083-13 - The Sinclair, LLC - ContractDEVELOPMENT 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 36.70B.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
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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).
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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 party 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 3/4" 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
parry 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: 360-866-4991
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: 253-858-3188
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
Development Agreement
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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.
Development Agreement
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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:
By:_'� l
Timothy/C. Matthes
Its: Mayor
Date: ) 2 "
AT
T
By:
Brandy Rinearson, City Clerk
APPROVED AS TO FORM:
By:
Gregory A. Qcoy, Cit A orney
Development Agreement
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THE SINCLAIR, LLC
By: i
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 kbx z,�013.
\NE Flo
.0
NOTARY Ni
PUBLIC
FIWAS\ N
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
)TARY PUBLIC in and
Washington, residing at
Print Name:�n�- e
My appointment expires:
State
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 /y0✓C7„013.
•��/'' .,� `� NOT Y PUBLIC in and for the State
�. NOTARY of Washington, residing at 47,y 2
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,Print 5 �BLICIJ ,�
�M�17�� .. % My appointment expires:
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Development Agreement
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TAX PARCEL 102301-4-068-2009 (PACIFIC NORTHWEST TITLE - ORDER NO. 32083316)
RESULTANT PARCEL A OF BOUNDARY LINE ADJUSTMENT RECORDED UNDER
AUDITOR'S FILE NO. 200206100068, DESCRIBED AS FOLLOWS:
THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER;
THENCE SOUTH 183.05 FEET;
THENCE WEST 329.91 FEET;
THENCE NORTH 183.05 FEET;
THENCE EAST TO THE POINT OF BEGINNING;
EXCEPT SIDNEY ROAD ON THE EAST THEREOF;
EXCEPT THAT PORTION CONVEYED TO KITSAP COUNTY FOR SEDGWICK ROAD
UNDER AUDITOR'S FILE NOS. 9011300268 AND 9110070046.
TAX PARCEL 102301-4-059-2008 (PACIFIC NORTHWEST TITLE - ORDER NO. 32083317)
RESULTANT PARCEL B OF BOUNDARY LINE ADJUSTMENT RECORDED UNDER
AUDITOR'S FILE NO.200206100068, DESCRIBED AS FOLLOWS:
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER;
THENCE SOUTH 183.05 FEET TO THE TRUE POINT OF BEGINNING;
THENCE WEST 329.91 FEET;
THENCE NORTH 183.05 FEET TO THE NORTH LINE OF SAID NORTHEAST QUARTER OF
THE SOUTHEAST QUARTER;
THENCE WEST ALONG SAID NORTH LINE TO THE NORTHWEST CORNER THEREOF;
THENCE SOUTH ALONG THE WEST LINE OF SAID NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER 375 FEET;
THENCE EAST TO THE EAST LINE OF SAID NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER;
THENCE NORTH 191.95 FEET TO THE TRUE POINT OF BEGINNING;
EXCEPT SIDNEY ROAD ON THE EAST THEREOF; AND EXCEPT THAT PORTION
CONVEYED TO KITSAP COUNTY FOR SEDGWICK ROAD UNDER AUDITOR'S FILE NOS.
9011300268 AND 9110070046;
AND EXCEPT ANY PORTION LYING NORTHWESTERLY AND WESTERLY OF SEDGWICK
ROAD.
TAX PARCEL 102301.4-019-2007 (PACIFIC NORTHWEST TITLE - ORDER NO. 32084136)
PARCEL 1:
THAT PORTION, IF ANY, LYING SOUTH OF THE NORTH 375 FEET OF THE NORTHEAST
QUARTER OF THE SOUTHEAST QUARTER, SECTION 10, TOWNSHIP 23 NORTH, RANGE
1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON AND NORTH OF THAT TRACT
CONVEYED TO TALMO, INC. BY DEED RECORDED UNDER AUDITOR'S FILE
NO.9509080204, WHICH IS DESCRIBED AS FOLLOWS:
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS:
THE EAST 457 FEET OF THE NORTH 215 FEET OF THE FOLLOWING DESCRIBED
PROPERTY:
THE NORTH 545 FEET OF THE SOUTH 945 FEET OF THE NORTHEAST QUARTER OF
THE SOUTHEAST QUARTER OF SAID SECTION 10;
EXCEPT COUNTY ROAD.
PARCEL 2:
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER,
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS;
THE EAST 457 FEET OF THE NORTH 215 FEET OF THE FOLLOWING DESCRIBED
PROPERTY: THE NORTH 545 FEET OF THE SOUTH 945 FEET OF THE NORTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 10;
EXCEPT COUNTY ROAD.
TAX PARCEL 102301-4-024-2000 (PACIFIC NORTHWEST TITLE - ORDER NO. 32083315)
PARCEL 1:
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER,
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER;
THENCE SOUTH ALONG THE EAST LINE THEREOF 375.00 FEET;
THENCE WEST 457.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUE WEST 203.00 FEET;
THENCE SOUTH 215.00 FEET;
THENCE EAST 203 FEET;
THENCE NORTH 215.00 FEET TO THE TRUE POINT OF BEGINNING;
EXCEPT THAT PORTION THEREOF, IF ANY, LYING WITHIN THE SOUTH 730 FEET OF
SAID NORTHEAST QUARTER OF THE SOUTHEAST QUARTER.
PARCEL 2:
THAT PORTION, IF ANY, LYING SOUTHERLY OF THAT TRACT CONVEYED TO MAYO BY
DEED RECORDED UNDER AUDITOR'S FILE NO. 1090631, WHICH IS DESCRIBED AS
FOLLOWS:
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID NORTHEAST QUARTER OF THE
SOUTHEST QUARTER;
THE SOUTH ALONG THE EAST LINE THEREOF 375 FEET;
THENCE WEST 457.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUE WEST 203.00 FEET;
THENCE SOUTH 215.00 FEET;
THENCE EAST 203.00 FEET;
THENCE NORTH 215.00 FEET TO THE TRUE POINT OF BEGINNING; AND NORTH OF THE
SOUTH 730.00 FEET OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER,
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., KITSAP COUNTY,
WASHINGTON.
PARCEL 3:
AN EASEMENT FOR INGRESS, EGRESS AND UTILITIES ACROSS THE NORTH 20 FEET
OF THE SOUTH 750.00 FEET OF THE EAST 660 FEET OF THE NORTHEAST QUARTER
OF THE SOUTHEAST QUARTER;
EXCEPT THE WEST 203 FEET THEREOF, ALL IN SECTION 10, TOWNSHIP 23 NORTH,
RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON.
TAX PARCEL 102301-4-018-2008 (PACIFIC NORTHWEST TITLE - ORDER NO. 32083313)
PARCEL A:
THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER,
SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY,
WASHINGTON, DESCRIBED AS FOLLOWS;
BEGINNING AT THE SOUTHEAST CORNER OF SAID NORTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 10, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M.;
THENCE NORTH 400.00 FEET TO THE POINT OF BEGINNING;
THENCE NORTH 330.00 FEET;
THENCE WEST 660.00 FEET;
THENCE SOUTH 330.00 FEET;
THENCE EAST 660 FEET TO THE POINT OF BEGINNING;
EXCEPT COUNTY ROAD.
PARCEL B:
AN EASEMENT FOR INGRESS, EGRESS AND UNDERGROUND UTILITIES AS DISCLOSED
BY DOCUMENT RECORDED FEBRUARY 28, 2005 UNDER AUDITOR'S FILE NUMBER
200502280229.
NOTE: TAX PARCELS 102301-4-019-2007, 102301-4-024-2000 AND 102301-4-018-2008 ARE
SUBJECT TO AND/OR TOGETHER WITH A 20' EASEMENT FOR INGRESS, EGRESS,
UNDERGROUND UTILITIES AND MAINTENANCE PER AUDITOR'S FILE NUMBER
200502280229.
WHEN RECORDED RETURN TO:
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
PORT ORCHARD CITY OF 2013071M43
EamMe►t Reo Fee: ss MAD
0711812M 02:02 M Page. E of 20
MaLteriiua N,M1111i 151n1111i
SANITARY SEWER EASEMENT
404L -U4ft- de.a j Old ",&ftea t-
Grantor: South ramp School District No. 402
Grantee: City of Port Orchard
Legal Description: Ptu NE4 NE4 and SE NE4 S3 T23N RiE
Complete legal description on page 7 of document
Assessor's Parcel No.: Portoon 032301-1-0112000
ETAS EXEMPT JUL 15 VA
South Kitmp School District No. 402, a municipal corporation, Grantor, for and in
consideration of certain sanitary sewer improvements, donates, conveys and grants to City
of Port Orchard, a municipal corporation, its successors and assigns, Grantee, a perpetual
non-exclusive easement over, under,1% along, across and upon the following described real
property, situated in the County of Krtsep, State of Washington (the "Easement'):
LEGAL DESCRIP'i'ION ATTACHED HERETO AS EXHIBIT A
AND INCORPORATED HEREIN BY THIS REFERENCE.
(The "Easement Area")
Portion APN 032301-1-0112000
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 without prior institution of any suit or
proceedings of law and without incurring any legal obligations or liability therefor.
Sanitary Sewer Easement
Page 1 of 6
This Sanitary Sewer Easement, as depicted on Exhibits B and C attached hereto and
incorporated herein by this reference, is granted subject to the following torms and
conditions:
1. Grantor's Use of Easement. Grantor shall retain the right to use the surface and
subsurface of the Easement as long as such use does not unreasonably interfere with
the rights granted to the Grantee herein. Except as otherwise agreed by Grantor and
Grantee, Grantor shall not, however, have the right to:
(a) Erect or malnWn any buildings or structures within the Easement except for
wdgpound utility structures;
(b) Plant trees, shrubs or vegetation having deep mot patterns within those portions
of the Easement that could cam damage to or interfere with the utilities to be
placed within the Easement by the Grantee; or
(c) Develop, landscape or beautify the Easement in any way which would
unreasonably increase the costs to the Grantee of constmctmg or maintaining
the sanitary sewer improvements therein.
