083-13 - The Sinclair, LLC - Contract Amendment 1February 3, 2015
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PORT ORCHARD
AND THE SINCLAIR, LLC FOR THE
SOUTHWEST SIDNEY PLAZA DEVELOPMENT
THIS FIRST AMENDMENT TO THE DEVELOPMENT AGREEMENT which
was executed on October 22, 2013 (hereinafter the "Development Agreement"), is made
on the It:) day of t ; 2015 by and between the City of Port Orchard, a
Washington municipal corporate , hereinafter the "City," and The Sinclair, LLC, a
limited liability corporation, organized under the laws of the State of Washington,
hereinafter the "Developer."
RECITALS
WHEREAS, the "Development Agreement' relates to the mixed use development
known as Southwest Sidney Plaza, which is to be constructed on property located at the
southwest corner of the Sedgwick/Sidney Road intersection in Port Orchard (hereinafter
the "Southwest Sidney Plaza Development' or "Development'); and
WHEREAS, the Southwest Sidney Plaza Development includes 14,000 square
feet of retail space, nine apartment buildings and a recreation center; and
WHEREAS, in the Development Agreement, the Developer agreed to construct
and after City inspection and approval, dedicate to the City without cost, for ownership
and maintenance, a new sewer force main and Pottery Lift Station (all as set forth in
sections 12.8 and 12.9 of the Development Agreement) to serve the Development; and
WHEREAS, the City agreed to provide the Developer a credit per equivalent
residential unit (ERU) as allowed under the current code against the sewer capital
facilities charge for the cost of the design, engineering and construction costs of the
sewer facilities that the Developer will construct and dedicate to the City, as limited by
Section 12.9.5 of the Development Agreement; and
WHEREAS, the parties agreed to this ERU credit against the sewer Capital
Facilities Charge at a time when construction of the pump station and nine apartment
buildings was taking place, and the total cost of the sanitary sewer pump station was not
known; and
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 1 of 9
WHEREAS, if the City had known that the total cost of the sanitary sewer pump
station would exceed the maximum sewer Capital Facilities Charge cost allowed, the City
could have instead credited the Developer one hundred percent (100%) of the Capital
Facilities Charge per building permit; and
WHEREAS, the Developer has paid the applicable Capital Facilities Charge for
the nine apartment buildings (changed to ten apartment buildings with no increase in the
number of units), and the full amount was collected by the City at a rate of $6,359.18
ERU; and
WHEREAS, the parties desire to enter into this First Amendment to the
Development Agreement in order to address the actual costs and an accounting for the
future credit for the Capital Facility Charge or reimbursement of this Charge, related to
the 17,000 square feet of the retail space, which has not yet been fully constructed; and
WHEREAS, the Port Orchard City Council provided public notice and held a
public hearing on this First Amendment to the Development Agreement on February 10,
2015; Now, therefore, the parties hereto agree as follows:
GENERAL PROVISIONS
Section 1. Amendment to Section 12. Section 12 of the Development Agreement
shall be amended to read as follows:
12. Financing and Construction of Sewer Improvements.
12.1 Certificates of occupancy for the Project will not be issued until additional
sanitary sewer infrastructure, consisting of a new lift station and appurtenances
(collectively, the "Pottery Lift Station Facility" and individually, the "Pottery Lift
Station") and a connection to an existing force main and pump station have been
constructed and inspected and accepted by the City. The City has determined that the
appropriate location for the proposed Pottery Lift Station Facility is on property
owned by South Kitsap School District No. 402 located at the Cedar Heights Junior
High School (Cedar Heights School), 2220 Pottery Avenue, Port Orchard, as legally
described and depicted in Exhibits A, B, and C to Attachment 2.
12.2 The School District has granted a sanitary sewer easement to the City,
Kitsap County Auditor's No. 201307150243, for the purpose of constructing,
reconstructing, installing, repairing, replacing, operating and maintaining a sewer
pump station, gravity sewer lines, and associated appurtenances, together with right
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 2 of 9
of ingress and egress thereto. A copy of said easement is attached hereto as
Attachment 2.
12.3 Developer agrees to finance and construct the sewer force main
connection and the Pottery Lift Station in accordance with the terms and conditions
set forth in this Section 12.
12.4 Developer agrees to pay all costs of design, engineering, and construction
to extend the existing gravity sewer line at the Albertson's Pump Station westward
beneath Sidney Road SW and across the Subject Property to the northwest corner of
the Subject Property at Sedgwick Road SW for future use by Developer and/or
others.
12.4.1 All construction shall be done to City standards and according to plans
approved by the City's Public Works Department and City Engineer. Any and all
costs incurred by the City in reviewing plans and inspecting construction shall be
paid for by the Owner.
