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Home My WebLink About3701 RESOLUTION NO.3 7 0 1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING AN LID FORMATION AND GUARANTY AGREEMENT TO PROVIDE FOR PUBLIC PARKING IN DOWNTOWN AUBURN WHEREAS, The City of Auburn ("City") has entered into a lease agreement with the Central Puget Sound Regional Transit Authority ("Sound Transit") for development of certain public parking improvements ("Improvements") in downtown Auburn; and WHEREAS, The City is participating in the development and financing of the Improvements, including financing through the use of one or more local improvement districts; and WHEREAS, certain downtown property will be specially benefited by the Improvements, with one such property being able to use the improvements to provide for off street parking. WHEREAS, to provide for financing for the parking with the owner, David Allen Davis, the City Council authorized an LID Preformation and Guaranty Agreement by Resolution No. 3527; and WHEREAS, the process is now at the stage where the LID Formation and Guaranty Agreement ("Agreement") has been prepared and should be executed; and WHEREAS, this Resolution authorizes the Mayor to execute such Agreement for and on behalf of the City. THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: ---------------------- Resolution No. 3701 March 1, 2004 Page 1 Section 1. As a follow-up to the Agreement and process authorized by Resolution No. 3527, the Mayor and City Clerk of the City of Auburn are herewith authorized to execute an LID Formation and Guaranty Agreement ("Ag, reement") in substantially the form of the agreement, a copy of which is attached hereto, denominated as Exhibit "A" and made a part hereof as though set forth in full herein. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. DATED AND SIGNED this ,2004. .- Peter B. Lewis, Mayor ATTEST: APPROVED AS TO FORM: ---------------------- Resolution No. 3701 March 1, 2004 Page 2 , ( ¡2(..1. ..3 70 I /13./2'1,3 RECEIVED MA'( 0 5 2004 FINANCE DEPT: Recording Requested by and Return To: CITY OF AUBURN c/o Foster Pepper & Shefelman PLLC 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 Attn: P. Stephen DiJulio J~I UU 111111111111 PACIF~~~~A'90~~~0 32 PAGE001 OF 017 . 04/'9/~~04 16:00 KING C:)UNTY I UA Grantor: LID GUARANTY AGREEMENT ',%ç P¡UWl k.;Jf3ol'-IL DAVID ALLEN DAVIS Name of Document: Grantee: ft'_~(~(-: <;,"{' ,<-, Abbreviated Legal Description: Additional legal description on Exhibit 1 Assessor's Tax Parcel ID Nos. 781570-0145 & 781570-0146 Reference number(s) of related/assigned/released/documents(s): N/A -1- 50420761.01 LID GUARANTY AGREEMENT THIS LID GUARANTY AGREEMENT ("Agreement") is entered as of the Effective Date, by and between the CITY OF AUBURN, a municipal corporation of the State of Washington ("City"), and DAVID ALLEN DAVIS ("Owner"). SECTION 1. RECITALS. 1.1 Owner is proposing development of certain real property as described in attached Exhibit 1 ("Property"). 1.2 Owner has requested that the City create a local improvement district to be known and designated as LID No. 250 (the "LID") for the purposes of construction and/or acquisition of off-street parking improvements pursuant to plans approved by the City, including costs and expenses therefor. 1.3 The off-street parking improvements are described in attached Exhibit 2 (the "Improvements"). 1.4 The estimated cost of the Improvements and other costs referred to under RCW 35.44.020 is Nine Thousand Four Hundred Dollars ($9,400) per parking stall. The cost of Improvements will be assessed against all properties within the LID specially benefited. In addition, the City may provide funds from other sources to pay such costs. The estimated cost of the Improvements and other costs allocable to the Owner is Seven Hundred Two Thousand Seven Hundred Twenty-five Dollars ($702,725). The City will not assess any property within the LID for the Improvements in excess of the actual amount of costs attributable to the Improvements, the LID and -2- 50420761.01 other allowable costs (herein collectively referred to as the "financing of the Improvements," as defined further in Section 3.2). 1.5 The City may issue bonds, borrow internally or use other forms of indebtedness (collectively, "Bonds") to provide principal for the financing of the Improvements. 1.6 The Property cannot be developed without providing off-street parking. The Improvements will provide eighty-five (85) parking spaces that will be available to Property, thereby satisfying the Property's need for off-street parking for development of the Property as described in Exhibit 3. The Improvements are acknowledged by Owner to be a special benefit to the Property, and that the Property is worth more with the Improvements than without the Improvements. In consideration of the mutual covenants and agreements contained herein, the City and Owner incorporate by reference the foregoing introductory paragraph and recitals and agree as follows: SECTION 2. CITY'S RESPONSIBILITIES. 