2. Permits Grantee shall be required to obtain all necessary approvals and permits
from such governmental entities with jurisdiction for the construction, installation,
and any repairs of the sanitary sewer improvements within the Easement.
3. Maintenance and Repair
3.1 Grantee, at Grantee's sole expense, shall be responsible at all times for
maintenance and repair of the sanitary sewer improvements located within the
Easement., including restoration of any portion of the Easement Area to its then
condition prior to such maintenance or repair activity by Grantee.
3.2 In the event that Grantee's activities or use of that portion of the Easement
outside of the location of the sanitary sewer improvements causes the need for a
repair of the Easement Arco, Grantee shall be solely responsible, including all
costs therein, for repair of the Easement Area caused by Grantee's activities or
use of the Easement Area.
33 In the event that Grantee's sanitary sewer improvements within the Easement
create or cause an unreasonably objectionable odor (the "Odor Issue'), Grantor
shall notify Grantee of such Odor Issue. Grantee, at Grantee's sole expense,
shall take such reasonable measures to correct soh Odor Issue to the satisfaction
of Grantor, in the exercise of its reasonable discretion.
Sanitary Sewer Basement
Page 2 of 6
4. Indeannification. Grantee shall indemnify, defend and hold Grantor harmless from
any claims, demands, losses, damages, expenses, and costs, including aftorney's fees
and costs, arising from or related to GradWs use of or activities within the
Easement, including access to the Easement granted hemunder, including but not
limited to the discharge by Cnante% its successors, assigns, invitees, and licensees of
any hazardous materials within the Easement in violation of any applicable federal,
state or local statutes, ordinmaces, rules and regulations. Grantor shall indemnify,
defend and hold Gmantee harmless from any claims, demands, losses, damages,
expenses, and costs, including attorney's fees and costs, arising from or related to
Grantor's use of or activities within the Easement.
5. Miscellsaeous.
5.1 All notices provided for herein may be telecopied (with machine verification of
rerceiptj sent by Federal Expose or other overnight courier service or delivered
or mailed registered or certified mail, return receipt requested. If a nodoe is
mailed, it shall be considered deliveredthree (3) daya after deposit in such mail.
If a notice is sent via telecopy, it shall be deemed received upon receipt of
verification of transmission. If a notice is sent via overnight courier, it shall be
dmnW received upon the next business day. The Wdrenses to be used in
connection with such correspondealce and notices are the following, or such
other address as a party shall from time to time direct:
Grantee: City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Telephone: 3604 664991
Facsimile: 360-976-4980
Attention: Director of Public Works
Grantor. South Kitsap School District No. 402
2689 Hoover Avenue SY.
Port Orchard, WA 98366
Telephone: 360-8747000
Facsimile: 360-876-7675
Attention: SupexW ndent
Sanitary Sewer Easement
Page 3 of 6
5.2 This Easement shall be construed and enforced in accordance with the laws of
the State of Washington.
53 This Easement shall not be construed more favorably to one party over another,
notwithstanding the fact one party, or its attorney, may have been more
responsible for the preparation of the docrmhent.
5.4 If any lawsuit or arbitration, as may be agreed upon between the parties, arises
in connection with or performance under this Easement, the substantially
prevailing party therein shall be entitled to recover from the losing party the
substantially prevailing patty's costs and expanses, including reasonable
attorneys' flees, incurred in connection therewith, in preparation therefor and on
appeal therefrom, inchding those in any bankruptcy proceeding, which
amounts shall be included in any,judgment entered therein.
5.5 This Easement constitutes the entire agreement between the parties and no
modification, amendment, addition to or changes to this agreement shall be
valid or enforceable unless in writing and signed by all parties.
5.6 The Easement shall be a covenant running with the land and this Easement (1)
shall burden the Easement Area and (i) shaA be binding upon the successors
and assigns of Grantor and Grantee.
IN WITNESS WHMEOF, this Sanitary Sewer Easement is executed on the date and year
set forth below.
GRANTEE:
CITY OF PORT ORCHARD, a Washington
municipal corporation
RK 9 R71.&iTm
1:
IQ
GRANTOR:
SOUTH KITSAP SCHOOL DISTRICT
NO. 402, a Washington municipal
corporation
By:
Dr. Beverly he ey
Its: Superintendent
�/ i ba
Sanitary Sewer Easement
Page 4 of 6
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.
\\11111111111���1
OTARY MLIC in for the State of
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ft"OP ti = Pant Name:
N► j°VBUC My appointment exprres:
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.ARIAGtO���r
Sanitary Sewer Easement
Page 5 of 6
STATE OF WASHINGTON )
) ss.
County of KITSAP )
On this day personally appeared before me Dr. Beverly Cheney to me known to be the
SU I LintendeLd of South Kitsap School District No. 402, the municipal corporation
described in and that executed the within and foregoing instrument, and aclmowledged
that she 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 she was authorized to execute said instrument on behalf of said municipal
corporation.
GIVEN under my hand and official seal this2 day of �1� jg2013.
NdW Pd& 'VOTARY PUBLIC in and for the Stabo of
ow of Widitpm Washington
1ELL oul� ! PrintNameOy 1 G 11 Di dya� U d e
My Mira iib 7. �Nts My appointment expires: die 1,7.016
WIN
Sanitary Sewer Easement
Page 6 of 6
M1B1T
(POTTERY AVENUE SANITARY SEWER PUMP STAnaN EASEMENT)
THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 3, TOWNSHIP 23 NORTH, RANGE 1 EAST, W.M., IN
KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOT.LOM
BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION $;
THENCE SOUTH V11W WEST ALONG THE EAST UNE THEREOF AND THE
RIGHT-OF4VAY CENTERLINE OF POTI E W AVENUE OVA FEET,
THENCE NORTH W49OW WEST 40.W FEET TO THE WESTERLY RIGHT-OF-
WAY MARGIN OF POTMW AVENUE AND THE TRUE PONT OF BEC 011118;
THENCE CONTINUING NORTH W4900* WEST 180.00 FEET;
THENCE SOUTH 03011/57 WEST PARALLEL WITH SAID WESTERLY MARGIN
120.00 FEET;
THENCE CONTINUING SOUTH W46W WEST 180.00 FEET TO ' SAID
WESTERLY MARGIN;
THENCE NORTH S°71'8S" EAST ALONG SAID WESTERLY MARGIN TO THE
TRUE p01>nIT OF SEGINI10NG.
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9
INTERLOCAL AGREEMENT
Between
The City Of Port Orchard And
South Kitsap School District No. 402
Regarding the Sanitary Sewer Pottery Avenue Lift Station Facility
This AGREEIWEM is made and entered into this J-5 day of July 2013 by and
between SOUTH KLTSAP SCHOOL DISTRICT NO.402, a municipal corporation (the
"School District'j and the CITY OF PORT ORCHARD, a municipal corporation (the
-MMVXER=n JUL 15 M3
L
WHEREAS, the Intedocal Cooperation Act, Chapter 39.34 RCW authorizes the
City and the School District to enter into an agreement for cooperative action for the
benefit of the community and the School District; and
WHEREAS, proposed future residential and commercial development within the
City's Sidney/Sedgwick Sanitary Sewer Service Area requires the development of certain
additional sanitary sewer infrastructure, including a lift station and appurtenances, force
main, and gravity line (collectively, the `Pottery Lift Station Facility" or the lift station
and appurtenances, individually, as the "Pottery Lift Station"); and
WHEREAS, the City has determined that the appropriate location for the
proposed Pottery Lift Station Facility to serve the needs of the City is the School
District's Cedar Heights Junior High School property located at 2220 Pottery Avenue,
Port Orchard, WA ("Cedar Heights School" or "Cedar Heights School Property"); and
WHEREAS, the Cedar Heights School Property contains a vacant and unused
portion of land that the City has determined is a suitable and convenient location for the
future Pottery Lift Station Facility; and
WHEREAS, the Cedar Heights School's sanitary facilities currently discharge
into a gravity line owned and operated by the City; and
W118REAS, the School District's Capital Facilities Plan provides for replacement
of the existing Cedar Heights School in the future; and
WHMIEAS, the School District is willing to cooperate with the City and make
land available at the Cedar Heights School Property for the City's proposed Pottery Lift
Station Facility to benefit the community and the School District's future needs under
certain terms and conditions as set forth herein; and
lnterlmd Agreement w Lift Station Facility
Page 1 of 10
06-11-13
WHEREAS, the City and the School District desire to enter into this Agreement
in order to set forth their respective rights and responsibilities in regard to the location,
design, and use of the proposed Pottery Lift Station Facility.
II. AGREEMENT
NOW, TfMMORE, the parties agree as follows:
1. use. The purpose of this Agreement is to establish the terms and conditions for
the School District's grant of an Easement for development of the Pottery Lift Station
Facility and to set forth the patties' respective rights and responsibilities in regard to
construction of the proposed Pottery Lift Station Facility on the Cedar Heights School
Property under a certain Easement to be conveyed by the School District to the City
as more particularly described in Section 2 below.
2. (Grant of Easement. The School District, as Grantor, shall execute a Sanitary Sewer
Easement in favor of the City, as Grantee, and its successors or assigns, in the form
attached hereto as Attachment 1 and incorporated by this reference (hereinafter
referred to as the "Pottery Lift Station Facility Easement" or "Easement").
2.1. The Pottery Lift Station Facility Easement is approximately 160 feet x 120 feet in
size. The legal description for and illustrations of the Easement are attached to
Attachment 1 as Exhibits A. B, and C, respeWvvely.
3. Future improvements m m Easement. The parties agree that future improvements
within the Easement will occur in phases.
