016-22 - Ordinance - Development Agreement with Sidney Road Townhomes, LLCDocuSign Envelope ID: 1CD83175-C302-4A98-A073-4C7922FFA57E
ORDINANCE NO.016-22
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
AUTHORIZING THE MAYOR TO EXECUTE A DEVELOPMENT AGREEMENT
WITH SIDNEY ROAD TOWNHOMES, L.L.C. FOR THE DEVELOPMENT OF
CERTAIN TRANSPORTATION IMPROVEMENTS; PROVIDING FOR
SEVERABILITY AND CORRECTIONS; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, pursuant to RCW 36.70B.170, the City Council has the authority to review and
enter into development agreements that govern the development and use of real property within
the City; and
WHEREAS, the City Council has adopted standards and procedures governing the City's
use of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code
(POMQ and
WHEREAS, Sidney Road Townhomes, L.L.C. ("Sidney Road") is developing a 6.92 acre
Property in the City with a multi -family development consisting of 114 multifamily units across
20 townhome-style building, a residential amenity building, parking for 306 vehicles, landscaping,
outdoor amenity areas, and associated site improvements (collectively, the "Development
Project"); and
WHEREAS, associated the Development Project, Sidney Road proposes to construct at its
expense, a portion of a City transportation improvement defined as 2026-2039 Tier 2
Transportation Improvement Project #2.05 "Sidney Road Widening" on Sidney Road SW as
defined herein as the "Transportation Improvement Project", which is eligible for a
transportation impact fee credit pursuant to RCW 82.02.060(4) and POMC 20.182.080; and
WHEREAS, the Transportation Improvement Project is necessary and is required to serve
the Development; and
WHEREAS, the Transportation Improvement Project also provides a benefit to the general
public; and
WHEREAS, the Development Agreement will govern the development of the
Transportation Improvement Project and the respective transportation impact credits that will
result from Sidney Road undertaking this Transportation Improvement Project; and
WHEREAS, the Development Agreement is attached to this Ordinance as "Exhibit A"; and
WHEREAS, on March 11, 2022, the City's SEPA official issued a determination of non -
significance for the proposed Amendment of the Development Agreement and there have been
no appeals; and
DocuSign Envelope ID: 1CD83175-C302-4A98-A073-4C7922FFA57E
Ordinance No. 016-22
Page 2 of 24
WHEREAS, on _May 10, 2022, the City Council held a public hearing on the proposed
Amendment of the Development Agreement, and comments were received from the project
applicant); and
WHEREAS, the City Council, after careful consideration of the Development Agreement
and all public comments and testimony, finds that the Development Agreement is consistent with
the City's Comprehensive Plan and development regulations, the Growth Management Act,
Chapter 36.70A RCW, and that the amendments herein are in the best interests of the residents
of the City; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS
FOLLOWS:
SECTION 1. Findings. The City Council adopts all of the "Whereas" sections of this
ordinance and all "Whereas" sections of the Development Agreement as findings in support of
this ordinance.
SECTION 2. Authorization. The City Council approves of and authorizes the Mayor to
execute an Amendment of the with Sidney Road Townhomes, L.L.C. as provided in "Exhibit A" of
this Ordinance.
SECTION 3. Severability. If any section, sentence, clause or phrase of this Ordinance
should be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity of constitutionality of any other
section, sentence, clause or phrase of this Ordinance.
SECTION 4. Corrections. Upon the approval of the city attorney, the city clerk and/or
code publisher is authorized to make any necessary technical corrections to this Ordinance,
including but not limited to the correction of scrivener's/clerical errors, references, Ordinance
numbering, section/subsection numbers, and any reference thereto.
SECTION 5. Effective Date. This Ordinance shall be published in the official newspaper
of the city and shall take full force and effect five (5) days after posting and publication as required
by law. A summary of this Ordinance may be published in lieu of publishing the entire Ordinance,
as authorized by state law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and attested
by the City Clerk in authentication of such passage this 10th day of May 2022.
