HomeMy WebLinkAbout12/07/2010 07A Development Agreement for the Preliminary Plat Master Planned Development of Cameo Court at Apple Tree BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No 7
For Meeting of December 7, 2010
ITEM TITLE "Open Record" public hearing on the proposed Development Agreement for the
Master Planned Development of the Preliminary Plat of Cameo Court at Apple
Tree
SUBMITTED BY Michael A. Morales, Director of Community & Economic Development
CONTACT PERSON/TELEPHONE Joseph Calhoun, Assistant Planner, 509 - 575 -6162
SUMMARY EXPLANATION "Open Record" public hearing to consider a Development
Agreement between the City of Yakima and Apple Tree Development for the proposed Master
Planned Development /Preliminary Plat of Cameo Court at Apple Tree The Development
Agreement is a condition of approval for a Master Planned Development. On September 9,
2010, the Hearing Examiner held an "Open Record" public hearing, to consider application On
September 27, 2010, the Hearing Examiner issued his recommendation to conditionally approve
the Preliminary Plat and Master Planned Development.
•
Resolution X Ordinance Contract Other Development Agreement
Funding Source
Approval For Submittal
City Manager
STAFF RECOMMENDATION Adopt the Resolution authorizing the signing of the
Development Agreement.
BOARD RECOMMENDATION On September 27, 2010, the Hearing Examiner recommended
that the Master Planned Development and Preliminary Plat of Cameo Court, be approved
COUNCIL ACTION Council adopted the Hearing Examiner's recommendation on the
Preliminary Plat on November 2, 2010 and directed the Legal Department to draft the
appropriate legislation A Resolution approving the Preliminary Plat was signed by the Mayor
on November 16, 2010
• RESOLUTION NO R -2010-
A RESOLUTION authorizing and directing the City Manager to execute a Development
Agreement with Apple Tree Development (hereinafter "Developer "), to
provide for the terms and conditions for the Master Planned Development
and Preliminary Plat of "Cameo Court at Apple Tree" (hereinafter "Project ")
WHEREAS, the City of Yakima (hereinafter "City ") is a first class charter city
incorporated under the laws of the State of Washington and has the authority to enact laws and
enter into agreements to promote the health, safety, and welfare of its citizens and thereby to
control the use and development of property within its corporate limits, and
WHEREAS, the City has the authority to enter into development agreements with those
who own or control property within its jurisdiction pursuant to RCW 36 70B 170 - .210, and
WHEREAS, pursuant to the Growth Management Act, RCW 36 70A, the City adopted its
Yakima Urban Area Comprehensive Plan Subsequently, the City has revised and updated this
plan and has adopted, and continues to adopt, development regulations to implement the plan,
including adoption of Yakima Urban Area Zoning Ordinance, which originally zoned the property
Two - Family Residential, and
WHEREAS, Developer proposed the planned development and subdivision of 9 4 acres
of land, legally described in Exhibit "A ", attached hereto and incorporated herein by this
ill reference, located in the vicinity of Coolidge and 88 Avenues Yakima, Washington (hereinafter
"Subject Property "), and
WHEREAS, on July 23, 2010, the City issued a Notice of Application, Environmental
Review, and Public Hearing for the Project; and
WHEREAS, on August 19, 2010, the City issued a Final Mitigated Determination of
Nonsignificance for compliance with the State Environmental Policy Act; and
WHEREAS, on September 9, 2010, the Hearing Examiner for the City of Yakima
conducted an open- record public hearing regarding the requested Project; and
WHEREAS, on September 27, 2010, the Hearing Examiner issued Hearing Examiner's
Recommendation (the "Recommendation") regarding PD #002 -10, PLP #004 -, VAR #002 -10 and
SEPA #021 -10, recommending that the Project be approved, subject to conditions, and
WHEREAS, at a closed- record public hearing held on November 2, 2010 the City
Council considered the requested Project, including the documents and other evidence, which
comprise the record developed before the Hearing Examiner, the Hearing Examiner's