3.1. Phase 1: "Phase 1 Work" shall commence at the conclusion of the 2012 2013
school year and shall commence no earlier than June 14 and shall finish no later
than August 30, 2013; provided the City may request a thirty (30) day extension
to complete the Phase I Work, approval of which shall not be unreasonably
withheld by the School District, During the Phase 1 Work, the City shall:
3.1.1 install and cap a 15" gravity sewer line and a 12" force main in the
approximate locations depicted in Exhibit B to Attachment 1; and
3.1.2 grade and refresh in a commercially reasonable manner the existing gravel
parking area approximately 120 feet x 120 feet in the area depicted on Exhibit B
to Attachment 1.
latedocat Agreement re Lift Station Facility
Page 2 of 10
06-11.13
All work shall be done pursuant to a temporary construction easement granted by
the School District to the City and at no cost to the School District and in a form
acceptable to the attorneys for the City and the School District.
31. Phase 2: Phase 2 shall not commence until such time as construction of the
Pottery Lift Station is required as a condition of approval by the City of a land
use development application submitted for residential or commercial
development within the SidneylSedgwiek Sanitary Sewer Service Area, or such
Developer's Agreement (or such other contractual obligation) as may be
approved by the City Council. For purposes of this agreement, the applicant of
such development shall hereinafter be referred to as the "Developer".
Phase 2 shall include the following "Design Elements and Specifications" to be
completed by the Developer and shall be written conditions of approval imposed
by the City upon the Developer as part of such land use development approval,
site development or utility approvals, or such Developer's Agreement (or such
other contractual obligation) as may approved by the City Council and the
Developer.
3.2.1. Preparation by the Developer of the design documents required for the
Pottery Lift Station in accordance with the City's specifications and the
following requirements:
3.2.1.1 The Pottery Lift Station and the following improvements within
the Easement shall be generally located as shown on Exhibit B to
Attachment 1 and shall be:
(i) located in the north section of the Easement approximately 40
feet x 120 feet) so as to rawdmize a parking layout (as set forth
below under Section 32.2) 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 ofthe Easement.
3.22. Preparation of a Parking Lot Plan (which shall include the above -
identified items under Section 3.2.1.1) to be approved by the School
District within a reasonable period of time following submittal of such
Parking Lot Plan and which approval shall not be unreasonably withheld.
The Parking Lot Plan shall include but not be limited to the following
specifications:
Interiocat Agreement re Lift Station Faoll'rty
Page 3 of 10
06.11-13
3.2.2.1. 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 1.
3.2.2.2. 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'/.
minus.
3.2.23. 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 stasis shall be
Wiped and wheel stops installed.
3.2.3. Preparation of a Utility Latecomer's Agreement between the City and the
Developer in a form approved by the City, if requested or required.
3.3. Phase 3: Phase 3 shall consist of the construction, at the sole cost of the
Developer, of the Pottery Lift Station and the Parking Lot as specifically
identified under the Design Elements and Specifications set forth under Section
3.2 above (the "Phase 3 Work'. The Phase 3 Work shall begin after the
Developer receives the necessary approvals and permits from the City and after
the School District has approved the Parking Plan. The Phase 3 Work shall be
performed during those periods when students, are not present at Cedar Heights
School or 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 Phase 3 Work, the Developer shall provide the
District with not less than fourteen (14) days' advance notice in accordance with
Section 6.1 below and the Developer shall make its bests efforts to coordinate a
pre -construction meeting with the School District and the City. The Phase 3
Work, including the Parking Lot, shall be guaranteed by the Developer for the
Maintenance Period required under the City's Development Regulations.
4. School Sewer Connection.
4.1. Cedar Heights School Existing Sewer Connection.
4.1.1. The City acknowledges and recognizes that the Cedar Heights School has
an approved sanitary sewer system and is authorized to be connected to
the City's sewer system to serve the Cedar Heights School.
Interloeal Agreement re Lift Station Facility
Pop 4 of 10
06.11-13
4.1.2. At present, the Cedar Heights School's wastewater discharges to the
City's gravity sewer fine (known as Sewer Trunk G) via the existing Cedar
Heights School pump station. Sewer Trunk G extends north and connects
to Sewer Trunk E that nms through wetlands to the intersection of
Tremont Street and Port Orchard Boulevard where it connects to Sewer
Trunk D and is conveyed to the South Kitsap Wastewater Treatment
Facility.
4.1.3. The School District is not required to make any changes to its existing
sewer connection to continue to operate the Cedar Heights School after
construction of the Pottery Lift Station Facility.
41. The Proposed Pottery Lift Station Facility and the Existing Cedar Heights
School.
4.2.1. Upon construction of the Pottery Lift Station by the Developer, the School
District shall have the right, but not the obligation, at the School District's
sole discretion, to establish a new connection for the Cedar Heights School
to the City's sanitary sewer system, as follows-.
4.2.1.1. The School District may establish a new connection to the sewer
main in Lippert Avenue (Sewer Trunk E) which connects to Sewer
Trunk D and the South Kitsap Wastewater Treatment Facility, thus
bypassing the Pottery Lift Station Facility;
4.2.1.2. The School District may maintain its existing connection to the
sewer main in Pottery Avenue (Sewer Trunk G) via the existing
Cedar Heights pump station which will connect to a new sewer
main running north in Pottery Avenue to connect with Sewer
Trunk H in Tremont Street; or
4.2.1.3. The School District may establish a new connection to the Pottery
Lift Station which will connect to a sewer main in Pottery Avenue.
4.2.2. The School District shall be responsible for all design, permitting, and
construction costa associated with establishing either of the connections
described above in Sections 4.2.1.1, 4.2.1.2, and 4.2.1.3.
4.3. The Proposed Pottery Lift Station and a Replacement Cedar Heights School.
4.3.1. In the event the School District replaces the existing Cedar Heights School
with a new school building (the "Replacement School") in the future at
the some location as the existing Cedar Heights School and the Pottery
Werlocat Agreement re Lift Starr Facility
Page 5 of 10
W11.13
Lift Station has been constructed, the City and the School District agree as
follows:
4.3.1.1. The School District shall have the right to establish a sanitary
sewer connection to a Replacement School under one of the three
(3) options set forth above under Sections 4.2.1.1, 4.2.1.2, or
4.2.1.3.
4.3.1.2. The Citf s sanitary sewer system has adequate pipe capacity and
treatment capacity to serve the Replacement School provided the
Replacement School is approved for not more than 1200 students
and staff collectively.
43.1.3. Provided the total number of Students and Staff to be housed in the
Replacement School do not exceed 1200, the School District shall
not be required to pay any City sewer capital faciiity charge or
treatment facility charge.
4.3.1.4. In the event the total number of Students and Staff to be housed in
the Replacement School exceeds 1200, the School District shall
pay a sewer capital facility charge and any required treatment
facility charge for the total number of Students and Staff in excess
of 1200 based on the City's sewer development regulations at the
time the School District submits a building permit application for
the Replacement School.
4.3.1.5. The School District shall be responsible for all design, permitting,
and construction costs associated with establishing the connections
described above.
4.3.1.6. The provisions of Section 4 shall survive performance of the
obligations set forth under Sections 1 through 3 above and shall
only terminate upon construction of a Replacement School at the
Cedar Heights School Properly.
5. No Latecomer's Fee. In the event the Developer constructing the Pottery Lift Station
seeks reimbursement for the costs associated with design, permitting and construction
of the Pottery Lift Station Facility pursuant to a latecomer's agreement as authorized
by City Ordinance No. 1852, as may be amended, and Chapter 35.91 RCW, the
School District shall not be deemed a benefited party nor shall the School District be
required to pay any pro rata share of costs as a condition of connecting to the Pottery
Lift Station Facility.
bodoW Agmmeet re Lift Station Facilay
Page 6 of 10
06.11-13
6. Notice and Coordination.
6.1. City agrees to use its best efforts to provide the School District with not less than
five days' notice prior to the commencement of the Phase 1 construction
activities set forth under Section 3.1 above. All activities within the Easement
undertaken by the City or Developer as required under this Agreement shall be
coordinated with the following School District representatives:
Tom O'Brien
South Kitsap School District No. 402
2689 Hoover Avenue S.E.
Port Orchard; WA 98366
Tel: (360) 874-6001
Fax: (360) 87"00
Email: obrient jk-itsap.wednet edu
Andrew Cain or the then Principal of
Cedar Heights Junior High School
2220 Pottery Avenue
Port Orchard, WA 99366
Tel: (360) 874.6020
Fax: (360) 874-6420
Email: cahMakitso wednet.edu
6.2. All notices provided for herein may be telecopied (with machine verification of
receipt), sent by Federal Express or other overnight courier service or delivered
or mailed registered or certified mail, return receipt requested If a notice is
mailed, it shall be considered delivered three (3) days a#ter deposit in such mail.
If a notice is sent via telecopy, it shall be deemed received upon receipt of
verification of transmission. if a notice is sent via overnight courier, it shall be
deemed received upon the next business day. The addresses to be used in
connection with such correspondence and notices are the following, or such other
address as a party shall from time to time direct:
City: City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
Telephone: 360-866-4991
Facsimile: 360-876.4980
Attention: City Engineer
Intarlocal Agmement ie Litt Station Facility
Page 7 of 10
06-11.13
School District: South Kitsap School District No. 402
2689 Hoover Avenue S.E.
Port Orchard, WA 98366
Telephone: 360-974-7001
Facsimile: 360.976-7068
Attention: Superintendent
7. Effective Date: Binding Effect. This Agreement shall be recorded with the Kitsap
County Auditor. The recording date shall be the effective date of this Agreement.
The Agreement shall inure to the benefit of and be binding upon the heirs, personal
representatives, successors and assigns of the parties hereto.
8. Relationship of the Parties. Notwithstanding any other provisions of this Agreement,
or any other agreements, contracts, obligations which may derive herefrom, nothing
herein shall be construed to make the City or the School District partners or joint
venturers, or to render either party liable for any of the debts or obligations of the
other party, it being the intention of this Agreement merely to create the agreements
set forth herein with regard to the Pottery Pump Station Easement and the uses within
the Easement.
9. ' Mutt le Originals. This Agreement may be executed in multiple copies, each of
which shall be deemed an original.
10. 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.
11. Attorney's Fees. In the event that either of the parties to this Agreement brings a
lawsuit against another 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.
12. Governinit law: jurisdiction: venue. This Agreement will be governed by the laws of
the State of Washington and any legal proceeding arising under it may be brought
only in the courts of Kitsap County, Washington.
