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HomeMy WebLinkAboutPW13-055 - Original - Kim Tien Nguyen - Horseshoe Bend Levee Project - 06/29/2011 Possession and Use Agreement City of Kent Horseshoe Bend Levee Project h C of Kent("City")and This Agreement is entered into this 30th day of June 2011 between t e City Ke ( y'} Kim Tien Nguyen ("Nguyen") The City and Nguyen shall be referred to collectively herein as the Parties." COPY Y Background The City is constructing its Horseshoe Bend Levee Project("the Project")which,among other things, requires that the City acquire—by condemnation if necessary—a portion of Nguyen's real property located at 8417 S. 259`h Street in Kent The Nguyen property as a whole is legally described to Exhibit A The portion of the Nguyen property sought by the City(the"Acquisition Area") is legally described in Exhibit B Both the Acquisition Area and the property as a whole are visually depicted on attached Exhibit C. JS The City provided to Nguyen a copy oft a City's appraisal,prepared by James L. Hoss of _ Strickland, Heischman and Hoss, Inc,cM=a,c�opy of a review appraisal report by Joseph H Granger Based on the review appraisal,the City has offered Nguyen 63 000.00 in just compensation i g Pp Y $ � J P for the taking of the Acquisition Area. The Parties recognize that Nguyen may ultimately accept or reject the City's offer, and that Nguyen may or may not choose to obtain a review appraisal or an appraisal of her own with respect to the compensation due her in connection with the acquisition In any event, some period of time will likely be required for the Parties to reach agreement as to, or to adjudicate,the matter of compensation Further complicating the matter of compensation is the existence of an as-yet unfiled adverse possession claim that Nguyen may assert against a neighboring property owner,the outcome of which may or may not affect the compensation owing to Nguyen for the City's taking of the Acquisition Area. It is in the interest of the Parties, however,for the City to proceed with the Project as soon as possible Accordingly,the Parties are executing this Possession and Use Agreement to provide the City the right to possess and use the Acquisition Area on the Nguyen property,while at the same time preserving for Nguyen all rights to fully evaluate the City's pending compensation offer and to negotiate final compensation pursuant to all of Nguyen's rights under Washington law. Now,therefore,the Parties agree as follows: Agreement 1 Nguyen agrees that as of the date of this Agreement,the City may take possession of and use the portion of the Nguyen Property visually depicted and legally described on/in Exhibits B and C, respectively City of Kent—Kim T Nguyen Possession Agreement—page 1 2. The City will provide Nguyen no less than 14 days' notice prior to commencement of any construction activit;es within the Acquisition Area. 3 a Within 15 calendar days of Nguyen's execution of this Possession Agreement, the City shall pay to Nguyen in the manner described below the sum of$63,000 00,which is the amount of just compensation owing to Nguyen—as determined by the City's review appraiser—in conjunction with the City's purchase of the Acquisition Area under threat of condemnation. b The City hereby acknowledges that it has received from Nguyen a counteroffer, in full and final settlement,in the amount of$78,000 00 This offer shall remain open to the City until 3.00 p m on Monday,July 11, 2011, unless countered or simply rejected by the City prior to that date and time 4 The Parties recognize that Nguyen owes substantial sums of money secured by the Nguyen Property Accordingly, Nguyen's lenders may, pursuant to controlling loan documents, be entitled to receipt of proceeds from the City's purchase of the Acquisition Area Moreover, a partial deed release is necessary to remove the interests held by Nguyen's lenders in the Acquisition Area. Consequently, payment by the City pursuant to the preceding paragraph shall be accomplished by the City paying into escrow the sum of$63,000 00,at which time a fully executed and effective original of this Possession Agreement shall be delivered to the City S. Subsequent to payment of purchase funds into escrow and delivery to the City of this Possession Agreement, Nguyen may direct that some or all of the purchase amount be paid to her lenders,and in making this determination Nguyen shall rely on the advice and counsel of her attorney, Brian Hanis Furthermore and in any event, Nguyen hereby agrees that until such time as her lenders have provided partial deed releases, no portion of the$63,000 00 in just compensation may be released from escrow to her or to her lenders Finally, Nguyen shall execute a Quit Claim Deed conveying to the City all of her right,title and interest in the acquisition area,such Quit Claim Deed to be recorded at closing The Parties acknowledge, however,that closing will not occur until such time as final agreement has been reached by the Parties as to just compensation,or the matter of just compensation has been addressed through the judicial process as addressed below 6. The Parties recognize that if they are ultimately unable to reach agreement as to the amount of compensation to which Nguyen is entitled,the City will file a condemnation petition in King County Superior Court in order to have the amount of compensation determined through the judicial process As in any eminent domain case,the valuation date is the date of possession, but the Parties agree that this rule shall be adjusted as follows- a. Nguyen presently believes that she has a viable adverse possession claim against a neighboring property, referred to herein as"the Harpold Property" No claim has yet been filed in court The City is NOT acquiring any portion of the Harpold Property in connection with its Horseshoe Bend Levee Project, and it is not known whether the City's appraiser's determination of just compensation owing to Nguyen for purchase of the Acquisition Area would be greater if Nguyen presently owned the portion of the Harpold Property that she hopes to acquire through adverse City of Kent—Kim T.Nguyen Possession Agreement—page 2 possession The City believes that as of the date of this Agreement, Nguyen's