Recommendation, and the statements and comments of interested persons and voted to
approve the Preliminary Plat of Cameo Court at Apple Tree and authorized the legal division to
draft the appropriate legislation, and
III WHEREAS, at its. November 16, 2010 meeting, a Resolution (R- 2010 -130) to approve
the Preliminary Plat of Cameo Court at Apple Tree was signed by the mayor; and
;jc)res /Cameo Court - Development Agreement
WHEREAS, this Agreement is intended to satisfy the obligations as set forth in the Final
Decision for the execution of a development agreement between Developer and the City to
implement the conditions set forth in the Final Decision, and
WHEREAS, the City has determined that the Project is a development for which this
Agreement is appropriate, and desires to enter into this Agreement. This Agreement will,
amongst other things, implement the conditions in the Final Decision, eliminate uncertainty over
development of the Project, provide for the orderly development of the Project consistent with
the City's current Comprehensive Plan and zoning for this Property, mitigate environmental
impacts, and otherwise achieve the goals and purposes for which the Development Agreement
Statute was enacted, now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA. The City
Manager of the City of Yakima is hereby authorized and directed to execute the attached and
incorporated Development Agreement, Exhibit "B ", attached hereto and incorporated herein by
this reference The Yakima City Council, after a duly noticed public hearing, has determined
that execution of this Agreement furthers the public health, safety, and general welfare, and that
the provisions of this Agreement are consistent with the Comprehensive Plan and applicable
development regulations
ADOPTED BY THE CITY COUNCIL at a regular meeting and signed and approved this 7th day
of December, 2010
Micah Cawley, Mayor
ATTEST
City Clerk
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(jc)res/Toscanna - Development Agreement
Exhibit "A"
Legal Description
Parcel 181331 -42006
That portion of the Southwest quarter of the Northwest quarter of the Southeast quarter of
Section 31, Township 13 North, Range 18 East, W.M. described as follows
Commencing at the Northwest corner of said subdivision, Thence North 89 ° 35' 18" East along
the Northerly line thereof 20 00 feet to the Easterly right of way line of South 88 Avenue,
Thence South 00 ° 05'31" West along said right of way line 277 75 feet to the Point of Beginning;
Thence South 89 ° 54'29" East 87 03 feet; Thence South 00 ° 05'31" West 75 91 feet; Thence
South 44 ° 49'03" East 32 41 feet to a point on a curve concave to the Southeast, center of said
curve bearing South 60 ° 38'39" East 55 00 feet; Thence Southwesterly along said curve
consuming a central angle of 21 ° 02'33" an arc length of 20 20 feet; Thence North 44 ° 49'03"
West 34 31 feet; Thence North 89 ° 54'29" West 72 84 feet to said Easterly right of way line of
41)
South 88 Avenue, Thence North 00 ° 05'31" East along said right of way line 90 00 feet to the
Point of Beginning. Situated in Yakima, County, Washington.
Parcel 181331 -42007
That portion of the Southwest quarter of the Northwest quarter of the Southeast quarter of
Section 31, Township 13 North, Range 18 East, W.M. described as follows
EXCEPT the South 20 feet and the West 20 feet thereof for road,
AND EXCEPT Commencing at the Northwest corner of said subdivision, Thence North
59 East along the Northerly line thereof 20 00 feet to the Easterly right of way line of
South 88 Avenue, Thence South 00 ° 05'31" West along said right of way line 277 75 feet to the
Point of Beginning; Thence South 89 ° 54'29" East 87 03 feet; Thence South 00 ° 05'31" West
75 91 feet; Thence South 44 ° 49'03" East 32 41 feet to a point on a curve concave to the
Southeast, center of said curve bearing South 60 ° 38'39" East 55 00 feet; Thence Southwesterly
along said curve consuming a central angle of 2l ° 02'33" an arc length of 20 20 feet; Thence
North 44 ° 49'03" West 34 31 feet; Thence North 89 ° 54'29" West 72 84 feet to said Easterly right
, Df way line of South 88 Avenue, Thence North 00 ° 05'31" East along said right of way line
90 00 feet to the Point of Beginning.
