021-13 - Ordinance - Development Agreement with The Sinclair, LLCIntroduced by: City Attorney
Requested by: City Attorney
Drafted by: City Attorney
Introduced: November 12, 2013
Public Hearing: October 22, 2013
Adopted: November 12, 2013
ORDINANCE NO. 021-13
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
RATIFYING THE CITY COUNCIL'S APPROVAL OF AND
AUTHORIZATION FOR THE MAYOR TO EXECUTE A
DEVELOPMENT AGREEMENT WITH THE SINCLAIR, LLC
WHEREAS, City staff has been working diligently to address the sanitary sewer
capacity needs for the service area located in and around the Sedgwick/Sidney Road
intersection, aka the Joint Planning Area (JPA); and
WHEREAS, the City's efforts include the acquisition of a sanitary sewer lift station
easement from the South Kitsap School District for a future sanitary sewer lift station; and
WHEREAS, The Sinclair, LLC is building a mixed use development on property
located at the southwest corner of the Sedgwick/Sidney Road intersection; and
WHEREAS, the City and The Sinclair, LLC have entered into a development
agreement pursuant to which The Sinclair, LLC will construct a sanitary sewer lift station
on the South Kitsap School District property that will serve the mixed use development
project and provide additional capacity for future growth within the JPA service area; and
WHEREAS, development agreements are authorized pursuant to RCW 36.7oB.170
and POMC 16.72.o8o; and
WHEREAS, in accordance with RCW 36.7oB.200, the Port Orchard City Council
held a properly noticed public hearing on October 22, 2013 regarding the proposed
development agreement between the City and The Sinclair, LLC and by motion approved
and authorized the Mayor to sign the agreement; and
WHEREAS, RCW 36.7oB.2oo requires that development agreements be approved
by ordinance or resolution; now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON,
DO ORDAIN AS FOLLOWS:
Ordinance No.021-13
Page 2 of 2
SECTION i. The City Council hereby ratifies its approval on October 22, 2013 of the
development agreement between the City and The Sinclair, LLC and its authorization for
the Mayor to sign said agreement. A copy of the development agreement is attached to this
Ordinance as Exhibit A.
SECTION 2. If any section, sentence, clause or phrase of this ordinance should be
held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or
unconstitutionality shall not affect the validity of constitutionality of any other section,
sentence, clause or phrase of this ordinance.
SECTION -i. This ordinance shall be in full force and effect five (5) days after
posting and publication as required by law. A summary of this Ordinance maybe published
in lieu of the entire ordinance, as authorized by State Law.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor
and attested by the City Clerk in authentication of such passage this 12th day of November
2013.
Timothy C. M tthes, Mayor
ATTEST:
Brandy Rinearson, CMC, City Clerk
APPROVED AS TO FORM: Sponsored by:
Gregory A. "CitkAttorney Robert Putaansuu, Councilmember
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DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF PORT ORCHARD
AND THE SINCLAIR, LLC FOR THE
SOUTHWEST SIDNEY PLAZA DEVELOPMENT
Contract No. 083-13
THIS DEVELOPMENT AGREEMENT is made and entered into this 22°d day of
October, 2013, by and between the City of Port Orchard, a Washington municipal
corporation, hereinafter the "City," and The Sinclair, LLC, a limited liability corporation,
organized under the laws of the State of Washington, hereinafter the "Developer."
RECITALS
WHEREAS, RCW 36.70B.170(1) authorizes the execution of a development
agreement between a local government and a person 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 (RCW 36.7013.170(1)); and
WHEREAS, for the purposes of this development agreement, "development
standards" includes, but is not limited to, all of the standards listed in RCW
36.70B.170(3); and
WHEREAS, a development agreement must be consistent with the applicable
development regulations adopted by a local government planning under chapter 36.70A
RCW (RCW 36.70B.170(1)); and
WHEREAS, this Agreement by and between the City and the Developer
(hereinafter the "Development Agreement"), relates to the mixed use development
known as Southwest Sidney Plaza which is to be constructed on property located at the
southwest corner of the Sedgwick/Sidney Road intersection in Port Orchard (hereinafter
the "Subject Property"); and
WHEREAS, the following events have occurred in the processing of the
Developer's application:
a) On February 22, 2013, the City issued a Mitigated Determination of
Nonsignificance with conditions; and
Development Agreement
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b) By Hearing Examiner's decision No. CUP 037-12, dated April 4, 2013, the
City's Hearing Examiner approved a conditional use permit for the Project, a
copy of which is attached hereto; and
c) After a public hearing, the City Council authorized the Mayor to sign this
Development Agreement with the Developer.
