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Home My WebLink About116Michelle Farfan From: Sent: To: Subject: Attachments: Patty Charnas < PCharnas@co jefferson,wa.us> Monday, June 26, 2017 2:59 PM Philip Hunsucker Emailing - 2017 06 08 Final Working Draft Development Agreement REDUNE.pdf 2017 06 08 FinalWorking Draft DevelopmentAgreement REDUNE.pdf 1 Preliminary Draft 6n/2417 2:21 PM DEVELOPMENT AGREEMENT BY AND BETWEEN JEFFERSON COUNTY, WASHINGTON AND PLEASANT HARBOR MARINA AND GOLF RESORT, LLP RELATING TO THE DEVELOPMENT COMMONLY KNOWNAS THE PLEASANT HARBORMARINAAND GOLF MASTERPLANNED RESORT 1 Prcliminary Draft Table of Contents DEVELOPMENT AGREEMENT 6fi/2A17 2:21 PM I RECITALS.......... 2 EFFECTIVE DATE AND TERM..... 2.1 Effective Date.......... 2.2 Term.......... 2.3 Modification............ 3 DEVELOPER'S PROPERTY 5 7 7 8 8 8 8 8 8 9 9 9 9 0 4 PRESERVATION OF NATIVE AMERICAN TREATY RIGHTS 4.1 Recognition of Native American Treaty Rights. Recognition of Fishing Rights. Recognition of Hunting Rights. Recognition of Cultural Rights. Preservation of Treaty Rights. . IMPACT ON WATER QUALITY OUTSIDE OF THE DEVELOPER'S PROPERTY 10 5.1 Recognition of Significant Nearby Natural Resources.. .......... l0 5.2 Developer's Agreement to Address Impacts of the Pleasant Harbor MPR on Nearby Natural Resources. 6 RESERVATION OF POLICE POWER OF THE COUNTY 6.1 Police Power. 6.2 Reservation of County Authority. 7 DEVELOPMENT STANDARDS............. Permitted Uses and Density Standards; Zoning. Planning Goals and Objectives............. Stormwater Standards. ....................... I I Stormwater Subject to Best Management Practices and the County's Stormwater Management Requirements. .......... ....................... I I Stormwater Management in Public Roads, Rights-of-Way and Easements. 4.1.1 4.1.2 4.1,3 4.2 7.1 7.2 7.3 7.3.1 7.3.2 7.3.3 Stormwater Management in Private Rights-of-Ways 7.4 Critical Area Standards............ 7.5 Land Division Standards 7.6 ShorelineMasterProgram........ Additional Development Standards. ................. 2 1 l0 l0 l0 ll ll ll 11 ..................... ll .,...,,.,12 t2 12 t2 7.7 ... t2 Preliminary Draft 7.8 7.8.1 7.8.2 7.8.3 7.8.4 7.8.5 7.8.6 7.8.7 7.8.8 7.8.9 7.8.10 7.9 7.10 7.lt 7 .tt.t 7 .n.2 7 .n.3 7 .11.4 7.tt.5 7 .fi.6 7.t1.7 7.11.8 7.11.9 8.2.2 8.2.3 8.2.4 8.3 Compliance with Ordinance 0l-0128-08. ......... Condition 63(e). Condition 63(0.......... Condition 63(k)......... Condition 63(l).......... Condition 63(p). Condition 63(r).......... 6n/2017 2:21 PM l3 l3 l3 l3 l3 14 14 14 ..........14 .......... l4 Condition 63(s). Condition 63(t). Condition 63(x). Condition 63(z). The Pleasant Harbor MPR Water Service........... l5 .......... l5 Transportation Services Mitigation Healthcare Services M itigation.. Housing Mitigation. Parks and Recreation Mitigation....... MOUs Satisfy Condition 63(c) of Ordinance No. 0l-0128-08 The Developer Acknowledges that its Undertakings in the MOUs Survive the Term of this Agreement ................17 l5 15 l5 t6 t6 t6 l6 16 l6 t7 8 STANDARDS FOR DEVELOPMENT AND OTHER MITIGATION BY COUNTY..... 8.1 County Processing and Review........ 8.2 SEPA Compliance 8.2.1 Environmental Impact Statement...... t7 t7 l8 l8 l8 8.3.1 Scope of Vesting. J l8 l8 t9 t9 Memoranda of Understanding. School Services Mitigation. Fire and EMS Services Mitigation................ Law Enforcement Services Mitigation. Supplemental Environmental Impact Statement. . Substantial Compliance with Environmental Impact Statements and Supplemental Environmental Impact Statements Required. Future SEPA Review for Individual Projects. Vesting of Development Standards and Mitigation. Preliminary Drcft 6n/2017 2:21 PM Vesting Period........ Default Standards and Requirements. State and Federal Law........... No Vested Rights against Federal or State Requirements. 8.3.6 Building Codes 9.1 Phasing Plan. 9.1.1 Phases Proposed. 9.1.2 8.3.2 8.3.3 8.3.4 8.3.s t9 l9 20 20 20 20 20 20 Requirement of Adequate Infrastructure, Open Space, Recreational Facilities, Landscaping and Other Conditions Sufficient for Each Phase to Stand Alone. ....................20 9.r.3 9.1.4 9.1.5 9.1.6 10.2 t0.2.1 10.3 Phase l. ........ Phase 2......... Phase 3......... Phase 4......... ,,21 ..21 ..21 ..21 9.2 Preliminary Facilities............ 9.2.1 Water System. 9.2.2 SewerSystem...... 9.2.3 Road Network. 9.2.4 Landscaping................ 9.2.5 Parking. 9.2.6 County Approvalof Preliminary Facilities Required 9.3 Public Amenities and Access. ...... l0 INDEMNrrY............... l0.l Indemnified Claims. 2t 2l 2t 22 ........,,22 ..,,......22 ....,,.,,.22 ..........22 s Obligations 22 22 23 ......23 ......2310.2.2 Payment of Defense Costs. 10.2.3 No Waiver of RCW 4.96.020 by the Developer.23 2310.2.4 Cooperation.. 10.2.5 Best Efforts to Obtain Release of the County. ......23 10.2.6 Claims against Both the County and the Developer 23 10.2.7 The Developer is the Real Party in Interest..........24 The County's Obligations...............24 4 10.3.1 Notice..........24 Preliminary Draft 10.3.2 Cooperation Consent to Counsel Selected by the Developer. Preservation of Privileges. ............ Limitations No Indemnity for Claims Other than Indemnified Claims Obligations of the Developer and Transferee under this Release of the Developer's Liability by Assignment..... Transfer and Assumption of All Obtigations Under this Agreement Required.... Results of Effective ;;;il";......... Severability. Amendment. Exhibits and Appendices. ........... Headings. Time of Essence.......... Dispute Resolution. Default and Remedies............... No Third Party Beneficiaries.... Construction................ Signature in Counterparts. ........ Notice.... Estoppel Certificates.... Cooperation Voluntary Undertaking. 6t7/2017 2:21 PM 10.5.2 Claims Based on Comparative Fault. 10.6 Survival..... I I GENERAL PROVISIONS. ............. I 1.1 Governing Law. ................. ll.2 Binding on Successors....... I 1.3 Assignment. I 1.3.1 Right to Transfer, Consent of the County Not Required. ..... 10.3.3 10.4 r0.5 10.5.I 11.3.2 lt.4 I 1.4.1 11.4.2 11.4.3 I 1.5 I 1.6 tt.7 I 1.8 1 1.9 I l.l0 n.l l tt.t2 I l.t3 I t.14 1 l.l5 I l.l6 11.17 I l.l8 I 1.19 11.20 11.21 24 24 24 25 25 25 25 25 25 26 26 26 26 26 28 28 28 29 29 30 30 30 3l 3l 3l 5 Effect of Partial Ass i gnment. ................ Recording as a Covenant Running with the Land. Release as to Residential Development. Interpretation. .............. Preliminary Draft 6t7/2017 2:21 PM 11.22 No W 11.23 No Private CCR Enforcement by the County...... 11.24 Entire Agreement 11.25 NoAssignment............. 12 REPRESENTATIONS AND WARRANTIES....... 32 32 32 32 JJ 6 Preliminary Draft 6n/2017 2:21 PM DEVELOPMENT AGREEMENT This DEVELOPMENT ACREEMENT ("Agreement") is entered into this day of _, 2017 , by and between PLEASANT HARBOR MARINA AND GOLF RESORT, LLP, a Washinglon limited liability partnership (referred to as "the Developer") and JEFFERSON COLTNTY (the "County"), a municipal corporation under the laws of the State of Washington, pursuant to RCW 36.708.170--.210. I RECITALS: WHEREAS, the Developer is the owner of real property consisting of approximately 237.88 acres located within +e{krsenthe County which property is described with particularity in Exhibit I ("!he Developer's Property"). WHEREAS, the County approved the Developer's application to designate the Developer's Property as a master planned resort pursuant to RCW 36.70A.360 in the County Comprehensive Plan to allow for resort-related development including, but not limited to, a golf course and other on-site indoor and outdoor recreational amenities, conference center, resort-related commercial uses, long-term and short-term residential units not to exceed 890 units, and open space ("the Pleasant Harbor MPR"). WHEREAS, buildout of the Developer's Property is expected to occur over the next ten to twenty-_years or as mutually agreed upon by the Developer and the County in accordancewithSection@ll.9dependinguponmarketconditionsand Developer, +effersenthg County, and members of the public at large will invest considerable time in the County permit and review process for the future buildout of the Developer's Property. WIIEREAS, the Washington State Legislature enacted RCW 36.708.170-.210 to strengthen the land use planning process and reduce the costs of development by authorizing the County to enter into a private agreement with a landowner regarding the development of its real property located within the County's jurisdiction. WHEREAS, the County has determined that this Agreement will facilitate orderly buildout otlhg Developer's Property within the Pleasant Harbor MPR and will further promote growth management and planning objectives of the County by providing certainty over time with respect to permitted densities, uses, development standards and other aspects of the development review process. WHEREAS, the Parties to this Agreement acknowledge the Zoning Ordinance for the Pleasant Harbor MPR (ene@plters 17'6+.***-17*0-.*'t* JCC) is in conformance with the standards set forth in the Countywide Planning Policies and the Jefferson County Comprehensive Plan and is consistent with the goals and requirements of the Growth Management Act. Chapter 36.704 RCW.