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HomeMy WebLinkAboutQUINAULT INDIAN NATION UTILITY, STREET FRONTAGE AND TRAFFIC STUDY AGREEMENT THIS AGREEMENT is entered into between the City of Bremerton, Washington, hereinafter referred to as the "City", and the Quinault Indian Nation, hereinafter referred to as the "Nation". WHEREAS,the Nation is the lessee of certain real property located in Kitsap County; and WHEREAS, the property is held in trust by the United States for the benefit of individual Indian owners from whom the Nation is leasing the property and is located within the city limits of Bremerton but not subject to the jurisdiction of City; and WHEREAS, the Nation intends to develop a drive through tobacco sales facility on the property; and WHEREAS, the Nation desires to receive utility services from the City and the City is willing to provide utility services only upon certain terms and conditions in accordance with those provisions of this Agreement; and WHEREAS, the Nation agrees to provide street frontage improvements and conduct a traffic impact analysis for the property in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of their mutual covenants, conditions and promises, THE PARTIES AGREE as follows: 1. Warranty of Title. The Nation warrants that the property located at 1321 North Callow Avenue in Bremerton, Washington and described below ("Property") is held in trust by the United States. PTN OF SEI/4 NE1/4, BEG 835.40FT N & 420.75FT W OF THE SE COR OF SE1/4 NE1/4 TH W 212FT TH N 162.7FT THE 212FT TH S 162.7FT TO POB The Nation warrants that it is authorized to enter into this Agreement pursuant to a confidential commercial lease duly approved by the Bureau of Indian Affairs, which authorizes the Nation to enter into such agreements. 2. Water and Sewer Extensions Authorized. The City hereby authorizes the Nation to extend service to the Property from the existing water and sewer lines in Callow Avenue. Further, utility services under this Agreement shall be provided in the manner prescribed in Title 15 of the Bremerton Municipal Code ("BMC") except as otherwise expressly provided in this Agreement. 3. Costs. Nation will pay all costs of designing, engineering and constructing the extension. 1 4. Sewer Commitments. The City agrees to provide to the Nation sewer utility service and hereby reserves to the Nation the right to discharge to the City's sewage system from a system having the following flow characteristics: a drive through tobacco sales facility. 5. Water Commitments. The City agrees to provide to the Nation water service and reserves to the Nation the right to connect service with a meter and to provide water to the following: a drive through tobacco sales facility. 6. Stormwater Commitments. The City agrees to provide to the Nation stormwater utility service and hereby reserves to the Nation the right to discharge to the City's stormwater system, to be assessed at a rate as required pursuant to Title 15 of the BMC for development of a drive through tobacco sales facility. 7. Capacity Commitments — Current and Future Development. Capacity rights acquired by the Nation pursuant to this Agreement shall not constitute ownership by the Nation of any facilities comprising the City water and sewerage system. These capacity rights are allocated only to the Nation's system as herein described for a drive through tobacco sales facility. Any addition to this system must first be approved by the City. Such approval shall not be unreasonably withheld. Additional charges and fees may be assessed for utility connection and services as well as other required improvements pursuant to Title 15 and Chapter 11.12 of the BMC for any future development of the Property beyond the drive through tobacco sales facility. The City retains the authority to temporarily suspend such capacity or to interrupt service where necessary for repairs, or to protect public health and safety, or where required to comply with the City's National Pollutant Discharge Elimination System ("NPDES") permit, or any other permits required by any agency with jurisdiction. 8. Connection Charges. The Nation agrees to pay the connection charges for water, stormwater, and sewer, in addition to any costs of construction, as a condition of connecting to the City utility system at the rate schedules applicable at the time the Nation pays the connection charges. 9. Service Charges. In addition to the charges for connection, the Nation agrees to pay for utility service rendered according to the rates for services as such rates exist and are provided in the BMC, or as they may be hereafter amended or modified. 10. Street Frontage Improvements. The Nation agrees to provide street frontage improvements as currently approved by the City. If the Nation contemplates another phase of development, additional improvements will be provided pursuant to BMC 11.12.110 and the Engineering Design & Construction Standards. 11. Street Impact Analysis. The Nation agrees to provide the City with an approved traffic impact analysis ("TIA") pursuant to BMC 11.12.060 for the drive through tobacco sales facility and will provide mitigation of the impacts as required. 