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HomeMy WebLinkAbout084-25 - Family Legacy Development, LLC - ContractPORT ORCHARD CITY OF 2€12509160082 Declaration Of Payment Rec Fee $ 309.5(. 09/1612025 11 27 AM Page I of 7 Paul Andrews, Kitsap Co Auditor - Name and Mailing Address City of Port Orchard -Clerk's Office 216 Prospect Street Port Orchard, WA 98366 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): PAYMENT IN LIEU OF SPECIFIC PERFORMANCE OF THE CONSTRUCTION OF FRONTAGE AND SIDEWALK IMPROVEMENTS ON SOUTH-EAST SALMONBERRY ROAD Auditor's File Number of Document (s) Referenced: Grantor(s) person(s) that conveys, sells or grants interest in property: Family Legacy Development, 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 LOT C OF SHORT PLAT NO. 2384 AS RECORDED UNDER AUDITOR'S FILE NO. 8009020109 Assessor's 14 digit Tax Parcel Number 012301-2-078-2000 04/25/14 PAYMENT IN LIEU OF SPECIFIC PERFORMANCE OF THE CONSTRUCTION OF FRONTAGE AND SIDEWALK IMPROVEMENTS ON SOUTH-EAST SALMONBERRY ROAD THIS AGREEMENT ("Agreement") is made this L day of �25 between the City of Port Orchard, a municipal corporation ("City"), and 'Family Legacy Development, LLC, a Washington limited liability company ("FLD"), organized under the laws of the State of Washington and doing business at 7809 Pacific Avenue, Tacoma, Washington 98408, for the purposes set forth herein. I. RECITALS 1.1 FLD applied for and the City issued a Land Disturbing Activity Permit (LDAP) and building permits for the Salmonberry Apartment Project (PW22-024 (LDAP), PW22-025 (SDP), PW22-026 (CRC), 22-980 (BLDG), 22-981 (BLDG)); and 1.2 In conjunction with these permits, FLD is required to install the following frontage improvements: three quarter street improvements along SE Salmonberry Rd consisting of sidewalk, landscape strip, curb and gutter, bike lane, site access, illumination, and roadway restoration. 1.3 The Frontage Improvement Project is shown on Exhibit A which is attached hereto an incorporated by this reference as if set forth in full. 1.4 The City is in the process of completing design for the Bethel Road Project (Phase 1) which will construct a needed roundabout on Bethel Road at Salmonberry Road. This Project includes installation of improvements to Salmonberry Road. The Project also overlaps with the area where FLD would install the frontage improvements; and 1.5 The City and FLD discussed the phasing of the Frontage Improvement Project and how those would correspond with and may be integrated with the City's work on Phase 1 of the Bethel Road Project; and 1.6 In order to better integrate the projects in both timing and scope, FLD has offered to pay for the City to do the required Salmonberry Apartments Frontage Improvement Project so that it can be made part of the Phase 1 work on the Bethel Road 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; and 1.7 Accordingly, in lieu of FLD constructing the Frontage Improvement Project set forth in Sections 1.2 and 1.3 above, FLD desires to transfer the necessary funds to the City in the amount of the City's Engineer's Estimate for the Salmonberry Apartments Frontage Improvement Project in the amount of $72,034.00. FLD desires to authorize the City to utilize those funds to do the Frontage Improvement Project work as part of the Phase 1 work on the Bethel Road Project; and Agreement for Payment in Lieu of Frontage Improvement Work Page 1 1771338.1-366922 -0021 1.8 The City agrees that this payment in lieu of construction will satisfy the frontage improvement condition of the permits listed in Section 1.1 above; NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, the parties hereto agree as set forth above and as follows: II. PERFORMANCE OBLIGATIONS 2.1 FLD shall deposit cash funds in the amount of Seventy Two Thousand and Thirty Four Dollars and No Cents ($72,034.00) with the City of Port Orchard within ninety (90) days of execution of this Agreement ("Funds"). 2.2 FLD authorizes and directs the City to utilize the Funds towards planning, design, permitting and/or construction of the Salmonberry Apartments Frontage Improvement Project components listed in Sections 1.2 and 1.3 above, at the City's sole direction regarding timing, as referenced above. 2.3 The City agrees to accept the Funds as financial security in lieu of construction of the Salmonberry Apartments Frontage Improvement Project components listed in Sections 1.2 and 1.3 above. Upon receipt of the Funds, the frontage installment condition of the permits listed in Section 1.1 above is deemed fulfilled. FLD shall remain obligated to perform and comply with any and all other obligations and conditions required by the City for the Salmonberry Apartments project and this Agreement shall not relieve FLD of those obligations and/or conditions. 2.4 FLD 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 FLD affirmatively disclaims any interest in the Funds. 