[note: insert Ordinance 01-0128-08J WHEREAS, pursuant to RCW 36.708.200, this Agreement [note: procedurol recital will be drafted in final once times and dates of noticing, public comment and 7 Preliminary Draft 6n/2017 2:21 PM WHEREAS, this Agreement constitutes a final land use action pursuant to RCW 36.70C.020. NOW THEREFORE, in consideration of the promises, covenants, and provisions set forth in this Agreement, the receipt and adequacy of which consideration is acknowledged, the Parties agree as follows: AGRSES4EN+ 2 Scerien#_EFFECTIyE DATE AttD TERM, f.t2. !_Effective Date. The effective date shall be the date of the adoption of a resolution by the Jefferse+County BoardofCountyCommissionersapprovingthis@Agreementasrequiredby RCW 36.708.200. 1122 Term, The term of this @ shall be twentyf,0)a;flye_]25lyears from the effective date or until one year after the build-out of the Pleasant Harbor MPR is complete as outlined in the Resort Plan for the Pleasant Harbor MPR. JCC 17.60.***. whichever is later. 2.3 {-3-Modification. This Agreement may be modified, extended or terminated upon the written agreement of the Developer and the County. 3 Seetien4-DEVELOPER'S PROPERTY. The property covered by this Agreement consists of approximately 237.88 acres and is described with particularity in Exhibit I Property).). A Master PIan showing the location of the proposed development on the Developer's Property within the Pleasant Harbor MPR that is the subject of this Development Agreement is attached as Exhibit 2. Seetien3, DEVELOPMENTSTII$IDAPJIS 8 Preliminary Draft 6n/2017 2:21 PM 4 PRESERVATION OF NATIYE AMERICAN TREATY RIGHTS. 4.1 Recoenition of Native American Treatv Rishts. 4.1.1 Recoenition of Fishine Riehts. The Port Gamble S'Klallam Tribe is the successor in interest to Indian bands and tribes sisnatory to the 1855 Treaty of Point No l2 Stat. 933 (Treatv).1 The Treaty reserved to the S'Klallam the right to take fish at all these "usual and accustomed grounds and stations" (U&A)-an area rouehly centered on the Hood Canal.2 Within these areas the Port Gamble S'Klallam and other tribes (collectively "Tribes") that share the U&A are entitled to take half the harvestable fish and shellfish. and retain the right to access private property to fish and to shellfish.3 The Pleasant Harbor MPR will be located between two public beaches. at the mouth of the Duckabush and the Dosewallips Rivers. which provide both sisnificant commercial and ceremonial/subsistence harvest opportunities to the Tribes with U&A fishing rights in the area. The two delta flats are among the most important intertidal areas to Port Gamble S'Klallam Tribal harvesters based on acreage available. habitat available and existine natural manila clam and pacific oyster production. The Developer's Property sits atop a bluff above these two public beaches. Further. though located between these two public beaches. access to the public beaches on the trail from the Developer's Propeny has been curtailed and will continue to be curtailed permanently. The Developer has addressed these concerns in the Stormwater Management requirements attached as Appendix B and Water Ouality Monitoring Plan attached as Appendix O. 4.1.2 Recognition of Hunting Rights. The parties understand that the Port Gamble S'Klallam Tribe have expressed concems that Elk hunted by the Port Gamble S'Klallam Tribe in areas outside of the Developer's Property could be attracted to the Pleasant Harbor MPR once it is built out. The Developer has addressed these concerns in the Wildlife Manaeement Plan attached as Appendix P. 4.1.3 Recoenition ofCultural Riehts. The parties understand that the Port Gamble S'Klallam Tribe believes that the uniqueness of geologic features and oral historical accounts relating spiritual entities linked to the land. the traditional plants harvested by S'Klallam people from the past and within living memory. as well as multiple campsites and Native American place names known in the area. all directly contribute to unique cultural sienificance of the area. 1 United States v. lltashinston. 459 F . Suop. 1020. 1039 (W .D. Wash. 1978\ ( Boldt II). 2 Boldt 11.459 F. Supp. at 1041, 3 See. e.g.. United States v. Washinston. ST3 F. Supp. 1422. 1444-45 (W.D. Wash. 19941 (Shellfish h. 9 Preliminary Draft 6n/2017 2:21 PM The parties and the Port Gamble S'Klallam Tribe discussed the Port Gamble S'Klallam Tribe's concerns about the initial proposal by the Developer to use Kettle Ponds B and C for storine stormwater and treated wastewater as potentially resulting in significant damages to Traditional Cultural Properties (TCPs) that may meet multiple federal criteria that render them elieible fq lnclusion on the Nd . The Port Gamble S'Klallam Tribe has not applied for including of any TCPs on the National Register of Historic Places. 4.2 Preservation of Treatv Riehts. This Agreement is not intended to impact the Tribes' Treaty riehts. Nothins in this Agreement should be viewed as an attempt to curtail tribal riehts under the Treaty. The parties respect the Tribes' rights under the Treaty. The Developer will work cooperatively with the Tribes so that they can fully exercise their Treaty rights at and near the Pleasant Harbor MPR. 5 IMPACT ON WATER OUALITY OUTSIDE OF THE DEVELOPER'S PROPERTY 5.1 Recosnition of Sisnificant Nearbv Natural Resources. The Developer recognizes sisnificant nafural resources are nearby the Developer's Propertv. 5.2 Developer's Asreement to Address Imoacts of the Pleasant Harbor MPR on Nearbv Natural Resources. The Developer has addressed these concerns in the Stormwater Management requirements attached as Appendix B and Water Ouality Monitoring Plan attached as Appendix O. The Developer aerees to address demonstrated impacts of the Pleasant Harbor MPR to water quality both on-site and off-site. 6 RESERVATION OF POLICE POWER OF THE COUNTY 6.1 Police Power. The Developer understands and aqrees that pursuant to RCW 36.708.170(4). the execution of a development aereement is a proper exercise of the Countv's police power. l0 Preliminary Draft 6/7/2017 2:21 PM 6.2 Reservation of Countv Authoritv. The Developer understands and asrees that pursuant to RCW 36.708.170(4) and JCC 18.40.840(3Xd). a development agreement shall reserve authority to impose new or different regulations to the extent required by a serious threat to public health and safety. Accordingly. the Developer understands and agrees that the County's authority to impose new or different regulations to the extent required by a serious threat to public health and safety is rcserved and Dqthtne in this Aqreement a that authority. 7 DEVELOPMENT STANDARDS. 3*7.!-Permitted Uses and Density Standards; Zoning The Master Plan, permitted land uses, and development regulations for development within the Developer's Property are set forth in chapters 17.60.*** through 17.8&S0.'!!t of the Jefferson County Code, attached as Appendix A. Development of the Developer's Property shall not exceed 890 residential units and 56,608 square feet of commercial space when completed at full build out. 7.2 #Planning Goals and Objectives. TheplanninggoalsadoptedbyJ@CountyintheComprehensivePlanasofthe date of recording this Agreement shall be the policy guidance and the foundation for all future development of lhg_Pleasant Harbor MPR. 7.3 ffiStormwaterStandards. 7.3.1 AllStormwater Subject to Best Management Practices and the County's Stormwater Management Requirements. In all future development within the Pleasant Harbor MPR the Developer shall utilize best management practices (BMP) and be subject to the Jeffer+e+County Stormwater Managementrequirements,JCCl8.30.070.Acopyofis attached in Appendix B. 7.3.2 Stormwater Management in Public Roads. Rights-of-Way and Easements. TheCountyshallberesponsibleforthemanagementofin all public r€adroedp, rights-of-+alqvvrygleasements within the Pleasant Harbor MPR that have been accepted by the County for maintenance @ other areas within the Pleasant Harbor MPR dedicated to the pub+i€Courry. The Developer shall be responsible for the management of stormwater runoff in all other public areas within the Pleasant Harbor MPR as may be necessary to control stormwater runoff as required b), Ordinance 01-0128-08.63(q). ll Preliminary Draft 6n/2017 2:21 PM 7.3.3 Stormwater Management in Private Rights-of-Ways The Developer shall be responsible for the management of stormwater runoff in all private rights-of-ways and i+.other ngn*uhlig areas such as parking lots or drainage easements, as may be necessary to control stormwater runofi. as required by Ord Condition 63(q). i#+ing be treated by a system thet reduees eentarninatien te the greatest pessible extent, 7.4 #Critical Area Standards Critical areas and their associated buffers, as well as allowed uses within the critical areas of the Pleasant Harbor MPR shall be determined based upon the Jefferson the County CriticalArearequirements,Chapterl8.22JCC.Acopyof@ JCC is attached in Appendix C. 7.5 #Land Division Standards Platting within the Pleasant Harbor MPR shall be pursuant to RCW 58.l7 and the Jeftrsen County Land Division requirements, Chapter 18.35 JCC, and within the time frames adopted by Jeffemenths. County pursuant to the 1995 Regulatory Reform Legislation, ESHB 1724 (ch. 347, Laws of 1995), as codified in Permit Application and Review Procedures/SEPAImplementation,Chapterl8.40JCC,@.Acopy of affached in Appendix D (€hapte+-l&35 J€€Iand B(a copy of Chapter 18.40 JCC* is attached in Appendix E. 7.6 #Shoreline Master Program All future development within the Pleasant Harbor MPR shall be subject to the Jefferser+ County Shoreline Master Program, Chapter 18.25 JCC, in effect as of the date of this Agreement. A copy of the applicable Shoreline Master Program requirements are attached as Appendix F. 7.7 3J_AdditionalDevelopmentstandards. Additional Development Standards as identified in Chapters 12.05, 12.10, and 18.30 JCC, as they exist as of the date of the adoption of this Agreement, shall also apply to the extent they do not conflict with the terms of this Agreement. A copy of th+applieeble-€ede are attached in Appendix G. t2 Preliminary Draft 6/7/2017 2:21 PM 7.8 Comnliance Ordinance 01-0128-08. As conditions to designating the Developer's Property as a master planned resort per Ordinance 0l-0128-08, the County requires the Developer implement the following requirements: 7.8.1 {Bee,eCondition 63(e*$). The Developer teg[all advertise and give written notice at libraries and post offices in East Jefferson County and recruit locally to fill opportunities for contracting and employment' . and will prefer local aoplicants provided they are qualified. available. and competitive in terms of pricing. 