023-11 - Resolution - Pre-Annexation Agreement with Home DepotIntroduced by: James Weaver
Requested by: James Weaver
Drafted by: Gregory A. Jacoby
Introduced: James Weaver
Adopted: August 9, 2011
RESOLUTION NO. 023-11
A RESOLUTION OF THE CITY OF PORT ORCHARD,
WASHINGTON, APPROVING THE PRE-ANNEXATION
AGREEMENT WITH HOME DEPOT AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT
WHEREAS, Home Depot is the owner of the property located northeast of the
Bethel Road SE and Salmonberry Road intersection at approximately 3855 Bethel Road,
SE, Port Orchard, Washington (the Property); and
WHEREAS, the Property is located within an area proposed for annexation to
the City commonly known as the Bethel Corridor North Annexation Area; and
WHEREAS, Home Depot plans to build a new Home Depot store on the
Property ("Project"). Home Depot obtained Site Plan Review approval from the Kitsap
County ("County") Hearing Examiner for the Project on June 11, 2007. Additional
permits for the Project have been approved or issued by the County, are pending with
the County, or will be submitted to the County or the City; and
WHEREAS, The City and County have different processes for the approval of
applications for projects like the Project. The City and County also have different
substantive standards for the development of projects like the Project. To address issues
arising as a result of these differences, the City and County have a mutual understanding
as to the manner in which development applications pending at the time of annexation
will be managed; and
WHEREAS, The City and Home Depot recognize that Home Depot has a vested
right to develop the Project pursuant to the approved or issued County permits and the
standards to which the Project is vested through the submission of complete applications;
and
WHEREAS, The City and Home Depot desire to enter into a Development
Agreement, as authorized by RCW 36.70B.170, which establishes procedures and
standards for the inspection of the Project and review and approval of any applications not
acted upon by the County prior to annexation of the Property by the City; and
WHEREAS, in accordance with RCW 36.70B.2oo, the City held a public hearing
on August 9, 2011 regarding the proposed Pre-Annexation Development Agreement, now,
therefore,
Resolution No. 023-11
Page 2 of 11
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
THAT: The City Council hereby approves the Pre-Annexation
Agreement with Home Depot in a form approved by the City Attorney
and attached hereto as Exhibit A and by this reference incorporated
herein.
THAT: The Mayor is authorized to execute, on behalf of the City, the
Pre-annexation Agreement with Home Depot.
PASS ED by the City Council of the City of Port Orchard, SIGNED by the Mayor and
attested by the City Clerk in authentication of such passage this gth day of August 2011
After· recording return to:
Kantor Taylor Nelson Boyd & Evatt PC
1501 Fourth Avenue, #1610
Seattle, WA 98101-3613
Attn: Glenn J. Amster
Washington State Recorder's Cover Sheet
Document Title: Pre-Annexation Agreement
Grantor: City of Port Orchard, a Washington municipal
corporation
Grantee: Home Depot U.S.A., Inc., a Delaware Corporation
Abbreviated Legal Description: Ptn. SW 1/4 NW 114 S 1, T 23, N R 1E, Kitsap
County, WA
*Complete legal description is on Exhibit A.
Assessor's Tax Parcel I.D.#: 012301-2-085-2001
Related Documents: NA
PRE-ANNEXATION DEVELOPMENT AGREEMENT
Home Depot Property (Bethel Corridor North)
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into between
the City of Port Orchard, a Washington municipal corporation ("the City"), and HOME
DEPOT U.S.A., INC., a Delaware corporation ("Home Depot").
RECITALS
A. Home Depot is the owner of the property located northeast of the Bethel
Road SE and Salmonberry Road intersection at approximately 3855 Bethel Road SE, Port
Orchard, Washington, legally described on Exhibit A ("Property").
B. The Property is located within an area proposed for annexation to the City
commonly known as the Bethel Corridor North Annexation Area ("2011 Annexation").
