FIRST AMENDMENT
TO
SALISH EXPANSION DEVELOPMENT AGREEMENT
Between
THE CITY OF SNOQUALMIE
And
GATEWAY CASCADES, LLC
Date: ____________, 2005
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT is entered into effective the ______ day of __________, 2005, by and between the CITY OF SNOQUALMIE, a Washington municipal corporation (the “City”), and GATEWAY CASCADES, LLC, a California limited liability company (“Gateway”).
RECITALS
A. The City is incorporated under the Optional Municipal Code of the State of Washington. The City has authority under RCW 36.70B.170-210 to enter into agreements to control the use and development of property within its jurisdiction. RCW 36.70B.170(1).
B. Gateway is the owner of two parcels of real property comprising approximately 52.8 acres and commonly referred to as the Morgan and Tokul parcels (collectively, “the Gateway Property”). The Gateway Property is more particularly described on Exhibit A.
C. On March 8, 2004, the City and Gateway entered into the Salish Expansion Development Agreement. The City has since annexed approximately 40.3 acres of the Gateway Property previously located outside of the City, as provided in the Development Agreement. The Gateway Property is now located entirely within the City, and is the site for a proposed conference hotel and residential development, as provided in the Development Agreement.
D. Section 3.3 of the Development Agreement provides that “[a]pplication for subdivision or binding site improvement plan for residential development may be submitted concurrent with or following application for the hotel building permit.” Other mitigation was also tied to the hotel building permit, as described in Recitals E and F, below.
E. Section 4.4 of the Development Agreement provides that “Gateway shall pay the sum of $350,000 to the City as a voluntary mitigation payment to be expended for fire equipment or fire capital improvements, one-half ($175,000) to be paid upon issuance of the building permit for the Hotel, and one-half ($175,000) to be paid upon issuance of the certificate of occupancy for the Hotel.” In the time since the amount of $350,000 was agreed to, the cost of fire equipment has been subject to inflation. The City and Gateway agree that accelerating the fire mitigation payment and the payment described in Recital F, below, will help to offset the additional cost of fire equipment.
F. Section 4.5 of the Development Agreement provides, in relevant part, that in the event the City proceeds with construction of a roundabout at the Tokul Road / SR‑202 intersection (the “Roundabout Project”), then Gateway may elect to make a payment of One Million Dollars ($1,000,000.00) in lieu of constructing other improvements at the intersection. Funds were to be provided to the City within the same approximate timeframes as those other improvements, commencing at the issuance of the hotel building permit. The City desires to proceed with the roundabout project, and has now obtained a commitment of State grant funds for the project, subject to a local match in the form of Gateway’s payment. However, a hotel building permit has not yet been applied for or issued. Conveyance of the Tokul Parcel to the City by Gateway is also necessary for construction of the Roundabout Project.
G. As a result of changed circumstances, the City and Gateway desire to amend the Development Agreement.
H. This First Amendment is intended to be a Development Agreement amendment pursuant to the authority of RCW 36.70B.170-210. As required by RCW 36.70B.200, the City has held a public hearing onJune 13, 2005. Gateway and the City intend by this First Amendment to further define the development standards and mitigations, as defined in RCW 36.70B.170(3), that will apply to the Gateway Property.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements contained in this First Amendment, the City and Gateway hereby agree that the Development Agreement is amended as follows:
AGREEMENTS
1. Development Agreement Sections Deleted. Section 3.3, Timing of Residential Development, Section 4.4, Public Services, and Section 4.5, Tokul Road Intersection Improvements, of the Development Agreement are each hereby deleted in their entirety, and superseded by the provisions of this First Amendment.
2. Payment of Fire Mitigation and Roundabout Project Funds. Gateway shall make a payment of One Million Three Hundred and Fifty Thousand Dollars ($1,350,000.00) (the “Payment”) by wire transfer on or before July 1, 2005. One Million Dollars ($1,000,000.00) of the Payment shall be used exclusively for the roundabout project. Three Hundred and Fifty-Thousand Dollars ($350,000.00) of the Payment, and all interest earned on the Payment, shall be used exclusively for acquisition of a fire apparatus capable of providing fire suppression and rescue at the Hotel, provided, the financing mechanism for such acquisition shall be entirely within the City’s sole discretion. The Payment shall be expended within five (5) years of the payment date for the purposes specified above, or any unused part refunded to Gateway with interest at the rate applied to judgments; provided that if the Payment is not expended within five years due to delay attributable to Gateway, any unused part of the Payment shall be refunded without interest. Refund of the Payment within five years after the payment date is governed by Section 4.