7.8.2 Condition 63(fl. The Developer shall prioritize the sourcing of materials from within Jefferson County to develop the Pleasant Harbor MPR. Nothing in this see+ienseglion 7.82 shall require that developer utilize materials or labor from within Jefferson County that are not of comparable price or quality to their counterparts outside of Jefferson County. 7.8.3 €eee-*lCondition 63ft). A cultural resources management plan to assure archaeological investigations and systematic monitoring of the subject property prior to issuing permits; and during construction to maintain site integrity, provide procedures regarding future ground disturbing activity, assure traditional tribal access to cultural properties and activities, and toprovideforcommunityeducationopportunities.A planCutturatnesource is attached in Appendix-.Q-IbU lur9lr* will comply with the Cultural Resources Management Plan. 7.8.4 (BeeeCondition 63(l). A wildlife management plan focused on non-lethal strateeies shall be developed in the public interest in consultation with the State of Washington Department of Fish and Wildlife (WDFW) and local tribes. to prevent diminishment of tribal wildlife resources cited in the Brinnon Sub-Area Plan (e.9.. deer. elk. cougar. waterfowl. osorey. eagles. and bear). to reduce the potential for vehicle collisions on U.S. Hwy l0l. to reduce the conflicts resulting from wildlife forasing on high-value landscaping and attraction to fresh water sources. to reduce the dangers to predators attracted to the area by prey or habitat. and to reduce any danger to humans. A Wildlife Management Plan@ consultation with WDFW and local tribes is attached in Appendix O. The Developer will comply with the Wildlife Manaeement Plan. l3 Preliminary Draft 6/7/2017 2:21 PM 7.8.5 (Eeee-p)Condition 63(p). The Developer shall provide access to the water system by any neighboring parcels if salt water intrusion becomes an issue for neighboring wells on Black Point, and reserve areas for additional recharge wells will be included in case wells fail, are periodically inoperable, or cause mounding. A Neighborhood Water Policy Plan is attached in Appendx Plan. 7.8.6 (Eeee+ICondition 63(r). A County-based comprehensive water quality monitoring plan specific to Pleasant Harbor requiring at least monthly water collection and testing will be developed and approved in concert with an adaptive management program prior to any site-specific action, utilizing best available science and appropriate state agencies. The monitoring plan shall be funded by a yearly reserve, paid for by the Developeq+hateglwill include regular offsite sampling of pollution, discharge, andlor contaminant loading, in addition to any @ite monitoring regime. A Water Quality Monitoring Plan is attached in Appendix ------_Q. The Developer will comply with the Water Ouality Monitoring Plan. 1 .8L (Beee*,).Condition 63(s). To ensure that natural greenbelts and buffers are maintained and protected, a conservation easement has been recorded and attached in Appendix -M and a v€g€tatien manngemenf--danVegetation Management Plan is attached in Appendix 7.8.8 (Bee'e-Condition 63(tI). fhe marin++peratiensDevelgpl shall conduct ongoing monitoring and maintain an inventory regarding Tunicates and other invasive species. A Tunicate Agreement is attached in Aqreement. Annend D TL^I)crrcl nncr ll comnlv with the 7.8.9 (Beee$Condition 63(x). The Developer shall use the LEED (Leadership in Energy and Environmental Design) and "Green Built" green building rating system standards. These standards, applicable to commercial and residential dwellings respectively, "promote design and construction practices that increase profitability while reducing the negative environmental impacts of buildings and improving occupant health and well-being." A Narrative Demonstrating Compliance with the Intent of LEED Standards is attached in Developer will comply with the LEED Standards. t4 A Preliminary Draft 6n/2017 2:21 PM 7.8. I 0 (Beee-zlCondition 63(Z). The Developer shall use the International Dark Sky Association (IDA) Zone E-standards for the MPR. These standards are recommended for "areas with intrinsically dark landscapes" such as national parks, areas ofoutstanding natural beauty, or residential areas where inhabitants have expressed a desire that all light trespass be limited. A-Dark Sky and Energy Star Approved High Efficiency Lighting Standards is attached in Appendix.---_S. The Developer will comply with the Dark Sky and Enersy Star Approved High Effi ciency Li ghtine Standards. 7.9 3$----The Pleasant Harbor MPR Water Service. Water main extensions and potable water system improvements for potable water service that may be required to serve the Pleasant Harbor MPR shall be installed in conformance with the most current approved specifications and requirements as determined by the WashingtonStateDepartmentofHealthandshallcomply@ the Coordinated Water System Plan flCWSP)) and all other applicable laws, ordinances, rules and regulations. A copy of the applicable CWSP is attached in Appendix H. 7.10 3fThe Pleasant Harbor MPR Sewer Service. Sanitary and on-site sewer and future sewer system improvements as required to serve the Developers Property shall be installed in conformance with the most current approved specifications and requirements of the Washinglon State Department of Health, WashingtonStateDepartmentofEcologyand+@County-De@grr1-pfPublic Health and all other applicable laws, ordinances, rules and regulations. 7.11 --+ffMemoranda ofUndenstanding -As a condition to designating the Developer's Property as a master planned resort, the County required that_lhe Developer negotiate memoranda of understanding or memoranda of agreement to provide needed support for law enforcement services. the Brinnonschools,andemergencymedicalservicesto mitigate for the potential impacts associated with the Pleasant Harbor MPR. D€+€loperIhg parties secured the following MOUs: 7.1 l.l School Services Mitieation. School services to the Pleasant Harbor MPR are provided by the Brinnon School District. Mitieation for school services associated with development of the Pleasant Harbor MPR, if anv. shall be paid by the Developer as set forth in the MOU attached as Appendix J- I . l5 Preliminary Draft 6n/2017 2:21 PM 7.1 1.2 Fire and EMS Services Mitigation. Jefferson Countv Fire District No. 4 will orovide Fire and EMS services within the Pleasant for iaterl rvith dewelnnrnent nf theF{crhnr MPR.I\zf itioatinn Fire and trl\ulS servi ces assoc Pleasant Harbor MPR. if any. shall paid by the Developer as set forth in the in the MOU attached as Appendix J-2. 7.1 1.3 Law Enforcement Services Mitigation. *Thg tounly wi-ll provide law enforcement services within the Pleasant Harbor MPR @ . previ ien. Mitigation for law enforcement services associated with development of the Pleasant Harbor MPR, if any, shall be determined and paid as set forth in the Memorandum of Understandine (MOU) attached as Appendix J43. 7. I I .4 Se'heel4e'heelTransportation Services Mitigation. Public transportation services to the rese*Pleasant Harbor MPR are provided by the Mefferson Countv Transit. Mitigation of transportation services associated with development of the Pleasant Harbor MPR, if any, shall be determined and paid 7.1 1.5 Healthcare Services Mitigation. Mitieation for health care services associated with development of the Pleasant Harbor MPR. if anv. shall be paid by the Developer as set forth in the MOU attached as Appendix J-5. 7.1 1.6 Housing Mitieation. The Developer shall comply with Ordinance 0l-0128-08. Condition 63(9) related to mitieation associated with development of the Pleasant Harbor MPR. if any. which shall be paid by the Developer as set forth in the MOU attached as Appendix J-6. .7.l l.7Parks and e Mitigation. . ienThe County. the State and the United States provide areas for parks and recreation in the vicinity of the Developer's Property. Parks and Recreation mitieation associated with development of the Pleasant Harbor MPR, if any, 16 Preliminary Draft 6/7/2017 2:21 PM shall be determined and paid by the Developer pursuant to applicable state and local law as set forth in the MOU attached as Appendix J47.4 r Healtheare Mitigetien asseeiated rvith develepment ef the Pleasant pursuent te appli r Heusing Mitigatien asseeiated with develepment ef the Pleasant Harber r (Beee e) Parks and Reereatien (Philip isr€viewirg) Appendix J 7 7.1 1.8 MOUs Satistv Condition 63(c) of Ordinance No. 0l -0128-08. The County agrees that the th€se-Mous listed in this Section 7.1I satisff condition 63(c) of €eunty-Ordinance No. 0l-0128-08.. except for future SEPA review for individual projects as provided in Section 8.2.4. of this Agreement. RCW 36.70A.360(4Xe) provides that a master planned resort is authorized onl), if on-site and f,*trheroff-site infrastructure and imoacts are considered and mitisated. In part. the MOUs are written to address this requirement. Accordingly. the Developer agrees that nevetener u'itt net U he temsfSgggglqenlg of the MOUs for deyelopment ef th previ ill survive the term of this Agreement and are enforceable separately from this Agreement. 