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HomeMy WebLinkAbout4740Filed for Record at Request of: 1878978888 18:32P BR£MERTON CITY OF ORD $89.88 Kitsap Co, WR When Recorded Return to: Name: Bremerton City Clerk Address: 239 Fourth Street Bremerton WA 98377 Port Blakely Development Agreement/MXD Zoning Document Title: Ordinance No. 4740 Reference Number of Document Assigned or Released: Not applicable Grantor's Name: City of Bremerton Grantee's Name: Not applicable Abbreviated Legal Description: PORTIONS OF SECTION 7, 18 AND 19 OF TOWNSHIP 24 NORTH, RANGE 1 EAST OF W.M. SITUATED IN KITSAP COUNTY, WASHINGTON. Assessor's Property Tax Parcel Account Numbers: See attached Exhibit D ORDINANCE NO. 4740 AN ORDINANCE of the City of Bremerton, Washington zoning the site commonly known as the Port Blakely property upon annexation as authorized by the City's Comprehensive Plan by Ordinance No. 4722; applying the "Mixed Use District" (MXD) zone for the site as established by Ordinance No. 4723; and adopting a Development Agreement as part of the site- specific zoning. The City Council of Bremerton makes the following findings: WHEREAS, the City amended its 1995 Comprehensive Plan by Ordinance No. 4722 on September 20, 2000 to adopt the Port Blakely Joint Planning Area Sub-Area Plan as an amendment to the City Comprehensive Plan, and WHEREAS, the City Council of Bremerton also approved the Three-Party Agreement by Ordinance No. 4722 on September 20, 2000, and Kitsap County approved the Three -Party Agreement by Ordinance No. 249-2000, on September 11, 2000, which Three -Party Agreement established certain terms and conditions relating to the Port Blakely Sub-Area site commonly known as the Port Blakely property ("Property"), and WHEREAS, the City of Bremerton, the Kitsap County Board of Commissioners and Port Blakely Communities executed the Three -Party Agreement consistent with and implementing the Port Blakely Sub-Area Plan for mixed use development, land uses, open space, infrastructure and services, and WHEREAS, upon annexation of the Property by the City, the City's Comprehensive Plan amendments in Ordinance No. 4722 authorized the zoning of the site from its Kitsap County Transitional Zone under the Three-Party Agreement and Kitsap County Code to the "Mixed Use District" (MXD) zone under the Bremerton Municipal Code. The MXD zoning category was added to the Bremerton Municipal Code by Ordinance No. 4723 adopted on September 20, 2000, and WHEREAS, the Development Agreement attached hereto as Exhibit C implements and is authorized by the Sub-Area Plan and Three-Party Agreement by applying specific project elements and development standards to the site consistent with the state's development agreement statute, RCW 36.70B.170 et.seq., and Bremerton Municipal Code § 21.02.900, and WHEREAS, the Bremerton City Council held a public hearing on the proposed MXD zoning and development agreement on November 29, 2000, and at the conclusion of such hearing determined that the Port Blakely Sub-Area property should be zoned "MXD" and a development agreement adopted concurrently as part of the zoning, NOW, THEREFORE, THE CITY OF BREMERTON DOES HEREBY ORDAIN THE FOLLOWING: Section 1. MXD Zoning; Development Agreement. The Port Blakely Property, as set forth on Exhibits A and B, is hereby zoned to Mixed Use District ("MXD"), upon annexation, as authorized by the City's Comprehensive Plan (including the Port Blakely Sub-Area Plan) as amended by Ordinance 4722, and the Kitsap County Transitional Zoning under the Three-Party Agreement and the Kitsap County Code shall no longer apply to the Port Blakely Property. The Development Agreement attached hereto as Exhibit C is approved as part of the site-specific MXD zone for the Port Blakely Property, and the Mayor is authorized to sign the Development Agreement in substantially the same form as Exhibit C. Section 2. Effective Date. This ordinance shall take effect ten (10) days following passage and publication. The City Clerk shall certify this adoption ordinance to the Kitsap County Commissioners upon the ordinance effective date. 111111111lllllllllllllll[[lll]lllllll[lllllll 7 7.2?z * g 27 BREI4£RTON CITY OF ORD t89.08 Kitsap Co, WA APPROVED by the City Council of Bremerton on the first reading this 29th day of November, 2000. PASSED by the City Council of Bremerton on the second reading this 6th day of December, 2000. Carol Arends, Council President APPROVED this [~'3 day of ~ , 2000. Lyrin~S. Horton, Mayor ATTEST: Kathleen McCluskey, dity Clerk EFFECTIVE DATE __ /,2- ol'/. oo _ PUBLICATION DATE __1,~-/../,oo _ ORBiN,~,IOE NUMBER ,/7,40- Exhibits: Exhibit A--Map of Port Blakely Site. Exhibit B--Legal Description of Port Blakely Site. Exhibit C--Initial Development Agreement for Port Blakely with Mixed Use District (MXD) zone classification Exhibit D--Assessor's Property Tax Parcel Account Numbers BR£M£RTON CITY OF ORD ~35.88 Kitzalo Co, WR EXHIBIT A--MAP OF PORT BLAKELY .~NNEXATION AREA /I 19120 Section line ['~["--J~] O Proposed Oeve/opment 0 600' 1200' 13oundory Port Blakely 1'=~1200' rapo~opay from 'abfke~ md Assoc~at,s Joint Planning Area BR£MERTON CITY OF OEO ~3S.88 Kitsap Co, ~fl EXHIBIT B--LEGAL DESCRIPTION OF PORT BLAKELY ANNEXATION AREA That portion of Sections 7, 18, and 19 of Township 24 North, Range 1 East of the Willamette Meridian in Kitsap County, Washington, described as a whole as follows: Beginning at the section comer common to Sections 17, 18, 19 & 20 of said Township and Range; thence along the east line of said section 18, North 02033'36" East 2650.40 feet to the east 1/4 section comer of said Section 18; thence continuing along said east line of said Section 18, North 02013'37" East 2665.51 feet to the section comer common to Sections 7, 8, 17 & 18 of said Township and Range; thence along the east line of said Section 7, North 03°14'29'' East 273.70 feet; thence South 49006'36" West 394.86 feet; thence South 22015'57" West 435.82 feet; thence South 51004'39" West 573.87 feet; thence South 72021'49" West 281.90 feet to the beginning of a 113 foot radius curve to the right; thence northwesterly along said curve an arc distance of 212.28 feet through a central angle of 107°38'11"; thence North 208.41 feet to the beginning of a 80 foot radius curve to the left; thence northwesterly along said curve an arc distance of 159.10 feet through a central angle of 113°56'42"; thence South 66°03'19" West 372.14 feet; thence South 24°07'12" West 254 .43 feet; thence South 38°38'11'' West 566.66 feet; thence South 05°05'55'' West 1897.32 feet; thence South 12°50'21'' West 833.49 feet; thence South 07°48'19" West 495.35 feet; thence South 46°57'31'' West 323.73 feet; thence South 33°30'41'' West 410.75 feet; thence South 17°32'08"West 860.92 feet; thence South 07° 42'01" West 2094.94 feet to the beginning of a 599.00 foot radius curve to the left; thence southeasterly along said curve an arc distance of 1356.06 feet through a central angle of 129° 42'36"; thence North 57°59'25'' East 911.61 feet; thence North 61035'44" East 692.67 feet to the beginning of a 1239.00 foot radius curve to the left; thence northeasterly along said curve an arc distance of 946.35 feet through a central angle of 43°45'45"; thence North 17°49'59" East 1763.31 feet to the point of beginning. BREMERTON CITY OF ORD $35.80 Kitsap Co, WA EXHIBIT C INITIAL DEVELOPMENT AGREEMENT Between PORT BLAKELY AND CITY OF BREMERTON Grantors: Port Blakely Tree Farms (Limited Partnership), a Washington limited partnership; and City of Bremerton, a Washington municipal corporation Grantees: Port Blakely Tree Farms (Limited Partnership), a Washington limited partnership; and City of Bremerton, a Washington municipal corporation Abbreviated Legal Description: Portions of Section 7, 18 and 19 of Township 24 North, Range 1 East of W.M. in Kitsap County, Washington Additional Legal Description: Attachment A Assessor Property Tax Parcel Account Numbers: 072401-4-050-2001 192401-1-002-2002 182401 - 1-001-2004 192401 - 1-003-2001 182401 - 1-003-2002 192401 - 1-004-2000 182401 - 1-004-2001 192401 - 1-005-2009 182401 - 1-005-2000 192401 - 1-006-2008 182401-1-006-2009 192401-1-007-2007 182401-1-007-2008 192401-1-008-2006 182401-1-008-2007 192401-1-009-2005 182401 -3 -007-2004 192401-2-001-2001 182401-4-001-2008 192401-2-002-2000 182401-4-002-2007 192401-3-002-2008 182401-4-003 -2006 192401-3 -003-2007 182401-4-004-2005 192401-4-007-2001 182401-4-005-2004 192401-4-008-2000 182401-4-006-2003 182401-4-007-2002 182401-4-008-2001 BREM£RTON CITY OF ORD ~39.88 Ki%zap Co, WR TABLE OF CONTENTS Page 1. PHASED PROJECT PLANNING .......................................................................... 2 1.1 Sub-Area Plan and Three-Party Agreement ........................................................... 2 1.2 Current (Threshold) and Future Development Standards ....................................... 