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08-060.00 Lowe's and Kohl's Retail Center BSP 01-07.. -- • • After Recording, return document to City of Spokane Valley Attn: City Clerk 1 1707 E Sprague Avenue Ste 106 Spokane Valley, WA 99206 VOLUN'T'ARY MITIGATION AGRE~i1'IENT l,,owe's & Kohl's Retail Center BSP-01-07 't'his Mitigation Agreement ("A6n'eement") is entered into by and beh~~etin Black Enterprises LP ("Developer"), a Washington Limited Liability Company, and tJte City of Spokane Valle}' ("City"), a political subdivision of the_ State of \4'ashington, hereinafter jointly referned to as "Parties." RECITALS 1. This agreement is entered into by the Parties pursuant to RCVd 82.©2.020 to mitigate a direct impact. identified a_s a consequence of the development of the property. 2. The Developer is the owner/developer of certain real property, parcel 45135.9091, of approximately 22.7 acres and generally located north of and adjacent to Broadway Avenue; and is situated in Section 13, Township 25 North, Kange 4a E, V1rM, in Spokane County, V~'ashington. Said property is more specifically described in Exhibit A attached hereto and by this reference incorporated herein. 3. The T.~eweloper has received approval of the Binding Site Plan identified as 13SP-01-07, a commercial development which will create three (3) commercial lots. Traffic mitigation has been required as part of the approval process for the final plat with the following condition of approval: C08-60 • • • • 1. The developer is to contribute (5147,500) of the cost for the design and installation of the Sprague/Conklin signal. The developer may opt to complete the signal design and reduce their contribution by the. consultant's desitin fee. This option would be subject to the following requirements: a. The reduction for the design fee may not exceed 540,040. b. The developer's consultant will prepsre bid-ready plans, specifications and engineer's estimate to City specifications. The City staff' ~+~ill provide reviews at 60% and 90% completion of the plans. c. Iftinfrl plans, specifications, and estimate are to he completed by August 31, 2007. 4. The Parties are desirous of entering into an Agreement, +vhich provides for the payment of a proportionate share of improvements deemed necessary at the intersection of Sprague Ave. and Conklin Road, which are a direct result of traffic impacts associated with the Development. 5. ~'he Developer's contribution to the traETic signal shall be $147,500, minus up to $40,000 offset for the design for the traffic signal. The City estimates the cost of the traffic sigmal at $250,000. AGI2FFMENT \'OVV, TH:ERf~FOR>s, in consideration of the mutual covenants and conditions hereafter set forth; the Developer and the City hereto agree as follo~+'s: 1. Voluntary Agreement. This Agreement, includinf; all attached documents; is a voluntary agreement as that term is used in RCVJ 82.02.020. The contribution officred is proportional to the traffic related impacts generated by the Development_ The parties ackno+vledge Ihat the project is reasonably necessary to mitigate die direct traffic impact of the Development. In the event this mitigation agreement is breached by the Developer, all of the Ciry's obligations under this agreement shall tern~inate. Ln the event this mitigation agreement is determined by a court to be invalid, the City shall refund the unexpended portion of the contribution, and the City's obligations under this agreement shall terminate. 2. Protect. The project shall consist of the intersection of Sprague Avenue and Conklin Road traffic signal. desi~Tn and installation of a traffic: signal at the The mitigation fee is based upon the cost of the 3. Contribution. The Developer shall pay $147,500, (minus up to $40;000 offset for the design for the. traffic signal) which has been determined to be the Developer's proportionate contribution to the Project for mitigation of fuhrre tnffie impacts related to the Development. This kraffic mitigation fee shall be used for the desi~ and/or construction of the improvements to this intersecaion. 4. Payment The Developer aln-ees to pay all of the above identified mitigation fee no later than thirt~}~ (30) days after the project bid date for construction. The City will notify the 17eveloper in +vritirtg of the project bid date +vhcn it is determined. if payment is not tamely received, the City may immediately access the funds secured by the letter of credit described below. A letter of credit, which gives the City a unilateral right to access the funds pursuant to this agreement from a financial institution, shall be provided to the City upon execution of this agreement and prior to acceptvrce of this ag*r-eement by the City. • • 5. Comaliance ++~ith RCW $2.02.020. Payment collected by the City will be held in a miti~atian fee reserve account and may only be upended to fund the design, right-0f--way acquisition; and constn~ction of the Project. Payments shall be expended within f ve (~) years of collection. 'the City shall be entitled to reimbursement from the. mitigation fee reserve account for any funds it may expend for the design, right-of--way acquisition, and construction of the Project prior to the collection of the fee. Any funds in the mitigation fee reserve account not expended within fve (~) years shall be refunded by the City with interest as provided in RCW 82.02.020. 6. \`otice: 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 (l) delivered personally, (2) sent by facsimile transmission with an additional copy mailed first class, or (3) 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 l 1707 E. Sprague Ave., Suite 106 Spokane Valley, WA 992U(i Pax: (~09) 921-10U~ Attn: City ivlanater If to the Developer. Black Enterprises LP 107 S Howard Street, Suite 500 Spol:ttne, ~'-'A 99201 7. Successors. This Agreement shall be binding on and inure to the benefit of the successors and the assigns of the Parties. S. Governing Law. This Agreement shall be construed in accordance ++~ith the laws of the State of Washington. Any action for enforcement of this Agreement shall be brought in a court of competent jurisdiction in Spokane County, Washington or as otherwise provided by statute. 9. iVladifications. i~'o modification or amendment of this tAgreernent shall be valid until the same is reduced to +vriting and executed with the same formalities a_s the present Agreement. 10. Waiver. \'o 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. 1 1. Re[tresentation. This Agreement forms a fully integrated agrreement bet+veen 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. l2. Authorih'• Both Parties to this Agreement represent and certify that they have full authority and po+ver to enter into and carry out this Agreement. The persons sisming this Ag~rcement represent that they have authority to act for and bind their respective principals. • • 1N VITITNESS \~RT'OP; the Parties have executed this Agreement this ~ day of 2008. DEV)LLOYER: ley: ~~-~ ~ ~ ~~~s its: ~~ ~ p~ ~ Name: ~ ~ STATE OP WASHINGTON ) ss. County of Spokane ) On this ~_ day of ti,~ / 2008 before me, the undersigned, a Notary Public in and for the State of Washi gton, duly commissioned and sworn, personally appeared ~1xVI~-~=-~~~..e. tom kno~a~n to be the ,~,~,~,e of the partners up that esocuted the foregoing instrument, and acknowledged th insinrment to be the Gee and voluntary act and deed of the partnership, 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. Printed Name PLANE • VgyA v a, `gytON ~ 9,9` ~ Pt/8114 927 -~ ~~ WA~~ • • CITY tJt~ SPOKAI~iE ~'AI.:I..EY: ATTE ~`G Da~+id Merci ity Manager rist.inc Bainbridge, ity Jerk /1PPROVBI7 AS TO FORM: ,,,,a., Ot~~ce the City nrncy