Now, therefore, the parties hereto agree as follows:
GENERAL PROVISIONS
1. The Project. The Project is the development and use of the Subject Property,
consisting of 13.78 acres in the City of Port Orchard. The conditional use
permit/approval describes the Project as a mixed use development, including a 14,000
square foot retail building, nine 3-story apartment buildings, recreational building,
pool, and associated parking.
2. The Subject Property. The Project site is legally described in Attachment 1, attached
hereto and incorporated herein by this reference.
3. Definitions. As used in this Development Agreement, the following terms, phrases
and words shall have the meanings and be interpreted as set forth in this Section.
3.1. "Adopting Ordinance" means the Ordinance which approves this Development
Agreement, as required by RCW 36.70B.200.
3.2. "Certificate of occupancy" means either a certificate issued after inspections by
the City authorizing a person(s) in possession of property to dwell or otherwise
use a specified building or dwelling unit, or the final inspection if a formal
certificate is not issued.
3.3. "City" means the City of Port Orchard, 216 Prospect Street, Port Orchard, WA
98366.
3.4. "Council" means the duly elected legislative body governing the City of Port
Orchard.
3.5. "Design Guidelines" means the Design Guidelines, as adopted by the City and
set forth in Chapter 16.55 of the Port Orchard Municipal Code (POMC).
Development Agreement
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3.6. "Developer" means The Sinclair, LLC, its successors or assigns. Under this
Agreement, the Developer is also the Landowner.
3.7. "Director" means the City's Community Development Director.
3.8. "Effective Date" means the effective date of the Adopting Ordinance.
3.9. "Existing Land Use Regulations" means the ordinances adopted by the Port
Orchard City Council in effect on the Effective Date, including the adopting
ordinances that govern the permitted uses of land, the density and intensity of
use, and the design, improvement, construction standards and specifications
applicable to the development of the Subject Property, including but not limited
to the Comprehensive Plan, the City's Official Zoning Map and development
standards, the Design Manual, the Public Works Standards, SEPA, Concurrency
Ordinance, and all other ordinances, codes, rules and regulations of the City
establishing subdivision standards, park regulations, building standards. Existing
Land Use Regulation does not include non -land use regulations, which includes
taxes and impact fees.
3.10. "Landowner" means The Sinclair, LLC or any parry who has acquired any
portion of the Subject Property from the Landowner and who, unless otherwise
released as provided in this Agreement, shall be subject to the applicable
provisions of this Agreement.
3.11. "Project" means the anticipated development of the Subject Property, as
described in Section 1 and as provided for in all associated permits/approvals,
and all incorporated exhibits.
4. Attachments. Attachments to this Agreement are as follows:
4.1. Attachment 1 —Legal description of the Subject Property.
4.2. Attachment 2 — Sanitary Sewer Easement.
4.3. Attachment 3 — Interlocal Agreement between City of Port Orchard and South
Kitsap School District No. 402 Regarding the Sanitary Sewer Pottery Avenue
Lift Station Facility, dated July 15, 2013.
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4.3.1. In the event of a conflict between the terms of this Development
Agreement and the Interlocal Agreement between the City and South Kitsap
School District No. 402, the terms of the Interlocal Agreement shall control.
5. Parties to the Development Agreement. The parties to this Development Agreement
are the City and the Developer /Landowner.
6. Project is a Private Undertaking. It is agreed among the parties that the Project is a
private development and that the City has no interest therein except as authorized in
the exercise of its governmental functions.
7. Term of Agreement. This Agreement shall commence upon the effective date of the
Adopting Ordinance approving this Agreement, and shall continue in force for a
period of ten (10) years unless extended or terminated as provided herein. Following
the expiration of the term or extension thereof, or if sooner terminated, this
Agreement shall have no force and effect, subject however, to post -termination
obligations of the Developer or Landowner.