2.5 To the extent the City determines that planning, design, permitting and/or construction of the Frontage Improvement Project listed in Sections 1.2 and 1.3 requires additional cooperation from FLD, including but not limited to the granting of a temporary construction easement, FLD shall reasonably provide the City with the cooperation sought at no additional costs to the City, provided the City is not entitled to further payment for the frontage improvement work beyond what is required in this Agreement. III. GENERAL PROVISIONS 3.1 Applicable Law; Attorneys' Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Venue for any action arising out of or relating to this Agreement shall be in Kitsap County Superior Court. The non -prevailing Party in any action brought to enforce this Agreement shall pay the other Parties' expenses and reasonable attorney's fees. 3.2 Effective Date. This Agreement shall be deemed effective upon mutual execution and approval by the Port Orchard City Council, which approval shall be attached hereto and adopted herein by this reference. This Agreement shall remain in full force and effect until such Agreement for Payment in Lieu of Frontage Improvement Work Page 2 1771338.1- 366922 -0021 time as the underlying building permits for the Salmonberry Apartments Project have issued and any appeals thereof have been completed. 3.3 Entire Agreement. This Agreement embodies and constitutes the entire understanding between the Parties hereto with respect to the transactions contemplated herein, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement. 3.4 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. 3.5 Binding on Successors. If FLD assigns or transfers the Salmonberry Apartments property as a whole to a new developer, such assignee or transferee shall be obligated and bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof and a Party thereto. Such purchaser, assignee or transferee shall observe and fully perform all of the duties and obligations of FLD as contained in this Agreement. 3.6 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. 3.7 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. 3.8 Written Notice. All written communications regarding enforcement or alleged breach of this Agreement shall be sent to the Parties in accordance with this Section. Notices, demands, correspondence to the City and/or FLD (as applicable) shall be sufficiently given if dispatched by pre -paid first-class mail to the addresses of the Parties as designated 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 FLD 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. 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: FAMILY LEGACY DEVELOPMENT, CITY: LLC: Agreement for Payment in Lieu of Frontage Improvement Work Page 3 1771338.1-366922 -0021 Attn: Steve Novotny Family Legacy Development, LLC 7809 Pacific Avenue Tacoma, WA 98408 Email: powermystro@gmail.com Mayor City of Port Orchard 216 Prospect Street Port Orchard WA 98366 rputaansuuncit oofportorchard.us Copies shall also be transmitted to the City Clerk and City Attorney at the above address. 3.9 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. 3.10 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 as may be necessary to provide a Party with a full and complete enjoyment of its rights and privileges under this Agreement. 3.11 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. 3.12 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. IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below. CITY OF PORT ORCHARD ("City") By Its d ✓ Dated: 9 / lz≤ FAMILY LEGACY DEVELOPMENT, LLC ("FLD") Its -e... Dated: Agreement for Payment in Lieu of Frontage Improvement Work Page 4 1771338.1-366922 -0021 Exhibit A Site Plan depicting frontage improvements and Right-of-way dedication area. NOTE: This document, not being suitable for recording, is on file with the City of Port Orchard under File No. PW22-024 Salmonberry Rd Apts CITY NOTARY BLOCK 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 entity for the uses and purposes mentioned in the instrument. ;sYPRY„P,�e,, 0 Commission Numbor 151224 Ste, Jenine Floyd Z= 7 My Appointment Expires O A 11/15/2026 h�z- \�•O WAS, STATE OF WASHINGTON COUNTY OF _ ft DATED: — 7b NAME: c T �F? (Print Name) Notary Public in and for the State of Was on. Commission Expires: / FLD NOTARY BLOCK ss: I certify that I know or have satisfactory evidence that 3 JP ' is the person who appeared before me, and said person acknowledged that he/she sigted this instrument, on oath stated that he/she was authorized to execute the instrument, and acknowledged it as the ©tor}.( of Family Legacy Development, LLC to be the free and voluntary act of such entity for the uses and purposes mentioned in the instrument. ........ _ ••••• . \NZM�NT '•� �i DATED: 5-�a-a5 •� �_ NOTAq),. . F ueuc ; . L)d 1-� NAME: 1 7•'.�y .•• � (Print Name) Notary Public in and for the State of Washington. 1 Commission Expires: / S e Agreement for Payment in Lieu of Frontage Improvement Work Page 5 1771338.1-366922 -0021