City's goals in the development of the Tukwila South
Property include implementing its comprehensive plan, producing positive economic impacts to
the City and promoting environmental quality, mitigating financial risk for City funds, and
mitigation of project impacts.
WHEREAS, a development agreement must be approved by ordinance or resolution after
a public hearing.
WHEREAS, a public hearing for this Development Agreement was held on May 18,
2009 and the City Council approved this Development Agreement by Ordinance No. 2233 on
June 8, 2009.
WHEREAS, this Agreement constitutes a final land use action pursuant to RCW
36.70C.020 and is subject to review pursuant to RCW 36.70C.101 et seq.
NOW, THEREFORE, in consideration of the mutual promises set forth herein and the
long -term benefit to both the City and La Pianta, the parties hereby agree as follows:
1. Project Description.
The master planned development to be sited on the Tukwila South Property in
accordance with the terms and conditions of this Agreement as well as other applicable
development regulations is called the "Tukwila South Project." As used in this Agreement, the
term Tukwila South Project (or "Project means the proposed development of the Tukwila
South Property with a mix of uses, types and density of development, public and private
infrastructure and amenities consistent with the Tukwila South Master Plan and this Agreement.
2. Zoning Approvals.
II. AGREEMENT
2.1 Comprehensive Plan Designation. The Tukwila South Property is described
within the "Tukwila South" element of the City's 1995 Comprehensive Land Use Plan, as
amended "Comprehensive Plan This includes both the portion of the property currently
located within the City limits and the portion within the City's Potential Annexation Area
"PAA The City' s Comprehensive Plan provides for use of a master plan in the Tukwila
South district to guide and authorize development. La Pianta has submitted a Master Plan which
identifies its development proposal. The City's Comprehensive Plan contemplates an overlay
district for the property subject to the Tukwila South Master Plan.
06/10/2009 -2-
06/10/2009 -3-
2.2 Master Plan Approval. In accordance with the City's Comprehensive Plan and
TMC 18.40.075, the City approved the Tukwila South Master Plan on June 8, 2009. This Master
Plan covers approximately 512 contiguous acres and provides the vision and framework for the
creation of a "campus -type environment" focused on office and research facilities for emerging
technology industries, along with a mix of supporting retail, residential, commercial and flex
tech and hotel uses. The Master Plan is attached as Exhibit 4 to this Agreement and incorporated
by this reference. The first phase of the Master Plan implementation will involve grading the
entire site and installation of street and utility infrastructure. The approved Master Plan will
remain in effect for the Term of this Agreement. The Master Plan may not be amended or
superseded without the consent of both parties. In addition, any amendment to the master plan
must follow the process for such amendments that is in effect at the time of the request.
2.3 Sensitive Areas Overlay and Master Plan. The City Council approved the
designation of Tukwila South Property as a Sensitive Area Master Plan Overlay district on
June 8, 2009. La Pianta has submitted for City review a Sensitive Areas Master Plan "SAMP
for the Tukwila South Property. The Department of Ecology "DOE has issued a Section 401
water quality certification for the Tukwila South Property (Certification Order No. 2877, dated
November 7, 2005) (the "401 Certification Pursuant to TMC 18.45.160.G.8, the City will
review the SAMP to ensure it conforms to the conditions of the 401 Certification. If the SAMP
conforms to the conditions of the 401 Certification and TMC 18.45.160, the Director of
Community Development will take action to approve the proposed SAMP, pursuant to TMC
18.45.160.G, within 30 calendar days after the effective date of the annexation. The Sensitive
Areas Overlay and associated SAMP require mitigation of impacts to sensitive areas associated
with the Tukwila South Project through build -out.
2.4 Land Use Permit Process. The above referenced plans will be implemented in
phases by a series of Land Use Permit Process applications. These include but are not limited to,
applications for clearing and grading permits, tree permits, building permits, shoreline substantial
development permits, development permits, design review approvals, conditional use permits,
planned residential developments, and such other permits and approvals described in Chapter
18.104 of the TMC and necessary to authorize development and implementation of the Master
Plan approval. The Land Use Permit process requires the applicant to demonstrate consistency
with the requirements of the approved Master Plan, as implemented through the Tukwila South
Overlay District described in Section 2.5 below. All land use fees not specifically addressed in
this Agreement will be paid at the time of permit application or when otherwise due.
2.5 Application of Tukwila South Overlay District. Consistent with the
Comprehensive Plan, the City has amended the Tukwila Municipal Code "TMC to adopt the
Tukwila South Overlay District as Chapter 18.40, a copy of which is attached hereto as Exhibit
5. The purpose of the Tukwila South Overlay District is to encourage innovative uses, sites and
comprehensive planning of large land parcels through a master plan. The Tukwila South
Overlay contains the development regulations, including commercial design guidelines, that will
apply to the Tukwila South Property. The City agrees to apply the Tukwila South Overlay
District regulations to the portion of the Tukwila South Property within its PAA, after that area is
annexed to the City.
06/10/2009 -4-
2.6 Shoreline Man Amendment. The City, by ordinance, has pre- designated a portion
of the Tukwila South Project as "Tukwila Urban" under its Shoreline Master Program/Plan,
TMC Chapter 18.44 "SMP Upon completion of the annexation, the City shall, consistent
with this development regulation, amend its SMP map to include the Tukwila South Property as
urban. It is understood by the parties that this amendment is subject to the approval of the State
Department of Ecology. The parties agree that this map designation does not vest La Pianta to
any shoreline regulations under the SMP.
3. Allowable Development.
3.1 Maximum Allowable Development. Except as otherwise provided herein, the
maximum allowable development in the Development Area of the Tukwila South Project shall
be limited to a maximum development (including any mix of buildings and permitted uses) that
does not generate more than 10,166 Net New Trips (as defined below) from onsite development
and is limited to 10.3 million square feet of new building floor area "Allowable Development
For the purposes of determining Allowable Development, new "building floor area" shall include
new floor area generating vehicle trips, but shall not include floor area that does not generate
vehicle trips, such as parking areas and mechanical space.
3.2 Site Clearing. Grading and Coverage. Subject to the limitations of Section 3.5
below, (i) up to 100% of the Development Area, outside of sensitive area or shoreline buffers,
may be cleared and graded, and (ii) in the Development Area, up to 85% of the developable area
served by each stormwater facility may be covered with impervious surfaces.
3.3 Limit on Certain Uses. The following uses in the Tukwila South Project will be
subject to the restrictions set forth in this Section 3.3:
(a) Movie theaters with three (3) or fewer screens shall be a permitted use. Movie
theaters with more than three (3) screens shall be treated as special permission
uses (TMC 18.41.060).
(b) Regional malls shall be a prohibited use. For purposes of this Agreement,
"Regional Mall" shall mean an independent, retail complex of at least 500,000
square feet of building floor area (as that term is defined in Section 3.1 above)
containing privately -owned indoor and outdoor walkways for shoppers traveling
to and from multiple retail uses. The square footage limitation under this
definition shall be applied on a project -by- project basis, and shall not be applied
to the Tukwila South Property as a whole.
(c) No warehouse uses will be allowed in the Tukwila South Project beyond what is
in existence at the time of execution of this Agreement, and redevelopment of
existing warehouses to warehouse use will not be permitted. Notwithstanding the
foregoing, with respect to existing warehouse uses and buildings, La Pianta shall
be entitled to undertake normal maintenance and repair, reconstruction in the
06/10/2009 -5-
event of casualty and condemnation, modifications necessary to meet current code
requirements, and for each building, a one -time "minor expansion" (not exceeding
5% of building floor area). The City shall require special permission uses (TMC
18.41.060). approval for such "minor expansions
3.4 Expansion Areas. Several parcels that are not currently owned by La Pianta are
located within the Project boundaries and are more particularly described and depicted in Exhibit
6. These parcels were included within the 512 acres analyzed in the Tukwila South EIS
(hereinafter defined). The Tukwila South Overlay District regulations shall apply to these
parcels if they are acquired and developed by La Pianta during the Term of this Agreement.
Another parcel owned by La Pianta, hereinafter referred to as the "Arnold Parcel also described
in Exhibit 6, was not studied as part of the Tukwila South EIS. La Pianta and the City
acknowledge that the Tukwila South Overlay District regulations shall apply to the Arnold
Parcel, but that additional environmental review may be necessary when La Pianta elects to
develop the Arnold Parcel. In the event that La Pianta desires to develop an Expansion Area
under the Development Agreement, La Pianta shall provide (i) written notice to the City, (ii)
evidence of its ownership or control of the Expansion Area(s) in question or the agreement by
La Pianta and the owner(s) of the Expansion Area in question to subject such area to the terms of
the Agreement, and (iii) evidence that no further additional environmental analysis is required
beyond that covered in the Tukwila South EIS for the development proposed.
3.5 Floodplain Development Review. Development in any areas of the Tukwila
South Property lying within a 100 -year floodplain, as designated by the Federal Emergency
Management Agency "FEMA shall be subject: (i) to review by the City and/or agencies with
jurisdiction to ensure that such development will not result in a "take" of any endangered species
in violation of federal law; and (ii) to all laws and regulations governing development within
such FEMA- designated 100 -year floodplains that are in effect at the time of a complete
development application (the "Floodplain Regulations
The clearing and grading permit for initial, overall site development for the Tukwila
South Project "Clearing and Grading Permit shall be executed in accordance with the
Floodplain Regulations, as applicable. Upon completion of the clearing and grading, subject to
the Clearing and Grading Permit, and the Levee Modification, as defined herein, La Pianta will
prepare for review by the City a Letter of Map Revision "LOMR The City shall forward the
LOMR to FEMA for review and when the LOMR is approved by FEMA, future building
applications will not be subject to the Floodplain Regulations.
4. Parties Obligations Under this Agreement.
This Agreement establishes certain roles and responsibilities for the development of the
Tukwila South Project, including but not limited to City commitments for partial funding and
construction of certain public infrastructure improvements benefiting the Tukwila South Project,
as well as the community at large, and La Pianta commitments to participate in the funding of
certain public improvements, to fund all private aspects of the development and to develop the
Tukwila South Property consistent with all applicable land use policies and regulations.
4.1 Annexation. Upon execution of this Agreement, La Pianta shall submit a signed
60% petition for annexation to the City of Tukwila for the portion of the Tukwila South Property
located within the PAA. The City will take all steps necessary to consider the annexation in a
timely manner after submittal of a signed 60% petition. In the event that La Pianta fails to
submit the 60% petition, the City may terminate this Agreement upon giving 14 days notice to
La Pianta. Should the annexation fail to occur by December 31, 2009 (the "Outside Annexation
Date this Agreement will terminate and all obligations herein will be extinguished. The
Outside Annexation Date shall automatically be extended for the period of any review of the
annexation by the Boundary Review Board, if jurisdiction is taken, and/or the courts. For
purposes of this Agreement, the "effective date of the annexation" hereunder shall be the date on
which the ordinance of annexation of the Tukwila South Property adopted by the City Council is
effective, final and unappealable.
4.2 Levee Modification and 404 Permit Approval. The City has submitted to the U.S.
Army Corps of Engineers, Seattle District "ACOE an application for modification of the levee
system in the Tukwila South Property which will, among other things, permit the removal of the
existing cross -levee structure at South 196 Street (the "Levee Modification La Pianta has
submitted to ACOE an application for a Section 404 permit under the Clean Water Act, to permit
the grading, filling and development of the Tukwila South Property as contemplated in the
Tukwila South Master Plan (the "404 Permit The parties will take all reasonable steps
necessary to secure from the ACOE the issuance of the Levee Modification and the 404 Permit
in a timely manner If either the Levee Modification or the 404 Permit has not been issued by
the Corps, and all appeal periods having passed with no appeals filed, by June 30, 2010 (the
"Outside Approval Date this Agreement will terminate and all obligations herein will be
extinguished. The Outside Approval Date may be extended by mutual agreement of the parties.
As provided herein, the parties will place in the Escrow (as established under Section 4.8.4.6
below) all documents, payments and other undertakings required to be delivered prior to the
Outside Approval Date. Upon approval of the Levee Modification and issuance of the 404
Permit, the Escrow Agent (hereinafter defined) shall be instructed to release, deliver or record, as
appropriate, all sums and documents held in escrow unless expressly provided otherwise in this
Agreement.
The City shall incur no costs for the maintenance of the new levee constructed as a result
of the Levee Modification. Failure of La Pianta to secure maintenance for the levee prior to
issuance of the Clearing and Grading Permit, shall result in denial of said permit.
