HomeMy WebLinkAboutResolution 22-002-CCDEVELOPMENT AGREEMENT
FOR
McAtee Pit - McLaughlin Road Access
BOARD OF COUNTY COMMISSIONERS
GRANT COUNTY, WASHINGTON
RESOLUTION NO.
Development Agreement By and Between Grant County and
McAtee, LLC,
THIS DEVELOPMENT AGREEMENT is made and entered into this
-.11
L] day of January, 2022, between Grant County and McAtee, LLC
or assigns, a Washington limited liability companyhereinafter the
"Owner". ,
RECITALS
1. RCW 36-706.170 authorizes the execution of a development
agreement between a local government and aperson having
ownership or control of real property within its jurisdiction.
2. RCW 36-7013.170 requires a development agreement to set forth the
development standards and other provisions that shall apply to
govern, and vest the development, use and mitigation of the
development of real property for the duration specified in the
agreement.
Page 1 of 15
3. For the purposes of this Development Agreement, "development
standards" includes, but is not limited to all of the standards listed in
RCW 36.70B.170 (3).
4. This Development Agreement by and between Grant County and
McAtee, LLC, (hereinafter the "Development Agreement"), relates to
the following:
4.1 Permanent Road Construction: The Owner/Developer, or its
successors or assigns, shall have fifteen (15) years within which
to construct a permanent road to County standards, concurrent
with the development (Subdivision) of the McAtee property, over,
along and across Grant County property identified as APN:
120168211 legally described as Lot 9 Green Gable's Plat Division
1 and the adjacent existing road right-of-way/easement.
4.2. Temporary Road Construction: During the fifteen (15)year
term of this agreement, the Owner/Developer, or its agents,
employees, successors or assigns may construct a temporary
road from the intersection of McLaughlin Road and Cox road
through the Lot identified as APN: 120168211 and legally
described as Lot 9 Green Gable's Plat Division 1 (owned by Grant
County) to the adjacent property owned by McAtee, LLC until the
property is developed for residential uses in conformance with
applicable County and/or City Subdivision Regulations, Land Use
and Environmental Regulations and applicable Street and Utility
Standards.
4.3 Temporary Road Usage: Usage of the temporary road would
be limited to McAtee, LL -C, or its agents, employees, successors
or assigns, and to authorized public agencies and departments of
Grant County. The existing County right -of- way or easement
adjacent to and paralleling the northeastern boundary of the Lot 9,
owned by Grant County, will be used as might be necessary to
facilitate construction of the temporary and future permanent
access road due to steep slopes.
5. The following events have occurred in the processing of the Property
Owner's application:
5.1: The McAtee Pit has been exhausted and closed. The Pit area has
been decommissioned pursuant to the existing DNR approved
Page 2 of 15
Reclamation Plan and the DNR bond has been released. Theplan for
the Pit Area is for future residential development.
5.2. Subdivisions in the vicinity and adjacent to the McAteeproperty have
been approved and developed without the requirement for the
dedication and construction of streets to and through the existing
subdivisions to serve the greater area including the McAtee properties
and to complete the public street system for this area of Cascade
Valley.
The existing Shorecrest Drive terminates in a cul-de-sac at the
southern boundary of Lot 2, of the Green Gables Short Plat. The
Green Gables Short Plat was approved without the requirement for the
extension of Shorecrest Road through the Green Gables Short Plat to
serve the McAtee property and other properties located to the north
beyond the McAtee property. McLaughlin Road terminates at the
intersection of Maple Drive and McLaughlin Road.
5.3. Grant County owns Property identified as APN: 120168211, Lot 9
Green Gable's Plat Division 1 and additional existing road right-of-way
and / or easement adjacent to the northeastern boundary of Lot 9.
