024-11 - Ordinance - 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.
ATTEST:
Patricia J. lorkpadtr?ck, MMC, City Clerk
QOR1 0R� ••.,,
VORA �O
. N
. *A
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. Suns. 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 3 5.13, 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 loth 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 loth 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 10th 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: 25 3 -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 36.70B.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
I
tricia J. Kir atric MC, City Clerk
STATE OF WASHINGTON
ss.
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 day of " � 20 .
OTARY PUBLIC in as fo t e State o
. 4
Washington, residing at
My appointment expires: ` - �•
WAL-MART REAL ESTATE BUSINESS TRUST
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
....._
012301-2-104-2008 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*53150
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.
close thrs window
Exhibit A-2
Contract No. 058-11
Tax Description
Tax Account No. Process No. Situs Address
.
012301-2-149-2005 £2286052 .....
497 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.
Y
C
O
O
w
Q
T
O
V
R
(D
e.
9
N
3
un
m
N
T
cJ v
rD rD
a o l
�e
A
N
IMF
A
9 ®.
0
ro
c �
� o
o
O. N
A
0
ro
V
w m
Wy+
Rp
'O
w
m
GO R �
n
to
O.
x
x .o
d
00
a
,�
n
m
O
fA
6
�D .G
'a7
r N
O
CO O-
O
O
a
O
y
�ag
1
v
CDo
G
A
= um cq
,
C
!D Q.
M m.
yf.
D
is•-D•
t\�p.Vm ua.o�ctia -a wr m mu - • ao.
a� !adQ r IS
l.pti
(Poll (1) j
er
VIDEO_,
d q� &
!p A ® + CD
WWI 4
q 12 IN
, �- >n..a y FYI
tin
ID IA
all
�j Q i1C.72':1
6 'SE
r► (�J { , • • , � Rgyg
all.-
-,�
R a 1 6 'fix; 14 ap N
p
all
o ` Ti3iJS ! a! •a rrf7,`Tr'i
ash ; _ ^ _
�w 1:
�gpyB ,,�_ i 1= r-=-1 i - i:� 1 ® ++: .+t}r • r'a',R �: lx;, 1 r
�' R R EE 1 � t r 1 — �c?• '.+i � L� j
IL
1
L
_ W mNG I HTS.IDIg1i
-04
IS a..a
r 2 F F F P P P B r• " r r r+ r Z.
m ®®®e ®®®®®® ®®d®0000ggoaggl� 11 o
in.ape 1 g g i gg e� �g$ Q p A q i OB ®g � "@ 1" Ag !s R " a � s �! E 9'iial �gg�
�
� . � � � � aEe e��aar r s � � � �! � � � "� � 9 � il�� � -�� � ��� l �:�a �� i9 !! �a. a�•6;� Ra wic�
gill C8°B Rx �"�E � �gA 'A3`�E d °�A��!�"'j �Gg l�� ��R���►d 6
itO g9 �ag1s9. �. �a� a gYg���� �gq swf�q�� lii .�EtlRS°qag�•A�ppp�
�q �
13
73!A"l oil 1
Jill
so
r8?
�- R 9p 1 I pp eH G P
08
cr
rA
ra
tZ3
F
W
01
ims =
:: sp
=r M
m
2
ct AL
@ 4,
cc
m
CL
-
Q.
m
m
CL
UM3
to
A
m
m
m
l'