8. Vested Rights of Developer. During the term of this Agreement, unless sooner
terminated in accordance with the terms hereof, in developing the Subject Property
consistent with the Project described herein, Developer is assured, and the City
agrees, that the development rights, obligations, terms and conditions specified in this
Agreement, are fully vested in the Developer and may not be changed or modified by
the City, except as may be expressly permitted by, and in accordance with, the terms
and conditions of this Agreement, including the Exhibits hereto, or as expressly
consented thereto by the Developer.
9. Permitted Uses and Development Standards. The permitted uses, the density and
intensity of use, the maximum height and size of proposed buildings, provisions for
reservation and dedication of land or payment of fees in lieu of dedication for public
purposes, the construction, installation and extension of public improvements,
development guidelines and standards for development of the Subject Property shall
be those set forth in this Agreement, the permits and approvals identified herein, and
all exhibits incorporated herein.
10. Minor Modifications. Minor modifications from the approved permits or the exhibits
attached hereto may be approved in accordance with the provisions of the City's
code, and shall not require an amendment to this Agreement.
11. Further Discretionary Actions. Developer acknowledges that the Existing Land Use
Regulations contemplate the exercise of further discretionary powers by the City.
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These powers include, but are not limited to, review of additional permit applications
under SEPA. Nothing in this Agreement shall be construed to limit the authority or
the obligation of the City to hold legally required public hearings, or to limit the
discretion of the City and any of its officers or officials in complying with or applying
Existing Land Use Regulations.
12. Financing and Construction of Sewer Improvements.
12.1. Certificates of occupancy for the Project will not be issued until additional
sanitary sewer infrastructure, consisting of a new lift station and appurtenances
(collectively, the "Pottery Lift Station Facility" and individually, the "Pottery
Lift Station") and a connection to an existing force main and pump station have
been constructed and inspected and accepted by the City. The City has
determined that the appropriate location for the proposed Pottery Lift Station
Facility is on property owned by South Kitsap School District No. 402 located
at the Cedar Heights Junior High School (Cedar Heights School), 2220 Pottery
Avenue, Port Orchard, as legally described and depicted in Exhibits A, B, and
C to Attachment 2.
12.2. The School District has granted a sanitary sewer easement to the City, Kitsap
County Auditor's No. 201307150243, for the purpose of constructing,
reconstructing, installing, repairing, replacing, operating and maintaining a
sewer pump station, gravity sewer lines, and associated appurtenances, together
with right of ingress and egress thereto. A copy of said easement is attached
hereto as Attachment 2.
12.3. Developer agrees to finance and construct the sewer force main connection and
the Pottery Lift Station in accordance with the terms and conditions set forth in
this Section 12.
12.4. Developer agrees to pay all costs of design, engineering, and construction to
extend the existing gravity sewer line at the Albertson's Pump Station
westward beneath Sidney Road SW and across the Subject Property to the
northwest corner of the Subject Property at Sedgwick Road SW for future use
by Developer and/or others.
12.4.1. All construction shall be done to City standards and according to plans
approved by the City's Public Works Department and City Engineer. Any
and all costs incurred by the City in reviewing plans and inspecting
construction shall be paid for by the Owner.
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12.4.2. The Albertson's Pump Station has sufficient pump capacity and force
main capacity to receive Developer's effluent. However, minor
modifications and/or repair may be required. Developer shall provide the
City with a written assessment of the suitability of the Albertson's pump
station to receive Developer's additional effluent and agrees to make, at its
sole cost, such minor modifications or repairs as are necessary for full
functionality. The City and it's consultants agree to provide to the
Developer all available operation and maintenance records; operational
data, pump station plans, flow modeling analysis reports completed to
date; or other documentation that will allow for the written assessment of
the Albertson's pump station.
12.5. Developer shall pay all costs of designing, engineering and constructing the
Pottery Lift Station Facility. All construction shall be done to City standards
and according to plans approved by the City's Public Works Department and
City Engineer. Any and all costs incurred by the City in reviewing plans and
inspecting construction shall be paid for by the Owner.