13. Severabiliri. if a court of competent jurisdiction holds any provision of the
Agreement to be illegal, invalid, or unenforceable, in whole or in part, the validity of
the remaining provisions will not be affected, and the parties' rights and obligations
will be construed and enforced as if the Agreement did not contain the particular
lntectocal Agreement re Lift Station Facility
Page 8 of 10
06-11-13
provision held to be invalid. If any provision of the Agreement conflicts with any
statutory provision of the State of Washington, the provision will be deemed
inoperative to the extent of the conflict or modified to conform to statutory
requirements.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement on the date set forth below.
CdTY OF PORT ORCHARD:
Bye 1G;'*W"
Timothy 0. Matthes
Its: Mayor
Date:
ATTEST:
By: ,
randy Rinearson, City Clerk
APPROVED AS TO FORM:
Interkmai Agreement re Lift Station Facility
Page 9 of 10
06-11.13
SOUTH KMAP SCHOOL DISTRICT
NO.402:
By:
D�BeAyCben�qy��
Its: Superintendent
Date: 61 tt hs
By GW w QIA /i � f -"
Mary J. frbaclKAIfomey for School District
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
-b?
On this day personally appeared before me to to me known to be the ly4gm-of
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 1,,&,J" day of UJJA '�"_ 2013.
FM
� IN
*1q* fib 1.9016
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
NOTARY PUBLIC in and for the State
of�Washington, residing at
Print Nam . l'DYleIt Lido
My appointment expires: Nth
On this day personally appeared before me�DGkmW totem knowfi o be the
, the municipal corporation described in
and that executed the within and foregoing instrument, and acknowledged that she 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 she was authorized to execute said
Instrument on behalf of said municipal corporation.
GIVEN under my hand and official seal this _a day of LXV 2013.
V.
;'off 91ARY eY°'�
*���
Pusoo '
knterlocal Agreement re Lift Station Facility
Page 10 of 10
06-11-13
Print Name•
My appointment
in andfQr-the State
rnr l'or
BEFORE THE HEARING EXAMINER
FOR THE CITY OF PORT ORCHARD
In the Matter of the Application of )
Thair Jorgensen, P.E., on behalf of )
Rush Design, Inc. )
For a Conditional Use Permit. )
No. CUP 037-12
Southwest Sidney Plaza
Mixed Use Development
FINDINGS, CONCLUSIONS,
AND DECISION
SUMMARY OF DECISION
The request for a conditional use permit to construct a mixed -use development, including a
14,000 square foot retail building; nine, three-story apartment buildings; recreational building;
pool; and associated parking on property 13.78 acres in size at the southwest corner of the
Sedgwick/Sidney Road intersection, in Port Orchard, Washington is APPROVED. Conditions
of approval are necessary to mitigate specific project impacts.
SUMMARY OF RECORD
Hearing Date:
''he Hearing Examiner held an open record hearing on the request on March 21, 2013.
`festimony:
The following individuals presented testimony under oath at the open record hearing:
Tom Bonsell, City Planner and Acting Director, City Planning Department
Mark Dorsey, City Engineer
Thair Jorgensen, P.E., Applicant Representative
Paul Casey, Applicant Architect
Dan Balmelli, Applicant Engineer
Jerry Gaudette
Terry Cousins
Exhibits:
The following exhibits were admitted into the record:
I . Pre -Application letter, dated July 25, 2012
2. Application submittal, including the following documents:
A. CUP Application, received November 28, 2012
B. Contact Information, dated September 4, 2012
C. Letter authorizing Thair Jorgenson as agent for project, dated August 30, 2012
D. Property Owners List verification statement, map, and mailing list, dated September
21, 2012
F. Legal description and tax parcel numbers, received November 28, 2012
Findings, Conclusion, and Decision
City Of Port Orchard Hearing Examiner
Southwest Sidney Pla-za Mixed -Use Developmeni, CUP 037-12
Page 1 of ' 18
G. Project narrative, dated November 2012
H. Jurisdictional Wetland Analysis, Port Madison Associates, LLC, dated June 6, 2007
1. Review letter of Welland Analysis and site visit report, Marc E. Bould, dated
September 10, 2012
J. Conceptual Wetland Mitigation Plan, dated October 30, 2012
K. Traffic Impact Analysis, dated October 2012
L. Joint Aquatic Resources Permit Application (DARPA) for ditch realignment, dated
November 27, 2012
M. Environmental Checklist, dated November 16, 2012
N. Preliminary Stormwater Site Plan, including Geotech Report, dated November 15,
2012
0, Color Site Plan, dated November 16, 2012
P. Plan Set: Architecture and Planning, dated November 16, 2012, and Site
Development dated November 2, 2012; Sheets P1-P10, L1, and Cl-C8, dated
November 16, 2012, and November 2, 2012
3. Kitsap County Parcel Search: Property Reports and Maps, dated November 30, 2012
4. Application Transmittal for review of submitted documents, dated November 30, 2012
5. Determination of Completeness Letter, dated December 11, 2012
6. Comment memorandum from Gary Rogers, South Kitsap Fire and Rescue, dated
December 5, 2012
7. Email from Andrea Archer -Parsons, Assistant City Engineer, City Stormwater Manager,
dated December 13, 2012
8. SEPA Conditions memorandum from Andrea Archer -Parsons, dated January 14, 2013
9. Preliminary landscape plan set — 6 sheets, dated December 21, 2012
10. Notice of Application — SEPA Threshold Determination, dated January 25, 2013
11. Record of SEPA Checklist and NOA/SEPA distribution to agencies, dated January 25,
2013
12. Affidavit of Mailing and Posting of Notice of Application/SEPA, dated January 25, 2013
13. Affidavit of Publication of NOA/SEPA, dated January 25, 2013
14. Comments from Patrick McGraner, Wetlands Specialist, Department of Ecology, dated
January 29, 2013
15. Comments from Jerry A. and Alice L. Gaudette, dated January 30, 2013
16. Comments from Dean Cooper, dated February 9, 2013
17. Tree Conservation Plan — 1 sheet, dated February 14, 2012
18. MDNS — SEPA Determination, dated February 22, 2013
19. MDNS Distribution List, dated February 22, 2013
20. Public Hearing Notice, dated March 8, 2013
21. Affidavit of Mailing and Posting Hearing Notice, dated March 8, 2013
22. Affidavit of Publication for Hearing Notice, dated March 15, 2013
23. Staff Report, received March 21, 2013
24. Proposed Common Recreation Areas Site Plan, dated March 21, 2013
25. Proposed Recreation Building Site Plan, dated January 4, 2013
Findings, Conclusions, and Decision
City of Port Orchard Hearing Examiner
Southwest Sidney Pla-za Mixed -Use Development, CUP 03 7- 12
Page 2 g f l 8
26. Letter from Thair Jorgensen, P.E., to Tom Bonsell, Acting Director, City Planning
Department, dated March 18, 2013
The Hearing Examiner enters the following Findings and Conclusions based upon the testimony
and exhibits admitted at the open record hearing:
FINDINGS
Application and Notice
Thair Jorgenson, P.E., for Rush Design, Inc. (Applicant)' requests a conditional use
permit (CUP) to construct a mixed -use development, including a 14,000 square foot retail
building; nine, three-story apartment buildings; recreational building; pool; and
associated parking on property 13.78 acres in size at the southwest corner of the
Sedgwick/Sidney Road intersection, in Port Orchard, Washington,' Exhibit 2.A.
2. The City of Port Orchard (City) determined the CUP application was complete on
December 11, 2012. Exhibit 5. On January 25, 2013, the City mailed notice of the
application to surrounding property owners, posted notice on the subject property, and
published notice in the City newspaper of record. Exhibit 13. On March 8, 2013, the
City mailed notice of the open record hearing associated with the application to
surrounding property owners and posted notice on the subject property. On March 15,
2013, the City published notice in the City newspaper of record. Tom Bonsell, City
Planner and Acting Director, City Planning Department, testified that notice of the
hearing was published in the City newspaper of record nine days before the hearing.
Exhibit 21; Exhibit 22; Testimony of Mr. Bonsell.
State Environmental Policy Act
3. The City acted as lead agency and analyzed the environmental impact of the proposal, as
required by the State Environmental Policy Act (SEPA), chapter 43.21 C RCW. The City
reviewed the Applicant's SEPA Environmental Checklist and other available
information. The City determined that, with 31 conditions, the proposal would not have a
probable significant adverse impact on the environment, and issued a Mitigated
Determination of Nonsignificance (MDNS) on February 22, 2010. Mr. Bonsell testified
that the MDNS was issued on February 22, 2013, not February 22, 2010, which was a
typographic error. The 31 conditions include conditions concerning plans and fees,
landscaping, wetland buffer enhancements, trail completion, a restriction on uses within
the future Commercial Development area, approved JARPA permit, stormwater control,
traffic and roads, sewer, and water. The City staff report states that the MDNS was not
1 Thair Jorgenson is authorized to act as agent for South Sidney Plaza, LLC, property owner. Exhibit 2.B.
Exhibit 2. C.
' The subject properties are identified by tax parcel numbers 102301-4-058-2009, 102301-4-019-2007,
102301-4-059-2008, 102301-4-024-2000, and 102301-4-018-2008. Exhibit 2.A; Exhibit 23, Stalf Report,
page 1. A legal description of the property is provided in Exhibit 2.E.
Findings, Conchisions, and Decision
Cily of Port Orchard blearing Examiner
Southwest Sidney Plana Mixed -Use Development, CUP 037-12
Page 3 of 18
appealed. Exhibit 2.M; Exhibit 18; Exhibit 23, Staff Report, page 1; Testimony of Mr.