3 1.3 No Development Until Master Plan ........................................................................ 3 2. PROJECT DESCRIPTION ..................................................................................... 3 3. PROJECT ELEMENTS AND DEVELOPMENT STANDARDS ........................ 4 3.1 Zoning; Density and Intensity Standards ................................................................ 4 3.2 Roads/Transportation Standards ............................................................................. 5 3.3 Water and Sanitary Sewer Standards ...................................................................... 5 3.4 Stormwater Standards ............................................................................................. 6 3.5 Open Space, Recreation and Trail Standards .......................................................... 6 3.6 Capital Facility Standards ....................................................................................... 6 3.7 Other Standards ....................................................................................................... 6 4. SEPA; MITIGATION ............................................................................................. 6 4.1 SEPA Determination for This Agreement .............................................................. 6 4.2 Master Plan ElS ...................................................................................................... 7 4.3 SEPA Review After Master Plan EIS ..................................................................... 7 4.4 Mitigation ................................................................................................................ 7 5. MASTER PLAN PROCESS ................................................................................... 7 5.1 City Coordinator; Review ....................................................................................... 7 5.2 Content of Master Plan ........................................................................................... 8 5.3 City Review Procedure ........................................................................................... 8 5.4 Schedule .................................................................................................................. 9 5.5 Future City Processing of Implementing Approvals; Plats; Binding Site Plans ................................................................................................................. 9 5.6 Grants, LIDs, Etc .................................................................................................... 9 6. TERM; VESTING; ................................................................................................. 9 6.1 Term ........................................................................................................................ 9 6.2 Vesting .................................................................................................................. 10 6.2.1 Project Elements and Threshold Development Standards ........................ 10 6.2.2 CAO and Stormwater Standards ............................................................... 10 6.2.3 Construction Standards ............................................................................. 10 6.2.4 Review Fees .............................................................................................. 10 6.2.5 Other Fees ................................................................................................. 11 6.2.6 City's Reserved Authority ........................................................................ 11 i BR£rl£RTON CITY OF ORD *39.60 Kitsat~ Co, [iR 6.3 Annual Review ...................................................................................................... 11 6.4 Due Diligence ....................................................................................................... 12 6.4.1 City Notice ................................................................................................ 12 6.4.2 Mediation .................................................................................................. 12 6.4.3 Mediation Report ...................................................................................... 13 6.4.4 Compliance with Court Decision or Mediation Report ............................ 13 6.4.5 Joint Planning Process .............................................................................. 14 7. GENERAL PROVISIONS ................................................................................... 14 7.1 Governing Law; Interpretation; ............................................................................ 14 7.2 Authority; Severability .......................................................................................... 14 7.3 Integration; Amendment; Minor Modifications .................................................... 14 7.4 Binding on Successors; Assignment; Enforcement .............................................. 15 7.4.1 Binding Agreement ................................................................................... 15 7.4.2 Assignment ............................................................................................... 15 7.4.3 Enforcement of Agreement ....................................................................... 15 7.4.4 Development Standard Modifications ...................................................... 16 7.5 Recording .............................................................................................................. 16 7.6 Headings; Attachments ......................................................................................... 16 7.7 PBC as Agent ........................................................................................................ 16 7.8 Time Is of the Essence .......................................................................................... 16 7.9 Disputes; Default and Remedies ........................................................................... 16 7.9.1 Dispute Resolution .................................................................................... 16 7.9.2 Default and Remedies ............................................................................... 17 7.9.3 Relief Against Defaulting Party or Portion of Property ............................ 17 7.10 Estoppel Certificate ............................................................................................... 17 7.11 No Third Party Beneficiary ................................................................................... 18 7.12 Cooperation ........................................................................................................... 18 7.13 Delays ................................................................................................................... 18 7.14 Notice .................................................................................................................... 18 LIST OF ATTACHMENTS Attachment "A"-Legal Description of Property Attachment "B" - Map of Property Attachment "C" - SEPA Compliance for Implementing Approvals ii BR£rl£RTON CITY OF ORO $~$.00 Kitsap Co, [l~t DEVELOPMENT AGREEMENT THIS INITIAL DEVELOPMENT AGREEMENT ("Agreement") is entered into effective ,2000, by and between the CITY OF BREMERTON, a Washington municipal corporation ("City" or "Bremerton"), and PORT BLAKELY TREE FARMS (LIMITED PARTNERSHIP), a Washington limited partnership ("Port Blakely"). RECITALS A. Port Blakely owns approximately 440 acres located adjacent to the City boundaries and within the designated Urban Growth Area for Bremerton, as legally described in Attachment A ("Property") and shown on the map attached as Attachment B. The City and Kitsap County each have approved the Port Blakely Sub-Area Plan for the Property, which is incorporated herein by this reference ("Sub- Area Plan"). The City, Kitsap County and Port Blakely have entered into a Three- Party Agreement which deals with the annexation, processing and other matters relating to the Property, which is incorporated herein by this reference. B. Port Blakely desires to annex the Property into the City pursuant to Chap. 35.13 RCW ("Annexation Statute"), which authorizes the City to enter into an annexation agreement fixing the applicable zoning and other development standards. Port Blakely has submitted its Annexation Petition for the Property, and the City has provided a Notice of Intent to Annex to the Boundary Review Board. C. Further, the legislature has authorized local governments to enter into a development agreement with the owner of real property to establish certain development rights (RCW 36.70B.170 et seq., "Development Agreement Statute"). Bremerton has implemented the Development Agreement Statute in Bremerton Municipal Code (BMC) § 21.02.900. D. Bremerton also has adopted the "Mixed