4.3 Southcenter Parkway Proiect.
4.3.1 Southcenter Parkway Proiect Design. The City shall, using grant funds
secured for this Project, promptly complete the final design of the extension and relocation of
Southcenter Parkway from S. 180 Street to S. 200 Street "Southcenter Parkway Project" or
"SCP Project including necessary sewer, water, stormwater, natural gas, power and
telecommunications utility system improvements associated with this roadway improvement
project (the "Final Design Plans as documented in the 90% drawings completed by David
06/10/2009 -6-
Evans and Associates dated September 2005 (the "90% drawings and on file with the City.
The City may use up to $300,000 of the grant funds identified in Section 4.3.7 below for the
purpose of completing the Final Design Plans; any costs to complete the Final Design Plans in
excess of $300,000 shall be borne by the City. The Southcenter Parkway Project will provide
additional access to the Tukwila Urban Center and the Tukwila South Project. Except as set
forth in this subsection, the Final Design Plans shall not materially deviate from the 90%
drawings without the written consent of both parties. For the purposes of this Section, the Final
Design Plans shall be deemed to "materially deviate" from the 90% drawings if the Final Design
Plans include modifications to the 90% drawings that will result in a construction cost increase in
the aggregate of more than $250,000. The Southcenter Parkway Project will not include the
relocated South 178 Street improvements or the bike lanes as specified on the 90% drawings.
4.3.2 Land Dedication for Southcenter Parkway Project. La Pianta agrees to
dedicate, at no cost to the City, the land necessary to construct the Southcenter Parkway as
depicted in Exhibit 7. La Pianta waives all credit for this dedication of land against any traffic
impact fee assessed for the Project. In addition, La Pianta agrees to waive any claim for just
compensation pursuant to RCW 8.12 and any claims under the Washington and Federal
Constitutions in connection with the dedication of this right -of -way. La Pianta shall deliver a
signed but undated statutory warranty deed (free of all encumbrances and easements
unacceptable to the City) for this land and a signed and dated right of way easement
encumbering the same property described in the deed, in commercially reasonable form
acceptable to the City, to the Escrow no later than 5 days after the effective date of the
annexation specified in Section 4.1. Upon receipt, the City shall record the right of way
easement and retain the undated deed in Escrow until the City is prepared to vacate Frager
Road/Southcenter Parkway as provided in Section 4.10. Simultaneously with the transfer of the
properties described in Section 4.10, the City shall cause the deed delivered by La Pianta into
Escrow to be dated and recorded. If the deed and the right of way easement are not delivered in
the time specified by this Section, this Agreement will terminate. For the purpose of the real
estate excise tax, the City acknowledges that the transfer of property pursuant to this section shall
be for a "public use in connection with the development of real property" as provided under
WAC 458 -61A -205.
4.3.3. Planning and Design Work. La Pianta has provided the following
planning and design services in connection with the Southcenter Parkway Project:
(i) Geotechnical reports and information;
(ii) Survey, topographical maps;
(iii) As -built survey of utilities;
(iv) Legal description of final right -of -way;
(v) Plans and designs for wetland and stream mitigation, including plans for
land, cost of restoration, permitting, on -going maintenance and
monitoring;
(vi) 30% design work; and
(vii) Plans and designs for temporary stormwater detention and treatment for
Southcenter Parkway Project during construction, and permanent
06/10/2009 -7-
06/10/2009 -8-
stormwater detention and water quality facilities for Southcenter Parkway
and South 200 Street as more particularly described in Sections 4.3.5 and
5.4.
4.3.4 Highline /PSE /Southcenter Parkway Costs. La Pianta shall obtain power
and gas utility service for the Tukwila South Project from Puget Sound Energy "PSE and
water service from the Highline Water District "Highline La Pianta shall pay for all costs
related to the design and construction of Highline Water systems and PSE systems for the
Tukwila South Project (not including costs for which PSE and Highline are responsible for
undergrounding and relocation of existing systems, as described herein). The City shall cause
Highline to relocate its existing water system facilities pursuant to its franchise agreement with
the City. The City shall cause PSE to relocate and underground existing power and gas system
facilities pursuant to its franchise agreement with the City and applicable tariff. Any costs or
fees assessed to the City by those utilities for invoking either of the franchise terms discussed in
this Section shall be paid to the City by La Pianta within 30 days of invoice.
4.3.4.1 Highline Water. The City will include the work for the relocation
and upgrade of the Highline Water system utilities in its SCP Project bid as a bid additive (the
"Highline Work The Highline Work will be accounted for and invoiced separately from the
SCP Project. The City shall enter into an agreement with Highline pursuant to which Highline
shall reimburse the City for the cost of the Highline Work. La Pianta shall enter into a separate
agreement with Highline pursuant to which La Pianta shall reimburse Highline for La Pianta's
portion of the costs of the Highline Work. Pursuant to Section 4.8.4 of this Agreement, La
Pianta shall provide the City with a letter of credit in the amount of 110% of La Pianta's portion
of the estimated cost of the Highline Work as security for payment of those associated costs. In
the event that Highline fails to reimburse the City, pursuant to the terms of the agreement
between the City and Highline, for La Pianta's portion of the cost of the Highline Work, the City
may draw upon the letter of credit as provided in Section 4.8.4. In addition, La Pianta shall
provide the City with a copy of La Pianta's agreement with Highline and evidence of timely
payments to Highline thereunder.
4.3.4.2 PSE. The City will exclude the work for the PSE power and gas
utilities from the SCP Project bid. PSE will provide the specifications for such power and gas
utility work to serve the Tukwila South Project (the "PSE Work which will be constructed in
coordination with the SCP Project. The PSE Work will be conducted by third parties on behalf
of PSE. The bid documents and the final construction contract for the SCP Project shall include
a "cooperation clause," requiring cooperation and communication between the City (and the
City's contractor on the SCP Project), La Pianta LLC and PSE or PSE's designees and
contractors undertaking the PSE Work. La Pianta shall indemnify and defend the City against
delay claims made by the City's contractor for the SCP Project because of the PSE Work. La
Pianta shall pay (i) PSE directly for La Pianta's share of the cost of the PSE Work in accordance
with PSE Tariff Schedule 85, and (ii) the City directly for the City's share of the cost of the PSE
Work in accordance with PSE Tariff Schedule 74. La Pianta's obligation under this Section
4.3.4.2 shall be secured by an irrevocable standby letter of credit in the amount of 110% of the
City's estimated share of the PSE Work, naming the City as beneficiary as provided in Section
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4.8.4. In the event that La Pianta fails to pay the amount due under this Section 4.3.4.2 within
thirty (30) days of demand by the City, the City may draw upon the letter of credit as provided in
Section 4.8.4.
4.3.5 Southcenter Parkway Storm Drainage. La Pianta shall provide, at no cost
to the City, sufficient capacity for all drainage from the Southcenter Parkway Project within the
regional storm drainage facilities more particularly described in Section 5.4 to be constructed by
La Pianta as part of the permanent stormwater drainage facilities for the Tukwila South Project.
La Pianta shall provide easements granting the City the right to discharge stormwater from
Southcenter Parkway and South 200 Street to La Pianta's regional stormwater facilities. La
Pianta covenants that the regional stormwater facilities will be sized to accommodate stormwater
run -off from the Tukwila South Project, including Southcenter Parkway, South 200 Street and
all other development proposed as part of the Tukwila South Project. The stormwater system
includes a "South Facility" and a "North Facility both as defined in Section 5.4 below.
4.3.5.1 South Facility. Easements and stormwater facilities for the South
Facility may, at the discretion of La Pianta, be temporary, provided however, that except as
provided in Section 4.3.5.3 below, La Pianta shall: (i) provide permanent, no -cost easement and
stormwater facilities in the South Facility prior to the issuance of the first construction permit for
a new building development in the Tukwila South Project; and (ii) ensure that the South Facility
will be operational and ready for use prior to the completion of the Southcenter Parkway Project.
4.3.5.2 North Facility. At La Pianta's option, stormwater to be treated in
the North Facility may be piped to the South Facility for treatment and discharge on an interim
basis. The development of the North Facility shall occur prior to the date on which the capacity
of the South Facility is fully utilized.
4.3.5.3 WSDOT/FHWA Approval. Immediately upon execution of this
Agreement, the City shall amend its submissions to WSDOT /FHWA to describe the storm
drainage plan for the Southcenter Parkway Project that is more particularly set forth in Section
5.4, and shall request approval for such change. La Pianta shall cooperate in good faith to
provide all necessary documentation reasonably necessary to secure WSDOT's approval of such
stormwater plan for Southcenter Parkway. In the event that the stormwater plan for Southcenter
Parkway described in Section 5.4 is not approved by WSDOT /FHWA, the City shall construct
the stormwater ponds described in its original proposal to WSDOT, for treating and detaining
stormwater runoff from Southcenter Parkway and South 200 Street. In such case, La Pianta
shall, within thirty (30) days of the City's written demand therefore, grant at no cost to the City
temporary easements necessary to construct the stormwater ponds needed to accommodate the
stormwater run -off from Southcenter Parkway and South 200 Street that was described in the
City's original SCP Project proposal to WSDOT. The easement agreements shall provide that at
such time La Pianta completes the South Facility and it is available to accommodate the run -off
from Southcenter Parkway and South 200 Street, the temporary easements shall terminate and
shall be replaced by permanent easements to the South Facility.
4.3.6 Southcenter Parkway Bidding /Construction. Upon the issuance of the 404
Permit contemplated in Section 4.2, the City shall be responsible for the bidding and construction
of Southcenter Parkway "Southcenter Parkway Project The City shall request formal bids
from contractors for the construction of the Southcenter Parkway Project as soon as all necessary
approvals and permits have been received. This Agreement is premised on the assumption that
the project costs for the Southcenter Parkway Project (including the up to $300,000 allocated to
completion of the Final Design Plans under Section 4.3.1 above) will not exceed available
financing in the amount of $26,800,928 "Construction Cost Cap The total project cost of the
Southcenter Parkway Project "Total Project Cost shall be the lowest responsible bid received
by the City, and shall allow and include up to a 15% construction management allowance and a
15% project contingency allowance. For the purpose of determining whether the Total Project
Cost exceeds the Construction Cost Cap, the Total Project Cost shall not include the costs for the
Highline Work and PSE Work (which costs shall be paid by La Pianta and the utilities as
provided in Section 4.2.4), and shall not include the City's costs for its employees in connection
with or related to the management and/or supervision of the construction of the Southcenter
Parkway Project, which costs the City shall bear. The City shall use commercially reasonable
efforts to minimize the Total Project Cost of the Southcenter Parkway Project. For purposes of
this Agreement, "commercially reasonable efforts" means the actions normally taken to reduce
costs for any City project.
If the Total Project Cost exceeds the Construction Cost Cap, the City shall have
no obligation to construct the Southcenter Parkway Project unless La Pianta gives written notice
as provided herein to the City that La Pianta shall pay such difference "Project Cost
Differential In such case, the City shall send written notice to La Pianta of the Project Cost
Differential, and La Pianta shall, within 15 days of receipt thereof, give the City written notice of
whether La Pianta elects to pay the Project Cost Differential. If La Pianta elects to pay the
Project Cost Differential, then La Pianta must provide the City cash security for such amount
"Cash Security also within the 15 days. Provided that La Pianta timely provides the City such
notice and Cash Security, the City shall promptly execute a construction contract for the
Southcenter Parkway Project. If La Pianta does not timely provide the City with the notice
and/or the cash security, the City shall reject all bids and this Agreement shall immediately
terminate without further action required by any party.
If La Pianta pays the Project Cost Differential, the City agrees to utilize the funds
within the Construction Cost Cap prior to utilizing the Cash Security. Should any Cash Security
remain after completion of the Southcenter Parkway Project, said remainder shall be refunded to
La Pianta within thirty (30) days after final acceptance of the Southcenter Parkway Project. In
the event of cost overruns in excess of the Total Project Cost (including Cash Security for the
Project Cost Differential), the City shall promptly notify La Pianta, and La Pianta shall provide
additional Cash Security equal to or greater than the amount of any overruns within ten (10) days
of invoice. Upon completion of the Southcenter Parkway Project, if state or federal auditors
identify any charges that fall outside the scope of work, excluding mutually agreeable change
orders and agreed to modifications to the scope of work, for the Southcenter Parkway Project, La
Pianta shall be entitled to a refund for those sums identified within thirty (30) days after
completion of said audit(s).