Bonsell,
4. According to the City staff report, the City received two comments in response to the
MDNS. A letter from Jerry A. and Alice L, Gaudette, received February 1, 2013,
inquired how the stormwater system of the proposed development would be designed and
what mitigation factors would be employed; how the water system of the proposed
development would be constructed; how the developer will avoid unsightly, empty
commercial space, referencing the existing development at the northwest corner of the
Sidney Road/Sedgwick Road intersection; and whether there are surface indications of a
history of unstable soils in the immediate vicinity. An email from Dean Cooper, owner
of property across the street from the subject property, dated February 9, 2013, expressed
concern that stormwater runoff from the proposed development would travel onto his
property and inquired how the stormwater system of the proposed development would be
designed to avoid this impact. Exhibit 1 S; Exhibit ! fi; Exhibit 23, Stcrff Report, page 2.
5. Mr. Bonsell testified that the City modified landscaping requirements and modified a
MDNS condition governing the proposed development in response to the comments
received on the MDNS. Mr. Bonsell testified that MDNS conditions stand alone and
should not be considered conditions imposed through the CUP review process.
Testimony o, f Mr. Bonsell.
6. A letter from Thair Jorgensen, ) .E., Applicant Representative, dated March 18, 2013,
responded to comments submitted to the City. The letter states the proposed stormwater
system would be sized based on the 2005 Washington Department of Ecology
Stormwater Management Manual (2005 Ecology Design Manual). According to the
letter, the runoff flow rate from the entire site would be lower than it is under current site
conditions, and the post -development runoff rate would be equivalent to the site being
covered in old growth forest, which has very little runoff, The letter states that soils on
the subject property do not support infiltration or retention of stormwater runoff on the
subject property. Large detention ponds would be constructed on the subject property to
store runoff from the developed site, and release of runoff from the ponds would be timed
to occur so release rates do not exceed runoff rates under old growth forest conditions.
With the lower post -development runoff rate than current site conditions, the letter states
that there should be no increase in runoff rates to the drainage system downstream of the
proposed development site and no measurable impact on the downstream drainage
system. Exhibit 26.
Dan Balmelli, Applicant Engineer, testified that, under the proposal, approximately 63
percent of the subject property would be developed, and of that, approximately 75
percent of developed area would consist of impervious surface. Mr. Balmelli testified
that the subject property drains to the north and south under existing conditions. Mr.
Findings, Conclusions, and Decision
City of Port Orchard Hearing Eraminer
Southwest Sidney Plaza Mixed -Use Development, CUP 037-12
Page 4 of't 8
Balmelli added that the proposed detention ponds would be sized as if no infiltration
would occur on the subject property. Testimony of Mr. Balmelli.
8. Mr. Balmelli testified that fencing is required around the detention ponds for safety and
to avoid liability. Mr. Balmelli testified that cedar fencing would be constructed, and
landscaped berms would be used to limit visual impacts of the ponds and fencing. Jerry
Gaudette inquired whether the landscaping would be located on top of the berm or
between the fence and slope of the berm. Mr. Balmelli responded that landscaping would
be located between the fence and the bottom of the berm, not on top of the berm.
Testimony of Mr. Balmelli; Testimony of Mr. Gaudette.
The March 18, 2013, letter from the Applicant Representative notes that adding new on -
site wells is not a proposed or feasible option to provide required water service. As
proposed, looped water mains throughout the subject property would connect to existing
City water mains within Sedgwick Road and Sidney Road. The Applicant anticipates
that, at minimum, a new water main would need to be extended by the project owners
east along Sedgwick Road from the Sidney Road/Sedgwick Road intersection to connect
to the existing water main. Exhibit 26.
10. According to the March 18, 2013, letter from the Applicant Representative, the owners of
the subject property do not intend to move forward with a building development on the
commercial pad within the subject property until a user is interested in leasing or
constructing a new building on the site. The letter states that the retail spaces currently
vacant within the existing development at the northwest corner of the Sidney
Road/Sedgwick Road intersection had secured tenants at the time of construction, but the
tenants dropped out with the recent economic downturn. As proposed, the development
will provide frontage improvements on Sidney Road and Sedgwick Road, including lane
widening, curbs, gutters, sidewalks, planting strips, and street lighting. The Applicant
conducted a Traffic Impact Analysis to analyze traffic impact of the proposed
development and prepared a soils analysis for the proposed development, dated October
27, 2011, and submitted them with SIPA review materials to the City. Exhibit 26.
Comprehensive Plan and Zoning
11. The subject property is designated Commercial by the City Comprehensive Plan
(Comprehensive Plan), City 2013 Comprehensive Plan Map. The intent of the
Commercial designation is to create a compact, pedestrian -oriented shopping and
employment district with a variety of urban and social activities. Uses should meet the
high standards for design and appearance. Within the Commercial designation, the City
should ensure that multi -family housing is developed at densities that provide affordable
housing opportunities for the city's citizens. Comprehensive Plan, Land Use Element,
pages 2-10 to 2-11.
Findings, Conclusions, and Decision
City of Port Orchard Hearing Examiner
Southwest Sidney Pima Mixed -Use Development, CUP 037-12
Page 5 of ' 18
12, Comprehensive Plan goals and policies are relevant to the proposed development. Land
Use Element goals and policies call for creating a wide range of housing types for
affordable housing and opportunities to retrofit single -use commercial and retail
developments into walkable, mixed -use areas served by transit, thereby reducing the need
for people to drive to every destination. Land Use goals and policies also encourage
community centers that provide goods and services to several neighborhoods, including
the intersection of major arterials at Sidney/Sedgwick, and provide for a mix of uses,
including commercial retail, office, residential, and public, with the predominant use
being commercial retail. Comprehensive Plan Housing Element goals and policies
encourage and facilitate development of a variety of housing types, including single-
family residential, multi -family homes, and manufactured homes, and encourage
implementation of flexible development standards for housing being proposed in the
vicinity of critical areas to meet both goals of housing targets and environmental
protection. Comprehensive Plan, Land U.se Element, pages 2-23 to 2-25; Comprehensive
Plan, I-Iousing Element, pages 3-6 and 3-10.
13. The subject property is located in the City's Commercial zoning district. The purpose of
the commercial retail and office (Co) zone is to provide for the broadest mix of retail,
service, office, and commercial recreation/cultural uses serving the Port Orchard and
surrounding market areas, and offering significant employment opportunities. These
purposes are accomplished by providing for office uses as well as a wider range of the
retail, professional, governinental, and personal services than are found in neighborhood
and community business areas, and by encouraging planned developments that
incorporate aesthetic as well as functional concerns. Port Orchard Municipal Code
(POA4Q 16.13.150(1) and (2). Multi -family housing is allowed within the Co zoning
district with a CUP. Multi -family housing is permitted as part of a mixed -use
development with approval of a CUP and is limited to a maximum development density
of 20 dwelling units per acre (du/ac). POW 16.30.080, Note 7.
14, The City staff report states that the Southwest Sidney Plaza Mixed Use Development will
also include a commercial -use element that is not pain of this CUP application. Exhibit
23, Stcff Report, page 3. Mr. Bonseil testified that the commercial use is not specifically
identified at this time, but review, for purposes of analyzing stormwater and traffic
impacts for the proposal, focused on a "generic mixed use" development. Mark Dorsey,
City Engineer, proposed a condition of approval that, if the proposed commercial use has
a greater impact than a drugstore/drive-through use, then additional traffic analysis and
mitigation may be required. Testimony of Mr. Bonsell; Testimony of Mr. Dorsey.
15. Common development standards under chapter 16.40 POMC are applicable to the
proposed development. The proposed development must adhere to standards requiring
10-foot-wide public street right-of-way, 85 percent maximum covered surfaces, and a 33-
foot building height limitation. There are no required side yard or rear yard setbacks.
Findings, Conclusions, and Decision
City of Port Orchard Hearing Examiner
Sowhrvest Sidney Plana Mixed -Use Development, CUP 037-12
Page 6 g1.18
POMC 16.40.025. The City staff report states that the development proposal conforms to
these common development standards. Exhibit 23, Staff Ileporl, page 6.
Existing Conditions and Surrounding Property
16, The subject property consists of five parcels that together measure 13,79 acres in size.
The main portion of the subject property is roughly rectangular in shape with a pie -
shaped extension in the west portion of the property. A series of small wetlands and
depressions bisect the property in a generally north -south direction. The property is
mostly flat or gently sloping and was recently used for farming and grazing. Exhibit 2.0;
Exhibit 23, Stuff Report, page 2.
17. Sedgwick Road is located adjacent to the north and west of the subject property, and
Sidney Road is located adjacent to the east of the property. The Sedgwick/Sidney Road
intersection is located adjacent to the northeast corner of the subject property. The
northwest corner of the intersection contains the existing Sedgwick Landing mixed -use
development, where an apartment development is currently under construction. The
apartment development consists of three-story, garden -style buildings, with up to 21 units
per building, residentially scaled exterior siding, windows, and sloping shingle roof tops,
Adjacent property, to the west across Sedgwick Road and south of the subject property,
contains residential development. Adjacent property to the east, across Sidney Road,
contains retail/commercial development. And adjacent property to the north, across
Sedgwick Road, contains retail/commercial development with a health clinic. Exhibit 23,
Staff Report, pages 2 to 3; Exhibit 2.0; Exhibit 2.P.
Proposed Develo ment
18. As proposed, a future commercial/retail development area would be located in the
northeast corner of the subject property, adjacent to the Sedgwick/Sidney Road
intersection. A main multi -family residential portion of proposed development would be
located adjacent to the south of the future commercial/retail development site and
adjacent to the west of Sidney Road. The main residential portion of the proposed
development would include a community recreation building. Seven multi -family
residential buildings would be constructed within the main residential portion of the
proposed development, which would be accessed through an internal road. The internal
road would extend south from Sedgwick Road through the proposed development (west
of the future commercial/retail development area), then turn east to connect to Sidney
Road. A second area of multi -family residential development would be located within
the northwest portion of the subject property. This northwest residential portion of the
proposed development would contain two multi -family residential buildings and would
be accessed by an internal road extending east from Sedgwick Road. An internal
maintenance road extending across wetland area in the central portion of the subject
property would connect the two areas of multi -family residential development on the
subject property. As proposed, 126 multi -family residential units would be constructed
Findings, Conclusions, and Decision
City of Port Orchard Hearing lsaminer
Southwest Sidney Plaza Adixed-Use Development, CUP 037-12
Page 7 of 18
for a development density of approximately 9.14 du/ac.3 According to the City staff
report, the proposed multi -family residential buildings would be three-story, garden -style
apartment buildings containing up to 24 units per building. The buildings would have
residentially scaled exterior siding, windows, and sloping shingled roof tops. Parking
area would be located adjacent to both areas of multi -family residential development
within the subject property. The City staff report states that the Applicant has provided
parking calculations in accord with POMC 16.45.250 parking standards and that the
proposal meets or exceeds required parking. Exhibit 2.0; Exhibit 2.P; Exhibit 23, Slgff
Report, Pages 1, 4, and 6.