C. Home Depot plans to build a new Home Depot store on the Property
("Project"). Home Depot obtained Site Plan Review approval ("Site Plan Approval")
by the Kitsap County ("County") Hearing Examiner for the Project on June 11, 2007
(Hearing Examiner Case No. 070125-004). Additional permits for the Project have been
approved or issued by the County, are pending with the County, or will be submitted to
the County or the City
D. The City and County have different processes for the approval of
applications for projects like the Project. The City and County also have different
substantive standards for the development of projects like the Project. To address issues
arising as a result of these differences, the City and County have a mutual understanding
as to the manner in which development applications pending at the time of annexation
will be managed.
E. The City and Home Depot recognize that Home Depot has a vested right
to develop the Project pursuant to the approved or issued County permits and the
standards to which the Project is vested through the submission of complete applications.
F. The City and Home Depot desire to enter .into a Development Agreement,
as authorized by RCW 36. 70B.l70, which establishes procedures and standards for the
inspection of the Project and review and approval of any applications not acted upon by
the County prior to annexation of the Property by the City.
Based on the foregoing considerations, the City and Home Depot enter into the
following Development Agreement.
Pre-Annexation Agreement
Home Depot
Page 2 of9
AGREEMENT
1. Approved or Issued Permits. The City recognizes that it is legally required to
permit development of the Project in accordance with the terms of permits or approvals
for the Project submitted to or issued by the County, or logically arising from the permits
or approvals that have been issued by the County and other agencies with jurisdiction
prior to annexation ("Project Permits").
2. Conditions. Home Depot shall construct the Project in accordance with the Site
Plan Approval, and comply with all conditions of said approval. The parties hereto
intend for the Project to be inspected by the County for compliance with the Site Plan
Approval. Upon annexation of the Property to the City, any proposal to alter the project
in a manner that is not consistent with the Site Plan Approval will be required to comply
with the following process:
A. Minor Revisions. Minor revisions may be permitted by the City in accordance
with the requirements of the County Code. A "minor" revision means any
proposed change that does not involve substantial alteration of the character of the
prior approval, including dimensional or gross floor area increases or decreases of
no more than ten percent.
B. Major Revisions. A major revision, including any requested change in permit
conditions, shall be processed by the City in accordance with the City Code. A
"major" revision means any expansion of the lot area covered by the permit or
approval by more than ten percent, or any proposed change whereby the character
of the approved development will be substantially altered. A major revision exists
whenever intensity of use is substantially increased, performance standards are
substantially reduced below those set forth in the original permit, significant, new
detrimental impacts on adjacent properties or public rights-of-way are created or
substantially increased, including increased trip generation of ten percent or more,
or the site plan design is substantially altered, including dimensional or gross floor
area increases of ten percent or more.
3. Development Review and Inspection Process. Upon annexation, of the Property
by the City, any permits or approvals required for the Project but not previously
submitted to the County shall be submitted to and processed by the City utilizing the
process provided for the permit or approval in the Port Orchard Municipal Code ("City
Code"). The City shall not impose any new conditions or require dedications relating to
permits or approvals previously submitted to the County unless such conditions or
dedications were required by the Project Permits; provided, the City may require Home
Depot to pay the cost of the City's review, and any charges and fees for any permit
application submitted to the City, so long as such costs, charges and fees are based on a
schedule applicable to any other commercial project in the City for such permits.
Pre-Annexation Agreement
Home Depot
Page 3 of9
4. Development Standards. In consideration for Home Depot's agreement to the
provisions of section 7 below, the City agrees the Project is vested to the development
standards of the Kitsap County Code ("Development Standards") in effect on the
Property on the date the application for Site Plan Approval for the Project was submitted.
Any application to the City for permits or approvals for development of the Project shall
be governed by the Development Standards. Notwithstanding the foregoing, Home
Depot may, at its sole discretion and option, elect to subject a permit or approval for the
Project to some or all of the standards of the City Code without waiving its vested rights.
5. Inspections. Notwithstanding annexation of the Property by the City, the parties
intend to urge the County to conduct any required construction inspections of the Project
in accordance with the process provided for inspections in the relevant code provisions.