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4.3.7 Southcenter Parkway Financing. The City shall use $18,530,345.00 in
state and federal grant money secured for the cost of design and construction of Southcenter
Parkway Project. The City shall also utilize limited tax general obligation debt "General
Obligation Bonds or other financing mechanisms to finance up to $8,250,000.00 dollars toward
the construction of the Southcenter Parkway Project. In the event that any state or federal grant
funds are withdrawn from the Southcenter Parkway Project prior to the Outside Approval Date
(as defined in Section 4.2), the parties will use best efforts to seek replacement grant funds
"Replacement Funds If the parties are unable to secure commitments for such Replacement
Funds by December 31, 2010, then this Agreement will immediately terminate, all obligations
hereunder will be extinguished, and the Escrow shall be terminated.
In the event that any additional state or federal grant funds, debt or credit
enhancements, including but not limited to interest rate reductions, tax credits or
reimbursements, and which are not Replacement Funds, are provided to the Southcenter Parkway
Project, the parties shall equally share the economic benefit of such additional measures.
4.3.8 Closure of Southcenter Parkway and Frager Road. The City shall close
the existing Southcenter Parkway and Frager Road from South 180 Street to South 200 Street
during the construction phase of the Southcenter Parkway Project, except for local traffic, and
agrees that La Pianta can use the roadway for project purposes, without compensation to the City
or the need for issuance of right -of -way permits, provided that La Pianta maintains the roadway
during that period of time and La Pianta's use does not unreasonably interfere with use for local
traffic. La Pianta shall ensure that local traffic may access their properties from the north access
point to Tukwila South. The City acknowledges that a certain portion of Frager Road and the
existing stormwater pond near South 200 Street shall be permanently closed and removed upon
issuance of a grading permit to La Pianta for the purpose of constructing the "Green River Off
Channel Habitat Area." Provided that WSDOT approval for stormwater plan is granted pursuant
to Section 4.3.5.3, the City shall permit La Pianta to use said portions of the right of way and
existing detention pond for such purpose prior to conveying ownership of such parcels to La
Pianta pursuant to Sections 4.10 and 4.11, provided however, La Pianta shall indemnify and hold
the City harmless for any claims or damages because of or arising out of La Pianta's use or
possession of this land, except to the extent caused by the negligence of the City, its employees
or agents. Before commencing the construction of the Green River Off Channel Habitat
Area, La Pianta shall provide temporary detention of stormwater from South 200 Street in place
of the removed stormwater pond until the South Facility is complete and operational.
4.4 Sanitary Sewer System. As outlined in the Tukwila South EIS, additional sewer
capacity may be required to serve the Tukwila South Project, as the Project develops. Sewer Lift
Station #2 may need to be upgraded to create sufficient pumping capacity; and the force sewer
main along Andover Park West from Minkler Ave to Strander Blvd (the "Force Sewer Main
may need to be upgraded to provide sufficient capacity to carry the additional flows generated by
the Tukwila South Project. If at any time during the Term of this Agreement, a capacity analysis
of the system shows that any of the Sewer Lift Station #2, the Force Sewer Main, or any other
facility within the City's sanitary sewer system necessary to provide service to the Tukwila
South Property (each a "Facility is at 80% or more of its capacity, then the City shall promptly
initiate its standard process of planning, financing and construction for improvement to the
Facility (or more than one) necessary to provide adequate sanitary sewer service to accommodate
the Allowable Development. The City will finance the construction of the Facility through
bonds or any other source of City capital funding and /or through connection fees, sewer rates or
other charges to be paid by all the benefited ratepayers. If the City elects to form a Utility Local
Improvement District "ULID or other special district to pay for the Facility, La Pianta shall
execute a No Protest ULID Agreement for the formation of an ULID to provide improvements to
the sanitary sewer system as outlined herein. The No Protest agreement shall be in a form
acceptable to the City. La Pianta shall be responsible for paying citywide sewer system
connection charges and fees at the time of each building permit application, subject to the terms
of any applicable No Protest Agreement as described herein and La Pianta's participation in any
ULID or special district assessment.
Construction of the initial Southcenter Parkway sewer line serving the Tukwila South
Property will be included in the cost of the Southcenter Parkway Project, and therefore a portion
of the cost of the sewer improvements will be funded by sources other than the City. La Pianta
or Parcel Builders (hereinafter defined) shall pay sewer connection charges based on the total
project cost. Each sewer connection charge paid by La Pianta or a Parcel Builder for the initial
Southcenter Parkway sewer line shall be credited to La Pianta as O &M Revenue pursuant to
Section 4.8.3.
4.5 Parks and Open Space.
4.5.1 Bike/Pedestrian Trail. Within thirty (30) days of the effective date of the
annexation, La Pianta shall donate to the City an easement for a north -south trail system through
the Tukwila South Property from S. 180 Street to S. 204 Street, provided however, that the
City shall not permit the public to use the easement area until the later of: (i) three (3) years after
the conveyance of the easement, or (ii) completion of initial site grading and the Green River Off
Channel Habitat Area, but not later than four (4) years after the conveyance of the easement.
The width of the easement shall be at a minimuml4 feet or such greater width as may be
required under the City's Shoreline Master Program. The easement shall be delivered into the
Escrow. The bike /pedestrian trail shall be located along the Green River within the crown of the
levee. When the new levee is constructed, as contemplated by this Agreement, the easements
will be revised to follow the crown of the new levee configuration. La Pianta waives any credit
for this donation against any future park impact fee assessed against the Project and waives all
claims for just compensation pursuant to RCW 8.12 and State and Federal Constitutions. La
Pianta shall not be responsible for costs of construction or maintenance of any improvements
within the trail easement.
La Pianta will develop and submit to the City for approval a plan for trails and
bike /pedestrian connections within the Tukwila South Property. The Plan will identify the
general goals and objectives of a system of pedestrian connections for the Tukwila South
Property and will identify possible locations for eight (8) 14 foot wide pedestrian corridors and
connections from the bike /pedestrian trail described above through the Tukwila South Property,
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in locations approved by La Pianta, to off -site pedestrian trails and City rights -of -way. The eight
locations will include the City's existing trail connection points at South 180 Street, South 200
Street and South 204 Street. La Pianta will complete this plan and submit it for approval to the
Parks and Recreation Director by December 31, 2011.
4.5.2 Green River Pedestrian Bridle. La Pianta shall be responsible for
$500,000.00 toward the cost of construction of a pedestrian bridge across the Green River to the
Green River Trail and Briscoe Park (the `Bridge Any additional cost for this bridge project
and all permitting obligations shall be the responsibility of the City. Within thirty (30) days of
the date the City notifies La Pianta that the City will make application for a grant or grants for
any portion of the cost of construction of the Bridge, La Pianta shall provide to the City a letter
of credit in the amount of $500,000 pursuant to Section 4.8.4.3 of this Agreement. The letter of
credit shall have a term of one (1) year (or less than one year in the initial year, as set forth in
Section 4.8.4.4) and shall be renewed until the $500,000 payment is made to the City. In the
event that La Pianta fails to pay $500,000 to the City within thirty (30) days of the date the City
notifies La Pianta that any grant(s) have been awarded to the City, which grants, together with
other funds available to the City, will underwrite the full cost of construction of the Bridge, the
City may draw upon the letter of credit as provided in Section 4.8.4. The City will use best
efforts to obtain full funding to provide the additional funding necessary to complete
construction of the Bridge project. If the City is unable to obtain grant funding for construction
of the Bridge within five (5) years of the date of this Agreement, then La Pianta shall pay
$500,000 in cash to the City within thirty (30) days after such date, or the City may thereafter
draw upon the letter of credit as provided in Section 4.8.4. If the City is unable to secure
adequate funding for the Bridge, the City may utilize the $500,000.00 for general park facilities
within the Tukwila South area. La Pianta waives credit for this donation against any future park
impact fee assessed for the Tukwila South Project and waives any claim for just compensation
pursuant to RCW 8.12 and the State and Federal Constitutions. The City and La Pianta
acknowledge that construction of the Bridge will occur after December 31, 2012 when
significant development has occurred within the Tukwila South Project. Prior to commencement
of construction of the Bridge project, La Pianta shall grant to the City an easement in
commercially reasonable form on a portion of the Tukwila South Property for the purpose of
installing and maintaining bridge supports and touchdowns (the "Bridge Easement The area
of the Bridge Easement shall not exceed 3,000 square feet and shall be located subject to mutual
agreement of the parties, provided such location shall be within the river buffer of the City's
Shoreline Master Program. If the City has obtained funding and is commencing construction of
the bridge, La Pianta shall grant the Bridge Easement within thirty (30) days of the City's
request.
4.5.3 Donation of Levee Easements. La Pianta will grant permanent easements,
at no cost to the City, on property under its ownership, to the City of Tukwila for improvements
to the City's levee system on the west side of the Green River. The easements will be sized to
accommodate (i) an overall slope gradient of 2.5:1 on the river side of the levee from S. 196
Street to S. 204 Street; (ii) a slope gradient of 2:1 on the landward side of the levee from S.
196 Street to S. 204 Street and on both sides of the levee from S. 180 Street to S. 196 Street
and (iii) a 14- foot -wide levee crown. In each case, the easement area to be granted will
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commence at the waterside toe of the existing levee. If levee improvements are made before
redevelopment in the existing Segale Business Park, the levee improvements shall not
unreasonably interfere with La Pianta's use of the existing Segale Business Park. "Unreasonably
interferes" shall be deemed to include, without limitation, any restriction on the use of the
existing buildings or the paved areas around them. If it is determined that additional easement
area is needed, the City will negotiate with La Pianta or take necessary legal action to acquire the
additional easement. The easements referenced in this section shall be delivered to the Escrow
within thirty (30) days of the effective date of the annexation.
4.6 Fire Service.
4.6.1 Voluntary Fire Impact Fee. Pursuant to RCW 82.02.020, La Pianta agrees
to voluntarily pay a fire service mitigation fee of $0.50 per square foot for commercial/industrial
development and $500.00 per dwelling unit for residential development. If the City adopts a fire
impact fee pursuant to RCW 82.02 or other enabling legislation, those impact fees will apply to
the Tukwila South Project, replacing the fee set forth above, and will be assessed at the time of
building permit issuance. In either case, La Pianta will not be assessed an impact fee for new
development which replaces existing building square footage, currently served by Tukwila Fire,
if redeveloped.
4.6.2 Donation of Land for Fire Station. La Pianta shall donate to the City up to
three (3) acres of undeveloped land along Southcenter Parkway south of South 180 Street for
future use as a fire station. The location of the specific property must be mutually acceptable and
the property shall meet the following criteria of the City: (1) Able to accommodate a 25,000 gsf
building, parking and outdoor storage (more specific detail will be provided by the City's
architect no later than 180 days after execution of this Agreement); (2) level topography; (3)
rectilinear site; (4) clear title (i.e., subject to liens and encumbrances approved by the City,
created under this Agreement, or which are not inconsistent with the City's intended use); (5)
soils capable of bearing the load of the proposed fire station without shoring, bracing, piling, or
other extraordinary construction methods, and containing no hazardous substances; (6) direct
access onto an arterial street; (7) located in the vicinity of S. 180 Street, but outside the
shoreline environment. La Pianta shall transfer such property to the City in its as -is, where -is
condition, without warranties other than good title. No credit will be given against any fire
impact fee for this land donation. The parcel will be identified and agreed upon, and the deed
therefore shall be delivered to the Escrow, prior to the City Council's adoption of the ordinance
vacating existing Frager Road, as provided in Section 4.11 below. La Pianta will be responsible
for all closing and escrow costs associated with this land donation. La Pianta waives any credit
for this land donation against any fire impact fee assessed under the Tukwila Municipal Code.
For the purpose of the real estate excise tax, the City acknowledges that the transfer of property
pursuant to this section shall be for a "public use in connection with the development of real
property" as provided under WAC 458 -61A -205. The City agrees to cooperate with La Pianta to
implement modifications to the boundaries of the fire station parcel (prior to commencement of
construction of the fire station) to promote logical development of adjacent lands by La Pianta,
as long as such modifications are consistent with the parameters set forth above.
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4.7 Impact Fees. Nothing in this Agreement shall preclude the City from assessing
duly enacted impact fees to this Project at the time of building permit issuance.
