051-23 - Kitsap Bank - ContractName and Mailing Address
City of Port Orchard -Clerk's Office
216 Prospect Street
Port Orchard, WA 98366
CITY OF PORT ORCHARD 202306220068
Agreement Rec Fee: $ 225 50
06/22/2023 10:40 AM Page: 1 or 23
Paul Andrews, Kitsap Co Auditor
The Recorder is required to use only the information
you provide on this cover sheet to index the document.
Type or print legibly.
Document Title(s). Development Agreement by and Between the City of Port
Orchard and Kitsap Bank
Auditor's File Number of Document (s) Referenced:
Grantor(s) person(s) that conveys, sells or grants interest in property:
Kitsap Bank
Grantee(s) person that buys, receives or to whom conveyance of property is made:
City of Port Orchard
Abbreviated Legal Description:
• Quarter, Quarter, Section, Township, Range (and Government lot # if applicable); OR
• Plat/Condo Name, lot or unit number, building or block number; OR
• Short Plat, Large Lot number, lot number and auditor file number
S.M. Stevens' Town Plat of Sidney, Lots 1, 2, and 3, Block 12
S.M. Stevens' Town Plat of Sidney, Lots 1 and 2, Block 9
Assessor's 14 digit Tax Parcel Number; 4650-012-003-0007
4650-012-001-00097 4650-009-001-0005
04/25/14
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PORT ORCHARD AND KITSAP BANK,
FOR THE KITSAP BANK HEADQUARTERS DEVELOPMENT
THIS DEVELOPMENT AGREEMENT is made and entered into this 19th day of June
2023, by and between the City of Port Orchard, a noncharter, optional code Washington municipal
corporation, hereinafter the "City," and Kitsap Bank, a bank corporation organized under the laws
of the State of Washington, hereinafter the "Developer" (individually, a "Party" 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 36.70B.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
36.70B.170(1)); and
WHEREAS, for the purposes of this development agreement, "development standards"
includes, but is not limited to, all of the standards listed in RCW 36.70B.170(3); 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") 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 Developer applied for a Development Agreement on May 19, 2023 under
Chapter 20.26 POMC 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 Developer (hereinafter the "Development Agreement"), relates to the development known as
the Kitsap Bank Headquarters Building, which is located at: 625 Bay Street and 639 Bay Steet
(Kitsap County Tax Parcels #4650-012-001-0009 and_#4650-012-003-0007) (hereinafter the
"Subject Property"); and
WHEREAS, the Developer also owns property at 620 Bay Street, Port Orchard, WA
(Kitsap County Tax Parcel #4650-009-001-0005) which is used by the Developer for parking
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1MANAGE\366922\0048\ 10681081.v 1-5/24/23
(hereinafter "Parking Property"); and
WHEREAS, the Developer's current headquarters is located at 619 Bay Street in Port
Orchard on the property the City intends to be part of the City's Downtown Waterfront and it is in
both parties' interest for the Developer to vacate its current headquarters as soon as practicable;
and
WHEREAS, the Developer's project will help to activate the City's Downtown Waterfront
and will bring many jobs to the area thus will create economic development in the City; and
WHEREAS, it is in the City's and the public's interest to facilitate the expedited
development of the Developer's project in order to make way for the City's Community Event's
Center which will be located on the property that the Developer currently is occupying; and
WHEREAS, in order to facilitate the project having superior design principles, some
flexibility on applicable code provisions is appropriate and is off set by the public benefit of having
a building with superior design; and
WHEREAS, the City is undertaking a significant improvement project in the area called
the "Bay Street Project" which will include roadway, utilities, and waterfront amenities, such
project to be undertaken in phases as funding allows; and
WHEREAS, the Bay Street Project will increase the elevation of the City Rights -of -Way
adjacent to the Developer's project and the Developer's project will be built to the grade of the
Bay Street Project, not the existing grade; and
WHEREAS, the components of the Bay Street Project surround the Developer's property
and thus the City's Bay Street Project and the Developer's project will need to coordinate
development; and
WHEREAS, the Developer demolished one building at 639 Bay Street and plans to
demolish another at 625 Bay Street to facilitate the Developer's Project and seeks credit for the
previously existing traffic, water, and sewer trips and connections existing on the site previously;
and
WHEREAS, under POMC 20.26.020, the City Council has the authority to modify
development standards as they deem appropriate; and
WHEREAS, in consideration of the benefits conferred by this new Agreement, which
reflect the current plans of both the City and the Owner, the Parties deem it in their best interests
to enter into this Agreement; and
WHEREAS, the City Council held a public hearing on June 13, 2023 regarding this
Agreement; and
WHEREAS, after a public hearing, by Ordinance No. 014-23, the City Council authorized
the Mayor to sign this Agreement with the Owner.
