039-23 - Blueberry Apartments QOZB, LLC - ContractName and Mailing Address
City of Port Orchard -Clerk's Office
216 Prospect Street
Port Orchard, WA 98366
PORT ORCHARD CITY OF 202307110061
Agreement Rec Fee: $ 221 50
07/11/2023 10:42 AP1 Page 1 of 19
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 between the City of Port
Orchard and Blueberry Apartments QOZB, LLC
Auditor's File Number of Document (s) Referenced:
Grantor(s) person(s) that conveys, sells or grants interest in property: Blueberry Apartments
QOZB, LLC
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
SHORT SUBDIVISION NO. 2586, Lots A and B, Auditor's File NO. 8103110065; and
THE SOUTHEAST QUARTER, SECTION 2, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M.
Assessor's 14 digit Tax Parcel Number
022301-4-043-2007, 022301-4-012-2004,
022301-4-026-2008
04/25/14
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PORT ORCHARD AND BLUEBERRY
APARTMENTS QOZB, LLC FOR THE DEVELOPMENT AND FUNDING OF
CERTAIN TRANSPORTATION IMPROVEMENTS
Contract No. 039-23 '
THIS DEVELOPMENT AGREEMENT is made and entered into this 2 _1 day of
—�-J rQ_ , 2023, by and between the City of Port Orchard, a non -charter, optional
yode Washington municipal corporation, hereinafter the "City," and Blueberry Apartments
QOZB, LLC, a Washington limited liability company, hereinafter the "Owner" (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, 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 March 27, 2023 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 4330 and 4336 Bethel Rd SE, Port Orchard,
Washington (Kitsap County Tax Parcels #022301-4-043-2007, 022301-4-012-2004, 022301-4-
026-2008) (hereinafter, the "Property"); and
WHEREAS, the Owner proposes to develop the Property with a multi -family
development consisting of 108 multifamily units within six buildings, parking for 183 vehicles,
1
landscaping, outdoor amenity areas, and associated site improvements (collectively, the
"Development Project" or City Permit No. PW22-005); and
WHEREAS, on August 2, 2022 the City issued a demolition permit (22-668) to the
Owner for two detached houses on the Property; and
WHEREAS, in the calculation of traffic impacts and upon demolition or termination of a
use, POMC 20.180.005(4) allows capacity evaluation credit for the net increase of impacts to
City road facilities; and
WHEREAS, the Development Project creates a net increase of impacts to City road
facilities from 106 multifamily units; 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 September 16, 2022 ("MDNS"). The MDNS for the Development Project was not
timely appealed; and
4
WHEREAS, associated the Development Project, the Owner proposes dedicate certain
property ("Transportation Improvement Project Property") to the City for the purpose of the
City's construction of a portion of a City transportation improvement defined as Project 2.04A
on the impact fee study as defined herein as the "Transportation Improvement Project" which
property dedication 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 Property dedication is necessary
for the City's development of the Transportation Improvement Project which will benefit the
Development Project and the general public; and
WHEREAS, this Agreement governs the dedication of the Transportation Improvement
Project Property to the City and the respective transportation impact fee credits that will result
from the Owner dedicating the Transportation Improvement Project Property; and
WHEREAS, POMC 20.32.100 requires a minimum ground floor elevation of two feet
for all "Apartment" building types and the Parties agree that, as proposed, the Development
Project provides an equal or better ground floor privacy for residents and aesthetic screening than
could be provided with strict adherence to the Code, therefore, the City has agreed that Owner
may depart from the requirements of POMC 20.32.100 in the following manner: no minimum
ground floor elevation shall be applied; and
WHEREAS, except with regard to this Transportation Improvement Project Property
dedication and the respective applicable transportation impact fee credits, and the departure from
POMC 20.32.100 as described herein, this Agreement does not establish or modify the standards
or conditions for the underlying Development Project 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, the Parties deem it in their best interests to enter into this Agreement; and
WHEREAS, the City Council held a public hearing on May 9, 2023 regarding this
Agreement; and
WHEREAS, after a public hearing, by Ordinance No. 008-23, the City Council
authorized the Mayor to sign this Agreement with the Owner.