4.8 City Revenues and Costs: La Pianta Financial Guarantees.
4.8.1 Operations and Maintenance Services. Pursuant to the protocols set forth
in Section 4.8.3, the City will track the following revenue generated from the Tukwila South
Property (including all use and development thereon): sales tax, real estate excise taxes, utility
taxes, franchise fees, business license revenues, commercial parking taxes, hotel /motel tax,
admission tax, where those taxes and/or fees are paid by the owners of property or businesses
developed as part of the Tukwila South Project (collectively, the "O &M Revenue provided,
however, that if the Washington State Department of Revenue begins to report liquor excise
taxes, motor vehicle excise taxes and/or fire insurance premium taxes in such a way that they can
be identified as having been generated from the Tukwila South Property, then each of those taxes
that is so reported shall be included in O &M Revenue. The O &M Revenue will not include any
property tax revenue from the Tukwila South Property, or any revenue from any business or land
use existing or in operation on any portion of the Tukwila South Property as of the date of this
Agreement.
The City will also track expenditures related to providing operations and
maintenance public services to new development within the Project and pre construction
expenses related to the Project, including without limitation, the provision of police, fire, public
works and parks services allocable to new development at Tukwila South, the pro -rata capital
costs for such services (not covered by impact fees), and the pro -rata operations and maintenance
expenses related to the Southcenter Parkway Project once completed (collectively, the "O &M
Expenses The City covenants to use commercially reasonable efforts to minimize the O &M
Expenses during the Term of this Agreement (i.e., the same efforts the City uses to minimize its
O &M Expenses city- wide).
On or before March 31, 2010 and each March 31 thereafter, the City shall provide
to La Pianta an Annual Statement (hereinafter defined). If for any year the Annual Statement
shows that O &M Expenses have exceeded O &M Revenue, La Pianta shall pay the difference to
the City within thirty (30) days of receipt of the Annual Statement "O &M Guarantee If for
any year the Annual Statement shows that O &M Revenue has exceeded O &M Expenses, the
City is not prohibited from using the excess funds for general City purposes.
If La Pianta requests an audit of an Annual Statement pursuant to Section 4.8.3, it
shall nonetheless pay to the City any amount shown to be due by the Annual Statement within
thirty (30) days of receipt of the Annual Statement, and if the audit shows an error in the Annual
Statement then the City shall refund to La Pianta any sums it has paid that were not due pursuant
to this Section 4.8.1, or La Pianta shall make any additional payment due, in either case within
thirty (30) days of the Accountant's decision.
$12,000,000.
La Pianta's total obligation under this section 4.8.1 shall be limited to
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4.8.2 General Obligation Bonds and Increased Property Tax Revenues.
Pursuant to the protocols set forth in Section 4.8.3, the City shall track the Increased Property
Tax Revenues from the Tukwila South Property. For the purposes of this section, "Increased
Property Tax Revenues" shall mean the property tax revenue attributable to that property
annexed to the City of Tukwila pursuant to this Agreement.
If any Annual Statement shows that the Increased Property Tax Revenue in that
year is less than the annual debt service for the General Obligation Bonds in that year "Debt
Service Shortfall then La Pianta shall pay to the City within thirty (30) days of receipt of the
Annual Statement a sum equal to the Debt Service Shortfall. However, notwithstanding the
foregoing, (a) the City shall be responsible for debt service on the first $6,000,000 of bonds, and
(b) La Pianta's yearly obligation under this Section 4.8.2 shall not in any year exceed a sum
equal to the difference between the total annual debt service on the General Obligation Bonds in
that year minus the debt service on $6,000,000 of those bonds in that year. If, for any year, the
Annual Statement shows that Increased Property Tax Revenue has exceeded the City's annual
debt service for the General Obligation Bonds in that year, the City is not prohibited from using
the excess funds for general City purposes.
For example, if the City issues General Obligation Bonds totaling $7,000,000, the
City will be responsible for the first six sevenths of the debt service ($6,000,000 divided by
$7,000,000) in each year, whether or not the Increased Property Tax Revenues are sufficient to
fully provide for that portion of the debt service. If there is no Debt Service Shortfall in a given
year, the City will be responsible for all of the debt service in that year. If, in this example,
however, there is a Debt Service Shortfall in a year, then for that year La Pianta will be
responsible for the Debt Service Shortfall up to one seventh of the debt service on those General
Obligation Bonds and must make a shortfall payment to the City in that amount. In no event will
the City issue more than $8.25 million of General Obligation Bonds.
If La Pianta requests an audit of an Annual Statement pursuant to Section 4.8.3, it
shall nonetheless pay to the City any amount shown to be due by the Annual Statement within
thirty (30) days of receipt of the Annual Statement, and if the audit shows an error in the Annual
Statement then the City shall refund to La Pianta any sums it has paid that were not due pursuant
to this Section 4.8.2, or La Pianta shall make any additional payment due, in either case within
thirty (30) days of the Accountant's decision.
4.8.3 Proiect Revenue /Citv Expenditures Protocols. Within thirty (30) days of
execution of this Agreement, the parties will meet and confer regarding the development of
accounting protocols for tracking Project revenue and City expenditures related to the Tukwila
South Project, as required under this Section 4.8. Within thirty (30) days of said meeting, the
parties shall retain the services of a mutually agreeable certified public accountant with expertise
in municipal accounting (the "Accountant With the assistance of the parties, the Accountant
will develop protocols for tracking revenue and expenditures consistent with the terms of this
Section 4.8. The protocols will be developed and will be reduced to writing in the form of a
memorandum of understanding signed by both parties within one hundred eighty (180) days of
the retention of the Accountant. Each party will share equally the cost for the Accountant's
services outlined in this section. In the event that the parties do not execute the memorandum of
understanding documenting the accounting protocols within one hundred eighty (180) days of
the retention of the Accountant, this Agreement shall terminate.
On or before March 31, 2010 and each March 31 thereafter, the City shall prepare
a statement "Annual Statement showing the O &M Revenue, O &M Expenses, O &M
Guarantee, the Increased Property Tax Revenues, the annual debt service for the General
Obligation Bonds, any Debt Service Shortfall, and the portion of any Debt Service Shortfall
which La Pianta has guaranteed under the terms of this Agreement, consistent with the protocols
set forth in the memorandum of understanding. If La Pianta questions the City's determination
of any of the items set forth in the Annual Statement for the prior calendar year, La Pianta may
request an audit of the disputed matter from the Accountant who developed the protocols, or his
or her designee. Within thirty (30) days of La Pianta's request, the Accountant shall review the
Annual Statement and La Pianta's dispute therewith, and render a decision based on generally
accepted governmental accounting practices, the protocols, and the terms of this Agreement.
The Accountant's decision shall be final and binding on the parties, excepting manifest error by
the Accountant. The parties agree to cooperate in good faith with the Accountant concerning any
requests for information or documentation to resolve the issue. If there is a variance of 10% or
more between the Accountant's decision and the City's determination of revenue or
expenditures, the City shall pay the cost of the audit. If the variance is less than 10 La Pianta
shall pay the cost of the audit.
4.8.4 Security for La Pianta's Financial Guarantees.
4.8.4.1 O &M Guarantee.
4.8.4.1.1 O &M Collateral.
La Pianta's obligation under Section 4.8.1 (not to exceed $12,000,000) shall be
secured during the Term of this Agreement by collateral comprised of: (i) an irrevocable standby
letter of credit naming the City as beneficiary "O &M LC and (ii) a first -lien deed of trust on
Building No. 931 located in Segale Business Park, which is currently occupied by Qwest
Communications Corporation "O &M Deed of Trust If La Pianta fails to pay timely any
amount due under Section 4.8.1, the City may draw upon the O &M LC and/or foreclose on the
O &M Deed of Trust as provided in this Section 4.8.4.
4.8.4.1.2 O &M LC.
(a) The O &M LC shall be in the form, and meet
the requirements, set forth in Section 4.8.4.4 below. The O &M LC shall be in the sum of
$6,000,000 and shall_be delivered to the Escrow Agent following Boundary Review Board action
on the annexation described in Section 4.1 but no later than 10 days before the date on which the
City Council is scheduled to take final action on the annexation at a public meeting. To the
extent La Pianta makes any payments to the City under the O &M Guarantee, then the amount of
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the letter of credit shall be reduced by 50% of the total of such payments, and the credits set forth
in Section 4.4, except that the amount of the O &M LC shall not be less than $2,000,000 at any
time during the Term. The amount of the O &M LC shall be determined annually pursuant to the
foregoing upon renewal. If a longer term O &M LC is provided, the amount shall be recalculated
annually on the anniversary of the initial issuance date and may be adjusted at that time. If La
Pianta is not required to make any payments to the City under the O &M Guarantee, then at any
time, and from time to time, during the last five (5) years of the Term, the parties may agree to a
reasonable reduction in the amount of the O &M LC, taking into consideration the remaining
Term of this Agreement, the historical receipt of O &M Revenue by the City, the likely
obligation of La Pianta pursuant to the O &M Guarantee, the security provided under the O &M
Deed of Trust, and all other relevant factors.
(b) Failure of La Pianta to provide and maintain
the O &M LC at the time and in the amount required by this Section 4.8.4.1, where such failure
continues after written notice from the City specifying the nature of the default and 20 days'
opportunity to cure, shall entitle the City to accelerate that portion of the O &M Guarantee
obligation represented by the amount of the O &M LC, draw on the O &M LC, and deposit the
amount drawn "O &M Deposit into an escrow account with the Escrow Agent described in
Section 4.8.4.6 (the "Escrow Agent except that in the case of a failure to provide a
replacement of the O &M LC no later than 15 days prior to its stated expiration, no notice and
opportunity to cure shall be required prior to a City draw on the O &M LC. The City may
subsequently draw upon the O &M Deposit if La Pianta shall default on its obligations under the
O &M Guarantee. If the City shall draw on the O &M Deposit at any time during the Term of this
Agreement, La Pianta shall, within 30 days of notice by the City, restore the O &M Deposit to the
amount required at the time the O &M Deposit was established. Upon expiration of the Term,
any remaining funds held in the escrow account, including any remaining accrued interest, shall
be released to La Pianta. La Pianta's obligation to provide the O &M LC, and the City's remedy
for failure to provide the O &M LC, shall not be subject to the Dispute Resolution Process set
forth in Section 7 of this Agreement.
4.8.4.1.3 O &M Deed of Trust.
(a) The remaining $6,000,000 of La Pianta's
total potential liability under the O &M Guarantee shall be secured by the O &M Deed of Trust.
The O &M Deed of Trust shall be in the form attached to this Agreement as Exhibit 8 and shall
be delivered to the City at the same time that the O &M LC is delivered to the Escrow Agent. La
Pianta shall have the right, to substitute as security from time to time one or more deeds of trust
in the same or similar form on other real estate acceptable to the City in the exercise of
reasonable discretion, so long as the unencumbered value of the substituted collateral is equal to
or greater than $9,000,000 as shown by a current appraisal performed by a neutral appraiser
having no less than 10 years' experience appraising commercial property in the area in which the
real estate is located, with appraisal cost shared equally between the parties. Any permitted
substitute deed of trust given under this Section 4.8 shall be delivered to the City in an escrow
arrangement (the cost of which shall be paid by La Pianta) that provides for delivery and
recording of the substitute deed of trust simultaneously with release of the original deed of trust.
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Substituted collateral must be located in the State of Washington, shall have an appraised value
of nine million dollars ($9,000,000) or more, shall be income producing, shall be improved by
structures of a quality that is the same as or similar to the improvements existing on the land
encumbered by the initial deed of trust, and shall be of a character suitable as collateral for a
substantial commercial loan from a recognized commercial real estate lender. The City shall not
have the right to unreasonably reject proposed substitute collateral, and the characteristics listed
in the previous sentence will be relevant in determining reasonableness of a City rejection.
(b) In the event of a default that entitles the City
to foreclose on the O &M Deed of Trust, then the O &M Deed of Trust shall provide that there
shall be no default entitling the City to foreclose the O &M Deed of Trust until (1) La Pianta shall
have failed after notice and 20 days to cure to pay the sum(s) required under the terms of this
Agreement, (2) the City has drawn on the letter of credit (or cash deposit) securing the obligation
in default to the maximum amount of the letter of credit (or cash deposit) and has applied the
sum(s) so drawn to the obligation in default, and (3) there remains outstanding an additional sum
due under the terms of this Agreement for which the deed of trust has been granted as security.