3. Conveyance of Tokul Parcel. Gateway shall convey the Tokul Parcel, legally described in Exhibit A, to the City on or before July 1, 2005.
4. Tokul Road Intersection Improvements. The City shall proceed diligently with the design and construction of the Tokul Roundabout Project. The City will use best efforts to complete construction of the Roundabout Project to meet the needs of the Hotel schedule, provided, the Hotel may open before completion of the Roundabout Project, if desired by Gateway, and subject to reasonable additional temporary traffic control measures as the City may require. The City shall provide a greenbelt in perpetuity on City property adjacent to Tokul Road to screen the Hotel from views of the Waste Water Treatment Plant, subject to the future needs of the Waste Water Treatment Plant and Water Treatment Plant expansion. In the event the City for any reason abandons the Tokul Roundabout Project, Gateway shall construct the Tokul Road Intersection Improvements and Tokul Road Traffic Signal as provided in Sections 4.6 and 4.7 of the Development Agreement, and the City shall refund the sum of One Million Dollars ($1,000,000) to Gateway. If the City abandons the Roundabout Project within one year of the effective date of this First Amendment, then the refund shall be without interest. If the City abandons the Roundabout Project more than one year after the effective date of this First Amendment but less than five years after the date of payment by Gateway, the refund shall include the interest earned by the City from one year after the date of payment by Gateway to the date of refund by the City.
4. Timing of Residential Development. Application for subdivision or binding site improvement plan for residential development may be submitted at any time following (1) approval of the combined Planned Commercial/Industrial - Planned Residential Plan for the Gateway Property, (2) the Payment provided in Section 2 of this First Amendment, and (3) conveyance of the Tokul Parcel provided in Section 3 of this First Amendment.
5. Restatement of Other Development Agreement Provisions. This First Amendment supersedes and extinguishes the provisions of the Development Agreement identified herein, to-wit: Section 3.3, Timing of Residential Development, 4.4, Public Services, and Section 4.5, Tokul Road Intersection Improvements. All other provisions of the Development Agreement shall remain in full force and effect, including the general provisions of Section 13 of the Development Agreement.
6. Effective Date. This First Amendment shall become effective upon the effective date of the City resolution approving this agreement and after execution of the Agreement by both parties.
7. Binding on Successors; Recording. This Agreement shall run with the land and be binding upon the parties hereto and upon their respective successors and assigns. Gateway shall record this Amendment in a form approved by the City Attorney to be recorded against the real property covered by this Agreement in the King County Recorder’s Office within 10 days after mutual execution of this Agreement.
DATED as of the date first above written.
CITY OF SNOQUALMIE,
a Washington municipal corporation
By: ________________________________
R. Fuzzy Fletcher
Its: Mayor
GATEWAY CASCADES, LLC,
a California limited liability Company
By: ________________________________
Earl W. Buehner
Its: Vice President, Asst. Secretary, &
Asst. Treasurer
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STATE OF WASHINGTON |
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On this day personally appeared before me R. Fuzzy Fletcher, to me known to be the Mayor of the CITY OF SNOQUALMIE, the municipal corporation that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such corporation, for the uses and purposes therein mentioned, and on oath stated that he was duly authorized to execute such instrument.
Given Under My Hand and Official Seal this ____ day of ____________, 2005.
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Printed Name ___________________________________ |
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Notary Public
in and for the State of Washington, |
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My Commission Expires __________________________ |
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STATE OF CALIFORNIA |
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On _________, 2005, before me ____________________________ Notary Public, personally appeared Earl W. Buehner, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to be that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the persona acted, executed the instrument.
Given Under My Hand and Official Seal this ____ day of ____________, 2005.
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Printed Name ___________________________________ |
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Notary Public
in and for the State of California, |
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My Commission Expires __________________________ |