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063-21 - Sidney Road Apartments LLC - ContractWhen Recorded Return to: McCullough Hill Leary, P.S. 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 Attn: Ian S. Morrison PORT ORCHARD CITY OF 202106280457 Agreement Rec Fee: $ 126.50 06/28/2021 03:40 PM Page: 1 of 24 Paul Andrews, Kitsap Co Auditor Document Title: Sewer General Facility Fee (GFF) Credit Agreement Grantor: Sidney Road Apartments L.L.C., a Washington limited liability company Grantee: City of Port Orchard Legal description Portion of NW quarter, Section 11, Township 23 North, (abbreviated): Range 1 East, WM, Kitsap County, Washington. See Exhibit A for complete legal description 112301-2-053-2007 Assessor's Tax Parcel Numbers: N/A Reference number(s) of document(s) modified, assigned or released (if applicable): SEWER GENERAL FACILITY FEE (GFF) CREDIT AGREEMENT BETWEEN CITY OF PORT ORCHARD AND SIDNEY ROAD APARTMENTS L.L.C. T S SF W GENERAL FACILITY FEE CREDIT AGREEMENT is made and entered into this c dwp-afNtay, 2021, by and between the City of Port Orchard, a non-cliarter, optional code Washington municipal corporation, hereinafter the "City," and Sidney Road Apartments L.L.C. a limited liability company organized under the laws of the State of Washington, hereinafter the "Developer" or "Sidney Road" (together the "Parties"). RECITALS WHEREAS, the City of Port Orchard is a non -charter code city and operates a municipal sanitary sewer system under the authority of RCW 35A.11.020, 35A.21.150, and 35.67.020 and Article XI, § 11 of the Washington State Constitution; and WHEREAS, as part of its sewer rates, the City of Port Orchard charges Capital Facility Charges ("CFC") for new development which connects to its sewer system; and WHEREAS, the CFC is comprised of a Wastewater Treatment Facility Fee ("WWTFF") and a General Facility Fee ("GFF") as provided in Port Orchard Municipal Code ("POMC" or "Code") Ch. 13.04; and WHEREAS, in accordance with POMC 13.04.040, when a property owner or developer constructs a portion of the public sewer system which is part of the City's basis for the CFC, then that property owner or developer may receive a credit for the GFF portion of the CFC commensurate with the increased capacity for the City's system that exceeds the needs of the owner or developer's project; and WHEREAS, Developer proposes to develop the Sidney Road Property with a multi -family development consisting of approximately 216 units of housing, residential amenity facility, parking for 356 vehicles, landscaping, and associated site improvements (collectively, the "Development Project" or City Permit No. PW 20-064); and WHEREAS, as part of the Development Project, Developer is proposing to construct at its expense, certain sanitary sewer system improvements as defined in the City's Comprehensive Plan as "6-5C, North Sidney Lift Station" defined herein as the "Sewer Improvement Project" and as shown on Exhibit C, and WHEREAS, this Sewer Improvement Project is part of the City's capital project list which forms the basis for the CFC charges, and therefore, this Sewer Improvement Project is eligible for a Sewer GFF credit pursuant to POMC 13.04.040; and WHEREAS, Developer has applied for the GFF credit in accordance with POMC 13.04.040, and the Sewer Improvement Project has been verified as eligible by the City's Public Works Director; and WHEREAS, the City Council has reviewed this GFF Credit Agreement in accordance with POMC 13.04.040(6)(d) and authorized the Mayor to execute this Agreement; GFF Credit Agreement - 1 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 Now, therefore, the Parties agree as follows: AGREEMENT Section 1. The Sidney Road Property. The Sidney Road Property comprises 4977 Sidney Road SW (Kitsap County Tax Parcel #112301-2-053-2007). The Sidney Road Property is described on Exhibit A which is attached hereto and incorporated herein by this reference as if set forth in full. A map of the Sidney Road Property is shown Exhibit B on which is attached hereto and incorporated herein by this reference as if set forth in full. Section 2. Sewer Improvement Project. Developer shall construct the North Sidney Lift Station Project, which is designated as Project #6-5C within the 2020 Amendment to the 2016 General Sewer Plan as adopted by Ord. 008-21 and is also sometimes referred to as the "Ruby Creek Lift Station." For purposes of this Agreement, the North Sidney Lift Station Project or Ruby Creek Lift Station is defined herein as the "Sewer Improvement Project" and as further defined in Exhibit C. The Sewer Improvement Project shall be constructed in conformance with Exhibit D. The Sewer Improvement Project shall serve the Sidney Road Property, amongst other properties within the North Basin area, and shall provide connectivity and capacity for the City. The City's Public Works Director has verified that the Sewer Improvement Project is eligible for Sewer GFF credits in accordance with POMC 13.04.040 as provided in Section 9 of this Agreement. The credits authorized by this Agreement are only applicable to pending Building Permit Applications 21-044, 21-045, 21-046, 21-047, 21-048, 21-049, 21-050, 21-051, 21-052, 21-053, and 21-054 for the properties identified on Exhibit B. Section 3. Definitions. As used in this Agreement, the following terms, phrases, and words shall have the meanings and be interpreted as set forth in this Section. a) "Commence construction" as to the Sewer Improvement Project means that the City has issued all required permit(s) and the Developer has deployed construction equipment and personnel to the site of the Sewer Improvement Project. b) "Council" or "City Council" means the duly elected legislative body governing the City of Port Orchard. c) "Development Project" means the development of the Sidney Road Property with approximately 216 units of housing, residential amenity facility, parking for 356 vehicles, landscaping, and associated