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AGREEMENT
Section 1. The Project. The Project is the development and use of the Property, consisting
of 0.49 acres in the City of Port Orchard. The Project consists of a bank headquarters building
within the development of a three-story office building located between Orchard Ave and Fredrick
Ave on the north side of Bay Street. The building may include the following: ground floor retail
bank, retail lease space, building amenity spaces, guest parking, and upper -level office space
("Project").
Section 2. Developer's Property. The Project site is legally described in Exhibit "A"
and is attached hereto and incorporated herein by this reference ("Subject Property" or
"Property").
The Developer also owns property which is used by the Developer for parking. Such
property is located at 620 Bay Street, Port Orchard, WA (Kitsap County Tax Parcel #4650-009-
001-0005) and is legally described as Exhibit `B" and is attached hereto and incorporated herein
by this reference ( "Parking Property").
Section 3. Definitions. As used in this Development 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 Development
Agreement, as required by RCW 36.70B.200 and Chapter 20.26 POMC.
b) "Certificate of occupancy" means either a certificate issued after inspections by the
City authorizing a person(s) in possession of property to dwell or otherwise use a specified building
or dwelling unit, or the final inspection if a formal certificate is not issued.
c) "Council" means the duly elected legislative body governing the City ofPort Orchard.
d) "Design Guidelines" means the design requirements contained in the Port Orchard
Municipal Code.
e) "Director" means the City's Community Development Director or Director of
Planning and Building.
f) "Effective Date" means the effective date of the Adopting Ordinance.
g) "Existing Land Use Regulations" means the ordinances adopted by the City Council
of Port Orchard in effect on the Effective Date, including the adopting ordinances that govern the
permitted uses of land, the density and intensity of use, and the design, improvement, construction
standards and specifications applicable to the development of the Subject Property, including, but
not limited to the Comprehensive Plan, the City's Official Zoning Map and development standards,
the Design Manual, the Public Works Standards, SEPA, Concurrency Ordinance, and all other
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ordinances, codes, rules and regulations of the City establishing subdivision standards, park
regulations, building design guidelines. Existing Land Use Regulation does not include non -land
use regulations, which includes taxes, impact fees, utility connection fees, and storm water control
regulations.
h) "Project" means the anticipated development of the Subject Property, as specified in
Section 1 and as provided for in all associated permits/approvals, and all incorporated exhibits.
Section 4. Exhibits. Exhibits to this Agreement are as follows:
a) Exhibit A
— Legal description of the Subject Property.
b) Exhibit B
— Legal description of the Parking Property.
c) Exhibit C
— Site Plan showing public improvements on Bay Street and Fredrick
Avenue as
well as showing the City's Bay Street Project Phases.
d) Exhibit D
— Schematic Design Plan set for Kitsap Bank.
e) Exhibit E
— Bank Preliminary Civil Engineering Plans.
f) Exhibit F —
Engineering Study for Bay Street Improvements.
These exhibits are each attached to this Agreement and incorporated herein by this reference as if
set forth in full.
Section 5. Parties to Development Agreement. The Parties to this Agreement are:
a) The "City" is the City of Port Orchard, 216 Prospect Street, Port Orchard, WA
98366.
b) The "Developer" or "Property Owner" is a private enterprise which owns the Subject
Property in fee, and whose principal office is located at 619 Bay Street, Port Orchard, WA 98366-
5397.
Section 6. Project is a Private Undertaking. It is agreed among the parties that the Project
is a private development and that the City has no interest therein except as authorized in the
exercise of its governmental functions.
Section 7. Term of Agreement. This Agreement shall commence upon the effective date
of the Adopting Ordinance approving this Agreement, and shall continue in force for a period of
ten (10) 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,
subject however, to post -termination obligations of the Developer.
Section 8. Vested Rights of Developer. During the term of this Agreement, unless sooner
terminated in accordance with the terms hereof, in developing the Subject Property consistent with
the Project described herein, Developer is assured, and the City agrees, that the development rights,
obligations, terms and conditions specified in this Agreement, are fully vested in the Developer
and may not be changed or modified by the City, except as may be expressly permitted by, and in
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accordance with, the terms and conditions of this Agreement, including the Exhibits hereto, or as
expressly consented thereto by the Developer. Provided, however, that, consistent with state law,
this Agreement does not vest the Developer to standards which are not considered "land use control
ordinances."