It
AGREEMENT
Section 1. The Property. The Property comprises 4330 and 4336 Bethel Rd SE, Port
Orchard, Washington (Kitsap County Tax Parcels #022301-4-043-2007, 022301-4-012-2004, and
022301-4-026-2008). 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 Property. Pursuant to this
Agreement, Owner shall be responsible for the dedication of the Transportation Improvement
Project Property to the City as described herein.
a) Transportation Improvement Project Property. Owner shall dedicate certain property
necessary for the City to construct a portion the Bethel Phase 1 Project located at the intersection
of Blueberry Road and Bethel Avenue, Project 2.04A on the City impact fee study (defined
herein as the "Transportation Improvement Project Property") as shown in Exhibit C. The
exact dimensions and configuration of the Transportation Improvement Project Property will be
4etermined following completion of final design of the Transportation Improvement Project. The
roadway portion will be constructed by the City at a future date. The dedication of the
Transportation Improvement Project Property shall be eligible for transportation impact fee
credits as provided in Section 8 of this Agreement.
b) Transportation Impact Fee Credit Applicability. The transportation impact fee credits
authorized by this Agreement are only applicable to pending Building Permit application 22-671,
22-672, 22-673, 22-674, and 22-675 for the Property(ies) 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 36.70B.200 and Chapter 20.26 POMC.
b) "Council" or "City Council" means the duly elected legislative body governing the
City of Port Orchard.
c) "Development Project" means the development of the Property with approximately
108 units of housing within six buildings, parking for t 83 vehicles, landscaping, outdoor amenity
areas, and associated site improvements, as shown in Exhibit B and approved by the City under
Permit PW22-005 and associated with Building Permit No. 22-671, 22-672, 22-673, 22-674, and
22-675.
d) "Director" means the City's Public Works Director.
e) "Effective Date" means the effective date of the Adopting Ordinance.
f) "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 Property
dedication pursuant this Agreement.
g) "Transportation Improvement Project" means the Transportation Improvement
Project described above which serves both the Property and the greater community which will be
undertaken by the City at a later date.
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 Property showing the
approximate location of property to be dedicated by Owner. The final determination
on the exact property to be dedicated shall occur at a later date after final design of
the Transportation Project is complete.
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 7809 Pacific Avenue, Tacoma WA 98408.
Section 6. Term of Agreement; No Vesting to Fees. This Agreement shall commence
lipon the Effective Date and shall continue in force for a period of five (5) years unless extended
i
or terminated as provided herein. Provided, however, that the Owner shall complete the Property
Dedications as set forth in Section 7 below which shall be prior to expiration of this Agreement.
The requirement to dedicate the Transportation Improvement Project Property shall survive
expiration or termination of this Agreement. This Agreement does not vest the Owner to any
fees. Fees shall be charged in accordance with the fee schedule that is in effect at the time that
the building permits for the apartment complex are issued and all permit fees have been paid.
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 7. Property Dedication Schedule. The Owner will dedicate the Transportation
Improvement Project Property which shown on Exhibit C, as it may be modified follow final
design, to the City in a form acceptable to the City shall be completed within eighteen (18)
months of the effective date of this Agreement. The Owner agrees that the City may withhold
issuance of such Certificate of Occupancy (or any other Certificates of Occupancy for the
Development Project) until such time as the dedications have been completed. If this property
dedication is not exempt from real estate excise tax, then the City shall pay any real estate excise
tax so due on this transfer. This section shall survive termination of the Agreement.
Section 8. Impact Fee Credits for Transportation Improvement Project Property
dedication.
a) Transportation Impact Fee Credit. The maximum amount of the transportation impact
fee credit for the Transportation Improvement Project Property dedication to be made
by Owner under this Agreement shall be limited to the lessor of. the total
Transportation Impact Fees due on the Project (currently calculated as an estimated
$245,245.84), or the value of the Transportation Improvement Project Property
dedication as determined in Section 9, or the City's estimated cost for the portion of
Project 2.04A ($1,740,094) ("Maximum Transportation Impact Fee Credit"). The
credits provided under this Section are limited to this Maximum Transportation
Impact Fee Credit. Once the Maximum Transportation Impact Fee Credit has been
achieved through credits applied to Owner for the Development Project, Owner will
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 Impact Fee Credit.