12.6. Developer shall prepare the design documents required for the Pottery Lift
Station in accordance with the City's specifications and the following
requirements:
12.6.1. The Pottery Lift Station and the improvements within the Easement shall
be generally located as shown on Exhibits B and C to Attachment 2 and
shall be:
(i) located in the north section of the Easement approximately 40 feet
x 120 feet) so as to maximize a parking layout (as set forth below
under Section 12.7) for the benefit of the School District and
enclosed by a minimum 5 foot slatted chain link fence and
landscaped around the perimeter of the fenced Lift Station as
approved by the City in coordination with the School District; and
(ii) designed with two gated entrances that are aligned with drive
aisles in the parking lot to be constructed within the southern section
of the Easement.
12.7. Developer shall prepare and submit to the City a Parking Lot Plan (which shall
include the above -identified items under Section 12.6.1) to be approved by the
City and the School District within a reasonable period of time following
submittal of such Parking Lot Plan and which approval shall not be
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unreasonably withheld. The Parking Lot Plan shall include but not be limited to
the following specifications:
12.7.1. The Parking Lot shall be located within the Easement and shall be
approximately 120 feet x 120 feet in size as generally shown on Exhibit B
to Attachment 2.
12.7.2. The Parking Lot shall be properly graded (for stormwater runoff) and a
base course shall be placed thereon at such depth as is required by the City
in consultation with the School District in the exercise of its reasonable
discretion, inclusive of rip rap and 1/4" minus.
12.7.3. The Parking Lot will be paved with HMA pavement at such depth as is
required by the City in consultation with the School District in the exercise
of its reasonable discretion. Parking stalls shall be striped and wheel stops
installed.
12.8. Construction of the Pottery Lift Station and Parking Lot (the Work) shall begin
after the Developer receives the necessary approvals and permits from the City
and after the School District has approved the Parking Lot Plan. The School
District has requested that the Work be performed during those periods when
students are not present at Cedar Heights School. However, if this is not
feasible due to the Developer's development schedule, then the Work shall be
performed at such other times as agreed upon between the School District and
the Developer in the exercise of the School District's reasonable discretion.
Prior to commencement of the Work, the Developer shall provide the District
with not less than fourteen (14) days' advance notice in accordance with
Section 24 below and the Developer shall make its bests efforts to coordinate a
pre -construction meeting with the School District and the City. The Work,
including the Parking Lot, shall be guaranteed by the Developer for the
Maintenance Period required under the City's development regulations.
12.9. Developer agrees to turn over and dedicate the new sewer force main and
Pottery Lift Station Facility to the City, at no cost, upon the completion of
construction and approval and acceptance of the same by the City. As a
prerequisite to such turn over and acceptance, Developer will furnish to the City
the following:
12.9.1. As built plans or drawings in a form acceptable to the City Public Works
Department and City Engineer.
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12.9.2. Any necessary easements, permits or licenses for the continued operation,
maintenance, repair or reconstruction of such facilities by the City, in a
form approved by the City Attorney.
12.9.3. A bill of sale in a form approved by the City Attorney; and
12.9.4. A bond or other suitable surety in a form approved by the City Attorney
and in an amount approved by the City Engineer, ensuring that the
facilities will remain free from defects in workmanship and materials for a
period of two (2) years.
12.9.5. As prescribed by POMC 13.04.040, Developer shall be entitled to a credit
against the sewer capital facilities charge, which is $6,192 per equivalent
residential unit (ERU). The amount of the credit shall equal the design,
engineering, and construction cost of the sewer facilities that Developer
will construct and dedicate to the City; provided, however, the amount of
the credit shall not exceed the amount of the sewer capital facilities charge
for the Project to which the credit is being applied. Notwithstanding the
foregoing, Developer shall be responsible for payment of all applicable
permit and inspection fees, as provided by Code.