Section 9. Permitted Uses and Development Standards. The permitted uses, the density
and intensity of use, the maximum height and size of proposed buildings, provisions for reservation
and dedication of land or payment of fees in lieu of dedication for public purposes, the
construction, installation and extension of public improvements, development guidelines and
standards for development of the Subject Property shall be those set forth in this Agreement, the
permits and approvals identified herein, and all exhibits incorporated herein.
Section 10. Minor Modifications. Minor modifications from the approved permits or the
exhibits attached hereto may be approved in accordance with the provisions of the City's code,
and shall not require an amendment to this Agreement, provided however, that amendments to
related plats shall be processed under Chapter 20.88 POMC.
Section 11. Further Discretionary Actions. Developer acknowledges that the Existing
Land Use Regulations contemplate the exercise of further discretionary powers by the City. These
powers include, but are not limited to, review of additional permit applications under SEPA.
Nothing in this Agreement shall be construed to limit the authority or the obligation of the City to
hold legally required public hearings, or to limit the discretion of the City and any of its officers
or officials in complying with or applying Existing Land Use Regulations.
Section 12. Required Public Improvements, Payment in Lieu of Fredrick Avenue
Improvements.
A. Developer acknowledges and agrees that as a condition of permit approval as required
by Chapters 20.180 and 20.202 POMC, Developer is required to install public improvements on
both Bay Street and Fredrick Avenue. These public improvements include:
For Say Street: Concrete sidewalks with a width of 12 feet from back of curb,
including tree planting areas. (See Exhibit "C" improvement for details.)
2. For Fredrick Avenue: Concrete sidewalks, curbs, lighting, street trees and all of
the street improvements as shown on Exhibit "C", including pavement lanes.
A site plan showing the improvements on Bay Street and Fredrick Avenue is attached hereto as
Exhibit "C" and incorporated herein by this reference as if set forth in full.
B. The Developer will install the sidewalks on Bay Street and the City will install curbs,
lighting, and street trees as part of the City's Bay Street Project.
C. In order to better integrate the projects in both timing and scope, the Developer has
requested that the City to install the Fredrick Avenue improvements (frontage improvements plus
street improvements as shown on Exhibit "C") on its behalf as part of the City's Bay Street
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Project. This will ensure that the public is only inconvenienced once, as the projects will be done
together. This will also ensure better matching of materials and connections. Therefore, in lieu of
the Developer constructing the public improvements on Fredrick Avenue, Developer will transfer
the necessary funds to the City in the amount of $51,160.00 ("Funds"). The Developer shall
transfer these funds to the City no later than the date of building permit issuance and the building
permit shall not issue until such payment is made.
D. The City agrees that this payment in lieu of construction of the public improvements
for Fredrick Avenue will satisfy the public improvement conditions for Fredrick Avenue to be
required under the development permits. Developer authorizes and directs the City to utilize the
Funds towards planning, design, permitting and/or construction of the Fredrick Avenue Public
Improvements listed in this Section, at the City's sole direction regarding timing, as referenced
above.
E. The City agrees to accept the Funds as financial security in lieu of construction of the
public improvements for Fredrick Avenue listed above. Upon receipt of the Funds, the requirement
for building the Fredrick Avenue public improvements is deemed fulfilled. Developer shall remain
obligated to perform and comply with any and all other obligations and conditions required by the
City for the Project and this Agreement shall not relieve Developer of those obligations and/or
conditions, except as provided herein.
F. Developer acknowledges and accepts that the City may utilize the Funds for the
purposes described herein at any time after the Funds are deposited with the City, at the City's sole
discretion, and Developer affirmatively disclaims any interest in the Funds.
G. To the extent the City determines that planning, design, permitting and/or construction
of the Fredrick Avenue public improvements listed herein requires additional cooperation from
Developer, including but not limited to granting the City with a temporary construction easement
at no cost, Developer shall reasonably provide the City with the cooperation sought, provided the
City is not entitled to further payment for the Fredrick Avenue public improvements beyond what
is required in this Agreement.
H. The Bay Street concrete sidewalks shall be completed by the Developer no later than
twelve (12) months following the City's completion of the Bay Street Improvement project TIP
1.16 as funded through grant agreements (1) State Route 166 / Bay Street Reconstruction DEMP
ID #: WA340 and CDFA #: 20.205 Project (design) and (2) SR 166 / Bay Street Improvements —
Preservation FHWA PSRC Project (construction) or prior to the issuance of a final certificate of
occupancy to the Developer's Project, whichever is later. If the Bay Street Improvement Project is
delayed, the Developer may apply to the City to install a temporary solution. It is the intent of this
section that the temporary nature of the Bay Street concrete sidewalks prior to the completion of
the Bay Street Improvement project not delay the issuance of a temporary certificate of occupancy
issued to the Developer.