i b) Credit Granted. The City hereby grants the Owner a credit against transportation
impact fees for fair market value of the Transportation Improvement Project Property
as set forth in this Agreement and as calculated under the provisions contained
Sections 8 and 9. The total estimated transportation impact fee required for the
Development Project is currently estimated as $245,245.84. The Owner shall pay the
transportation impact fees based on the rate schedule in effect at the time payment has
been made to the City for building permits 22-671, 22-672, 22-673, 22-674, and 22-
It
675. Such payment shall be made as set forth below in subsection "c" prior to
issuance of such permits by the City.
c) Transportation Impact Fees to be Deposited into Escrow. The Parties agree that the
estimated transportation impact fees due will likely substantially exceed the credit
granted by the City for the dedication of the Transportation Improvement Project
Property. Therefore, the Parties agree that Owner shall establish an escrow account at
a Washington escrow company of its choosing and will deposit therein the full
transportation impact fees due (no credit applied). The escrow agreement for such
deposit(s) shall be in a form acceptable to the City. Such deposit(s) shall be made and
evidence thereof presented to the City prior to issuance of any building permits for
the Property. To the extent additional permits are issued at different times, additional
deposits of the then -due transportation impact fees shall be made with evidence
thereof provided to the City prior to permit issuance. The escrow agreement for
holding the fees shall include the following provisions: (1) no funds shall be released
to any Party until (a) a fair market value for the Transportation improvement Project
Property has been established in accordance with Section 9 below; (b) the dedication
has been completed by the Owner and accepted by the City; and (c) the City has
certified the total Maximum Transportation Impact Fee Credit due to the Owner and
has provided such certification to the escrow company; (2) the escrow company will
release the certified credit amount to the Owner and release the remaining escrow
funds to the City; (3) any interest that has accrued on the escrow account shall be split
and distributed according to the proportion released to each Party; (4) if the Owner
fails to dedicate the Transportation Improvement Project Property to the City in
accordance with the terms of this Agreement, then the City may request and the
escrow company shall release all funds and interest thereon to the City within 15 days
of receipt of the City's request.
d) Owner shall dedicate the Transportation Improvement Project Property to the City
generally as shown on Exhibit C, but in the final configuration as determined
following the final design of the Transportation Improvement Project by the City.
Owner shall complete such dedications no later than eighteen (18) months after the
effective date of this Agreement or prior to the City's issuance of a Certificate of
Occupancy for the first building permit for the Development Project, whichever time
period is shorter.
c) In the event Owner defaults on any requirement under this Agreement, or defaults on
dedicating the Transportation Improvement Project Property, the City's remedies
include obtaining the release of transportation impact fee funds and interest thereon
from escrow and/or holding any outstanding Certificates of Occupancy until such
time the Transportation Improvement Project Property dedication is completed,
including the Parties' agreement on valuation, and any outstanding impact fees are
paid in full or credited.
d) The City agrees that these credits are consistent with RCW 82.02.060(4) and that they
are consistent with POMC 20.182.080.
4 Section 9. Valuation of Property Dedications. The Parties agree to value the
Transportation Improvement Project Property to be dedicated will be set as the fair market value
as described in this subsection. The Parties shall value the Transportation Improvement Project
Property as follows: The Owner shall hire a certified property appraiser, pay for the appraisal,
and provide a copy of that appraisal report to the City. The date for valuation purposes, including
but not limited to sales comparisons used for the valuation, shall be the effective date of this
Agreement. The City shall use its best efforts to review the appraisal report and provide a
response to Owner on the valuation within 30 days of receipt. If both the City and the Owner
agree that the appraisal is fair and reasonable, then the appraised value will be accepted as the
Property value for transportation impact fee credit purposes. If the City disagrees with the
appraisal, then the City may hire its own appraiser to perform a second appraisal at the Owner's
expense. The date for valuation purposes shall be the same as used in the Owner's appraisal. The
City shall use its best efforts to obtain an appraisal report within 60 days of notice to the Owner
of its disagreement with Owner's appraisal. If that second City -initiated appraisal is within
twenty (20) percent of the value established by the first Owner -initiated appraiser, then the
Parties will take the mid -point between the two appraisals and use that as the fair market value. If
the appraisals are more than 20 percent apart, the Parties have the option of either agreeing to a
value or establishing another method to set the fair market value of the Transportation
Improvement Project Property. If the Parties are unable to agree, then they shall submit the
Valuation decision to binding arbitration with a mutually agreeable arbitrator, or if they cannot
agree on an arbitrator then the Parties will submit the valuation dispute to Judicial Dispute
Resolution, LLC. Each Party shall pay one half of the costs of arbitration.