Used District" (MXD) zoning classification, which calls for adoption of a Development Agreement to set forth the uses and development standards in the MXD zone. E. This Agreement has been processed, considered and executed in accordance with City and State requirements for annexation and Development Agreements. F. Port Blakely intends to develop a mixed-use light industrial, commercial, retail and residential project ("Project") by providing a range of employment and housing opportunities that would respond to identified and evolving market conditions and the feasible capacity of planned infrastructure systems to support them. -1 of 24- BR£MERTO)4 CITY OF' ORD ~$.88 Kitsap Co, WA G. Bremerton has determined that the Project is a development for which this Agreement is appropriate, and desires to enter into this Agreement. This Agreement will, among other things, eliminate uncertainty in long-term planning, provide for the orderly development of the Project on a comprehensive basis consistent with the City's current Comprehensive Plan and the Sub-Area Plan covering the Property, provide for services appropriate for development of the Project, encourage an employment base with diversity of jobs, improve the City's jobs-housing balance, effectively utilize resources within the City at a low economic cost to its citizens and otherwise achieve the goals and purposes for which the Annexation Statute and Development Agreement Statute were enacted. H. In exchange for the benefits to Bremerton described in the preceding recital, together with other public benefits that will result from the development of the Project, Port Blakely will receive by this Agreement assurance that it may proceed with the Project in accordance with applicable law, and therefore desires to enter into this Agreement. I. Concurrent with the approval of this Agreement, the Bremerton City Council, after a duly noticed public heating, made appropriate findings, including that execution of this Agreement furthers the public health, safety and general welfare, and that the development of the Property pursuant to the provisions of this Agreement are consistent with the City's Comprehensive Plan, Sub-Area Plan, and the Three- Party Agreement and the annexation ordinance for the Property. J. Following annexation, Port Blakely will develop a Master Plan and prepare a project-level EIS to further refine the Project. Upon the City's adoption of the Master Plan, the City concurrently will consider and adopt additional Development Standards as amendments to this Agreement to implement the Master Plan. AGREEMENT NOW, THEREFORE, in consideration of the promises, covenants, and provisions set forth in this Agreement, the parties agree as follows: 1. PHASED PROJECT PLANNING 1.1 Sub-Area Plan and Three-Party Agreement This Agreement implements the Sub-Area Plan and Three-Party Agreement applicable to the Property as adopted by the City Council in Ordinance No. 4722 on September 20, 2000. Further, the ordinance adopting this Agreement acknowledges the adoption of the MXD zoning applied to the Property simultaneously with its annexation. The City and Port Blakely intend the Sub-Area Plan and the Three-Party Agreement remain a part of this Development Agreement regardless of the outcome of any appeal of the Sub-Area Plan to the Central Puget Sound Growth Management Hearings Board, unless otherwise prohibited by law. -2 of 24- BR£M£RTON CITY OF ORO $89.88 Kitsap Co, WA 1.2 Current (Threshold) and Future Development Standards This Agreement incorporates by this reference, as if fully set forth herein, all of the "Performance Standards" and other conditions listed in the Sub-Area Plan and the obligations in the Three-Party Agreement (collectively adopted and referred to as "Threshold Development Standards" under this Development Agreement). Further, Port Blak¢ly and the City will adopt additional future Development Standards as a result of the Master Plan to be prepared pursuant to Section 5 below. These future Development Standards will cover subjects including but not limited to the following: bulk, scale and dimensions; landscaping; parking and loading; road standards and circulation; and desi~T~ guidelines. Upon the City's adoption of the Master Plan, the City concurrently shall consider and adopt additional Development Standards as amendments to this Agreement to implement the Master Plan. 1.3 No Development Until Master Plan. No development of the Property shall occur until the City's approval of the Master Plan and additional Development Standards by the amendment of this Agreement. 2. PROJECT DESCRIPTION The Project includes 440 acres, of which approximately 140 acres will remain undeveloped due to critical areas, buffers and mitigation. See 3~ 4.1.21 of Sub-Area Plan. Development of the remaining approximately 300 acres will consist of a maximum of 2.25 million sq. fi. of light industrial, commercial and related economic development land uses and up to a maximum of 100,000 sq. ft. of retail uses as described in the Sub-Area Plan, with the actual amount specified in the Master Plan based upon transportation analysis and the final amount of developable acres within the Project. See generally 3~3~ 4.1.21(1) & (5); 3q~~ 4.4.21(1)-(8) of Sub-Area Plan. Further, the Project is authorized for a maximum of 900 detached single-family equivalent residences (or the equivalent of up to a maximum of 1,200 multi-family or mixed use residential structures). See 3~ 4.1.21(6) of Sub-Area Plan. The parties agree to abide by the thresholds for development as set forth in the Three-Party Agreement, Subsections 6.1- 6.7 as quoted hereafter: 6. Sub-Area Plan Amendments. Unless the parties agree, all parities will abide by the thresholds for development within the following sections of the Sub-Area Plan: 6.1 Limitation on number of residences (900 single family- 1,200 multi-family in Sub-Area Plan 3~ 4.1.21(6). 6.2 Limitation of residential uses to no more than 1/3 of trips per Sub-Area Plan 3~ 4.1.21(1). -3 of 24- 8R£M£RTON CITY OF ORD *30.88 Kitsap Co, W8 6. $ Off-site traffic generation from uses established within the Project Area shall not exceed a total orS, 000 P.M. peak hour trips per Sub-Area Plan ~ ,1.$.21(1). 6.4 Monitoring traffic and reporting at 1,500 P.M. peak hour trips per Sub-Area Plan ~ q.$.21(2). 6.5 Limitation to 675 homes until pioneering businesses are developed per Sub-A rea Plan ~ ,l. ,1.21(2). 6. 6 Retail uses shall be capped at 100, 000 square feet per Sub- Area Plan ~4.1.21(5). 6. 7 Implementation of the recommendations (in the form of Master Plan policies or other mitigation measures adopted at the time of the Master Plan) of the following three environmental studies listed as Items 3, 4 and 6 in volume II of the Port Blakely Sub-Area Plan, unless those recommendations conflict with the goals, policies, performance standards or projects set forth in volume I of the Sub-Area Plan or with other EIS-related studies done for the Property: Recommendation for the Protection of Aquatic Resources for the Port Blakely Kitsap Lake Joint Planning Area, Associated Earth Sciences, Inc. (May 1999) (item #3); Comments on Recommendations for the Protection of Aquatic Resources, Reinelt Consulting (June 14, 1999) (item ~4); and Storm Water Management Recommendations, Associated Earth Sciences, Inc. (July 21, 1999 (item #6). The Project as described in this Agreement and the Sub-Area Plan presents a general concept for development. The City and Port Blakely recognize the precise location, amount, pattern and intensity of proposed development, locations and dimensions of roads or utilities, open space and trail corridors within the Property will be developed through the Master Plan. Actual amounts, patterns and intensities of development within the Project will respond to market conditions as long as consistent with the overall Port Blakely concept, the Sub-Area Plan, the Three-Party Agreement, and the provisions of this Agreement. 