1. The City will provide the Developer with preliminary plans for the Bay Street
Improvement project before they are finalized and sent out to bid. The Developer will have an
opportunity to provide the City with comments on the plans. The City will use its best efforts, at
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no cost to the Developer, to mitigate temporary elevation differences between the Developer's
project and the City's adjacent rights -of -way to minimize impacts to Developer's business and
ensure the Developer's project is accessible to foot and vehicular traffic after the Bay Street Project
is complete. If a temporary access to Developer's Property is needed prior to or during the City's
construction of the Bay Street Improvement Project, then the Developer shall be responsible for
providing that temporary improvement for access to its Property.
J. As part of the Bay Street Improvement project the City will provide utility stub -outs
to the Developer's property line at required locations as determined by Kitsap Bank as shown
generally in Exhibit C.
Section 13. Existing Fees and Charges; Credits for Prior Development.
A. Impact fees, permit fees, capital facilities charges, and other similar fees which are
adopted by the City as of the Effective Date of this Agreement may be increased by the City from
time to time, and applicable to permits and approvals for the Subject Property, as long as such fees
and charges apply to similar applications and projects in the City. Provided, however, that the
Parties agree that Developer shall be entitled to Water CFC, Sewer GFF, and Sewer Wastewater
Treatment Facility fee credits for Tax Parcels 4650-012-003-0007 and 4650-012-001-0009. Such credits
shall be based on the number of Equivalent Residential Units ("ERUs") for water and sewer, and
Peak P.M. Trips for transportation impact fees, previously existing on the property that were
connected to the City's systems. The prior development consisted of a demolished building
containing 4,200 square feet of retail, 2,400 square feet of tavern/restaurant, and seven apartment
units as well as the existing 437 square foot Kitsap bank drive-thru.
B. All impact fees shall be paid as set forth in the approved permit or approval, or as
addressed in chapter 20.182 of the Port Orchard Municipal Code. Nothing in this Agreement
restricts or prohibits the City from raising its fees and the Developer agrees to pay the impacts fees
that are in effect at the time when payment is due. Provided, however, that nothing in this
Agreement will prohibit the Developer obtaining any credit for previously paid impact fees on the
Property.
Section 14. Parking.
The Developer's existing off -site parking located on the Parking Property is adequate to
meet the requirements for on -site parking that would otherwise be applicable to this Development.
Nothing in this Development Agreement shall preclude the future redevelopment of 620 Bay
Street, provided however that the parking spaces currently existing thereon and which are required
to support the Project shall be replaced in the new structure or at another location.
This provision will survive the expiration of this Agreement.
Section 1.5. Design Flexibility; Departures Granted.
A. Elevator or Stairway Roof and Mechanical Screening Projection Setback. Currently
POMC 20.38.640 allows a stairwell and mechanical screening to project up to ten feet above
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iMANAGE\366922\0048\10681081.v1-5/24/23 7
maximum height if the stairwell is setback ten feet from the exterior wall of the building. The City
will allow this stairwell and mechanical screening to project up to 10 feet above the maximum
height of the building and will not be subject to the required ten foot setback provided that the
projection is entirely outside of the designated shoreline.
B. Building Placement; Entrance Location. Currently POMC 20.127.120, 20.127.150, and
20.127.170 require certain building placement and entrance location. POMC 20.127.150(3) allows
departures from this requirement. Minor building setback increases will be allowed to
accommodate grade changes. In response to the City sea level rise study, the primary building
entry is approximately 18 — 36 inches above the future Bay Street and Fredrick Avenue sidewalk
grade. Under the Bay Street Project, the frontage along Bay Street will be increased to provide a
landscape planter to soften the exposed low concrete wall. The southwest (Fredrick Avenue)
corner of the building is set back to provide an elevated building entry plaza to the proposed retail
entry.
I. Entrance Location — the City will allow for primary building entrance to be located
on future Orchard Plaza with the entry near the corner of Orchard Street and Bay
Street. The proposed site and building grades constraints in the POMC do not allow
for the primary building entry to be located on Bay Street. The proposed primary
entry location at the Orchard Plaza and Bay Street corner activates the future
Orchard Plaza entry and responds to the entry of the proposed Community Event
Center and aligns well with the City's planned Hill Climb midblock crossing. A
retail entry will be located such that it faces Bay Street near the intersection of
Fredrick Avenue. This proposed flexibility will better work with the City's planned
Downtown Waterfront redevelopment and helps to activate pedestrian areas.
