HomeMy WebLinkAboutOrdinances - 2010-12 - Relating to approval of a Development Agreement in accordance with RCW 30.70B - 7/27/2010Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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After Recording, Please Return to:
Dana Barnard, City Clerk
271 9th Street NE
East Wenatchee, WA 98802
The information contained in this boxed section is for recording purposes only pursuant to RCW 36.18 and RCW 65.04, is not to be relied upon
for any other purposes, and shall not affect the intent of any warranty contained in the document itself.
Document Title: Development Agreement Between the City of East Wenatchee
Wenatchee Productions Corporation, and Selkirk Development, LLC
Reference Number(s) of Related documents: N/A
Grantor: Wenatchee Productions Corporation, and Selkirk Development, LLC
Grantee: City of East Wenatchee
Legal Description: Part of Lot 1, East Wenatchee Land Company’s Plat of Section 14, according to the plat thereof recorded in
Volume A of Plats, Page 192
Additional Legal description found on Exhibit A of document
Parcel Number(s): 04400000101
Development Agreement Between the City of East Wenatchee,
Wenatchee Productions Corporation, and Selkirk Development, LLC
1.RECITALS
1.1. Authority.
a.RCW 36.70B.170 authorizes development agreements between the City of East
Wenatchee and persons having ownership or control of real property in order to
establish development standards to govern and vest the development, use, and
mitigation of real properties.
b.East Wenatchee Municipal Code (EWMC) Chapter 19.07 establishes the guidelines
and procedures for executing development agreements.
c.Chapter 17.80 EWMC establishes the procedure for Site Plan Review.
1.2. Parties. This Development Agreement (“Agreement”) is made by and between the City
of East Wenatchee, a Washington municipal corporation ("City") and, Wenatchee
Productions Corporation (“WPC”), and Selkirk Development, LLC (“Selkirk”).
Collectively, WPC and Selkirk may be referenced as “Developers”.
1.3. Location of Property and Ownership. WPC owns certain real property (“Property”)
containing approximately 2.95 acres, located at 470 Grant Road, East Wenatchee, WA,
Assessor’s Parcel No. 04400000101, the legal description of which is attached and
incorporated in full as Exhibit A. The Property has frontage on Grant Road, Highline
Drive, and Simon Street.
1.4. Zoning. The Property is located within the Central Business District Zoning District
(CBD). Development regulations applicable in the CBD are contained in Chapter 17.40
EWMC.
Exhibit 1
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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1.5. Purchaser. Pursuant to a Real Estate Purchase and Sale Agreement dated December 15,
2009 (“REPSA”), Selkirk has agreed to purchase the Property from WPC according to
the terms and conditions of the REPSA.
1.6. Project Summary.
a. Selkirk proposes to redevelop the Property to create two lots as building pads for
commercial uses. Selkirk is intending to demolish the existing building, grade and
fill the site, construct retaining walls, extend utilities, and construct driveway
accesses in accordance with the Site Plan documents attached to this Agreement as
Exhibit B, which is hereby incorporated into this Agreement by this reference.
b. Selkirk intends to enter into a lease for a portion of the Property with Walgreens Co,
an Illinois corporation (“Walgreens”). As a condition of the lease, Walgreens
requires certain assurances that the site will be developed with access, signage, and
the building elevation in accordance with the Walgreens approved site plan (“Site
Plan”).
1.7. Site Plan Review. In accordance with Chapter 17.80 EWMC, Selkirk filed a Site Plan
with the City for review and approval on July 1 and 2, 2010. Through this application
and the provisions of this Agreement, Selkirk seeks approval of the Site Plan that will fix
and establish the development standards to govern the project including in particular,
access from the public rights of way and signage.
1.8. Declarations.
a. The City and the Developers agree that each has entered into this Agreement
knowingly and voluntarily and agree to be bound by the terms and conditions of this
Agreement.
b. The City and the Developers agree that the foregoing terms and recitals are material
to this Agreement, and that each party has relied on the material nature of such
terms and recitals in entering into this Agreement.
c. The City and the Developers anticipate that development of the Property will be
phased with construction to occur over a period of years.
