6a attach 3
Item No. 6a Attachment 3
Date of Meeting June 10, 2014
Resolution No. 1252
Page 2 of 2
Des Moines Creek Business Park once all master plan requirements
of DMMC 18.105.050, are approved including:
(1) A complete site plan consistent with the Conceptual Site
Area shown in Exhibit B of the Agreement;
(2) Conceptual building locations, parking areas, and
landscaping plans;
(3) A conceptual utilities plan;
(4) Covenants, conditions, and restrictions controlling
future development;
(5) A sign program;
(6) A subdivision application;
(7) Satisfactory completion of the environmental checklist;
(8) A narrative description of the project proposal
consistent with DMMC 18.105.050(3)(e);
(9) An acceptable traffic analysis and report consistent
with DMMC 18.105.050(3)(f).
ADOPTED BY the City Council of the City of Des Moines,
Washington this 20th day of February, 2014 and signed in
authentication thereof this 20th day of Fe ary, 2 14.
APPROVED AS TO FORM:
Assistant Cit Attorney
ATTEST:
ib
City Clerk
Attachment "A", Resolution No. 1252
DRAFT 10: 0212/14
AMENDED & RESTATED SECOND
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF DES MOINES
and
THE PORT OF SEATTLE
DRAFT 10: 0212/14
TABLE OF CONTENTS
SECTION I. DEFINED TERMS
........................................................................................
2
[.1 Agreement..................................................................................................................... 3
[.2 Conceptual Master Plan. ............................................................................................... 3
L3 DMCBP
.........................................................................................................................
3
1.4 DMMC.
.........................................................................................................................
3
1.5 Development Regulations............................................................................................. 3
1.6 Environmental Documents
............................................................................................
3
[.7 Master Plan.
.................................................................................................................. 3
1.8 Permitted Uses.
............................................................................................................. 3
1.9 Port
................................................................................................................................
3
1.10 Project. .......................................................................................................................... 3
1.11 Transportation Gateway Project. .................................................................................. 3
1.11.1 S.216thSt.-SegmentlA: ...................................................................................... 4
1.11.2 S. 216th St. - Segment 1B:
......................................................................................
4
1.11.3 S. 216th St. - Segment 2:
........................................................................................
4
1.11.4 24th Avenue South Segment:
..................................................................................
4
SECTION 2. PURPOSE
...................................................................................................... 4
2.1 General.
.........................................................................................................................
4
2.2 Assurances.
...................................................................................................................
4
SECTION 3. PROPERTYDESCRIPTIONS
.......................................................................
5
3.1 Property......................................................................................................................... 5
3.2 Zoning Designation....................................................................................................... 5
SECTION 4. PARTIES
........................................................................................................
5
4.] The City.
.......................................................................................................................
5
4.2 The Port
.........................................................................................................................
5
SECTION 5. PROJECT
.....................................................................................................
6
5.1 General.
......................................................................................................................... 6
5.2 Phases
............................................................................................................................ 6
5.2.1 Area 1
...................................................................................................................
6
5.2.2 Area 2
...................................................................................................................
6
5.2.3 Area 3
................................................................................................................... 6
SECTION 6. BA CKGROUND DOCUMENTA TIONAND PREVIOUSAGREEMENTS... 6
6.] General.
......................................................................................................................... 6
6.2 DMCBP Conceptual Master Plan.
................................................................................
6
6.3 DMCBP Dra EIS.
....................................................................................................... 7
6.4 DMCBP Final EIS.
.......................................................................................................
7
6.5 Trafc Trip Thresholds Technical Memorandum
........................................................
7
i/iv DMCBP Amended & Restated 2nd Development Agreement
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6.6 Wetland ReDelineation Report
....................................................................................
SECTION 7. DEVELOPMENTREGULA TIONS
..............................................................
7
7.1 General.
.........................................................................................................................
7
7.2 Parking. ......................................................................................................................... 7
7.3 Recreation Requirements.
............................................................................................. 7
7.3.1 Joint Use Access Path.
............................................................................................
8
7.3.2 Des Moines Creek Trail Connection
.......................................................................
8
7.4 Landscaping Requirements........................................................................................... 8
7.5 Performance Standards.
................................................................................................ 8
SECTION 8. MASTER PLAN
............................................................................................. 8
8.1
Approval. ...................................................................................................................... 8
8.2 Limitation
......................................................................................................................
9
SECTION 9. STA TE ENVIRONMENTAL POLICYA CT ("SEPA ")
................................. 9
9.1 Development Agreement. ............................................................................................. 9
9.2 SEPA Review
................................................................................................................
9
9.3 Supplemental Trafc Impact Analysis. ........................................................................ 9
9.4 Other Mitigation Measures.
..........................................................................................
9
SECTION 10. [INTENTIONALLYDELETED]
...............................................................
10
SECTION 11. TRANSPORTA TIONINFRASTRUCTUREIMPROVEMENTS
..............
10
11.1 Access and Internal Roadways.
..................................................................................
10
1 1.1.1 South 208th Street (Public).
..................................................................................
10
11.1.2 South 211th Street (Public).
..................................................................................
10
11.1.3 South 214th Street/20'h Avenue South (Public):
....................................................
11
South 214th Street/20m Avenue South
...............................................................................
11
11.2 Frontage Improvements. ............................................................................................. 12
11.2.1 South 216th Street
.................................................................................................
13
11.2.2 24th Avenue South
................................................................................................
13
11.2.3 20th Avenue South Trafc Signal
........................................................................ 13
11.2.4 South 208'h Street Trafc Signal
..........................................................................
14
11.3 Transportation Impact Fees ......................................................................................... 14
11.4 Project and System Improvements.............................................................................. 14
SECTION 12. DRAINAGE REQUIREMENTSAND INFRASTRUCTURE
....................
15
12.1 General.
.......................................................................................................................
15
12.2 Standard.
.....................................................................................................................
15
12.3 Surface Water Management Fees.
..............................................................................
15
12.4 Flow Control.
..............................................................................................................
15
12.6 Drainage Reports. ....................................................................................................... 16
12.6.1 Areas 1 and 2
..................................................................................................................... 16
12.6.2 Area 3.
...............................................................................................................................
16
SECTION 13. ENVIRONMENTALLY CRITICAL AREAS
............................................. I6
ii/iv DMCBP Amended & Restated 2"d Development Agreement
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13.1 Wetlands and Ditches.
................................................................................................
16
13.2 Permits.
.......................................................................................................................
16
13.3 Mitigation Site. ........................................................................................................... 16
13.4 Critical Aquifer Recharge Area.
.................................................................................
16
13.5 Tracts
...........................................................................................................................
17
SECTION 14. PERMITTING
...........................................................................................
I 7
14.1 General
........................................................................................................................ 17
14.2 Short Subdivision. The Port shall submit, for City approval, a Short Subdivision
application consistent with the approved Master Plan and DMMC 17.12 ............................. 17
14.3 Design Review. ........................................................................................................... 17
14.4 Clearing and Grading. ................................................................................................. 17
14.5
Building Permits. ........................................................................................................ 17
14.6 Right-of-Way Permits. ................................................................................................ 17
14.7 Permit Fees
..................................................................................................................