4.8.4.2 Southcenter Parkway Project General Obligation Bonds Guarantee.
La Pianta's obligation pursuant to Section 4.8.2 of this Agreement to
guarantee a portion of the General Obligation Bonds (the "Bond Guarantee shall be secured
during the Term of this Agreement by a separate irrevocable standby letter of credit naming the
City as beneficiary "SCPW LC The amount of the SCPW LC shall be determined annually
as of January 1 of each calendar year during the Term of this Agreement, and shall initially be in
the amount of $185,000, and, upon issuance of the General Obligation Bonds, shall be adjusted
to an amount equal to twice the average annual debt service on the Bonds for that portion of the
General Obligation Bonds that exceeds $6,000,000. The SCPW LC shall be delivered to the
Escrow Agent before the date on which the City awards the contract for construction of the
Southcenter Parkway Project. If La Pianta fails to pay timely any amount due under Section
4.8.2, the City may draw upon the letter of credit as provided in this Section 4.8.4.
Failure of La Pianta to provide and maintain the SCPW LC at the time and
in the amount required by this Section 4.8.4.2, where such failure continues after written notice
from the City specifying the nature of the default and 20 days' opportunity to cure, shall entitle
the City to accelerate that portion of the Bond Guarantee that is represented by the amount of the
SCPW LC, draw on the SCPW LC, and deposit the amount drawn "SCPW Deposit into an
escrow account with the Escrow Agent, except that in the case of a failure to provide a
replacement of the SCPW LC no later than 15 days prior to its stated expiration, no notice and
opportunity to cure shall be required prior to a City draw on the SCPW LC. The City may
subsequently draw upon the SCPW Deposit if La Pianta shall default on its obligation under the
Bond Guarantee. If the City shall draw on the SCPW Deposit at any time during the Term of
this Agreement, La Pianta shall, within 30 days of notice by the City, restore the SCPW Deposit
to the amount required at the time the SCPW Deposit was established. Upon expiration of the
Term, any remaining funds held in the escrow account, including any remaining accrued interest,
shall be released to La Pianta. La Pianta's obligation to provide the SCPW LC, and the City's
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remedy for failure to provide the SCPW LC, shall not be subject to the Dispute Resolution
Process set forth in Section 7 of this Agreement.
4.8.4.3 Other Secured Obligations.
For each of the remaining obligations of La Pianta under this Agreement
for which security is required specifically, (i) the letter of credit required pursuant to Section
4.3.4.1 in the amount of 110% of La Pianta's portion of the Highline Work (the "Highline Work
LC (ii) the letter of credit required pursuant to Section 4.3.4.2 in the amount of 110% of the
City's share of the cost of the PSE Work in accordance with PSE Tariff Schedule 74 (the "PSE
Work LC and (iii) the letter of credit required pursuant to Section 4.5.2 in the amount of
$500,000 (the "Bridge LC La Pianta shall provide to the City an irrevocable standby letter of
credit naming the City as beneficiary. The Highline Work LC and the PSE Work LC shall be
delivered to the Escrow Agent at the same time that the SCPW LC is delivered, which shall be
prior to the award of the construction contract for the Southcenter Parkway Project. The Bridge
LC shall be delivered to the Escrow Agent no later than thirty (30) days after the date the City
notifies La Pianta that the City will make application for a grant or grants for any cost of
constructing a pedestrian bridge across the Green River to connect Tukwila South to Briscoe
Park. Only upon La Pianta paying the amount due in fulfillment of an obligation secured by one
of the foregoing letters of credit, the City shall release the letter of credit for that obligation, and
La Pianta's obligation to provide that letter of credit shall terminate.
Failure of La Pianta to provide and maintain any letter of credit at the time
and in the amount required by this Section 4.8.4.3, where such failure continues after written
notice from the City specifying the nature of the default and 30 days' opportunity to cure, shall
constitute a default with respect to the obligation secured by that letter of credit "Secured
Obligation in Default except that in the case of a failure to provide a replacement letter of
credit no later than 15 days prior to its stated expiration, no notice and opportunity to cure shall
be required prior to a City draw on the letter of credit for which no replacement has been
delivered. The default shall entitle the City to draw on the letter of credit securing the Secured
Obligation in Default, and deposit the amount drawn into an escrow account with the Escrow
Agent. The City may subsequently draw upon that deposit if La Pianta shall default in the
obligation so secured. Upon expiration of the Term or fulfillment of the obligation so secured
(whichever shall first occur), any remaining funds held in the escrow account, including any
remaining accrued interest, shall be released to La Pianta. La Pianta's obligation to provide any
letter of credit under this Section 4.8.4.3, and the City's remedy for failure to provide a letter of
credit under this Section 4.8.4.3, shall not be subject to the Dispute Resolution Process set forth
in Section 7 of this Agreement.
4.8.4.4 General Terms and Conditions for the Letters of Credit.
Each letter of credit provided under this Section 4.8.4 (including the O &M
LC, the SCPW LC and each letter of credit provided pursuant to Section 4.8.4.3) shall be in form
substantially similar to Exhibit 9. Each letter of credit shall be issued by Bank of America or, at
La Pianta's option, another financial institution having a branch in the State of Washington that
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is reasonably acceptable to the City; provided, however, that the City shall not withhold its
consent to any institution having a long term debt rating of at least A from Standard and Poor's
Corporation, or at least Aa3 from Moody's Investors Service. Each letter of credit shall have at
least a one -year term (except that any initial letter of credit may have a shorter term so that when
all letters of credit have been issued they will expire simultaneously), and La Pianta shall provide
the City with a replacement letter of credit 15 days prior to the expiration of the respective letter
of credit, or within 90 days after the downgrade of an existing letter of credit below the long term
debt rating set forth above. Each letter of credit shall provide that it will be honored by
presentation or at sight at an office of the issuer upon presentation of a certificate signed by the
City stating that (i) La Pianta has defaulted on an obligation under this Agreement that is secured
by the letter of credit and (ii) the City is entitled to draw on the letter of credit. If any letter of
credit is drawn by the City because of La Pianta's failure to provided a replacement letter of
credit 15 days prior to the expiration of the existing letter of credit, or within 90 days after the
downgrade of an existing letter of credit below the long term debt rating set forth above (each
draw resulting in a "Deposit" pursuant to the terms of this Section 4.8), then within five (5) after
delivery to the Escrow Agent of a replacement letter of credit that complies with the
requirements of this Section 4.8, the resulting Deposit shall be refunded to La Pianta except to
the extent (if any) that the City shall have drawn upon the Deposit pursuant to the terms of this
Agreement.
4.8.4.5 Specific Remedy under Section 4.8.4.
The City shall have the right to specific performance of La Pianta's
obligations under this Section 4.8.4.
4.8.4.6 Escrow and Escrow Aaent.
An escrow shall be established as set forth herein (the "Escrow The
Escrow Agent initially shall be The Bank of New York Mellon Trust, N.A. The Escrow Agent
shall hold funds as provided in Section 4.8.4.1.2 and in this Section 4.8.4.6, and various deeds
and easements as provided in this Agreement, pursuant to a written escrow agreement among the
Escrow Agent, La Pianta and the City to be agreed by the parties within one hundred twenty
(120) days after full execution of this Agreement. The Escrow Agent selected by the parties may
be replaced by another financial institution with trust powers that has a branch in Seattle,
Washington, selected by the City and approved by La Pianta (which approval shall not be
unreasonably withheld). The Escrow Agent shall hold each of the letters of credit on behalf of
the City and shall receive deposits of amounts and deliveries of documents as set forth in this
Agreement. Upon the direction of the City, the Escrow Agent shall present and make draws on
the letters of credit described in Section 4.8.4.1.1, Section 4.8.4.2 and Section 4.8.4.3. The
Escrow Agreement shall also provide that the Escrow Agent shall, with or without direction from
the City, draw the full amount of any letter of credit that is not replaced or extended on or before
the date that is 15 days prior to the expiry date of that letter of credit. Upon any such
withdrawal, the Escrow Agent will hold the amount drawn as an O &M Deposit, an SCPW
Deposit or a deposit made pursuant to Section 4.8.4.3 and apply such amounts on deposit
consistent with this Agreement. If this Agreement is not terminated following the Outside
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Approval Date (as defined in Section 4.2 above), the Escrow Agent shall deliver all deeds and
easements in the Escrow to the City for recording, with the exception of the deed to the fire
station parcel pursuant to Section 4.6.2, which shall be delivered to the City at its request
following adoption of the ordinance vacating existing Frager Road. The parties shall share
equally the cost of the Escrow Agent for services performed pursuant to this Agreement.
4.9 Grading Permit Review. The City will complete review and issue a determination
regarding La Pianta's Clearing and Grading permit application for the Tukwila South Project
within 30 days of determining that such application is complete for areas outside of the shoreline
jurisdiction. For areas within the shoreline jurisdiction, La Pianta shall submit a Shoreline
Substantial Development Permit along with the Clearing and Grading Permit. The City will
promptly review the Shoreline Substantial Development Permit, and forward its decision to the
Department of Ecology for review. The City will complete review of the Clearing and Grading
permit application within thirty (30) days and issue a decision after the expiration of the
Department of Ecology's review period for the Shoreline Substantial Development permit. La
Pianta shall segregate the Clearing and Grading permit application into separate applications for
those portions of the Tukwila South Project inside and outside the 200 -foot shoreline
environment, respectively, and the City shall review and issue such separate permits
independently. These grading permit applications shall not operate to vest La Pianta to the SMP
or any Floodplain Regulations.
4.10 South 178 Street Proiect. The Administration of the City shall recommend to
the City Council that the realignment of South 178 Street, as depicted in the 90% construction
drawings, be added to the City's Capital Improvement Plan.
4.11 Vacation of Frager Road/Southcenter Parkway and the City Triangular Parcel.
Pursuant to RCW 35.79.010, the City has by resolution initiated a vacation of (i) that portion of
Frager Road/Southcenter Parkway described in Exhibit 7, attached hereto, and (ii) the "City
Triangular Parcel," which is more particularly described in Exhibit 6 of this Agreement. The
City agrees that there will be no remaining public use or benefit to that portion of Frager
Road/Southcenter Parkway described in Exhibit 7 and the City Triangular Parcel, following
dedication of the Southcenter Parkway right -of -way as set forth in Section 4.3.2 above.
Therefore, the City shall, simultaneous with La Pianta's dedication of the Southcenter Parkway
right -of -way set forth in Section 4.3.2 above, vacate Frager RoadlSouthcenter Parkway and the
City Triangular Parcel at no cost to La Pianta and the other adjoining landowners, as applicable.
The conveyance of the property to La Pianta pursuant to the vacation will occur within thirty
(30) days after the completion of the Southcenter Parkway Project.
4.12 Transfer of the City Detention Pond. The City hereby determines that there is no
remaining public use or benefit to the following property and shall transfer to La Pianta, free and
clear of all encumbrances and for no additional consideration, in its as -is, where -is condition, the
"City Detention Pond," which is more particularly described in Exhibit 6 of this Agreement.
Subject to the terms set forth in Section 4.2.5, the City shall convey the City Detention Pond
within thirty (30) days of the completion of the annexation. The City shall undertake all
necessary actions required to declare said parcel surplus, and convey the parcel to La Pianta in
the manner required by law.
5. Development Under This Agreement.
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The Tukwila South Project will be developed under the jurisdiction of the City pursuant
to the terms and conditions of this Agreement. This Agreement sets forth the development
standards, mitigation measures, and other conditions of development for the Project. Proper
operation and maintenance of surface water management systems, adequate sewer service
capacity, adequate public safety facilities and services, and adequate transportation facilities will
be fully satisfied through La Pianta's compliance with the requirements of this Agreement.
Provided La Pianta satisfies its obligations under this Agreement as such obligations may arise,
the City shall provide on a timely basis the necessary City public infrastructure specified in this
Agreement needed to support build -out of the Project, subject to the condition of securing the
necessary funds to construct such improvements and City Council approval for such
improvements.