C. Farade Transparency on Fredrick Avenue Side. Currently POMC 20.127.120, 20.127.150,
20.127.170 and 20.127.170(2) require forty percent transparency between 30 inches and 10 feet
height for nonresidential uses in the ground floor within 10 feet of the sidewalk. POMC
20.127.150(3) allows departures from this requirement. The City will allow a reduction in facade
transparency at Frederick Avenue (east elevation) and al low for the bottom of transparency to be
located above 30 inches. Due to grading constraints a portion of the windows will be higher than
30 inches where the floor level is more than 30 inches above adjacent grades. This deviation will
allow for the shall parking garage that is proposed for the northeast site corner and to prioritize
transparency and activation on Bay Street, Orchard Plaza, and the Waterfront Park. The retail
facade along Fredrick Avenue will be transparent from the corner of Bay Street to the start of the
stair and the garage. Where building service needs allow, the garage facade will include
architectural metal screening facade treatments that simulate windows or glazing per 20.127.140.
D. Weather Protection. Currently POMC 20.127.120 and 20.127.150 require certain weather
protection. Due to the site grading constraints and multiple building frontages, the development
will be better served by installing the weather protection adjacent to the Orchard Plaza to connect
Bay Street with the primary building entry and the waterfront trail and such weather protection
will provide an equivalent weather protection benefit to the public. The building will include a 20
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foot overhang along the Orchard Plaza frontage which is reminiscent of the current downtown
marquee. In addition, a three foot deep overhang will also be provided at the retail entry located
on the raised plaza at the corner of Bay Street and Fredrick Avenue. These departures are allowed
under POMC 20.127.420(2). In addition, other articulation features may be used, provided they
meet the purpose of the standards and the design criteria set forth in POMC 20.127.420(4).
E. Building Massing and Articulation. Currently POMC 20.127.430 requires both provision
of a minimum of three articulation features every forty feet to create a pattern of small storefronts
and requires the provision of vertical building modulation at least twenty feet deep and thirty feet
wide. The Developer will provide an alternative vertical building modulation design that meets the
purpose of the code as follows:
1. Due to the site grading constraints and building use the street frontage does not
include individual storefronts as prescribed in the code. The proposed design
incorporates the following proposed articulation elements to break down the facade
pattern: vertical column elements approximately every twenty to twenty-four feet,
low stormwater plantings adjacent to the foundation wall, changing upper -level
window patterns, vertical window fins, and a second floor building overhang. The
longest continuous straight building facade along Bay Street is approximately
eighty five (85) feet. This departure will provide appropriate articulation features
to break down the building facade where storefronts do not exist along Bay Street.
2. At approximately one hundred twelve (112) feet long, the Fredrick Avenue building
facade is only slightly longer than the one hundred (100) foot distance requiring
articulation. The vertical stair tower measures approximately twenty-two feet wide
with an approximate four foot depth is provided to break up the facade. The full
height vertical stair element divides the parking garage from the retail cafe and
allows the facade to appear as two distinct buildings.
F. Building Massing and Articulation. Currently POMC 20.127.434 requires provision of a
minimum of one detail element from each of the three detail categories for each forty feet
articulation to encourage the incorporation of design details and small-scale elements into building
facades that are attractive at a pedestrian scale. The Developer will provide an alternative building
detail that meets the purpose of the code as follows:
Due to the site grading constraints and building use the street frontage does not
include individual storefronts articulation as prescribed in the code. The proposed
design incorporates the following proposed detail elements: approximately 14' tall
windows, vertical column elements every twenty to twenty-four feet, low
stormwater plantings adjacent to the foundation wall, changing upper -level window
patterns, vertical window fins, and a second -floor building overhang.
G. Landscape Site Design Standards. Currently POW 20.128.070 requires a
minimum three foot wide foundation planting with three -gallon shrubs. This departure will allow
for two foot wide linear stormwater planter adjacent to the building facade along Bay Street and
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Fredrick Avenue. The purpose for the departure is to create consistency with the Downtown Water
Front redevelopment with the Developer's building being located to be as close to the sidewalk as
possible while also allowing foundation landscaping to soften the building edge. Street facing
plantings will be located in planters that are consistent with the urban downtown context.
H. Except as provided in Section 14 and Section 15 of this Agreement, the
Development shall otherwise comply with the City code in effect at the time of application of the
applicable building permit(s).
