HomeMy WebLinkAboutR-2016-064 Powerhouse Villas Development Agreement with DMF Investments, Inc.A RESOLUTION
RESOLUTION NO. R-2016-064
authorizing and directing the City Manager to execute a Development
Agreement with DMF Investments, Inc , (here after "Developer") to
provide for the terms and conditions of development of a preliminary
plat and planned development to be located in the vicinity of
Powerhouse Road and 28th Avenue, in the City of Yakima
WHEREAS, the City of Yakima (here after "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 36.706 170-
36 706.170, YMC Ch 15 28 050 and YMC 14.10 010, 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 Ordnances, which
zoned the property Multi -Family Residential, and
WHEREAS, Developer has obtained development rights for four parcels of
approximately 12 acres on the northeast side of 3105 Powerhouse Road, Yakima,
Washington (the "property") The property is legally described as follows.
Lots 1, 2, 3 and 4 of Short Plat recorded under Auditor's File Number 7879993,
records of Yakima County, Washington.
and incorporated herein, and
WHEREAS, on July 24, 2015, DMF Investments Inc submitted an application for a
forty three (43) lot preliminary subdivision and planned development located north west of
Powerhouse Road and to the west of N 28th Avenue, (the "Project"), and
WHEREAS, on September 2, 2015, the City issued a Notice of Application and
Environmental Review for the Project; and
WHEREAS, the specific proposed use of the property identified by Developer is that
of a multi -family residential master planned subdivision; and
WHEREAS, Developer intends to take appropriate steps to comply with
environmental and land use requirements related to development of the property, and
WHEREAS, the City Planning Division conducted environmental review of the
Project under the State Environmental Policy Act ("SEPA") and issued a Final
Determination of Nonsignificance ("DNS") on the Project on October 13, 2015, and
WHEREAS, on November 12, 2015, the Hearing Examiner held an open record
hearing in consideration of the Project, and
WHEREAS, on November 27, 2015, the Hearing Examiner issued his land use
recommendation proposing that the Project be approved subject to conditions, and
WHEREAS, on January 19, 2016, after notice duly given according to the
requirements of the City of Yakima Municipal Code, the City Council held a closed record
public hearing and adopted the recommendation of the Hearing Examiner, and directed the
City Legal Department to prepare appropriate legislation to approve the preliminary plat and
planned development subject to the obligation of the Developer to enter into a development
agreement with the City to implement the conditions set forth in the Final Decisions, and
WHEREAS, this Agreement is intended to satisfy the obligations as set forth in the
Final Decisions for the execution of a development agreement between the Developer and
the City to implement the conditions set forth in the Final Decisions, 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. 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 this 3rd day .j May, 201
ATTEST:
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DEVELOPMENT AGREEMENT
BETWEEN
CITY OF YAKIMA, WASHINGTON, AND
DMF INVESTMENTS, INC.
THIS DEVELOPMENT AGREEMENT ("agreement") is entered into between the
City of Yakima, a Washington municipal corporation ("City"), and DMF Investments, Inc., a
Washington Corporation ("Developer").
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 -
36.70B.210, YMC 15.28.050 and YMC 14.10.010; and
WHEREAS, Developer has obtained development rights for four parcels of
approximately 12 acres on the northeast side of 3105 Powerhouse Road, Yakima, Washington
(the "property"). The property is legally described as follows:
Lots 1, 2, 3 and 4 of Short Plat recorded under Auditor's File Number 7879993,
records of Yakima County, Washington.
and incorporated herein; and
WHEREAS, Developer is proposing a 43 lot subdivision and creation of a planned
development with certain amenities for the property; and
WHEREAS, Developer intends to take certain steps to comply with environmental
and land use requirements related to development of the property; 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 R-3 Multi -family Residential District; and
WHEREAS, the parties intend this agreement to guide the current and future uses of
the property; now, therefore,
IN CONSIDERATION OF mutual benefits, the parties agree as follows:
1. The proposed development. Developer's proposal for the property is hereby
acknowledged and warranted to be for the purpose of constructing a residential subdivision
and planned development. Developer specifically acknowledges and warrants that the
proposal for the property is construction of not more than 43 multi -family structures on
separate lots together with accompanying amenities. The Developer's preliminary
plat/planned development application has been filed with the City. It has been reviewed and
recommended for approval by the Yakima Urban Area Hearing Examiner to the Yakima City
Council in the form of a Hearing Examiner's Recommendation dated on November 27, 2015,
and incorporated herein by this reference as if set forth in full. The said subdivision and
planned development is referred to herein as the "proposed development."