12.9.6. Should the costs of the improvements required under this agreement
(Albertson's Pump Station upgrades, if required, and the design,
engineering and construction of the Pottery Lift Station) be greater than
the amount of credit against sewer capital facilities charge the Developer
is entitled to under POMC 13.04.040, nothing in this Agreement shall
preclude the Developer from setting up a latecomers agreement for the
amount exceeding said credit. Provided, however, the property owned by
South Kitsap School District No. 402 at 2220 Pottery Avenue, Port
Orchard, Kitsap County parcel no. 032301-1-011-2000, and commonly
referred to as Cedar Heights Junior High School, shall be exempt from any
latecomer's agreement established by the Developer to recover costs
incurred under this Development Agreement.
13. Existing Land Use Fees and Impact Fees.
13.1. Land use fees adopted by the City by ordinance as of the Effective Date of this
Agreement may be increased by the City from time to time, and applicable to
permits and approvals for the Subject Property, as long as such fees apply to
similar applications and projects in the City.
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13.2. All impact fees shall be paid as set forth in the approved permit or approval, or
as addressed in Chapter 16.70 of the Port Orchard Municipal Code, as now or
hereafter amended.
14. Phasing of Development. The parties acknowledge that the most efficient and
economic development of the Subject Property depends upon numerous factors, such
as market orientation and demand, interest rates, competition, and similar factors, and
that generally it will be most economically beneficial to the ultimate purchasers of the
Subject Property to have the rate of development determined by the Developer.
However, the parties also acknowledge that because the Development will be phased,
certain amenities associated with the Project must be available to all phases of the
Project, in order to address health, safety, and welfare of the residents. Therefore, the
parties agree that the improvements associated with the Project shall be constructed
according to the conditions set forth in the Hearing Examiner's decision No. CUP
037-12, dated April 4, 2013.
15. Dedication of Public Lands. Except as otherwise provided herein, the Developer shall
dedicate all public lands required in the permits/approvals within ninety (90) days of
the Effective Date of this Agreement.
16. Default.
16.1. Subject to extensions of time by mutual consent in writing, failure or delay by
either party or Landowner not released from this Agreement, to perform any
term or provision of this Agreement shall constitute a default. In the event of
alleged default or breach of any terms or conditions of this Agreement, the
party alleging such default or breach shall give the other party or Landowner
not less than thirty (30) days' notice in writing, specifying the nature of the
alleged default and the manner in which said default may be cured. During this
thirty (30) day period, the party or Landowner charged shall not be considered
in default for purposes of termination or institution of legal proceedings.
16.2. 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 or Landowner to this Agreement may, at its option, institute
legal proceedings pursuant to this Agreement. In addition, the City may decide
to take any action to enforce the City's Codes, and to obtain penalties and costs
as provided in the Port Orchard Municipal Code for violations of this
Development Agreement and the Code.
17. Termination. This Agreement shall expire and/or terminate as provided below:
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17.1. This Agreement shall expire and be of no further force and effect if the
development contemplated in this Agreement and all of the permits and/or
approvals issued by the City for such development are not substantially
underway prior to expiration of such permits and/or approvals. Nothing in this
Agreement shall extend the expiration date of any permit or approval issued by
the City for any development.
17.2. This Agreement shall expire and be of no further force and effect if the
Developer does not construct the Project as contemplated by the permits and
approvals identified in this Agreement, and submits applications for
development of the Property that are inconsistent with such permits and
approvals.
17.3. This Agreement shall terminate upon the expiration of the term identified in
Section 7 or when the Subject Property has been fully developed, which ever
first occurs, and all of the Developer's obligations in connection therewith are
satisfied as determined by the City. Upon termination of this Agreement, the
City shall record a notice of such termination in a form satisfactory to the City
Attorney that the Agreement has been terminated. This Agreement shall
automatically terminate and be of no further force and effect as to any single-
family residence, any other residential dwelling unit or any nonresidential
building and the lot or parcel upon which such residence or building is located,
when it has been approved by the City for occupancy.
18. Effect upon Termination of Developer's Obligations. Termination of this Agreement
as to the Developer of the Subject Property or any portion thereof shall not affect any
of the Developer's obligations to comply with the City Comprehensive Plan and the
terms and conditions or any applicable zoning code(s) or subdivision map or other
land use entitlements approved with respect to the Subject Property, any other
conditions of any other development specified in the Agreement to continue after the
termination of this Agreement, or obligations to pay assessments, liens, fees or taxes.