12.4.2 The Albertson's Pump Station has sufficient pump capacity and force
main capacity to receive Developer's effluent. However, minor modifications
and/or repair may be required. Developer shall provide the City with a written
assessment of the suitability of the Albertson's pump station to receive
Developer's additional effluent and agrees to make, at its sole cost, such minor
modifications or repairs as are necessary for full functionality. The City and it's
consultants agree to provide to the Developer all available operation and
maintenance records; operational data, pump station plans, flow modeling
analysis reports completed to date; or other documentation that will allow for the
written assessment of the Albertson's pump station.
12.5 Developer shall pay all costs of designing, engineering and constructing
the Pottery Lift Station Facility. All construction shall be done to City standards and
according to plans approved by the City's Public Works Department and City
Engineer. Any and all costs incurred by the City in reviewing plans and inspecting
construction shall be paid for by the Owner.
12.6 Developer shall prepare the design documents required for the Pottery Lift
Station in accordance with the City's specifications and the following requirements:
12.6.1 The Pottery Lift Station and the improvements within the Easement shall
be generally located as shown on Exhibits B and C to Attachment 2 and shall be:
(1) located in the north section of the Easement approximately 40 feet
x 120 feet) so as to maximize a parking layout (as set forth below
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 3 of 9
under Section 12.7) for the benefit of the School District and
enclosed by a minimum 5 foot slatted chain link fence and
landscaped around the perimeter of the fenced Lift Station as
approved by the City in coordination with the School District; and
(ii) designed with two gated entrances that are aligned with drive
aisles in the parking lot to be constructed within the southern section
of the Easement.
12.7 Developer shall prepare and submit to the City a Parking Lot Plan (which shall
include the above -identified items under Section 12.6.1) to be approved by the City and
the School District within a reasonable period of time following submittal of such
Parking Lot Plan and which approval shall not be unreasonably withheld. The Parking
Lot Plan shall include but not be limited to the following specifications:
12.7.1 The Parking Lot shall be located within the Easement and shall be
approximately 120 feet x 120 feet in size as generally shown on Exhibit B to
Attachment 2.
12.7.2 The Parking Lot shall be properly graded (for stormwater runoff)
and a base course shall be placed thereon at such depth as is required by the
City in consultation with the School District in the exercise of its reasonable
discretion, inclusive of rip rap and 3/4" minus.
12.7.3 The Parking Lot will be paved with HMA pavement at such depth
as is required by the City in consultation with the School District in the exercise
of its reasonable discretion. Parking stalls shall be striped and wheel stops
installed.
12.8 Construction of the Pottery Lift Station and Parking Lot (the Work) shall
begin after the Developer receives the necessary approvals and permits from the City
and after the School District has approved the Parking Lot Plan. The School District
has requested that the Work be performed during those periods when students are not
present at Cedar Heights School. However, if this is not feasible due to the
Developer's development schedule, then the Work shall be performed at such other
times as agreed upon between the School District and the Developer in the exercise of
the School District's reasonable discretion. Prior to commencement of the Work, the
Developer shall provide the District with not less than fourteen (14) days' advance
notice in accordance with Section 24 below and the Developer shall make its bests
efforts to coordinate a pre -construction meeting with the School District and the City.
The Work, including the Parking Lot, shall be guaranteed by the Developer for the
Maintenance Period required under the City's development regulations.
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 4 of 9
12.9 Developer agrees to turn over and dedicate the new sewer force main and
Pottery Lift Station Facility to the City, at no cost, upon the completion of
construction and approval and acceptance of the same by the City. As a
prerequisite to such turn over and acceptance, Developer will furnish to the City
the following:
12.9.1 As built plans or drawings in a form acceptable to the City Public Works
Department and City Engineer.
12.9.2 Any necessary easements, permits or licenses for the continued operation,
maintenance, repair or reconstruction of such facilities by the City, in a form
approved by the City Attorney.
12.9.3 A bill of sale in a form approved by the City Attorney; and
12.9.4 A bond or other suitable surety in a form approved by the City Attorney
and in an amount approved by the City Engineer, ensuring that the facilities will
remain free from defects in workmanship and materials for a period of two (2)
years.
12.9.5 At the time the Development Agreement was executed, POMC 13.04.040,
allowed the Developer a credit against the sewer capital facilities charge, which
the Developer has now paid. The amount of the credit equals the design,
engineering and construction cost of the sewer facilities, or, the regional pump
station, that Developer has constructed and dedicated to the City; provided
however, the amount of the credit shall not exceed the amount of the sewer capital
facilities charge for the Project to which the credit is being applied.
Notwithstanding the foregoing, Developer shall be responsible for payment of all
applicable permit and inspection fees, as provided by Code.