In an e-mail to Bert McAtee from Derick Pohle, Grant County Public
Works Director / County Road Engineer, dated October 27, 2010 (Copy
Attached) Mr. Pohle stated the following:
"/ think the County always envisioned an extension of Mclaughlin
road via lot 9, that's why we own it. This could be firmed up in a
development agreement or preliminary plat process. As to
Shorecrest / would not be able to tell you why the County approved
the plat with this restriction. Mike Murray would be the only one
know who may know. One question / would have is weather the
restriction is a covenant or a plat restriction. The County would not
normally be bound by a covenant but would be normally by aplat
restriction. The BOC C has never been willing to use condemnation
to benefit a private development but that does not meanyou should
not explore the idea. As for direct access to SR- 17, we are certainly
willing to participate in discussions with WSDOY. As you may
remember they have some preliminary ideas of realigning airway
Drive to the south of the gas station which would increase the
Page 3 of 15
distance between county road intersections, which would be
positive. YY
5.4 Mr. McAtee has explored the possibility of purchasing from the current
owner of Lot 2, Green Gables Short Plat sufficient land area to allow
for the extension of Shorecrest Drive.
It has proven impossible for Mr. McAtee to purchase or obtain
additional right-of-way for an extension of Shorecrest Road through the
existing Lot 2 of the Green Gables Short Plat. The property owner is
unwilling to sell the property or to provide an easement or dedication
for an extension of the road.
It was also determined that there is a Civil Restrictive Covenant
running with the Fee Title to Lot #2, that on the face of itpreludes the
future extension of Shorecrest Drive. The restriction is not inscribed on
the face of the plat and was not required as a condition of Plata pproval
by Grant County. See the attached copy of the Deed Restriction
5.5 After a public hearing as required by RCW 36.70B,.200 by
Resolution No. o2:p-ooa-ce., the Grant County Board of County
Commissioners approved this Development Agreement with the
Owner.
AGREEMENT
General Provisions
Section 1. The Subject Properties.
McAtee Properties / Parcels: The property owned by McAtee; LLC is
not Platted.
Owner/ Developer:
McAtee, LLC
Laurence McAtee, President
1405 S. Monroe Street, Apartment 132
Moses Lake, WA 98837
In-
Property_Parceis.
Page 4 of 15
APN:
170155001
(0.18 Acres)
Not Platted.
APN:
170152000
(3.19 Acres)
Not Platted.
APN:
170156000
(21.12 Acres)
Not Platted.
APN:
170161000
3.44 Acres)
Not Platted.
APN:
311700001
(1.6 Acres)
Not Platted.
APN:
170159000
(7.9 Acres)...
Not Platted
APN:
170154000
(3.8 Acres)
Not Platted.
APN:
170165000
(17.2 Acres)
Not Platted.
Total Acres: 58.51 Acres.
Grant County Properties / Parcels:
Owner:
Grant County Public Works
124 Enterprise St. SE
Ephrata, WA 98823-1987
Property Parcel and Lot:
APN: Parcel 120168211 (Lot 9 Green Gable's Plat
Division 1); Average: 1.72 Acres.
Existing County Road Right -Of -Way and / or
Easement Adjacent to the Northeastern Boundary of the
Above Referenced Lot.
Comprehensive Plan Land Use Desi nation and Zoning of All
Properties:
Urban Growth Area: The property is located in the City of
Moses Lake Urban Growth Area.
Comprehensive Plan Land Use Desiqnation: Urban
Residential Low Density. (Residential Density 1-4
Dwelling Units /Acre).
Zone Designation: Urban Residential 2. (Residential
Density: 1-4 Dwelling Units /Acre).
Section 2. Definitions. As used in this Development Agreement,
g ,
the following terms, phrases, and words shall have the s
and be inter meanings interpreted as se g
p t forth in this Section.
Page 5 of 15
2.1. "Adopting Resolution" means the Resolution which approves
this Development Agreement, as required by RCW 36.70B.
20.
2.2. "Certificate of occupancy" means either a certificate issued after
inspections by the County authorizing a person(s) in
possession of property to dwell or otherwise use a specified
building or dwelling unit, or the final inspection if a formal
certificate is not issued.
2.3. "Board" means the duly elected legislative body governing Grant
County.
2.4 "Design Standards" means the Grant County Design Standards,
as adopted by the County.
2.5 "Administrator" means the County's Community Development
Department Director.
2.6 "Effective Date" means the effective date of the Adopting
Resolution.