Section 1.6. Waiver of Permitting Deadlines.
The Bank will waive the 120 day permit processing deadline contained in POMC 20.24.1 10.3.
Section 17. Concurrency.
This City has granted concurrency for water, sewer, transportation for the Project as described
in Section 1 above. Such concurrency shall be valid for the duration of this Agreement.
Section 18. Cooperation in Locating Developer's Generator.
The City will support Developer's efforts to locate the Developer's generator on the City's
DNR lease property which is located adjacent to the Subject Property. Developer understands and
agrees that such permission is a DNR decision and may require rental payments from the
Developer to the City or DNR. If DNR does not permit the Developer's generator to be placed in
such location, then the City will assist the Developer to identify another nearby off -site location
suitable to Developer that is controlled by the City that would be a leased pad site for the
Developer's generator. In such case, the Developer agrees that it will pay the City fair market rent
and that such location will require a subsequent long-term lease agreement between the Parties for
such use with options to extend sufficient to meet the needs of the Developer. Alternatively, the
Developer may choose to install the generator on the Developer's property. If this option is selected
by the Developer, the City must allow access to the generator from the property to the north, Tax
Parcel 262401-1-007-2008, and provide for adequate clearance from the generator on the property
to the north.
Section 19. Default.
A. Subject to extensions of time by mutual consent in writing, failure or delay by either
party or Landowner not released from this Agreement, 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
or Landowner 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 or Landowner 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
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cured or is not being diligently cured in the manner set forth in the notice, the other party or
Landowner 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 Port Orchard Municipal Code for violations of this
Development Agreement and the Code.
Section 20. Termination. This Agreement shall expire and/or terminate as provided
below:
A. This Agreement shall expire and be of no further force and effect if the development
contemplated in this Agreement and all of the permits and/or approvals issued by the City for such
development are not substantially underway prior to expiration of such permits and/or approvals.
Nothing in this Agreement shall extend the expiration date of any permit or approval issued by the
City for any development.
B. This Agreement shall expire and be of no further force and effect if the Developer
does not construct the Project as contemplated by the permits and approvals identified in this
Agreement, and submits applications for development of the Property that are inconsistent with
such permits and approvals.
C. This Agreement shall terminate upon the expiration of the term identified in Section
7, which expiration date is at 11:59 p.m. on June 18, 2033 or when the Subject Property has been
fully developed, which ever first occurs, and all of the Developer's obligations in connection
therewith are satisfied as determined by the City. Upon termination of this Agreement, the City
shall record a notice of such termination in a form satisfactory to the City Attorney that the
Agreement has been terminated. This Agreement shall automatically terminate and be of no further
force and effect as to any single-family residence, any other residential dwelling unit or any non-
residential building and the lot or parcel upon which such residence or building is located, when it
has been approved by the City for occupancy.
D. Termination and Modification. Upon termination, any further development of the
property shall conform to the development regulations applicable to the property at the time of
permit application. The Developer understands that under POMC 20.25.020(7), the City is
prohibited from modifying this development agreement by extending the termination date. The
Developer further understands that any request for a modification shall be consistent with the city's
development regulations applicable to the property at the time of the request, not the original
execution date of this Development Agreement.
Section 21. Effect upon Termination on Developer Obligations. Termination of this
Agreement as to the Developer of the Subject Property or any portion thereof shall not affect any
of the Developer's obligations to comply with the City Comprehensive Plan and the terms and
conditions or any applicable zoning code(s) or subdivision map or other land use entitlements
approved with respect to the Subject Property, any other conditions of any other development
specified in the Agreement to continue after the termination of this Agreement or obligations to
pay assessments, liens, fees or taxes.
Development Agreement — Kitsap Bank
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Section 22. Effects upon Termination on City. Upon any termination of this Agreement
as to the Developer of the Subject Property, or any portion thereof, the entitlements, conditions of
development, limitations on fees and all other terms and conditions of this Agreement shall no
longer be vested hereby with respect to the property affected by such termination (provided that
vesting of such entitlements, conditions or fees may then be established for such property pursuant
to the then existing planning and zoning laws).
Section 23. Assignment and Assumption. The Developer shall have the right to sell,
assign or transfer this Agreement with all their 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 Subject Property, at least 30 days in advance of such action.
Section 24. 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
Developer and every purchaser, assignee or transferee of an interest in the Subject Property or the
Parking 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 Subject Property or the Parking 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 Agreement, as such duties and
obligations pertain to the portion of the Subject Property and/orthe Parking Property sold, assigned
or transferred to it.