19. Effect upon Termination on City. Upon any termination of this Agreement as to the
Developer of the Subject Property, or any portion thereof, the entitlements, conditions
of development, limitations on fees and all other terms and conditions of this
Agreement shall no longer be vested hereby with respect to the property affected by
such termination (provided that vesting of such entitlements, conditions or fees may
then be established for such property pursuant to then existing planning and zoning
laws).
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20. Assignment and Assumption. The Developer shall have the right to sell, assign or
transfer this Agreement with all their rights, title and interests therein to any person,
firm, or corporation at any time during the term of this Agreement. Developer shall
provide the City with written notice of any intent to sell, assign, or transfer all or a
portion of the Subject Property, at least 30 days in advance of such action.
21. Covenants Running with the Land. The conditions and covenants set forth in this
Agreement and incorporated herein by the Exhibits shall run with the land and the
benefits and burdens shall bind and inure to the benefit of the parties. The Developer,
Landowner and every purchaser, assignee or transferee of an interest in the Subject
Property, or any portion thereof, shall be obligated and bound by the terms and
conditions of this Agreement, and shall be the beneficiary thereof and a party thereto,
but only with respect to the Subject Property, or such portion thereof, sold, assigned
or transferred to it. Any such purchaser, assignee or transferee shall observe and fully
perform all of the duties and obligations of a Developer contained in this Agreement,
as such duties and obligations pertain to the portion of the Subject Property sold,
assigned or transferred to it.
22. Amendment to Agreement; Effect of Agreement on Future Actions.
22.1. This Agreement may be amended by mutual consent of all of the parties,
provided that any such amendment shall follow the process established by law
for the adoption of a development agreement (see, RCW 36.70B.200).
22.2. Nothing in this Agreement shall prevent the City Council from making any
amendment to the Comprehensive Plan, Zoning Code, Official Zoning Map or
development regulations affecting the Subject Property during the term of this
Agreement, as the City Council may deem necessary to the extent required by a
serious threat to public health and safety.
22.3. Nothing in this Agreement shall prevent the City Council from making any
amendments of any type to the Comprehensive Plan, Zoning Code, Official
Zoning Map or development regulations relating to the Subject Property after
the termination or expiration of the term of this Agreement.
23. Releases. Developer, and any subsequent Landowner, may free itself from further
obligations relating to the sold, assigned, or transferred property, provided that the
buyer, assignee or transferee expressly assumes the obligations under this Agreement
as provided herein.
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24. Notices. Notices, demands, correspondence to the City, South Kitsap School District
No. 402, and Developer 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 the City Engineer. Notices to subsequent Landowners shall be
required to be given by the City only for those Landowners who have given the City
written notice of their address for such notice. The parties hereto may, from time to
time, advise the other of new addresses for such notices, demands or correspondence.
City: City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Telephone: 3 60-866-4991
Facsimile: 360-876-4980
Email: mdorsey@cityofportorchard.us
Attention: City Engineer
Developer: Thair Jorgenson, P.E.
Rush Design, Inc./The Rush Companies
6622 Wollochet Drive NW
Gig Harbor, WA 98335
Office: 253-858-8204 ext. 248
Facsimile: 253-85 8-3188
tjorgenson@therushcompanies.com
South Kitsap School
School District No. 402: Tom O'Brien
South Kitsap School District No. 402
2689 Hoover Avenue S.E.
Port Orchard, WA 98366
Tel: (360) 874-6001
Fax: (360) 874-6230
Email: obrien@skitsap.wednet.edu
Andrew Cain, Principal of
Cedar Heights Junior High School
2220 Pottery Avenue
Port Orchard, WA 98366
Tel: (360) 874-6020
Fax: (360) 874-6420
Email: cain@skitsap.wednet.edu
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25. Reimbursement for Agreement Expenses of the City. Developer agrees to reimburse
the City for actual expenses incurred over and above fees paid by Developer as an
applicant incurred by City directly relating to this Agreement, including recording
fees, publishing fees, and reasonable staff and attorney costs not otherwise included
within application fees. This Agreement shall not take effect until the fees provided
for in this section, as well as any processing fees owed to the City for the Project, are
paid to the City. Upon payment of all expenses, the Developer may request written
acknowledgement of all fees. Such payment of all fees shall be paid, at the latest,
within thirty (30) days from the City's presentation of a written statement of charges
to the Developer.