2. Conditions of approval. Developer agrees to abide by the terms and conditions of
approval recommended by the Hearing Examiner, including construction of all infrastructure
described on the preliminary plat/planned development site plan map and incorporated herein
by this reference as if set forth in full, including as the same may be revised to conform with
conditions of approval set forth in the Hearing Examiner's Recommendation. Developer
agrees that the use of the property pursuant to this agreement shall be consistent with the
project description identified in the Washington State Environmental Policy Act
Determination of Nonsignificance issued by the City of Yakima on October 13, 2015, and
incorporated herein by this reference as if set forth in full (the "DNS"). Developer agrees to
abide by the mitigation and other requirements identified as a part of the DNS. Developer
agrees to abide by the conditions of such further or additional land use permits or approvals as
may be identified in the DNS, or as may otherwise be required by applicable federal, state,
and local law including but not limited to the City's Title 12 and all other applicable
development standards, all as the same currently exist or may be hereafter amended; provided,
however, that the procedures and substantive rules of the City's Master Planned Development
ordinances, as codified at Ch. 15.28. Yakima Municipal Code as it existed as of the date of
this agreement and incorporated herein by this reference, shall guide and control all matters
related to said ordinances and to the planned development aspect of the proposed
development until this agreement terminates as provided elsewhere herein. Developer agrees
to make future applications or submissions as may be necessary to fully implement any
phased review of the proposed development and any specific project proposed therein.
3. Developer's Compliance. Developer agrees to abide by all such conditions as identified
as a part of the Developer's Home Owner's Association and Declaration of Covenants,
Conditions and Restrictions for the proposed development and incorporated herein by this
reference as if set forth in full.
4. 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 event the City's obligations under
this agreement, and under the above -referenced development entitlements, shall be suspended,
and may be terminated in whole or in part to the extent that the City reasonably believes
necessary to maintain consistency between this agreement (and/or the above -referenced
development entitlements) and the conclusion of any appellate proceedings associated with
the proposed development. 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.
5. Default/Notice. No party shall be in default under this agreement unless it has failed to
perform as required for a period of 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.
6. No third party beneficiary. This agreement is made and entered into for the sole
protection and benefit of the parties hereto and their successors and assigns. No other person
shall have any right of action based upon any provision of this agreement.
7. 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. In such event, Developer shall hold
the City harmless from and defend the City from all costs and expenses incurred in the
defense of such lawsuit or individual claims in the lawsuit, including but not limited to
reasonable attorneys fees and expenses of litigation and damages awarded to the prevailing
party or parties in such litigation. The Developer shall not settle any such tendered lawsuit
without the consent of the City, which consent shall not be unreasonably withheld.
8. Term. This agreement shall continue in force for a period of thirty (30) years unless
extended or terminated as provided herein or when the property has been fully developed,
whichever first occurs, and all the Developer's obligations in connection herewith have been
satisfied in the sole reasonable discretion of the City. Provided, however, that termination of
this agreement shall not affect any of Developer's obligations to comply with the Yakima
Urban Area Comprehensive Plan, any applicable zoning, subdivision, or other municipal
codes, or any land use entitlements approved with respect to the property or proposed
development. Termination of this agreement shall not affect any of Developer's obligations
herein which expressly or by implication are to continue after the termination of this
agreement; notwithstanding the generality of the foregoing, the parties expressly agree and
covenant that the streets within the proposed development shall be required to be private and
shall never be accepted by the City of Yakima as public streets.
9. City's reservation of rights. The parties intend this agreement is 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 its scope and reserve to the City the authority which is prohibited
by law from implementation by 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 stormwater development
standards and any serious threat to public health and safety. Developer acknowledges that
any phased approach to developing the proposed development contemplates and requires the
exercise of further discretionary powers by the City. These powers include, but are not limited
to, review of additional permit applications under SEPA and other applicable law. Nothing in
this agreement shall be construed to limit the authority or the obligation of the City or any of
its officials or officers in complying with or applying applicable law during review of specific
project proposals or other subsequent phases of the proposed development.
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 requested from
time to time.
Minor modifications will undergo Type (1) 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:
1. The amendment does not increase the areas identified for any particular land use or
increase the residential density approved in the master plan;
2. The amendment does not increase the total area of nonresidential uses by more than
five percent;
3. The amendment does not materially change the type and character of approved uses;
4. The amendment does not materially change parking or traffic circulation within the
development;
5. The amendment does not materially change setbacks, buffers, landscaping, shoreline,
critical areas, or other mitigation measures;
6. The amendment does not materially impact the overall design of the approved master
plan; and
7. 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 undergo 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. Vesting: The master planned development review shall he 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 to the extent it complies with applicable Washington law. The vesting period shall
be for the "Term" as stated in the development agreement and shall be agreed upon by the
parties to the Development Agreement after giving consideration to the extent and complexity
of the proposed development as well as specific development planning considerations raised
by the developer.
13. Severability. If any provisions 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.
14. 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.
15. Agreement approval. This agreement may only become effective upon execution by the
City of Yakima following adoption of a resolution approving the same following a public
hearing in compliance with Ch. 36.70B RCW.
16. Entire agreement. This agreement constitutes the entire agreement of the parties and
incorporates all prior discussions and agreements.
AGREEMENT DATED this day of a.a,,V
CITY OF YAKIMA
By:
42e7e4
Jfftter
Interim City Manager
ATTEST:
J
, 2016.
DMF Investments, Inc.,
a Washington Corporation
B
William Frodsham
President
cm CONTRACT No:.2D/(o -0i'8
RESOLUTION NO' 7-(201 b `O y
SonyT'Claar Tee
City Cierk
STATE OF WASHINGTON
County of Yakima
) ss.