18
SECTIONIS. VESTEDRIGHTSAND TERM
.................................................................
18
15.1 Duration and Termination
........................................................................................... 18
15.2 Vesting of Development Regulations. ........................................................................ 18
SECTION 16. CERTAINTY OFDEVELOPMENTAGREEMENT
..................................
19
16.1 Development Agreement Deemed Controlling. ......................................................... 19
16.2 Subsequent Actions..................................................................................................... 19
16.3 Changes in the Law..................................................................................................... 19
16.4
Emergency Situations. ................................................................................................ 19
SECTION 1 7. GENERAL PROVISIONS
.........................................................................
19
17.1 Notices, Demands and Communications. ................................................................... 19
17.2 Amendments.
..............................................................................................................
20
17.3 Other Government Approvals
..................................................................................... 20
17.4 Conict of Interests
..................................................................................................... 20
17.5
Non-Liability of City, Ofcials, Employees, and Agents. ......................................... 20
17.6 Enforced Delay.
..........................................................................................................
20
17.7 Title of Parts and Sections.
.........................................................................................
21
17.8 Hold Harmless.
...........................................................................................................
21
17.9 Enforcement, Rights and Remedies Cumulative. ....................................................... 21
17.10 Applicable Law. .......................................................................................................... 21
17.1 1 Severability. ................................................................................................................ 21
17.12 Legal Actions. ............................................................................................................. 21
17.13 Binding Upon Successors. .......................................................................................... 22
17.14 Parties Not Co-ventures.
.............................................................................................
22
17.15 Wan'anties.
..................................................................................................................
22
17.16 Reasonable Approvals.
...............................................................................................
22
17.17 Recordation.
................................................................................................................
22
iii/iv DMCBP Amended & Restated 2"d Development Agreement
DRAFT 10: 0212/14
17.18 Execution of Other Documentation.
...........................................................................
17.19 Complete Unde1standmg of the Parties. ..................................................................... 22
EXHIBITS
DMCBP Legal Description
EMDQWA Master Plan
Environmental Mitigation (SEPA)
Development Trafc Trip Thresholds
Wetland Mitigation Area Map
Executive Order 13-003: City- Wide Development Incentive (Permit Fees)
iv/iv DMCBP Amended & Restated 2" Development Agreement
DRAFT 10: 02/12/14
AMENDED & RESTATED SECOND DEVELOPMENTAGREEMENT
BY AND BETWEEN
THE CITY OF DES MOINES
and
THE PORT OF SEATTLE
THIS AMENDED & RESTATED SECOND DEVELOPMENT AGREEMENT,
hereinafter referred to as the "Agreement", is entered into effective on the day of
2014 by and between the City of Des Moines, a Washington municipal corporation
,
(hereinafter referred to as the "City") and the Port of Seattle, a Washington municipal
corporation (hereinafter refen'ed to as the "Port") in connection with the real property described
herein (hereinafter referred to as the "Property"), and development of the Property by its assigns
for the purposes and on the terms and conditions set forth herein.
RECITALS
A. The City is a noncharter code city organized pursuant to Chapter 35A.13 RCW of the
laws of the State of Washington having authority to enact laws and enter into agreements to
promote the health, safety, and welfare of its citizens, and thereby control the use and
development of property within its jurisdiction.
B. The Port is a municipal corporation, with authority under the Revised Airports Act,
Chapter 14.08 RCW; the Airport Zoning Act, Chapter 14.12 RCW, the State Environmental
Policy Act (SEPA), Chapter 43.21C RCW; certain port district enabling statutes; and other state
and local laws, to exercise discretionary land use jurisdiction over real property located with its
boundaries.
C. The Port and City share the goals of creating an attractive and safe commercial
development, an employment center that provides family wage jobs, a new source of direct and
indirect longterm revenue for both the Port and the City, and increasing trade opportunities for
the region.
D. The Port and the City executed the "First Development Agreement" concerning the
Property in July 2005 under the authority of RCW 36.7OB.I70-.210 and the lnterlocal
Cooperation Act, Chapter 39.34 RCW, to enter into agreements for joint performance of actions
within their separate powers.
E. The Port and City subsequently amended the First Development Agreement with a
First Addendum in May 2008, and a Second Addendum modifying the First Addendum in
1/24 DMCBP Amended & Restated 2"d Development Agreement
DRAFT 10: 02/12/14
November 2010 regarding compensation for dedicated and deeded rights of way and purchase of
right of way frontage within and for the Des Moines Creek Business Park (DMCBP).
F. The Port and City entered into a Second Development Agreement as of June 15, 2012
which this Agreement amends and restates in its entirety to reect the revised terms and
conditions under which the Property will be developed.
G. RCW 36.70B.170. et. seq._, authorizes the City to enter into development agreements
with owners, contract purchasers, and option holders of real property, to establish, among other
things, the "development standards and other provisions that shall apply to and govern and vest
the development, use, and mitigation of the development of the real property for the duration
specied in the agreement.
H. RCW 36.70B. 1 90 requires that any development agreement be recorded with the real
property records of King County.
I. The City and the Port have agreed to enter into this Agreement to establish, among
other things, the development standards and other provisions that shall apply to, govern and vest
the development, use, and mitigation of the development of the Property for the duration
specied in the Agreement.
J. The proposed Project accomplishes the statutory intent of a comprehensive, orderly,
planned development within the City, providing public benets to the citizens and residents of
the City.
K. Pursuant to RCW 36.70B.200, a public hearing has been held before the City Council
and the City Council has enacted Resolution authorizing the City Manager to enter
into this Agreement, and
L. The Port Commission voted on 2014 to authorize the Port Chief
,
Executive Ofcer to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants of the
parties contained herein, and pursuant to RCW 36.708.170-200, the parties hereto agree as
follows:
AGREEMENT
SECTION 1. DEFINED TERMS
Terms not otherwise dened herein have the meaning set forth in 36.708.170 RCW, the
provisions of which are incorporated herein by reference.
2/24 DMCBP Amended & Restated 2'"1 Development Agreement
DRAFT 10: 02/12/14
1.1 Agreement. This Amended & Restated Second Development Agreement by and
between the City of Des Moines and the Port of Seattle.
1.2 Conceptual Master Plan. The Des Moines Creek Business Park Conceptual
Master Plan dated April 2006 prepared by CH2M Hill.
1.3 DMCBP. The Des Moines Creek Business Park, an approximately 89acre
property owned by the Port within the City, which can be generally described as the area
bounded by South 216th Street to the south, the City municipal boundary to the north (roughly
South 208th Street), 24th Avenue South to the east and the surplus SR 509 right-ofway to the
west.
1.4 DMMC. The Des Moines Municipal Code.
1.5 Development Regulations. The controls, requirements, and limitations placed
on development within the City adopted by the City, including, but not limited to, zoning
ordinances, critical areas ordinances, shoreline master programs, drainage requirements,
transportation requirements, SEPA ordinances, and subdivision ordinances.