5.1 Native Growth Protection Areas (NGPA). No development shall be permitted to
occur in a Native Growth Protection Area except trails, the Orillia Road Connector and utilities,
including, but not limited to, electrical transmission lines, placement of which must be approved
by the City; water and sewer system lines; access roads for levy maintenance. Clearing
limitations within NGPA areas shall be those identified in the existing Tukwila Municipal Code,
subject to the provisions of this Section 5.1. Clearing and ground disturbing activities associated
with mitigation activities are permitted, with City permits. Once the Sensitive Areas Master Plan
is implemented and mitigation areas are enhanced, restored, or created, NGPAs shall be left
permanently in an undisturbed vegetated state and shall not be cleared or improved except as
necessary to (1) prune or remove dead or diseased trees, and vegetation reasonably adjacent to
developed areas of the Tukwila South Property, (2) remove invasive or exotic vegetation, (3)
prune or remove trees or other vegetation presenting a threat to life or safety or growing over
roadways, levees, drainage ditches, trails, or other corridors that must be kept clear, or (4)
maintain mitigation areas; or (5) permit the work expressly described in this Section 5.1. For the
purposes of this Agreement, the NGPAs on the Tukwila South Property are identified in Exhibit
3 attached hereto.
5.2 Vesting of Development Regulations. The proposed development as described in
this Agreement shall vest to the following development regulations in effect on the date of
execution of this Agreement (the "Development Regulations for the Term of this Agreement:
The Tukwila Comprehensive Plan (Ord No. 2070 adopted November 22, 2004, as
amended by Ordinance 2218 adopted December 15, 2008); the Tukwila Zoning
Ordinance (Title 18, TMC); the Tukwila Subdivision Ordinance (Title 17, TMC);
Shoreline Master Program designations and pre- designations, transportation concurrency
regulations; stormwater, surface water treatment and quality, and surface water retention
and detention design standards and ordinances (including the requirement of the NPDES
permit effective February 2007); SEPA regulations and substantive SEPA policies.
5.3 Transportation.
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Development of the Property shall not be subject, during the Term of this Agreement, to
any amendments to, or replacements of, the Development Regulations listed above. These are
rights vested under state law for purposes of RCW 36.70A.300 (3)(a). In accordance with
Section 3.5 above, La Pianta will comply with the provisions of the SMP and the Floodplain
Regulations in effect on the date of each complete development permit application.
5.2.1 Police Power/Pre emotion. Nothing herein relieves La Pianta of any
obligations it may have during the Term to comply with state or federal laws or regulations of
any kind, including but not limited to those related to storm, surface water and floodplain
management. The proposed development shall not be vested against the application of
development standards that are imposed by virtue of state or federal pre emption of the City's
regulatory authority. As provided by RCW 36.70B.170(4), the proposed development shall not
vest against new development regulations to the extent the new regulations are required by a
serious threat to public health and safety.
5.2.2 International Codes. The International Building Code, International Fire
Code, and other construction codes in effect in the State of Washington as of the date of the
filing of a complete application for a building permit shall apply to all new development and the
redevelopment or modification of existing development.
5.2.3 Scope of Vesting. The vesting described herein shall apply for fifteen (15)
years from the effective date of the annexation provided in Section 4.1 (the "Term" of the
Agreement). For those development standards not specifically enumerated in this section or in
Section 5.2.1, the Land Use Process approvals shall be governed by the City codes and standards
in effect upon the date of complete application.
5.2.4 FEMA. La Pianta is obligated to comply with applicable FEMA National
Flood Insurance Program regulations that are in effect at the date of any building, grading or
clearing permit application.
5.2.5 Optional Regulations. During the Term of this Agreement, La Pianta may
at its option develop the Property or portions thereof in accordance with new code provisions or
generally applicable standards for that subject adopted after the date of execution of this
Agreement, without the obligation to bring other portions of the Property into conformance with
newly- adopted codes or regulations.
5.3.1 Concurrencv Approval. Pursuant to TMC 9.48 and TMC 21.04, the City
has determined that the Tukwila South Project, up to the Trip Ceiling (hereinafter defined),
meets the City's standards for transportation concurrency approval and mitigates significant
adverse impacts to the City's transportation system; provided that the Tukwila South Project
must be developed in compliance with the terms of this Agreement, including compliance with
requirements that La Pianta pay transportation impact fees applicable at the time of building
permit issuance.
5.3.2 Trin Ceiling for Tukwila South Project. New development within the
Tukwila South Project under this Agreement is limited to new development generating net new
p.m. peak hour vehicle trips (inbound and outbound) "Net New Trips not exceeding the Trip
Ceiling. New development within the project exceeding the Trip Ceiling shall be subject to
mitigation and concurrency requirements applicable at the time of application. The number of
Net New Trips for the Project for which full mitigation and concurrency approval is established
under this Agreement (the "Trip Ceiling shall be 10,166 Net New Trips from new
development, comprising not more than 2,646 Net New Trips inbound to the Project and not
more than 7,520 Net New Trips outbound from the Project. The methodology for determining
Net New Trips for any phase of the Tukwila South Project (including assumed values for trip
generation and percentages for trip reductions) shall be as set forth in the Transportation Impact
Study incorporated in the Tukwila South EIS for the Tukwila South Project. Trip counts shall be
estimated at the perimeter of the Project site; trips internal to the Project shall not count against
the Trip Ceiling Transportation impact fees shall apply only to the Net New Trips allocated to
the proposed new development. Subject to the provisions of this Agreement, these 10,166 Net
New Trips shall be reserved by the City for use by La Pianta hereunder for the Term of this
Agreement. If La Pianta is in compliance with the requirements of this Section, La Pianta will
only be required to produce a trip generation study for each development project in order to
identify the associated Net New Trips for that project.
(a) Construction of Orillia Road Connector. La Pianta shall construct
at its own expense a new 4 -lane arterial connector between Orillia Road S. and Southcenter
Parkway Extension "Orillia Road Connector La Pianta shall complete construction of the
Orillia Road Connector within 6 years of the time 7500 Net New Trips are generated by the
Project (the "Orillia Road Completion Date After the Orillia Road Completion Date, no Net
New Trips from the remainder of the Trip Ceiling may be used by La Pianta until this
improvement is completed and accepted by the City. La Pianta shall, at its own cost, obtain all
state, federal, and local permits and approvals required for the Orillia Road Connector. Subject
to applicable laws and ordinances and the terms and conditions of this Development Agreement,
the City agrees to cooperate with La Pianta in obtaining such permits and approvals. The Orillia
Road Connector will consist of four lanes. A diagram of the Orillia Road improvement is
attached hereto as Exhibit 10.
(b) If the Orillia Road Connection, required hereunder cannot be
constructed within the time frame set out herein for reasons outside the control of La Pianta, then
if La Pianta desires to continue with new development absent the construction of either of this
improvement, La Pianta may, as an alternative to construction of the Orillia Road Connector (i)
reduce or defer the amount of development proposed in the Project; (ii) implement
Transportation Demand Management (TDM) strategies and/or (iii) construct other transportation
system improvements "Alternative Mitigation The City shall approve such Alternative
Mitigation if, with such Alternative Mitigation in place, the Project passes a test under the City's
transportation concurrency requirements, applying the requirements of TMC 9.48 and the City's
traffic concurrency ordinance. Provided that under no circumstance can the cap of 10.3 million
square feet of new building floor area (as that term is defined in Section 3.1) be exceeded by
implementing TDM strategies or Alternative Mitigation measures.
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5.3.3 Credit for Existing Tries. As described in the Tukwila South EIS, the
existing development on the Project site generates a total of 1,241 p.m. peak hour vehicle trips
(298 trips inbound and 943 trips outbound) "Existing Development Trips Existing
Development Trips shall not count against the Trip Ceiling, and are not subject to impact fees
hereunder. Existing Development Trips may be used as a credit against trip generation from new
development to the extent existing uses are permanently discontinued and/or existing structures
are removed "Credit Trips The existing development and Existing Development Trips are set
forth in Exhibit 11. La Pianta may allocate available Credit Trips to the proposed new individual
development, as development occurs.
5.3.4 No Additional Transportation Concurrence or SEPA Review Required.
Since the City has determined compliance with the mitigation requirements identified in this
Agreement satisfies transportation concurrency and substantive SEPA requirements for the
Tukwila South Project, no additional SEPA review or transportation concurrency review shall be
required for development that is within the Trip Ceiling for the Term of this Agreement, except
additional SEPA review may occur as set forth in Section 6.2 below.
5.4 Stormwater Regulation.
5.4.1 Description of Surface Water Control Facilities. The surface water control
facilities for the Project shall include:
5.4.1.1 Parcel storm drains. Parcel storm drains will provide collection
and conveyance of runoff from individual development parcels to a primary trunk storm drain
within Southcenter Parkway from S. 180 Street to S. 200 Street (the "Trunk Storm Drain
5.4.1.2 Trunk storm drain. The Trunk Storm Drain will drain into two
detention/water quality facilities the North Basin "North Facility and the South Basin
"South Facility and are more particularly described in Section 5.4.1.3. The North Basin will
outflow into the S. 180 Street Pump station, which will route stormwater either to the Green
River or into the P -17 Drainage Basin. The South Basin will outflow into the Green River.
Emergency overflow of the South Basin will be discharged to Johnson Creek.
5.4.1.3 Water aualitv treatment and detention facilities. The stormwater
control system includes two major water quality treatment and runoff control facilities (one each
in the north and south portions of the site). Each facility shall be constructed as a combined
water quality /detention ponds and sized to meet the water quality treatment and runoff control
requirements for the area being served, including the Expansion Areas.
The South Facility shall provide at least Level 1 flow control as defined in
the 2005 King County SWDM. The North Facility shall control the peak flow magnitude of
runoff to at or below 75% of the designed pumping capacity of the S. 180 Street Pump Station.
Both the North and South Facilities will be open ponds, and a preliminary design of the facilities
are set forth in the Tukwila South EIS. The water quality /detention facilities will operate to
06/10/2009 -26-
provide the required level of downstream peak flow control. The detention facilities will include
a dead storage component for water quality and a live storage component representing the
required detention volumes. The site development phasing may include phased construction of
detention and water quality facilities or the use of temporary facilities for the early site
development. Temporary use of the South Facility may also be used for site development within
the North Basin, provided that such use does not exceed the capacity of the South Facility.
5.4.2 Stormwater Standards. This Section specifies the surface water
management standards applicable to the Tukwila South Project during the Term of the
Agreement, including the existing Segale Business Park and the proposed Expansion Areas.
5.4.2.1 Vested Design Standards for Surface Water Control Facilities.
City of Tukwila Development Guidelines and Design and Construction Standards (Second
Edition, Revision 1, 2005) and the 1998 King County SWDM provide the approved methods for
the analysis and design of the surface water management components for the Project during the
Term of this Agreement, except for the South Facility where conservation flow control is
required under the 2005 King County SWDM, and except for those modifications listed in Table
1 (the "Stormwater Standards Where not otherwise specified, design standards of the 1998
King County SWDM will apply. The Stormwater Standards supersede any other applicable
TMC, SWDM, and basin/water quality plan requirements during the Term of this Agreement.
The Stormwater Standards include the Code Modifications specified in Table 1. Furthermore,
some adjustments in the natural location of discharge (including minor inter subbasin diversions
of runoff) will be permitted as a result of changes in development area drainage collection,
detention, treatment, and outfall locations. Other adjustments from the applicable SWDM,
design standards or other applicable surface water management regulations may be requested
during the site plan review process and evaluated in accordance with the criteria in TMC
18.41D.090. Nothing herein shall relieve La Pianta from any obligation to comply with
applicable state and federal stormwater regulations currently in effect or adopted in the future.
06/10/2009 -27-
SWDM
Manual
Section TMC
SWDM Core
Requirement
#1
SWDM Core
Requirement
#3
SWDM Core
Requirement
#8
TMC 14.30
Storm Water
Management
SWDM Manual
TMC Reference
Text
Discharge at the
Natural Location
"All surface and
storm water runoff
from a proposed
project that
proposes to
construct new, or
modify existing
drainage facilities
must be discharged
at the natural
location so as not
to be diverted onto,
or away from, the
adjacent
downstream
property..."
Flow Control
Level 1 flow control
identified for the
Site area of Tukwila
South
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TABLE 1. Code Modifications
Code Modifications
During development, Other minor on -site sub
minor changes to basin routing through
natural drainage shed detention ponds and
boundaries and discharges to on -site
tributary areas are wetlands etc. are not formal
inevitable due to variances from core
grading of roadways requirement #1 but shall be
etc. reviewed during the
Interpretation that preliminary plat technical
existing discharge review or the detailed
points to the Green engineering drainage
River do not constitute review.
separate "natural" The existing discharge
discharge points points are man installed
culverts through the levee
system. The Green River
is a "managed" flow system
and is a direct receiving
water above and below the
project site. Proposed
future discharge points
from post developed basins
will not pose an adverse
impact to the River.
The Manual
prescribed Level 1
flow control is not
proposed for the
North Basin runoff.
