048-09 - Pottery Three, LLC - ContractAfter Recording Return to:
City Clerk
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
POTTERY 200909170016
Agreement Rao Fee: $ 74.00
09/17/2009 09:07 AM Page: 1 of 13
Walter Washington Kitsap Co Auditor
11111111111111 I 111111111111111111111111111111111111111111111111 I 11111111111111111111111
DEVELOPER'S AGREEMENT FOR REIMBURSEMENT FOR
SIDNEY AVENUE SANITARY SEWER EXTENSION
GRANTORS: Pottery Three LLC
City of Port Orchard, a municipal corporation
GRANTEE: The Public
LEGAL DESCRIPTION: SWIA NWI/4 Section 2, Township 23 North,
Range 1 East.
Complete legal description attached as Exhibit D for Benefited Contributing
Properties and as Exhibit E for Benefited Non -Contributing Properties.
ASSESSOR'S TAX PARCEL ID# 022301-2-196-2006:
List of Parcel numbers of the Benefited Contributing Properties is included in
Exhibit D and for Benefited Non -Contributing Properties in Exhibit E.
This AGREEMENT, made this Z 5 day of AUQ ��t 2009, between
Pottery Three LLC ("Developer") and the City of Port Orchard, Washington ("City".)
RECITALS
A. The City owns and operates a sanitary sewer system, (the "System"),
within and adjacent to its City limits; and
B. The Developer made certain improvements to the System
("Improvements") in order to provide adequate sanitary sewer system capacity for the
Developer's development known as the Short Subdivision No. S-1143, and legally
described in Exhibit D attached hereto.
Page 1 of 12
C. The improvements consist of the construction of approximately 400
feet of sanitary sewer gravity main and all sewer components incidental thereto, and
are more particularly described in Exhibit A and depicted in Exhibit B, attached
hereto.
D. The Developer, pursuant to RCW 35.91.020 and City of Port Orchard
Ordinance 1852, is entitled to reimbursement for a fair pro rata share of the
construction costs of the Improvements constructed by it that are part of the System.
Reimbursement charges are to be assessed against Benefited Non -Contributing
Properties, as defined below, and to be paid to the City and remitted to the Developer
at the time said properties are connected to the sewer system.
E. The City Council, by Resolution No.��_, has authorized the
Mayor to execute this Agreement.
THEREFORE, in consideration of the mutual promises of the parties and other good
and valuable consideration, the parties hereby agree as follows:
1. All of the recitals set forth above are adopted by the parties as material
elements of this Agreement.
2. Cost of Construction. The cost of construction of the Improvements was
Forty Two Thousand Nine Hundred Forty Four and 50/100 Dollars ($42,944.50), sales
tax included, as itemized in Exhibit C.
3. Benefited Contributing Properties. Those properties, the legal
descriptions of which are attached hereto as Exhibit D, are owned by the Developer
and are considered benefited contributing properties ("Benefited Contributing
Properties") and thus will not be assessed reimbursement charges pursuant to the
terms of this Agreement, so long as the Benefited Contributing Properties'
connections to the System are not increased in size or capacity from the present size
and capacity of those connections. To the extent that a Benefited Contributing
Property increases the size or capacity of its connection to the System, that Benefited
Contributing Property shall become a Benefited Non -Contributing Property, defined
below, for purposes of this Agreement, and shall be subject to assessment for such
increased size or capacity.
4. Benefited Non -Contributing Properties. The Benefited Non -
Contributing Properties that are subject to reimbursement charges under this Agreement
are set forth and legally described in Exhibit E, which is attached hereto and by
reference incorporated herein.
5. A. The fair pro rata share of the total project costs of the extension, to
be collected from the owner or owners of the Benefited Non -Contributing Properties
prior to connection. The fair pro rata share of the total project costs, which is calculated
using the formula set forth in Exhibit F attached hereto, shall be $14,126.48 per acre.
Page 2 of 12
B. For purposes of this Agreement, a Benefited Non -Contributing
Property shall be deemed to have tapped into or otherwise connected to the System
at such time as the City receives a complete building permit application for said
property. Payment of the assessment shall be made prior to the issuance of said
building permit.