I certify that I know or have satisfactory evidence that Jeff Cutter, personally appeared
before me, signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the City Manager of the City of Yakima, to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: 5 - , 2016.
Notary Public
State of 'Vas#sizigton
KAARRE ALLYN
MY COMMISSION EXPIRES
January 12, 2020
Notary Pu%lic
Residing at c-/:(2, „die' /fid
Commission eipires: 1,
STATE OF WASHINGTON )
) ss.
County of Yakima )
I certify that I know or have satisfactory evidence that William Frodsham, personally
appeared before me, signed this instrument, on oath stated that he was authorized to execute
the instrument and acknowledged it as the President of DMF Investments, Inc., to be the free
and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: T--1 "1, , 2016.
CO - Sr( CkikLA V•Ai4d.A_ Qk AJU(N1
Notary Public
Residing at l.\ClAl..I.ArY\.G % \ik._ CA
Commission expires: 03-01-Wn-0
ITEM TITLE:
SUBMITTED BY:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDASTATEMENT
Item No. 7.
For Meeting of: May 3, 2016
Public hearing and resolution on the proposed Development
Agreement for Powerhouse Villas located in the vicinity of
Powerhouse Road and 28th Avenue
Joan Davenport, AICP, Director of Community Development
Trevor Martin, Associate Planner (509) 575-6162
SUMMARY EXPLANATION:
William Frodsham, on behalf of DMF Investments Inc., submitted a development agreement for
Powerhouse Villas, a 43 lot multi -family residential master planned development located in the
vicinity of Powerhouse Rd. between N. 34th and N. 28th Avenues. This master planned
development and plat received preliminary approval on January 19, 2016, by the Yakima City
Council. The Development Agreement codifying all conditions of approval of the master planned
development and plat are now ready for Council's consideration and approval.
ITEM BUDGETED:
STRATEGIC PRIORITY: Neighborhood and Community Building
APPROVED FOR SUBMITTAL:
eap„--
Interim City Manager
STAFF RECOMMENDATION:
Adopt Resolution
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date
D Memo to Council _Powerhouse Villas _DevAgmt 4/15/2016
D Resolution _Powerhouse Villas _DevAgmt 4/5/2016
Type
Coker Memo
Resolution
❑ Daelopment Agreement _Powerhouse Villas
4/5/2016 Backup Material
/m ■+.� DEPARTMENT OF COMMUNITY DEVELOPMENT
// I I %%
Planning Division
P d tl i 'i t1 g 129 North Second Street
Yakima, WA 98901
MEMORANDUM
TO: Yakima City Council and Jeff Cutter, Interim City Manager
FROM: Planning Division Staff
SUBJECT: 5/3/2016 Council Agenda item "Public Hearing for Powerhouse Villas
Development Agreement"
Date: April 22, 2016
On May 3, 2016 the City Council will conduct an open record public hearing regarding
the Development Agreement for the Planned Development now known as Powerhouse
Villas located in the vicinity of Powerhouse Rd. between N. 34th and N. 28th Avenues.
BACKGROUND
DMF Investments submitted a development agreement for Powerhouse Villas Planned
Residential Development, a 43 multi -family lot Planned Development subdivision located
in the vicinity of Powerhouse Rd. between N. 34th and N. 28th Avenues. This
subdivision received preliminary plat approval on January 19, 2016 by the Yakima City
Council (Resolution No. R-2016-012).
During the preliminary long plat process, the City required Conditions of Approval that
must be met before the Developer may submit their Final Plat for the proposed
residential subdivision, and before the Developer may move forward with building
homes. These conditions often include, building or bonding for roads, sewer, and water
pipes, and most other infrastructure necessary to serve the homes. One of the
Conditions of Approval for the Powerhouse Villas proposal is for a formal Development
Agreement between DMF Investments Inc., the owner of the Powerhouse Villas
development, and the City of Yakima. This project proposal includes private streets,
which require a Development Agreement for the on-going maintenance. The
components of a Development Agreement include, but are not limited to: identifying
number of lots within the subdivision, lot sizing, phasing plan, setbacks, circulation of
traffic, available common areas, and any aesthetic standards or restrictive covenants.
The City of Yakima Planning Division has reviewed the submitted development
agreement against the Hearing Examiner's Decision and RCW 36.70B.170, and found
the development agreement in conformance with the terms and conditions of the
Hearing Examiner's Decision and Yakima Municipal Code.
ACTION NEEDED
The City Council is tasked with processing the Development Agreement by taking one of
the following Actions:
• Approve the Development Agreement as written, and sign the Resolution
authorizing the City Manager to enter into the Development Agreement with DMF
Investments Inc.
• Approve the Development Agreement with modifications specified in the City
Council's Findings of Fact, and direct Staff to prepare written Findings and
updated Resolution authorizing the City Manager to enter into the Development
Agreement with DMF Investment Inc.
• Reject the Development Agreement and outline specific revisions needed to
finalize the Development Agreement into an approvable document.
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