site improvements as shown in Exhibit B and approved by the City under Permit PW20-064. d) "Director" means the City's Public Works Director. e) "Effective Date" means the effective date of the Resolution authorizing the execution of this Agreement. f) "Maximum credit" means the maximum amount of GFF credit that is eligible for the Sewer Improvement Project which is the subject to this Agreement for which Sewer GFF credits for new sewer connections will be provided by the City to the Developer. GFF Credit Agreement - 2 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 g) "Sewer GFF" means the City's sewer general facility fee that is described in POMC 13.04.040. h) "Sewer Improvement Project(s)" or "Project(s)" means the Sewer Improvement Project described above which will serve both the Sidney Road Property and the greater community, as specified in Section 9 and as provided for in all associated permits/approvals, whether now in place or to be issued in the future, and all incorporated exhibits. Section 4. Exhibits. Exhibits to this Agreement are as follows: a) Exhibit A — Legal Description of the Sidney Road Property a b) Exhibit B — Map of the Sidney Road Property with the Development Project and with permits listed in Section 3 identified. c) Exhibit C — Map of Sewer Improvement Project, including project components. d) Exhibit D — Standards for development of Sewer Improvement Project. e) Exhibit E — GFF Credit calculation estimation for this Development Project and Sewer Improvement Project. Section 5. Parties to Credit Agreement. The parties to this Agreement are: a) The "City" is the City of Port Orchard, whose office is located at 216 Prospect Street, Port Orchard, WA 98366. b) The "Developer", "Sidney Road", or "Sidney Road Apartments L.L.C." is a private enterprise which owns the Sidney Road Property in fee, and whose principal office is located at 1302 Puyallup Street, Suite A, Sumner WA 98390. Section 6. Sewer Improvement Project is a Private Undertaking. It is agreed among the parties that the Sewer Improvement Project is a private improvement for which Sewer GFF credits are allowed pursuant to POMC 13.04.040 and that the City has no interest in the improvements until such time as the Sewer Project is completed, dedicated, and accepted by the City as provided in Section 9 of this Agreement. Section 7. Term of Agreement. This Agreement shall commence upon the effective date of the Resolution authorizing the Port Orchard Mayor to execute this Agreement and shall continue in force for a period of five (5) years unless extended or terminated as provided herein. Following the expiration of the term or extension thereof, or if sooner terminated, this Agreement shall have no force and effect, except for such Sections which are expressly identified herein as surviving the expiration or termination. Section 8. Project Schedule. Subject to the City's issuance of all necessary permits and approvals, Developer will commence construction of the Sewer Improvement Project on the following schedule: GFF Credit Agreement - 3 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 a) Developer shall submit all necessary permits and approvals to the City for construction of the Sewer Improvement Project by May 14, 2021. Developer shall submit permits for priority review including but not limited to use of City's third -party reviewer at Developer's cost. b) The City shall undertake good faith efforts to promptly review and make final determinations on all necessary permits and approvals for construction of the Sewer Improvement Project ("Sewer Improvement Permits"), including but not limited to using the City's third -party reviewer to provide for prompt review. In the event that the City requires additional time beyond the 120-day window to review the Sewer Improvement Permits, or requests corrections of Developer, the timeline for Developer's obligation to construct the Sewer Improvement Project is tolled until the date that the City makes its final determination on the Sewer Improvement Permits. c) Except as provided in Subsection 8.c.i, upon issuance of the Sewer Improvement Permits, the Developer shall commence construction of the Sewer Improvement Project within 120 days and proceed in a timely and workmanlike fashion, provided however, the Developer shall be solely responsible for the means and methods for construction sequencing and phasing. is The Parties agree the Sewer Improvement Project is anticipated to cost approximately $2,500,000 ("Estimated Cost"). If Developer obtains a good faith estimate for construction of the Sewer Improvement Project that exceeds the Estimated Cost by 25 percent or more, Developer may elect, in its sole discretion, to pause construction of the Sewer Improvement Project for up to two (2) years from the date that Developer provides written notice to the City of such election to pause the Sewer Improvement Project ("Election Date") to secure alternative bids or allow for conditions to improve ("Cost Escalation Toll Notice" or "Notice"). Developer shall provide a copy of estimate for construction showing the escalation in costs with the Notice. In the event the Developer exercises its Notice, all other obligations and requirements of this Agreement shall automatically be tolled, and the Termination Date of this Agreement shall be extended accordingly by the number of days between the Election Date and date that Developer provides written notice to City of start the Sewer Improvement Project construction. d) Developer understands that in accordance with POMC 13.04.040(6)(e) that the City will not issue any certificates of occupancy for the Development Project prior to substantial completion of the Sewer Improvement Project, even if such Sewer Improvement Project is tolled by the Developer under Section 8(c)(i) above. Furthermore, the Developer shall fully complete the Sewer Improvement Project in accordance with POMC 13.04.040(6)(g) and Section 9 below