AND EXCEPT that portion of said premises as conveyed to the City of Yakima by quit claim
deed recorded June 4, 2010 under Auditor's File Number 7693590, records of Yakima County,
40 Washington. Situated in Yakima County, Washington.
0
Exhibit "B"
Development
Agreement
0
0
Development Agreement By and Between
City of Yakima
and
Apple Tree Construction Company, LLC for
CAMEO COURT AT APPLE TREE SUBDIVISION
This Development Agreement ( "Agreement ") is made and entered into between
the City of Yakima, a Washington municipal corporation ( "City') and Apple Tree
Construction Company, LLC, a Washington limited liability company ( "Apple Tree" or
"Developer ")
I. RECITALS
Whereas, the City is a first class charter city incorporated under the laws of the
State of Washington and has the authority to enact laws and enter into agreements to
promote the health, safety, and welfare of its citizens and thereby to control the use and
development of property within its corporate limits, and
Whereas, the City has the authority to enter into development agreements with
those who own or control property within its jurisdiction pursuant to RCW
36 70B 170(1), and
Whereas, Developer is the owner of a parcel of approximately 9 5 acres at the
northeast corner intersection of Coolidge and 88th Ave , Yakima, WA (the "Property")
The Property is legally described as follows
See Attached Exhibit A.,
incorporated herein by this reference, and
Whereas, Developer has proposed a 39 lot subdivision comprised of three (3)
phases together with a master planned development application for the purpose of
authorizing gates and private interior roadways, and
Whereas, Apple Tree is in the process of developing an approved master planned
development known as "Apple Tree Resort Development" on approximately three
hundred (300) acres of land adjacent to the Property; and
Whereas, Apple Tree and City cooperated in a public /private partnership to design
and construct public wastewater line and service facilities in order to provide wastewater
service to the Ahtanum Sub -Basin Sewer construction and financing was provided by
Apple Tree Partnership pursuant to Sewer Construction and Bond Purchase Agreement
dated November 14, 2000 Cameo Court is situated within the benefit area and properties
• Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -1-
subject to agreements with regard to wastewater connections as set forth in the referenced
agreement; and
Whereas, a master planned development overlay (PD) is a comprehensive
development plan intended to provide flexibility in design and building placement,
promote attractive and efficient environments, densities and/or dwelling types, provide
for economy of shared services and facilities, and economically utilize the land,
resources, and amenities, and
Whereas, pursuant to the Growth Management Act, RCW 36 70A, the City
adopted its Yakima Urban Area Comprehensive Plan. Subsequently, the City has revised
and updated this plan and has adopted and continues to adopt development regulations to
implement the plan, including adoption of Yakima Urban Area Zoning Ordinances,
which zoned the property Suburban Residential, and
Whereas, an open record public hearing was held before the City of Yakima
Hearing Examiner on September 9, 2010 (following required public notice) and the
Hearing Examiner issued Hearing Examiner's Recommendation on September 27, 2010,
and
Whereas, City Council held a closed record public hearing and considered the
application, record and Hearing Examiner's Recommendation on November 2, 2010 and
approved the subdivision, Master Plan and Variance.
Whereas, the parties intend this guide agreement to the current and future uses of
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the property, now, therefore,
II. AGREEMENT
In consideration of mutual benefits, the parties agree as follows
1 Subject Property. Developer proposed subdivision and development of
the Property as more particularly set forth in the approved preliminary plat of Cameo
Court at Apple Tree ( "Subdivision" or "Cameo Court") — Exhibit B Cameo Court
includes a private gated residential subdivision (Phases I and II) and an adjacent phase
(Phase III) served by public road, collectively consisting of thirty -nine (39) lots: Cameo
Court was reviewed and recommended for approval by the Yakima Urban Area Hearing
Examiner as set forth in Hearing Examiner's Recommendation dated September 27, 2010,
and the Subdivision and master plan was approved by City Council on December 7,
2010
Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -2-
2. Development Terms.
(a) Final Plat — Completion and Recording. Developer agrees to abide
by the terms and conditions established by City for the preliminary plat of Cameo Court,
including construction (or bonding) of all infrastructure and improvements described on
the preliminary plat/planned development site plan map and required by plat and master
plan decisions.