1.9. Purpose. This Agreement is entered into pursuant to RCW 36.70.B.170 for the purpose
of vesting WPC and Selkirk to the development standards set forth in this Agreement for
a period of five years. Vesting is limited to the specific topics and subjects referenced in
this Agreement. Any development requirement of the City not specifically referenced in
this Agreement shall apply based on the date of vesting as determined in accordance
with City ordinances and state law.
NOW THEREFORE, in consideration of the mutual benefits and of the Development Agreement
and the actions and promises set forth herein, including without limitations the approval of the
Site Plan and in accordance with the authority granted by RCW 36.70B.170 through 210; and
provided that the lease between Selkirk and Walgreens is executed and in full force and effect,
the City and the Developers enter into the following agreement to promote the development of
the Property, upon the following terms and conditions:
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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2. DEVELOPMENT CONDITIONS.
2.1. City approval. The City permits Selkirk to construct the access points described and set
forth in the Site Plan included as Exhibit B. Final approval of the proposed
improvements shall be in accordance with the construction plan review and approval
process set forth in Chapters 12.50 - 12.60 EWMC and this Agreement.
2.2. Access from Public Rights of Way.
a. The Property has ±285 feet of frontage on Grant Road, ±238 feet of frontage on
Highline Drive, and ±403 feet of frontage on Simon Street. The Site Plan reflects
the access points from Grant Road, Highline Drive, and Simon Street that will be
allowed by the City:
i. One full access will be allowed from Grant Road in the location indicated, and
ii. One right in/right out will be allowed from Highline Drive in the location
indicated, and
iii. One full access will be allowed from Simon Street in the location indicated.
b. All signage for the right in/right out driveway shall be installed by the City in
conformance with the MUTCD. The Developers shall be responsible for
reimbursing the City for the full cost of the purchase and installation of the signage
prior to final approval and acceptance of the improvements.
c. The City represents that it has no plans to change or modify the full access from
Grant Road by changing the striping, or building or installing any additional traffic
control devices in Grant Road that would limit the left turn access from Grant Road
onto the Property for the next three years. The parties acknowledge that an overlay
project for Grant Road is scheduled for 2011 and that the striping plan for that
project show the striping on Grant Road will be the same as it is now.
2.3. Construction. Selkirk will construct the access improvements substantially in
conformance with the Site Plan subject to non material minor adjustments that may be
requested by the City, providers of utility services, or incorporated by Selkirk to
integrate the site and the public way. Selkirk shall comply with the provisions of EWMC
12.50 – 12.60 for the design and construction of the all site improvements.
2.4. Cost of Construction. Selkirk will construct the site improvements for the access points
on Grant Road, Highline Drive, and Simon Street at Selkirk’s cost.
2.5. Interim Use of Property. One of the lots proposed to be created is intended to be leased
to Walgreens Co., an Illinois corporation, for the eventual construction of a retail/drug
store.
a. Walgreens requires certain assurances that the site will be developed in accordance
with the Walgreens approved site plan (“Site Plan”), attached as Exhibit B,
including in particular, access from the public way, signage, and the building
elevation.
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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b. Selkirk will construct the access improvements in accordance with the Site Plan
subject to non material minor adjustments that may be requested by the City,
providers of utility services, or incorporated by Selkirk to integrate the site and the
public way.
2.6. Nonconforming Use/Structure. The existing off-premise sign/billboard located on the
Property is intended to remain due to prior written commitments between the Property
Owner and the sign owner. Off-premise signs/billboards are not a permitted use in the
CBD District. The Developers do not intend to alter the sign location and as such the
sign is permitted to remain on the property as a legal non-conforming use/structure in
accordance with the provisions of EWMC 17.74.110. The Developers intend to install
landscaping surrounding the sign which will not affect the nonconforming status of the
sign.
2.7. Building Permit Drawings. The Site Plan will be a part of the drawings submitted for
the Walgreens building permit and the City agrees not to require material changes to the
Site Plan to issue the requested building permit. Non material minor adjustments may be
requested by the City or incorporated by Selkirk to integrate the site and the public rights
of way. All plans and drawings shall be submitted in their final form with the building
permit application.
