010-10 - Resolution - Development Agreement with South Kitsap Fire and RescueIntroduced by:
Drafted by:
Reviewed by:
Introduced:
Public Hearing:
Adopted:
RESOLUfiON NO. 010-10
Public Works Director
Public Works Director
Public Works Director
February 9, 2010
February 9, 2010
February 9, 2010
A RESOLUTION OF THE CITY OF PORT
ORCHARD, WASHINGTON, AUTHORIZING THE
MAYOR TO EXECUTE A DEVELOPMENT
AGREEMENT WITH SOUTH KITSAP FIRE AND
RESCUE
WHEREAS, South Kitsap Fire and Rescue (SKFR) is the owner of the property
described in Exhibit A ("SKFR's property") to the Development Agreement attached hereto as
Attachment 1; and
WUEREAS, this Development Agreement is authorized by RCW 36. 70B.170 et seq. and
is intended to set forth the development standards relating to stormwater that will apply to
SKFR's property, the period of time within which these standards will apply, and other matters
relating to the future development of SKFR's property; and
WHEREAS, on February 9, 2010 the City Council held a public hearing on the
proposed Development Agreement; and
WHEREAS, the City Council finds it is in the best interests of the City and its citizens to
approve the Development Agreement; now, therefore,
THE CITY COUNCIL OF THE CI1Y OF PORT ORCHARD, WASHINGTON,
HEREBY RESOLVES AS FOLLOWS:
THAT: The City Council hereby agrees to enter into and abide by
the Development Agreement No. C027-10, (attached hereto as
Exhibit A and incorporated herein by reference) which constitutes
a contract between the City of Port Orchard and the South Kitsap
Fire and Rescue commencing February 9, 2010 and expiring
February 8, 2017, and the Mayor hereby authorized to execute
such documents as are necessary pursuant to this resolution.
DEVELOPMENT AGREEMENT BETWEEN
CITY OF PORT ORCHARD
AND
SOUTH KITSAP FIRE & RESCUE
(Contract No. C027-10)
THIS DEVELOPMENT AGREEMENT, for reference purposes is dated February
9, 2010 and is entered into by and between the City of Port Orchard, a municipal
corporation (the "City") and South Kitsap Fire & Rescue (SKFR).
RECITALS
WHEREAS, RCW 36.708.170 authorizes the execution of a development
agreement between a local government and an entity having ownership or control of
real property within its jurisdiction; 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; and
WHEREAS, a development agreement must be consistent with the applicable
development regulations adopted by a local government planning under Chapter
36. 70A RCW; and
WHEREAS, SKFR is the owner of a 1.5 acre parcel of real property on Old
Clifton Road (Assessor's Parcel Number 052301-4-019-2004) where at some future
date it intends to construct a public safety building, which property is legally described in
Exhibit A and depicted in Exhibit 8; and
WHEREAS, the City and SKFR desire to memorialize their agreement regarding
the development standards and construction standards that will apply to SKFR's future
project.
Now, therefore, the parties agree as follows:
AGREEMENT
1. Definitions. When used in this document, unless the context clearly indicates
otherwise, the following words, when capitalized, shall be defined as set forth in
this paragraph.
1.1. "Adopting Resolution" means the resolution that approves this Agreement after
a public hearing, as required by RCW 36.708.200.
1.2. "Agreement" means this document, entitled Development Agreement.
Development Agreement
Contract No. C027-10
Page 1 of 9
1.3. "Agreement Date" means the date set forth above.
1.4. "City" means the City of Port Orchard.
1.5. "City Property" means the real property located within the City of Port Orchard
consisting of a 65 acre park and recreation area commonly referred to as
McCormick Village Park, which property abuts the SKFR Property, and any
future improvements thereon.
1.6. "Construction Standards" means the City adopted regulations governing
construction standards and specifications, such as but no limited to, the
International Building Code, Uniform Plumbing Code, International Fire Code,
and such other codes adopted by the City, with or without amendment.