2.1 Creation of LID. 2.1.1 The City has created the LID pursuant to the "resolution" method provided by law. Should the City elect to proceed with such an LID, the City shall order and carry out the acquisition and/or construction of the Improvements, as expeditiously as possible. The City shall also exert its best efforts to finance the cost of the Improvements with proceeds from special benefit assessments levied against the real property within the LID. It is understood by the parties to this Agreement that -3- 50420761.01 nothing contained herein shall be construed to bind the City to the creation of an LID, or levying of assessments or other action under Title 35 RCW. The City at its sole discretion may order the construction of less than all of the Improvements, and may create one or more local improvement districts within boundaries contemplated by the LID to carry out as many of the Improvements as the City orders to be constructed. As to any LID formed under any provision of this Agreement, Owner retains its right to protest the method of assessment, the amount of the assessment, the amount of the City's contribution to the LID and the special benefit to the Property. 2.1.2 Owner acknowledges and accepts Improvements that may have been constructed, or contracted for, prior to the effective date of this Agreement. 2.2 LID Improvements Recognized for Development of Property. Subject to Owner's obligations hereunder, in any development or use of the Property, for a period not to exceed ninety-nine 99 years, the City shall recognize the amount of off-street parking identified in Section 1.5 as available to the Property. 2.3 Limit on Assessment. The City agrees that the maximum assessment against the Property for each parking space shall not exceed Nine Thousand Four Hundred Dollars ($9,400). SECTION 3. OWNER'S RESPONSIBILITIES. 3.1 Owner Acknowledgement. Owner acknowledges that the Improvements provide eighty-five (85) parking spaces that are necessary for development of the Property as described in Exhibit 3. The Improvements provide parking spaces in -4- 50420761.0] · , addition to those spaces subject to this Agreement. Nothing in this Agreement affects the right of the City to control the use of the parking spaces. 3.2 Guarantee; Waiver. 3.2.1 As authorized by RCW 35.43.182, owner hereby waives all rights to protest, under RCW 35.43.180, the formation of the LID or an alternative LID providing for the Improvements. Owner agrees to participate in the LID or alternative LID for the Improvements. 3.2.2 The Owner guarantees the full and timely payment of the Owner's Share of all costs of the financing of the Improvements, including but not limited to reasonable attorneys' fees in connection with the financing of the Improvements and interim financing prior to the issuance of the Bonds (to the extent not paid with the proceeds of the Bonds or otherwise), and the Owner's full payment of every installment of principal of and interest and/or penalties on the special assessments to be levied against the Owner's Property in the LID. By this guarantee, the Owner assures the payment of the Bonds, both principal and interest. 3.3 Financing of Improvements. The obligations of the Owner and other owners of property within the LID, with respect to the financing of the Improvements, are not joint and several. Notwithstanding any provision of this Agreement to the contrary, the Owner's liabilities and obligations with respect to the financing of the Improvements are limited by Sections 3.1 and 2.3. As used in this Agreement, the term "financing of the Improvements" includes, without limitation: (i) interim financing prior to the issuance of the Bonds; (ii) principal of, and/or interest and/or penalties on, -5- 50420761.01 ( the special assessments to be levied against the property in the LID; (iii) the Bonds, both principal and interest; (iv) money expended and obligations incurred by the City on behalf of the LID before the LID is created; (v) money expended and obligations incurred by the City before the costs and expenses of the LID are incorporated into a final assessment roll; (vi) both principal of and interest on notes and other obligations issued in anticipation of the Bonds; and (vii) fees, costs and expenses of the City, including reasonable attorneys' and consultants' fees, incurred in drafting, administering and enforcing this Agreement. 3.4 Provision of Certificates - City Issuance of Obligations. 3.4.1 At the time of the sale of the Bonds, the Owner agrees to execute such certificates as may be reasonably requested by bond counsel to insure that the interest on the Bonds will be exempt from federal income taxation. 