2 12. Future Development — Fees and Charges. Additional charges and fees will be assessed for utility connection and services as well as other required improvements pursuant to Title 15 and Chapter 11.12 of the Bremerton Municipal Code if there is any future development of the Property beyond the currently proposed drive through tobacco sales facility. 13. Permits - Easements. Nation shall secure and obtain, at Nation's sole cost and expense any necessary permits, easements and licenses to construct the improvements. 14. Delinquent Payments.The City acknowledges that delinquent payments under this Agreement shall not constitute a lien upon the Property. In the event the Nation's payments for service charges become delinquent, the Nation acknowledges that the City may suspend the water service until the delinquent and unpaid charges are paid after notice of nonpayment and a 21-day opportunity to cure is provided to the Nation. 15. Specific Enforcement. In addition to any other remedy provided by law or this Agreement, the terms of this Agreement may be specifically enforced in federal court. 16. Authority to Execute Agreement. Each party represents that the party, by the signature(s) of their agent(s) affixed below, has duly constituted authority to enter into this agreement and all necessary company actions have been taken to authorize execution and performance of this agreement. 17. Attorney's Fees. In any suit or action seeking to enforce any provision of this Agreement, neither Party shall be entitled to reimbursement of its attorney's fees and costs 18. Waiver of Sovereign Immunity. Except as set forth in Section 19 below, the Nation grants the City a limited waiver of sovereign immunity to be sued only to the extent necessary to enforce this Agreement, unless the Nation is otherwise protected from a claim under the Federal Tort Claims Act, with the following limitations: a. The claim is made by the City, and not by any other party, whether an individual or an entity of any kind. The right to sue shall not be transferable. b. The claim alleges a default by the Nation of one or more specific duties owed under the terms of this Agreement. No suit shall be had for any other reason. c. The claim seeks any of the following: i) specific performance by the Nation to bring the Nation into compliance with the obligations or duties expressly assumed under this Agreement; or ii) payment of a monetary judgment arising from a default of an explicit duty, including the payment of fees and charges, owed by the Nation to the City under the terms of this Agreement; provided, that any resulting judgment shall be satisfied first through payment from the Nation's insurance, and if insurance coverage is not available or sufficient,then from the Nation's then-existing bank and financial accounts up to $500,000.00 per occurrence. 3 d. The claim is brought in the courts of the Stateof Washington g Wash gto with jurisdiction and venue in Kitsap County. Other than as expressly set forth in Section 18 above and Section 19 below, no other provision in this Agreement shall be deemed a waiver by the Nation of its sovereign immunity in any form, regardless of the terms used or material directly or indirectly referenced. 19. Indemnity. As relates to any legal claims or lawsuits brought by third parties, each party to this Agreement shall be responsible and assume liability for its own wrongful and/or negligent acts or omissions, and for those of its officers, agents or employees to the fullest extent required by law, and shall indemnify, defend and hold the other parties harmless from any such liability, allegations, complaints, or claims of wrongful and/or negligent acts or omissions by said party and/or its officers, agents, or employees to the fullest extent allowed by law. For the purposes of this Agreement only, and in particular this section,the Nation agrees that neither it nor its insurance company shall invoke the defense of sovereign immunity in response to a legal claim or lawsuit brought by a third party related to this Agreement. In the case of negligence of more than one party, any damages allowed shall be levied in proportion to the percentage of negligence or fault attributable to each party and each party shall have the right to seek contribution from each of the other parties in proportion to the percentage of negligence attributable to each of the other parties. The provisions of this section shall survive the expiration or earlier termination of this Agreement. The limitations set forth in Subsection 18(c) above do not apply to this section. 20. Severability. If any provision of this Agreement or its application to any circumstance is held invalid, the remainder of the Agreement or the application to other circumstances shall not be affected. IN WITNESS WHEREOF, the parties have signed this Agreement, effective on the date fully executed below. QUINAULT INDIAN NATION CITY OFtB.REMERTON riff----- Fawn R. Sharp, President Greg h ler, Mayor Date 61i 2 �l4 Date °l \-21 12 ©' t9 TTT ST: ATTEST: y ) 1 "►O1, % ,i C ? �,�% l C1, ma a ee•sire t• nowY7 Angela Woods City Clerk Approved as to form: roved as to form: if-P,‘.):_&LA..(-4/t__ _ (N2:4L---7-- ?_—__ Lori Bruner, Sr. Asst. Attorney General Roger A. Lubovich, ity orney 4