1.6 Environmental Documents. The background environmental studies identied in
Sections 6.3 6.6 of this Agreement.
1.7 Master Plan. The generalized layout plans for development of the Property,
including but not limited to environmental protections, transportation, surface water, general
building location, associated parking facilities, loading facilities, square footage of buildings,
utilities, and identication of lots and tracts.
1.8 Permitted Uses. The uses allowed on properties zoned Business Park (B-P) as
established by DMMC 18.52.010B.
1.9 Port. The Port of Seattle and/or the developer(s) who have executed a ground
lease with the Port for development within the DMCBP.
1.10 Project. The phased build-out of the DMCBP consistent with the terms of this
Agreement.
1.11 Transportation Gateway Project. The City's project to construct transportation
improvements to the South 216th Street and 24th Avenue South rights-ofway to accommodate
multiple modes of travel (pedestrians, bicycles, transit, automobiles, & freight) in support of the
3/24 DMCBP Amended & Restated 2'1d Development Agreement
DRAFT 10: 02/12/14
DMCBP as well as accommodating future growth as reected in the City's Comprehensive
Transportation Plan. The project limits for South 216'h Street are between l-5 and 18'11 Avenue
South and for 24lh Avenue South are between South 2081h Street and South 216"] Street. The
project has been split in to the following segments:
1.11.1 S. 216th St. - Segment 1A: This segment of the project includes the
portion of South 216"' Street from 29'h Avenue South to 24th Avenue
South.
1.11.2 S. 216th St. - Segment 18: This segment of the project includes the
portion of South 216'11 Street from 29'" Avenue South to 1-5. It is
envisioned that Segment 18 of the project will be constructed concurrent
with the State's SR 509 construction project and in coordination with the
City of SeaTac.
1.11.3 S. 216th St. - Segment 2: This segment of the project includes the
portion of South 216th Street from 241" Avenue South to 18th Avenue
South including the 24th/216th intersection.
1.11.4 24th Avenue South Segment: The portion of 24Ih Avenue South from
South 208th Street to South 216'" Street.
SECTION 2. PURPOSE.
2.1 General. The parties agree that this Agreement is premised upon the DMCBP
Master Plan (Exhibit B), being approved by the City and the subsequent administrative approval
and recordation of the DMCBP Short Plat. This Agreement addresses the development standards
and other provisions that apply to and govern and vest the development, use, and mitigation of
the development of the Property for the duration specied herein. It will guide the phased
development of the Project, including addressing the street and stonnwater improvements related
to build-out of the Project.
2.2 Assurances. The Port desires to obtain and the City makes the following
assurances:
- The Property is appropriately zoned to serve the needs envisioned in the
Master Plan.
0 The requirements for improvements to public streets and related infrastructure
under the jurisdiction of the City are specically identied.
4/24 DMCBP Amended & Restated 2"d Development Agreement
DRAFT 10: 02/12/14
0 The development standards, including any modications and other provisions
which apply to the development of the Property, are clearly specied.
0 Required environmental mitigation is accurately identied.
0 Upon receipt of its development and construction permits the Port may
proceed with the development of the Project.
0 The Development Regulations vested for the duration of the Project are
clearly identied.
SECTION 3. PROPERTY DESCRIPTIONS
3.1 Property. The Propeity subject to this Agreement is commonly referred to as the
DMCBP and is fully described in Exhibit A attached hereto and incorporated herein by this
reference.
3.2 Zoning Designation. The zoning designation of the Property as Business Park
(B-P) and the current Permitted Uses associated therewith shall not be more restrictive than those
in effect as of the date hereof for the duration of this Agreement as provided for in Section 15
below.
SECTION 4. PARTIES
4.1 The City. The City of Des Moines, a municipality of the State of Washington,
exercises governmental functions and powers pursuant to the laws of the State of Washington
and the DMMC. The principal ofce of the City is located at 21630 11'h Avenue South, Des
Moines, Washington 98198.
4.2 The Port. The Port of Seattle, a municipal corporation, exercises governmental
functions and powers pursuant to the laws of the State of Washington. The principal ofce of the
Port is located at 271 1 Alaskan Way. Seattle, Washington 98121.
4.3 The Developer. The Port anticipates entering into option and ground lease
agreements with Panattoni Development Company, Inc. or a related entity under which
agreements Panattoni will assume the rights and obligations of the Port under this Agreement.
5/24 DMCBP Amended & Restated 2nd Development Agreement
DRAFT 10: 02/12/14
SECTION 5. PROJECT
5.1 General. The DMCBP is envisioned as a thriving center for diverse light
industrial and commercial activities.
5.2 Phases. It is anticipated that the Project will be developed in three phases that
correspond to the three geographical areas identied in the Master Plan (Exhibit B) and
generally descbed as follows:
5.2.1 Area 1 Area 1 consists of Lots 1 3, Tracts A, Y and Z, and South 208th
Street and South 211th Street of the DMCBP Short Plat, and covers
approximately 30 acres. The Port anticipates this area will be developed
with approximately 535,830 square feet of business park uses, including
light industrial or commercial ofce uses.
5.2.2 Area 2 Area 2 consists of Lots 4 5, and South 214th Street of the
DMCBP Short Plat and covers approximately 30 acres. The Port
anticipates this area will be developed with approximately 497,425
square feet of business park uses, including light industrial or commercial
ofce uses.
5.2.3 Area 3 Area 3 consists of Lots 6 9, Tracts B, D and X, and 20th
Avenue South of the DMCBP Short Plat. The Port anticipates this area
will be developed with business park uses, including light industrial,
commercial ofce, or retail uses.
SECTION 6. BACKGROUND DOCUMENTATION AND PREVIOUS AGREEMENTS
6.1 General. The terms of this Agreement and the development envisioned for the
DMCBP is inuenced by a number of previous documents. The documents identied in this
Section evaluated numerous aspects of the Property and provide critical information utilized to
formulate decisions associated with the development of the Propelty and the preparation of this
Agreement.
6.2 DMCBP Conceptual Master Plan. The Des Moines Creek Business Park
Conceptual Master Plan dated April 2006 prepared by CHZMHill. This report presented
illustrative concepts for the development of the DMCBP given the site's physical features, the
applicable development regulations, and market conditions. It was meant to be representative of
6/24 DMCBP Amended & Restated 2"d Development Agreement
DRAFT 10: 02/12/14
the range of possible future buildout scenarios. This report was also utilized to complete the
environmental review analysis required under the State Environmental Policy Act (SEPA).
6.3 DMCBP Draft EIS. The Des Moines Creek Business Draft Environmental
Impact Statement dated November, 2006 prepared by Blumen Consulting Group Inc., A.C.
Kindig and Co., Cedarock Consultants, and CHZMHill. The Draft Environmental Impact
Statement (DEIS) analyzed and identied the probable signicant environmental impacts that
could occur as a result of development of the DMCBP. The DEIS also identied environmental
mitigation measures that must be incorporated into the Project to reduce or prevent the identied
environmental impacts. The DEIS was completed jointly by the City and the Port as SEPA Co-
Lead Agencies.