3. PROJECT ELEMENTS AND DEVELOPMENT STANDARDS The Project Elements, "Performance Standards" listed in the Sub-Area Plan, and other development standards and mitigation set forth in this Agreement and any amendments hereto are collectively referred to as the "Development Standards," and include the following: 3.1 Zoning; Density and Intensity Standards Upon annexation, the Property shall be zoned Mixed Use District ("MXD") under the Bremerton Municipal Code. The Project will contain the light industrial, -4 of 24- BR£rl£RTON CITY OF ORD *39.88 Kitsap Co, WR commercial, retail and residential uses at the densities and intensities consistent with the Sub-Area Plan. The general permitted and prohibited use categories for the industrial, commercial and retail portions of the Project are set forth in the Sub-Area Plan. See 3~ 4.1.21(5) of Sub-Area Plan. More detailed use categories will be developed and adopted as part of the Master Plan. The residential units may be developed as a mix of detached single family or the equivalent of attached residential units (i.e., townhouse, condominium, duplex or multi-family units) at the ratio of 1 single family detached unit = 0.75 attached unit, not to exceed 1,200 attached units. Authorized residential density ranges from 4 to 8 units/acres, except 8 to 16 units/ acre are authorized to support the Project's central mixed-use service/retail area. See ~3~ 4.1.21(5) & (6) of the Sub-Area Plan. The authorized 2.25 million square feet of industrial commercial uses and 100,000 square feet of retail uses refers to square feet of Gross Floor Area. "Gross Floor Area" is defined as follows for purposes of this Agreement: the number of square feet of total floor area bounded by the inside surface of the exterior walls of the structure measured at the floorline excluding parking levels, vent shafts, elevator shafts, stairwells, courts, upper stories of atriums and lobbys, mechanical floors or areas, and outside balconies that do not exceed a projection of six feet beyond the exterior walls of the building. 3.2 Roads/Transportation Standards The Sub-Area Plan establishes Performance Standards for offsite traffic generation, which are incorporated herein. See 3~ 4.3.21 of Sub-Area Plan. Further, the City and Port Blakely will implement the Master Transportation Agreement as set forth in Section 3 of the Three-Party Agreement. Road standards, access, circulation, parking, loading and related Development Standards will be developed as part of the Master Plan. 3.3 Water and Sanitary Sewer Standards All development within the Project will be served by public water and sanitary sewer. The City has issued a Conditional Water and Sewer Availability letter dated May 17, 2000, reflecting adequate capacity, facilities and supplies to provide water and sewer service to the Project upon satisfaction of specific conditions including provision of onsite and offsite system improvements. Water and sewer improvements required to serve the Project in phases are generally described in Table 13 of the Sub- Area Plan. The City and Port Blakely will adopt mutually approved funding methods for sewer and water facilities to serve the Project. Funding may include developer extensions with latecomer reimbursement systems, local improvement districts for other properties benefited by the improvements, credits against connection charges, participation in any future authorized tax increment financing, or other mutually approved funding methods. -5 of 24- BR£r~£RTON CITY OF ORO ~O.O~ Ki~sap Co, WA 3.4 Stormwater Standards The stormwater drainage system improvements shall be designed as part of the Master Plan using the City's code and stormwater manual as required under Table 2A of the Sub-Area Plan. More stringent or alternative drainage standards may be required to the extent applicable under 3~ 4.2.21(3) of the Sub-Area Plan. On-site portions of the storm drainage system will be dedicated to the City or maintained privately as determined in the Master Plan. Off-site portions of the storm drainage system, such as along roads, will be dedicated to the appropriate jurisdiction. 3.5 Open Space, Recreation and Trail Standards Required open space is established at approximately 140 acres (out of the total 440 acres) as described in 3g 4.1.21(3) of the Sub-Area Plan. Stormwater facilities and buffer crossing to accommodate utilities, trails and circulation may occur within the critical area buffers to the extent provided in Table 2A of the Sub-Area Plan. See 3g 4.1.21(3) of Sub-Area Plan. The Master Plan will include a coordinated system of active and passive recreation spaces, including trails or open space corridors that link major areas of the Project. See 3g 4.2.21(1) of Sub-Area Plan. 3.6 Capital Facility Standards The Level of Service standards and funding sources for roads, water, sewer, police, fire, parks/open space, schools and the other capital facilities and services set forth in Table 11 and elsewhere in the Sub-Area Plan are adopted for the Project. 3.7 Other Standards Any other Performance Standards or other conditions specified in the Sub- Area Plan as Project requirements are incorporated herein by this reference. Further, additional Development Standards will be developed as part of the Master Plan and added to this Agreement by amendment. 4. SEPA; MITIGATION 4.1 SEPA Determination for This Agreement The City and County adopted a "Determination of Significance/Adoption of Prior Environmental Documents" for the Sub-Area Plan and Three-Party Agreement, including annexation. The City continues to use phased review under SEPA (WAC 197-11-060(5)). The City has determined that this Agreement is within the prior SEPA determination for the Sub-Area Plan and Three-Party Agreement since the Project elements and Performance Standards and conditions of the Sub-Area Plan are being adopted hereby, and no new project elements or standards are being adopted with this Agreement. An EIS will be required as part of the Master Plan. -6 of 24- BR£MERTON CITY OF ORO $39.00 Kitsap Co, WA 4.2 Master Plan ElS Port Blakely will prepare a project-level EIS as part of the Master Plan. The EIS will be prepared by a third-party consultant selected by the City a~er County participation in the consultation selection process, and Port Blakely will reimburse the cost of the consultant. See Sec. 4 of 3-Party Agm. 4.3 SEPA Review After Master Plan EIS The City and Port Blakely intend that once the Master Plan EIS is completed, then that EIS will satisfy all SEPA requirements for build-out of the Project through Implementing Approvals (defined in Section 6.). SEPA compliance for the Master Plan will have analyzed a "Project Envelope" representing the maximum allowable Project densities and intensities described in Section 3 above using the Threshold Development Standards and mitigation measures approved in this Agreement, along with the additional future Development Standards to be adopted as part of the approval of the Master Plan ("Project Envelope"). The Project Envelope will be implemented by a series of permits and approvals issued over a period of time, and SEPA compliance for Project implementation will be conducted pursuant to Attachment C, subject to future SEPA amendments to the extent they override vesting under development agreements. 4.4 Mitigation. Any mitigation measures specified in the final ElS as needed to avoid significant adverse environmental impacts will become Project conditions of the Master Plan. After completion of the Master Plan, the City and Port Blakely intend that compliance with the Development Standards and other provisions of this Agreement, as amended, will satisfy all applicable concurrency and level of service requirements and constitute adequate and sufficient public facilities and services for the Project unless modified by mutual consent. 5. MASTER PLAN PROCESS Port Blakely and the City will prepare and consider adoption of a Master Plan for the Project under the following procedures: 5.1 City Coordinator; Review The City shall designate a lead person (either a staff person or City-retained consultant) to coordinate the Master Plan review, including SEPA compliance, engineering review, traffic analysis and other disciplines. Port Blakely will reimburse the City for the cost of staff or consultant work in the review, adoption and implementation of the Master Plan pursuant to a budget mutually approved by the City and Port Blakely. -7 of 24- BR£~I£RTON CITY OF ORD $89.88 Ki%sap Co, W~ 5.2 Content of Master Plan The City and Port Blakely will undertake studies necessary to develop the Master Plan, such as a master drainage plan, environmental studies, transportation and engineering analysis, a perimeter buffer plan (see 3~ 4.1.30B of Sub-Area Plan), design guidelines for commercial structures (see 3~ 4.1.30B of Sub-Area Plan), a monitoring plan (see 3~ 4.2.20F of Sub-Area Plan), open space and critical area buffer monitoring (see ~ 4.2.30C of Sub-Area Plan), and other appropriate plans or studies. Further, as provided in the Three-Party Agreement and Section 4.2.21(3) of the Sub- Area Plan, the City, Kitsap County and Port Blakely by mutual agreement will select and retain a third-party expert to evaluate the Master Plan EIS and environmental standards £or onsite protections for fish resources and other critical resources. As provided in the Three-Party Agreement, the City, County and Port Blakely each will pay one-third of the costs of retaining that third-party expert. The City and Port Blakely wish to avoid a duplicative process with separate consultants and engineers for Port Blakely and the City. Consequently, the City and Port Blakely intend to jointly designate independent consultants for these various plans and studies, which ~vill be funded by Port Blakely pursuant to a mutually approved budget and form agreement. 