Section 25. Amendment to Agreement; Effect of Agreement on Future Actions.
Modifications to this Agreement shall be 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, 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
affecting the Subject Property during the next five years, as the City Council may deem necessary
to the extent required by a serious threat to public health and safety. Nothing in this Development
Agreement shall prevent the City Council from making any amendments of any type to the
Comprehensive Plan, Zoning Code, Official Zoning Map or development regulations relating to
the Subject Property five years from the anniversary date of the Effective Date of this Agreement.
Section 26. Releases. Developer, and any subsequent Landowner, 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.
Section 27. Notices. Notices, demands, correspondence to the City and Developer shall
be sufficiently given if dispatched by pre -paid first-class mail to the addresses of the parties as
designated in Section 5. Notice to the City shall be to the attention of both the City Administrator
and the City Attorney. Notices to subsequent Landowners shall be required to be given by the City
only for those Landowners who have given the City written notice of their address for such notice.
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The parties hereto may, from time to time, advise the other of new addresses for such notices,
demands or correspondence.
Section 28. Reimbursement for Agreement Expenses of the City. 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
fess and reasonable staff and consultant costs not otherwise included within application fees. This
development agreement shall not take effect until the fees provided for in this section, as well as
any processing fees owed to the City for the_project are paid to 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 29. Applicable Law and Attorneys' Fees. This Agreement shall be construed and
enforced in accordance with the laws of the State of Washington. If litigation is initiated to enforce
the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs from the non -prevailing party. Venue for any action shall lie in Kitsap
County Superior Court or the U.S. District Court for Western Washington.
Section 30. 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 31. 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 32. Developer's Compliance. The City's duties under the agreement are
expressly conditioned upon the Developer's or Property 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 Developer's/Property Owner's obligations as
identified in any approval or project permit for the property identified in this Agreement.
Section 33. 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 34. 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 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, and
damages awarded to the prevailing party or parties in such litigation. The Developer shall not settle
Development Agreement — Kitsap Bank
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any lawsuit without the consent of the City. The City shall act in good faith and shall not
unreasonably withhold consent to settle.
Section 35. 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 Development Agreement by any Party in default hereof.
Section 36. Recording. This Agreement shall be recorded against the Subject Property and
the Parking 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 37. Severability. If any phrase, provision or section of this Agreement is
determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision
of this Agreement is rendered invalid or unenforceable according to the terms of any statute of the
State of Washington which became effective after the effective date of the ordinance adopting this
Development Agreement, and either party in good faith determines that such provision or
provisions are material to its entering into this Agreement, that party may elect to terminate this
Agreement as to all of its obligations remaining unperformed.
IN WITNESS WHEREOF, the Parties hereto have caused this Development Agreement
to be executed as of the dates set forth below:
KITSAP BANK:
By
Steve Politakis
Its Chief Executive Officer
APPROVED AS TO FORM
David Horton
Attorney for Kitsap Bank
Development Agreement — Kitsap Bank
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CITY OF PORT ORCHARD
By
Robert utaansuu
Its Mayor
ATTEST:
randy Wallac . MC, City Clerk
APPROVED AS TO FORM
1-I
e inifer Robertson
ity Attorney's Office
NOTARY BLOCK FOR PORT ORCHARD
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that Robert 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: 2023.
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Development Agreement — Kitsap Bank
IMANAGE\366922\0048\1068108I ]-5/24/23 15
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NOTARY PUBLIC in and for the
State o�f'Was, fji�i� }� residing at:
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NOTARY BLOCK FOR KITSAP BANK
STATE OF WASHINGTON )
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that Steve Politakis is the person who
appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the Chief
Executive Officer of Kitsap Bank, a Washington bank corporation, to be the free and voluntary
act of such Party for the uses and purposes mentioned in the instrument.
Dated: :1 i=,LLne I L , 2023.
Notary Public
State of Washington
LEIGH HAGEN
COMM. EXP. JULY 09. 2026
COMM. NO.201500
Development Agreement — Kitsap Bank
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( rint or type n e)
NOTARY PUBLIC in and for the
State of Washington, residing at:_
ilia ommission expires: ]7L6
Exhibit A
Legal Description of New Bank Project Site
Tax Parcel ID - 4650-012-001-0009
625 BAY ST PORT ORCHARD WA 98366
LOTS 1 AND 2, BLOCK 12, S.M. STEVENS' TOWN PLAT OF SIDNEY, AS PER PLAT RECORDED IN VOLUME 1
OF PLATS, PAGE 1, RECORDS OF KITSAP COUNTY; TOGETHER WITH TIDELANDS FRONTING; ALSO
TOGETHER WITH VACATED ROAD.