6.4 DMCBP Final EIS. The Des Moines Cree/t Business Final Environmental
Impact Statement (FEIS) dated March, 2007 prepared by Blumen Consulting Group 1110., AC.
Kindig and C0,, Cedarock Consultants, and CH2MHill. The FEIS provided additional
information and responses based on comments received during the comment period for the
DEIS. Together, the FEIS and DEIS comprise the environmental impact statement for the
DMCBP project as required by SEPA.
6.5 Trafc Trip Thresholds Technical Memorandum. The Des Moines Creek
Business Park Draft Project Element Trafe Trip Thresholds Technical Memorandum dated
Febmary 20, 2007 prepared by CHZMHill. This technical memorandum describes the projected
trafc volume the DMBCP could generate before triggering the project elements described in the
Trafc Analysis Report of the DMCBP DEIS (Exhibit D).
6.6 Wetland Re-Delineation Report. The 2014 Wetland Delineation and Habitat
Assessment Des Moines Creek Business Park Facilities prepared by Soundview Consultants.
The report re-delineated and assessed the wetlands and other potentially regulated aquatic
features of the Property.
SECTION 7. DEVELOPMENT REGULATIONS
7.1 General. The Port shall comply with all applicable Development Regulations,
except as modied by this Agreement.
7.2 Parking. The City agrees to waive the parking requirement established by
DMMC l8.210.090(5)(c) that requires one (1) parking space for every 2,000 square feet of
uncovered storage area for Area 1, 2 & 3 pursuant to DMMC l8.210.070(1).
7.3 Recreation Requirements. The Port shall provide the recreational facilities
described in this Section.
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7.3.1 Joint Use Access Path. The Port will construct a lZfoot-wide joint use
pedestrian and bike pathway located adjacent to South 214th Street and
20th Avenue South north of 216th Street (previously identied as the
Internal Loop Road). The construction of the joint use access pathway
will be completed in conjunction with the construction of South 214th
Street and 20th Avenue South, connecting at South 2161h Street. The Joint
Use Access Path will be completed as part of the construction of Areas 2
& 3 where South 214th Street is planned and connecting to 20'h Avenue
South as shown on the Master Plan.
7.3.2 Des Moines Creek Trail Connection. The Port will construct a 12-footwide
joint use pedestrian and bike pathway within a 24-foot-wide tract to
provide a connection to the Des Moines Creek Trail in conjunction with
the development of Area 3. The location of the tract will be south of the
tract established for the detention facilities for Areas 1 and 2, as illustrated
on the Master Plan (Exhibits B). The tract will be established as part of
the DMCBP Short Plat. This connection will provide access from the
Joint Use Access Path via Barnes Creek Trail to the Des Moines Creek
Trail which is part of the Lake to Sound Regional Trail System.
7.4 Landscaping Requirements. The City agrees to waive the requirement of
DMMC l8.l95.340(2) that sites within the DMCBP provide a twenty (20) feet wide Type I
landscaping strip including a ve (5) foot tall earthen berm adjacent to 24'h Avenue South and
South 2161' Street pursuant to DMMC 18.230.120. In lieu of the required landscaping, the Port
agrees to install a ten (10) foot wide Type II landscaping strip as dened by DMMC 18.195.390
along 24th Avenue South and South 216th Street.
7.5 Performance Standards. The requirement of DMMC 18.105.070(4)(c) that
warehouse, light manufacturing and distribution buildings be designed and oriented to locate the
shorter width of the building toward the public right-of-way is waived. Buildings will be
designed so that the ofce portion will be oriented towards the adjacent public street with the
highest classication.
SECTION 8. MASTER PLAN
8.1 Approval. The City agrees that the Master Plan attached as Exhibit B and
incorporated by this reference satises requirements of DMMC 18.105.050 for Area 1 & 2. The
Port agrees that a master plan amendment for Area 3 will be submitted to the City for review that
will be processed in accordance with DMMC 18.105.060 and as an amendment to this
Agreement pursuant to Section 17.2.
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DRAFT 10: 02/12/14
8.2 Limitation. The Parties acknowledge that approval of the Master Plan by the
City constitutes approval of the general layout of the Project and is subject to permitting
conditions to be identied on individual permits. Master Plan approval does not constitute
acceptance or approval of specic details of the Project. When the Port seeks permits to develop
an individual area within the Property, the Port shall submit appropriate permit applications
which include but are not limited to the applications identied in Section 14 and the
supplemental trafc impact analysis as described in Section 9.3.
SECTION 9. STATE ENVIRONMENTAL POLICY ACT ("SEPA")
9.1 Development Agreement. The City's approval of a development agreement is a
"project action" as dened by the State Environmental Policy Act (SEPA) and, as such, requires
environmental review. The Parties agree that the SEPA review required for consideration and
adoption of this Agreement has been fullled with the publication of the Environmental
Documents.
9.2 SEPA Review. The Parties acknowledge that the Environmental Documents
fully evaluated the environmental impacts from the development of the Project and that the City
will review the submitted materials to ensure that the project is within the list of Proposed
Actions evaluated. Given that the size of the development proposed for Areas 1 and 2
(approximately 1.0 million square feet) is within the upper limit of the SEPA evaluation
(900,000 1.1 million square feet), additional environmental review may be required for Area 3
development.
9.3 Supplemental Trafc Impact Analysis. Several project and system
improvements were identied within the Environmental Documents, and assumed to be
constructed and in place at various points of the phased build-out of the Project, In order to
mitigate the trafc impacts associated with the Project, trip thresholds were established that
would trigger these various project and system improvements. The Port shall submit, for City
review and approval, a supplemental trafc impact analysis with each phase of the Project to
document that the proposed phase of the Project is consistent with the trafc analysis in the
Environmental Documents. If the proposed phase of the development is not consistent with the
trafc analysis in the Environmental Documents, additional mitigating measures may be
required.
9.4 Other Mitigation Measures. As triggered during build-out of the Project, the
Port agrees to implement the other environmental mitigation measures not related to trafc
impacts established by the Environment Documents and provided in Exhibit C.
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SECTION 10. [INTENTIONALLY DELETED]
SECTION 11. TRANSPORTATION INFRASTRUCTURE IMPROVEMENTS
11.1 Access and Internal Roadways. Roadways on the Property accessing
South 216'" Street and 24th Avenue South shall be built to City of Des Moines Street
Development Standards (Street Design and Construction Standards) as described in this
Section.
11.1.1 South 208th Street (Public). The Port shall construct the northern access
roadway identied in the Environmental Documents generally within the
boundaries of the vacated/surplused South 208'h Street; provided that the
roadway will be modied to be a dead end cul-de-sac.. This road will be
placed within a 60-footwide right-ofway, shall align with South 208th
Street on the east side of 24th Avenue South, and shall be dedicated to the
City as part of the DMCBP Short Plat. Prior to the construction of the
road, the Port shall prepare civil engineering plans for review and approval
by the City generally consistent with the cross-section provided in the
City's Street Development Standards. The City will take over
maintenance responsibility of this roadway when its construction is
completed, and it is accepted in accordance with the provisions of the
City's right-of-way permit. The threshold trigger for completion of South
208th Street shall be concurrent with the development of Areal.