5.3 City Review Procedure. The Master Plan shall be developed by utilizing the procedures applicable to development agreements under BMC 21.02.900 and 21.02.850, i.e. a Type IH decision. The Master Plan's adoption by the City Council shall be in the form of an amendment to this Agreement and shall add appropriate Development Standards for build-out of the Project. The project review will also comply with Sections 7.1 and 7.2 of the Three- Party Agreement as quoted hereafter: 7.1 County Comment on Project Phases. Kitsap County will be given the opportunity to review and comment upon the Master Plan and each phase of the project within the Property prior to approval by the City of Bremerton. The contact person for the County who shall receive all notices and materials from the City shall be the Director of Community Development and delivered to the Kitsap County Courthouse, 614 Division St., Port Orchard, WA 98366, or such other address designated by the County. If the Property is developed in phases, the County will complete its review within ten (10) working days after receiving the plans for each phase. 7.2 Public Involvement. Project review shall include public involvement and participation of interested property owners, Tribes and appropriate agencies and groups. In -8 of 24- BR£MERTON CITY OF ORD *3$.BB Kitsa~ Co, WFt particular, the City during the environmental review process shall seek input from the Suquamish Tribe. 5.4 Schedule. The City Coordinator and Port Blakely shall develop and periodically revise a schedule for completion of the Master Plan and EIS. Once the Master Plan is submitted to the City, the City shall use reasonable efforts to diligently approve it, including appropriate hearings and decision by the City Council. 5.5 Future City Processing of Implementing Approvals; Plats; Binding Site Plans As part of the Master Plan, the City and Port Blakely will determine whether City processing of Implementing Approvals shall be conducted with a separate review team or modified review procedures, or whether applications should be processed under the City's existing code procedures. In either event, the Threshold Development Standards set forth in this Agreement, as amended by the future Development Standards adopted concurrent with the Master Plan, shall be applied. As part of the Master Plan, the City shall review the establishment of one or more binding site plans for industrial or commercial uses within the Project in accordance with RCW 58.17.020(7) and .040(4). Further, the City will consider adoption of short plat or long plat subdivision processes and boundary line adjustment provisions to allow creation of legally conveyable lots. 5.6 Grants, LIDs, Etc. The City and Port Blakely will cooperate and utilize their best reasonable efforts to aid and facilitate the arrangement of mutually beneficial financial mechanisms for the City, Port Blakely and subsequent users of the Property. Such types of support might include, but not be limited to, the pursuit of revenue bonds, local improvement districts, latecomer agreements, grants and other subsidies. 6. TERM; VESTING; 6.1 Term The term of this Agreement shall continue for a minimum of twenty (20) years, and shall continue thereafter unless and until either the City or the Port Blakely (or successor owners which own at least 51% of the Property by assessed value, excluding any City-owned land) gives notice of termination. The City's notice of termination shall use the same notice procedures which would apply to a rezone of the Project. The City shall mail notice to the Port Blakely under Section 7.14 and to any business or homeowner association or community groups which the City in its sole discretion determines should receive notice, but the failure to provide notice pursuant to this sentence shall not affect the validity of the City's termination notice using rezone procedures nor subject the City to any liability. Notice by the Port -9 of 24- BR£M£RTON CITY OF ORO Blakely (or successors) shall be delivered to the City as provided in Section 7.14 of this Agreement. No sooner than six (6) months after the notice of termination, the City shall hold public hearings and shall adopt zoning and related development standards for the Property. Upon such adoption, this Agreement shall terminate and thereafter the Property shall be governed by the adopted City zoning and related development regulations. 6.2 Vesting 6.2.1 Project Elements and Threshold Development Standards The Sub-Area Plan and Three-Party Agreement established the general project elements and some of the initial performance standards applicable to the Port Blakely Project, all of which have been incorporated into this Agreement as Threshold Development Standards pursuant to Section 1.2. Consequently, in accordance with the Development Agreement Statute, Port Blakely is vested to the Project Elements and those incorporated Threshold Development Standards in Sections 1, 2 and 3 during the term of this Agreement, as modified under Section 6.2.2. Further, after this Agreement is amended to adopt the additional Development Standards to be established by the Master Plan, and any other subsequent amendment of this Agreement, Port Blakely shall be vested to those additional Development Standards during the Buildout Period. During the Buildout Period, all Implementing Approvals shall be governed by these vested Development Standards. "Implementing Approvals" mean the applications submitted after adoption of the Master Plan for land use approvals, entitlements, and permits which implement the Project, including but not limited to permits for grading, site development, building, infrastructure, plats and boundary line adjustments, and other approvals. During the Buildout Period, the City shall not modify or impose new or additional Development Standards, except as follows: 6.2.2 CAO andStormwater Standards Additional or modified Development Standards for critical areas or stormwater may be imposed on the Project based on expert recommendations to the extent provided in Section 4.2.21(3) and Table 2A of the Sub-Area Plan and Section 5 of the Three-Party Agreement. 6.2.3 Construction Standards All applications for Implementing Approvals shall conform to the most current versions of the Uniform Building Code, and Uniform Fire Code and similar construction codes. 6.2.4 Review Fees Except as otherwise provided in the adopted Master Plan, Port Blakely and other applicants shall pay the City fees in effect on the date each Implementing -10 of 24- BR£M£RTON CITY OF ORO ~$.88 Ki~sap Co, W~ Approval is submitted for processing. The parties' execution of this Agreement acknowledges receipt of the filing fee for an application for a development agreement under the City's code. 6.2.5 Other Fees Except as otherwise provided in the adopted Master Plan, all utility connection fees, impact fees (if adopted by the City), and other fees not specifically addressed by this provision shall be paid in accordance with the rules in effect on the date the fee-generating activity occurs, but the amount of such fees shall take into account the facilities installed by Port Blakely at its cost (and not at the cost of the utility). 6.2.6 City's Reserved Authority In accordance with RCW 36.70B. 170(4), the City reserves the authority to impose new or different Development Standards to the extent required to prevent a serious threat to public health and safety. In addition, the identical provisions of Section 5.2 of the Three-Party Agreement and Section 4.2.20(F) of the Sub-Area Plan apply as quoted hereafter: During the Master Planning phase, a monitoring plan will be developed for stormwater discharge areas from the project (See Appendix Item 2, Task 11). The City will consult with the County, the Suquamish Tribe and other interested parties in developing the scope and duration of the monitoring plan for on-site and off-site impacts. The data obtained through the monitoring plan will be made available to the County, Tribe and other interested parties. The monitoring plan will have periodic evaluations, and if monitoring shows the project is causing significant adverse environmental impacts, then the project mitigation measures for subsequent phases will be adjusted. 