DocuSign Envelope ID: 1CD83175-C302-4A98-A073-4C7922FFA57E
ATTEST:
DocuSigned by:
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Brandy Wallace, MMC, City Clerk
APPROVED AS TO FORM:
DocuSigned by:
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Charlotte A. Archer, City Attorney
PUBLISHED: May 13, 2022
EFFECTIVE DATE: May 18, 2022
Ordinance No. 016-22
Page 3 of 24
DocuSigned by:
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Robert Putaansuu, Mayor
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Shawn Cucciardi, Councilmember
EXHIBIT A: SIDNEY ROAD TOWNHOMES, L.L.C. DEVELOPMENT AGREEMENT FOR THE
DEVELOPMENT AND FUNDING OF CERTAIN TRANSPORTATION
IMPROVEMENTS
When Recorded Return to:
McCullough Hill Leary, P.S.
701 Fifth Avenue, Suite 6600
Seattle, WA 98104
Attn: Ian S. Morrison
MCCULLOUGH HILL LEARY PS 202205260036
Agreement Reo Fee: $ 226.50
05/26/2022 09:58 Aft Page: 1 of 24
Paul Andrews, Kitsap Co Auditor
Document Title:
Development Agreement
Grantor:
Sidney Road Townhomes L.L.C., a Washington limited
liability company
Grantee:
City of Port Orchard
Legal description
Portion of NE quarter, Section 10, Township 23 North,
(abbreviated):
Range 1 East, WM, Kitsap County, Washington.
See Exhibit A for complete legal description
Assessor's Tax Parcel
102301-1-007-2007; 102301-1-008-2006
Numbers:
Reference number(s) of
N/A
document(s)
modified, assigned or
released (if applicable):
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PORT ORCHARD AND SIDNEY ROAD
TOWNHOMES L.L.C. FOR THE DEVELOPMENT AND FUNDING OF CERTAIN
TRANSPORTATION IMPROVEMENTS
Contract No. 070-22
THIS DEVELOPMENT AGREEMENT is made and entered into this loth day of May
2022, by and between the City of Port Orchard, a non -charter, optional code Washington municipal
corporation, hereinafter the "City," and Sidney Road Townhomes L.L.C., a Washington limited
liability company, hereinafter the "Owner" (individually, a "Parry" and collectively, the "Parties").
The Parties hereby agree as follows:
RECITALS
WHEREAS, the Washington State Legislature has authorized the execution of a
development agreement between a local government and a person having ownership or control of
real property within its jurisdiction (RCW 36.7013.170(1)); and
WHEREAS, a development agreement must set forth the development standards and other
provisions that shall apply to, govern, and vest the development, use and mitigation of the
development of the real property for the duration specified in the agreement (RCW
36.7013.170(1)); and
WHEREAS, a development agreement must be consistent with the applicable development
regulations adopted by a local government planning under chapter 36.70A RCW (RCW
36.70B.170(1)); and
WHEREAS, Port Orchard adopted Chapter 20.26 of the Port Orchard Municipal Code
("POMC" or "Code") which establishes the standards and procedures for Development
Agreements in Port Orchard; and
WHEREAS, Chapter 20.26 POMC is consistent with State law; and
WHEREAS, the Owner has applied for a Development Agreement under Chapter 20.26
POMC on April 13, 2022 and such Agreement has been processed consistently with the POMC
and State law; and
WHEREAS, this Development Agreement by and between the City of Port Orchard and
the Owner (hereinafter the "Development Agreement" or "Agreement"), relates primarily to the
development of property owned by Owner at 4801 Glenwood Road SW (Kitsap County Tax Parcel
#102301-1-053-2000) (hereinafter, the "Property"); and
WHEREAS, the Owner proposes to develop the 6.92 acre Property with a multi -family
development consisting of 114 multifamily units across 20 townhome-style buildings, a residential
amenity building, parking for 306 vehicles, landscaping, outdoor amenity areas, and associated
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site improvements (collectively, the "Development Project" or City Permit No. PW PW21-079);
and
WHEREAS, the City is undertaking review of the Development Project pursuant to the
POMC and has undertaken State Environmental Policy Act ("SEPA") review for the Development
Proposal with the issuance of a Mitigated Determination of Non -significance issued on March 11,
2022 ("MDNS"). The MDNS for the Development Project was not timely appealed; and
WHEREAS, associated the Development Project, the Owner proposes to construct at its
expense, a portion of a City transportation improvement defined as 2026-2039 Tier 2
Transportation Improvement Project #2.05 "Sidney Road Widening" on Sidney Road SW as
defined herein as the "Transportation Improvement Project", which is eligible for a transportation
impact fee credit pursuant to RCW 82.02.060(4) and POMC 20.182.080; and
WHEREAS, the Transportation Improvement Project is necessary and is required to serve
the Development; and
WHEREAS, the Transportation Improvement Project also provides a benefit to the general
public; and
WHEREAS, this Agreement governs the development of the Transportation Improvement
Project and the respective transportation impact credits that will result from the Owner undertaking
this Transportation Improvement Project; and
WHEREAS, except with regard to this Transportation Improvement Project and the
respective applicable impact fee credits, this Agreement does not establish or modify the standards
or conditions for the underlying development which is being undertaken in accordance with
applicable code and regulations; and
WHEREAS, in consideration of the benefits conferred by this new Agreement, which
reflect the current plans of both the City and the Owner and include a transportation impact fee
credit calculation and method for determining any parks impact fee credits, the Parties deem it in
their best interests to enter into this Agreement; and
WHEREAS, the City Council held a public hearing on May 10, 2022 regarding this
Agreement; and
WHEREAS, after a public hearing, by Ordinance No. 016-22, the City Council authorized
the Mayor to sign this Agreement with the Owner.