(b) Mitigated Determination of Non - Significance. Developer agrees
that the Property shall be used and developed in a manner consistent with the project
description and subject to the seven (7) mitigation measures set forth in the State
Environmental Policy Act (SEPA) Mitigated Determination of Non - Significance issued
by the City of Yakima on August 19, 2010 (File No SEPA #021 -10), and incorporated
herein by this reference as if set forth in full (the "MDNS ")
(c) Gate and Interior Roads. Cameo Court Phases I and II will be
developed as a gated private residential community Gate location shall be as set forth on
attached Exhibit B Interior roadways for Phases 1 and 2 shall be private and maintained
by Apple Tree and/or a home owners' association established for or by residents of
Cameo Court. The private roadways shall not become public roadways unless later
accepted by the City Engineer If the streets are ever made public, all entry and exit gates
will have to be removed.
(d) Phased Development. Cameo Court is designed as a phased
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residential development. Development shall proceed at such times and manner as
determined reasonable and/or appropriate by Apple Tree and subdivision and master plan
approval shall continue for the period specified herein. Any residential construction shall
be subject to applicable building codes in place at the time a complete building permit
application for said construction has been received by the City
(e) Wastewater Connections. Residential lots and improvements
within Cameo Court shall be entitled to wastewater connection waivers as more
particularly set forth in that certain Sewer Construction and Bond Purchase Agreement
dated November 14, 2000 Such agreement specifically provides that properties within
Apple Tree Resort Development (identified to include 225 acres of
residential /commercial developable property) would not be charged for any Collection
Element of the current or future wastewater connection charges
(f) Dedication of Right -of -Way Developer shall dedicate the
westerly five (5) feet of Property located on the east side of 88 Avenue for future public
right -of -way Right -of -way dedication shall be reflected upon final plat recording for
Cameo Court.
® Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -3-
3 Term This Agreement shall continue in force for a period of thirty -five
(35) years unless extended or terminated as provided herein or when the property has
411
been fully developed in accord with the preliminary plat, whichever first occurs.
Notwithstanding the generality of the foregoing, the parties expressly agree and covenant
that the streets within the proposed development shall remain private and the
development may maintain private and limited access through use of access controls and
gate
4 Vesting. The master planned development and subdivision shall be vested
to development regulations, standards, conditions, and laws applicable at the time the
Development Agreement is recorded, inclusive of specific conditions and standards set
forth in said Development Agreement. The vesting period shall be for the "Term" of the
Agreement. During the stated vesting period the applicant shall be entitled to implement
the master planned development and Subdivision in accordance with the terms and
conditions of approval set forth herein. Vesting of rights also include reservation of
traffic capacity on public streets and roadways and capacity in public facilities such as
sewer and water
5 City's Reservation of Rights. The parties intend this Agreement to be
interpreted to the full extent authorized by law as an exercise of the City's authority to
enter into development agreements pursuant to RCW 36 70B 170 Provided, however,
that this Agreement shall be construed to exclude from the scope of this Agreement and
to reserve to the City the authority which is prohibited by law from being subject to the
mutual agreement with consideration of parties acting under Ch. 36 70B RCW Without
limitation, this shall include the right of the City to impose new or different conditions on
the property to the extent required by a serious threat to public health and safety
6 Default/Notices. No party shall be in default under this Agreement unless
it has failed to perform as required for a period of thirty (30) days after written notice of
default to the other party Each notice of default shall specify the nature of the alleged
default and the manner in which the default may be cured satisfactorily The party not in
default under this Agreement shall have all rights and remedies provided by law or
equity, including without limitation, damages, specific performance or writs to compel
performance or require action consistent with this Agreement.