6. Administrative Costs. Pursuant to Section 6 of Ordinance No. 1852,
Developer shall pay to the City an administrative fee of $200 plus $25.00 for each tax
account parcel subject to this Agreement. Developer shall pay this fee, in the amount
of $275.00 ($200 + (25.00 x 3)), prior to the Mayor's signing of this Agreement.
7. Right to Reimbursement. The City shall collect the assessed charge
referenced in Paragraph 5 above, and shall remit said charge to the Developer or its
designated successor within 60 days following the City's receipt thereof.
8. Termination of the Right to Reimbursement. This Agreement shall
become effective upon its being recorded with Kitsap County Auditor and shall remain
in full force and effect until the earlier of a) a period of twenty (20) years after the date
of such recording; b) until the Developer or its successors or assigns shall have been
fully reimbursed the amount set forth in Exhibit F; or c) upon the City having
redesigned and reconstructed a part of the System so that the Improvements constructed
by the Developer are rendered useless, as determined and at the sole discretion of the
Director of Public Works.
9. Lien and Recording. Assessments against the Benefited Non -
Contributing Properties under this Agreement shall constitute a lien against those
properties. The Developer at his sole expense shall record this Agreement with the
Kitsap County Auditor's Office and either the City or Developer may also record such
other notices as are necessary to put owners of the Benefited Non -Contributing
Properties on notice as to the assessments referred to herein. This Agreement shall be
considered null and void if it has not been submitted to Kitsap County to be recorded
within 30 days of the date of this Agreement.
10. Notices.
A. All notices to be sent to the Developer, including amounts collected
under this Agreement, shall be sent to the Developer at the following
address:
Craig Baldwin
Pottery Three LLC
217 SW Wilkins Dr.
Port Orchard, WA 98366
Page 3 of 12
B. All notices to be sent to the City shall be sent to the City at the following
address:
City Treasurer
City of Port Orchard
216 Prospect Street
Port Orchard, WA 98366
C. The City shall send the amounts collected under this Agreement to the
Developer's mailing address. The Developer is responsible for
providing the City with a valid mailing address throughout the
duration of this Agreement; but in any event the Developer shall
update the Developer's contact information by notice to the City
every two years from and after the date this Agreement is executed,
through the duration of this Agreement pursuant to RCW
35.91.020(3) and Ordinance No. 1852 (Section 7). If the Developer
fails to comply with the notification requirements of this subsection
within sixty days of the specified time, then the City may collect any
reimbursement funds owed to the Developer under this Agreement
and such funds must be deposited in the Water -Sewer Cumulative
Reserve fund of the City.
11. Covenant Running With the Land and Assignment. This Agreement
shall be binding on the City and the Developer and their respective successors, grantees
and assignees and shall also be binding on the owners of the Benefited Non -
Contributing Properties, their heirs, successors, grantees and assigns. This Agreement
shall constitute a covenant running with all of the Benefited Non -Contributing
Properties and the Benefited Contributing Properties; provided, however, that the
Developer, upon giving written notice to the City's Finance Director, may assign its
rights and delegate its duties under this Agreement to any person. In the event of such
assignment, the assignee shall have all of the rights, duties and obligations of the
Developer under this Agreement.
12. Severability. If any court or tribunal declares any provision of this
Agreement to be invalid, the remaining provisions of this Agreement shall not be
affected thereby. This Agreement, or any part hereof, if determined by law to be
invalid, shall not waive any rights the Developer has to reimbursement of the costs of
construction of the Improvements to the Extent provided for in this Agreement.
13. Hold Harmless.
A. The Developer, his successors and assigns, agrees to release,
indemnify, defend, and hold the City, its elected officials, officers, employees, and
agents, harmless from any and all claims, costs, judgments, awards, or liabilities,
including but not limited to attorney's fees, to any person that may arise as a result of
the negligent acts or omissions of the Developer or the City.
Page 4 of 12
B. The City shall be entitled to rely with acquittance on the
provisions of this Agreement with respect to the fairness of the pro rata charges, and
upon the determination of the benefited properties as provided herein. Developer
agrees to indemnify, hold harmless, and defend the City in any challenge to the
method used to calculate the fair pro rata share applied to the parcels as set forth in
this Agreement.