Basic Water Quality Sizing methods
Treatment Design utilizing the HSPF
Water quality model from the project
design flow per Master Drainage Plan
KCSWDM Sec.
6.2.1
TMC 14.30.070 All facilities would be
Standards requires in accordance with the
that all activities be 1998 King County
undertaken in Surface Water Design
accordance with the Manual, unless site
1998 King County constraints or other
Surface Water Design provisions such as
Manual LID require variation
to design specifics.
Rationale
All runoff from the North
Basin drains to City
stormwater pump stations.
The control of runoff and
stormwater detention
design is geared to the
capacity of these existing
pump stations. This is not
specifically listed in the
Manual as an allowed
exemption.
Would best meet the intent
of the design standard by
utilizing continuous
simulation and historic
data.
To allow for maximum
flexibility of the site, and
acknowledging the site
design particulars,
adequate water quality and
detention will be provided,
but may vary from Manual
design specifics.
5.4.2.2 Grading Ordinance Design Standard Modifications. The
following exceptions from Grading Ordinance No. 2062 shall apply to the Project during
the Term of this Agreement:
a. A significant tree survey and tree replacement plan are not required.
b. Slope grading Slope stability and slope grading limitations shall be
evaluated within site development areas based on geotechnical evaluation
and applicable codes.
c. A vegetative restoration plan is not required except for the wetland
mitigation portions of the NGPAs.
d. Project notification and permanent NGPA signs are required.
e. Points of drainage discharge are not limited to the nearest practicable
drainageway Required methods of managing natural discharge from
springs, streams, or other natural sources are to be defined in the approved
Master Stormwater Infrastructure Plan (hereinafter defined).
f. Proposed modifications to surface water management provisions are
governed by TMC 18.41D.090.
g. Any construction activities, including site grading and building, during wet
or dry seasons shall be allowed provided such activities meet with the
stormwater quality requirements set forth in the NPDES Permit.
5.4.2.3 Impervious Area Limitations. In the "Development Area
up to 85% of the developable area served by each stormwater facility may be covered
with impervious surfaces, unless otherwise altered with City approval in the design
phase. Expansion Areas described in Section 3.4 of the Development Agreement are
included in the impervious area calculations. The sizing of surface water control
facilities may be adjusted to reflect actual land use impervious areas in final design as
indicated in the final approved Master Stormwater Infrastructure Plan.
5.4.2.4 TESCP and NPDES Requirements for all Construction.
Temporary Erosion and Sedimentation Control Plans "TESCPs will use SWDM Best
Management Practices ("BMPs") to minimize the extent of soils disturbance in contact
with surface runoff during construction, and to maximize disturbed soil
stabilization/cover practices to reduce erosion potential. This will apply to both dry and
wet season construction. The TESCPs will be developed to comply with Core
Requirement No. 5 and Appendix D of the SWDM, and Department of Ecology
requirements as identified in the NPDES Permit. The TESCPs will be implemented in
Project grading permits, which shall be submitted for City review and approval. Multiple
TESCPs will be required to accommodate the phasing of site development. La Pianta
shall comply with all project inspection requirements concerning surface water TESC
plans that are set forth in the NPDES Permit.
06/10/2009 -29-
06/10/2009
5.4.3 Stormwater Infrastructure Development.
Mitigation Measures
1. A temporary stormwater treatment
system shall be installed per the
requirements of the 1998 King County
SWDM during the first construction season.
Prior to its completion, all stormwater from
construction or cleared areas shall be
retained on site.
2. Install a long -term construction
stormwater polymer treatment system.
3. Construct the elevation of the separating
berm between the Green River and the
Green River Off Channel Habitat Area
excavation to prevent Green River inflow to
the excavation during the high flow season.
4. Install a sediment curtain or similar
measures to minimize sediment release to
the Green River when the separating berm
between the Green River Off Channel
Habitat Area and the river is removed.
5. Prepare and implement the SAMP
wetland mitigation plan to compensate for
the filling of low -value wetlands.
6. Prepare and implement a fisheries
mitigation plan pursuant to the SAMP.
-30-
5.4.3.1 La Pianta Obligations. La Pianta shall implement the
following stormwater mitigation conditions at its sole expense, in accordance with the
timing requirements set forth below:
Timing
During the first construction season.
Constructed and operational prior to the
start of any discharges from the site.
During the first construction season and
prior to first wet season construction
activities.
Installation before breaching the berm
adjacent to the off channel habitat
restoration project, during a time window
defined in the Hydraulic Project Approval
(HPA) for the project.
Approval of SAMP plan by the
Department of Community Development
Director prior to the start of site mass
grading during the first construction
season; wetland mitigation construction
will start the first year of construction and
be complete during the third year of
construction.
Approval of the SAMP plan by the
Department of Community Development
Director prior to the start of site mass
grading during the first construction
season; mitigation construction will start
the first year of construction and be
complete during the third year of
construction.
7. Construct a temporary North Facility and
the South Facility as part of the permanent
stormwater management system.
8. Prepare a Master Stormwater
Infrastructure Plan.
5.4.3.2 City Obligations. During construction of the Southcenter
Parkway Project, the City shall install stormwater conveyance infrastructure, including
the Trunk Storm Drain, within Southcenter Parkway to connect to the North Facility and
the South Facility.
5.4.4 Master Stormwater Infrastructure Plan. Master Stormwater
Infrastructure Plan. La Pianta shall prepare and submit as part of the Tukwila South
Project's application for a Clearing and Grading Permit, a Master Stormwater
Infrastructure Plan for Tukwila South. The plan shall substantially comply with all the
criteria of Section 5.4 of this Agreement including this Section 5.4.4, and be consistent
with the Stormwater Standards of this Agreement and shall address the Tukwila South
Project's compliance with the eight core requirements and five special requirements
specified in Section 1.1.2.4 of the 1998 King County Surface Water Design Manual
Large Site Drainage Review. The City shall review the Stormwater Infrastructure Plan
and may require changes if necessary to ensure overall compliance. Issuance of the
Clearing and Grading Permit shall be governed by Section 4.9 herein, and approval of a
final Master Stormwater Infrastructure Plan shall not be required prior to issuance of the
Clearing and Grading Permit.
5.4.5 Monitoring. Monitoring shall be performed as required under the
401 Certification and the NPDES permit for construction discharge issued and
administered by the Washington Department of Ecology, and for Total Suspended Solids
"TSS as shown in Table 2.
Plan Element
Objective
Monitoring
Start for Each
Facility
06/10/2009
-31-
Approval of the temporary North and
permanent South Facilities plans shall
occur prior to the start of site grading
during the first construction season.
Approval shall be obtained prior to start of
utility work.
TABLE 2
NORTH AND SOUTH FACILITIES
TOTAL SUSPENDED SOLIDS (TSS) MONITORING PLAN
Implementation 1 Comments
Report Facility water quality performance to the City as estimated by
TSS monitoring (used as performance measure in the 1998 SWDM).
Upon 70% buildout in the Begin monitoring when there is
catchment served by each Facility sufficient buildout to generate
TSS, but not while active
construction influence persists
(construction discharge to be
monitored under NPDES permit
requirements).
Plan Element
Monitoring
Frequency
Monitoring
Duration
Monitoring
Method
Criterion
Reporting
Response to
Data
Implementation
o Five times per year
o During storms exceeding
inch of rain in 24 hours
o Four times during Oct 1
through March 30 (wetter
season)
o One time during May 1 through
Sept 30 (drier season)
Three consecutive years per
Facility
Grab samples at Facility outlet
during active rainfall
Samples analyzed at a
Washington Certified analytical
laboratory
The 1998 King County
SWDM's treatment goal is to
remove 80% of TSS for flows
or volumes up to and including
the WW design flow or volume.
Flows and volumes in excess of
the WQ design flow or volume
can be routed around the WQ
facility or can be passed
through untreated. The
monitoring plan assumes that
the inflow WQ will between 30
to 100 mg /L TSS and therefore
proposes a criterion of 20 mg /L
(80% removal of the upper
estimate).
Within 60 days of last wet
season result from the analytical
laboratory.
The water quality performance data shall be provided to the City for
its use in making future decisions on stormwater management. If the
data indicates that the North and South Facilities are not functioning
properly due to improper construction or lack of required
maintenance by La Pianta, then La Pianta shall remedy such
condition promptly at its expense.
TSS (cumulative average during
the monitoring for each Facility)
shall be lower than 20 mg /L
Once annually to the City
06/10/2009 -32-
Comments
Collect samples under a range
of conditions through the year,
but concentrating on the wetter
season when the majority of
discharge volume will occur.
6. SEPA Compliance.
6.1 Prior SEPA Documents. Development within the Project areas as
contemplated in this Agreement has been addressed and analyzed in prior environmental
documents, including but not limited to environmental impact documents prepared for
Tukwila's Comprehensive Plan and the Tukwila South environmental impact statement
(collectively, the "SEPA Documents The SEPA documents shall constitute
compliance to the fullest extent possible under SEPA for all Implementing Approvals.
For purposes of this Agreement, an "Implementing Approval" means a land use approval
or permit subsequent to the execution of this Agreement which implements or otherwise
is consistent with this Agreement, including but not limited to plats, short plats, binding
site plans, site development permits, grading and building permits and utility permits.
Subject to the provisions of this Section, no further SEPA review is required, and no
additional substantive SEPA mitigation measures are required beyond those set forth in
this Agreement.
6.2 Further SEPA Review Limited. Except as set forth herein, no further
SEPA review shall be required for the Project. The City may require additional SEPA
review based only the following conditions:
(a) An Implementing Approval or requested modification materially
exceeds the Project Envelope (hereinafter defined) and governing
Development Regulations; or
(b) The City concludes (pursuant to SEPA, SEPA Rules, and City
SEPA regulations) that substantial changes have been made to the
Tukwila South Project so that, as mitigated, it is likely to have
significant adverse impacts not previously analyzed in a SEPA
environmental document, and which impacts cannot be mitigated
below a level of significance by applicable local, state or federal
regulations; or
(c
The City concludes (pursuant to SEPA, SEPA Rules, and City
SEPA regulations) that there is new information indicating
probable significant adverse environmental impacts of the Tukwila
South Project not previously analyzed in a SEPA environmental
document which cannot be mitigated below a level of significance
by applicable local, state or federal regulations.
For purposes of this Agreement, "Project Envelope" means the level and
range of development (including maximum structure height, floor area, bulk and use)
analyzed within one of the alternatives reviewed in the Tukwila South EIS and any
subsequent addenda or SEPA Documents which may be issued by the City. The Project
Envelope includes all of the physical aspects of a general development plan, individual
project, or other on -site or off -site physical improvements as disclosed and analyzed in
06/10/2009 -33-
the Tukwila South EIS. As used herein, "materially exceeds" means the proposal, as
mitigated, is likely to have significant adverse impacts not previously analyzed in the
SEPA Documents or any other SEPA environmental document prepared for property
within the Tukwila South Project area and which impacts cannot be mitigated below a
level of significance by applicable local, state or federal regulations.
6.3 Written Notice. If the City determines at any time during the Term that it
intends to require additional SEPA review for any Implementing Approval, the City shall
give La Pianta written notice thereof and provide La Pianta an opportunity to modify the
Implementing Approval application so as to render such additional SEPA review
unnecessary.
7. Dispute Resolution Process.
7.1 The parties shall use their best efforts to resolve disputes arising out of or
related to this Agreement using good faith negotiations by engaging in the following
dispute escalation process should any such disputes arise:
(a) Level One La Pianta's project manager and a City staff member
appropriate to the nature of the dispute (selected from among the
City's Deputy Director of DCD, Building Official, Fire Marshall or
City Engineer, or a designee of any of the foregoing identified by the
Administration)) shall meet to discuss and attempt to resolve the
dispute in a timely manner If they cannot resolve the dispute within
fourteen (14) calendar days after referral of that dispute to Level One,
either party may refer the dispute to Level Two.
(b) Level Two La Pianta's principal and the City's Community
Development Director or Public Works Director (or a designee of
either of the foregoing identified by the Administration) shall meet to
discuss and attempt to resolve the dispute, in a timely manner If they
cannot resolve the dispute within fourteen (14) business days after
referral of that dispute to Level Two, either party may refer the dispute
to Level Three.
(c) Level Three La Pianta's principal (or designee) and the Mayor and
the City Administrator (or the City Administrator's designee) shall
meet to discuss and attempt to resolve the dispute in a timely manner.