26. Applicable Law and Attorney's Fees. This Agreement shall be construed and
enforced in accordance with the laws of the State of Washington. If litigation is
initiated to enforce the terms of this Agreement, the prevailing party shall be entitled
to recover its reasonable attorneys' fees and costs from the non -prevailing party.
Venue for any action shall lie in Kitsap County Superior Court or the U.S. District
Court for Western Washington.
27. Third Party Legal Challenges. In the event any legal action or special proceeding is
commenced by any person or entity other than a party to challenge this Agreement or
any provision herein, the City may elect to tender the defense of such lawsuit or
individual claims in the lawsuit to Developer. In such event, Developer shall hold the
City harmless from and defend the City from all costs and expenses incurred in the
defense of such lawsuit or individual claims in the lawsuit, including but not limited
to, attorneys' fees and expenses of litigation, and damages awarded to the prevailing
party or parties in such litigation. The Developer shall not settle any lawsuit without
the consent of the City. The City shall act in good faith and shall not unreasonably
withhold consent to settle.
28. 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.
29. Construction. 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. Each
party has been represented by legal counsel and accordingly waives the general rule
of construction that an agreement shall be construed against its drafter.
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30. Severability. If any phrase, provision or section of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, or if any provision of
this Agreement is rendered invalid or unenforceable according to the terms of any
statute of the State of Washington which became effective after the effective date of
the ordinance adopting this Development Agreement, and either party in good faith
determines that such provision or provisions are material to its entering into this
Agreement, that party may elect to terminate this Agreement as to all of its
obligations remaining unperformed.
IN WITNESS WHEREOF, the parties hereto have caused this Development
Agreement to be executed as of the dates set forth below:
CITY OF PORT ORCHARD:
I0
Timothy C. Matthes
Its: Mayor
Date:
ATTEST:
By:
Brandy Rinearson, City Clerk
APPROVED AS TO FORM:
Gregory A. Jacoby, City Attorney
Development Agreement
Re: Southwest Sidney Plaza
Page 14 of 15
THE SINCLAIR, LLC
By:
Print Name: Gordon Rush
Its: Managing Member
Date:
STATE OF WASHINGTON )
ss.
COUNTY OF KITSAP )
On this day personally appeared before me Timothy C. Matthes to me known to be the Mayor of
the City of Port Orchard, the municipal corporation described in and that executed the within
and foregoing instrument, and acknowledged that he signed said instrument to be the free and
voluntary act and deed of said municipal corporation, for the uses and purposes therein
mentioned, and on oath stated that he was authorized to execute said instrument on behalf of
said municipal corporation.
GIVEN under my hand and official seal this day of 2013.
NOTARY PUBLIC in and for the State
of Washington, residing at
Print Name:
My appointment expires:
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
On this day personally appeared before me Gordon Rush to me known to be the Managing
Member of The Sinclair, LLC, the corporation described in and that executed the within and
foregoing instrument, and acknowledged that he signed said instrument to be the free and
voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on
oath stated that he was authorized to execute said instrument on behalf of said corporation.
GIVEN under my hand and official seal this day of 2013.
NOTARY PUBLIC in and for the State
of Washington, residing at
Print Name:
My appointment expires:
Development Agreement
Re: Southwest Sidney Plaza
Page 15 of 15
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular
Council meeting held November 12, 2013.
ORDINANCE NO. 021-13
AN ORDINANCE OF THE CITY OF PORT ORCHARD,
WASHINGTON, RATIFYING THE CITY COUNCIL'S APPROVAL OF
AND AUTHORIZATION FOR THE MAYOR TO EXECUTE A
DEVELOPMENT AGREEMENT WITH THE SINCLAIR, LLC
Copies of Ordinance No. 021-13 are available for review at the office of the City Clerk of the City of Port
Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any
interested person without charge. Thirty days after publication, copies of Ordinance No. 021-13 will be
provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Publish: Port Orchard Independent
November 22, 2013