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AGREEMENT
Section 1. The Property. The Property comprises 4801 Glenwood Road SW (Kitsap
County Tax Parcel #102301-1-053-2000). The 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
Property is shown Exhibit B on which is attached hereto and incorporated herein by this reference
as if set forth in full.
Section 2. Transportation Improvement Project. Pursuant to this Agreement, Owner
shall be responsible for the construction of the Transportation Improvement Project as defined
herein.
a) Transportation Improvement Project. Owner shall construct a portion the Sidney
Road SW Project 2026-2039 Tier 2 2.05 (Ordinance 067-21) (defined herein as the Transportation
Improvement Project) as shown in Exhibit C. The roadway portion constructed shall include one
half of the widened Sidney Avenue SW from Glenwood Road to just north of Ruby Creek,
including travel lane, bike lanes, curb, gutter, sidewalk, street lighting, landscaping strip, and
crosswalk including curb ramps. The Transportation Improvement Project shall serve the Property,
amongst other properties within the vicinity, and shall provide connectivity and capacity for the
City. The Transportation Improvement Project shall be eligible for transportation impact fee
credits as provided in Section 11 of this Agreement.
b) Transportation Impact Fee Credit Applicability. The Transportation Improvement
Project will serve the Property and the impact fee credits authorized by this Agreement are only
applicable to pending Building Permit applications 22-026 through 22-046 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) "Adopting Ordinance" means the Ordinance which approves this Agreement, as
required by RCW 36.7013.200 and Chapter 20.26 POMC.
b) "Commence construction" as to the Transportation Improvement Project means that
the City has issued all required permit(s) and the Owner has deployed construction equipment and
personnel to the site of the Transportation Improvement Project.
c) "Completion" as to the Transportation Improvement Project means compliance with
the tasks described in Section 10.
d) "Council" or "City Council" means the duly elected legislative body governing the
City of Port Orchard.
e) "Development Project" means the development of the Property with approximately
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114 units of housing, residential amenity building, parking for 306 vehicles, landscaping, and
associated site improvements as shown in Exhibit B and approved by the City under Permit PW21-
079 and associated with Building Permits No. 22-026 through 22-046.
f) "Director" means the City's Public Works Director.
g) "Effective Date" means the effective date of the Adopting Ordinance.
h) "Maximum credit" means the maximum amount of transportation impact fee credits
to be provided by the City to the Owner for the Transportation Improvement Project pursuant this
Agreement.
i) "Transportation Improvement Project" or "Project" means the Transportation
Improvement Project described above which serves both the Property and the greater community,
as specified in Section 2, as provided for in all associated permits/approvals, whether now in place
or to be issued in the future, and as described in all incorporated exhibits.
Section 4. Exhibits. Exhibits to this Agreement are as follows:
a) Exhibit A — Legal Description of the Property.
b) Exhibit B — Map of the Property and the Development Project and with permits
listed in Section 2 identified.
c) Exhibit C — Transportation Improvement Project, including components, as
defined in the Project Plan, Roadway Cross Section, and Project Boundary Map.