8 STAI\IDARDS FOR DEVELOPMENT AI\D OTHER MITIGATION BY COUNTY. 4*.&LCounty Processing and Review. The review and approval ofproposed development applications proposed by the Developer for-.1fu Developer's Property shall be pursuant to the Pleasant Harbor MPR Zoning Code @ppqdtx e) and the County's Permit Application and Review ProceduresisEPA Implementation, Chapter 18.40 JCC, which is attached in Appendix E. S 4 t7 Preliminary Draft 6t7/2017 2:21 PM 4+U_SEPA Compliance, 8.2.1 43-1,-*rier€lFEnvironmental Impact Statement. The parties acknowledge that potential environmental impacts from future development of the Pleasant Harbor MPR have been assessed and addressed in prior environmental documents. The prior reviews were published in the following documents: Draft Environmental Impact Statement for Pleasant Harbor Marina and Golf Resort (September 5, 2007) (DFEIS); Pleasant Harbor Marina and Golf Resort, Final Environment Impact Statement (November 27, 2007) (FEIS); Pursuant to Condition 63b53ft) of Ordinance 0l-0128-08, the County required a supplemental impact statement on the planned final configuration of the MPR, and the systems designed to address the conditions and environmental consequences of the MPR asidentifiedintheNevember2007FEIS(Chapter5)and@63-(a-Xdd) in Ordinance 0l-0128-08. The SEIS was published in the fellewing deeuments: 8.2.2 Supplemental Environmental Impact Statement. The Supplemental Environmental Impact Statement was published in the following documents: Draft Supplemental Environmental Impact Statement for Pleasant Harbor Marina and Golf Resort November 19, 2014;-.(DSEISI Pleasant Harbor Marina and Golf Resort, Final Supplemental Environment Impact Statement December 9,2015-. GSEIgL 8.2.3 (the{+aftSubstantial Compliance with Environmental Impact Statements and f,nal ElSSupplemental Environmental Impact Statements Required. The FEIS. DSEIS and S'EI$E$ffi are referred to collectively as the "Prior EISs)- Development shall substantially comply with the express mitigation measures imposed pursuant to the Prior EISs. EPA Review The Prior EISs shall constitute compliance to the fullest extent possible under SEPA, as well as Condition 63b63G) of Ordinance 0l-0128-08, for all subsequent approvals or permits to develop the Pleasant Harbor MPR consistent with this Agreement, including, but not limited to, plats, short plats, binding site plans, boundary line adjustments, development permits, grading permits and building permits. Except as provided in this Section 8.2.4, no further SEPA review is required, and no additional substantive SEPA mitigation measures are required for approvals or permits that authorize development that is consistent with level and range of developm ent analyzed in the Prior EISs. l8 a a o o Preliminary Draft 617/2017 2:21 PM The County may require additional SEPA review for a new or modified proposal that materially exceeds the level and range of development reviewed in the Prior EISs. For any such new or modified proposal, relevant information from Prior EISs shall be used to the fullest extent possible in future SEPA review. The scope of environmental review shall be limited to considering how or whether the proposal differs from or exceeds the scope of the Prior EISs and if so, whether such modification results in potentially significant adverse environmental impacts that have not been adequately addressed in the Prior EISs. Nothing in this Section 8.2.4 shall release_.lhg Developer or its successors, successors in title, or assignees from complying fully with the terms of the Pleasant Harbor MPR Comprehensive Plan Amendment, Ordinance 0l-0128-08 (Appendix B), specifically condition 63(b), which requires an automatic threshold determination of significance unless the SEPA Responsible Official determines that the proposal results in only minor construction. 8.3 4J-Vesting of Development Standards and Mitigation. 8.3.1 Scope of Vestine To the fullest extent allowed by law, all development proposed on the Developer's Property shall be vested to and governed by the terms of this Development Agreement, the Pleasant Harbor MPR chapter of the Jefferson County Zoning, and the Unified Development Code, now codified at Title l8 of the Jefferson County Code including, but not limited to, those code standards attached to this Agreement effective on the date of this Agreement (as defined in Section 37.1 and attached as Appendices A-IT). This vesting provision shall be applicable, without limitation, to all land use applications, permits, uses and development thatoccuronthe@PropertywithinthetermofthisDevelopment Agreement. 8.3.2 Vesting Period. The vesting period shall be the same as the term of this Agreement. Except as otherwise provided in Section 48.3.1 through 48.3.36, any new or different development standards adopted by the County during the term of this Agreement shall not apply to the Developer's Property. 8.3.3 Default Standards and Requirements. To the extent this Agreement does not establish standards or requirements covering a subject, element or condition, then the development approval sought shall vest to and be governed by the County codes, regulations and standards in effect upon the date of complete application. The development standards identified in this Agreement shall apply to the Developer's Property for the term of this Agreement, except: H The Board of County Commissioners reserves the authority to modi$r one or more of the standards or requirements of development for the Pleasant Harbor MPR during the term of the Agreement, after+etieq o avoid t9 Preliminary Draft 6n/2017 2:21 PM a serious threat to public health or safety, as provided in RCW 36.708.170-. i[d-.jcc 18.40.840(3Xd). 8.3.4 State and Federal Law. This Agreement does not relieve the Developer of any obligations to comply with state or federal laws or regulations of any kind but is not limited to those laws or resulations related to Native American Treaty rights. endangered species or stormwater. 8.3.5 No Vested Riehts against Federal or State Requirements. H The Pleasant Harbor MPR shall not be vested against the application of developmentstandardsimposedbyvirtueoffederalorstate@ @. 8.3.6 Buildine Codes. M Jefferson County Code Title 15, The International Building Code and International Fire Code in effect in the State of Washington as of the date of filing of a complete application for a building permit shall apply to all new development. 9 $eetie+5_PHASING: 9.1 --------+PhasingPlan. 9.1.1 Phases Proposed. Pleasant Harbor- Marina and Golf Resort is a planned resort that is capable of being developed in independent and severable components or "phases." Future development of the Pleasant Harbor MPR and all associated infrastructure, including roads and utilities, may be reviewed, permitted and constructed and/or bonded in phases or sub-phases. A phasing plan (consisting of four phases) for development of the Pleasant Harbor MPR (reviewed as part of the SEIS) is attached as Exhibit 4. Each phase may further be broken downintodiscretesub-phasesasconditionsdictate. $*bseql}en+as'e 9.1.2 Requirement of Adequate lnfrastructure. Open Space. Recreational Facilities. Landscapine and Other Conditions Sufficient for Each Phase to Stand Alone. JCC 18.15.135 requires that if a master planned resort will be phased. each phase must contain adequate infrastructure. open space. recreational facilities. landscaping and all other conditions of the Pleasant Harbor MPR sufficient to stand alone if no subsequent phases are developed. The Developer will comply with JCC 18.15.135 and will complete or bond all necessary infrastructure to support a phase or sub-phase sufficient for each phase or sub-phase to stand alone. prior to obtainine approval for a subsequent phase. 20 Preliminary Draft 6n/2017 2:21 PM 9.1.3 Phase l. 5'{-* Phase 1 consists of the construction of primary facilities needed to service initial construction of the MPR including the large onsite septic system, the first water storage tank and piping distribution system, construction of the State Route 101 intersection improvements, transit stop parking and relocated WDFW access road. The Maritime Village Building consisting of 66 residential units and approximately 21,000 square feet of commercial space will also be constructed during Phase l. 9.1 .4 Phase 2. # Phase 2 involves initial development of the central resort facilities. Golf course construction will commence and the Golf Terrace and Conference Center consisting of l9l residential units and 36,000 square feet of commercial space will be constructed. Phase 2 also involves construction of the wastewater treatment plant, development of a second water well, electric power infrastructure and construction of stormwater facilities. A 52 unit building for staff quarters and maintenance will also be constructed. 