Wetlands and Critical Areas
19. The Applicant's Jurisdictional Wetlands Analysis, dated May 31, 2007, delineated four
wetlands on the subject property: Wetland A, Wetland B, Wetland C, and Wetland D.
All wetlands are Category IV wetlands. Wetland A is a small, less than 0.15-acre,
isolated Category IV slope wetland that discharges below the surface to the roadside
ditch on the west side of Sidney Road. Wetland A is located in the east portion of the
subject property along Sidney Road. Wetland B is the largest wetland on the subject
property at two acres in size. Wetland C is located immediately upstream of Wetland B,
and two poorly functioning, 12-inch-diameter culverts link the two wetlands under an
existing access driveway. Wetland B and C are located in the central portion of the
subject property. Wetland D is a small, less than 0.15-acre, isolated depression wetland
located in the southeast portion of the subject property. Exhibit 2.H.
20, Category IV wetlands that are isolated and less than 10,000 square feet in size are not
regulated under the City critical areas code. POMC 18.04.030(2)(b), Category IV
wetlands 10,000 square feet in size or greater are regulated under the City critical areas
code. POMC 18.04.030(1)(d). Under the City critical areas code, regulated Category IV
wetlands must be protected by a 25-foot-wide buffer, with a minimum 15-foot-wide
building setback beyond the buffer. POMC 18.04.040(3). Wetland and buffer
enhancement, wetland and buffer restoration/revegetation, and trails and trail -related
facilities are allowed within the wetland and buffet- area subject to development standards
and the underlying CUP. POMC 18, 04.050(1) and (2). The City staff report states that,
as proposed, approximately 15,475 square feet of wetland and wetland buffer would be
disturbed through construction of an access road from Sedgwick Road to the proposed
development. As proposed, approximately 17,120 square feet of new wetland would be
created on the subject property to replace lost wetland/buffer area in accord with POMC
18.04.100. POMC 18.04. 1 00(c)(iii) provides for mitigation by replacing, enhancing, or
providing alternative resources or environments within the same drainage basin. As
proposed, the new, created wetland area would be located within the currently upland
areas of the subject property adjacent to Wetlands B and C. This currently upland area
would be re -graded to elevations similar to the existing wetlands, planted with native
' The calculation is: 126 dwelling units / 13.79 acres = 9.14 du/ac.
Findings, Conchrsions, and Decision
City of Port Orchard Hearing Examiner
Southwest Sidney Plaza Allixed-Use Development, CUP 037-12
Page 8 (?f 18
wetland vegetation, and charged with roof runoff and other clean discharge to restore
wetland hydrology. A 25-foot-wide buffer adjacent to Wetlands B and C would be
planted with native vegetation. Mr. Bonsell testified that the ratio of impacted wetland
and buffet- area to new, created buffer would be approximately 1:1 and that proposed
mitigation complies with City code. Exhibit 2.J; Exhibit 23, Sluff Report, page 7;
Testimony of Mr. Bonsell.
21. A proposed five -foot -wide trail would be located within wetland buffer and building
setback area on the west and east sides of the wetland area located within the central
portion of the subject property. One trail would be located adjacent to the east of the
northwest residential portion of the proposed development, and the other trail would be
located west of the main residential portion of the proposed development. Exhibit 2.0;
Exhibit 2. P.
Stormwater, Utilities, and Public Services
22. The proposed development would contain three stormwater detention ponds. Two ponds
would be located adjacent to the north (Pond Q and east (Pond B) of the northwest
portion of multi -family residential development on the subject property. One pond (Pond
A) would be located south of the main portion of multi -family residential development on
the subject property. Pond C would be surrounded by a landscaped berm on the east side
of the pond. Pond A would be surrounded by a landscaped berm on the north, east, and
south sides of the pond. Pond A would be approximately 40,199 square feet in size, Pond
B would be approximately 3,102 square feet in size, and Pond C would be approximately
12,424 square feet in size.4 Exhibit 2.0; Exhibit 2.P.
23. In response to the comment submitted by Mr. Gaudette, Mr. Dorsey testified that the
southerly drainage course in the Applicant's Preliminary Drainage Plan must address the
capacity of the culvert to handle drainage, and there will be onsite mitigation to address
this issue, if possible. Mr. Jorgensen testified that use of the 2005 Ecology Design
Manual should result in less volume of offsite flow than currently exists, addressing Mr.
Gaudette's comment. Testimony of Mr. Dorsey; Testimony of Mr. Jorgensen.
24, Mr. Balmelli testified that runoff from rooftop areas would be directed into wetland areas
on the subject property to aid in recharging wetland hydrology, and that construction
activities would incorporate techniques to reduce sediment loading into wetlands during
d The Applicant's Preliminary Site Plan, Sheet P1, and Preliminary Grading and Storm Drainage Plan, Sheets C2
and C3, appear to switch the name of the detention pond located on the north side of the proposed northwest portion
of multi -family residential development and the pond located on the south side of the main portion of multi -family
residential development. The Preliminary Site Plan states the north pond is named "Pond A" and the Preliminary
Grading and Storm Drainage Plan states the north pond is named "Pond C". Assti ping the Preliminary Grading and
Storm Drainage Plan is the more specific of the two, for purposes of this decision "Pond C" is the pond north of the
northwest portion of proposed multi -family residential development and "Pond A" is the pond south of the main
portion of proposed multi -family residential development. Exhibit 2.P.
Findings, Conclusions, and Decision
City of Port Orchard Hearing Examiner
Soiahwest Sidney Plaza Mixed -Use Development, CUP 037-12
Page 9 of 18
construction. Mr. Balmelli added that sedimentation of runoff should be reduced after
the subject property is developed because the sediment would settle within proposed
detention ponds. Testimony of Mr. Balmelli.
25. Paul Casey, Applicant Architect, testified that a utility corridor would be located along
the west edge of the subject property, south of the northwest portion of proposed multi-
family residential development, as depicted on Exhibit 2.0. Exhibit 2,P also depicts a
minimum five -foot -wide landscape buffer with filtered screening in this area, along the
south and west boundary of the northwest portion of proposed multi -family development.
In addition, a minimum 10-foot-wide buffer with "see through vegetation" would be
established along the north and east boundary of the subject property, and a minimum
five -foot -wide landscape buffer with filtered screening would be established along the
south boundary of the subject property, adjacent to proposed detention Pond A and
surrounding berm. Exhibit 2.0; Exhibit 2. P; Testimony of Mr. Casey.
26. Mr. Dorsey testified that comments and stipulations proposed by South Kitsap Fire &
Rescue (Exhibit 6) should be included as conditions governing the CUP proposal. Mr.
Jorgensen testified for the Applicant that he agrees these comments and stipulations are
required by City code and should be included as conditions governing the CUP proposal.
Mr. Bonsell testified that comments and stipulations within Exhibit 6 are required by City
code. Testimony gf Mr. Dorsey; Testimony gf'Mr. Jorgensen; Testimony of Mr. Bonsell.
27. According to the Applicant's Project Narrative (Exhibit 2.F), the City owns an easement
over an existing sanitary sewer pump station and gravity sewer main extending to the
Sidney Road right-of-way. The Project Narrative states that the most feasible option for
providing sanitary sewer service to the proposed development is by extending the
existing sewer main from its current location across Sidney Road and through the
proposed development. The Applicant's Preliminary Sanitary Sewer Extension Plan
depicts new sanitary sewer extensions from Sidney Road serving the main portion of
proposed multi -family residential development and new sanitary sewer extensions
serving the northwest portion of proposed multi -family residential development through a
connection located within the proposed maintenance road linking the main and northwest
portions of proposed multi -family residential development. An MDNS condition
requires the Applicant to submit its sewer report showing analysis of the existing sewer
system and proposed sewer system capacity to the City for review and approval. Exhibit
2. F; Exhibit 2. P; Exhibit 18.
28, The Applicant's Preliminary Water Main Extension Plan (Exhibit 2.P) depicts water main
extensions from a 12-inch water main in Sidney Road and Sedgwick Road serving the
proposed development, The Plan depicts water mains extending though Sidney Road and
Sedgwick Road all the way to the Sedgwick/Sidney Road intersection. A December 13,
2012, email from Andrea Archer -Parsons, Assistant City Engineer/Stormwater Manager,
to Tom Bonsell and Mark Dorsey states that plans for the proposed development depict a
Findings, Conclusions, and Decision
City q/'Port Orchard !Hearing E-mininer
Southivest Sidney Pla_a Mixed -Use Development, CUP 03 7- 12
Page 10 of 18
12-inch-diameter water main when the existing water main is only eight inches in
diameter. The email also states that the water main does not currently extend as far as the
Sedgwick/Sidney Road intersection. Exhibit 2.P; Exhibit 7.
29. Mr. Dorsey testified that the water/sewer extension shall continue west to Sedgwick
Road. Mr. Jorgensen testified that a water/sewer extension is acceptable to provide
connection to the west, to connect with proposed residential development, rather than
along Sedgwick Road, if subject to a latecomer's agreement if appropriate. Testimony of
Mr. Dorsey; Testimony of Mr. Jorgensen.
Landscaping and Recreation Area
30. Under POMC 16.40.025, 15 percent of the development site must contain softscape
landscaped area. Softscape area may include perimeter buffers, parking lot plantings, and
other landscape with soil or other natural surfaces. POMC 16, t0.025, Note S. The City
staff report states that specific landscaping and tree retention provisions for uses
established through a CUP must be determined during the applicable review process.
