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HomeMy WebLinkAboutR-2015-102 Scenic Estates Development AgreementA RESOLUTION RESOLUTION NO. R-2015-102 authorizing and directing the City Manager to execute a Development Agreement with Scenic Estates Development, LLC (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 Scenic Drive and North 80th 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 70B.170 - 36.70B.170, YMC Ch. 15 28 050 and YMC 14.10.090; 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 Single Family Residential; and WHEREAS, Developer has obtained development rights for a single parcel of approximately 13 acres in the vicinity of West Washington Avenue and 72nd Avenue, Yakima, Washington (the "property") Is legally described in Exhibit A, attached hereto and incorporated herein by this reference and set forth in full in the attached development agreement; and WHEREAS, on January 6, 2010, the JBS Properties Inc. submitted an application for a thirteen (13) lot preliminary subdivision and planned development located on the Southeast corner of Scenic Drive and 80th Avenue, (the "Project"), and WHEREAS, on February 12, 2010, the City issued a Notice of Application and Environmental Review for the Project; and WHEREAS, Developer has created separate legal parcels by a subdivision of the property, as defined in YMC 14.10.020 and described in YMC Chapter 14.20; and WHEREAS, the specific proposed use of the property identified by Developer is that of a single 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 Mitigated Determination of Nonsignificance ("MDNS") on the Project on March 26, 2010, and WHEREAS, on April 22, 2010, the Hearing Examiner held an open record hearing in consideration of the Project; and WHEREAS, on May 6, 2010, the Hearing Examiner issued his land use recommendation proposing that the Project be approved subject to conditions; and WHEREAS, on June 01, 2010, 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 21st day of July, 2015 ATTEST: City Clerk Micah `Cawl7y, Mayor DEVELOPMENT AGREEMENT BETWEEN CITY OF YAKIMA, WASHINGTON, AND SCENIC ESTATES DEVELOPMENT LLC THIS DEVELOPMENT AGREEMENT ("agreement") is entered into between the City of Yakima, a Washington municipal corporation ("City"), and Scenic Estates Development LLC, a Washington limited liability company ("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. 170-36.706.210, YMC 14.10.040(B) and YMC 14.10.090; and WHEREAS, Developer has obtained development rights for a single parcel of approximately 13 acres at the southeast corner of the intersection of Scenic Drive and North 80th Avenue, Yakima, Washington (the "property"). The property is legally described as follows: PARCEL A Lot 1 of Short Plat recorded under Auditor's File Number 7318823, records of Yakima County, Washington; AND Lots 39 and 40, PLAT OF YAKIMA ORCHARD HIGHLAND COMPANY'S ORCHARD TRACTS, as recorded in Volume "B" of Plats, Page 31, records of Yakima County, Washington; EXCEPT the North 223 feet of the West 800 feet thereof; AND EXCEPT the West 10 feet of said Lot 40 for road; AND EXCEPT the following described tract: The North 248 feet of Lots 39 and 40, PLAT OF YAKIMA ORCHARD HIGHLAND COMPANY'S ORCHARD TRACTS, as recorded in Volume "B" of Plats, Page 31, records of Yakima County, Washington; EXCEPT the West 800 feet thereof. ASSESSOR'S PARCEL NO. 181317-33433 PARCEL B The South 10 feet of the North 248 feet of Lots 39 and 40 of YAKIMA ORCHARD HIGHLAND COMPANY'S ORCHARD TRACTS, as recorded in Volume "S" of Plats, Page 31, records of Yakima County, Washington; EXCEPT the West 800 feet thereof. ASSESSOR'S PARCEL NO. 181317-33441 Development Agreement - 1 and incorporated herein; and WHEREAS, Developer is proposing a 16 lot subdivision and creation of a planned development with certain amenities for the property, with a First Phase consisting of the designation of thirteen (13) Tots with each developed for one single-family residence and reserving the thirteenth lot for future development in the Second Phase. The Second Phase will be the creation, by a Class (2) short plat subdivision, of up to three additional lots (out of the thirteenth lot in the First Phase) to be each developed for single-family residence, for a combined First and Second Phase development consisting of not more than sixteen (16) lots; 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 Suburban Residential; 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 16 single-family detached homes 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 May 6, 2010, 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 Mitigated Determination of Nonsignificance issued by the City of Yakima on March 26„ 2010, and incorporated herein by Development Agreement - 2 this reference as if set forth in full (the "MDNS"). Developer agrees to abide by the mitigation and other requirements identified as a part of the MDNS. Developer agrees to abide by the conditions of such further or additional land use permits or other regulatory permits or approvals as may be identified in the MDNS, 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. Developer agrees to abide by all such conditions as identified as a part of the Developer' s Home Owner' s Association and Common Area Maintenance Plan and the Declaration of Covenants, Conditions and Restrictions for the proposed development and incorporated herein by this reference as if set forth in full. 3. 