Section 10. 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 in effect at the time each fully complete building permit
application is submitted.
Section 11. Ground Floor Elevation Modification. The Development Project is not subject
to the minimum two foot (2') ground floor elevation requirement that is set forth in POMC
20.32.100 as applicable to all "Apartment" building types, regardless of site topography or other
design considerations. The Development Project provides equal or better ground floor privacy
for residents and aesthetic screening than could be provided with strict adherence to the Code,
therefore, the City has agreed that Owner may depart fiom the requirements of POMC 20.32.100
in the following manner: no minimum ground floor elevation shall be applied.
Section 12. Default.
. a) Subject to extensions of time by mutual consent in writing, failure, or delay by either
Party to perform any term or provision of this Agreement shall constitute a default. In the event
of alleged default or breach of any terms or conditions of this Agreement, the Party alleging such
default or breach shall give the other Party not less than thirty (30) days' notice in writing,
specifying the nature of the alleged default and the manner in which said default may be cured.
During this thirty (30) day period, the Party charged shall not be considered in default for
purposes of termination or institution of legal proceedings.
b) After notice and expiration of the thirty (30) day period, if such default has not been
cured or is not being diligently cured in the manner set forth in the notice, the other Party to this
Agreement may, at its option, institute legal proceedings pursuant to this Agreement. In addition,
the City may decide to file an action to enforce the City's Codes, and to obtain penalties and
costs as provided in the POW for violations of this Agreement and the Code.
Section 13. Termination. This Agreement shall terminate five (5) years after Effective Date.
Upon termination and upon the request of the Owner, the City shall record a notice of such
termination in a form satisfactory to the Parties that the Agreement has been terminated.
Section 14. 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 15. 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 16. 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 17. 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 18. 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 19. 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
rinless 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. 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.
Section 24l. 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
timely dedicate the Transportation Improvement Project Property.
Section 21. 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 33 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 22. 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. Upon
payment of all expenses, the Owner may request written acknowledgement of all fees. Such
payment of all fees shall be remitted to the City, at the latest, within thirty (30) days from the
City's presentation of a written statement of charges to the Owner.
Section 23. 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
i
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 24. 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 25. 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 26. 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 permit
for the property identified in this Agreement.
Section 27. 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, including but not limited to 42 U.S.C. §1983, or similar state constitutional
provisions.
Section 28. 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 29. 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 30. 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 31. 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 32. Non -Waiver of Breach. The failure of a Party to insist upon strict performance
of any of the covenants and agreements contained herein, or to exercise any option herein
conferred in one or more instances shall not be construed to be a waiver or relinquishment of
said covenants, agreements, or options, and the same shall be and remain in full force and effect.
Section 33. 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:
NAME OF OWNER:
Blueberry Apartments QOZB, LLC
Attn. Steve Novotny
7809 Pacific Avenue
Tacoma WA 98408
powen-nystro@gmail.com
CITY:
Mayor
City of Port Orchard
216 Prospect Street
Port Orchard WA 98366
rputaansuu@portorchardwa.gov
Copies shall also be transmitted to the
City Clerk and City Attorney at the
above address.
Section 34. 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.
a Section 35. 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 Transportation Improvement Project, the
property dedications, 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 36. 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 37. 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 38. 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 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.
1N WITNESS WHEREOF, the Parties have executed this Agreement on this 0-7 day of
IL tf]l_el ,, 2023.
BLUEBERRY APARTMENTS QOZB, LLC
By:w-
Steve Novotny
Its:
APPROVED AS TO FORM:
r -C� � ► ti� Q
NAM
Attorney for Owner
EXHIBITS TO AGREEMENT:
CITY OF PORT ORCHARD
By:
Robert Putaansuu
Its: Mayor
APPROVED AS TO FORM:
Jennifer S. Robertson
Attorney for Port Orchard
ATTEST:
Brandy Walla e, MMC
Port Orchard City Clerk
Section 36. 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 interpretution or enforcement of this Agreement.