9.1 .5 Phase 3. # Phase 3 involves completing the golf course, reconstructing Black Point Road, constructing the sanitary sewer pump stations and force main, and constructing the majority of the residential units including Golf Terraces2,3 and4, Sea View Villas and Golf Terrace units, comprising 329 total units 9.1.6 Phase 4. # Phase 4 completes buildout of the Pleasant Harbor MPR with construction of 206 Sea View Villa residential units and 44 Golf Vista residential units. 5*\/.P r elim ina ry Facilities. Preliminary facilities are those preliminary facilities or improvements that must be approved and installed in concert with the development of each phase. The preliminary facilities include the following: 9.2.1 Water System. # A water system with sufficient water rights to serve the phase or sub-phase under review and approval. 9.2.2 Sewer Svstem. # A sewer system with sufficient capacity to accommodate the waste discharge for the phase or sub-phase under review and approval. 2t Preliminary Draft 6/7/2017 2:21 PM 9.2.3 Road Network. # A road networkto accommodate the phase or sub-phase underreview and approval. 9.2.4 Landscaping. g Landscaping for the phase or sub-phase under review and approval. 9.2.5 Parking. # Associated parking for the phase or sub-phase under review and approval. 9.2.6 €eun*.vCounty Approval of Preliminary Facilities Required. The County's approval of a phase or sub-phase, whether by preliminary plat or other process, shall require approval of preliminary facilities for the entire phase. The Developer may construct preliminary facilities for each lot or tract in conjunction with development of that lot or tract. A final plat for a phase may be recorded by lot or tract provided all of the preliminary facilities necessary to serve the lot or tract are complete and the specific development requirements within each lot or tract are complete. 53!l_Public Amenities and Access. Public amenities and access are those facilities and improvements that provide resort related activities and services. The Pleasant Harbor MPR shall, at a minimum, shall contain the following resort amenities (l) ana 9-hole golf course; (2) spa services; (3) amphitheater; (4) pool; and (5) ropes course.-_These amenities shall be completed consistent with completion of the phase in which the amenity is proposed and made available to members of the general public for a fee to be established by the Developer. 10 INDEMNITY. 10.1 IndemnifiedClaims. The indemnified claims are: (a) Claims for costs. losses. damages or expenses associated with the existence or enforcement of any conditions. covenants and restrictions recorded against the residential properties within the Pleasant Harbor MPR: /h\ Claims hnsed on the Develoner's farrlt (c) Claims based on the breach of any of the Developer's oblieations underthis Agreement: (d) Claims based on any alleeed negative impact of the development on Native American Treaty Riehts: 22 Preliminary Draft 6/7/2017 2:21 PM (e) Claims based on any alleged impact of the development on water quality inside or outside of the Developer's Property. As used in this Agreement the term "indemnified claim(.s)" means the claims listed in this Section 10.1. 10.2 The Developer's Oblisations. 10.2.1 Scope. The Developer shall indemnify and hold the County. and its elected officials. employees. and agents harmless from and shall process and defend at its own expense. including all costs. attorney fees and exoenses relating thereto. all claims. demands. or suits at law or equity arisine in whole or in part. directlv or indirectly. from any indemnified claims. 10.2.2 Pavment of Defense Costs. The Developer will pay for the defense indemnified claims against the County at its sole expense. For the avoidance of doubt the defense of an indemnified claim includes payment ofattorne)r's fees and costs. consultant and expert costs. filing fees and other court costs. However, the County retains thc rieht to ide additional counsel for the County's defense at the County's sole expeasc to assis!counsel oaid for bv the Developer or to monitor anv indemnified claim. 10.2.3 No Waiver of RCW 4.96.020 by the Developer. The Developer shall not attempt to waive the requirements of the filing of a pre-suit claim against the Countv under RCW 4.96.020. 10.2.4 Cooperation. The Developer shall cooperate with the Counlv in the defense of an], indemnified claims. The Developer shall not file any pleadines or motions or take anv position with a court. sovernment agency or hearing officer without first consultine with the Countv. 10.2.5 Best Efforts to Obtain Release of the County. If the Developer settles anv indemnified claim with any person. the Developer will use its best efforts to obtain a release of the indemnified claim for the County. and its elected officials. employees. and agents. 10.2.6 Claims against Both the County and the Developer. The Developer wishes to avoid the expenses of a separate defense of both it the County should anv person assert an indemnified claim aeainst both the Develooer and the Countv. Accordingly. the Developer aerees to orovidejoint counsel to represent both the Developer and the County at the Developer's sole expense when indemnified claims are made against both the County and the Developer. However. the County retains the rieht to substitute its 23 Preliminary Draft 6/7/2017 2:21 PM own counsel in place ofjoint counsel at the County's sole expense or to provide additional counsel at the Countv's sole expense to counsel oaid for bv the Develooer or to monitor anv indemnified claim. 10.2.7 The Developer is the Real Partv in Interest. For any indemnified claim where the Developer is required to provide the County a defense pursuant to Section 10. the Developer shall make it clear that it is the real party in interest on an), indemnified claims made against the County and that: (i) Any positions the Developer takes in defending the indemnified claims are the positions of the Developer and not the County: and. (ii) Any positions the Develooer takes in defending the indemnified claims are not necessarily the positions the County would take if it were the real party in interest. 10.3 The Countv's Oblieations. 10.3.1 Notice. The Countv shall provide notice to the Developer of an), indemnified claim it receives within fourteen days of receipt of such claim. For the avoidance of doubt. the notice required under this Section 10.1.3 includes notice of any pre-suit claim presented to the County under RCW 4.96.020. 10.3.2 Cooperation. The Count), shall cooperate with the Developer in the defense of any indemnified claims. The County shall not file any pleadings or motions or take any position with a court. ggvernment agency or hearins officer without first consulting with the Developer. 10.3.3 Consent to Counsel Selected by the Developer. The County may consent to the representation by counsel selected by the Developer and provide appropriate waivers of conflicts of interest to counsel selected by the Developer. Provided, however, that if the County refuses to consent or to provide appropriate waivers of conflicts of interest. the Developer mav suspend performance of the indemnity obligations under this Section 10. 10.4 Preservation of Privileses. The parties acknowledge that: (a) The attomelz-client privilege exists in this joint representation pursuant to Section 10. but with one sienificant qualification. The privilese protects the confidcneqs of all ialntly clients from disclosure to other persons. but not from disclosure to each other. In other words. information that one joint client provided to joint counsel in connection with and during the course of the joint representation mav be disclosed to the other jointly 24 Preliminary Draft 6n/2017 2:21 PM represented clients. even after one or more jointly represented clients decide to separate themselves from the others and obtain their own counsel: (.b) However. the parties agree that all privileged communications between any party and its attorneys that is not related to this joint representation shall remain privileged and not subiect to disclosure to the other party. its counsel. consultants or other agents: and. (c) No party waives anv privilege that exists for communications between it and its attorneys in connection with any matter. other than communications for the jointly represented matter. 10.5 Limitations. 10.5.1 No Indemnity for Claims Other than Indemnified Claims. Nothing in this Section l0 s hold harmless the County from claims. demands or suits based on claims against the County that are not indemnified claims and are based solely upon the conduct of the County. its elected officials. employees and agents. 10.5.2 Claims Based on Comparative Fault. If the claims or suits are caused by or result from the comoarative fault of: (i) fhe Developer's agents or employees: and. (ii) the County. its elected officials. employees and agents. this indemnity provision with respect to claims or suits based upon such comparative fault. then the claims shall be treated as claims against both the county and the developer under Section 10.2.6- until a final. enforceable judement is entered. After a final. enforceable judgrnent is entered. the Developer and the County shall each be responsible for their shares of the final. enforceable judgment. 10.6 Survival. The parties agree that the indemnilv obligations in this Section l0 shall survive the termination of this Agreement. 