3.4.2 If the City issues notes, bonds or other obligations to finance all or any part of the Improvements, the City currently expects that interest on those obligations will be tax-exempt. However, the City's ability to issue tax-exempt obligations to finance the improvements will depend upon the facts, circumstances and expectations of the City that exist at the time such obligations are to be issued, and the City cannot provide any assurance or guarantee that interest on such obligations will be tax-exempt. 3.5 Non-Formation or Non-Completion. In the event: 3.5.1 no LID is formed, within the time provided by law or by this Agreement, whichever is less; -6- 50420761.01 3.5.2 a court of competent jurisdiction determines that an LID cannot be formed; 3.5.3 the jµrisdiction of the City to form the LID or an Alternative LID is divested in accordance with chapter 35.43 RCW; or 3.5.4 the City is otherwise prevented from forming the LID or an Alternative LID, then Owner shall be obligated to provide the off-street parking for the development of Property under the law applicable to the Owner's development application. SECTION 4. PERFORMANCE OF OWNER ESSENTIAL. The Owner's guarantee to pay the LID assessments levied against the Owner's Property contained in Section 3.2 and to otherwise perform this Agreement are for the benefit of the City and the purchasers of the Bonds (but the Bond purchasers shall not be deemed third-party beneficiaries of this Agreement) and the parties to this Agreement recognize that purchasers of the Bonds will acquire the Bonds in reliance in part upon this Agreement. The Bond purchasers shall not be entitled to assert any estoppel to enforce this Agreement. As between the City and the Owner, the City agrees to attempt to exhaust the Collateral under the terms of this Agreement before making a demand upon the Owner to make a payment under the guarantee contained in Section 3.2. -7- 50420761.01 SECTION 5. CONTRACT LIEN AND CHARGE ON OWNER'S PROPERTY; CONVEYANCE BY OWNER. 5.1 This Agreement shall be recorded in the office of the Division of Records and Elections of King County, Washington, shall be binding on the successors in interest to and assigns of the Owner of the Owner's Property (and reference to the "Owner" herein shall include those successors and assigns, when appropriate in the context of the provisions of this Agreement), and shall constitute a lien and charge on the Owner's Property to secure the performance of the Owner under this Agreement. The obligations of the Owner under the Agreement shall follow the ownership of the Owner's Property to the Owner's successors and assigns. The lien and charge imposed by this Agreement on the Owner's Property shall be enforceable under the laws governing the foreclosure of mortgages, except as modified herein, and the City may elect to enforce the lien of this Agreement against any portion of the Owner's Property then subject to the lien, but such election shall be in accordance with RCW 61.12.140. 5.2 Any purchaser or purchasers of the Owner's Property or a portion of the Owner's Property shall assume all or a proportionate share of the Owner's obligations hereunder. 5.3 If the City agrees to segregate one or more portions of the Owner's Property prior to the confirmation of the final assessment roll and filing of the lien thereof against the Owner's Property, or at any time and from time to time thereafter, and the assessment chargeable to one or more of those segregated portions is paid, the City shall release the lien of this Agreement from those segregated portions. -8- 50420761.01 SECTION 6. DEFAULT; ELECTION OF REMEDIES. If there is a default in the payment of any assessment installment or interest or penalty thereon, the City may elect to enforce its assessment lien against the Owner's Property by foreclosure proceedings immediately, notwithstanding any waiting period prescribed by statute. If the Owner defaults in any performance under this Agreement, the City may elect to proceed to obtain any appropriate legal or equitable relief without waiving the right to enforce this Agreement or the payment of the LID assessments later in any other manner. All of the City's rights hereunder are cumulative, and the reference to the words "election" or "elect" shall not act to limit any of the other rights hereunder or under law generally. SECTION 7. GENERAL. 7.1 Waiver. Any waiver of a right to enforce a provision of this Agreement by either the City or Owner shall not constitute a waiver of any similar or other subsequent right to enforce the same or any other provision of this Agreement. 