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22-235.00 Neighborly Ventures: Voluntary Mitigation Agreement ��-Z.3 VOLUNTARY MITIGATION AGREEMENT FOR NEIGHBORLY VENTURES TRAFFIC MITIGATION Neighborly Development,LLC This Voluntary Mitigation Agreement ("Agreement") is entered into between Neighborly Development, LLC, its successors and assigns ("Developer"), an Oregon limited liability company, having offices at 2925 River Road South, Suite 100, Salem OR 97302, and the City of Spokane Valley ("City"), a municipal corporation of the State of Washington,hereinafter jointly referred to as"Parties": RECITALS 1. This Agreement is entered into by the Parties pursuant to RCW 82.02.020, to provide a financial contribution toward the Sprague Ave. /Barker Rd. Intersection Improvement Project and the Barker Rd. Improvements — Appleway to I-90 project to mitigate increased traffic volumes generated by the development as proposed in the Developer's permit application BSP-2022-0004 in the City of Liberty Lake. 2. Developer is the owner and/or developer of certain real property generally located within an area located south and adjacent to Country Vista Drive and west and adjacent to Kramer Parkway, identified as parcel number 55165.9003 in the City of Liberty Lake(the"Property"). 3.The Property covers a total of approximately 21.43 acres of land. 4.The Developer has requested approval of the binding site plan associated with the Neighborly Ventures development,a commercial development(the"Development"), which will increase traffic congestion and directly impact existing transportation infrastructure at the intersections of Sprague Ave./Barker Rd. and Appleway Ave./Barker Rd.located within the City. Mitigation of these impacts has been required as part of the approval process pursuant to the Development's State Environmental Policy Act("SEPA") review conducted by the City of Liberty Lake. As part of this requirement,the following mitigating measure was included in the SEPA amended mitigated determination of non-significance dated December 12,2022,for approval of the final binding site plan: As noted, the Applicant shall enter into a voluntary mitigation agreement with the City of Spokane Valley to make their contribution towards improvements along the South Barker Road Corridor and shall pay the COSV the voluntary mitigation fee of$146,900. This value derived from the TSI memorandum dated August 18,2022. Spokane Valley has determined that the Development will contribute 144 PM peak hour trips to the intersection at Appleway Avenue and Barker Road and 20 PM peak hour trips to the intersection of Sprague Avenue and Barker Road as provided in the Technical Memorandum completed by Transportation Solutions Incorporated (TSI) dated August 18, 2022, which the Developer does not dispute. The City and the Developer agree that the traffic generated by the project causes direct impacts at the identified intersections. As such, the City and the Developer agree to a voluntary mitigation fee of $146,900 (5.27% of the Appleway/Barker mitigation project and 1.53% of the Sprague/Barker mitigation project based on the Development's share of intersection volumes) which shall be paid by the Developer as its proportionate contribution to the mitigation projects at said intersections. 5. This Agreement provides for the voluntary payment of a proportionate share of improvements as a direct result of the traffic impacts associated with the Development at the intersections of Appleway Avenue/Barker Road and Sprague Avenue/Barker Road, in an amount that the Parties agree and acknowledge is reasonably necessary. 6. The Parties agree that the payment by the Developer shall be made prior to issuance of the approval of the final binding site plan. 7. The Parties agree that the voluntary mitigation fee identified by TSI in the Technical Memorandum developed as part of the SEPA review dated August 18, 2022, is appropriate to mitigate the impacts directly attributable to the Development in the amount of$146,900. 8. Pursuant to RCW 82.02.020, the City has the authority to allow a payment to mitigate a direct impact that has been identified as a consequence of a proposed development. The Parties (1) have identified transportation impacts generated by the planned development of the Property; and (2) have identified a reasonable relationship between impacts generated as a consequence of the development of the Property to the City's transportation system and the Developer's financial contribution toward those impacts. 9. To mitigate the direct impacts of the development of the Property upon transportation facilities as identified in the document entitled Neighborly Ventures Project Transportation Impacts Technical Memorandum,the Parties are voluntarily entering into this Agreement pursuant to RCW 82.02.020. AGREEMENT NOW,THEREFORE,in consideration of the mutual covenants and conditions contained herein, the Developer and the City agree as follows: 1.Voluntary Agreement. This is a voluntary agreement pursuant to RCW 82.02.020. The Parties agree and acknowledge that the Developer's mitigation payment is freely and voluntarily made as a contribution proportional to and reasonably necessary to mitigate the direct traffic impacts created by the Development. The Developer agrees that the payment established by this Agreement is consistent with the requirements of RCW 82.02.020. Developer, or any of its assignees or affiliated or related parties, shall not assert or claim in any venue: (1)that the City lacked a legal basis for imposing this agreed-upon payment; (2) that this payment lacked sufficient nexus or proportionality with the identified impacts of the Development; or(3) that the payment was greater than if the mitigation measure had been calculated using alternative rationales or formulae. 2.Projects. The Parties agree that the mitigation payment shall be expended by the City on improvements at either or both of the directly impacted intersections of Appleway Avenue at Barker Road and Sprague Avenue at Barker Road, including the Barker Rd. Improvements — Appleway to 1-90, Sprague Ave. / Barker Rd. Intersection Improvement Project, and all necessary components of improvements, as deemed appropriate by the City of Spokane Valley. The City may allocate all or any part of the mitigation payment to any component of improvements at either or both intersections as determined appropriate by the City in its sole discretion. 