11 GENERAL PROVISIONS: 11.1 6+Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws and regulations of the State of Washington. as if apolied to transactions entered into and to be performed wholly within the State of Washington between residents of the State of Washington. No party shall argue or assert that any law other than Washington law applies to the governance or construction of this Agreement. 25 Preliminary Draft 6/7/2017 2:21 PM *?ll.2Bind in g on S uccessors gMThisAgreementshalIbebindinguponandinuretothe benefit of the successors, successors in title and assigns of the Developer and upon the County. 11.3 Assignment. I I .3. I Right to Transfer. Consent of the County Not Required. # The parties acknowledge that development of the Pleasant Harbor MPR may involve sale and assignment of portions of the Developer's Property to other persons who will own, develop and/or occupy portions of the Developer's Property and buildings thereon. The Developer shall have the right to assign or transfer all or any portion of the respective interests, rights or obligations under this Agreement or in the Developer's Property to other parties acquiring an interest or estate in all or any portion of the Developer's Property, including transfer of all interests through foreclosure (udicial or non-judicial) or by deed in lieu of foreclosure-.. provided trans obligations of the Developer under this Agreement. Consent by the County shall not be required for any transfer of rights pursuant to this Agreement. I 1.3.2 Obligations of the Developer and Transferee under this Aqreement. Upon the transfer or assignment under this Sectionr where the transceree I 1.3 and the transferee's assumption of all obligations trensforred er assigned'rf the Developer under this Agreement, the transferee shall be entitled to all interests and rights and be subject to all obligations under this Agreement pertaining to the property transferred or assigned, and the Developer shall be released of liability under this Agreement for the property transferred or assigned, but shall retain liability for any breach which occurred prior to the transfer of rights to another party and for those portions of the Property still owned by the Developer. 11.4 Release of the Developer's Liability-jglq!ry! I 1.4.1 Transfer and Assumotion of All Oblieations Under this Agreement Required. The Developer shall be released of all liabilities and obligations under the Agreement if: (a) The Developer provides notice to the County of an Assignment of the Agreemen[ andl (b)The transferee has assumed in writing the allthe obligations of thelhig Agreement. 1 1.4.2 Results of Effective Assignment. If the conditions for release are met under this sub-section, then from and after the date of transfer, the Developer shall have no further liability or obligation under the Agreement, 26 Preliminary Draft 6n/2017 2:21 PM and the assignee shall exercise the rights and perform the obligations of the Developer under the Agreement for that portion of the Developer's Property acquired by the successor or assign. I 1.4.3 Effect of Partial Assienment. *l The parties acknowledge that the Developer may transfer or assign title to a portion of-.1qhe Developer's Property in any manner consistent with this Agreement. Should the transfer or assignment of title relate to only a portion of the Developer's Property, then the release of liability pursuant to this paragraph shall only apply to acts or omissions arising from or related to the portion of thq Developer's Property being assigned or transferred. 11.s F as a Covenant Runnine with the Land. This Agreement shall be recorded with the JefferserCounty Auditor against the Developer's Property as a covenant running with the land and pursuant to RCW 36.708.190 shall be binding on the Developer, its successors, successors in title and assigns. 11.6 Release as to Residential Development. Upon the approval of a final plat, a condominium declaration or other approved land division in compliance with this Agreement that relates to residential development of the Developer's Property, then there shall be executed and recorded with theJeffersen County Auditor a release from this Agreement with respect to that particular and specific parcel or parcels of real property that received final plat approval, filed a condominium declaration or was the subject of other approved land division. Residential development on the parcel or parcels released pursuant to this subsection shall continue to be subject to the requirements of the development regulations listed in Sections {ell)7 and 48.1+bev+: 64lflnterp retatio n;Severabili$. # {nterBretatien The County has police powers. contracting authority and other powers eranted bv the Washingrton State Constitution and by statute. The parties intend this Agreement to be interpreted to the full extent authorized by law as an exercise of the County's authority to enter into such agreements, and this Agreement shall be construed to reserve to the County on$hatthg police power authority which is prohibited by law from beingsubjecttoamutualagreementwithconsideration. Waslrin$en Stete Censtitutien and by general larv; ineluding witheut limitatien heme rule 27 Preliminary Draft 6/7/2017 2:21 PM IL!_Severability 6# If any provision of this Agreement is determined by a court of law to be unenforceable or invalid, then the remainder of the Agreement shall remain in full force and effect. Further, as to those provisions held by a court oflaw to be unenforceable, the parties shall confer and agree to amend the Agreement to implement the mutual intent of the parties to the maximum allowed by law. gS-q.rrthe+ify respeetiYe pewer a 11.9 FAmendment This Agreement shall not be amended without the express written approval of the County and the Developer (or its successors, successor in title and assigns with respect to the property in which they have an interest). The Board of County Commissioners must all amendments to this Agreement by ordinance or resolution and only after notice to the public and a public hearing. 11.10 6+Exhibits and Appendices, Exhibits I throueh 4 and Appendices A through eT are incorporated herein by this reference as if fully set forth. In the event of any conflict or inconsistency between the Exhibits and Appendices and the main body of this Agreement, the main body of this Agreement shall control. 11.11 6*-Headings, The headings in this Agreement are inserted for reference only and shall not be construed to expand, limit or otherwise modify the terms and conditions of this Agreement. ll.l2 #Time of Essence. Time is of the essence of this Agreement in every provision hereof. Unless otherwise set forth in this Agreement, the reference to "days" shall mean calendar days. If any time for action occurs on a weekend or legal holiday, then the time period shall be extended automatically to the next business day. 6Jo-I+teg+a+ieft s'elfuh+erei* 28 Preliminary Draft 617/2017 2:21 PM 11.13 6+1-Dispute Resolution. In the event of any dispute relating to this Agreement, all parties upon the written request (to be titled "Notice of Dispute") of any other party, shall meet within the five (5) business days to seek in good faith to resolve the dispute. The County shall send a department director or the qualified lead planner and other persons with information relating to the dispute, and the Developer shall send an owner's representative and any consultant or other person with technical information or expertise related to the dispute. If the parties are unable to reach amicable resolution of a dispute within thirty (30) days of the written Notice of Dispute issued by one of the parties, the parties agree that they will immediately identify a mediator and participate in mediation in good faith. The selected mediator shall have documented experience and expertise in Washington land use law. The parties agree to work cooperatively to select a mediator with land use and real estate experience. Each party will identify and propose to the other party three potential mediators. Between the proposed mediator lists, the parties will select a mutually agreeable mediator to resolve the dispute. The mediation shall be completed within 90 days of the original written Notice of Dispute by one of the parties. If the parties are unable to reach a resolution following timely mediation, each party reserves the right to seek resolution and pursue remedies available under this Agreement and at law. The parties agtee that the cost of mediation pursuant to this paragraph shall be borne equally by the parties to this Agreement. The parties may agree in writing to extend any deadline or time frame listed in this seetien, Section 1 1.13. ll.l4 #Default and Remedies. No party shall be in default under this Agreement unless it has failed to perform a material provision under this Agreement for a period of thirty (30) days after wriffen notice of default from any other party. Each notice of default shall speciff the nature of the alleged default and the manner in which the default may be cured satisfactorily. If the nature of the alleged default is such that it cannot be reasonably cured with the thirty (30) day period, then commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure. Any party not in default under this Agreement shall have all rights and remedies provided by law including without limitation damages, specific performance or writs to compel performance or require action consistent with this Agreement. In recognition of the possible assignment and sale of portions of the Developer's Property (see Section 63311.3) any claimed default shall relate as specifically as possible to the portion of the Property involved and any remedy against any party shall be limited to the extent possible to the owners of such portion of remedies which do not adversely affect the rights, duties or obligations of any other non-defaulting owner of portions of the Developer's Property under this Agreement. Each party to this Development Agreement shall be solely responsible for the costs they incur with respect to asserting or defending against any dispute, alleged default or civil lawsuit. 