According to the City staff report, the Applicant has submitted a draft architectural
landscape plan to the City as part of the CUP application, and prior to issuance of a Site
Development Permit Application (SDAP), a final landscape plan must be submitted to
the City for review under chapter 16.50 POMC. The CUP application includes an
Existing Tree and Vegetation Protection Detail plan, dated February 14, 2012 (Exhibit
17) and a Preliminary Landscape Plan, dated December 21, 2012 (Exhibit 9), The
Preliminary Landscape Plan generally depicts landscaping around the perimeter and
throughout the proposed development, The Preliminary Landscape Plan also depicts play
equipment within the northwest portion of proposed multi -family residential development
and within the main portion of proposed multi -family residential development. Exhibit
23, .Staff Report, page 7; Exhibit 9; Exhibit 17.
31. Mr. Casey testified that Exhibit 24 depicts common recreation areas within the proposed
development as play lots, which total approximately 11,500 square feet in size, or
approximately 91 square feet per occupant. Exhibit 25 depicts exercise area and a
community party plaza within the proposed community recreation building. Mr. Casey
testified that building design would be similar to building design within the existing
Sedgwick Landing development. Exhibit 24; Exhibit 25; Testimony of Mr. Casey.
Traffic Impacts
32. Mr. Casey testified that the proposed development would include three access driveways
to the development, One driveway would access the development from Sedgwick Road,
another driveway would access the development from Sidney Road, and an access for
emergency vehicles only would access the development from Sidney Road south of the
other Sidney Road access. The proposed development would include sidewalks along the
south side of Sedgwick Road, along the west side of Sidney Road, along both sides of the
internal road accessing the main portion of proposed multi -family residential
Findings, Conclusions, and Decision
City of Port Orchard Hearing Examiner
Southwest Sidney Plaza Rllired-Use Development, CUP 037-12
Page JI oft
development, and along the north portion of the internal road accessing the northwest
portion of proposed multi -family residential development. Exhibit 2.0.
31 The Applicant's Traffic Impact Analysis (TIA) (Exhibit 2.P) states that by 2017, with the
proposed development, level of service (LOS) at the proposed westbound access from
Sidney Road would deteriorate to LOS "E," and LOS at the proposed southbound access
from Sedgwick Road would deteriorate to LOS "D." LOS for all other intersections
analyzed in the surrounding area would be LOS "C," or better, with the proposed
development. Mr. Dorsey testified that the City does not collect traffic impact fees;
instead, channeiiation would address traffic impacts of the proposed development. Mr.
Dorsey testified that channelization can occur within Sedgwick Road or Sidney Road if
needed. Exhibit 2.K; Testimony of Mr. Dorsey,
34. A cart path would extend from the northwest residential portion of the proposed
development to the main residential portion of the proposed development. The gravel
driveway would be constructed within a 20-foot-wide easement, County Recording No.
200502280229, which is the site of an existing access road. Mr. Casey testified that golf
carts used for maintenance purposes would travel over the proposed gravel driveway. As
depicted on the Applicant's Preliminary Site Plan, the cart path would be constructed of
asphalt or crushed rock. Exhibit 2.0; Exhibit 2. P; Test cif Mr. Casey.
Staff Recommendation and Public Comment
35. Terry Cousins, owner of property in the vicinity of the subject property, testified in
support of the proposed development. Mr. Bonsell testified that City staff recommends
approval of the proposed CUP request, as conditioned. Testimony gf'Mr. Cousins;
Testimony of Mr. Bonsell.
CONCLUSIONS
Jurisdiction
The City of Port Orchard Hearing Examiner is authorized to hold a hearing on the conditional
use permit application. Based on the evidence in the record, the Hearing Examiner may grant,
grant with conditions, or deny the application. Port Orchard Municipal Code (POMC) 2.76.080;
POMC 2.76.100; POMC 2.76.110; POMC 16.01.02](3).
Criteria for Review
A conditional use permit shall be granted only if the applicant demonstrates that the proposed
use:
(a) Will be designed in a manner which is compatible with the character and appearance with the
existing, or proposed development in the vicinity of the subject property;
(b) Will not hinder neighborhood circulation or discourage the permitted development or use of
neighboring properties due to the location, size, and height of buildings, structures, walls and
fences, and screening vegetation of the proposed use;
Findings, Conclusions, and Decision
City nf'Pori Orchard nearing Examiner
Southwest Sidney Plaa Mixed -Use Development, CUP 037-12
Page 12 of 18
(c) Will be designed in a manner that is compatible with the physical characteristics of the subject
property;
(d) Will mitigate impacts in a manner equal to or greater than the standards of this code;
(e) Will not conflict with the health and safety of the community;
(f) Will not create pedestrian and vehicular traffic that will be hazardous or conflict with existing and
anticipated traffic in the neighborhood; and
(g) Will provide adequate public facilities or services and will not adversely affect public services to
the surrounding area or conditions can be established to mitigate adverse impacts on such
facilities.
POMC 16.35.010(3).
The criteria for review adopted by the Port Orchard City Council are designed to implement the
requirement of chapter 36.70B RCW to enact the Growth Management Act. In particular, RCW
36.70B4O40 mandates that local jurisdictions review proposed development to ensure consistency
with City development regulations considering the type of land use, the level of development,
infrastructure, and the characteristics of development. RCW 36, 7013.040.
Conclusions
1. The proposed project will be designed in a manner compatible with the character
and appearance with the existing or proposed development in the vicinity of the
subject property. As proposed, the project's site layout and multi -family residential
building design would be similar to the site layout and design of the existing Sedgwick
Landing mixed -use development adjacent to the north of the subject property at the
northwest corner of the Sedgwick/Sidney Road intersection, Findings 1, 17, 18.
2, The proposed project will not hinder neighborhood circulation or discourage the
permitted development or use of neighboring properties. Any traffic impact resulting
from the proposed development on the surrounding road network will be addressed
through channelization within existing roadways to the north, west, and east of the
subject property. MDNS conditions address required frontage and road improvements,
and require that property owners within the proposed development are responsible for
maintenance of all roadway improvements and landscaping within the existing and
proposed right-of-way. Stormwater runoff would be discharged to downstream drainage
areas off -site at rates less than the existing condition of the subject property. In this way,
discharge of runoff would not have an adverse impact on the use of neighboring
properties. MDNS conditions address stormwater control requirements and design,
installation of any downstream drainage improvements as necessary, and maintenance of
storm drainage facilities by the owner or homeowners association. bindings 1, 3 -- 8, 10,
17, 32, 33.
3. The design is compatible with the physical characteristics of the subject property.
The design avoids construction within Wetlands B and C, which comprise the central
portion of the subject property, except for an access road between the main portion and
northwest portion of proposed multi -family residential development. The proposed
Findings, Conclusions, and Decision
Cite of Port Orchard Hearing GxamillOr
Soulhivest Sidney Plana Mixed -Use Develol nnenl, CUP 037-12
Page 13 of 1 8
development would collect stormwater runoff in three detention ponds on the subject
property because the property's soils and high groundwater table during the wet season
render conditions not conducive to on -site infiltration. Exhibit 1, 3 — 8, 10, 16, 18 — 24.
4. With conditions, impacts will be mitigated in a manner equal to or greater than the
standards of the City code. Wetland, stormwater, and traffic impacts would be
mitigated in compliance with City code. Conditions are necessary to ensure compliance
with comments and stipulations of South Kitsap Fire & Rescue, which are required by
City code. Findings 1, 3 — 8, 10, 18 .-- 24, 26, 32, 33, 35.
5. With conditions, there will be no conflict with the health and safety of the
community. Wetland, stormwater, and traffic impacts would be mitigated in compliance
with City code. MDNS conditions address wetland, stormwater, and traffic impacts.
Conditions are necessary to ensure compliance with comments and stipulations of South
Kitsap Fire & Rescue, which are required by City code. MDNS conditions address
required frontage and road improvements, and require that property owners within the
proposed development are responsible for maintenance of all roadway improvements and
landscaping within the existing and proposed right-of-way. Stormwater runoff would be
discharged to downstream drainage areas off -site at rates less than the existing condition
of the subject property. In this way, discharge of runoff would not have an adverse
impact on the use of neighboring properties. MDNS conditions address stormwater
control requirements and design, installation of any downstream drainage improvements
as necessary, and maintenance of storm drainage facilities by the owner or homeowners
association. MDNS conditions also address provision of sanitary sewer and water service
to the proposed development through extension of sewer and water mains within
surrounding roads. A condition is also necessary to ensure a latecomer's agreement is in
place for those who benefit by the sizing of the proposed extension. Findings 1, 3 --10,
17-29, 32-35.
i. There will be no pedestrian and vehicular traffic that would be hazardous or
conflict with existing and anticipated traffic in the neighborhood. MDNS conditions
address required frontage and road improvements and require that property owners within
the proposed development are responsible for maintenance of all roadway improvements
and landscaping within the existing and proposed right-of-way. Sidewalks would be
constricted along the frontages of the proposed development and along internal roads
within the proposed development. Any traffic impact resulting from the proposed
development on the surrounding road network will be addressed through channelization
within existing roadways to the north, west, and east of the subject property. Findings 1,
3 -- 8, 18, 32, 33, 35.
7. With conditions, the proposed project will provide adequate public facilities or
services and will not adversely affect public services to the surrounding area. The
proposed development would include a community recreation building, trails, and play
Findings, Conclusions, and Decision
City of'Po•t Orchard Hearing Examiner
Southwest Sidney Plaaa Mixed -Use Development, CUP 037-12
Page I4 Q 18
areas. MDNS conditions address stormwater control requirements and design,
installation of any downstream drainage improvements as necessary, and maintenance of
storm drainage facilities by the owner or homeowners association. MDNS conditions
also address provision of sanitary sewer and water service to the proposed development
through extension of sewer and water mains within surrounding roads. A condition is
also necessary to ensure a latecomer's agreement is in place for those who benefit by the
sizing of the proposed extension. Conditions are also necessary to ensure compliance
with comments and stipulations of South Kitsap Fire & Rescue. Findings 1, 3 — 9, 17,
18, 22-31, 35.