6.3 Annual Review After approval of the Master Plan, Port Blakely will submit an annual report summarizing the status of the Project to the City Council outlining its progress, infrastructure improvements completed during the preceding year, and general conditions at the Project. Contents of the annual report shall include, but not be limited to the following: · Brief synopsis of application submittal and review process for Implementing Approvals. · Location and density of residential development as a result of Implementing Approvals and predicted near future progress. -11 of 24- ~tR£~I£RTO~I CITY OF ORO ~8.88 Kitsap Co, W8 · Location and type of non-residential development resulting from Implementing Approvals and predicted near future progress. · Location and type of open space and recreational facilities provided through the Implementing Approval process and predicted near future progress. · Location and type of on-site and off-site roads, utilities and other infrastructure provided to date and projected construction schedules of proposed infrastructure. · Pioneering jobs report as defined in the Sub-Area Plan and Section 8 of the Three-Party Agreement. The jobs report will include analysis of completed and proposed actions being taken to prepare and market the employment sites and establishment of the threshold level of 500 pioneering jobs within the project. The City's review and comments on Port Blakely's annual project review report will take place within thirty (30) days after Port Blakely's submittal. Comments received from City departments will be referred to the City Coordinator for appropriate action. If no comments are received from City departments within the review period, then the annual review will be deemed complete. 6.4 Due Diligence. 6.4.1 City Notice. The City and Port Blakely recognize that numerous requirements will affect the schedule and timing of development of the Project, including but not limited to the following: infrastructure and utility planning, coordination, funding, permitting and installation; environmental data collection; market conditions and other forces beyond Port Blakely's control. If the City believes Port Blakely is not diligently proceeding with the submission of the Master Plan and EIS, then at any time after 36 months from the effective date of this Agreement, as extended for any litigation, appeals or other causes beyond the reasonable control of Port Blakely, then the City may deliver a written notice to Port Blakely. Any City notice will set forth the City's requested specific actions and proposed timetable for Port Blakely to complete the actions. The requested actions and timetable shall be reasonable and reasonably capable of being accomplished. If Port Blakely completes the actions within the timetable specified by the City, the Notice shall be deemed satisfied. 6.4.2 Mediation. If Port Blakely and the City disagree over the actions or timetable in the City's notice, or if Port Blakely has not completed the items within the timetable specified in the City's notice, then either the City or Port Blakely can request mediation. The parties will pay equally the mediator's fees and expenses. Within 14 -12 of 24- BR£M£RTON CITY OF ORD ~9.88 Kitsap Co, WR days following a mediation request, the parties shall seek to mutually select a single mediator who is experienced in real estate permitting and development in the State of Washington. If mutual selection does not occur within those 14 days, then the parties may seek appointment of an mediator through application to the Kitsap County Superior Court using the procedures of RCW 7.04.050, and the Court may select a mediator who meets the criteria of real estate experience set forth in the preceding sentence. The mediator shall establish procedures for submission of information and hearing the positions of the City and Port Blakely and shall attempt to facilitate a resolution of disputes between the parties regarding due diligence. The mediation will constitute settlement negotiations for purposes of all state and federal rules protecting disclosures made in settlement negotiations. Communication and material submitted to the mediator are privileged and confidential and not subject to disclosure consistent with RCW 5.60.070. 6.4.3 Mediation Report. If the parties do not reach mutual agreement through the mediation, then the mediator shall issue a written report within 60 days after selection of the mediator. The written report shall not be binding on the parties, but shall contain the mediator's conclusions and recommendations on whether (a) Port Blakely has proceeded with due diligence or (b) Port Blakely should undertake additional reasonable actions, on a specific timetable which is reasonably capable of achieving, as set forth in the mediator's written report. If either the City or Port Blakely disagrees with the mediator's report, including the reasonableness of the recommended actions or timetable or whether the recommended actions were achieved within the mediator's timetable, then either party may commence an action in superior court under Section 6.4.4 below to determine whether Port Blakely has met the due diligence provisions of this Section. Any court action shall be commenced within thirty (30) days after the later of (i) the mediator's report or (ii) Port Blakely failure to complete the mediator's recommended actions within the recommended timetable. The mediation report shall not be used in any court proceeding as evidence or for any other purpose without the written agreement of both the City and Port Blakely. The mediator shall not be compelled to testify or to divulge communications obtained during the mediation, subject to the exceptions set forth in RCW 5.60.070, unless both the City and Port Blakely consent to such testimony. 6.4.4 Compliance with Court Decision or Mediation Report. If (a) a court determines Port Blakely has met the due diligence provisions of this Section or (b) neither party appeals to superior court and Port Blakely completes the mediator's recommended actions within the recommended timetable, then the City's notice will be satisfied and this Agreement remains in full force and effect for the Term set forth in Section 6.1. If a court determines Port Blakely has not met the due diligence provisions of this Section, as the court may modify the actions or extend the timetable in its discretion to meet due diligence, then -13 of 24- 20001 2290144 8RDI£RTON CITY OF ORD ~39.~8 Kitsap Co, Wfl the City thereafter shall have the right to terminate this Agreement through a joint planning process with Kitsap County as provided in Section 6.4.5 below. 6.4.5 Joint Planning Process. The joint planning process will determine appropriate amendments to the land uses and other provisions of the Sub-Area Plan for the Port Blakely Property, which may include but is not be limited to reallocating the industrial, commercial or residential uses to other sites. This Agreement will remain in full force and effect until the effective date of any Sub-Area Plan amendment under this Section. 7. GENERAL PROVISIONS 7.1 Governing Law; Interpretation; This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. This Agreement has been reviewed and revised by legal counsel for all parties and no presumption or rule that ambiguity shall be construed against the party drafting the document shall apply to the interpretation or enforcement of this Agreement. 7.2 Authority; Severability Bremerton and Port Blakely each represent and warrant it has the respective power and authority, and is duly authorized to execute, deliver and perform its obligations under this Agreement. The parties intend this Agreement to be interpreted to the full extent authorized by law as an exercise of Bremerton's authority to enter into such agreements, and this Agreement shall be construed to reserve to Bremerton only that police power authority which is prohibited by law from being subject to a mutual agreement with consideration. If any provisions of this Agreement are determined to be unenforceable or invalid by a court of law, then this Agreement shall thereafter be modified to implement the intent of the parties to the maximum extent allowable under law. If a court finds unenforceability or invalidity of any portion of this Agreement, the parties agree to seek diligently to modify the Agreement consistent with the court decision, and no party shall undertake any actions inconsistent with the intent of this Agreement until the modification to this Agreement has been completed. If the parties do not mutually agree to modifications within forty-five (45) days after the court ruling, then either party may initiate the dispute resolution proceedings in Section 7.12 for determination of the modifications which implement the intent of this Agreement and the court decision. 7.3 Integration; Amendment; Minor Modifications This Agreement, along with the Sub-Area Plan and Three-Party Agreement, represent the entire agreement of the parties regarding the Property, and there are no other agreements, oral or written, except as expressly set forth in this Agreement. Any -14 of 24- 81~E~IERTON CITY OF 0R0 $3o.ee Kitsap C0, ~IA amendment to this Agreement must be approved by each of the following: (a) the City; (b) Port Blakely so long as it owns any portion of the Property and (c) a Designated Successor, if any, for a specified portion of the Property. "Designated Successor" is a successor owner specified in writing by Port Blakely as such a successor or an association. No parcel owner or other person may seek an amendment of this Agreement except Port Blakely or except a Designated Successor as to that portion of the Property owned by the Designated Successor. Criteria for Administrative Minor Modifications will be adopted as future Development Standards when this Agreement is amended concurrent with the Master Plan. Nothing in this Agreement modifies the requirements or process for amending the Sub-Area Plan as set forth in Section 6 of the Three-Party Agreement. 