11.15 6#,-No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and their successors in title and assigns. No other person shall have any right of 29 Preliminary Draft 6/7/2017 2:21 PM action based upon any provision of this Agreement. Members of the general public, including but not limited to those persons or entities purchasing residences or condominiums from the Developer, shall not have any cause of action or enforceable rights under this Agreement. 11.16 #Construction. 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. 11.17 6,*t-Signature in Counterparts. Separate copies of this Agreement may be sisned by each of the parties and this Agreement will have the same force and effect as if the original had been siened by allthe parties. 11.18 Notice. All communications, notices and demands of any kind which a party under this Agreement requires or desires to give to any other party shall be in writing deposited in the U.S. mail, certified mail postage prepaid, return receipt requested, and addressed as follows: To the County: Director Jefferson County Department of Community Development 621 Sheridan Street Port Townsend, WA 98368 cc:Board of County Commissioners P.O. Box 1220 Port Townsend, WA 98370 Prosecutins Attornev P.O. Box 1220 Port Townsend. WA 98370 30 Preliminary Draft 6n/2017 2:21 PM c/o M. Garth Mann Statesman Group of Companies Ltd. 9300 E>. Raintree Drive, Suite 100 Scottsdale, Arizona 85269 cc:John T. Cooke Houlihan Law 3401 Evanston Ave. N. Suite C Seattle, WA 98103 11.19 6JFEstoppel Certificates. Within30daysfollowinganywrittenrequestthatanypartyora@may make from time to time, the other party shall execute and deliver to the requesting person a statement certifying that: *(4) this Agreement is in full force and effect, and stating any formal amendments to the Agreement; 2aUd-_G) to the best of the knowledge of the certifying party, no notice of default has been sent and no notice of violation of applicable laws has been issued regarding the project; and any other reasonably request information. Failure to provide a timely response to the requesting party shall be deemed conclusive evidence that the Agreement is unmodified and in full force and effect and that no notices of default or violation have been issued. Issuance of estoppel certificates is an administrative matter within the County. The County shall have no liability to the requesting party if it provides an estoppel certificate in good faith and with reasonable care. 11.20 #Cooperation. The parties shall not unreasonably withhold requests for information, approvals or consents provided for in this Agreement. The parties agree to take further actions and execute further documents, whether jointly or within their respective powers and authority, to implement the intent of this Agreement. ffiien F'rcept es etherwis€ sp€ is Agreement shellpr ieffs-er 3l To Pleasant Harbor Marina and Golf Resort, LLP and Pleasant Harbor Marina, LLC: Preliminary Draft 6nnfi7 2:21 PM emissiens give ris€ te the elaim shall satisfy the same; previded that; in the event ef enly te the extent ef that pa*t's negligenee, This indemnifieatien hereunder shall be fer the benefit ef the €eunt,' es a munieipal entity and net fer the benefit ef the generel sevenants end restrietiens reeerded egeinst the residentiel preperties within the Pleesent Harber MPR, 11.21 6,14_Voluntarry Undertakine. This Aerreement is entered into voluntarily and without any coercion by or undue influence on the part ofany person. firm or corporation. 11.22 No Waiver. No waiver by any party of any tenn or condition of this Agreement shall be deemed or construed as a waiver of any other term or condition, or a waiver of any subsequent breach, whether of the same or a different provision of this Agreement. 11.23 6JfNo Private CCR Enforcement by !@Counfi The parties acknowledge and agree that nothing in this Agreement shall alter, infringe upon, modiff, change, limit or restrict the ability or powers of the existing neighborhood, tract or subdivision property owner or lot owner associations from enforcing, interpreting and utilizing any and all covenants, conditions or restrictions that pre-exist this Agreement or covenants, conditions or restrictions recorded with the JeftrserCounty Auditor after the effective date of this Agreement. The parties further acknowledge and agree that Jeffersenlfu County bears no responsibility for the enforcement, interpretation or resolution of any dispute, filing, grievance, complaint or appeal that might arise as a result of recorded covenants, conditions or restrictions relating to tracts, subdivisions, lots or parcels within the Pleasant Harbor MPR. 11.24 #Entire Agreement This Development Agreement consists of the Resolution approving the agreement, the Agreement pp. l-+ry, Exhibits l-4, and Appendices A€T. This Agreement constitutes the entire agreement between the parties relating_.lo this subject matter. There are no other agreements. oral or written.except as expl9sslyset forth herein. Except as specifically provided in this Agreement. this Agreement supersedes all orior or simultaneous representations. discussions. negotiations. and agreements. whether written or oral. 11.25 No Assienment. The Developer represents. warrants and agrees that it has not assiened. transferred. conveyed. encumbered or in any manner otherwise disposed of all or any portion of the 32 Preliminary Draft 6/7/2017 2:21 PM Developer's Property or any rights. obligations. or interests of any nature or kind whatsoever covered by this Aelreement. whether before or after they occurred. resardless of whether they have occurred as of the date of this Asreement. 12 REPRESENTATIONSAIIDWARRANTIES. Each of the parties represents and warrants that: (a) Each is fully authorized to enter into this Agreement: (.b) Each has taken all the necessary actions to duly approve the making and performance of this Agreement and that no further approval is necessary: (c) Each has read this Agreement in its entirety and knows the contents of this Agreement: (d) The terms of this Agreement are contractual and not mere recitals: and. (e) Each have signed this Asreement having obtained the advice of legal counsel. (SIGNATURES FOLLOW ON NEXT PAGE) 55 Preliminary Draft Signatures JEFFERSON COLINTY Jefferson County Board of County Commissioners By Chair, Kathleen Kler Date: Member, David Sullivan 6/7/2017 2:21 PM Member, 34 Dete' Flw Date' Preliminary Draft APPROVED AS TO FORM: Philip C. Hunsucker. Chief Civil Deputy Prosecuting Attorney Date: Patty€haffi€s5Patricia L. Charnas Director of Community Development Date: ,a*ae'hmen+* 6n/2017 2:21 PM 35 Preliminary Draft PLEASANT HARBOR MARINA AND GOLF RESORT. LLP Bv: 6n/2017 2:21 PM M. Garth Mann Its: Manager Date: Acknowledgement rilhibit t t€gel de Fxhibit 2 Master Pl trxhibit 3 Pleesent @ Apendix H Water Servi ing 4 4 ioft +ine nppengix Waer auatl 36 Preliminary Draft Appendix Tunieete Nto @ire 6fi/2017 2:21 PM 37 Preliminary Draft 617/2017 2:21 PM STATE OF WASHINGTON COI.INTY OF I On this _ day of 2017,before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Melvin G. Mann, to me known to be the person who signed as manager of Pleasant Harbor Marina and Golf Resort, LLP, the Washington limited liability company that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said limited liability company for the uses and purposes therein mentioned, and on oath stated that he was duly elected, qualified and acting as said officer of the limited liability company and that he was authorized to execute said instrument. IN WITNESS WHEREOF I have hereunto set my hand and official seal the day and year first above written. Dated this _ day of 2017. fSisnature of Notarv) fPrint or stamo nam NOfanV PUBLIC in and of Washinoton- residi at fuIv Annoinfmenf F.x ) ) ) SS 38 Preliminary Draft 6n/2017 2:21 PM List of Attachments Exhibits: gxhibitt-f-esalde and Pleasant Harbor Exhibit 2 - Master Plan Map of the Developer's Property (to be supplied) Exhibit 3 - Pleasant Harbor Marina and Golf MPR Land Use Map (recordable version of Comprehensive Plan map) Exhibit 4 - Phasing Plans (to be supplied) Appendices: eooenaixe-UPnzon eooendix g - Stormwarcr eooendix C - Critic aooenOixO-t-anaOl Appendix E - Land Use Application Procedures Requirements. Chapter 18.40 JCC Appendix F - Shoreline Master Proeram Reouirements. Chaoter 18.25 JCC aooenOix C - edditi Appendix H - Coordinated Water System Plan [from SEISI aooendixI-SewerS AooendixJ-Memorm : Mitigation 2. Fire/EMS Mitisation 3. Law Enforcement Mitieation 4. Transportation Mitieation 5. Health Care Services Mitieation 6.Mitieation 7. Parks and Mitieation Aooendix K - Ordinance 0l-0128-08 