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. 4. 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. 5. 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. 6. 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 Development Agreement - 3 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. 7. 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 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. 8. 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 36.7013.170. 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. 9. 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. 10. Modification of an approved master planned development overlay. Modifications to the adopted master development plan and/ or development agreement may be requested from Development Agreement - 4 time to time. Minor modifications will undergo Type (2) review as defined in YMC Chapter 15.28. 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 above thirteen (13) single-family detached homes on separate Tots together with accompanying amenities in the First Phase, and up to three additional Tots in the Second Phase pursuant to Class (2) short subdivision procedures of Title 14 YMC for a combined First and Second Phase maximum of sixteen (16) single-family detached homes on separate lots together with accompanying amenities; 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 15.25 and shall be referred to the hearing examiner in accordance with YMC 15.28.080. 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. 11. 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. 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. During the stated vesting period the applicant shall be entitled to implement the master planned development in accordance with the terms and conditions of approval described in the Development Agreement. Vesting of rights also include reservation of traffic capacity on public streets and roadways and capacity in public facilities such as sewer and water for a period of five (5) years. Development Agreement - 5 12. 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. 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. 14. 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. 15. Entire agreement. This agreement constitutes the entire agreement of the parties and incorporates all prior discussions and agreements. Development Agreement - 6 AGREEMENT DATED this 2 Sday of CITY OF YAKIMA 13\C -:i( Tony O'R. urke City Man •: ger TiA.`y , 2015. ATTEST: Scenic Estates Development LLC, a Washington Limited Liability Corporation By: By: o' a Claar Tee City Clerk STATE OF WASHINGTON ) ) ss. County of Yakima obhn Gehlsen Member 111/1. Ronald Doyfe Member I certify that I know or have satisfactory evidence that Tony 0' Rourke, 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: :NIL( Z I 2015. KAARRE ALLYN Notary Public State of Washington My Commission Expires riI 11.2016 Development Agreement - 7 Notar Public Residing at 1041AA Commission a ares: t/ - / / • Q.O /6 ITEM TITLE: SUBMITTED BY: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 8. For Meeting of: July 21, 2015 Public hearing and resolution on the proposed Development Agreement of Scenic Estates located in the vicinity of Scenic Dr. & North 80th Avenue Joan Davenport, AICP, Director of Community Development Robbie Aaron, Assistant Planner (509) 576-6736 SUMMARY EXPLANATION: John Gehlsen, on behalf of Scenic Estates Development, LLC, submitted a development agreement for Scenic Estates, a 13 lot residential subdivision located in the vicinity of Scenic Drive and North 80th Ave. This plat received preliminary plat approval on June 1, 2010 by the Yakima City Council. This Development Agreement is now ready for Council's consideration and approval. Resolution: X Ordnance: Other (Specify): Contract: Contract Term: Start Date: End Date: Item Budgeted: Amount: Funding Source/Fiscal Impact: Strategic Priority: Improve the Built Environment Insurance Required? No Mail to: Phone: APPROVED FOR SUBMITTAL: Ant City Manager RECOMMENDATION: Staff recommends City Council approve the development agreement for Scenic Estates and adopt the accompanying resolution authorizing the City Manager to sign the agreement. ATTACHMENTS: Description Upload Date ❑ Resolution - Scenic Estates Development Agreement 7/13/2015 ❑ development agreement 7/16/2015 Type Resolution Cover Memo