prior to the issuance of the Certificate of Occupancy for the last residential structure contained in the Development Project, or sixty (60) calendar days prior to the Termination of this Agreement, whichever date occurs first. Section 9, Sewer Improvement Project Standards. a) General. Developer will finance, design, and construct the Sewer Improvement Project to comply with City standards, including obtaining all necessary permits, not to be unreasonably withheld or conditioned by the City. The City will approve the plans before GFF Credit Agreement - 4 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 construction begins; and the City may accept responsibility for the operation of the Sewer Improvement Project in accordance with POMC 13.04.040 provided construction is completed, the project has been accepted, any transfer property documents are completed, accepted, and recorded, and a two-year warranty and maintenance bond is in place, such acceptance not to be unreasonably conditioned, withheld or denied. In accordance with POMC 13.04.040(6)(g), the Project will be deemed completed when all of the following occurs: 1. The City deems it substantially complete; 2. All punch list items are finished; 3. The improvement passes final inspection; 4. The Developer has put a two-year warranty and maintenance bond in place; 5. The City releases the performance bond (if applicable); 6. The Developer has completed all property dedications; 7. The Developer has provided the City with a Bill of Sale for the improvements containing the certified construction costs (stamped by licensed engineer) to the City for determination of the maximum credits available under this Agreement; and 8. The City Council accepts the project as public. The City will confirm completeness of the Sewer Improvement Project by issuing a Final Notice of Completeness to the Developer. b) $ewer Improvement Project. The Sewer Improvement Project will include design, permitting, and construction, at Developer's sole expense of a new Sanitary Sewer Lift Station (#6-5C, North Sidney Lift Station Project) that complies with the standards and capacity as set forth on Exhibits C and D which are attached hereto and incorporated herein by this reference as if set forth in full. Any and all work within the right of way shall fully satisfy the requirements in POMC Chapter 12.04 and the City's right of way use permit process. In accordance with RCW 35.91.020, the Sewer Improvement Project shall be constructed according to plans and specification approved by the City. c) Bond Required. The Sewer Improvement Project construction work shall be secured by a Performance Bond at 150% of the estimated construction costs. Construction of the Sewer Improvement Project shall be inspected by the City, approval not to be unreasonably withheld. In addition to the requirements in Section 9(a) above, the City's final approval of Sewer Improvement Project shall be conditioned upon receipt from Developer of three (3) copies of as- builts, a copy of the DWG files for the Sewer Improvement Project, and a two (2) year Maintenance Bond at 20% of the construction costs, which shall be effective upon the City's release of the Performance Bond. Upon acceptance of the Bill of Sale, the City shall release the Performance Bond and shall accept full responsibility for the Sewer Project, except for those maintenance obligations of Developer secured by the two-year Maintenance Bond. Upon City's acceptance of the Sewer Improvement Project, Developer shall not be responsible for any further costs, maintenance, or liability for the Sewer Improvement Project except as provided in the maintenance bond. This provision survives the Termination of this Agreement. d) Latecomers Agreement. The Parties agree that the Sewer Improvement Project may provide public benefits to property within the City's service area and does not solely serve the Sidney Road Property. The Parties acknowledge that Developer may, in its sole discretion, seek approval for a latecomers agreement as provided in POMC Ch. 13.08 solely for any work that is not eligible for the GFF Credit hereunder. Work that is eligible for the GFF Credit shall not be subject to a latecomers agreement. The City shall review and make a final determination on any application for a latecomers agreement submitted by Developer as provided in Chapter 13.08 POMC. At the time of this Agreement, the Parties agree that the only eligible improvement that may be subject to a latecomers agreement is the Hovde Road gravity line connecting to the Sewer GFF Credit Agreement - 5 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 Improvement Project., The Hovde Road gravity line is not included in the calculation for the City's CFC and thus is ineligible for GFF credits. Section 10. Sewer Improvement Credits. a) Maximum Credit. In accordance with POMC 13.04.040(6), there is a maximum amount of the Sewer GFF credit for the Sewer Improvement Project to be built by Developer. There are three methods for calculating the credit as defined in POMC 13.04.040(6). The lowest of these three calculations shall serve as the Maximum Credit Amount for improvements. The three calculation methods are set forth on Exhibit E, which is attached hereto and incorporated herein by this reference as if set forth in full. The three credit calculations are described as follows: 1. Sewer Facility Fee Method. The Sewer Improvement Project was identified in the GFF rate study adopted by the City as a $2,500,000.00 project that is 100% funded by GFFs. The Sewer Improvement Project is being designed to be expandable and to contain three (3) pumps in the future, but only two (2) pumps shall be required by the Developer as a component of the Sewer Improvement Project. The percentage of the facility to be used by the proposed Development Project varies by lift station component and ranges from 17% to 35%. For the purposes of this Agreement, the City's engineers have determined that the Development Project as proposed will use 30% of the overall capacity in the Sewer Improvement Project, meaning that 70% of the added capacity will be for other customers. Therefore, under the Sewer Facility Fee method of (a) project cost of the project as defined in the Sewer General Facility Fee multiplied by (b) percentage of ERUs for excess capacity of the Sewer Improvement Project, the Developer would be credited $1,750,000 (70% of $2,500,000). The Parties agree with the accuracy and methodology of the Sewer Facility Fee method formula in Section I0(a)(1). 