2.8. Retaining Wall. The retaining wall proposed along the northern and western edge of the
Property shall be designed and constructed with an exterior face that has the appearance
and texture simulating natural stone or a decorative masonry surface beginning at the
point where the wall runs in a northeasterly direction and wraps around the billboard
sign post and along the entire Grant Road frontage. A flat concrete wall appearance
shall not be permitted in the area described above but may be used along the west
property line.
2.9. Utility Connections. All extensions of or connection to utilities shall be made in
accordance with standards and specifications of the utility provider. The Applicant shall
arrange for construction inspection and tests to be performed by the utility as required by
that agency or district.
2.10. Construction Plan Approval Process. The review and approval of the construction
plans shall comply with the process set forth in Chapters 12.50 - 12.60. The major steps
include:
a. Prior to construction of any improvements associated with the proposed project, a
complete set of preliminary construction drawings must be provided to the City (2
copies), and all utility purveyors for review and approval. Said plans shall show all
proposed improvements including retaining walls, driveways, stormwater systems,
sanitary sewer, domestic water, irrigation water, power, and telecommunications
systems.
b. Prior to construction activities, all construction plans shall be prepared in final form
and be presented to the East Wenatchee City Engineer, Community Development
Director, Douglas County Fire District #2, and all utility purveyors with
infrastructure within the project area for their signatory approval The Applicant is
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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responsible for supplying two paper copies of the approved and signed Construction
Plans to the City of East Wenatchee and a set to and all utility purveyors prior to
construction of the improvements.
c. Prior to construction activities, the Applicant shall conduct a pre-construction
meeting including the City and all utility purveyors. All attendees shall be provided
with a minimum of 48 hours advance notice of the meeting.
2.11. Permanent Use. Selkirk will apply for a Binding Site Plan in accordance with
EWMC 18.16 to create the lot for the Walgreen’s and the secondary parcel. With the
exception of Section 2.2 for the access rights and Section 3.1 for the signage provisions
of this Agreement, all subsequent land use proposals shall comply with the provisions of
the East Wenatchee Municipal Code and shall be consistent with the approved Site Plan.
2.12. Benefits. The City recognizes the public benefits which will accrue from the
permanent development of the property as proposed by WPC.
2.13. Consistency With Development Regulations. The proposed Interim Use is a
permitted use of WPC's Property and will be generally consistent with current City
development regulations and that the interim departures therefrom provided by this
Agreement are offset by the public benefits received from the permanent use of the
Property.
2.14. Council Approval. Pursuant to RCW 36.70B.200, a public hearing has been held
before the City Council and the Council has enacted Ordinance No. _______ authorizing
the Mayor to enter into this Agreement.
3. DEVELOPMENT REGULATIONS AND VESTING.
3.1. Signage. At the request of the Selkirk, the City hereby permits a departure from
standard vesting process to enable the Developers to utilize potential future revisions to
Chapter 17.74 EWMC which may result in the ability to install larger freestanding signs
along Grant Road, Highline Drive, and Simon Street. In the event future revisions do
not effect a change that would allow larger signage, the Developers shall be permitted to
utilize the Sign Code in effect as of the effective date of this Agreement.
3.2. Development Regulations. Except as noted in Sections 2.2 and 3.1, for a period of five
years from the effective date of this Agreement, the Developers shall have the right to
develop the Property in accordance with the Site Plan and the City’s ordinances, and
regulation in effect on the date this Agreement becomes effective, and the Developers
shall be considered to be vested as to the Site Plan, ordinances, and regulations under the
current property rights vesting laws of the state of Washington, including but not limited
to RCW 36.70B.180.
Development Regulations include, but are not limited to, provisions of the City's
Municipal Code in Titles 12, 13, 15, 16 ,17, and 18 such as the zoning code, subdivision
code, stormwater management regulations, street standards, permit requirements,
environmental review process; the East Wenatchee Urban Growth Area Design
Standards and Guidelines; and other compliance mandates that govern development of
the Property; furthermore, the Project shall be vested against any change in the
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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Development Regulations, except as modified by this Agreement. Provided, that the
Project shall comply with the International Building Code, Plumbing Code, Mechanical
Code, Fire Code, and other regulatory codes adopted by the state of Washington that
preempt the City's authority to alter compliance or vesting. .