1.7. "Development Standards" means the development requirements relating to
stormwater management standards and specifications described in this
Agreement, including but not limited to the 1999 Manual, and all of the permit
fees and regulations duly adopted by the City, either as part of the Port
Orchard Municipal Code, or adopted therein by reference, and any other
administrative regulations duly adopted by the City, that relate to the use,
alteration or development of stormwater facilities within the City. Development
Standards does not include Construction Standards, taxes, or impact fees.
1.8. "SKFR" or "Owner" means the South Kitsap Fire & Rescue.
1.9. "SKFR Property" means the real property located within the City of Port
Orchard consisting of a 1.5 acre parcel on Old Clifton Road (Assessor's Parcel
Number 052301-4-019-2004) where SKFR intends to construct a public safety
building and related improvements. See Exhibit A.
1.1 0. "Stormwater Facility" means those components of a manmade drainage
feature as defined in Port Orchard Municipal Code section 15.32.020(59).
1.11. "Vested Development Standards" means the Development Standards in effect
on the Agreement Date.
1.12. "1999 Manual" means the City of Port Orchard's 1999 Stormwater Design
Manual. This manual was adopted by the City of Port Orchard effective
September 1999 to govern the design and construction of stormwater
management systems within the City, and applied to all applications for
development within the City up to the date of adoption by the City of the 2005
DOE Manual on or about February 15, 2010.
1.13. "2005 DOE Manual" means the 2005 Washington State Department of Ecology
Stormwater Management Manual for Western Washington. This manual was
Development Agreement
Contract No. C027-10
Page 2 of 9
adopted by the City of Port Orchard to govern the design and construction of
stormwater management systems within the City, and except as otherwise
provided in this Agreement, applies to all applications for development within
the City filed after its adoption on or about February 15, 2010.
2. Development Standards.
2.1. The stormwater facilities constructed by SKFR shall be developed in
accordance with the Vested Development Standards in effect on the
Agreement Date, except as modified by agreement or by the City Council
accordance with paragraph 2.4, below.
2.2. The Vested Development Standards shall apply to all of the developed SKFR
Property, regardless of the underlying zoning, unless a contrary intent is clearly
expressed elsewhere in this Agreement.
2.3. The Construction Standards in effect at the time a complete building permit
application is submitted shall be the standards applicable to the construction
contemplated in that particular application.
2.4. The provisions of this Agreement, notwithstanding, the City Council reserves its
authority to impose new or different regulations to the extent required by a
serious threat human health, safety, or the environment, as authorized by RCW
36.70B.170.
3. Vesting.
3.1. SKFR shall have the right to develop and use the SKFR Property in
accordance with the Vested Development Standards, except as otherwise
provided in this Agreement or by state or federally mandated laws preempting
the City's authority to vest regulations. The SKFR Property shall remain subject
to all other project approvals required by law or City policy to construct the
improvements on the Property, including but not limited to clearing and grading
permits and building permits; provided, however, that such subsequent project
approvals shall be made pursuant to the Vested Development Standards.
3.2. The following regulations shall not be considered Vested Development
Standards, and thus any development shall comply with these standards that
are in effect at the time a complete building permit application is submitted:
3.2.1. Any parking requirements set forth in any of the following: the Americans
with Disabilities Act (ADA), the International Building Code, or
administrative regulations adopted pursuant to either.
3.2.2. Building Construction Standards.
Development Agreement
Contract No. C027 -1 0
Page 3 of 9
3.2.3. New or different officially adopted regulations of general applicability, even
if in conflict with the Vested Development Standards, but only to the extent
required by a serious threat to public health and safety, as determined by
the City Council, and only after notice and a meaningful opportunity to be
heard has been provided to Owner.
3.2.4. Regulations that the City and Owner mutually agree, by written consent,
can be applied to the Property.
3.2.5. Non -land use regulations including but no limited to taxes and impact
fees.
3.2.6. Any standard, requirement, or regulation relating to the use, alteration, or
development of real property that is not otherwise defined as a
Development Standard in paragraph 1.7, above.
3.3. The Vested Development Standards shall apply to all uses and development
activity on the Property for seven (7) years from the Agreement Date, subject
to the provisions set forth in this Agreement. At the end of said seven (7) year
period, the future use and development activity on the Property shall be subject
to the regulations duly adopted by the City, either as part of the Port Orchard
Municipal Code, or adopted therein by reference, and any administrative
regulations duly adopted by the City, that relate to the use, alteration or
development of real property within the City, without regard to the Agreement's
terms and conditions. Provided, however, if a complete building permit
application is submitted prior to the end of said seven (7) year period, SKFR
shall be allowed to construct and use the improvement covered by said permit
application so long as the permit issued on said application remains in full force
and effect and construction is substantially completed within 18 months of the
date the City notifies SKFR that the permit is ready to be issued.
4. SKFR Stormwater Facility. SKFR shall design and construct stormwater facilities
of sufficient size to serve the SKFR Property and any joint parking facility
constructed pursuant to paragraph 5, below, in accordance with the requirements
of the 1999 Manual.
5. Future Use of the SKFR Property.
5.1. In the event SKFR decides to build a public safety building on the SKFR
Property:
5.1.1. SKFR agrees to give the City one hundred twenty (120) days to determine
whether said building would also be a desirable location for a police sub-
station and, if the City so determines, agrees to design and build a joint
use public safety building upon such terms and conditions as the parties
may agree; and
Development Agreement
Contract No. C027 -10
Page 4 of9
5.1.2. SKFR agrees to build a joint parking facility, upon such terms and
conditions as the parties agree, to benefit the SKFR Property and the City
Property, and to execute such documents as are necessary to address
joint use, maintenance, and liabilities associated with the joint parking
facility.
5.2. In the event SKFR decides to sell the SKFR Property, SKFR shall give the City
a first right of refusal to purchase the property upon such terms and conditions
are the parties may agree. This provision shall survive termination the
Agreement.
6. Default: Notice; Rights on Default.
6.1. No party shall be in default under this Agreement unless it has failed to perform
following written notice of default from the other party. Notice of default shall
allow the defaulting party a thirty (30) day period of cure or commencement of
cure where thirty (30) days is insufficient for a complete cure. Each notice of
default shall specify the nature of the alleged fault and manner in which the
default may be cured satisfactorily. A party not in default under this Agreement
shall have all rights and remedies provided by law or equity, including without
limitation: issuance of a stop work order, injunction, damages, action for specific
performance, or to require action consistent with this Agreement.
6.2. Nothing herein will operate to prevent the City from taking legal action regarding
noncompliance that threatens public health, safety, or welfare prior to the
expiration of the thirty (30) day cure period following notice of default. No such
action or proceeding will operate to automatically terminate this Agreement, nor
shall it release either party from any promise or obligation herein nor shall it
release either party from any liability or obligation with respect to any breach of
this Agreement occurring prior to the commencement of any legal action by the
City.
7. Termination.
7.1. This Agreement shall expire and be of no further force and effect upon the
expiration of the term set forth in paragraph 3, above.
7.2. This Agreement shall expire and be of no further force and effect if the Owner
seeks a rezone of the Property; unless the parties expressly agree in a written
amend merit to this Agreement.
7.3. 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.
Development Agreement
Contract No. C027-10
Page 5 of 9
7.4. Upon termination of this Agreement as to the Owner of the SKFR 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. Provided, that vesting of such
entitlements, conditions, or fees may then be established for the Property
pursuant to then existing planning and zoning laws.
8. Notice. All notices required by this Agreement shall be deemed delivered to the
respective party on the date that it is personally delivered to the address set forth
below, or on the date that it is successfully sent by facsimile transmission to the
facsimile number set forth below:
City:
With a copy to:
Owner:
Mayor
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Facsimile: 360-895-9029
Gregory A. Jacoby
City Attorney
P.O. Box 1317
Tacoma, WA 98402
Facsimile: 253-627-2247
Kitsap Fire & Rescue
197 4 Fircrest Drive, SE
Port Orchard, WA 98366
Facsimile: 360-871-2426
10. No Assignment. The rights, obligations, conditions, and interests under this
Agreement shall not be assignable without the express written approval of the
City, which approval may be withheld in its sole discretion.
11. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties hereto. No other person shall have any
right of action based upon any provision of this Agreement.
12. Interpretation; Entire Agreement.
12.1. 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.
12.2. This Agreement constitutes the entire agreement of the parties and
incorporates all prior discussions and agreements
Development Agreement
Contract No. C027-1 0
Page 6 of 9
13. City's Reservation of Rights.
13.1. This Agreement shall be construed to exclude from its scope, and to
reserve to the City, the police power authority which is prohibited by law from
being subject to a mutual agreement with consideration.
13.2. This Agreement shall not limit the City's authority to exercise its power of
eminent domain.
14. Severability. If any prov1s1on of this Agreement is determined to be
unenforceable or invalid pursuant to a final decree or judgment by a court of law
with jurisdiction, then the remainder of this Agreement not decreed or adjudged
unenforceable or invalid shall remain unaffected and in full force and effect.
15. Chanaes: Agreement to be Recorded. This Agreement may be modified,
including termination of the Agreement or any part thereof, at any time, but only
by the parties by written agreement and only after following the process
established by law for the adoption of a development agreement (RCW
36.708.200). This Agreement or a memorandum thereof shall be recorded
against the SKFR Property. SKFR shall be responsible for the costs of recording
this Agreement, and any subsequent amendments thereto.
16. Jurisdiction and Venue. This Agreement shall be governed by the laws of the
State of Washington both as to interpretation and performance. Any action at
law, suit in equity or judicial proceeding for the enforcement of this Agreement or
any provisions thereof shall be instituted and maintained only in any of the courts
of competent jurisdiction in Kitsap County, Washington.
17. Estoppel Certificate. Owner may, at any time, and from time to time, deliver
written notice to the City requesting the City to certify in writing that, to the
knowledge of the City (i) this Agreement is in full force and effect and a binding
obligation of the Parties; (ii) this Agreement has not been amended or modified
either orally or in writing, and if so amended, identifying the amendments; and (iii)
the requesting Party is not in default in the performance of its obligations under
this Agreement, or if in default, to describe therein the nature and amount of any
such defaults. The City shall execute and, upon payment of the City's costs,
associated with researching and preparing the certificate, return such certificate
within thirty (30) days following the receipt thereof. The City shall not have any
liability to the requesting Party, the Owner, or to any third party for inaccurate
information if it provides the estoppel certificate in good faith.
18. Authority to Execute.
18.1. The Port Orchard City Council has authorized the Mayor to execute this
Agreement.
Development Agreement
Contract No. C027-10
Page 7 of 9
18 .2 . SKFR 's representative is authorized to execute this Agreement pursuant
to the terms of SKFR's delegation of authority.
CITY OF PORT ORCHARD:
/
/
APPROVED AS TO FORM:
STATE OF WASHINGTON
County of Kitsap
By:~~--~--~---------
Wayne
Its : Fire Chief
ss .
I certify that I know or have satisfactory evidence that Lary Coppola is the person
who appeared before me, and said person acknowledged that he s igned this
instrument, on oath stated that he was autho rized to execute the instrument and
acknowledged it as the Mayor of the City of Port Orchard , a Washington municipal
corporation , and acknowledged it to be the free and voluntary act and deed of said
municipal corporation for the uses and purposes mentioned in the instrument.
DATED : February ..9_. 2010
Development Agreement
C o ntra ct No. C02 7 -1 0
Page 8 of 9
STATE OF WASHINGTON
County of Kitsap
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ss.
I certify that I know or have satisfactory evidence that ~N.. ~0:kc is
the person who appeared before me, and said person acknowledged'that he signed this
instrument and acknowledged it as the \=iu C\-\i.e.lc of J.·,M>. V,,~c,.,:v Fire 12escc(~and
acknowledged it to be the free and voluntary act of said limited liability company for the
uses and purposes mentioned in the instrument.
Development Agreement
Contract No. C027-10
Page 9 of 9