Counsel for the parties shall be permitted to attend Level Three
meetings.
7.2 Except as otherwise specified in this Agreement, in the event the dispute is
not resolved at Level Three within fourteen (14) calendar days after referral of that
dispute to Level Three, either party may refer the dispute to binding arbitration, as set
06/10/2009 -34-
forth herein. At all times prior to resolution of the dispute, the parties shall continue to
perform and make any required payments under this Agreement in the same manner and
under the same terms as existed prior to the dispute.
7.3 In the event that a dispute is referred to binding arbitration, the parties
agree to the following procedure:
(a) Binding arbitration between the parties pursuant to this Section shall
be governed by the rules and procedures set forth in this Section.
(b) Within seven (7) calendar days of the date the dispute is referred to
binding arbitration, each party shall provide the other party with the
names of three neutral arbitrators having significant experience in the
subject matter of the dispute and in arbitrating disputes. The parties
will thereafter attempt in good faith to select an arbitrator from this
panel of six candidates.
(c) If the parties to the dispute are unable to agree upon a single arbitrator
within twenty -eight (28) calendar days of the date the dispute is
referred to binding arbitration, then each party shall designate one
arbitrator from its panel of three, the two arbitrators selected in that
manner will choose a third arbitrator from among the remaining panel
members, and this third arbitrator so selected would act as the single
arbitrator for the dispute.
(d) Upon selection of the arbitrator, said arbitrator shall determine the
question(s) raised within fourteen (14) calendar days, unless a different
period of time is otherwise agreed upon by the parties in writing,
provided that issues of arbitrability may not be decided by the
arbitrator. Said arbitrator shall then give both parties reasonable notice
of the time (which time shall be within thirty (30) calendar days of the
arbitrator's determination of the questions raised, unless a different
period of time is otherwise agreed upon by the parties), and place of
hearing evidence and argument; take such evidence as the arbitrator
deems relevant, with witnesses required to be sworn; and hear
arguments of counsel or others.
(e) After consideration of all evidence, testimony and arguments, said
single arbitrator shall, within thirty (30) days of completion of the
hearing, promptly state such decision or award in writing. Said
decision or award shall be final, binding, and conclusive on all parties
to the arbitration when delivered to them, except as provided in
Subsection 7.3(h). Until the arbitrator issues the first decision or
award upon any question submitted for the arbitration, performance
06/10/2009 -35-
(f)
(g)
9. General Provisions.
under the Agreement shall continue in the manner and form existing
prior to the rise of such question. After delivery of said first decision
or award, each party shall forthwith comply with said first decision or
award immediately after receiving it.
La Pianta and the City shall share equally the compensation, costs, and
expenses of the arbitrators, but each shall be responsible for their own
fees and expenses of its own witnesses, exhibits, and counsel. La
Pianta and the City shall pay the compensation, costs and expenses of
the single arbitrator or the additional arbitrator in the board of
arbitrators in equal shares.
The arbitrator shall have the authority to enter awards of equitable
remedies consistent with the obligations of the City and La Pianta
under this Agreement.
(h) The arbitrator shall not have the authority to enter any award, the
satisfaction of which by the party to be bound, would be impermissible
under any law, regulation, or funding agreement to which the bound
party is subject. The determination of any such impermissibility shall
be made by a court of competent jurisdiction within the State of
Washington and under the laws of the State of Washington. Any such
determination shall be appealable.
7.4 This dispute resolution process will not apply to the following disputes: (i)
disputes regarding the accounting of Project revenues and City expenditures; and (ii)
disputes concerning the letters of credit. Any disputes regarding revenues /expenditures
must utilize the dispute resolution process outlined in Section 4.8.3. Issues of
arbitrability of a dispute shall be determined by the Presiding Judge, King County
Superior Court.
7.5 Nothing in this Section 7 shall preclude either party from seeking
injunctive or equitable relief prior to the initiation or completion of this dispute resolution
process.
8. Modifications to Agreement. This Agreement contains all terms, conditions and
provisions agreed upon by the parties hereto, and shall not be modified except by written
amendment executed by both parties. Amendments to this Agreement that materially
modify the intent and policy of the Agreement must be approved by the City Council.
Other amendments may be approved by the City Mayor.
9.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Washington.
06/10/2009 -36-
9.2 Recording. This Agreement or a memorandum thereof shall be recorded
against the Tukwila South Property as a covenant running with the land and shall be
binding on La Pianta, its heirs, successors and assigns until this Agreement expires on its
own terms pursuant to Section 5.2.3.
9.3 Agreement Binding on Successors: Respective Obligations of La Pianta
and Parcel Builders. This Agreement shall be binding upon and shall inure to the benefit
of the heirs, successors and assigns of La Pianta, and upon the City, except as limited and
conditioned in this Agreement. La Pianta's general duties and obligations under this
Agreement for the Tukwila South Project are not intended to be delegated to Parcel
Builders unless a particular duty or obligation, specifically and directly related to the
Development Parcel in question, is expressly imposed by the City as a term or condition
of an Implementing Approval for that Parcel.
9.4 Parcel Builders' Obligations; Notice to City re Parcel Builder: Declaration
of Covenants for Tukwila South Project. The parties acknowledge that development of
the Tukwila South Project may involve transfer of undeveloped or partially- developed
development parcels in the Tukwila South Property or the Expansion Areas, each a
"Development Parcel," to one or more Parcel Builders. Those Parcel Builders will in
turn own, develop and/or occupy portions of the Tukwila South Property and buildings
thereon as part of the Tukwila South Project. Parcel Builders shall be obligated with
respect to all conditions of Implementing Approvals applicable to their respective
Development Parcels, unless such an obligation is specifically identified in this
Agreement or in the Implementing Approval as that of La Pianta. For purposes of this
Agreement, a "Parcel Builder" shall mean an owner or lessee of all or a portion of the
Development Area authorized for development pursuant to this Agreement, or a
successor or assign of an owner or lessee, who develops and/or occupies portions of the
Tukwila South Property or an Expansion Area, or develops and/or occupies buildings
thereon as part of the Tukwila South Project, provided however, that building tenants
shall be excluded from this definition.
9.5 Interpretation: Severabilitv.
9.5.1 Interpretation. The parties intend this 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 36.70B.170 et seq., and this Agreement shall
be construed to exclude from the scope of this 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. If a Tukwila South Development Standard conflicts with
an otherwise applicable provision of the Tukwila Municipal Code, the Tukwila South
Development Standard shall control.
06/10/2009 -37-
9.5.2 Severabilitv. If any provisions of this Agreement are determined
to be unenforceable or invalid in a final decree or judgment by a court of law, then the
remainder of this Agreement not decreed or adjudged unenforceable or invalid shall
remain unaffected and in full force and effect. In that event, this Agreement shall
thereafter be modified, as provided immediately hereafter, to implement the intent of the
parties to the maximum extent allowable under law. The parties shall diligently seek to
agree to modify the Agreement consistent with the final court determination, and no party
shall undertake any actions inconsistent with the intent of this Agreement until the
modification to this Agreement has been completed. If the parties do not mutually agree
to modifications within forty -five (45) days after the final court determination, then either
party may initiate the arbitration process under Section 7 for determination of the
modifications that will implement the intent of this Agreement and the final court
decision.
9.6 Authority. Each party respectively represents and warrants that it has the
power and authority, and is duly authorized, to enter into this Agreement on the terms
and conditions herein stated, and to deliver and perform its obligations under this
Agreement.
9.7 Exhibits and Ar nendices Incoroorated. Exhibits 1 through 11 are
incorporated herein by this reference as if fully set forth.
9.8 Headings. The headings in this Agreement are inserted for reference only
and shall not be construed to expand, limit or otherwise modify the terms and conditions
of this Agreement.
9.9 Time of the Essence. Time is of the essence of this Agreement and of
every provision hereof. Unless otherwise set forth in this 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.
9.10 Entire Agreement. This Agreement represents the entire agreement of the
parties with respect to the subject matter hereof. There are no other agreements, oral or
written, except as expressly set forth herein and this Agreement supersedes all previous
agreements, oral or written.
9.11 Default and Remedies.
9.11.1 Cures Taking More Than Thirty Days. Except as expressly
provided otherwise in this Agreement, no party shall be in default under this Agreement
unless it has failed to perform as required under this Agreement for a period of thirty (30)
days after written notice of default from any other party. Each notice of default shall
specify the nature of the alleged default and the manner in which the default may be
cured satisfactorily. If the nature of the alleged default is such that it cannot be
06/10/2009 -38-
reasonably cured within the thirty (30) day period, then commencement of the cure
within such time period and the diligent prosecution to completion of the cure shall be
deemed a cure.
9.11.2 Rights of Non Defaulting Party. A party not in default under this
Agreement shall have all rights and remedies provided by law or equity, including
without limitation damages, specific performance, or writs to compel performance or
require action consistent with this Agreement.
9.11.3 Attorneys' Fees. In any action to enforce or determine a party's
rights under this Agreement, the prevailing party shall be entitled to attorney's fees and
costs.
9.12 Relief Against Defaulting Party or Portion of Tukwila South Property. In
recognition of the anticipated transfers by La Pianta of parcels of the Tukwila South
Property to Parcel Builders, remedies under this Agreement shall be tailored to the
Tukwila South Property or parties as provided below.
9.12.1 Relief Limited to Affected Development Parcel. Any claimed
default shall relate as specifically as possible to the portion or Development Parcel of the
Tukwila South Property involved, and any remedy against any party shall be limited to
the extent possible to the owners of such portion or Development Parcel of the Tukwila
South Property.
9.12.2 Relief Limited to Affected Owner. To the extent possible, the City
shall seek only those remedies that do not adversely affect the rights, duties or obligations
of any other nondefaulting owner of portions of the Tukwila South Property under this
Agreement, and shall seek to utilize the severability provisions set forth in this
Agreement.
9.13 Term. The Term of this Agreement shall be as set forth in Section 5.2.3
above. Until such time as the City revises the comprehensive plan or development
regulations which apply to Tukwila South during the Term of this Agreement, the goals
of the comprehensive plan and the development regulations to which the project vests
will continue to apply to the Tukwila South Property following the expiration of this
Agreement.
9.14 No Third -Partv Beneficiary. This 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 Agreement.
Parcel Builders in Tukwila South shall be deemed to be successors under this provision.
06/10/2009 -39-
If to La Pianta:
9.15 Interpretation. This 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
Agreement.
9.16 Notice. All communications, notices, and demands of any kind that a
party under this 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 U.S. mail, certified mail
postage prepaid, return receipt requested, and addressed as follows:
If to the City: City of Tukwila
6200 Southcenter Boulevard
Tukwila, Washington 98188
Attn: Mayor's Office and
Director of Public Works and
Director of Community Development
La Pianta LLC
P.O. Box 88028
Tukwila, Washington 98138-2028
Attn: Mr. Mark A. Segale
Notice by hand delivery or facsimile shall be effective upon receipt, provided that
notice by facsimile shall be accompanied by mailed notice as set forth herein and shall be
evidenced by a machine printed confirmation of successful transmission. If deposited in
the mail, certified mail, return receipt requested, 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.
9.17 Delays. If either party is delayed in the performance of its obligations
under this Agreement due to Force Majeure, then performance of those obligations shall
be excused for the period of delay. For purposes of this Agreement, economic downturns,
loss in value of La Pianta assets, inability to obtain or retain financing, do not constitute a
force maj eure event.
9.18 Payments. Any payments made pursuant to the terms of this Agreement
shall be made within thirty days of invoice, unless otherwise specified in the Agreement.
Any late payments shall be subject to interest charges at the rate of 12% per annum.
9.19 Indemnification. Except as otherwise specifically provided elsewhere in
this 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,
06/10/2009 -40-
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 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.
9.20 Tukwila South Proiect is a Private Undertaking. The Tukwila South
Project is a private development and the City has no interest therein except as authorized
in the exercise of its governmental functions.
In Witness Whereof, the parties have caused this Agreement to be executed, effective on
the day and year set forth on the first page hereof.
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CITY OF TUKWILA, a Washington municipal corporation
B /Tt�
Y•
Haggert yor
Date: o
ATTEST:
F/,�
Christy O'Flah&(y, City Clerk
4
APPROVED AS TO FORM:
C 1t y Attorn�
La Pianta LLC, a Washington limited liability corporation
By: Metro Land Development, Inc.,
Its: Manager
By
M.A. Segale, President
Date: (0-10
06/10/2009 -42-