14. Reservation of Authority. Nothing contained herein shall be
construed to affect or impair in any manner the right of the City to regulate the use of
its sewer system, of which the Improvements described herein shall become a part,
pursuant to the provisions of any ordinance, resolution, or policy now or hereafter in
effect. The imposition by the City of any such requirement shall not be deemed an
impairment of this Agreement though it may be imposed in such a manner as to
refuse service to an owner or owners of a parcel in the benefited area in order to
secure compliance with any such requirement of the City.
15. Modification. No waiver, alteration, or modification of any of the
provisions of this Agreement shall be binding unless in writing and signed by a duly
authorized representative of the City and Developer.
16. Venue/Attomev's Fees. This Agreement shall be construed in
accordance with the laws of the state of Washington, and jurisdiction of any resulting
dispute shall be in Kitsap County Superior Court. The prevailing party in any legal
action arising from this Agreement shall be entitled to all costs and expenses,
including attorney's fees, expert witness fees or other witness fess, and any fees and
expenses incurred on appeal.
DATED as of the day and year first above written.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement on the day and year first above written.
CITY OF PORT ORCHARD DEVELOPER
LA C P , ayor CRAIG BAL WIN,
Pottery Three, LLC
rA
..
City Clerk
Page 5 of 12
State of Washington )
ss
County of Kitsap )
I certify that I know or have satisfactory evidence that
Is the person who appeared before me, and said person acknowled d—thae they signed
this instrument, on oath, stated that (s)he was authorized to execute the instrument and
acknowledged it as the Mayor of the City of Port Orchard, respectively to be the free
and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated: (� `q ` q
otary Public in an for e Sta e of
Washington residing at
My commission expires
State of Washington )
ss
County of Kitsap )
I certify that I know or have satisfactory evidence that Craig Baldwin is the
person who appeared before me, and said person acknowledged that he is the managing
partner of Pottery Three, LLC and he signed this instrument and acknowledged it to be
his free and voluntary act for the uses and purposes mentioned in the instrument.
DATED: q _LI`0 9
Notary Public in and for he State f
Washington residing at
My commission expires �2
Page 6 of 12
EXHIBIT A
SIDNEY AVENUE SANITARY SEWER EXTENSION
LATECOMERS AGREEMENT
DESCRIPTION OF IMPROVEMENTS
The sanitary sewer main is located within the west side of the Sidney Avenue Right -of -
Way.
The assembly consists of approximately 400 feet of sewer main that extends from the
manhole at the intersection of Fireweed Street northerly four hundred feet along Sidney
Avenue to the north property line of 2350 Sidney Avenue.
Sanitary Sewer Manhole #2, (SSMH #2), and the 97 linear feet of sewer connecting
SSMH #2 to SSMH#1 are not included in the improvements that are dedicated to the
City nor are they included in this Agreement.
These improvements are depicted on the Record Drawing dated March 17, 2008, on file
with the City of Port Orchard Department of Public Work. A portion of this drawing is
shown in Exhibit B.
Page 7 of 12
120V 1 1/4'0 HOPE M
175TF 1 1/4.0 HOPE M
— LOT OB — —
6,590 SFT.
vI
L
J _
PFR A JJ1213713
EXISTING GA
AND UbUffTO BE REM
EXHIBIT B
SS 12
SSMHg1 -
HIM=286.SO
RIM=287,87
IE (W)=279.00
IE (W)-278
IE (SW)=279.00
IE (5)=278,
IE (NW)=279.00
IE (E)-278.90
4LE 8"° PVC ON34 5-0.5%
I P EXSIIAVGR�V[l Da
n ty I � 110 BF ftEMbVEO IYfWpY/
�I /
1 L HOUSE I LOTSA fT.
DECK 1 \ _
m 1 '1 4 CONCRETE(TYPICAL) h
N 89'0T1'W ]2.