2.7 "Existing land Use Regulations" means the ordinances adopted
by the County Commissioners in effect on the Effective Date,
including the adopting ordinances that govern the permitted
uses of land, the density and intensity of use, and the design,
improvement, construction standards and specifications
applicable to the development of the Subject Property, including,
but not limited to the Comprehensive Plan, Grant County7s
official Zoning map and development standards, the Public
Works Standards, SEPA, and all other ordinances, codes, rules
and regulations of the County establishing Subdivision
standards and building standards. Existing Land Use
Regulations does not include non -land use regulations, which
includes taxes and impact fees.
2.8 "Landowner" is the party who has acquired any portion of the
Subject Property from the Developer who, unless otherwise
released as provided in this Agreement, shall be subject to the
applicable provision of this Agreement. The "Developer" is
identified in Section 5 of this Agreement.
2.9 "Project" means the anticipated development of the Subject
Property, as specified in Section 1 and as provided for in all
associated permits/approval, and all incorporated exhibits.
Page 6 of 15
2.10 "Cost of Development" means the actual cost of the
Development including: Engineering; Design; Surveying;
g
Mobilization; Construction Surveying; Construction Services;
Administration; Testing; Inspection; Sales / Use Tax; SWPPP;
Dewatering; Unsuitable Soils Removal; Import Materials; Soil
Stabilization; Erosion Control; Installation and Materials Related
to Road and Utility Installation; Contingency; and Permits.
2.11 "Cost of Construction" means the actual cost of Construction
including: Mobilization; Dewatering; Unsuitable Soils Removal;
Imported Materials, Soil Stabilization; Erosion Control; and
Installation and Materials related to Road and Utility Installation.
Section 3. Exhibits. Exhibits to this Agreement are as follows:
3.1 Exhibit A — Add Exhibits as Applicable
Section 4. Parties to Development Agreement. Thep arties to this
Agreement are:
4.1 The "County" is Grant County whose address is:
Grant County Public Works
124 Enterprise St. SE
Ephrata, WA 98823-1987
4.2 The "Owner/Developer" is a private enterprise which will own
the Subject Property in fee, and whose address is:
McAtee, LLC
Laurence McAtee, President
1405 S. Monroe street. Apartment 132
Moses Lake, WA 98837-4630
4.3 The "Landowner." From time to time, as provided in this
Agreement, the Owner/Developer may sell or otherwise
lawfully dispose of a portion of the Subject Property to a
Landowner who y
unless otherwise released, shall be subject to
the applicable provisions of this Agreement related to such
portion of Subject Property.
Page 7 of 15
Section 5. Project is a Private Undertaking. It is agreed among
the parties that the Project is a private development, and that the County
has no interest therein except as authorized in the exercise of its
government functions and this Development Agreement.
Section 6. Term of Agreement. This agreement shall commence
on the effective date of the Adopting Resolution approving this
Agreement and shall continue in force for period of fifteen (1Qyea. a rc%
_
unless extended or terminated as provided herein. Following the
expiration of the term or extension thereof, or if sooner terminated, this
Agreement shall have no force and effect, subject however, topost-
termination obligations of the Developer or Landowner.
Section 7. Vested Rights of Owner/Developer. During the term of
this Agreement, unless sooner terminated in accordance with the terms
hereof, in developing the Subject Property consistent with the Project
described herein, Owner/Developer is assured, and the County agrees,
that the development rights, obligations, terms, and conditions specified
in this Agreement, are fully vested in the Owner/Developer, and may not
be changed or modified by the County, except as may be expressly
permitted by, and in accordance with, the terms and conditions of this
Agreement, including the Exhibits hereto, or as expressly consented
thereto by the Owner/Developer.
Section 8. Permitted Uses and Development Standards. The
permitted uses, the density and intensity of use, the maximum height
and size of proposed buildings, provisions for reservation and dedication
of land or payment of fees in lieu of dedication for publicpurposes, the
construction, installation and extension of public improvements '
development guidelines and standards for development of the Subject
Property shall be those set forth in this Agreement, the permits and
approvals identified herein, and all exhibits incorporated herein.