The Port shall have the option of paying the design and construction
change order cost of the City associated with building the roadway
approach and sidewalk curb returns located in the right-of-way, or build
these improvements independently of the City's current 24'h Avenue South
construction project. The City has made adjustments to the locations of
the utilities and associated vaults to accommodate the roadway approach
at South 208th Street, on the west side of 24'h Avenue South.
11.1.2 South 211th Street (Public). The Port shall construct an internal
roadway identied in the Environmental Documents South 211th Street;
provided that the roadway will be modied to be a dead end cul-desac
and not be connected to South 214th Street or 20th Avenue South
discussed in Section 11.1.3 with a public roadway. This road will be
placed within a 60-foot-wide right-of-way, and shall align approximately
with the South 21100 Block on the of 24th Avenue South, and shall be
dedicated to the City as part of the DMCBP Shon Plat. Prior to the
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construction of the road, the P01t shall prepare civil engineering plans for
review and approval by the City generally consistent with the cross-
section provided in the City's Street Development Standards. The City
will take over maintenance responsibility of this roadway when its
constmction is completed, and it is accepted in accordance with the
provisions of the City's right-ofway permit. The threshold trigger for
completion of South 21 1th Street shall be concurrent with the development
of Area 1. The Port shall construct South 211th Street north of the
boundary of the vacated/surplused South 21211] Street as shown on the
Master Plan.
The Port shall have the option of paying the design and construction
change order cost of the City associated with building the roadway
approach located in the right-ofway, or build these improvements
independently of the City's current 24:11 Avenue South construction
project. The City has made adjustments to the locations of the utilities and
associated vaults to accommodate the roadway approach at South 211'"
Street on the west side of 24'h Avenue South.
11.1.3 South 214'" Street/20th Avenue South (Public): The P011 shall construct
the internal road providing a connection from South 2161' Street to 24lh
Avenue South as identied in the Environmental Documents; provided
that the alignment of the roadway will be modied to connect to 24th
Avenue South at the approximate location of the vacated/surplused South
214'h Street.
South 214'h Street/20th Avenue South will be constructed when cumulative
DMCBP development exceeds 390 PM peak hour trips as required by the
trafc trip thresholds in Exhibit D. If development does not exceed this
390 PM peak hour threshold, the Port will only be required to construct
the rst segment of South 214th Street. Prior to the issuance of the
building permit for the nal building in Area 2, the Port shall provide an
updated trafc impact memorandum verifying the cumulative PM peak
hour trafc based on the actual building land uses constructed in Area 1
and Area 2 to date. This rst segment of South 214'h Street will be
modied to be a dead end cul-de-sac and will be placed within
a 66-foot-
wide (minimum) right-ofway and dedicated to the City as part of the
DMCBP Short Plat. The City will take over maintenance responsibility of
the rst segment of this roadway when its construction is completed, and
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it is accepted in accordance with the provisions of the City's right-ofway
pemiit.
Construction of the second segment of the South 214th Street/20th Avenue
South internal road shall be concurrent with the development of Area 3.
As part of the DMCBP Shon Plat, this segment will be shown in a 66-
foot-wide (minimum) tract. When the construction of the second segment
is completed, the tract will be dedicated to the City as right-of-way.
Prior to the construction of each segment of South 214'h Street/20'h
Avenue South, the Port shall prepare civil engineering plans for review
and approval by the City generally consistent with the City's Street
Development Standards.
The Port shall have the option of paying the design and construction
change order cost of the City associated with building the roadway
approach and sidewalk curb returns located in the rightof-way, or build
these improvements independently of the City's current 24'" Avenue South
construction project. The City has made adjustments to the locations of
the utilities and associated vaults to accommodate the roadway approach
at South 214'11 Street on the west side of 24m Avenue South.
11.2 Frontage Improvements. In accordance with the Environmental Documents and
the DMMC, the Port is responsible for providing frontage improvements along South 216lh
Street and 24th Avenue South consistent with the design of the Transportation Gateway Project
when permits are issued for construction fronting on these streets. Consistent with DMMC
12.20.050(2) and in advance of permitted development, the Port has made an in-lieu cash
payment totaling Six Million Dollars ($6,000,000) to the City to fulll all obligations to
physically construct the required frontage improvements. The Parties acknowledge that due to
the magnitude and complexity of the Transportation Gateway Project, completing its
construction in incremental stages would have been significantly more costly than constructing it
as one integrated project, given its off-set alignment, comprehensive storm drainage systems,
trafc signal systems, and other utility improvements. Incremental construction would have
been most costly due to the fact that each individual stage of construction would have had to
account for interim roadway transitions, utility terminations, and other temporary systems, which
would increase project costs by at least twenty percent (20%) and potentially as high as thirty
percent (30%). Therefore, the Parties agreed that in order to minimize the overall roadway
improvement costs, the improvements are best completed at one time as part of an integrated
project with advance payment of all in-lieu fees by the Port. Such payment has reduced and
limited the Port's future costs. In addition, the payment allowed the City to secure committed
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state grant funds and improve its competiveness for additional regional and federal funds. In
accepting the in-lieu cash payment, the City has taken the lead and been responsible for the
construction of the frontage improvements adjacent to South 216'" Street and 24'h Avenue South.
This in-lieu cash payment is based on the estimated cost of the frontage improvements pursuant
to DMMC 12.20.050(2) and further described below:
11.2.1 South 216th Street. The Port is responsible for fty percent (50%) of the
cost of Segment 2 of the Gateway Road Project as a condition for the
City's issuance of a building permit for Area 3. The Port agrees that the
cost estimate for Segment 2, including engineering, administration, right-
of way, and construction totals $8,653,787. Therefore, the Port's inlieu
cash payment for this frontage totals $4,326,894. To induce the Port's
advance payment of the required in lieu fee, the City agreed to accept and
the Port paid an in-lieu cash payment in the amount of $2.5 million instead
of the $4,326,894 that would otherwise have been due. In return, the City
agrees that the requirement for the Port to provide frontage improvements
along South 216'h Street has been fully satised. The Port's payment of
$2.5 million, together with the in-lieu cash payment described in Section
11.2.2, is the basis for the Transportation Impact Fee waiver described in
Section 11.3.
11.2.2 24th Avenue South. The Port agrees that it is responsible for fty percent
(50%) of the cost of the 24th Avenue Segment of the Transportation
Gateway Project improvements as a condition for the City's issuance of a
building pennit for Areas 1, 2 and a portion of Area 3. The cost estimate
for this Segment, including engineering, administration, right-of-way, and
construction totals $9,569,989. Therefore, the Port's in-lieu cash payment
for this frontage totals $4,784,995. To induce the Port's advance payment
of the required in lieu fee, the City agreed to accept and the Port paid an
in-lieu cash payment in the amount of $3.5 million instead of the
$4,784,995 that would otherwise have been due. In return, the City agrees
that the requirement for the Port to provide frontage improvements along
24'h Avenue South has been fully satised. The Port's payment of $3.5
million, together with the in-lieu cash payment described in Section 11.2.1
is the basis for the Transportation Impact Fee waiver described in Section
11.3.