EA
400LF 8'0 PVC D3034
XISTING SANITARY SEWER MAN HOLE }2
RIM ELEV 28470'
S. m (W) 274.90'
8' PVC (E) 274.90'
EXISTING SANITARY SEWER MANHOLE #1
RIM FUN,, 284,70' CE41
10' (NW) 276.20'
10- (E) 276.20'
8' (N) 276.34' A
LINE EE
TAP AN
/
`1' WEE TAP TO
E/YJSTNG LINE
Sa8,49a /
3/4' WEE TAP
/ TTT TO EXISTNG LINE
SEWERS FOR
r FEWER EXPANSION (TYP)
/ 4z
WIR
l0 CAS
l/
- CIO sw F." SEWER AND WATER
y"A GAS FOR 5-1143
Page 8 of 12
EXHIBIT C
SIDNEY AVE
LATECOMERS AGREEMENT
ITEMIZED COST OF CONSTRUCTION
Item
Quantity
Unit
Unit Price
Cost
Connect to Existing
Manhole
1
Each
$4,300.00
$4,300.00
8-inch PVC Sewer Installed
469
LF
$38.00
$17,822.00
6-inch PVC Sewer Installed
38
LF
$33.00
$1,254.00
8-inch Wye
2
Each
$150.00
$300.00
6-inch Wye
1
Each
$140.00
$140.00
48-inch Manhole
1
Each
$3,800.00
$3,800.00
Over -excavation
1
LS
$5,737.50
$5,737.50
Pavement Restoration
1
SY
$4,045.00
$4,045.00
Engineering & Surveying
1
LS
$5,546.00
$5,546.00
TOTAL
$42,944.50
Page 9 of 12
EXHIBIT D
SIDNEY AVE
LATECOMERS AGREEMENT
BENEFITED CONTRIBUTING PROPERTIES
LOT A: Tax Parcel No. 022301-2-196-2006
COMMENCING AT THE SOUTHWEST CORNER OF LOT D OF PORT ORCHARD
SHORT PLATE PO-2; THENCE SOUTH 89007'54" EAST, A DISTANCE OF 258.72
FEET TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89007'54"
EAST TO THE WEST RIGHT OF WAY LINE OF SIDNEY AVENUE, A DISTANCE OF
123.79 FEET, THENCE NORTH 20011'58" EAST, ALONG SAID RIGHT OF WAY, A
DISTANCE OF 87.92 FEET, THENCE NORTH 88054'22" WEST AND LEAVING SAID
RIGHT OF WAY, A DISTANCE OF 152.89 FEET, THENCE SOUTH 00052'06" WEST,
A DISTANCE OF 83.57 FEET TO THE POINT OF BEGINNING AND THE TERMINUS
OF THIS DESCRIPTION.
CONTAINING AN AREA OF 11,523 SQUARE FEET.
LOT B: Tax Parcel No. 022301-2-197-2005
COMMENCING AT THE SOUTHWEST CORNER OF LOT D OF PORT ORCHARD
SHORT PLAT PO-2; THENCE SOUTH 89107'54" EAST, A DISTANCE OF 180.00
FEET TO THE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89007'54"
EAST, A DISTANCE OF 78.72 FEET; THENCE NORTH 00052'06" EAST, A
DISTANCE OF 83.57 FEET; THENCE SOUTH 88054'22" EAST, A DISTANCE OF
78.71 FEET; THENCE SOUTH 00052'06" WEST, A DISTANCE OF 83.87 FEET TO
THE POINT OF BEGINNING AND THE TERMINUS OF THIS DESCRIPTION.
CONTAINING AN AREA OF 6,590 SQUARE FEET.
LOT C: Tax Parcel No. 202301-2-198-2004
BEGINNING AT THE SOUTHWEST CORNER OF LOT D OF PORT ORCHARD
SHORT PLAT PO-2; THENCE SOUTH 89107'54" EAST, A DISTANCE OF 180.00
FEET; THENCE NORTH 00152'06" EAST, A DISTANCE OF 83.87 FEET; THENCE
NORTH 88054'22" WEST, A DISTANCE OF 80.00 FEET; THENCE SOUTH 00052'06"
WEST, A DISTANCE OF 46.19 FEET, THENCE NORTH 89007'54" WEST, A
DISTANCE OF 100.00 FEET; THENCE SOUTH 00052'06" WEST, A DISTANCE OF
38.00 FEET TO THE POINT OF BEGINNING AND THE THERMINUS OF THIS
DESCRIPTION.
CONTAINING AN AREA OF 10,522 SQUARE FEET.
Total Parcel Areas = 28,635 Square Feet.