7 Assignment of Interests, Rights and Obligations This Agreement shall
be binding and inure to the benefit of the parties No party may assign its rights under
this Agreement without the written consent of the other party, which consent shall not be
unreasonably withheld. This Agreement shall be binding upon and shall inure to the
benefit of the heirs, successors, and assigns of Developer and the City
8 Appeals In the event that any of the permits or approvals associated
with the proposed development, including but not limited to SEPA determinations,
preliminary plat, or planned development approval, are or may be appealed, then in that
Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -4-
event, the City's obligations under this Agreement, and under the above - referenced
development entitlements, shall be suspended, and may be terminated upon either order
of court of competent jurisdiction or mutual agreement of the parties. Developer agrees
not to appeal any of the previously required permits or approvals associated with the
proposed development, including but not limited to SEPA determinations, preliminary
plat, or planned development approval
9 Third Party Legal Challenge In the event any legal action or special
proceeding is commenced against the City by any person or entity other than a party to
this Agreement to challenge this Agreement or any provision herein, including any of the
permits, approvals, or entitlements associated with this Agreement, the City may elect to
tender the defense of such lawsuit or individual claims in the lawsuit to Developer and
Developer shall have the sole responsibility for defense of the third party legal challenge
The tender and acceptance thereof shall relate solely to defense of the claims but shall not
include assumption of any municipal liability, obligation or legal responsibility arising
from or related to challenged municipal acts or omissions. The Developer shall not settle
any such tendered lawsuit without the consent of the City, which consent shall not be
unreasonably withheld.
10 Developer's Warranties and Representations. Developer represents
and warrants to City that Developer has a property interest in the property, and that the
covenants and obligations of Developer in this Agreement and in the permits, approvals,
and entitlements associated with this Agreement and the proposed development do not
violate or constitute a default under or breach of any agreement between Developer and
any third party by which Developer is bound. Developer represents and warrants to City
that Developer is fully authorized to enter into and perform its obligations under this
Agreement. Developer represents and warrants to City that there is neither pending nor,
to the knowledge of Developer, any threatened legal action, arbitration or administrative
hearing before any governmental authority to which Developer is a party and which
could enjoin or restrict Developer's right or ability to perform its obligations under this
Agreement.
11 Modification of an Approved Master Planned Development Overlay
Modifications to the adopted master development plan and/or Development Agreement
may be required from time to time. Minor modifications will be subject to Type (2)
review as defined in YMC Chapter 15 13 The administrative official shall review
modifications to adopted master development plan and/or Development Agreement as a
minor modification if it has been determined that:
(a) The amendment does not increase the areas identified for any
particular land use or increase the residential density approved in the master plan,
(b) The amendment does not increase the total area of nonresidential
uses by more than five percent (5 %),
Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -5-
(c) The amendment does not materially change the type and character
of approved uses,
(d) The amendment does not materially change provisions for parking
or traffic circulation within the development,
(e) The amendment does not materially change setbacks, buffers,
landscaping, shoreline, critical areas, or other mitigation measures,
(f) The amendment does not materially impact the overall design of
the approved master plan, and
(g) Other similar changes of a minor nature proposed to be made to the
configuration, design, layout or topography of the master planned development which are
deemed not to be material or significant in relation to the entire master planned
development and are determined not to have any significant adverse effect on adjacent or
nearby lands or the public health, safety or welfare.
Major modifications will be subject to Type (3) review as defined in YMC Chapter 15 15
and shall be referred to the Hearing Examiner in accordance with YMC 15 15 040 A
"major modification" shall be any modification to an approved master development plan
or development agreement that is deemed to be more significant than a "minor
modification" as described hereinabove
12. Severability If any provision of this Agreement are determined to be
unenforceable or invalid pursuant to a final decree or judgment by a court of law or
tribunal with jurisdiction, then the remainder of this Agreement not decreed or adjudged
unenforceable or invalid shall remain unaffected and in full force and effect.