7.2 Notices. Any notice, demand, request, consent, or other communication required or permitted under this Agreement to be given shall be in writing and be (a) delivered personally to the parties, (b) sent by certified mail, return receipt requested, or by private overnight courier to the parties at their respective addresses listed below, or (c) sent by regular mail to the parties at their respective addresses listed below. Any such communication shall be deemed given when so delivered, deposited in a U.S. Postal Service mail box with first-class postage prepaid or deposited with the private courier, or transmitted, unless receipt is expressly required elsewhere in this -9- 50420761.01 Agreement. Any party may give to the other party notice of a chang·e of address in the manner provided in this section. City: City of Auburn Municipal Building Office of the City Attorney 25 West Main Auburn, Washington 98001-4998 Owner: David Allen Davis 635 "c" Street SW Auburn, W A 98001 7.3 Choice of Law - Venue. This Agreement shall be governed and construed in accordance with the laws of the State of Washington, and venue in connection with any legal proceeding affecting this Agreement shall be laid in the Superior court of the State of Washington in King County. 7.4 Binding Successors - Covenant. This Agreement shall be binding on the successors, assigns, heirs, administrators and executors (collectively, "successors") of the parties hereto. Owner covenants and agrees for a period of ten (10) years, such covenant running with the Property, on its behalf and on behalf of successors to satisfy each Agreement term. 7.5 Term - Termination. 7.5.1 From the Effective Date (as stated in Section 8), the term of this Agreement shall be until the sooner of: (a) expiration of a period of one hundred twenty (120) months; or -10- 50420761.01 (b) the final assessment roll for the LID or an Alternative LID is confirmed and all appeals have been concluded. 7.5.2 If the LID or an Alternative LID is not formed within one hundred twenty (120) months after the Effective date of this Agreement, except as provided in Section 2.2 of this Agreement, then this Agreement shall terminate and be of no further force and effect, except with regard to the obligations of Owner set forth in Section 3.5. 7.6 Entire Understanding and Severability. This Agreement is the entire understanding between the parties and no changes, amendments or alterations shall be effective unless agreed to in writing and signed by both parties. If any provision of this Agreement is finally determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect, provided, however, in the event the invalid or unenforceable provision is a material part of the consideration for this Agreement this Agreement shall thereby be rendered voidable at the option of either party. The option to void this Agreement shall be exercised by sending written notice to the other party no later than ten (10) business days after the court's determination becomes final or the option shall thereafter be deemed to be waived. SECTION 8. EFFECTIVE DATE. This Agreement is effective January 1,2004. -11- 50420761.01 .' SECTION 9. EXECUTION. IN WITNESS WHEREOF, the parties execute this Agreement on behalf of the parties, and warrant that they have the authority to execute for an on behalf of the party so represented. ~~~/ City of Auburn -- ~' ATTEST: Mayor City of Auburn tfJ£:h()~ DAVID ALLEN DAVIS -12- 50420761.01 STATE OF WASHINGTON COUNTY OF ~r- ss. I certify that I know or have satisfactory evidence that DAVID ALLEN DAVIS is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it to be his free and voluntary act for the uses and purposes mentioned in the instrument. . ")KQ( Dated this ~ day of ~ ,2004. ,''''~'''~.',\, ......... 60"'" "~I ........ , J.¡þ " _-"" "'" r:....... <..'l I, .f ~..·~\ON ex.:ö;·.~< \ "'f .~Gj '9~., ; .:~ O~Þ.RY \II'" ~ .. . "" -,"' . '- ~ ~ : 0' . ,J'~ : z ::: '- .Q' ·0" ~ ~ ...,. :¡....:: ~ ... pu~-· ,_ /"A' . ," -, \ . .s:'.. - 't dI~"'" 1 O.'d·'.'.·:~j·· 't. -1,.. ..........~.'; .... l: OF ~. ~~- \,\\"~\,,y:.- v(~ill::!~ot~LL¡ ¡; fYlCtY7Jl A ~ So -ftu¿1/ (Legibly Print or Stamp Name of Notary) . Notary public in and for the State of Washington, residing at Þ-r.ð c:o My appointment expires I Ò - 9-tJ 3 -13- 50420761.01 EXHIBIT LIST 1. Property Legal Description 2. Description of Improvements 3. Property Development Plan/Description -14- 50420761.01 50420761.01 .> EXHIBIT 1 LEGAL DESCRIPTION Lot 1, Block 3, Town of Slaughter, according to the plat recorded in Volume 2 of plats, page 56, records of the County of King, State of Washington. EXHIBIT 1 50420761.01 . ~ EXHIBIT 2 DESCRIPTION OF IMPROVEMENTS A multi-story public parking facility developed by the Central Puget Sound Regional Transit Authority and the City of Auburn, as more completely described in the Lease authorized by City Resolution 3278. EXHIBIT 2 50420761.01 -y- EXHIBIT 3 PROPERTY DEVELOPMENT PLANIDESCRIPTION The Property is located at 102 West Main Street. The development is a 3-story, mixed-use, 21,000 square foot building. The 7200-foot lot is fully occupied. The zoning is "C-2 downtown," and the building is "type 111 one hour." Occupancy is expected to be a main floor restaurant, second floor banquet space and third floor offices. EXHIBIT 3