7.4 Binding on Successors; Assignment; Enforcement 7.4.1 Binding Agreement This Agreement shall be binding upon and inure to the benefit of the successors and assigns of Port Blakely and Bremerton. All successors in title to all or any portion of the Property shall be bound by the terms of this Agreement. 7.4.2 Assignment The parties acknowledge that development of the Project likely will involve sale and assignment of portions of the Property to other persons who will own, develop and/or occupy portions of the Property and building thereon. Port Blakely shall have the right to assign or transfer all or any portion of the respective interests, rights or obligations under this Agreement or in the Project to other parties acquiring an interest or estate in all or any portion of the Property, including transfer of all interests through foreclosure (judicial or nonjudicial) or by deed in lieu of foreclosure. Consent by the Bremerton shall not be required for any transfer of rights pursuant to this Agreement. Upon the transfer under this section, the transferee shall be entitled to all interests and rights and be subject to all obligations under this Agreement as to the property transferred, and Port Blakely shall be released of liability as to the property transferred. 7.4.3 Enforcement of Agreement The City may enforce this Agreement. Port Blakely or any party responsible for development of the Project designated by Port Blakely may enforce this Agreement so long as it owns any portion of the Property. Any owner's association established by Port Blakely may enforce all provisions of this Agreement as it relates to portions of the Property covered by the association, at the earlier of (a) Port Blakely's specific assi~ment of enforcement rights or (b) after the date Port Blakely has conveyed all portions of the Property to third parties. Each individual parcel owner may enforce the Development Standards and other provisions of this Agreement as it directly affects that individual parcel. -15 of 24- BR£M£RTON CITY OF ORD ~$ SS Kitsap Co, W8 7.4.4 Development Standard Modifications Except where the City is authorized to impose additional Development Standards under Section 6.2, any modifications of Development Standards shall require the written consent of Port Blakely and the City. 7.5 Recording Pursuant to RCW 36.70B. 190, this Agreement or a memorandum thereof shall be recorded with the Kitsap County Auditor and during the term of this Agreement shall be binding on the parties, their successors and assigns. 7.6 Headings; Attachments The headings in this Agreement are inserted for reference only and shall not be construed to expand, limit or otherwise modify the terms and conditions of this Agreement. Attachments A through C are incorporated in the Agreement by this reference as if fully set forth. 7.7 PBC as Agent Port Blakely hereby designates Port Blakely Communities, Inc. ("PBC") as its agent with authority to give notices, approvals and otherwise act pursuant to this Agreement. Unless otherwise stated by Port Blakely to the City, the representations and actions of PBC shall represent and bind Port Blakely. 7.8 Time Is of the Essence Time is of the essence of this Agreement and every provision hereof. Unless otherwise set forth in this Agreement, the reference to "days" shall mean calendar days. If any time for action occurs on a weekend or legal holiday, then the time period shall be extended automatically to the next business day. 7.9 Disputes; Default and Remedies 7.9.1 Dispute Resolution In the event of any dispute relating to this Agreement, all parties upon the request of any other party shall meet within seven (7) days of the request to seek in good faith to resolve the dispute. Bremerton shall send the appropriate department director and persons with information relating to the dispute, and Port Blakely shall send an owner's representative and any consultant or other person with technical information or expertise that relates to the dispute. Any dispute covered by Section 9 of the Three-Party Agreement shall be governed by its terms and not this Section. -16 of 24- BR£I~ERTON CITY OF ORD ~$,~ Kitsal* Co, Wf~ 7.9.2 Default and Remedies No party shall be in default under this Agreement unless it has failed to perform under this Agreement for a period of thirty (30) days after written notice of default from any other party. Each notice of default shall specify the nature of the alleged default and the manner in which the default may be cures satisfactorily. If the nature of the alleged default is such that it cannot be reasonably cured within the thirty (30) day period, then commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure. Any party not in default under this Agreement shall have all rights and remedies provided by law including without limitation damages, specific performance or writs to compel performance or require action consistent with this Agreement. 7.9.3 Relief Against Defaulting Party or Portion of Property In recognition of the anticipated sale(s) by Port Blakely of portions of the Property to others to own, develop and/or occupy within the Project Site, the remedies under this Agreement shall be tailored to the Property or parties as provided in the remaining provisions of this subsection. After the transfer of portions of the Property for which the release of liability provisions apply under Section 7.4.3, any claimed default shall relate as specifically as possible to the portion of the Property involved and any remedy against any party shall be limited to the extent possible to the owners of such portion of the Properly. To the extent possible, Bremerton shall seek only those remedies which do not adversely affect the rights, duties or obligations of any other nondefaulting owner of portions of the Property under this Agreement, and shall seek to utilize the severability provisions set forth in this Agreement. 7.10 Estoppel Certificate Within thirty (30) days following any written request which any party or a Mortgagee may make from time to time, the other party to this Agreement shall execute and deliver to the requesting person a statement certifying that: (1) this Agreement is unmodified and in full force and effect, or stating the date and nature of any modification; (2) to the best knowledge of the certifying party, (a) no notice of default has been sent under Section 7.9.2 of this Agreement or specifying the date(s) and nature of the notice of such default and (b) no written notice of infraction has been issued in connection with the Project; and (3) any other reasonably requested information. Failure to deliver such statement to the requesting party within the thirty (30) day period shall constitute a conclusive presumption against the party failing to deliver such statement that this Agreement is in full force and effect without modification or default except as may be represented by the requesting party). The delivery of estoppel certificate on behalf of Bremerton pursuant to this section shall be deemed an administrative matter and shall not require legislative action. -17 of 24- 200012290144 I IIIIII IIIII IIIII IIIIIII III IIIII IIII III IIIIIII II IIII o, BREI1ERTON CITY OF ORD $~$.S0 Kitsalo Co, WR 7.11 No Third Party Beneficiary This Agreement is made and entered into for the sole protection and benefit o£ the parties, their successors and assigns. No other person shall have any right o£ action based upon any provision o£ this Agreement. 7.12 Cooperation The parties shall reasonably provide in£ormation, approvals or consents under this Agreement. Thc parties agree to take further actions and execute further documents, either jointly or within their respective powers and authority, to implement the intent of this Agreement. Bremerton and Port Blakely will cooperate to achieve the mutually agreeable goals as set forth in this Agreement, subject to Brcmcrton's independent exercise of judgment. Where appropriate and consistent with applicable law, Bremerton shall bc the lead agency under SEPA in implementing this Agreement and Implementing Approvals. Bremerton shall consider use of its eminent domain powers to facilitate implementation of this Agreement, subject to Bremerton's independent exercise of judgment following all applicable procedures necessary to use eminent domain power. 