3.3. Future Use of the Property. Nothing herein shall be deemed to permit any departures
from the City's development standards except as provided herein.
4. DISPUTE RESOLUTION
4.1. Party Consultation. In event of any dispute as to interpretation or application of the terms
or conditions of this Agreement, the Developers and the Mayor shall meet within ten
business days after request from any party for the purpose of attempting, in good faith, to
resolve the dispute. The meeting may, by mutual agreement, be continued to a date
certain in order to include other parties or persons, or to obtain additional information
4.2. Judicial Appeal. Any aggrieved party may appeal the decision of the Mayor to the
Douglas County Superior Court, as may be allowed by law and court rules.
5. GENERAL PROVISIONS
5.1. Hold harmless. WPC and Selkirk shall keep and save the City harmless from any and all
claims, liabilities judgments, costs, damages, and expenses arising from any acts or
omissions that may be done or suffered to be done under this Agreement by WPC or
Selkirk, by any of their agents, servants, contractors, or employees, and shall keep and
save the City harmless from any and all claims, liabilities, judgments, damages, costs
or expenses, which may arise from any negligence of WPC or Selkirk, by any of their
agents, contractors, or employees in obstructing, or in any manner disturbing any
municipal improvement and shall keep and save the City harmless from any and all
costs, damage, or expense arising from any obstruction of any city streets or from any
disturbance of any existing municipal improvement due to the construction of the access
points set forth in this Agreement.
5.2. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of each party hereto. The parties acknowledge that WPC shall
have the right to assign or transfer all or any portion of the interests, rights and
obligations under this Agreement to other parties acquiring an interest or estate in the
property. Consent by the City shall not be required for any transfer or rights pursuant to
this Agreement. It is the intent to have this Agreement, so long as it is in force, to be
considered, interpreted, and regarded as a covenant running with the land as to WPC's
Property.
5.3. Reservation of Authority to Impose New Regulations. The City specifically reserves
authority, pursuant to RCW 36.70B.180(4), to impose new or different regulations to the
extent required by a serious threat to public health and safety.
5.4. Duration. This Agreement shall vest Selkirk with the authority to develop the
improvements detailed on Exhibit B for a period of five years from the date the
Agreement becomes effective. These rights may be exercised by filing fully complete
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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applications for street cut permit, binding site plan, sign permit, and building permit
within such five-year period in accordance with state law and City ordinance.
5.5. Transfer of Ownership. The Developer’s right to sell, transfer, mortgage, convey or take
any other similar action regarding the title to or financing for the Property shall not be
infringed by this Agreement, provided however that any such transfer, sale, etc. shall be
expressly subject to the terms and conditions, rights and obligations of this Agreement
and the Site Plan. In any proposed transfer, the Developers (and any subsequent
transferor) shall give actual notice to the interested party of the existence of this
Agreement.
5.6. Obligations of Successors. This Agreement and the Site Plan shall be binding on all
subsequent purchasers, lessees or lessors, and transferors of every nature.
5.7. Authority. The Parties warrant and represent to each other that the execution of this
Agreement by their respective officers or agents has been duly authorized and that this
Agreement, when fully executed, constitutes a valid, binding and legally enforceable
obligation of itself.
5.8. Modification. This Agreement shall not be modified or amended except by mutual
written agreement executed by the City Council and by the Developers or their
respective successors in interest.
5.9. Entire Agreement. This Agreement contains all the terms and conditions agreed upon by
the parties. No other understanding, oral or otherwise, regarding the subject matter of
this Agreement shall be deemed to exist or to bind either of the parties hereto.
5.10. Enforcement Authority. Nothing in this Agreement shall alter or change the
City’s enforcement authority under the City code or state law.
5.11. Duty of Good Faith. Each party hereto shall cooperate with the other in good faith
to achieve the objectives of this Agreement. The parties shall not unreasonably withhold
requests for information, approvals or consents provided for, or implicit, in this
Agreement.
5.12. No Presumption Against Drafter. 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.
5.13. Execution by all Parties and Counter Parts. This Agreement shall not become
effective and binding until executed by all parties. This Agreement may be executed in
two (2) or more counterparts, each of which shall be deemed an original and all of which
shall constitute a single instrument, and the signature of any party to any counterpart
shall be deemed a signature to and may be appended to any other counterpart.