13 Agreement to be Recorded This Agreement may be modified only by
written agreement of the parties hereto This Agreement or a memorandum thereof shall
be recorded against the Property as a covenant with the land which touches and concerns
the Property and shall be binding upon the City and Developer, their heirs, successors and
assigns, and all future owners of the Property Developer shall be responsible for the
costs of recording. Any approved modifications to this Agreement shall also be recorded
against the Property
14 Specific Performance. The parties specifically agree that damages are
not an adequate remedy for breach of this Agreement, and that the parties are entitled to
compel specific performance of all material terms of this Agreement by any party in
default hereof.
Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -6-
15 Governing Law and Venue. This Agreement shall be construed and
• enforced in accordance with the laws of the State of Washington. Venue for any action
shall lie in Yakima County Superior Court.
16 Attorneys' Fees. In the event of any litigation or dispute resolution
process between the parties regarding an alleged breach of this Agreement, neither party
shall be entitled to any award of attorneys' fees.
17 No Third Party Beneficiaries This Agreement is for the benefit of the
parties hereto only and is not intended to benefit any other person or entity No person or
entity not a party to this Agreement (other than a subsequent owner of a lot in the Plat of
Cameo Court) may enforce the terms and provisions of this Agreement.
18 Integration This Agreement represents the entire agreement of the
parties with respect to the subject matter hereof. There are no other agreements between
the parties, oral or written, except as expressly set forth herein.
19 Covenants Running with the Land. The conditions and covenants set
forth in this Agreement shall run with the land. Developer and every purchaser, assignee,
or transferee of any interest in the Property or any portion thereof, shall be obligated and
bound by the terms and conditions of this Agreement, and shall be the beneficiary thereof
and a party thereto, but only with respect to the Property, or such portion thereof, sold,
assigned, or transferred to it. Any such purchaser, assignee, or transferee shall observe
and fully perform all of the duties and obligations of the Developer contained in this
Agreement, as such duties and obligations pertain to that portion of the Property sold,
assigned, or transferred to it.
20 Notices Notices, demands or correspondence to the City and Developer
shall be sufficiently given if dispatched by pre -paid, first -class mail to the following
addresses
City Manager
City of Yakima
129 North Second Street
Yakima, WA 98902
Apple Tree
Apple Tree Construction Company, LLC
8805 Occidental Avenue
Yakima, WA 98903
Notices to subsequent owners of lots in the Plat of Cameo Court shall be required to be
given by the City only for those owners who have given the City written notice of their
111 Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -7--
address for such notice. A party hereto shall, from time to time, advise the other of new
addresses for such notices, demands, or correspondence.
0
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date set forth below
CITY OF YAKIMA
By
Richard A. Zais, Jr
City Manager
APPLE TREE CONSTRUCTION COMPANY, LLC
a Washington Limited Liability Company
B• 340-2A--
Y
John E Bort
Man aging Member 0
Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
II
for Cameo Court at Apple Tree Subdivision -8-
• STATE OF WASHINGTON )
) ss.
County of Yakima )
I certify that I know or have satisfactory evidence that RICHARD A. ZAIS, Jr is the
person who appeared before me, and said person acknowledged that he is authonzed to
execute the instrument as the City Manager of CITY OF YAKIMA, and acknowledged to be
his free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated this day of , 2010
[ SEAL ] Print Name.
NOTARY PUBLIC in and for the state
of Washington, residing at
My appointment expires
STATE OF WASHINGTON )
) ss.
County of Yakima )
I certify that I know or have satisfactory evidence that JOHN E. BORTON is the
person who appeared before me, and said person acknowledged that he is authorized to
execute the instrument as the Managing Member of APPLE TREE CONSTRUCTION
COMPANY, LLC, and acknowledged to be his free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
Dated this 30 day of NO f.2 , 2010
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I' ;S. Print Name Su-s4.,, ►M, Sha -n
•
• �: NOTARY PUBLIC in and for the state
Mg t;E 9 ; Z = of Washington, residing at
• 3aittl �� My appointment expires 112. ) , 3
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Development Agreement By and Between
City of Yakima and Apple Tree Construction Company, LLC
for Cameo Court at Apple Tree Subdivision -