7.13 Delays If either party is delayed in the performance of its obligations under this Agreement due to force majeure, then performance of those obligations shall be excused for the period of delay. 7.14 Notice All communications, notices and demands of any kind which a party under this Agreement requires or desires to give to any other party shall be in writing and either (i) delivered personally, (ii) sent by facsimile transmission with an additional copy mailed first class, or (iii) deposited in the U.S. mail, certified mail postage prepaid, retum receipt requested, and addressed as follows: If to Port Blakely: PORT BLAKELY TREE FARMS LP 1325 Fourth Avenue, Floor 10 Seattle, WA 98101 Attn: James E. Warjone Telephone: (206) 624-5810 Facsimile: (206) 624-9745 With a copy to DAVIS WRIGHT TREMAINE LLP 2600 Century Square 1501 Fourth Avenue Seattle, Washington 98101-1688 Attn: Thomas A. Goeltz Telephone: (206) 628-7662 Facsimile: (206) 628-7040 -18 of 24- BR£tl£RTON CITY OF ORO $~$.80 Kitsap Co, WA If to Bremerton CITY OF BREMERTON Building and Planning Department 286 - 4th Street Bremerton, WA 98337 Telephone: (360) 478-5275 Facsimile: (360) 478-5278 With a copy to: CITY OF BREMERTON City Clerk 239 - 4th Street Bremerton, WA 98337 Telephone: (360) 478-5290 Facsimile: (360) 478-5200 Notice by hand delivery or facsimile shall be effective upon receipt. If deposited in the mail, notice shall be deemed delivered 48 hours after deposited. Any party at any time by notice to the other party may designate a different address or person to which such notice or communication shall be given. IN WITNESS WHEREOF, this Agreement has been entered into between the City and Port Blakely as of the __ day of ,2000. PORT BLAKELY TREE FARMS (LIMITED PARTNERSHIP) a Washington limited partnership By: Judd Kirk, President of Real Estate Division CITY OF BREMERTON a Washington municipal corporation By: Lynn S. Horton, Mayor APPROVED AS TO FORM: By City Attorney ATTEST: Kathleen McCluskey, City Clerk -19 of 24- I Illlll Illll Illll Illllll III IIII IIIIlll III IIlllll I[ Illl BR£M£RTON CITY OF ORO 188.88 Kiteap Co, WA LIST OF ATTACHMENTS Attachment A - Legal Description of Property Attachment B - Map of Property Attachment C - SEPA Compliance for Implementing Approvals STATE OF WASHINGTON ) COUNTY OF KITSAP ) I certify that I know or have satisfactory evidence that LYNN S. HORTON is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the CITY OF BREMERTON to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Given under my hand and official seal this __ day of ,2000. Type/Print Name Notary Public in and for the State of Washington residing at My Commission expires BR£~I£RTON CITY OF ORD ~35.00 Kitsap Co~ HA -20 of 24- STATE OF WASHINGTON ) ) SS. COUNTY OF KITSAP ) On this __ day of ,2000, before me personally appeared JUDD KIRK, to me known to be the President of the Real Estate Division of PORT BLAKELY TREE FARMS (LIMITED PARTNERSHIP), a Washington limited partnership, that executed the within and foregoing instrument and acknowledged the 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 and in fact executed said instrument on behalf of the corporation. Given under my hand and official seal this __ day of ,2000. Type/Print Name Notary Public in and for the State of Washington residing at My Commission expires Ill [1111111111[ [Il Illll [llllll III IIIIIll II [Ill 0, BR£~I£RTOH CITY OF ORO $89.$8 Ki~sap Co, Wfl -21 of 24- ATTACHMENT A LEGAL DESCRIPTION OF PROPERTY That portion of Sections 7, 18, and 19 of Township 24 North, Range 1 East of the Willamette Meridian in Kitsap County, Washington, described as a whole as follows: Beginning at the section comer common to Sections 17, 18, 19 & 20 of said Township and Range; thence along the east line of said section 18, North 02033'36" East 2650.40 feet to the east ¼ section comer of said Section 18; thence continuing along said east. line of said ~ection 18, North 02013'37'' East 2665.51 feet to the section comer common to Sectioris 7,' 8, 17 & 18 of said Township and Range; thence along the east line of said Section 7, North 63o14'29" East 273.70 feet; thence South 49006'36'' West 394.86 feet; thence South 22°15'57" West 435.82 feet; thence South 51°04'39" West 573.87 feet; thence South 72°21 '49" West 281.90 feet to the beginning of a 113 foot radius curve to the fight; thence northwesterly along said curve an arc distance of 212.28 feet through a central angle of 107°38'11"; thence North 208.41 feet to the beginning of a 80 foot radius curve to the left; thence northwesterly along said curve an arc distance of 159.10 feet through a central angle of 113°56'42"; thence South 66°03'19" West 372.14 feet; thence South 24°07'12" West 254.43 feet; thence South 38°38'11" West 566.66 feet; thence South 05005'55" West [897.32 feet; thence South 12°50'21" West 833.49 feet; thence South 07048, 19" West 495.35 feet; thence South 46°57'31" West 323.73 feet; thence South 33°30'41" West 410.75 feet; thence South 17°32'08"West 860.92 feet; thence South 07° 4701" West 2094.94 feet to the beginning of a 599.00 foot radius curve to the left; thence southeasterly along said curve an arc distance of 1356.06 feet through a central angle of 129° 42'36"; thence North 57059'25" East 911.61 feet; thence North 61035'44" East 692.67 feet to the beginning of a 1239.00 foot radius curve to the left; thence northeasterly along said curve an arc distance of 946.35 feet through a central angle of 43°45'45'; thence North 17049'59" East 1763.31 feet to the point of beginning. BR£M£RTON OITY OF ORO ~80.88 Kitsap ¢o, -22 of 24- ATTACHMENT C SEPA COMPLIANCE FOR IMPLEMENTING APPROVALS Upon receipt of any application for an Implementing Approval (defined in Section 6.2), the City shall undertake SEPA compliance as follows: Step 1 - Project Envelope Determination. First, the City shall determine if the requested Implementing Approval applied for is within the Project Envelope. The City can request the applicant to provided reasonable information (including for convenience an environmental checklist even if a threshold determination is not required under this Step 1) to the extent needed to determine the requested action is within the Project Envelope. If so, then the existing SEPA documents and analysis shall be utilized and no further SEPA threshold determination is reqt~ired (see WAC 197-11-600(4)(a)): "Agencies acting on the same proposal for which an environmental document was prepared are not required to adopt the document.") If the application is beyond the Project Envelope, then a threshold determination is required under Step 2 below. Step 2 - Threshold Determination. If the requested Implementing Approval exceeds the Project Envelope, then the City shall prepare a threshold determination, taking into account the existing SEPA documents and analysis and the governing Development Standards under this Agreement which address environmental mitigation for the Project. Any studies or other information requested by the City from the applicant shall relate only to those potential impacts not adequately covered by the existing SEPA documents and analysis. The City shall issue a determination of non-significance (DNS) or a mitigated DNS (MDNS) utilizing an addendum or incorporating the prior SEPA documents and analysis to the fullest extent possible, except an addendum or supplemental EIS (SEIS) shall be required if the conditions in Step 3 are present. The City's approval of minor modifications under Section 7.3 of the Agreement shall not be deemed a significant change which would require an SEIS. Step 3 - SEIS. The City shall prepare an addendum or SEIS if there are: 3.1 Substantial changes to the Project so that the proposal or Project Envelope described in the existing SEPA documents and analysis are likely to have significant adverse environmental impacts not previously analyzed and which cannot be mitigated through the Threshold Development Standards applicable to the Project (or revisions, additions and amendments to those Development Standards); or 3.2 New information indicating the Project is likely to have significant, adverse environmental impact not previously analyzed in the existing SEPA documents and analysis and which cannot be mitigated through the Threshold Development Standards applicable to the Project (or revisions, additions and amendments to those Development Standards). If an addendum or SEIS is required, the City shall limit the scope thereof to the impacts which required the additional analysis (e.g. the City shall utilize a focused scope and EIS). Step 4 - Modified Development Standards. If the SEIS discloses additional mitigation is required to avoid a serious threat to public health and safety hazards, then the Development Standards applicable to the Project may be modified. -24 of 24- BR£~I£RTON CITY OF . Kitsap Co, Wfl