2. Certified Project Cost Method. The Certified Project Cost method is determined by (a) identifying the certified construction costs of the Sewer Improvement Project multiplied by (b) percentage of ERUs for excess capacity of the Sewer Improvement Project, which as defined above, was 70% of the added capacity. The value of the land dedicated by the Developer for the Sewer Improvement Project would be included as a separate line item in utilizing this method. The Certified Project Cost method cannot be determined until the Parties certify the Sewer Improvement Project costs as provided in Section 10(d) of this Agreement. The Parties agree with the accuracy and methodology of the Certified Project Cost method formula in Section 10(a)(2). 3. Total Sewer Facility Fee owed by Developer Method. The Total Sewer General Facility Fee Method is determined by (a) identifying the current GFF at the time of the Agreement (currently $8,525) and multiplying by (b) number of ERUs for Developer needs of current Sewer Improvement Project. Based on the scope of the Development Project that is currently in development review, there are expected to be 12 new sewer connections serving 216 multifamily units and common areas. These connections are expected to use 30% of the Sewer Improvement Project GFF Credit Agreement - 6 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 capacity. Therefore, under the Total Sewer Facility Fee Method, Developer would be required to pay a total of $1,841,400.00. The Parties agree with the accuracy and methodology of the Certified Project Cost method formula in Section 10(a)(3). The Code requires that the total GFF credit be the lowest of the three calculated methods as set forth above. Upon competition of the Certified Project Cost method as set forth in Section 10(d), the City shall confirm the potential GFF Credits for the Developer. The lowest of the three methodologies shall be the "Maximum Sewer GFF Credit" for the Developer, as authorized by Code. At this point, the Parties anticipate that the Sewer Facility Fee Method will likely be the Maximum Sewer GFF Credit available to Developer, however, that is subject to confirmation and change based on the above stated methodology. Once the Maximum Sewer GFF Credit has been achieved through credits to Developer, Developer will be required to pay any GFFs that exceed the Maximum Sewer GFF Credit and will be required to comply with Chapter 13.04 POMC for any further development of the Property. b) Deferral of GFF for Development Project. It is expected that Developer would owe a total GFF payment of $1,841,400 to the City for the Development but would receive Maximum Sewer GFF Credit of $1,750,000 (or alternative amount as calculated by Section 10(a)). Thus, the remaining GFF balance which is anticipated to be due at the time of building permit issuance from the Developer to the City is $91,400. The Parties acknowledge that this amount could change if the GFF fees are increased prior to permit issuance. Exhibit E contains the estimated credit calculations for the GFF credit under the Code as applied to this Development Project. The City and Developer agree that these credits are consistent with RCW 82.02.060(4) and that they are consistent with POMC 13.04.040. c) Payment of CFC, deferral. Unless the GFF rate changes or the Development Project scope changes between approval of this Agreement and issuance of building permits, the Developer will not be required to pay the full GFFs prior to building permit issuance. However, the Developer will be required to pay the full WWTFF portion of the CFC at the time of building permit issuance as the W WTFF portion of the CFC is not eligible for credit under the City's code. The Developer shall pay the GFF charges as required as of the Effective Date of this Agreement, except as deferred herein. The amount of full GFF charge required may change if Developer changes the scope of the Development Project or if the timing of the building permits is such that the GFF is adjusted. The Parties anticipate that the Maximum Sewer GFF Credit for the Sewer Improvement Project as described in this Section and on Exhibit E will cover most of the deferred Sewer GFF charge amount. The City will defer any remaining Sewer GFF owed (over and above the $91,400 due at permit issuance), if any, as calculated in Section 10(a) above, until just prior to issuance of the certificate of occupancy for the final residential structure in the Development Project. d) Certification of Project Casts. Upon completion of the Sewer Improvement Project, Developer shall submit certified project costs to the City for review and acceptance by the City Engineer; provided however, City shall use its best efforts to review and reach a final determination within 30 calendar days of receipt, provided all information needed by the City to determine the correct certified costs is included in the submittal. Once these costs and the executed Bill of Sale GFF Credit Agreement - 7 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 are reviewed and accepted by the City Engineer, not to be unreasonably withheld, conditioned, or delayed, the Maximum Sewer GFF Credit due to Developer will be established and will equal the Maximum Sewer Project Credit as so certified in accordance with this Section 10. Certificates of occupancy for the final residential structure in the Development