Section 5. Parties to Development 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 "Owner" is a private enterprise which owns the Property in fee, and whose
principal office is located at 1302 Puyallup Street, Suite A, Sumner, WA 98390.
Section 6. Improvement Project is a Private Undertaking. It is agreed among the Parties
that the Transportation Improvement Project consists of private improvements for which credits
are required pursuant to RCW 82.02.060(4) and that the City has no interest in the improvements
until such time as the Transportation Improvement Project is completed and dedicated to the City
as provided in this Agreement.
Section 7. Term of Agreement. This Agreement shall commence upon the Effective Date
and shall continue in force for a period of five (5) years unless extended or terminated as provided
herein; provided, however, the Fee Vesting Date (as defined herein) shall expire on February 28,
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2023. If Owner has not obtained the Building Permits by February 28, 2023, the Owner shall pay
the then applicable impact fees at the rate established as of the date of issuance of the Building
Permits. 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 specifically intended
to survive expiration or termination.
Section 8. Project Schedule. Subject to the City's issuance of all necessary permits and
approvals, the Owner will commence construction of the Transportation Improvement Project on
the following schedule:
a) The Transportation Improvement Project requires two permits: (a) Land Disturbing
Activity Permit ("LDAP"); and (b) Right of Way Permit ("ROW Permit") (collectively,
the "Transportation Improvement Permits"). Owner's construction of the Transportation
Improvement Project is associated with the issuance of certain building permits associated
with the Development Project, specifically City Permit Nos. 22-026 through 22-046
("Building Permits").
b) Owner has submitted the LDAP and anticipates submitting the ROW Permit shortly. The
LDAP application is currently under review at the City. The City shall review and make
final determinations on the Transportation Improvement Permits and the Building Permits
within one hundred and twenty (120) days of the determination of completeness for the
Transportation Improvement Permits and each individual Building Permit, provided
however, the City shall reserve the right to make findings that a specified amount of
additional time is needed to process of the permits as authorized by RCW 36.70B.080. Any
days that the City is waiting for the Owner to submit corrections to the application shall be
tolled. In the event that the City requires additional time beyond this window to review the
Transportation Improvement Permits and ROW Permit, or requests additional corrections
from Owner, the timeline for Owner's obligation to construct the Transportation
Improvement Project is tolled until the date that the City makes its final determination on
the Transportation Improvement Permits.
c) Upon issuance of the Transportation Improvement Permits, the Owner shall commence
construction of the Transportation Improvement Project within one hundred and twenty
(120) days and proceed in a timely and workmanlike fashion through completion, provided
however, the Owner shall be solely responsible for the means and methods for construction
sequencing and phasing.
d) Owner shall complete the Transportation Improvement Project no later than the date of the
issuance of a Certificate of Occupancy for the last residential structure contained within
the Development Project, or sixty (60) calendar days prior to the Termination of this
Agreement, whichever date occurs first.
Section 9. Transportation Improvement Project standards.
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a) General. Owner will design and construct the Transportation 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
construction begins; and the City will accept responsibility for the operation of the
Transportation Improvement Project once it is completed, the Transportation Improvement
Project has been accepted, and a two-year warranty and maintenance bond is in place. A
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 City releases the
performance bond (described in subsection b below); 4. The Owner has put a two-year
warranty and maintenance bond in place; 5. The Owner has completed all necessary
property dedications; 6. The City has accepted the dedications, such approval not to be
unreasonably withheld or conditioned; and 7. The Owner 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. The City will confirm completeness of the Transportation Improvement
Project by issuing a Final Notice of Completeness to the Owner.
b) Transportation Improvement Project. The Transportation Improvement Project will
include design, permitting, and construction, at Owner's sole expense of the specified
portion of 2026-2039 Tier 2 TIP Project 2.05 "Sidney Road SW Project" (Ordinance 067-
21). The Transportation Improvement Project shall meet the City standards for public rights
of ways and shall provide the amenities that are described in TIP Project 2.05 with such
conditions as the City deems applicable and appropriate in LDAP Permit No. PW21-079;
provided, however, the City shall not add conditions to the Transportation Improvement
Project that are inconsistent with Exhibit C.