The City shall not require modifications to work already inspected and approved by the
County. If the County is unable or unwilling to conduct required inspections, Home
Depot agrees that the City will have the option of hiring a third-party consultant to
conduct the required inspections. Home Depot agrees to reimburse the City for any costs
associated with said inspections and/or to pay inspection fees at the same rates charged to
any other commercial project in the City should the City choose to conduct the
inspections itself.
6. Term. The term of this Agreement shall be five (5) years from the effective date
of annexation of the Property into the City or until the Project receives final inspection
and issuance ofthe certificate of occupancy, whichever occurs first. Following the
expiration of the term of this Agreement, the Project shall be subject to state law and City
Code requirements for permitted and nonconforming uses.
7. Consent to Annexation. With full knowledge and understanding of these
consequences of annexation and with full knowledge and understanding of the right to
oppose annexation of the property to the City of Port Orchard, Home Depot agrees to
sign a petition for annexation to the City of the Property as provided in RCW 3 5.13, as it
now exists or as it may hereafter be amended, at such time as the Home Depot is
requested by the City to do so. Home Depot further agrees not to litigate, challenge or in
any manner contest annexation to the City, This Agreement shall be deemed to be
continuing and, if the 2011 Annexation does not occur for whatever reason, including a
decision by the City not to annex, Home Depot agrees to sign any and all subsequent
petitions for annexation provided any such future annexation proposal imposes no
additional fiscal or other obligations on the Property than the 2011 Annexation.. This
agreement shall be a covenant running with the land. In the event that all or any portion
of the Property is sold, transferred, or subdivided into smaller lots, the future owners shall
be bound by the provisions of this paragraph. Notwithstanding any other provision of
this Agreement, this consent to annexation shall only be valid for a period of ten ( 1 0)
years from the date this Agreement is signed by Home Depot.
8. Notices. Any notice or other communications required or permitted by this
Agreement shall be sufficiently given if sent by certified mail, postage prepaid, or by
Pre-Annexation Agreement
Home Depot
Page 4 of9
Federal Express or other nationally recognized overnight courier service, addressed as
follows:
Home Depot:
Home Depot U.S.A., Inc.
2455 Paces Ferry Road, NW
Atlanta, Georgia 30339Attn: Real Estate & Legal Departments
(Ref: Port Orchard, W A, Store No. 8565)
and to: Home Depot U.S.A., Inc.
3800 West Chapman
Orange, California 92868
Attn: Real Estate & Legal Departments
City of Port Orchard:
James Weaver
City Development Director
216 Prospect Street
Port Orchard, W A 98366
Phone: 360-876-4991
Facsimile: 360-876-4980
With a copy to:
Gregory A. Jacoby
City Attorney
P.O. Box 1317
Tacoma, WA 98401
Phone: 253-627-1181
Facsimile: 253-627-2247
9. Amendments. No change or modification of this Agreement shall be valid unless
the same is in writing and is signed by authorized representatives of the City and Home
Depot; provided, any such amendment shall follow the process established by law for the
adoption of a development agreement, as set forth in RCW 36.70B.200. No purported or
alleged waiver of any of the provisions of this Agreement shall be binding or effective
unless in writing and signed by the party against whom waiver is sought to be enforced.
10. Serious Threat to Public Health and Safety. Pursuant to RCW 36.70B.170(4), the
City reserves the authority to impose new or different regulations affecting the Property
to the extent required by a serious threat to public health and safety.
Pre-Annexation Agreement
Home Depot
Page 5 of9
11. Recording; Binding Effect; Assignment. This Agreement and any subsequent
amendments thereto shall be recorded with the Kitsap County Auditor. Horne Depot
shall be responsible for the cost of recording this Agreement and any subsequent
amendments thereto. The rights, obligations, conditions and interests set forth in this
Agreement shall run with the land and shall inure to the benefit of and be binding upon
Home Depot, and its heirs, personal representatives, successors and assigns to the
Property. Horne Depot shall have the right to convey, assign, apportion or otherwise
transfer any and all of its rights, obligations, conditions, and interests under this
Agreement; provided, however, within thirty (30) days of the effective date of Horne
Depot's conveyance, assignment, apportionment, or other transfer of its rights under this
Agreement, Horne Depot must provide notice to the City of the same.