claim is too remote and speculative to be considered in relation to lust compensation. Nguyen neither agrees nor disagrees with this statement, and her signature on this agreement does not waive any right to argue one way or another b. To accommodate Nguyen's unfiled adverse possession claim and as added incentive for her to enter into this Agreement,the City agrees that if Nguyen prevails on her adverse possession claim through the court process,negotiation or otherwise and thereby obtains ownership of the area she seeks through adverse possession,the City will instruct its appraiser to complete a new appraisal or an appraisal update to determine whether, as of the date of this Agreement, Nguyen would have been entitled to greater compensation from the City if she had actually owned the adverse possession area as of the date of this Agreement. In short, Nguyen will be treated as though she owns the adverse possession area today if she prevails on her adverse possession claim in the future, provided that she pursues that claim with due diligence and provided at a minimum—as part of that due diligence—that she files an adverse possession lawsuit no later than August 15, 2011. 7 To afford the Parties time to negotiate a final resolution as to compensation forthe Acquisition Area in any event, and separate and apart from the unfiled adverse possession claim referenced in the preceding paragraph,-the City agrees that it will not file a condemnation petition any - - - sooner than sixty days after making payment to Nguyen in accordance with the preceding paragraphs, unless requested by Nguyen, in writing,to do so. 8 Nguyen agrees that in the event that agreement is not reached through negotiation as to compensation,then upon the City's filing of a condemnation petition in Superior Court, Nguyen will stipulate as to the threshold issue of public use and necessity by executing a "Stipulated Order of Public Use and Necessity"to be drafted by the City and approved by Nguyen's attorney 9 The Parties agree that Nguyen's execution of this Possession and Use Agreement will be recognized as,and will be accorded the same legal effect(pursuant to RCW 8 04 090) as, a Judicial Order Granting Immediate Possession and Use, including determining Nguyen's potential right to recover attorney fees in the event that compensation is ultimately determined by the court or by jury. This Agreement does not, however, confer upon Nguyen any right or expectation of any kind that the City would or will reimburse her for any fees or costs she may incur in pursuing her adverse possession claim,to the contrary, Nguyen's adverse possession claim is an entirely separate matter and in no event will the City reimburse her in any way for any fees or costs she may incur in pursuing that adverse possession claim IN WITNESS WHEREOF,this Possession and Use Agreement has been entered into effective June 30,2011 Owner: City of Kent-Kim T. Nguyen Possession Agreement-page 3 Kim Tien Nguyen By- City o Kent By Exhibits to be attached to this Possession Agreement Exhibit A: Legal description of entire Nguyen property Exhibit B: Legal description of acquisition area Exhibit C: Drawing depicting both the entire property and the acquisition area City of Kent—Kim T Nguyen Possession Agreement—page 4 Exhibit "A" Assessor's Tax Parcel: 000660-0046 That portion of the S.W Russell Donation Land Claim described as follows. Beginning at a point on the south line of said S.W Russell Donation Land Claim, where the south line is intersected by the Township line between Township 22 North, Range 4 East, W.M. , in King County, Washington and Township 22 North, Range 5 East, W.M. , in King County, Washington, Thence east along said south line 100 feet; Thence north 360 feet, more or less, to the southerly margin of South 259th Street (Titus Road) ; Thence west, along said county road margin 100 feet to the intersection with the aforesaid Township line; Thence south, along said Township line, 360 feet, more or less, to the point of beginning. Exhibit B Levee Right of Way Tax Lot #0006600046 PNWTI #692965 That portion of the S W. Russell Donation Land Claim Number 41, in the northwest quarter of the northwest quarter of Section 30, Township 22 North, Range 5 East, W M , in King County, Washington, described as follows Commencing at the northwest corner of said Section 30, thence S00036'50"W, along the west line said Section 30, a distance of 1191 54 feet to the TRUE POINT OF BEGINNING, thence continuing S00036'50"W, along said west line, 55 70 feet to the south line of said Donation Land Claim, thence S89043'53"E, along said south line, 100 00 feet to a line 100 00 feet east of, when measured at right angles to, the west line of said Section 30, thence N00036'50"E, parallel with said west line, 149 86 feet, thence S28049'33"W 106 94 feet, thence N90°00'00W 49 45 feet to the TRUE POINT OF ----- -BEGINNING - - -- �. �� ^2�7 o r //�yo ��AAL LAIM r FIRST AMERTr A �t UD Z, t3 Return Address: City of Kent Engineering/Property Services/ I. Dixon 20120806000402 220 4th Avenue South Kent, WA 98032-5896 FIRST AMERICAN AG 68 00 PAGE-001 OF 007 08/06/2012 10 06 KING COUNTY, WA WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65 04) Document Title(s) (or transactions contained therein). All areas applicable to your documents must be filled in. 1. Possession and Use Agreement 2. Reference Number(s) of Documents assigned or released: Additional reference #'s on page of document. Grantor(s) (Last name first, then first name and initials) 1. Kim Tien Nguyen Said documents were filed of 2 regard as an accommodation oriv. 3. It has not twen exam+naxa as to ❑ Additional names on page _ of document. proper execution or as to its effect Grantee(s) (Last name first, then first name and initials) 1. City of Kent "I hereby Certifiy this Tr ye and Correct Copy of the original" By: �' bi_ 3. ❑ Additional names on page _ of document. Legal descriptions (abbreviated: i.e. lot, block, plat or section, township, range) ❑ Full legal on page 6 of document. Assessor's Property Tax Parcel/Account Number ❑ Assessor Tax # 000660-0046 The Auditor/Recorder will rely on the information provided on the form. The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein.