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024-11 - Resolution - Development Agreement with Wal-Mart, Inc.Introduced by: Gregory A. Jacoby Requested by: Gregory A. Jacoby Drafted by: Gregory A. Jacoby Introduced: Gregory A. Jacoby Adopted: August 9, 2011 RESOLUTION NO. 024-11 A RESOLUTION OF THE CITY OF PORT ORCHARD, WASHINGTON, RATIFYING THE CITY COUNCIL'S APPROVAL AND THE MAYOR'S EXECUTION OF THE DEVELOPMENT AGREEMENT WITH WAL-MART, INC. WHEREAS, Wal-Mart is the owner of the property located at 3497 Bethel Road SE, Port Orchard, Washington, (the "Property"), which is developed with a Wal-Mart store; and WHEREAS, the Property is located within an area proposed for annexation to the City commonly known as the Bethel Corridor North Annexation Area; and WHEREAS, Wal-Mart plans to expand the existing Wal-Mart store on the Property ("Project"). Wal-Mart obtained site plan approval from the Kitsap County ("County") Hearing Examiner. Additional permits for the Project have been approved or issued by the County, are pending with the County, or will be submitted to the County or the City; and WHEREAS, the City and County have different processes for the approval of applications for projects like the Project. The City and County also have different substantive standards for the development of projects like the Project; and WHEREAS, the City and Wal-Mart recognize that Wal-Mart has a vested right to develop the Project pursuant to the approved or issued County permits and the standards to which the Project is vested through the submission of complete applications; and WHEREAS, The City and Wal-Mart desire to enter into a Development Agreement, as authorized by RCW 36.7oB.170, which establishes procedures and standards for the inspection of the Project and review and approval of any applications not acted upon by the County prior to annexation of the Property by the City; and WHEREAS, in accordance with RCW 36.7oB.200, the City held a public hearing on July 12, 2011 regarding the proposed Development Agreement; and WHEREAS, at its July 12, 2011 meeting, the City Council by voice vote unanimously approved the Development Agreement with Wal-Mart, Inc. and authorized the Mayor to execute said Agreement; and Resolution No. 024-11 Page 2 of 15 WHEREAS, in order to comply with the requirements of RCW 36.7oB.200, the City Council hereby proposes to formally adopt this Resolution approving the Development Agreement and ratifying its earlier actions; now, therefore; THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY RESOLVES AS FOLLOWS: THAT: The City Council hereby ratifies the action taken at the July 12, 2011 City Council meeting at which it unanimously approved the Development Agreement with Wal-Mart, Inc. and authorized the Mayor to execute said Agreement in the form attached hereto as Exhibit A and incorporated by this reference. PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 9th day of August 2011. MMC, City Clerk DEVELOPMENT AGREEMENT No. 058-11 Wal-Mart Property (Bethel Corridor North) THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into between the City of Port Orchard, a Washington municipal corporation ("the City"), WAL-MART REAL ESTATE BUSINESS TRUST, a Delaware statutory trust, and WAL-MART STORES, INC., a Delaware corporation (collectively, "Wal-Mart"). RECITALS A. Wal-Mart is the owner of the property located at 3497 Bethel Road SE, Port Orchard, Washington, legally described on Exhibit A ("Property"), which is developed with a Wal-Mart store. B. The Property is located within an area proposed for annexation to the City commonly known as the Bethel Corridor North Annexation Area. C. Wal-Mart plans to expand the existing Wal-Mart store on the Property ("Project"). Wal-Mart obtained site plan approval ("Site Plan Approval") by the Kitsap County ("County") Hearing Examiner for the Project on June 7, 2010 (Hearing Examiner Case No. 030324-028). Additional permits for the Project have been approved or issued by the County, are pending with the County, or will be submitted to the County or the city. D. The City and County have different processes for the approval of applications for projects like the Project. The City and County also have different substantive standards for the development of projects like the Project. E. The City and Wal-Mart recognize that Wal-Mart has a vested right to develop the Project pursuant to the approved or issued County permits and the standards to which the Project is vested through the submission of complete applications. F. The City and Wal-Mart desire to enter into a Development Agreement, as authorized by RCW 36.70B.170, which establishes procedures and standards for the inspection of the Project and review and approval of any applications not acted upon by the County prior to annexation of the Property by the City. Based on the foregoing considerations, the City and Wal-Mart enter into the following Development Agreement. AGREEMENT 1. Approved or Issued Permits. The City recognizes that it is legally required to permit development of the Project in accordance with the terms of permits or approvals issued for the Project by the County prior to annexation ("County Permits"). 2. Conditions. The City shall not impose conditions, taxes, fees or charges or require dedications as a condition of development of the Project unless such conditions, taxes, fees, charges or dedications are required by the County Permits or the Kitsap County Code in effect on the date of this Agreement and consistent with Washington law; provided, however, that the City may impose its adopted generally applicable application fees on any application submitted to the City. Wal-Mart shall construct the Project in accordance with the Site -Plan Approval, and comply with all conditions of said approval. If Wal-Mart proposes any change to the Project that require modification to the Site Plan Approval, then such modification shall be processed: (1) prior to annexation, by the County in accordance with the procedures of the County Code; or (2) after annexation, by the City in accordance with the procedures of the Port Orchard Municipal Code ("City Code"). 3. Development Review and Inspection Process. After annexation, any permits or approvals required for the Project but not previously issued by the County shall be processed by the City utilizing the process provided for the permit or approval in the City Code. 4. Development Standards. In exchange for Wal-Mart's agreement contained in section 8 below, the City agrees to recognize the Project as being vested to the development standards of the Kitsap County Code ("Development Standards") in effect on the Property on the date the application for Site Plan Approval for the Project was submitted. Applications for permits or approvals for development of the Project shall be governed by the Development Standards. Notwithstanding the foregoing, Wal- Mart may, at its sole discretion and option, elect to subject a permit or approval for the Project to some or all of the standards of the City Code without waiving its vested rights. 5. aigRL The City shall permit signage for the Project as depicted on Exhibit B. Such signage shall be permitted pursuant to a sign permit issued by the Building Official in accordance with the requirements of City Code. 6. Inspections. After annexation, the County may conduct any required construction inspections of the Project in accordance with the process provided for inspections in the County Code. In the alternative, if the County fails or refuses to conduct the inspections, or at Wal-Mart's election, inspections will be conducted at Wal- Mart's cost by a third -party contractor selected by the City. The City will recognize the decisions of such third -party contractor as its own. The City shall not require modifications to work already inspected and approved by the County. 7. Term. The term of this Agreement shall be five years or until the Project receives final inspection and issuance of the certificate of occupancy, whichever occurs first. Following the expiration of the term of this Agreement, the Project shall be subject to state law and City Code requirements for permitted and nonconforming uses. 8. Consent to Annexation. This Agreement is contingent on Wal-Mart's execution during the Term of this Agreement of a petition for annexation ("Annexation Petition") to the City of the Property as provided in RCW 35.13, as it now exists or as it may hereafter be amended, and the subsequent annexation of the Property into the City during the term of this Agreement. If Wal-Mart does not sign the Annexation Petition during the term of this Agreement, or the Property is not annexed into the City during the term of this Agreement, then this Agreement shall be null and void. 9. Notices. Any notice or other communications required or permitted by this Agreement shall be sufficiently given if sent by certified mail, postage prepaid, or by Federal Express or other nationally recognized overnight courier service, addressed as follows: Wal-Mart Prior to completion of construction by Wal-Mart. For any period of time prior to the date that Wal-Mart completes the construction of improvements on the Wal-Mart Property (Wal-Mart having no obligation to do so), all notices and other communications shall be sent to the following addresses: Wal-Mart Stores, Inc. Attn: Real Estate Manager (Ref: Port Orchard, WA, Store No. 2325-02) 2001 SE 1 Oth Street Bentonville, Arkansas 72716-0550 With copies to: Wal-Mart Stores, Inc. McCullough Hill, P.S. Attn: Elvin Sutton, Esq. Attn: John C. McCullough (Ref: Port Orchard, WA, Store No. 2325-02) 701 Fifth Avenue, Suite 7220 2001 SE 1O`h Street Seattle, WA 98104 Bentonville, Arkansas 72716-0550 After completion of construction by Wal-Mart. For any period of time after Wal-Mart completes construction of improvements on the Wal-Mart Property (Wal-Mart having no obligation to do so), all notices and other communications shall be sent to the following addresses: Wal-Mart Stores, Inc. Attn: Property Manager (Ref: Port Orchard, WA, Store No. 2325-02) 2001 SE loth Street Bentonville, Arkansas 72716-0550 With a copy to: Wal-Mart Stores, Inc. Attn: President (Ref: Port Orchard, WA, Store No. 2325-02) 2001 SE 1Oth Street Bentonville, Arkansas 72716-0550 City of Port Orchard James Weaver City Development Director 216 Prospect Street Port Orchard, WA 98366 Phone: 360-876-4991 Facsimile: 360-876-4980 With a copy to: Gregory A. Jacoby City Attorney P.O. Box 1317 Tacoma, WA 98401 Phone: 253-627-1181 Facsimile: 253-627-2247 10. Amendments. Patti Kirkpatrick City Clerk 216 Prospect Street Port Orchard, WA 98366 Phone: 360-876-4407 Fax: 360-895-9029 No change or modification of this Agreement shall be valid unless the same is in writing and is signed by authorized representatives of the City and Wal-Mart. Provided, that any such amendment shall follow the process established by law for the adoption of a development agreement, as set forth in RCW 36.70B.200. No purported or alleged waiver of any of the provisions of this Agreement shall be binding or effective unless in writing and signed by the party against whom it is sought to be enforced. 11. Serious Threat to Public Health and Safety. Pursuant to RCW 3 6.70B. 170(4), the City reserves the authority to impose new or different regulations affecting the Property to the extent required by a serious threat to public health and safety. 12. Recording, Binding Effect, Assignment. This Agreement and any subsequent amendments thereto shall be recorded with the Kitsap County Auditor. Wal-Mart shall be responsible for the cost of recording this Agreement and any subsequent amendments thereto. The rights, obligations, conditions and interests set forth in this Agreement shall run with the land and shall inure to the benefit of and be binding upon Wal-Mart, and its heirs, personal representatives, successors and assigns and shall benefit the property described in Exhibit A. Wal-Mart shall have the right to convey, assign, apportion or otherwise transfer any and all of its rights, obligations, conditions, and interests under this Agreement. Provided, however, within thirty (30) days of the effective date of Wal-Mart's conveyance, assignment, apportionment, or other transfer of its rights under this Agreement, Wal-Mart must provide notice to the City of the same. 13. Relationship of the Parties. Notwithstanding any other provision of this Agreement, or any other agreements, contracts, or obligations which may derive herefrom, nothing herein shall be construed to make the City or Wal-Mart partners or joint venturers, or to render any other parties liable for any of the debts or obligations of the other parties, it being the .intention of this Agreement merely to create the agreements set forth herein. 14. 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 thereof. 15. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 16. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Any action with respect to this Development Agreement shall be brought in Kitsap County Superior Court, Port Orchard, Washington. 17. Multiple Originals. This Agreement may be executed in multiple copies, each of which shall be deemed an original. 18. Entire Agreement; Construction. This Agreement constitutes the entire agreement of the parties and incorporates all prior discussions and agreements. The captions throughout this Agreement are for convenience and reference only and the words contained in them shall not be held to expand, modify, amplify or aid in the interpretation, construction or meaning of this Agreement. All parties hereto have been represented by legal counsel and accordingly hereby waive the general rule of construction that an agreement shall be construed against its drafter. 19. Attorney's Fees. In the event that any party to this Agreement brings a lawsuit against any other party in order to enforce any provision of this Agreement or to redress any breach thereof, the prevailing party in any such lawsuit shall be entitled to recover its costs and reasonable attorney's fees in addition to any other available remedy. IN WITNESS WHEREOF, this Agreement was executed by the parties on the dates hereinafter indicated. Attes tricia J. Kir atric MC, City Clerk STATE OF WASHINGTON NO COUNTY OF KITSAP I certify that I know of have satisfactory evidence that Lary Coppola is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledge it as the Mayor of the City of Port Orchard to be the fee and voluntary act of such party for the purposes mentioned in the instrument. SUBSCRIBED AND SWORN to before me this jaday of 20. r. j � OTARY PUBLIC in fo the State o l Washington, residing at My appointment expires: j 2 - ) 5 • WAL-MART REAL ESTATE BUSINESS TRUST am Its: Date: STATE OF ARKANSAS ss. COUNTY OF BENTON I certify that I know of have satisfactory evidence that is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledge it as the of WAL-MART REAL ESTATE BUSINESS TRUST to be the fee and voluntary act of such party for the purposes mentioned in the instrument. SUBSCRIBED AND SWORN to before me this day of 20_. NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires: Exhibit A-1 Contract No. 058-11 Tax Description Tax Account No. Process No. Situs Address 0123014104-2008 1919166 01231E (LOT A OF SHORT PLAT NO.3994 RECORDED UNDER AUDITOR'S FILE NO.8509300124 AND AMENDED BY AUDITOR'S FILE NO.8801150119) THAT PORTION OF THE NORTH ONE -QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 1, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 1, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., FROM WHICH THE NORTHWEST CORNER OF SAID SECTION 1 BEARS N1*53'50 E 1349.14 FEET; THENCE S88*49139 E ALONG THE NORTH LINE OF SAID SOUTHWEST QUARTER OF THE NORTHWEST QUARTER, A DISTANCE OF 30.00 FEET TO THE EAST MARGIN OF BETHEL ROAD, THE TRUE POINT OF BEGINNING; THENCE CONTINUE S88*49'39 E 1291.80 FEET TO THE NORTHEAST CORNER OF SAID SOUTHWEST QUARTER OF THE NORTHWEST QUARTER; THENCE S1*33'23 W ALONG THE EAST LINE THEREOF 332.02 FEET; THENCE N88*52'28 W ALONG THE SOUTH LINE OF SAID NORTH ONE -QUARTER OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 1, A DISTANCE OF 918.36 FEET; THENCE N1*53'50 E 202.71 FEET; THENCE N88*49139 W 375.42 FEET TO THE EAST MARGIN OF BETHEL. ROAD; THENCE N1*53'50 E ALONG SAID EAST ROAD MARGIN 130.08 FEET TO THE TRUE POINT OF BEGINNING.»»EXCEPT THAT PORTION CONVEYED TO KITSAP COUNTY FOR BETHEL ROAD SE UNDER AUDITOR'S FILE NO.201105160199, RECORDS OF KITSAP COUNTY, WASHINGTON. tull Exhibit A-2 Contract No. 058-11 Tax Description Tax Account No. Process No. Situs Address 012301-2-149-2005 2286052 3497 BETHEL RD SE 01231E LOT B SHORT PLAT NO.6961 RECORDED IN VOLUME 13 PAGE 54 OF SHORT PLATS, AUDITOR'S FILE NO.9512260271. BEING A PORTION OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER, SECTION 1, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY, WASHINGTON. TOGETHER WITH EASEMENTS AS DEPICTED ON THE SHORT PLAT.»»EXCEPT THAT PORTION CONVEYED TO KITSAP COUNTY FOR BETHEL ROAD SE UNDER AUDITOR'S FILE NO.201105160199, RECORDS OF KITSAP COUNTY, WASHINGTON. Scope of Work: Multi Tenant Development Sign: Remove and install newWalmart panels (each side). Repaint cabinets and pole cover Duranodic Bronze. TLE Directional Site Sign (New): • Install newTLE site sign, VJ0aJ a aa6 t '.a". SITE SIONAOE SCHEDULE Sign Type Proposed Panel Panel Dimensions Illumination Total Sq. FL Color per Side I - Multi Tenant Development Sign (axisting) Walmart panel Business Background: Internally 46.00 SF PMS285C 3'•0"x 15'-4" illuminated White lettering, Yellow Spark Wendy s & Blank panels Business Muld Combined Internally 40.00 SF 4'-0"x 10'•0" illuminated I - WelmartTLE Pylon Sign Directional Design under 4'-0" x 8'-0" NIA 32.00 SF (new) development ISF TOTAL SrrE Sn3NAGE: 1118.00 Exhibit B Contract No. 058-11 r1. Design under moo so. M i Y 066 - .500 R'AU TLE Directional Site Sign June 09, 2011 I Port Orchard, WA #2325 Proposed site SIgnage 2 fE q' ll9 6a ■ O O 00 f ° �� d� all 3'iq rii�i'u,f TmPt+''U,fi • 1�7 1 H_�- +3 OD O p` ^11111i'gI�REDD; A�'�A9ipgInE$Ai�e� sVS .. HOLLYWOOD r 4y- 14 ■ 0 t a. TA" 1 FN e@egic= N B � O 0 m m L R. E Aq li R ■ ■ R iiq RO 1� ��� � �pg��i i �a�`cflti�� °s IR ''� i��g�■ o pill Ree�`•� I�aSe q a �fS�.iS■ i� E EE cym pp 55yy pp5� g pi � i6i y 9 � N Mm fi � ■ Y R�°�� CE��msv� of WAI Led" BearTLEElevaaon. FrontTLEElavatlon PROPOSED SIONAM SCHEDULE - - - sign Qly lVp. I Color Haight Illumin.lion Sq. FI Turd 9q. FL PBONTSIONAOE %AW.wt • - uk- - 1 Identity - Wldtu Y.11uu S.-V - 8'-0" Channel Lit 69.49 89.49 Hemndk Ruente 1 Bntmnou Whfre 2'-6" NIA 27.35 2735 Muhl I P.tMnoe 9rhlln 2'-6" NIA 11.99 11.99 - Ouldn rLivin 1 P.tthuka White 2'-W, NIA - 21.48 21.48 T07ALFAONTs1ONA06 - - -- 15031 - AVrOCENTEa'91ONAGE Tnek Lahe 1 - Additianel 1Vltile 2'-0" NIA 9.89 9.89 'R. - 4•-- Diteu(onei While 1'A" NIA 089 356 L. 2• Dite.8wn1 19ldte 1'4r NIA 1.10 220 TOTAL CEN7EB 91ONAOE 115.65 TOTAL BUU.DE409IONAOE 1165.96 •Nak lhat eadt'Tire"end"I.u61'eign i. mtdv3aquve hat wtdmaouldetnd•diteelional.iye uo- der """lion Ifi 65.110(3) would hn litgited bone sign per ingttsn and atw sign pu.egtess (u oulhted in .hove elmhoml 1f almart o'egoh Exhibit B Contract No. 058-11 *JTr -r -EHome & Pha alry -4 ta4 _ Outdoor Unong �-tir—lram a wbe T tr Directional Signs Thoulollated areas shown in the proposed sign schedule refiectthe area determination method found In the sign ordinance for the City of Partofchard. The areas reflect thecumuladm area ofeach letter as displayed bythe hatched area shown in these diagrams. 2 I June 09, 2011 I Port Orchard, WA #2325 Slgnage Calculations