Appendix L - Veeetation Manaeement Plan Appendix M - Conservation Easement Appendix N - Water Ouali8 Monitoring Plan Appendix O - Neiehborhood Water Policy Plan Appendix P - Wildlife Management Plan Apoendix Q - Cultural Resources Management Plan Appendix R - Tunicate Monitoring Aereement Appendix S - International Dark Sky Appendix T - LEED Narrative 39 Exhibit I (LEGAL DESCRIPTION) I Exhibit I 2 EXH{BTF+ The Pleasant Harbor Master Plan Resort at Black Point shall consist of the properties described below, excluding only that potion of any parcel lying westerly of US l0l, and together with leased tidelands supporting the Pleasant Harbor Marina; all as illustrated at Figure 1-5, page l-4 of the Brinnon Master Planned Resort FEIS issued November 27, 2008. Parcel A APN 502153002 The NortheastYq of the Southwest% of Section 15, Township 25 North, Range 2 West, W.M., in Jefferson County, Washington; Together with a perpetual non-exclusive easement for road and utility purposes through, across and over the following described property: Beginning at the Southeast corner of the Southwest % of the Northwest % of said Section 15; thence run West, along the South line of said Southwest Yn of the Northwest %, approximately 175 feet to the Southerly line of Black Point County Road; thence Northeasterly, along said Southerly line, to a point 30 feet North of said South line when measured at right angles; thence East, parallel to said South line, to the East line of said Southwest Ye of the Northwest %; thence South 30 feet to the point of beginning; And over and across the West 30 feet of the South 30 feet of Government Lot 4 in said Section 15. Situate in the County of Jefferson, State of Washington. Parcel B APN 502153003 The East Yzof the Northwest t/nof the Southwest % of Section 15, Township 25 North, Range 2 West, W.M., in Jefferson County, WashinSon; Except that portion thereof, lying within a strip of land conveyed to the State of Washington, for State Road No. 9, Duckabush River-North Section , by deed dated August 28, 1933, and recorded under Auditor's File No. 70817, records of Jefferson County, Washington. Situate in the County of Jefferson, State of Washington I Parcel C APN 502153023 Those portions of Sections l5 and 22, both in Township 25 North, Range 2 West, W.M., Jefferson County, Washington, described as follows: The Southwest t/+ of the Southeast t/+ and Government Lot 7 of said Section 15, and Government Lots 2 and3 of said Section 22; Except those portions thereof lying East of the West line of the East 695.00 feet of said Southwest t/a of the Southeast Ya, and East of the Southerly prolongation of said West line; Also Except that portion of the West 100.00 feet of said Govemment Lot 7, lying Southerly of the North 539.00 feet thereof. Together with tidelands of the second class, as conveyed by the State of Washington, situate in front of, adjacent to and abutting upon the West % in width of said Government Lot2, in said Section 22. Situate in the County of Jefferson, State of Washington. Parcel D APN 502154002 That portion of the Northwest % of the Southeast % of Section 15, Township 25 North, Range 2 West, W.M., lying Southerly of the Black Point Road as conveyed to Jefferson County by deed recorded under Auditor's File No. 223427, records of said County; Except that portion described as follows: That portion of the Northwest % of the Southeast % of Section 15, Township 25 North, Range 2 West, W.M., described as follows: Beginning at a point of intersection of the East line of the Northwest % of the Southeast t/n andthe Southerly margin of the Black Point Road; thence South along the said East line, a distance of 300 feet; thence West 350 feet; thence North to the point of intersection with the Southerly margin of the Black Point Road; thence Easterly along said Southerly margin to the point of beginning. Situate in the County of Jefferson, State of Washington. Parcel E APN 502152005 That portion of the Southwest % of the Northwest % of Section 15, Township 25 North, Range 2 West, W.M., described as follows: A strip of land 250 feet wide lying Easterly of and parallel to the Southeasterly right of way of State Highway 101; 2 Except the right of way for Black Point Road as conveyed to Jefferson County by deed recorded under Auditor's File Nos. 223427 and 410399, records of Jefferson County, Washington, Also Excepting Therefrom the following tract: Beginning at the Southwest corner of Government Lot 3; thence North 88o 23' 07" West 308.14 feet to the Southeasterly right of way of State Highway No. l0l, and the true point of beginning; thence Southwesterly along said Highway, ll7 feet, thence South 88o 23' 07" East, to a point 175 feet West of the high tide line; thence Northeasterly to a point on the North line of the Southwest % of the Northwest %, 100 feet West of said high tide line; thence North 88o 23' 07" West to the true point of beginning of this exception. Situate in the County of Jefferson, State of Washington. Parcel F APN 502152014 Lot 1 of Watertouch Short Plat, as recorded in Volume 2 of Short Plats, pages 205 and206, records of Jefferson County, Washington, being a portion of Section 15, Township 25 North, Range 2 West, W.M., Jefferson County, Washington. Situate in the County of Jefferson, State of Washington. Parcel G APN 502152015 Lot 2 of Watertouch Short Plat, as recorded in Volume 2 of Short Plats, pages 205 and206, records of Jefferson County, Washington, being a portion of Section 15, Township 25 North, Range 2 West, W.M., Jefferson County, Washinglon. Situate in the County of Jefferson, State of Washington. Parcel H APN 502152016 Lot 3 of Watertouch Short Plat, as recorded in Volume 2 of Short Plats, pages 205 and206, records of Jefferson County, Washington, being a portion of Section 15, Township 25 North, Range 2 West, W.M., Jefferson County, Washinglon. Situate in the County of Jefferson, State of Washington. Parcel I APN 502152013 Lot 1, Pleasant Harbor Marina Short Plat, as per plat recorded in Volume2 of Short Plats, pages 221 to 223 and amended in Volume 3 of Short Plats, pages 8 to 10, records of Jefferson County, Washington, Except that portion of Lot I described as follows: 5 That portion of Government Lot 3 abutting second class tidelands in Section 15, Township 25 North, Range 2 West, W.M., Jefferson County, Washington, being more particularly described as follows: Commencing at the North Yo comer of Section 15, Township 25 North, Range 2 West, W.M., Jefferson County, Washington; thence South 88o 13' 42" East along the North line of said Section 15 for a distance of 364.50 feet to the point of beginning; thence continuing South 88o 13' 42" East 238.76 feet to the line of mean high tide; thence South 6lo 12' 00" West along the line of mean high tide 34.78 feet; thence North 40" 4l' 54" West along the line of mean high tide 3.31 feet; thence South 62o 36' 79" West along the line of mean high tide 26.83 feet; thence South 87" 54' 36" West 166.65 feet; thence North 21" 2l' 05" West 43.00 feet to the point of beginning. And Also Excepting second class tidelands as conveyed by the State of Washington, in front of, adjacent to and abutting the above described excepted uplands. Situate in the County of Jefferson, State of Washington. Parcel J APN 502152012 Lot2, Pleasant Harbor Marina Short Plat, as per plat recorded in Volume 2 of Short Plats, 3 of Short Plats, pages 8 through 10, by the State of Washington, situate in Situate in the County of Jefferson, State of Washington. Parcel K APN 502153020 Those portions of the Southwest % of the Southeast % of Section 15, and Government Lot 2 of Section 22, both in Township 25 North, Range 2 West, W.M., Jefferson County, Washington,described as follows The East 345.00 feet of said Southwest % of the Southeast %, as measured along the North line thereof; Together with that portion of said Government Lot 2 lying East of the Southerly prolongation of the West line of said East 345.00 feet; Situate in the County of Jefferson, State of Washington. Parcel L APN 502153021 pages 221 through 223, and amended in Volume records of Jefferson County, Washington. Together with second class tidelands, as conveyed front of, adjacent to and abutting thereon. 4 Those portions of the Southwest Yr of the Southeast % of Section 15, and Government Lot 2 of Section 22, both in Township 25 North, Range 2 West, W.M., Jefferson County, Washington, described as follows: The East 520.00 feet less the East 345.00 feet of said Southwest % of the Southeast %, as measured along the North line thereof. Together with that portion of said Government Lot 2 lying East of the Southerly prolongation of the West line of said East 520.00 feet and the West of the Southerly prolongation of the East line of said East 345.00 feet. Situate in the County of Jefferson, State of Washington. ParcelMAPN 502153022 Those portions of the Southwest % of the Southeast % of Section I 5, and Government Lot 2 of Section 22, both in Township 25 North, Range 2 West, W.M., Jefferson County, Washington, described as follows: % of the Southeast %, asThe East 695.00 feet less the East 520.00 feet of said Southwest measured along the North line thereof. Together with that portion of said Government Lot 2 lying prolongation of the West line of said East 695.00 feet and prolongation of the East line of said East 520.00 feet. Situate in the County of Jefferson, State of Washington. East of the Southerly West of the Southerly 5