12. Relationship of the Parties. Notwithstanding any other provlSlon of this
Agreement, or any other agreements, contracts, or obligations which may derive
herefrom, nothing herein shall be construed to make the City or Home Depot partners or
joint venturers, or to render any other parties liable for any of the debts or obligations of
the other parties, it being the intention of this Agreement merely to create the agreements
set forth herein.
13. Specific Performance. The parties specifically agree that damages are not an
adequate remedy for breach of this Agreement, and that the parties are entitled to compel
specific performance of all material terms of this Agreement by any party in default
thereof.
14. No Third Partv Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties hereto and their successors and assigns. No other
person shall have any right of action based upon any provision of this Agreement.
15. Applicable Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of Washington. Any action with respect to this
Agreement shall be brought in Kitsap County Superior Court, Port Orchard, Washington.
16. Multiple Originals. This Agreement may be executed in multiple copies, each of
which shall be deemed an original.
17. Entire Agreement; Construction. This Agreement constitutes the entire
agreement of the parties and incorporates all prior discussions and agreements. The
captions throughout this Agreement are for convenience and reference only and the
words contained in them shall not be held to expand, modify, amplify or aid in the
interpretation, construction or meaning of this Agreement. All parties hereto have been
represented by legal counsel and accordingly hereby waive the general rule of
construction that an agreement shall be construed against its drafter.
Pre-Annexation Agreement
Home Depot
Page 6 of9
18. Attorney's Fees. In the event that any party to this Agreement brings a lawsuit
against any other party in order to enforce any provision of this Agreement or to redress
any breach thereof, the prevailing party in any such lawsuit shall be entitled to recover its
costs and reasonable attorney's fees in addition to any other available remedy.
IN WITNESS WHEREOF, this Agreement was executed by the parties on the
dates hereinafter indicated.
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HOME DEPOT U.S.A., INC., a Delaware Corporation
By: ____________________________ _
Name: -------------------------------Its: ________________ _
Pre-Annexation Agreement
Home Depot
Page 7 of9
STATE OF WASHINGTON
COUNTY OF KITSAP
)
)
)
ss.
I certify that I know of have satisfactory evidence that Lary Coppola is the person who
appeared before me, and said person acknowledged that he/she signed this instrument, on oath
stated that he/she was authorized to execute the instrument and acknowledge it as the Mayor of
the City of Port Orchard to be the fee and voluntary act of such party for the purposes mentioned
in the instrument.
SUBSCRIBED AND SWORN to before me this Ja_ day of Ai.y).jJ 2011
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
OTARY PUBLIC in ~or the State~ ashing~on, residin~ at · t"~§ .
My appomtment exp1res: !-) · .
On , 2011, before me, ____________ _
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her authorized capacity, and that by her
signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY PUBLIC
(SEAL)
Pre-Annexation Agreement
Home Depot
Page 8 of9
EXHIBIT A
Legal Description
T11at portion ofthe Southwest Quarter of the Northwest Qmuter, Secti{)n 1, Township 23
North. Range 1 East, W~M., in Kitsa.p County. \'.tashington~ beghmfug at the West Quarter
comer of said Section. 1;
Thence a.lrutg the section line North 2<>44'54" East 666.12. feet;
Thettoo South88o03'50'' East 30 feet to apotnton Easterly right ofway of Bethel Road;
Thence North 2ruM'S4" East 16653 feet to the h"Ue point of beginning~
Thence South 88o03'50" East 1295 feet~ more ot·lesst to East line of South Half of North Half
of Southwest Quarter ofNorrhwest Quarter;
Thence alru:.g East H.1w North . .2"24' 12, East 165 feet; more or less. to N(nthoost <~orner of said
South. Half of the North Half of the Southwest Quaner ofthe Northvlest QUarter;
Thence North.SS~owss .. West along North Une 1323,96 feet;
Thence South 2o44 • 54» West 166.50 feet to the true point of beginning;
Except th~ West one and one-third acres.
Pre-Annexation Agreement Exhibit A
Home Depot
Page 9 of9