Section 9. Agreement. The County and the Owner agree to the
following:
9.1 Road Construction: The Owner/Developer, or its successors
or assigns, shall have fifteen (15) years within to construct a
road to County standards over, along and across Grant
County property identified as APN: Parcel 120168211(Lot 9
Green Gable's Plat Division 1) and the adjacent existing road
right-of-way / easement.
9.2 Temporary Access Road Construction: During the fifteen (15) year
term of this agreement, the Owner/Developer, or its successors
or assigns, may construct a temporary road for access over,
Page 8 of 15
along and across the County property described in paragraph
1 above.
9.3 Termination: In the event the Owner/Developer fails to construct a road
to County/City standards within the fifteen (15) year timeeriod then this
agreement shall b p
g e terminated and of no further force or effect.
9.4 Dedication: Upon construction of the permanent road to Count
standards concurrent Subdivision y
with the Subdivision of the property, Grant County
agrees to dedicate the property identified as Parcel No. 120168211(Lot 9
Green Gables Plat Division 1) and the adjacent existing g road right of
way/easement to the public for street and utility uses.
Section 10. Minor Modifications. Minor Modifications from the
approved permits or the exhibits attached hereto may be approved in
accordance with the provisions of the County's Code and shall not
require an amendment to this agreement.
Section 11. Further Discretionary Actions. Developer acknowledges
p g
that the Existing Land Use Regulations contemplate the exercise of
further discretionary powers by the County. These powers include but
are not limited to, review of additional permit applications under SEPA.
Nothing in this Agreement shall be construed to limit the authorityor the
obligation of the Count
g y to hold legally required public hearings, or to
limit the discretion of the County and any of its officers or officials in
complying with or applying Existing Land Use Regulations.
Section 12. Existing Land Use Fees. Land use fees adopted b the
Count b ordinance p y
County y ce as of the Effective Date of this may be
increased by the County from time to time, and applicable toermits and
approvals for the Sub' p
pp Subject Property, as long as such fees apply to similar
applications and projects in the County.
Section 13. Default.
13.1 Subject to extensions of time by mutual consent in writing,
b either
failure or delay y er party or Landowner not released from
this Agreement, to perform any term or provision of this
Agreement shall constitute a default. In the event of alleged
default or breach g
of any terms or conditions of this Agreement,
the party alleging such default or breach shall give the other
party or landowner not less than (30) days notice in writing,
specifying the g
nature of the alleged default and manner in
Page 9 of 15
which said default may be cured. During this thirty (30) day
period, the party or Landowner charged shall not be
considered in default for purposes of termination or institution
of legal proceedings.
13.2 After notice and expiration of the thirty (30) day period, if such
default has not been cured or is not being diligently cured in
the manner set forth in the notice, the other party or
Landowner to this Agreement may, at its option, institute legal
proceedings pursuant to this Agreement. In addition, the
county may decide to file an action to enforce the County's
Codes, and to obtain penalties and costs as provided in the
Grant County Code for Violations of this Development
Agreement and the Code.
Section 14. Termination. This Agreement shall expire and/or
terminate as provided below:
14.1 This Agreement shall terminate upon the expiration of the term
identified in Section 7 or when the road has been constructed
to County Standards and Grant County has dedicated the road
for public use, whichever first occurs, and all of the
Developer's obligations in connection therewith are satisfied
as determined by the County. Upon termination of this
Agreement, the County shall record a notice of such
termination in a form satisfactory to the County that the
Agreement has been terminated.
14.2 After notice and expiration of the thirty (30) day period, if any
default has not been cured or is not being diligently cured in
the manner set forth in the notice, the other party to this
Agreement may, at its option, institute legal proceedings
pursuant to this Agreement. In addition, the county may
decide to file an action to enforce the County's Codes, and to
obtain penalties and costs as provided in the Grant County
Code for Violations of this Development Agreement and the
Code.