The Transportation Improvement Project construction work shall be secured by a
Performance Bond at 150% of the estimated construction costs. The Performance Bond
shall be in place prior to Owner commencing work on the Transportation Project. Prior to
City acceptance, the construction of the Transportation Improvement Project shall be
inspected by the City, approval of which shall not be unreasonably withheld. In addition
to the requirements in Section 9(a) above, the City's final approval of the Transportation
Project shall be conditioned upon receipt from Owner 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 Transportation Improvement
Project, except for those maintenance obligations of Owner secured by the two-year
Maintenance Bond. Upon City's acceptance of the Transportation Improvement Project,
Owner shall not be responsible for any further costs, maintenance, or liability for the
Transportation Improvement Project. This provision survives the Termination of this
Agreement.
Section 10. Transportation Improvement Projects costs and credits.
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a) Transportation Improvement Project. The maximum amount of the Transportation
Impact Fee credit for the Transportation Improvement Project to be built by Owner
under this Agreement shall be limited to the total Transportation Impact Fees due on
the Project (currently calculated as $315,949.20), or the actual costs incurred by the
Owner, whichever is less ("Maximum Transportation Project Credit"). The credits
provided under Section 11 below are limited to this Maximum Transportation Project
Credit. Once the Maximum Transportation Project Credit has been achieved through
credits applied to Owner for the Development Project, Owner would be required to
comply with the impact fee provisions of the Code for any further development of the
Property that requires payment of transportation impact fees, including payment of any
transportation impact fees incurred over and above the Maximum Transportation
Project Credit.
Section 11. Transportation Impact Fee Credits. The City hereby grants the Owner a
credit against transportation impact fees for its costs to design and construct the Transportation
Improvement Project. The credits will be calculated and applied as follows:
a) The total estimated transportation impact fee required for the Development Project
is currently $315,949.20. Owner shall pay the transportation impact fees based on
the rate schedule as of March 2, 2022 ("Fee Vesting Date"), which shall expire as
defined in Section 7. As necessary, Owner shall dedicate any land necessary for
the Transportation Improvement Project, provided, however, Owner shall be able
to seek credits against any impact fees for such dedication as authorized by Code.
Owner shall complete such dedications prior to issuance of a Certificate of
Occupancy for the first building permit for the Development Project.
Prior to the issuance of the first building permit for the Development Project,
Owner shall provide a Performance Bond, in a form acceptable to the City, for
150% of the Engineer's Estimate for the Transportation Improvement Project, or
the then applicable Transportation Impact Fees due on the project (currently
$315,949.20), whichever amount is greater ("Transportation Performance Bond").
The City will defer the final calculation, assessment, and collection of the
transportation impact fees for the Development Project until the completion of the
Transportation Improvement Project. The Parties anticipate that the Maximum
Transportation Fee Credit will cover all or most of the transportation impact fee
required for the Development Project. The City shall issue any Certificate of
Occupancy requested by the Owner in due course as required by the Code and this
Agreement provided the Transportation Performance Bond remains in effect at the
time of a request for a Certificate of Occupancy. Upon completion of the
construction of the Transportation Improvement Project, Owner shall submit
certified Transportation Improvement Project costs to the City for review and
acceptance by the City Engineer as provided in the Code. Once these costs and
executed Bill of Sale are reviewed and accepted by the City Engineer, not to be
unreasonably withheld, conditioned, or delayed, the maximum credit due to Owner
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will be established and will equal the Maximum Transportation Project Credit as
so certified in accordance with this subsection and Section 10. In the event that the
Maximum Transportation Project Credit satisfies the transportation impact fees for
the Development Project, the City shall release the Transportation Performance
Bond, provided the two-year warranty bond is then in place. If any remaining
transportation impact fees are required after crediting the Maximum Transportation
Project Credit against the Development Project, the Owner shall pay those fees
prior to the issuance of any outstanding Certificate(s) of Occupancy. The City shall
use best available efforts to review and certify the transportation impact fees and
issue any corresponding Certificates of Occupancy within 14 days of receipt. In
the event Owner defaults on any requirement under this subsection, the City's
remedies include pulling the Transportation Performance Bond and holding any
outstanding Certificates of Occupancy until such time the Transportation Project is
completed, and any outstanding impact fees are paid in full or credited.
b) The City agrees that these credits are consistent with RCW 82.02.060(4) and that
they are consistent with POMC 20.182.080.