Section 37. Counterparts. The Agrcement may be signed in two or more counterpart
Copies with the sarne effect as if the signature of each counterpart copy were on a single
instrument. Each countMarty shall be deemed as an original as to the Party whose signature it
bears, and all such counterparts shall constitute one document.
Section 38. 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 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 27- day of
2023.
BLUEBERRY APARTMENTS QOZB, LLC CITY OF PORT ORCHARD
By: L
Steve Novotny
Its:
APPROVED AS TO FORM:
NAM
Attorney for Owner
EXHIBITS TO AGREEMENT:
am
Robert Putaansuu
Its: Mayor
APPROVED AS TO FORM:
_ JAA
Ie i er S. Robertson
Att mey for Port Orchard
ATTEST:
Brandy Wal lavte, MMe
Port Orchard City Clerk
Exhibit A — Legal Description of the Property being developed by Owner
Exhibit B — Map of the Property and the Development Project and with permits listed in
Section
2 identified
Exhibit C — Transportation Improvement Project Property dedication map
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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(print or tape name)
R�'�AS'`'f,
NOTARY PUBLIC in and for the
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State of Wash'ngto , residing at:
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My Commission I_�z
expires: 01
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NOTARY BLOCK FOR BLUEBERRY APARTMENTS QOZB, LLC
STATE OF WASHINGTON )
D ) ss.
COUNTY OF T lek'u-1 )
I certify that I know or have satisfactory evidence that Steve Novotny is the person who
eippeared 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 ember
of Blueberry Apartments QOZB, LLC, a Washington limited liability company to b tbk free
and voluntary act of such Party for the uses and purposes mentioned in the instrument.
Dated: �-TUN2 2 -7 , 2023.
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► (print or ype name)
ARY PUBLIC in and for the
State of Washington, residing at:_
My Commission expires: / 12a�
Exhibit A
Legal description of the Subject Property
LOT A, SHORT SUBDIVISION NO. 2586, RECORDED UNDER AUDITOR'S FILE NO.
8103110065, BEING A PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST
QUARTER, SECTION 2, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP
COUNTY, WASHINGTON; EXCEPT THAT PORTION CONVEYED TO KITSAP COUNTY FOR
BLUEBERRY ROAD SE UNDER AUDITOR'S FILE NO. 200904300075
LOT B, SHORT SUBDIVISION NO. 2586, RECORDED UNDER AUDITOR'S FILE NO.
8103110065, BEING A PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST
QUARTER, SECTION 2, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP
COUNTY, WASHINGTON; EXCEPT THAT PORTION CONVEYED TO KITSAP COUNTY FOR
BLUEBERRY ROAD SE UNDER AUDITOR'S FILE NO. 200904300075
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER,
SECTION 2, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS; COMMENCING AT A POINT 990 FEET SOUTH
OF THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 2,
THENCE SOUTH 330 FEET; THENCE WEST 660 FEET; THENCE NORTH 330 FEET;
THENCE EAST 660 FEET TO THE POINT OF BEGINNING; EXCEPT RAMSEY ROAD SE;
AND EXCEPT THAT PORTION LYING WITHIN SHORT SUBDIVISION NO. 2586,
RECORDED UNDER AUDITOR'S FILE NO. 8103110065; AND EXCEPT THAT PORTION
CONVEYED TO KITSAP COUNTY FOR BLUEBERRY ROAD SE UNDER AUDITOR'S FILE
NO. 200904300075; AND EXCEPT THE EAST 30 FEET FOR BETHEL ROAD.
Exhibit B
Map of the Property and the Development Project and with permits listed in
Section 2 identified.
NOTE: This document, not being suitable for recording, is on file with the
City of Port Orchard under File No. LU23-Dev Agreement-01 Blueberry
Apartments
Exhibit C
Transportation Improvement Project Property dedication map
NOTE: This document, not being suitable for recording, is on file with the
City of Port Orchard under File No. LU23-Dev Agreement-01 Blueberry
Apartments