Project will be withheld by the City until the construction costs are certified and accepted by the City and any remaining Sewer GFF fee balance has been paid; provided, however, the City shall use best available efforts to review and certify the credits applicable to the GFF balance within 30 days of receipt. Section 11. Dedication of Public Lands. As a condition of the permit issued by the City for the Sewer Improvement Project, the Developer will be required to dedicate the land that it owns that is needed to construct and access the Sewer Improvement Project as defined in Exhibits C-D. This Agreement acknowledges that this dedication is part of the Sewer Improvement Project. Section 12. Default. a) Subject to extensions of time by mutual consent in writing, failure, or delay by either Party to perform any term or provision of this Agreement shall constitute a default. In the event of alleged default or breach of any terms or conditions of this Agreement, the Party alleging such default or breach shall give the other Party not less than thirty (30) days' notice in writing, specifying the nature of the alleged default and the manner in which said default may be cured. During this thirty (30) day period, the Party charged shall not be considered in default for purposes of termination or institution of legal proceedings. b) After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other Party to this Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition, the City may decide to file an action to enforce the City's Codes, and to obtain penalties and costs as provided in the POW for violations of this Agreement and the Code. Section 13. Assignment and Assumption. The Developer shall have the right to sell, assign or transfer this Agreement with all rights, title, and interests therein to any person, firm, or corporation at any time during the term of this Agreement with a sale of the underlying property. Developer shall provide the City with written notice of any intent to sell, assign, or transfer all or a portion of the Property, at least 30 calendar days in advance of such action. Section 14. Amendment to Agreement; Effect of Agreement on Future Actions. No waiver, alteration, or modification to any of the provisions of this Agreement shall be binding unless in writing, signed by the duly authorized representatives of the Parties, and be consistent with Chapter 13.04 POMC. However, nothing in this Agreement shall prevent the City Council from making any amendment to its sewer codes or rates, or its Comprehensive Plan, Zoning Code, Official Zoning Map, or development regulations, or to impacts fees that affect the Sidney Road Property in the same manner as other properties, after the Effective Date of this Agreement. Section 15. General release. Developer may free itself from further obligations relating to the sold, assigned, or transferred property, provided that the buyer, assignee, or transferee expressly assumes the obligations under this Agreement as provided herein, including the obligation to construct the Sidney Road Projects. GFF Credit Agreement - 8 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 Section 16. Notices. Notices, demands, correspondence to the City and/or Developer (as applicable) shall be sufficiently given if dispatched by pre -paid first-class mail to the addresses of the parties as designated in "Written Notice" Section 24 below. Notice to the City shall be to the attention of both the City Clerk and the City Attorney. Notices to successors -in -interest of the Developer shall be required to be given by the City only for those successors -in -interest who have given the City written notice of their address for such notice. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence. Section 17. Reimbursement for Agreement Expenses of the City. In accordance with POMC 13.04.040(6), the Developer agrees to reimburse the City for actual expenses incurred over and above fees paid by Developer as an applicant incurred by City directly relating to this Agreement, including recording fees, publishing fees, attorneys' fees, and reasonable staff and consultant costs not otherwise included within application fees, provided however, the City shall provide written notice to Developer if the expenses to the City are anticipated to exceed Fifteen Thousand Dollars and No Cents ($15,000.00) and the parties shall meet and confer regarding the City's anticipated costs as provided in Section 18a. Such payment shall be made in full prior the Mayor executing the Agreement on behalf of the City. Upon payment of all expenses, the Developer may request written acknowledgement of all fees. Such payment of all fees shall be paid, at the latest, within thirty (30) days from the City's presentation of a written statement of charges to the Developer. Section 18. Applicable Law, Resolution of Disputes, and Attorneys' Fees. It is the Parties' intent to work cooperatively and to resolve disputes in an efficient and cost-effective manner. All disputes arising out of or relating to this Agreement shall be resolved as follows: a) Settlement Meeting. If any dispute arises between the parties relating to this Agreement, then the parties shall meet and seek to resolve the dispute, in good faith, within ten (10) working days after a Party's request for such a meeting. The City shall send the Mayor, Community Development Director and/or the Mayor's designee and any persons with information relating to the dispute, and Owner shall send an owner's representative and any consultant or other person with technical information or expertise related to the dispute. b) Court. If the parties cannot resolve the matter in a settlement meeting, then jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington, or the U.S. District Court for Western Washington, as applicable. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. The non -prevailing Party in any action brought to enforce this Agreement shall pay the other Parties' expenses and reasonable attorney's fees. Section 19. No Third -Party Beneficiaries. Except as otherwise provided herein, this Agreement shall not create any rights enforceable by any party who is not a Party to this Agreement. Section 20. Third Party Legal Challenge. In the event any legal action or special proceeding is commenced by any person or entity other than a Party to challenge this Agreement or any GFF Credit Agreement - 9 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 provision herein, the City may elect to tender the defense of such lawsuit or individual claims in the lawsuit to Developer. In such event, Developer shall hold the City harmless from and defend the City from all costs and expenses incurred in the defense of such lawsuit or individual claims in the lawsuit, including but not limited to, attorneys' fees and expenses of litigation. The Developer shall not settle any lawsuit without the consent of the City. The City shall act in good faith and shall not unreasonably withhold consent to settle. Section 21. Specific Performance. The parties specifically agree that damages are not an adequate remedy for breach of this Agreement, and that the parties are entitled to compel specific performance of all material terms of this Agreement by any Party in default hereof. Section 22. Severability. This Agreement does not violate any federal or state statute, rule, regulation, or common law known; but any provision which is found to be invalid or in violation of any statute, rule, regulation, or common law shall be considered null and void, with the remaining provisions in the Agreement remaining viable and in effect. However, if either Party in good faith determines that such provision or provisions which are rendered null and void are material to its entering into this Agreement, that Party may elect to terminate this Agreement as to all of its obligations remaining unperformed. Section 23. Non -Waiver of Breach. The failure of a Party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be and remain in full force and effect. Section 24. Written Notice. All written communications regarding enforcement or alleged breach of this Agreement shall be sent to the parties at the addresses listed below, unless notified to the contrary. Unless otherwise specified, any written notice hereunder shall become effective upon the date of both emailing and mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated below: SIDNEY ROAD APARTMENTS, CITY: L.L.C.: Attn: Brianne Kelsey 601 Union Street, Suite 3500 Seattle, WA 98101 BKelse c�tarra on.com McCullough Hill Leary, P.S. Attn: Ian Morrison 701 5ch Avenue, Suite 6600 Seattle, WA 98104 iorrison atmhseattle.coni Mayor City of Port Orchard 216 Prospect Street Port Orchard WA 98366 rputaansou na cityofportorchard.LEs Copies shall also be transmitted to the City Clerk and City Attorney at the above address. Section 25. Time is of the essence. All time limits set forth herein are of the essence. The Parties agree to perform all obligations under this Agreement with due diligence. GFF Credit Agreement - 10 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 Section 26. Covenant of Good Faith and Cooperation. The Parties agree to take further actions and execute further documents, either jointly or within their respective power and authority, to implement the intent of this Agreement. Each Party covenants to use its best efforts and work cooperatively in order to secure the benefits and rights under this Agreement. The Parties shall not unreasonably withhold approvals or consents provided for in this Agreement. Each Party shall execute and deliver to the other all further documents as are reasonably necessary to carry out this Agreement, including the Improvement Projects and Development Project, as may be necessary to provide a Party with a full and complete enjoyment of its rights and privileges under this Agreement. Section 27. Interpretation. This Agreement has been reviewed and revised by legal counsel for both Parties, and no presumption or rule construing ambiguity against the drafter of the document shall apply to the interpretation or enforcement of this Agreement. Section 28. Counterparts. The Agreement may be signed in two or more counterpart copies with the same effect as if the signature of each counterpart copy were on a single instrument. Each counterparty shall be deemed as an original as to the Party whose signature it bears, and all such counterparts shall constitute one document. Section 29. Entire Agreement. The written provisions and terms of this Agreement, together with the Exhibits attached hereto and the codes referenced herein, shall supersede all prior verbal statements of any officer or other representative of the parties, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever, this Agreement. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement and exhibits thereto. IN WITNESS WHEREOF, the parties have executed this Agreement on this 9— day of' 2021. SIDNEY ROAD APARTMENTS, L.L.C. CITY OF PORT ORCHARD By: Investco L.L.C. Its: Manager I_ f By: �Pzk Mari ri D. Waiss Its: President APPIA)VED AS TO FORM: Ian Porri son Attorney for Sidney Road GFF Credit Agreement - 11 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 By: Rob Putaansuu Its: Mayor APPROVED AS ORM: a�A ifcr S�bertson rney f ❑rt Orchard ATTEST: randy arson Port Orchard City Clerk GFF Credit Agreement - 12 Sidney Road Apartments, L.L.C. 1364367.2 - 099998 -0098 EXHIBIT A SIDNEY ROAD APARTMENTS LEGAL DESCRIPTION TAX PARCEL NUMBER: 112301-2-053-2007 THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER, SECTION 11, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON; EXCEPT THAT PORTION LYING NORTHERLY OR EASTERLY OF THE COUNTY ROAD TO PORT ORCHARD; AND EXCEPT THAT PORTION LYING EASTERLY OF A LINE PARALLEL TO AND 10 FEET WEST OF THE CENTERLINE OF THE PRESENT COURSE OF BLACKJACK CREEK; ALSO EXCEPT THAT PORTION CONVEYED TO