Section 12. Other Impact Fees. The Development Project is subject to the City's impact fee
requirements of POMC Ch. 20.182. Owner shall pay the applicable impact fees for the
Development Project at the rates as of the Fee Vesting Date, which shall expire as defined in
Section 7. Provided however, under this Agreement the Owner has not vested to school impact
fees.
Section 13. 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 POMC for violations of this Agreement and the Code.
Section 14. Termination. This Agreement shall terminate five (5) years after Effective Date.
Upon termination of this Agreement, the City shall record a notice of such termination in a form
satisfactory to the Parties that the Agreement has been terminated.
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Section 15. Extension and Modification. Any request for extension or modification, if
allowed under the City's code, shall be subject to the provisions contained in POMC Chapter 20.26
POMC.
Section 16. Effect upon Termination on Owner. Termination of this Agreement as to the
Owner shall not affect any of the Owner's respective obligations to comply with the City
Comprehensive Plan and the terms and conditions or any applicable zoning code(s) or other land
use entitlements approved with respect to the Property, or obligations to pay assessments, liens,
fees, or taxes. Furthermore, if the Agreement expires without the Transportation Improvement
Project costs being fully recovered by impact fee credit or mitigation funds, the Owner will no
longer be eligible to receive such credits.
Section 17. Effects upon Termination on City. Upon any termination of this Agreement as
to the Property, or any portion thereof, the City will be under no obligation to provide any
additional credits or reimbursement to Owner even if the Transportation Improvement Project
costs have not been fully recovered at the time of expiration or termination.
Section 18. Assignment and Assumption. The Owner 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. Owner 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; provided; however, failure to strictly
comply with the 30 calendar day notice provision shall not be considered a breach of this
Agreement.
Section 19. Binding on Successors; Covenants Running with the Land. The conditions and
covenants set forth in this Agreement and incorporated herein by the Exhibits shall run with the
land and the benefits and burdens shall bind and inure to the benefit of the Parties. The Owner and
every purchaser, assignee or transferee of an interest in the Property, or any portion thereof, shall
be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary
thereof and a Party thereto, but only with respect to the 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 the Owner contained in this Agreement, as such duties
and obligations pertain to the portion of the Property sold, assigned, or transferred to it.
Section 20. 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, be consistent with
Chapter 20.26 POMC, and, where considered substantive as determined by the Director, follow
the same procedures set forth in Chapter 20.26 POMC. However, except as provided in Sections
11-12, nothing in this Agreement shall prevent the City Council from making any amendment to
its Comprehensive Plan, Zoning Code, Official Zoning Map or development regulations after the
Effective Date of this Agreement.
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Section 21. General release. Owner 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 Transportation Improvement Project.
Section 22. Notices. Notices, demands, correspondence to the City and/or Owner (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 34 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
Owner 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 23. Reimbursement for Agreement Expenses of the City. Owner agrees to
reimburse the City for actual expenses incurred over and above fees paid by Owner 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 Owner if the expenses to the City
are anticipated to exceed Twenty -Five Thousand Dollars and No Cents ($25,000.00) and the
parties shall meet and confer regarding the City's anticipated costs as provided in Section 24(a).
Upon payment of all expenses, the Owner 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 Owner.
Section 24. 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, Public Works 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 25. 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
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 10 of 16
Agreement.
Section 26. City's right to breach. The Parties agree that the City may, without incurring any
liability, engage in action that would otherwise be a breach if the City makes a determination on
the record that the action is necessary to avoid a serious threat to public health and safety, or if the
action is required by federal or state law.
Section 27. Owner's Compliance. The City's duties under the agreement are expressly
conditioned upon the Owner's substantial compliance with each and every term, condition,
provision, and/or covenant in this Agreement, including all applicable federal, state, and local laws
and regulations and the Owner's obligations as identified in any approval or project pern-lit for the
property identified in this Agreement.
Section 28. Limitation on City's Liability for Breach. Any breach of this Agreement by the
City shall give right only to damages under state contract law and shall not give rise to any liability
under Chapter 64.40 RCW, the Fifth and Fourteenth Amendments to the U.S. Constitution, or
similar state constitutional provisions.
Section 29. 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
provision herein, the City may elect to tender the defense of such lawsuit or individual claims in
the lawsuit to Owner. In such event, Owner 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 Owner 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 30. 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 31. Recording. This Agreement shall be recorded against the Property with the real
property records of the Kitsap County Auditor. During the term of the Agreement, it is binding
upon the owners of the property and any successors in interest to such property.