11.2.3 20th Avenue South Trafc Signal. The Parties acknowledge that the
installation of a trafc signal at the intersection of South 216'" Street and
20"] Avenue South, along with the associated roadway improvements at
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the intersection is part of the Transportation Gateway Project, and
therefore is included in the in-lieu cash payment for Segment 2 of South
216th Street.
11.2.4 South 208'h Street Trafc Signal. The Parties acknowledge that the
installation of a trafc signal at the intersection of South 208th Street and
24m Avenue South
may be needed in the future to allow for safe access
onto or across 24'h Avenue South from the site, especially once SR 509
construction is completed. While a trafc signal is not current warranted,
provisions for the future installation of a trafc signal at this intersection
shall be included in the civil improvements for South 208'h Street. At a
minimum, trafc signal conduit and junction boxes shall be installed for
future loops (including advance loops west of 24'") and intersection
crossings.
11.3 Transportation Impact Fees. In consideration for the Port providing in-lieu
cash payments as discussed in Section 11.2, the Port shall not be required to pay Transportation
Impact Fees (TIF) pursuant to RCW 82.02.060 for the duration of this Agreement; provided
however that this wavier does not relieve the Port of providing actual project and system
improvements as described in Section 11.4.
11.4 Project and System Improvements. The Port shall construct the required
Project and system improvements identied in the Environmental Documents, and any
additional Project or system improvements that may be identied in supplemental trafc impact
analysis submitted for each phase of the Project. A list of the Project and system improvements,
along with their threshold trigger points, is provided in Exhibit D. This list is not all inclusive,
as it only includes the Project and system improvements identied in the Environmental
Documents submitted as of the date of this Agreement. The list does not include any additional
Project or system improvements that may be identied in supplemental trafc impact analysis
submitted for each phase of the Project.
The City will accept proportionate share contributions from the Port for the system improvement
identied for South 216'h Street Segment 1A (between 29'h Avenue South and 24'11 Avenue
South (refer to Exhibit D Project 5). When the threshold for the system improvement is
triggered by a specic phase of the Project, that phase of the Project (and all subsequent phases
of the Project) will make a proportionate share contribution towards this system improvement.
The proportionate share contn'bution shall be calculated by taking the total PM peak hour trips
generated by the specic phase of the Project at the intersection of Pacic Highway South and
South 216th Street, dividing it by the total PM peak hour trips at the intersection, and multiplying
the result by the cost estimate for the system improvement.
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SECTION 12. DRAINAGE REQUIREMENTS AND INFRASTRUCTURE
12.1 General. The Port shall provide stormwater facilities to address surface water
runoff created as the result of development of the Property. All stormwater facilities shall be
located in separate public tracts. The stormwater facilities will be built by the Port, and, upon
completion, deeded to the City as part of the DMCBP Short Plat for long-term ownership and
maintenance.
12.2 Standard. The Port Shall comply with the version of the King County Surface
Water Design Manual (KCSWDM) in effect at the time that permits are submitted for the
development of Area 3. Development within Areas 1 and 2 shall be vested to the regulations of
the 2009 King County Srujface Water Design Manual for projects that have been approved prior
to January 1, 2017 under the conditions of the City's NPDES permit. Additionally, under the
terms of the NPDES permit, any applications that have been approved prior to January 1, 2017
must start construction by January 1, 2022 or the vesting rights will be lost. Before January 1,
2017, it is preferred, but not required, that stormwater be handled using Low Impact
Development approaches when economically and technically feasible. The City may impose
additional water quality or ow control requirements if it is deemed through performance that
the facilities are not sufcient in achieving the standards set forth in the KCSWDM.
12.3 Surface Water Management Fees. All surface water development fees and
surface water service fees are applicable to the DMCBP in accordance with Chapter 1 1.12 of the
DMMC.
12.4 Flow Control. The Port may utilize the King County Level 1 ow control
criterion and the 1994 land use condition as the pre-developed condition for sizing ow control
facilities that discharge directly to Des Moines Creek, a drainage tributary or to a City
conveyance system as set forth in the KCSWDM for the sizing of stormwater detention facilities
due to the implementation of the Des Moines Creek Basin project. However, areas that
discharge directly or indirectly to a wetland shall meet the criterion set forth in the KCSWDM as
amended by Chapter 11.28 DMMC Supplemental Storm Water Standards.
12.5 Detention Tracts. Pursuant to DMMC 17.35.130, all detention facilities are to be
located within separate tracts that are deeded to the City, whereupon the City shall assume all
maintenance and ownership responsibilities. A private access easement to the detention tracts
shall also be provided to allow access to the facilities for water quality testing that may be
required in order to meet any issued industrial NPDES permits. Prior to City acceptance of the
detention facilities, the Port will provide the City with an operations and maintenance manual for
the care of the facilities, including any special instructions for maintaining any protective netting
or plantings required to satisfy FAA regulations.
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12.6 Drainage Reports.
12.6.1 Areas 1 and 2. The City agrees that the Technical Information Report
(drainage report) submitted for the detention facility located in Tract A of
the DMCBP Short Plat has been designed to address the drainage
associated with the development of Areas 1 and 2 of the Property;
provided that the development occurs consistent with the Preliminary
Technical Information Report prepared by Barghausen Engineering dated
December 11, 2013.
12.6.2 Area 3. A Technical Information Report shall be prepared, for City
Approval, to identify drainage facility requirements and demonstrate
compliance with the KCSWDM or other approved standards as specied
in Section l2.4 at the time the Design Review Application and/or Grading
Permit is submitted for development of Area 3.
SECTION 13. ENVIRONMENTALLY CRITICALAREAS
13.1 Wetlands and Ditches. The Parties acknowledge there are several existing
wetlands and ditches on or directly adjacent to the Property. The Environmental Documents
envisioned lling all of the on-site wetlands and ditches as part of the development of the
Property.
13.2 Permits. The Port shall secure the required approvals from the Army Corps of
Engineers and/or the Washington State Department Ecology as may be necessary for the ll of
wetlands W, Bl 1, l4 and 32 and any other regulated waters identied in the Environmental
Documents. The City acknowledges that local permits are not required to fill these wetlands
pursuant to Section V Step 2(4) of the First Development Agreement between the City ofDes
Moines and the Part ofSeattle.
13.3 Mitigation Site. The City agrees to issue all necessary easements, construction
licenses, and consent to construct the required mitigation for impacts to the wetlands and ditches
regulated by the Army Corps of Engineers within the area illustrated on Exhibit E within the
boundaries of the Des Moines Creek Park.
13.4 Critical Aquifer Recharge Area. The Port shall submit, for City approval, a
report prepared by a licensed professional engineer demonstrating that the Project complies with
DMMC 16.10.260, Critical Aquifer Recharge Areas (CARA). The Parties agree that the CARA
Report can be submitted at the time of submittal of the building permit application(s) for each
Area.