Tax Parcel ID - 4650-012-003-0007
639 BAY ST PORT ORCHARD WA 98366
LOT 3, BLOCK 12, S.M. STEVENS TOWN PLAT OF SIDNEY, ACCORDING TO THE PLAT RECORDED IN
VOLUME 1 OF PLATS, PAGE 1, RECORDS OF KITSAP COUNTY, WASHINGTON AND LOT 3, BLOCK 12, MAP
OF THE SHORE AND TIDELANDS OF SIDNEY, AS ESTABLISHED MAY 3, 1892 AND FILED IN THE OFFICE OF
THE COMMISSIONER OF PUBLIC LANDS AT OLYMPIA, WASHINGTON.
LU23-Dev Agreement-02
Exhibit B
Legal Description of Kitsap Bank Parking Lot
Tax Parcel ID - 4650-012-001-0009
620 BAY ST PORT ORCHARD WA 98366
PARCEL I: LOTS 1 AND 2, BLOCK 9, S.M. STEVEN'S TOWN PLAT OF SIDNEY, ACCORDING TO PLAT
RECORDED IN VOLUME 1 OF PLATS, PAGE 1 OF KITSAP COUNTY, WASHINGTON. PARCEL II: LOTS 3 AND
4, BLOCK 9, S.M., STEVEN'S TOWN PLAT OF SIDNEY, ACCORDING TO PLAT RECORDED IN VOLUME 1 OF
PLATS, PAGE 1, RECORDS OF KITSAP COUNTY, WASHINGTON; EXCEPT THOSE PORTIONS OF SAID LOT 3
CONVEYED TO THE TOWN OF PORT ORCHARD FOR STATE ROAD NO. 14 BY DEEDS RECORDED IN
VOLUME 149 OF DEEDS, PAGES 505 AND 558, UNDER AUDITOR'S FILE NOS. 147447 AND 147666, WHICH
EXCEPTED PORTIONS ARE DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WEST LINE OF SAID
LOT 3 A DISTANCE OF 45.0 FEET SOUTH OF THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH
ALONG SAID WEST LINE 29.87 FEET, MORE OR LESS, TO THE SOUTHWEST CORNER OF SAID LOT; THENCE
EAST ALONG SAID SOUTH LINE 7.0 FEET; THENCE NORTH PARALLEL WITH SAID WEST LINE TO A POINT
EAST OF THE POINT OF BEGINNING; THENCE EAST PARALLEL WITH SAID SOUTH LINE 0.5 FEET; THENCE
NORTH PARALLEL WITH SAID WEST LINE 7.5 FEET; THENCE EAST PARALLEL WITH SAID SOUTH LINE 3.0
FEET; THENCE NORTHERLY ALONG THE ARC OF A CURVE, THE RADIUS OF WHICH BEARS EAST PARALLEL
WITH SAID SOUTH LINE 105.8 FEET TO A POINT ON THE NORTHWESTERLY LINE OF SAID LOT, 13.17 FEET
SOUTHWESTERLY FROM THE MOST NORTHERLY CORNER THEREOF; THENCE SOUTHWESTERLY ALONG
SAID NORTHWESTERLY LINE 29.0 FEET TO THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH
ALONG THE WEST LINE OF SAID LOT 45.0 FEET TO THE POINT OF BEGINNING OF SAID EXCEPTED
PORTIONS.
LU23-Dev Agreement-02
Exhibit C
Site Plan showing public improvements on Bay Street and Fredrick Avenue
and the City's Bay Street Project Phases
NOTE: This document, not being suitable for recording, is on file with the
City of Port Orchard under File No. LU23-Dev Agreement-02 Kitsap Bank
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Exhibit D
Schematic Design Plan set for Kitsap Bank
NOTE: This document, not being suitable for recording, is on file with the
City of Port Orchard under File No. LU23-Dev Agreement-02 Kitsap Bank
Development Agreement — Kitsap Bank
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Exhibit E
Bank Preliminary Civil Engineering Plans
NOTE: This document, not being suitable for recording, is on file with the
City of Port Orchard under File No. LU23-Dev Agreement-02 Kitsap Bank
Development Agreement — Kitsap Bank
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Exhibit F
Engineering Study for Bay Street Improvements
NOTE: This document, not being suitable for recording, is on file with the
City of Port Orchard under File No. LU23-Dev Agreement-02 Kitsap Bank
Development Agreement — Kitsap Bank
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