3. Mitigation Contribution. The voluntary mitigation fee is based on calculations provided by the City in the Technical Memorandum by TSI dated August 18, 2022, entitled Neighborly Ventures Project Transportation Impacts. The Developer agrees to pay $146,900 to mitigate traffic impacts resulting directly from the Development on the intersections of Appleway Avenue at Barker Road and Sprague Avenue at Barker Road. Said fee is based on an estimate of 5.27% cost participation toward the Appleway/Barker improvements and 1.53% cost participation toward the Sprague/Barker improvements, based on the Development's share of intersection volumes. 4.Payment. The Developer agrees to pay all of the above identified voluntary mitigation payments prior to the issuance of a final binding site plan for the Development. 5. Compliance with RCW 82.02.020. Payment collected by the City shall be held in a mitigation fee reserve account and may only be expended towards the design,right-of-way acquisition,construction,and other related components of the projects identified in section 2 of this Agreement. The City shall be entitled to reimbursement from the mitigation fee reserve account for any funds it may expend for the design and construction prior to the collection of the fees. The mitigation fee payment shall be expended by the City within five years from the date of payment by the Developer. Pursuant to RCW 82.02.020, any funds in the mitigation fee reserve account not expended within the five year period identified above shall be refunded by the City with interest; however,if the payment is not expended within five years due to delay attributable to the Developer,the payment shall be refunded without interest. 6. Notice. All communications, notices or demands of any kind which a party under this Agreement is required or desires to give to any other party shall be in writing and be either: (a)Delivered personally; (b) Sent by facsimile transmission with an additional copy mailed first class; or (c)Deposited in the U.S.mail,certified mail postage prepaid,return receipt requested and addressed as follows: If to the City: City of Spokane Valley 10210 East Sprague Avenue Spokane Valley,WA 99206 Fax: (509)720-5075 Attn: City Manager If to the Developer: Neighborly Development,LLC do Brian Moore 2925 River Road South, Suite 100 Salem,OR 97302 7.Covenant Running with the Land; Successors.This Agreement and its component elements shall be covenants running with the land. This Agreement shall be binding on and inure to the benefit of the successors and the assigns of the Developer,including all subsequent purchasers,lessees,or lessors. 8. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Washington. Venue shall be in Spokane County, State of Washington. All disputes arising under or related to this Agreement that cannot be resolved through informal discussion and negotiations shall be resolved by litigation filed in the Superior Court of the State of Washington for Spokane County, unless otherwise required by applicable federal or state law. 9. Modifications. No modification or amendment of this Agreement shall be valid unless the same is reduced to writing and executed with the same formalities as the present Agreement. 10. Waiver. No officer, employee, agent or otherwise of the City has the power, right or authority to waive any of the conditions or provisions to this Agreement.No waiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach. 11. Entire Agreement.This Agreement forms a fully integrated agreement between the Parties.No other understandings,oral or otherwise,regarding the subject matter of this Agreement shall be deemed to exist or to bind any of the Parties hereto. All Parties have read and understand all of the Agreement, and now state that no representation, promise or agreement not expressed in the Agreement has been made to induce any Party to execute the same. The Parties have each had the opportunity to be fully advised by their legal counsel and any other advisors with respect hereto. Each party is executing this Agreement after sufficient review and understanding of its contents. 12. Authority. Both Parties to this Agreement represent and certify that they have full authority and power to enter into and carry out this Agreement. The persons signing this Agreement represent that they have authority to act for and bind their respective principals. 13. No Third Party Beneficiary;. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto and their successors and assigns. In the event of any action or suit brought against the City related to or arising from this Agreement,the Developer agrees to appear in said action or suit and actively cooperate with the City in the defense of the enforceability of this Agreement and each of its terms as set forth herein. 14. Severability. The provisions of this Agreement are separate and severable. The invalidity of any clause,sentence,paragraph, subdivision,section,or portion of this Agreement shall not affect the validity of the remainder of this Agreement or the validity of its application to other persons or circumstance. 15. Attorneys' Fees. In the event that either Party initiates any action to enforce the terms of this Agreement, the substantially prevailing party, including on appeal, shall be entitled to reasonable costs and attorneys' fees and expert witness fees incurred therein. Executed this 77 day of 61rePalei— ,2022. DEVEL ER: Ale.tqit j` beilejr LGG By: 7 Its: C.+r-VQtt?'ZC.41— Dr/V(° y - ‘1A.) &jaiel'14ej143‘f STATE OF 0ret\nn ) )ss. County of ?p t ) On this_day of 4,1 Pecs m b e( 2022 before me, the undersigned, a Notary Public in and for the State of Oregon,duly commissioned an vorh ixersonall appeared 5 r i an Ill uO ol r�C to me known to be the&Myr ceejr .r eff (e rn cm ber' e+ n eroh borty aktivprYw't" L L C. , the corporation that executed the foregoing instrument, and acknowledged the instrument to be the free and voluntary act and deed of the corporation,for the uses and purposes therein mentioned,and on oath stated that he is authorized to execute the instrument. WITNESS my hand and official seal hereto affixed the day and year in this certificate above written. 7r�(ti � .1LLL C/LO1JL OFFICIAL STAMP OTARY PUBLIC,in and for th State of Oregon, r` _`- ? YUNMEE SARA CROSSLER-LAIRD residing at Mart 0(‘ Good �rAr NOTARY PUBLIC-OREGON sr COMMISSION NO.1026926 My commission expires: Roo * ,o 21 a oa6 MY COMMISSION EXPIRES AUGUST 02,2026 u n me2 5A rr. Ci rr?Sb1_P r-L La rd Printed Name CITY OF SPOKANE VALLEY: J hn Hohman,City Manager ATTE . APPROVED AS T FORM: 'stine Bainbridge,City Clerk ce of the City Attorney