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13.5 Tracts. The Port agrees to place the wetlands and corresponding buffers, stream
buffers, and ravine sidewalls and conresponding buffer into separate tract(s) as part of the
DMCBP Short Plat.
SECTION 14. PERMITTING
14.1 General. The P011 shall submit all permit applications required by the City for
the development of Areas 1, 2 and 3 within the Project. The Port acknowledges that the City has
attempted to identify the permits and applications required for the development of the Project
and that subsequent review of proposed development for Areas 1, 2 and 3 may reveal additional
issues that may require other permits or applications not discussed in this Section.
14.2 Short Subdivision. The P01t shall submit, for City approval, a Sh01t Subdivision
application consistent with the approved Master Plan and DMMC 17.05 for Areas 13. The
application materials required for Preliminary Plat are provided on Form DSW-O3.
14.3 Design Review. The Port shall submit, for City approval, a Design Review
application consistent with Chapter 18.235 DMMC Design Review for development of each
individual Area within the Property. The application materials required for Design Review are
provided on Form DSW-Ol. The City's design review will follow its standard review procedures
including a requirement to satisfy the design guidelines contained in DMMC 18.235 and 18.105,
B-P Business Park, as well as DMMC 18.195, Landscaping and Screening, and DMMC 18.210,
Loading Areas and Off-Street Parking. The City will coordinate its design review with that
occuning concurrently by the Port.
14.4 Clearing and Grading. The Port shall submit, for City approval, a Clearing and
Grading Plan consistent with Chapter 14.20 DMMC for the development of each individual Area
within the Property. The application materials required for Grading Permit are provided on page
4 of Form DSA-02. Clearing and grading for the Project shall be restricted to those areas
identied on the clearing and grading plans approved by the City for each Area. No other
clearing of any nature shall be allowed without prior written approval of the City.
14.5 Building Permits. The Port shall submit, for City approval, Building, Electrical,
Plumbing, and Mechanical Permit Applications consistent with Title 14 DMMC Buildings and
Construction Code.
14.6 Rightof-Way Permits. The Port shall submit, for City review and approval,
right-ofway permits for any work occurring within the City right-ofway. Since South 208'h
Street, South 21 1th Street and South 214th Street/24'h Avenue South identied in Section 1 1 will
eventually be dedicated to the City, right-of-way permits will also be required for the
construction of these roadways.
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14.7 Permit Fees. The City agrees to vest the Port to the provision of Des Moines
Executive Order 13-003 (Exhibit F) for the term of this Agreement. This Executive Order
established a City- Wide Development Incentive Program for all commercial projects by reducing
fees for, environmental review, subdivision, planned unit development, short subdivision and lot
line adjustment, engineering plan review, building plan check and building permit,
, mechanical,
electrical and plumbing permit, and right of way permits by twenty percent (20%) for individual
project applications with over 50,000 square feet of gross oor area excluding parking areas and
by ten percent (10%) for individual project applications with over 25,000 square feet of
development excluding parking areas.
SECTION 15. VESTED RIGHTS AND TERM
15.] Duration and Termination. This Agreement shall remain in effect for a period
of fteen (15) years unless either (a) the Parties both agree to extend the Agreement for a period
to be dened, (b) the Project is fully developed consistent with Master Plans approved by the
City for Areas 1 3, or (c) the Agreement is sooner terminated by the Parties. Other than as may
be prohibited by law, and specically subject to the limitations of RCW 36.703180, the Parties
may terminate this Agreement by providing ninety (90) days written notice pursuant to Section
17.1. Termination of this Agreement shall not result in termination of any other legally binding
agreement or action based upon this Agreement unless such additional termination is required
under the terms of such other agreement or action. Notice of termination shall be provided in
accordance with Section 17.1.
15.2 Vesting of Development Regulations. The Port is assured that all Development
Regulations that govern development of the Property that are in effect as of the date of the City's
approval of this Agreement shall apply for a period of fifteen (15) years from the effective date
of this Agreement; provided, the P011 shall be required to comply with the International Building
Code, the City's Street Development Standards (Street Design and Construction Standards), the
City's NPDES Permit, and other regulatory codes adopted by the State of Washington and King
County that preempt the City's authority in effect as of the date that the Port submits a complete
permit application to the City for review. If the Property has not reached full build-out within
this 15year period, the Parties agree that Development Regulations in effect at that time will
control the further development of the Property. The Port may elect, at its discretion, to conform
to new Development Regulations that the City may adopt from time to time. Notwithstanding
the foregoing, the City reserves the authority to impose new or different regulations to the extent
necessary or required to address a threat to public health or safety.
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SECTION 16. CERTAINTY OF DEVELOPMENT AGREEMENT
16.] Development Agreement Deemed Controlling. This Agreement, once
recorded, and any terms, conditions, maps, notes, references, or regulations which are a part of
the Agreement shall be considered enforceable. In the event of a specic conict with any
provisions of the DMMC, this Agreement shall take precedence. Unless otherwise provided by
this Agreement, the City's ordinances, resolutions, rules and regulations, and official policies
governing permitted land uses, density, design, improvement, and construction standards shall be
those City ordinances, resolutions, rules and regulations, and ofcial policies in force at the time
of the execution of this Agreement.
16.2 Subsequent Actions. This Agreement shall not prevent the City, in subsequent
actions applicable to the Property, from applying new rules, regulations, and policies which do
not conict with those rules, regulations, and policies applicable to the Property, nor shall this
Agreement prevent the City from denying or conditionally approving any subsequent
development project application on the basis of such new rules, regulations, and policies.
16.3 Changes in the Law. In the event that City, state or federal laws or regulations,
enacted after this Agreement has been entered into, prevent or preclude compliance with one or
more of the provisions of the Agreement, such provisions of the Agreement shall be modied or
suspended as may be necessary to comply with such state or federal laws or regulations
following modication procedures in Section 17 for an amendment or cancellation.
16.4 Emergency Situations. The City may suspend the issuance of building permits
for the planned Project if it nds that continued construction would place surrounding residents
or the immediate community in a condition dangerous to their health or safety.
SECTION 17. GENERAL PROVISIONS
17.1 Notices, Demands and Communications. Formal notices, demands and
communications between the City and the Port shall be sufcient if given and shall not be
deemed given unless dispatched by certied mail, postage prepaid, returned receipt requested, or
delivered personally, to the principal ofces of the City and the Port as follows:
City: Port:
Anthony Piasecki or successor Tay Yoshitani or successor
City Manager Chief Executive Ofcer
City of Des Moines Port of Seattle
21630 1 11h Avenue South 2711 Alaskan Way
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Des Moines, Washington 98198 Seattle, Washington 98121
17.2 Amendments. This Agreement may be amended or modied in accordance with
RCW 36.708.170-200, and other applicable laws, rules or regulations, and upon mutual consent
of the Parties, such mutual consent of the Patties shall be evidenced by a written amendment
signed by the Parties.