THE STATE OF WASHINGTON UNDER AUDITOR'S FILE NO. 1153269; TOGETHER WITH THAT PORTION PER QUIT CLAIM DEED RECORDED UNDER AUDITOR'S FILE NO. 201107260315, DESCRIBED AS FOLLOWS: THAT PORTION OF LOT C OF SHORT PLAT NO. PO-74, RECORDED UNDER AUDITOR'S FILE NO. 9212310158 (S-1066) LYING SOUTH OF THE ROAD KNOWN AS SW HOVDE COUNTY ROAD. ALSO THAT PORTION OF THE SOUTH TEN (10) ACRES OF THE NORTH FIFTEEN (15) ACRES OF THE WEST HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., LYING SOUTH OF COUNTY ROAD NO. 146; EXCEPT THE SOUTH 190 FEET OF THE WEST 180 FEET; EXCEPT SIDNEY ROAD N.W.; EXCEPT THAT PORTION CONVEYED TO KITSAP COUNTY FOR SIDNEY ROAD BY DEED RECORDED UNDER AUDITOR'S FILE NO. 9205220166. ALSO THE SOUTH 190 FEET OF THE WEST 180 FEET OF THE NORTH 5 ACRES OF THE SOUTH 10 ACRES OF THE WEST HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY, WASHINGTON; EXCEPT THE WEST 30 FEET THEREOF CONVEYED TO KITSAP COUNTY UNDER AUDITOR'S FILE NO. 9205220164 FOR SIDNEY ROAD S.W. ALSO THAT PORTION OF THE SOUTH 5 ACRES OF THE WEST HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID SUBDIVISION; THENCE EASTERLY ALONG THE SOUTHERLY LINE THEREOF, 142 FEET TO THE TRUE POINT OF BEGINNING OF THE TRACT HEREIN DESCRIBED; THENCE NORTHERLY PARALLEL TO THE WESTERLY LINE OF SAID SUBDIVISION, 158 FEET; THENCE EASTERLY PARALLEL TO THE SOUTHERLY LINE OF SAID SUBDIVISION, 8 FEET; THENCE NORTH PARALLEL TO THE WESTERLY LINE Legal Description 1 OF SAID SUBDIVISION, 92 FEET; THENCE WESTERLY PARALLEL TO THE SOUTHERLY LINE OF SAID SUBDIVISION, 150 FEET TO THE WESTERLY LINE THEREOF; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHERLY LINE OF SAID 5 ACRE TRACT; THENCE EASTERLY ALONG SAID NORTHERLY LINE TO THE EASTERLY LINE OF THE WEST HALF OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER; THENCE SOUTHERLY ALONG SAID EASTERLY LINE TO THE SOUTHERLY LINE THEREOF; THENCE WESTERLY ALONG SAID SOUTHERLY LINE TO THE TRUE POINT OF BEGINNING; EXCEPT SIDNEY ROAD. ALL LYING WITHIN THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY, WASHINGTON, Legal Description 2 EXHIBIT B SW HOVDE RD LIFT STATION y g �-allillll�J__llfiif�+.l T �I DETENTION POND ` r r r r f SITE PLAN 0 W 0 EXHIBIT C 6" SANITARY SEWER FORCE MAIN I _ � 10" SANITARY SEWER MAIN 1 BLDG K BLDG A S �r SCALE: 1" = 100' 100 Oo o 100 zoo t W HOVDE RD .� _ r E�B!Lbb D �iL FT SIDNEY ROAD APARTMENTS PROJECT BLDG F o PARCEL NO. 112301-2-006-2005 SEWER PUMP STATION HOVDE SANITARY SEWER & LIFT STATION Exhibit D q� murraysmi- h Technical Memorandum Date: April 1, 2021 Project: 20-2887 To: Mark Dorsey, P.E., Jacki Brown, Ian Smith, P.E. City of Port Orchard From: Peter Cunningham, P.E. Reviewed By: Adam Schuyler, P.E. Re: Basin 7 North Flow Projections Introduction There is significant interest in developing along the Sidney corridor in the City of Port Orchard (City). A developer is interested in building the North Sidney Lift Station (NSLS) to serve the area north of Ruby Creek. The proposed service area is shown in Figure 1. The purpose of this memorandum is to identify and document the required capacity and requirements to properly size the pumps, piping, and wet well through the basin build -out conditions. Project No. 20-2887 Page 1 of 6 Basin 7 Flow Projections April 2021 City of Port Orchard Figure 1 (page 2 of 6 of the Technical Memorandum dated April 1, 2021 by murraysmith) is on file with the City of Port Orchard murraysm�th Ao., Population and Flow Projections Assumptions and Calculations The City's Planning Department provided a range of projected future Equivalent Residential Units (ERU). These ranged from 319 and 1,136 ERUs, with the most probable scenario being approximately 423 ERUs. Unit flows and peaking factors from the 2016 General Sewer Plan (GSP), used to calculated sewer flows, are shown in Table 1. Table 1 . Flow Assumptions Population/ERU 2.5 ERU/Multifamily unit 0.75 Flow/capita (gallons per capita/day) 78 Peak Day Infiltration and Inflow (II) (gallons per day) 1,100 Sanitary Sewer Peak Hour Factor' 1.41 II Peak Hour Factor 2.05 1. Applies to sanitary sewer flow only 2. Applies to II flow only Flows calculated using the projected ERUs and unit flows from the GSP are shown in Table 2. Table 2 Flow Projections Low 319 798 43 75.5 58 101 179 High 1,136 2,839 154 75.5 58 211 335 Probable 423 1,058 57 75.5 58 115 199 1. Multifamily units are counted as 0.75 ERUs 2. gpm = Gallons per minute Peak hour flows were also calculated using the Department of Ecology's peaking factor from the Criteria for Sewage Works Design (Orange Book). These are shown in Table 3. Project No. 20-2887 Page 3 of 6 Basin 7 Flow Projections April 2021 City of Port Orchard Table 3 Peak Hour Flow using Peaking Factors Low 319 798 43 3.9 167 High 1,136 2,839 154 3.5 532 Probable 423 1,058 57 3.8 217 Sidney Road 162 405 22 4.0 88 Apartments - Recommended Design Flows For most scenarios, the method of calculating the peak flow results in similar results. For the high development scenario, however, there is significantly more flow when calculated with a peaking factor. It is recommended that infrastructure that is more difficult and expensive to replace, such as the wet well and influent gravity pipes, be designed around a peak hour flow rate of 550 gpm. Sizing Criteria and Recommendations Pumps The pump station should be a triplex configuration with two pumps installed initially and a third pump slot forfuture expansion. The two -pump configuration should be able to convey a minimum of 250 gpm with one pump out of service. The pump selection and hydraulic analysis needs to include pumping through the existing 6-inch diameter Albertsons Lift Station (ALS) force main and the impacts to the ALS. The pumps should be equipped with variable frequency drives (VFDs) to provide more consistent flow to the downstream Pottery Pump Station. Gravity Piping Gravity piping should be designed to accommodate the most conservative future flow estimate of 550 gpm. Assuming a slope of 0.4 