5.14. Notices. All communications, notices and demands of any kind which a party
under this Agreement is required or desires to give to any other party shall be in writing
and be either (1) delivered personally, (2) sent by facsimile transmission with an
additional copy mailed first class, or (3) deposited in the U.S. mail, certified mail
postage prepaid, return receipt requested, and addressed as follows:
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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City of East Wenatchee
Public Works Director
271 9th Street NE
East Wenatchee, WA 98802
Wenatchee Productions
P. O. Box 2506
Wenatchee, WA 98807-2506
Selkirk Development
309 W. 2nd, Suite 200
Spokane, WA 99201
Notice by hand delivery or facsimile shall be effective upon receipt. If deposited in the
mail, notice shall be deemed received 48 hours after deposit. Any party at any time by
notice to the other party may designate a different address or person to which such notice
shall be given. Following the closing of any action transferring ownership of the
property, the new owner shall notify the City in writing to remove a party from the
notification list.
5.15. Effective Date and Recording. This Development Agreement, when approved by
the City Council and executed by the parties hereto, shall be effective when recorded by
the Douglas County Auditor in accordance with the provisions of RCW 36.70B.190. All
costs of recording shall be borne by the Developers.
5.16. Severability. If any provision of this Agreement is 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
IN WITNESS WHEREOF, the undersigned have set their hands the day and date set out next to
their signatures. ,
CITY OF EAST WENATCHEE
By: Attest:
Steven C. Lacy, Mayor City Clerk Dana Barnard
Date: ______________________ Date: ______________________
Approved as to form only:
___________________________
Devin Poulson, City Attorney
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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WENATCHEE PRODUCTIONS CORPORATION
By:
Name:
Title:
Signature:
Date:
State of }
} ss.
County of }
I certify that I know or have satisfactory evidence that
_______________________________________ is the person who appeared before me and
he/she acknowledged that he/she signed this instrument, on oath stated that he/she was
authorized to execute the instrument and acknowledged it as the ______________________, for
Wenatchee Production Corp, to the free and voluntary act for the uses and purposes mentioned in
this instrument.
Dated: This ______ day of _________________, 2010.
Signature of Notary
Print Name
NOTARY PUBLIC in and for the State of
Washington residing at
My Appointment Expires:
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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SELKIRK DEVELOPMENT, LLC
By:
Name:
Title:
Signature:
Date:
State of }
} ss.
County of }
I certify that I know or have satisfactory evidence that
_______________________________________ is the person who appeared before me and
he/she acknowledged that he/she signed this instrument, on oath stated that he/she was
authorized to execute the instrument and acknowledged it as the ______________________, for
Selkirk Development, LLC, to the free and voluntary act for the uses and purposes mentioned in
this instrument.
Dated: This ______ day of _________________, 2010.
Signature of Notary
Print Name
NOTARY PUBLIC in and for the State of
Washington residing at
My Appointment Expires:
Development Agreement Between the City of East Wenatchee, Wenatchee Productions Corporation, and Selkirk Development, LLC
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Exhibit A
PROPERTY LEGAL DESCRIPTION
Lot 1, East Wenatchee Land Company’s Plat of Section 14, Township 22 N., Range 20, E.W.M.,
Douglas County Washington, according to the plat thereof recorded in Volume A of Plats, Page
192, EXCEPT the south 285 feet thereof, and also EXCEPT the North 110 feet of the East 135
feet thereof, and also EXCEPT the North 10 feet thereof conveyed to Douglas County,
Washington for road purposes by deeds recorded June 18, 1956 and September 24, 1962, under
Auditor’s Nos. 121510 and 136691, respectively, also EXCEPT the South 170 feet of the North
180 feet of the West 212 feet thereof, and also EXCEPT the West 209 feet thereof lying
southerly of the North 180 feet thereof, and EXCEPT that portion conveyed to the city of East
Wenatchee by deed recorded October 3, 1990, under Auditor’s NO. 263918.
Source of Legal Deed of Trust recorded on March 19, 1999, AFN 3019522
Exhibit B Page 1 of 2
Exhibit B Page 2 of 2