Section 15. Effect upon Termination on Owner/Developer
Obligations. Termination of this Agreement as to the Owner/Developer
of the subject Property or any portion thereof shall not affect any of the
owner/developers obligations to comply with the County Comprehensive
Plan and the terms and conditions or any applicable zoning codes(s) or
subdivision map or other land use entitlements approved with respect to
the Subject Property, any other conditions of any other development
Page 10 of 15
specified in the Agreement to continue after the termination of this
Agreement or obligations to pay assessments, liens, fees or taxes.
Section 16. Effect of Termination on County. Upon termination of
this Agreement as to the Owner/Developer of the Subject Property, or
any portion thereof, the entitlements, conditions of development,
limitation on fees and all other terms and conditions of this Agreement
shall no longer be vested hereby with respect to the property affected by
such termination (provided that vesting of such entitlements, conditions
or fees may be established for such property pursuant to then existing
planning and zoning laws).
Section 17. Assignment and Assumption. The Owner/Developer
shall have the right to sell, assign or transfer this Agreement with all their
rights, title, and interests therein to any person firm or corporation at any
time during the term of this Agreement. Owner/Developer shall provide
the County with written notice of any intent to sell, assign, or transfer all
or a portion of the Subject Properly, at least 30 days in advance of such
action.
Section 18. Covenants Running with the Land. The conditions and
covenants set forth in this Agreement and incorporated herein by the
Exhibits shall run with the land and the benefits and burdens shall bind
and inure to the benefit of the parties. The Developer, landowner and
every purchaser, assignee, or transferee of an interest in the Subject
Property, or any portion thereof, shall be obligated and bound by the
terms and conditions of this Agreement, and shall be the beneficiary
thereof and a part thereto, but only with respect to the Subject Property,
of such portion thereof, sold, assigned, or transferred to it. Any such
purchaser, assignee or transferee shall observe and fully perform all of
the duties and obligations of a Developer contained in this Agreement,
as such duties and obligations pertain to the portion of the subject
Property sold, assigned, or transferred to it.
Section 19. Amendments to Agreement: Effect of Agreement on
Future Actions. This Agreement may be amended or extended by
mutual consent of all of the parties, provided that any such amendment
shall follow the process established by law for the adoption of a
development agreement (see RCW 36.70B.200). Nothing in this
Development Agreement shall prevent the County from making any
amendments of any type to the Comprehensive Plan, Zoning code,
Official Zoning Map or development regulations relating to the Subject
Property fifteen (15) years from the anniversary date of the Effective
Date of this Agreement or as may be addressed in any amendments or
extensions of this Development Agreement.
Page 11 of 15
Section 20. Releases. Owner/Developer, and any subsequent
Landowner, may free itself from further obligations relating to the sold,
assigned, or transferred property, provided that the buyer, assignee, or
transferee expressly assumes the obligations under this agreement as
provided herein.
Section 21. Notices. Notices, demands, correspondence to the County
and Developer shall be sufficiently given if dispatched by pre -paid first-
class mail to the addresses of the parties as designated in Section 5.
Notice to the County shall be to the attention of the Community
Development Department Director and the Chairman of the Board of
County Commissioners. Notices to subsequent Lan'downers shall be
required to be given by the County only for those Landowners who have
given the County written notice of their address for such notice. The
parties hereto may, from time to time, advise the other of new addresses
for such notices, demands or correspondence.
Section 22. Reimbursement for Agreement Expenses of the
County. Owner/Developer agrees to reimburse the County for actual
expenses incurred over and above fees paid by the Developer as an
applicant incurred by the County directly relating to this Agreement,
including recording fees, publishing fees and reasonable staff and
consultant costs not otherwise included within application fees. This
development agreement shall not take effect until the fees provided for in
this section, as well as any processing fees owed by to the County for
the subject project are paid to the County. Upon payment of all
expenses, the Owner/Developer may request written acknowledgement
of all fees. Such payment of all fees shall be paid, at the latest, within
thirty (30) days from the County presentation of a written statement of
charges to the developer.
Section 23. Applicable Law and Attorneys' Fees. This Agreement
shall be construed and enforced in accordance with the laws of the State
of Washington. If litigation is initiated to enforce the terms of this
Agreement, the prevailing party shall be entitled to recover its
reasonable attorney's fees and costs from the non -prevailing party.