DECISION
Based on the above findings and conclusions, a conditional use permit to construct a mixed -use
development, including a 14,000 square foot retail building; nine, three-story apartment
buildings; recreational building; pool; and associated parking on property 13.78 acres in size at
the southwest corner of the Sedgwick/Sidney Road intersection, in Port Orchard, Washington, is
APPROVED, subject to the following conditions:5
A. SEPA MITIGATION CONDITIONS`'
Construction plans and profiles for all roads, storm drainage facilities and appurtenances
prepared by the developer's engineer shall be submitted to City of Port Orchard for review and
acceptance. No construction shall be started prior to said plan acceptance.
Prior to approval of the construction plans, all off -site easements must be recorded and submitted
to the City.
Transportation and Parks impact Fees shall be due at the time of Building Permit Application.
The Preliminary Landscape Plan dated December 21, 2012 shall be used as a guide to install
landscaping on the site. A final Landscape Plan shall be submitted with the application for the
SDAP. Two year landscape performance bonding shall be required prior to the Certificate of
Occupancy issuance.
5. The future Commercial Development area in the northeast portion of the site shall be restricted to
commercial uses only.
6. Wetland buffer enhancements as depicted in the Wetland mitigation plan by Port Madison
Associates LLC dated October 30, 2012 shall be completed and a five year performance bond in
place prior to issuance of the first building permit for the project.
7. Prior to commencement of construction activities it is the applicant's responsibility to obtain an
approved JARPA Permit. Conditions on the approved JARPA will also be conditions of approval
for this proposal.
s This decision includes conditions required to reduce project impacts as well as conditions required to meet City Code
standards.
G Conditions Nos. l — 31, SEPA Mitigation Conditions, appear as written within the City's MDNS, issued February
22, 2010.
Findings, Conclusions, and Decision
City Qf Poi-1 Orchard Hearing Examiner
Southwest Sidney Plana Mixed -Use Development, CUP 037-12
Page 15 of 18
8. Prior to issuance of a certificate of occupancy for each phase or building, the developer shall
complete the adjacent trail section. In addition, where the wetland buffer abuts either residential
units or walking trails, a split rail fence with wetland buffer signage shall be installed. The
applicant shall submit a fencing location plan for review by the Director of Community
Development with the SDAP application,
9. The information provided demonstrates this proposal is a Major Development as defined in the
most current City of Port Orchard Developer's Handbook at the time of complete application,
and as such will require a Stormwater Permit from Public Works.
10. Stormwater quantity control, quality treatment, and erosion and sedimentation control shall be
designed in accordance with the most current City of Port Orchard Developer's Handbook. The
submittal documents shall be prepared by a civil engineer licensed in the State of Washington.
The fees and submittal requirements shall be in accordance with City of Port Orchard Ordinances
in effect at the time of application.
11. The Washington State Department of Fish and Wildlife (WDFW) may require a Hydraulic
Project Approval. The proponent is responsible to comply with all requirements set forth by
WDFW.
12. "I'he project proponent shall be responsible for installing any necessary off -site downstream
drainage improvements as identified within the downstream capacity analysis, Procurement of
any permits and/or easements necessary to install said off -site improvements shall be the
responsibility of the project proponent. As indicated above, prior to approval of the construction
plat, all easements must be recorded and submitted to the City.
13. The site plan indicates that greater than I acre will be disturbed during construction. This
threshold requires a National Pollutant Discharge Elimination System (NPDI-S) Stormwater
Construction permit from the State Department of Ecology. More information about this permit
can be found at: http:// www.ecy.wa.gov/programs/wq/stonnwater/construction/ or by calling
Josh Klimek at 360-407-7451, email iokl461@ecy.wa.gov. This permit is required prior to
issuance of the Stormwater Permit.
14, The design of the infiltration facilities will be according to the current City of Port Orchard
adopted Stormwater Management Manual. Soils exploration shall be performed at the proposed
location of the facilities before final design to determine the infiltration rate and depth to seasonal
high ground water table and/or impermeable layer. The soil report sliall include Particle -Size
Analysis performed by ASTM Test Method D-422-63, soil log elevation, and location. The
storage volume of the facility shall be adjusted to reflect the true infiltration rates with a safety
factor of two applied. A Soils Engineer shall prepare the above information.
15. The owner or homeowners association (HOA) shall be responsible for maintenance of the storm
drainage facilities for this development following construction. Before issuance of Occupancy
Permits for this development, the person or persons holding title to the subject property for which
the storm drainage facilities were required shall record a Declaration of Covenant Associated
with Maintenance and Operation of Storm Drainage Facilities that guarantees the City that the
system will be properly maintained. Wording must be included in the covenant that will allow the
City to inspect the system and perform the necessary maintenance in the event the system is not
performing properly. This would be done only after notifying the owner or HOA and giving
him/them a reasonable time to do the necessary work. Should City forces be required to do the
work, the owner or HOA will be billed at the current City rates.
Findings, Conclusions, and Decision
City of Port Orchard Hearing Examiner
Sowhivest Sidney Plana Mixed -Use Development, CUP 037-12
Page 16 of 18
16. A Traffic Impact Analysis report is required for this site, including entering and exiting sight
distance and channeiization.
17, Frontage and road improvements shall be made on both Sedgwick Road and Sidney Avenue.
18. Roads shall not exceed 12% grade.
19. Horizontal curves for public roads shall have a minimum181 foot centerline radii as outlined by
the American Association of State Highway and Transportation Officials unless a technical
deviation is granted.
20. Construction of handicap access facilities within existing or proposed City right-of-way shall
conform to the requirements of the Americans with Disabilities Act.
21. All lots shall access from interior roads only. This note shall appear on the face of the final plat
map.
22. The property owners (within the plat) shall be responsible for maintenance of all roadway
improvements and landscaping within the existing and proposed private right-of-way including
all storm drainage facilities and traffic signage. A note to this effect shall appear on the face of
the final plat map and the accepted construction plans.
23. Wheelchair ramps shall be provided on both sides of the site approach. Include on the plan set
curb ramp details that meet the requirements of the Americans with Disabilities Act per WSDOT
Standard Plan F-40, as applicable, cement concrete sidewalk and approach details.
24. Any required sidewalk shall be constructed prior to roadway paving. This note shall appear on
the face of the final construction drawings.
25. Any work within the City right-of-way shall require a permit to perform work on City right-of-
way and possibly a maintenance or performance bond. This application to perform work in the
right-of-way shall be submitted separately. The need for and scope of bonding will be
determined at that time.
26. Per Port Orchard Municipal Code Section 16.55.030, dead end streets shall end in cul-de-sacs.
27. All sanitary sewer system improvements shall comply with the most current City of Port Orchard
Developer's Handbook.
28. Submit a copy of the sewer report from BI-IC Engineers, Inc. showing analysis of the existing
sewer system and proposed sewer system capacity.
29. All water system improvements shall comply with the most current City of Port Orchard
Developer's Handbook,
30. The water line shown on the plans indicate a 12" water main, the main is actually 8" diameter.
Also, the water main does not currently extend to the intersection of Sedgwick and Sidney as
indicated on the plans, it comes a little ways past the western edge of the property.
31. Submit a copy of the water report from PACT; Engineers, Inc. showing analysis of the existing
water system and the proposed water system capacity.
B. CONDITIONS REQUIRED TO MEET CITY CODE
32. A minimum of 1,500 gallons of water per minute, measured at a residual pressure of 20 p,s.i,, is
Findings, Conclusions, and Decision
City oj'Pori Orchard Hearing Lxcuniner
Southwest Sidney Pla-za Mixed -Use De»elopmeni, CUP 037-12
Page 17 gf'18
required to provide adequate fire flow for a building of 9,000 square feet, if the construction type
consists of Type V-B.
33. Hydraulic calculations or an On -Site fire flow test conducted shall be provided to the Fire District
showing that adequate fire flow can be provided. This information is needed to be provided and
approved by the Fire District before the District can approve any building permits.
34. Fire hydrants are not indicated on the plans. Before Fire District approval, plans shall be
submitted indicating fire hydrant locations. Plans shall indicate current fire hydrant locations as
this will impact hydrant locations within the project. Maximum spacing of fire hydrants is 400
feet between hydrants. The minimum required fire flow is based on the square footage and type
of construction of the building in accord with the Port Orchard Fire Code.
35. All of the buildings shall have a fire sprinkler system. Plans for the fire sprinkler system shall be
reviewed and approved by the South Kitsap Fire & Rescue's Fire Prevention Office prior to
installation. Submittals for review shall include specifications on all devices to be installed.
36. Before construction can begin on any lot, fire department vehicle access shall be provided.
Access roads shall be provided for all structures more than 150 feet from a public access road.
Access road shall be a minimum of 20 feet in unobstructed width, be designed and maintained to
support the imposed loads of fire apparatus (45,000 pounds) and shall have a surface that
provides all-weather driving capabilities,
37. Split rail or cedar fencing and a landscaped berm may surround detention ponds in lieu of black
vinyl/cyclone fencing. Landscaping subject to City review and approval shall be located between
the cedar fencing and the bottom of the berm.
38. if the proposed commercial use has a greater impact than a drugstore/drive-through use, then the
City may require additional traffic analysis and mitigation.
39. The Preliminary Drainage Plan shall address the capacity of the culvert within the southern
drainage course to handle drainage. If there is not enough capacity within the culvert, then the
City may require stormwater analysis and mitigation.
40. Any water/sewer extension to the west to connect with proposed residential development, rather
than along Sedgwick Road, is subject to a latecomer's agreement if appropriate.
Decided this Ydty of April 2013.
TI-IEODORE PAUI.1-IUNTER
City of Port Orchard Hearing Examiner
Sound Law Center
Findings, Conclusions, and Decision
Ciiy of Port Orchard Hearing Examiner
Souihvaesi Sidney Plaza Mixed- Use Development, CUP 03 7- 12
Page 18 of 18