ft/ft and PVC piping, a 10-inch pipe will be adequate. The design engineer should review the pipe alignment and sizing to ensure capacity, as well as scouring velocities during typical flows. Force Main Force main piping should be designed to maintain velocities between 2 and 8 feet per second (fps), Force main recommendations are shown in Table 4. Project No. 20-2887 Page 4 of 6 Basin 7 Flow Projections April 2021 City of Port Orchard Table 4 Recommended Force Main Sizing Pipe Diameter (in) Vertical discharge piping 4 Piping for single pump 4 or 6 Common piping 6 wet well The wet well should be sized to accommodate three pumps for a future peak hour flow of 550 gpm. In addition to being large enough to physically fit three pumps, the number of starts per hour needs to be below that recommended by the pump manufacturer for the selected pump. Basin 7 Project Phasing North Sidney Lift Station and Associated Improvements The NSLS will be constructed as part of the Sidney Road Apartments. It will connect to the existing 6-inch ALS force main. Impacts to the ALS and grinder pumps connected to the 6-inch ALS force main should be monitored after construction is complete and NSLS is in operation. The NSLS needs to accommodate flows from throughout the basin and minimize future construction in the roadway. Therefore, the following additional improvements are required when the NSLS is constructed: * 10-inch gravity sewer along the frontage up to the intersection of Hovde and Sidney Road SW. Install sewer laterals to the property line along the gravity sewer alignment to avoid cutting into roadway in the future. ■ 10-inch dry force main, capped at both ends, along the entirety of the frontage of Parcels 112301-2-053-2007 and 112301-2-009-2002, and north to the termination of the new 10- inch gravity sewer. This improvement may be deferred to a later date if it is determined that the preferred location of this force main is to be in the western half of the Sidney Road SW right of way. Albertsons Lift Station Improvements Improvements to the ALS are currently being planned to increase the capacity and reliability and to serve the Stetson Heights development. Improvements to this lift station will need to be designed to avoid overwhelming the grinder pumps connected to the ALS force main. Project No. 20-2887 Page 5 of 6 Basin 7 Flow Projections April 2021 City of Port Orchard South Sidney Lift Station and Associated Improvements As development south of Ruby Creek occurs, a new South Sidney Lift Station (SSLS) will be constructed to serve Basin 7 south of Ruby Creek. A gravity sewer will be constructed in Sidney Road to divert flow from the ALS towards the SSLS. A new 10-inch force main will be constructed to serve the lift station and will discharge to the gravity sewer north of SR-16. After construction of the SSLS and associated gravity sewer and force main, the only flow in the 6- inch force main will be from the ALS, grinder pumps, and the NSLS. As flows to the NSLS increase, the ALS and grinder pumps may experience a reduction of capacity due to an increase in dynamic head loss in the force main. If the decrease in capacity overwhelms the ability to keep up with peak flows, the ALS and grinder pumps will need to be connected to the gravity sewer upstream of the SSLS. Due to changes in hydraulics, this may require converting or replacing the ALS with a grinder pump station. These changes should be evaluated in more detail during design of the SSLS. Sidney Road Apartments NSLS Capacity Share The NSLS will be constructed as part of the Sidney Road Apartments project. As described above, it will be sized to serve the entire basin. The mechanical and electrical equipment will be sized for the probable development projections, and the wet well and gravity sewer will be sized for the high development scenario. Sidney Road Apartments will use approximately 35 percent of the capacity of the mechanical and electrical equipment and 17 percent of the wet well and gravity sewer capacity. Although opinions of project cost have not been developed, the mechanical and electrical equipment will likely account for 70 percent of the total project cost, and the wet well and gravity sewer the remaining 30 percent. Using a weighted average, the Sidney Road Apartments will use approximately 30 percent of the NSLS capacity. Project No. 20-2887 Page 6 of 6 Basin 7 Flow Projections April 2021 City of Port Orchard Exhibit E to GFF Credit Agreement Sidney Road Apartments, L.L.C. The maximum credit shall be the lesser of a., b., c. methods below: a. Maximum Sewer General Facility Fee Method available for credit: $ 1, 750,000 ($2,500,000 x 70%) b. Certified Project Cost Method available for credit: (Certified Construction Cost (including dedicated land value & soft costs) x 70% TBD $ 1,841,400 Sewer GFF Credit Evaluation Data & Inputs C. Total Sewer General Facility Fee owned by Developer (estimated) ($8,525 x 216) Criteria for Sewer General Facility Fee Credit Calculation Per POMC 13.04.040 1. Verify the proposed project was included in the Sewer General Facility Fee Amt Sewer Comprehensive Plan #6-5C (Ord. 008-21) & (See Exhibits C and D) 2. Identify the project cost established for Sewer Improvement Project in the Sewer General Facility Fee $ 2,500,000 3. Identify and agreed upon ERU's for the Facility and agreement* 423 a. Number of ERU's agreed for Developer needs of the total facility* Percentage ERU's for Developer needs of the total facility* 127 b. 30% c. Number of ERU's agreed for Excess Capacity of the total facility* 296 d, Percentage ERU's for Excess Capacity of the total facility* 70% 4. Identify the Certified Construction Cost (as defined in line b above) TBD 5. Identify current Sewer General Facility Fee at time of agreement $ 8,525 6. Identify and agree est. Sewer General Facility Fee (per ERUs) to be paid by Developer for this agreement* Derived from Technical Memo 216 ERUs for the Development Project * See Exhibit D