Section 32. 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.
Section 33. 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.
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 11 of 16
Section 34. 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 TOWNHOMES L.L.C.:
Attn: General Counsel
1302 Puyallup Street, Suite A
Sumner, WA 98390
McCullough Hill Leary, P.S.
Attn: Ian Morrison
701 51" Avenue, Suite 6600
Seattle, WA 98104
imorrisongmhseattle.com
CITY:
Mayor
City of Port Orchard
216 Prospect Street
Port Orchard WA 98366
rputaansuukcityofportorchard.us
Copies shall also be transmitted to the
City Clerk and City Attorney at the
above address.
Section 35. 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.
Section 36. 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 37. 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 38. 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 39. Entire Agreement. The written provisions and terms of this Agreement, together
with the Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 12 of 16
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 111h day of
May 2022.
SIDNEY ROAD TOWNHOMES L.L.C. CITY OF PORT ORCHARD
By:
Its: Manager
By: By:
7r
Rob Putaansuu
Its: Its: Mayor
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 13 of 16
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 I1" day of
May 2022.
SIDNEY ROAD TOWNHOMES L.L.C. CITY OF PORT ORCHARD
By: Investco L.L.C.
Its: Manager
By: / In- / `^ By
Jordan Schenk Rob Putaansuu
Its: Vice President and Portfolio Its: Mayor
Manager
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 13 of 16
APTIZOVED AS TO FORM:
/I
la4 M on
Attorney for Owner
APPROVED AS TO FORM:
Jen if r S. Ro ertson
Att ney for Port Orchard
ATTEST:
Brandy Wallace, MMC
Port Orchard City Clerk
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 14 of 16
NOTARY BLOCK FOR PORT ORCHARD
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Mr. Rob Putaansuu is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the Mayor of Port
Orchard to be the free and voluntary act of such Party for the uses and purposes mentioned in the
instrument.
Dated:_2022
�i sion F' % ''•�
;�\ �•o�t 1
15-2o
v p10TARy '^
N. �. !B l ti
'',, lF • e!�umbe� ' Cj ��
0��1NASH�? `�\\
(print or type name)
NOTARY PUBLIC in and for the
Skate of Washington, residing at:
My Commission expires:
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 15 of 16
NOTARY BLOCK FOR SIDNEY ROAD TOWNHOMES L.L.C.
STATE OF WASHINGTON )
COUNTY OF K I,n (Si) ss.
This document was acknowledged before me on May 19 , 2022 by Jordan Schenk, as
Vice President and Portfolio Manager of Investco L.L.C., a Washington limited liability
company, as Manager of Sidney Road Townhomes L.L.C., a Washington limited liability
company.
Signature of Notary
Notary Public - State of Washington.
Residing at tS , W
city State
Commission Expires: r I c10 2.3
Development Agreement for Funding Transportation Improvements
Sidney Road Townhomes L.L.C.
Page 16 of 16
EXHIBIT A
LEGAL DESCRIPTION
Parcel I:
The East 10 acres of the Northeast quarter of the Northeast quarter, Section 10, Township 23
North, Range 1 East, W.M., in Kitsap County, Washington;
Except the North 40 rods;
Except the South 2 acres;
Except any portion of said 10 acres lying West of the East 20 rods of said Northeast quarter of
the Northeast quarter;
Except Sidney Road;
And except that portion conveyed to Kitsap County by deed recorded under Auditor's File No.
9301200159;
Kitsap County Assessor Parcel # 102301-1-007-2007
Parcel II:
That portion of the Northeast quarter of the Northeast quarter, Section 10, Township 23 North,
Range 1 East, W.M., in Kitsap County, Washington, described as follows:
Beginning at the Northeast corner of said Section 10;
thence South 40 rods (660 feet);
thence West 20 rods (330 feet);
thence North 40 rods (660 feet);
thence East 20 rods (330 feet) to the place of beginning;
Except Glenwood Road;
And except that portion for Sidney Road SW;
And except that portion, if any, lying within the West Three -Quarters of the Northeast Quarter of
the Northeast Quarter of said Section 10.
Kitsap County Assessor Parcel # 102301-1-008-2006
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