The Developer has identified, and the City has agreed, that the total allowable
cost for the regional pump station is One Million, Fifty -Six Thousand and Ninety -
Six Dollars and Ninety -Five Cents ($1,056,096.95). Therefore, the Developer is
now entitled to a credit, in the form of reimbursement, up to the amount of sewer
capital facilities charge paid by the Developer for the apartment phase of the
project. The Developer is also entitled to a credit of the sewer capital facilities
charge required for the future retail building phase of the project. However, the
said credit for the retail building shall not exceed the difference between the
amount paid by the Developer in sewer capital facilities charge for the apartment
phase and the cost of the regional pump station. For the retail building phase of
the project, the Developer may either choose to have a credit against the Capital
Facilities Charge related to future construction of the retail space, according to the
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 5 of 9
terms of the Development Agreement, or be reimbursed for the sewer capital
facilities charge it pays for a new retail building.
12.9.6 Should the costs of the improvements required under this agreement
(Albertson's Pump Station upgrades, if required, and the design, engineering and
construction of the Pottery Lift Station) be greater than the amount of credit
against sewer capital facilities charge the Developer is entitled to under POMC
13.04.040, nothing in this Agreement shall preclude the Developer from setting
up a latecomers agreement for the amount exceeding said credit. Provided,
however, the property owned by South Kitsap School District No. 402 at 2220
Pottery Avenue, Port Orchard, Kitsap County parcel no. 032301-1-011-2000, and
commonly referred to as Cedar Heights Junior High School, shall be exempt from
any latecomer's agreement established by the Developer to recover costs incurred
under this Development Agreement.
Section 2. All Other Provisions of Development Agreement to Apply. This
First Amendment only amends the portions of the Development Agreement identified in
Section 1 herein, and the parties agree that all other provisions of the Development
Agreement shall remain are in full effect and validity. This First Amendment does not
extend the date for expiration of the Development Agreement (in Section 7 of the
Development Agreement).
Section 3. Covenants Running with the Land. The conditions and covenants set forth
in this First Amendment to the Development Agreement are incorporated herein, and
shall run with the land. The benefits and burdens of this First Amendment to the
Development Agreement shall bind and inure to the benefit of the parties. The Developer,
Landowner.and every purchaser, assignee or transferee of an interest in the Subject
Property, or any portion thereof, shall be obligated and bound by the terms and conditions
of this First Amendment to the Development Agreement and the Development
Agreement, and shall be the beneficiary thereof and a party thereto, but only with respect
to the Subject Property, or such portion thereof, sold, assigned or transferred to it. Any
such purchaser, assignee or transferee shall observe and fully perform all of the duties
and obligations of a Developer contained in this First Amendment and the Development
Agreement, as such duties and obligations pertain to the portion of the Subject Property
sold, assigned or transferred to it.
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 6 of 9
IN WITNESS WHEREOF, the parties hereto have caused this Development
Agreement to be executed as of the dates set forth below:
CITY OF PORT ORCHARD:
By',-,/�.e� Z142&�
Timothy C. Mat es
Its: Mayor
Date: 92 1 - 1-5
ATTEST:
By:
Brandy Rinearson, City Clerk
APPROXSV S TO FORM:
RIle
BY:C> •° ORP 'T��'%
CaVQI Morris,�nte•ricity A
v'
SOH I1N,G�����
THE SINCLAIR, LLC
BY: ��
Print Name: Gordon Rush
Its: Managing Me b7/.
Date:
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 7 of 9
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP
On this day personally appeared before me Timothy C. Matthes to me known to be the Mayor of
the City of Port Orchard, the municipal corporation described in and that executed the within
and foregoing instrument, and acknowledged that he signed said instrument to be the free and
voluntary act and deed of said municipal corporation, for the uses and purposes therein
mentioned, and on oath stated that he was authorized to execute said instrument on behalf of
said municipal corporation.
GIVEN under my hand and official seal this 0 day of _ 2015.
�O-TARY PUBLIC in and for the
State of Washington, residing at
Print NameaEn r nP 1-1Qya
�---X-
My appointment expires: 11�� • 1�-
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 8 of 9
STATE OF WASHINGTON )
ss.
COUNTY OF PIERCE )
On this day personally appeared before me Gordon Rush to me known to be the Managing
Member of The Sinclair, LLC , the corporation described in and that executed the within and
foregoing instrument, and acknowledged that he signed said instrument to be the free and
voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on
oath stated that he was authorized to execute said instrument on behalf of said corporation.
GIVEN under my hand and official seal this 3`d day of February , 2015.
r
40TARy : p
N-: 0*.410
PU B
FIRST AMENDMENT to the Development Agreement
Re: Southwest Sidney Plaza
Page 9 of 9
NOTARY aLIC in and fo e State
of Washington, residing at
0� a�w
Print me: hR'j✓)W 4
My appointment expires: -7" M -13