17.3 Other Government Approvals. Should the Port at any time require the approval
of any governmental body or board, whether of local, regional, state or federal jurisdiction, the
Port shall bear the sole cost and responsibility for obtaining needed approvals. The City, upon
request by the Port, shall lend its full cooperation and afrmative support if it deems such would
be in the interest of timely performance under this Agreement, and such cooperation and support
would not compromise the responsibilities of the City, including its responsibilities to the Port as
set forth in this Agreement. Nothing contained herein is designed to relieve the Port of the
necessity of complying with the laws governing the permitting requirements, conditions, terms or
restrictions.
17.4 Conict of Interests. No member, ofcial or employee of the City shall make
any decision relating to the Agreement which affects his or her personal interests or the interests
of any corporation, partnership or association in which he or she is directly or indirectly
interested. The Port warrants that it has not paid or given, and shall not pay or give, any third
person any money or other consideration for securing the City's approval of this Agreement.
17.5 Non-Liability of City, Ofcials, Employees, and Agents. No member, ofcial,
employee or agent of the City shall be personally liable to the Port, or any successor in interest,
in the event of any default or breach by the City or for any amount which may becorrre due to the
Port or successor or on any obligation under the terms of this Agreement.
17.6 Enforced Delay. Performance by either party under this Agreement shall not be
deemed to be in default where delays or defaults are due to war; insurrection; strikes, lock-outs;
riots; oods; earthquakes; res; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions of
priority; litigation (including suits led by third parties concerning or arising out of this
Agreement); unusually severe weather; inability to secure necessary labor, materials or tools;
acts or failure to act of any public or governmental authority or entity (other than the acts or
failure to act of the City which shall not excuse performance by the City), or any other causes
(other than lack of funds of the Port) beyond the control or without the fault of the party claiming
an extension of time to perform. An extension of time for any such cause shall be for a period of
the enforced delay and shall commence to run from the commencement of the cause, if notice by
the party claiming such extension is sent to the other party within fteen (15) calendar days of
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the commencement of the cause. Times of performance under this Agreement may also be
extended in writing by the City's City Manager or designee.
17.7 Title of Parts and Sections. Any titles of the parts, sections or subsections of
this Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any part of its provisions.
17.8 Hold Harmless. The Port shall indemnify and hold harmless the City and their
ofcers, agents and employees, or any of them from any and all claims, actions, suits, liability,
loss, costs, expenses, and damages of any nature whatsoever, by any reason of or arising out of
the negligent act or omission of the Port, its ofcers, agents, employees, or any of them relating
to or arising out of the performance of this Agreement. If a nal judgment is rendered against
the City, its ofcers, agents, employees and/or any of them, or jointly against the City and the
Port and their respective ofcers, agents and employees, or any of them, the Port shall satisfy the
same to the extent that such judgment was due to the Port's negligent acts or omissions.
17.9 Enforcement, Rights and Remedies Cumulative. This Agreement shall be
enforceable by the City, applicant, or successor-in-interest notwithstanding any change in any
applicable general or specic plan, zoning, subdivision, or building regulation adopted by the
City which alters or amends the rules, regulations, or policies specied in this Agreement.
Enforcement may be through any remedy or enforcement method or process, or combination
thereof, allowed under law and/0r equity. Except as otherwise stated in this Agreement, the
rights and remedies of the Parties are cumulative, and the exercise or failure to exercise one or
more of these rights or remedies by either party shall not preclude the exercise by it, at the same
time or different times, of any right or remedy for the same default or any other default by the
other party.
17.10 Applicable Law. This Agreement shall be interpreted under and pursuant to the
laws of the State of Washington. Venue for any legal action brought hereunder shall be in the
King County Superior Court.
17.11 Severability. If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the provisions shall continue in full force and effect unless the rights and obligations of the
Parties have been materially altered or abridged by such invalidation, voiding or
unenforceability.
17.12 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement, or to collect damages as a result of any breach of the
Agreement, the Parties shall be responsible for their attorneys' fees and costs incurred in the
action.
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17.13 Binding Upon Successors. This Agreement shall be binding upon and inure to
the benet of the heirs, administrators, executors, successors in interest and assigns of each of
the Parties. Any reference in this Agreement to a specifically named party shall be deemed to
apply to any successor heir, administrator, executor or assign of such party who has acquired an
interest in compliance with the terms of this Agreement, or under law.
17.14 Parties Not Coventures. Nothing in this Agreement is intended to or does
establish the Parties as partners, co-venturers, or principal and agent with one another, nor
employees and/or employers of each other.
17.15 Warranties. The City expresses no warranty or other representation to the Port
or any other Party as to tness or condition of the Property other than those expressed within this
Agreement.
17.16 Reasonable Approvals. The approval of a party of any documentation or
submissions herein called for shall not be unreasonably withheld unless the text clearly indicates
a different standard. All such approvals shall be given or denied in a timely and expeditious
fashion.
17.17 Recordation. Within ten (10) days after the effective date of this Agreement, or
any modification or the cancellation thereof, the City Clerk shall have this Agreement, the
modification or cancellation notice recorded with the County Auditor/Recorder of King County.
17.18 Execution of Other Documentation. The City and the Port agree to execute any
further documentation that may be necessary to carry out the intent and obligations under this
Agreement.
17.19 Complete Understanding of the Parties. This Agreement is executed in two (2)
duplicate originals, each of which is deemed to be an original. This Agreement consists of
pages and attached Exhibits and constitutes the entire understanding and
agreement of the Parties.
CITY OF DES MOINES PORT OF SEATTLE
Anthony A. Piasecki Tay Yoshitani
City Manager Chief Executive Ofcer
By direction of the Des Moines City Council By direction of the Port Commission
in Open Public Meeting in Open Public Meeting
on 2014 on 2014
, ,
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Dated: Dated:
Approved as to Form:
City of Des Moines Attorney
STATE OF WASHINGTON )
COUNTY OF )
On this 20 before me, the undersigned, a
day of , ,
Notaiy Public in and for the State of Washington, duly commissioned and sworn, personally appeared
Anthony A. Piasecki to me known as the City Manager, for the City of Des Moines, the corporation who
executed the within and foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of said City of Des Moines, for the uses and purposes therein mentioned, and on
oath stated that he is authorized to execute said instrument on behalf of said municipal corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and afxed my ofcial seal on the date
hereinabove set forth.
NAME
NOTARY PUBLIC in and for the State of
Washington, residing at
MY COMMISSION EXPIRES:
23/24 DMCBP Amended & Restated 2"d Development Agreement
DRAFT 10: 02/12/14
STATE OF WASHINGTON )
) ss
COUNTY OF )
On this before me. the a
day of undersigned, , 20_,
Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared
Tay Yoshitani to me known as the Chief Executive Ofcer, for the Port of Seattle, the corporation
who executed the within and foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of said Port of Seattle, for the uses and purposes therein mentioned, and on
oath stated that he is authorized to execute said instrument on behalf of said municipal corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and afxed my ofcial seal on the date
hereinabove set forth.
NAME
NOTARY PUBLIC in and for the State of
Washington, residing at
MY COMMISSION EXPIRES:
24/24 DMCBP Amended & Restated 2"d Development Agreement
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