Venue for any action shall lie in Grant County Superior Court or an
adjoining County per State law and the U.S. District Court for Eastern
Washington.
Section 24. Third Party Legal Challenge. In the event any legal
action or special proceeding is commenced by anyperson or entity other
than a party or a Landowner to challenge this Agreement or any
provision herein, the County may elect to tender the defense of such
lawsuit or individual claims in the lawsuit to Developer and
Landowner(s). In such event, Developer and/or such Landowners, shall
Page 12 of 15
hold the County harmless from and defend the Count from all costs
Y and
expenses incurred in the defense of such lawsuit or individual claims in
the lawsuit, including but not limited to , attorneys' fees and expenses
litigation, Y p of
liti
g , and damages awarded to the prevailing party or parties in such
litigation. The Developer and/or landowner shall not settle an lawsuit
suit
without the consent of the County. The County shall act in food faith and
shall not unreasonably withhold consent to settle.
Section 25. Specific Performance. The parties specifically a that
p y g ree at
damages are not an adequate remedy for breach of this Agreement, an
parties g d
that the
p es are entitled to compel specific performance of all material
terms of this Development Agreement by any party in default hereof.
Section 26. Severability. If any phrase, provision or section of
this
Agreement is determined by a court of competent jurisdiction to
be
invalid or unenforceable,
or any provision of this Agreement is rendered
invalid or unenforceable according to the terms of an statute of
Y the
State of Washington which became effective after the effective date of
the Resolution adopting this Development Agreement, and eitherart i
p Y n
good faith determines that such provision or provisions are material to its
entering into this agreement, that party may elect to terminate this
Agreement as to all of its obligations remaining unperformed.
Section 27. Construction. In the event of a dispute between
p the
parties as to the meaning of terms, phrases or specificrovisions of this
s
agreement, the authorship of this Agreement shall not be cause for this
Agreement to be construed against any party nor in favor of an party.
. Y
IN WITNESS WEREOFF, the parties hereto have caused this
Development Agreement to be executed as of the dates set forth below:
OWNER:
McAtee LLC, Laurence McAtee, Member, 1405 S. Monroe Street
Apartment 132, Moses Lake, WA 98837
Page 13 of 15
By:
L
ftfa ure: Lauren'ce' McAfee ,Title: Managing Member
State of Washington
County of Grant
I certify that I know or have satisfactory evidence that Laurence
McAtee signed this instrument, on oath that he was authorized to
execute the instrument and acknowledged it as the Managing Member of
McAtee, LLC, or assigns, to be the free and voluntary act of such party
for the purposes mentioned in this instrument.
Dated: January -3 2 2022.
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No 69012
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Notary Public for Washington State
MY commission expires 44
GRANT COUNTY BOARD OF COUNTY COMMISSIONERS:
Passed by the Board of County Commissioners in regular session at Ephrata,
Washington, by the following vote, then signed by its membership and attested to
by its Clerk in authorization of such passages this *-k day of January, 2022.
Dated this . q day of January, 2022.
Page 14 of 15
Yea
ATTEST:
CLARK OF TH, E1130A
Nay Abstain BOARD OF COUNTY
COMMISSIONERS,
GRANT COUNTY,
WASHINGTON
Danny k Stone,-'_B_9C& hair
R bjbFr s, aG -Chair
0 0 Cindy Cartb�r, M
Page 15 of 15
er
CARSON FOWLES, PLLC
Attorneys
LARRY W. LARSON
DWAYNE C. FOWLES
MITCHELL J. HEAPS
LYLIANE S. COUTURE
BRUCE D. PINKERTON (Retired)
January 3, 2022
Damien Hooper, Director
Grant County Development Services
P.O. Box 37
Ephrata, WA 98823
Re: McAtee/DevelopmentAgreement
Dear Damien:
821 E. Broadway Ave., Ste. 8
Moses Lake, WA 98837
(509) 765-6700
(509) 765-6710 Fax
larry@larsonfowles.com
Enclosed please find the original Development Agreement signed by Mr.
McAtee and notarized. Please email me a copy of the fully signed
Development Agreement after it is signed by the Commissioners.
L
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