Page 10 of 12
EXHIBIT E
SIDNEY AVE
LATECOMERS AGREEMENT
BENEFITED NON-CONTRIBUTING PROPERTIES
Tax Parcel No. 022301-2-164-2004
THAT PORTION OF THE SOUTH TWO -FIFTHS OF THE NORTH THREE -FIFTHS
OF THE SOUTH 10 ACRES OF THE SOUTHWEST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 2 TOWNSHIP 23 NORTH RANGE 1 EAST,
WM., LYING WESTERLY OF SIDNEY ROAD; EXCEPT THE WEST 292 FEET OF
THAT PORTION OF THE SOUTH TWO -FIFTHS OF THE NORTH THREE -FIFTHS
OF THE SOUTH TEN ACRES OF THE SOUTHWEST QUARTER OF THE
NORTHWEST QUARTER OF SECTION 2, TOWNSHIP 23 NORTH, RANGE 1 EAST,
W.M., LYING EASTERLY OF THE FOLLOWING DESCRIBED RIGHT OF WAY LINE:
BEGINNING AT A POINT ON THE SOUTH LINE OF SAID NORTHWEST QUARTER
90 FEET EASTERLY OF THE SOUTHWEST CORNER THEREOF; THENCE
NORTHERLY TO A POINT OPPOSITE HIGHWAY ENGINEER'S STATION A
14/54+00 ON THE A 14 LINE SURVEY OF STATE HIGHWAY ROUTE NO. 16,
OLYMPIC DRIVE TO TREMONT STREET, AND 80 FEET EASTERLY THEREOF.
CONTAINING AN AREA OF 1.04 Acres
Tax Parcel No. 022301-2-166-2002
LOT A CITY OF PORT ORCHARD SHORT PLAT NO. PO-100R-1, (S-1107),
RECORDED UNDER AUDITOR'S FILE NO. 200101250102, BEING AN
AMENDMENT OF 3223748/749, IN VOLUME 15 PAGES 225 & 226. BEING A
PORTION OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 2 TOWNSHIP 23 NORTH RANGE 1 EAST, W.W., KITSAP COUNTY,
WASHINGTON. EXCEPT THE SOUTH 20 FEET FOR FIREWEED ROAD PER
RIGHT-OF-WAY RECORDED UNDER AUDITOR'S FILE NO. 200010040157.
CONTAINING AN AREA OF 1.00 Acres
Tax Parcel No. 022301-2-167-2001
LOT B CITY OF PORT ORCHARD SHORT PLAT NO. PO-100R-1, (S-1107),
RECORDED UNDER AUDITOR'S FILE NO. 200101250102, BEING AN
AMENDMENT OF 3223748/749, IN VOLUME 15 PAGES 225 & 226. BEING A
PORTION OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 2 TOWNSHIP 23 NORTH RANGE 1 EAST, W.W., KITSAP COUNTY,
WASHINGTON. EXCEPT THE SOUTH 20 FEET FOR FIREWEED ROAD PER
RIGHT-OF-WAY RECORDED UNDER AUDITOR'S FILE NO. 200010040157.
CONTAINING AN AREA OF 0.35 Acres
Page 11 of 12
EXHIBIT F
SIDNEY AVE
LATECOMERS AGREEMENT
BENEFITED PROPERTIES FEE ANALYSIS
BENEFITED PROPERTIES
REIMBURSEMENT
ASSESSOR NO.
ACREAGE
CONTRIBUTING?
PRORATED SHARE
CHARGES
022301-2-196-2006
0.26
YES
$3,672.88
$0.00
022301-2-197-2005
0.15
YES
$2,118.97
$0.00
022301-2-198-2004
0.24
YES
$3,390.36
$0.00
022301-2-164-2004
1.04
NO
$14,691.54
$14,691.54
022301-2-166-2002
1.00
NO
$14,126.48
$14,126.48
022301-2-167-2001
0.35
NO
$4,944.27
$4,944.27
TOTALS
3.04
$42,944.50
$33,762.29
Total Project Costs
$42,944.50
Cost per Acre
$14,126.48
Page 12 of 12
.I 2-086 iaW 2-087
i
2-140
i 2-108 j 2.185 2-186 2-091 2-090
2-190
2,166
,�-104
2-094 2.101 2-168
FIREWEED 5T
3-015
001-00 009-00
3-017 3-021
002-00 z 008-00
Copyright ® 2009 Kitsop CSuntyool-0o