HomeMy WebLinkAbout09 29 2026 Special Study Session AgendaYELM CITY COUNCIL - STUDY SESSION AGENDA
September 29, 2026, 4:0 0 pm
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1.Presentations/Discussion Items
a.Development Agreement between the City of Yelm and Blue Fern Development
2.Mayor’s Report
3.Councilmember Initiatives
All regular Yelm City Council meetings are recorded. Meetings can be viewed on YouTube, or a copy may be purchased
by contacting the City Clerk’s office at 360.458.8816.
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with a disability and in need of reasonable accommodations to conduct business or participate in government
processes or activities, plea se contact Kathy Linnemeyer, at 360.458.8816 at least four (4) working days prior to the
scheduled event.
FINAL DRAFT
DEVELOPMENT AGREEMENT
CITY OF YELM
And
YELM MPC,LLC.
This Development Agreement(“Agreement”)is entered as of the day of,
(the “Effective Date”), by and between Yelm MPC, LLC, a Washington limited
liability company, and/or assigns (“Developer") and the City of Yelm ("City"). Developer
and the City are herein collectively referred to as the “Parties."
RECITALS
A.Developer has a legal property interest in certain real property located within the City
of Yelm Urban Growth Area (“UGA”) consisting of approximately 640 acres, which
is fully described on Exhibit A attached to this Agreement and incorporated herein (the
“Property”).The City currently owns this property and, on November 13, 2025, entered
into a Purchase and Sale Agreement with Developer for the Property, based on
particular terms set forth therein (the “PSA”).
B.On November 25, 2008, the City issued a Final Environmental Impact Statement for
the proposed Thurston Highlands Master Planned Community(the“FEIS”).That
previous project proposal was based on a mixed-use development on a 1,240-acre site
in the southwest quadrant of the incorporated area of the City of Yelm. That proposed
Master Plan included the Property plus additional acreage located to the east. Under
any conceptual land use alternative, the development scenarios included several
thousand res idences to be provided in a mix of housing types and densities; commercial
development; passive and active open spaces, including protection of critical areas;
reservation of area for emergency services; accommodation of public services, such as
water supply, wastewater collection, stormwater management facilities; and the
extension of Tahoma Boulevard through larger area,connecting to SR 507.No master
plan was ever approved for this proposed community,although the City did complete
the SEPA review process and rezoned the area as Master Planned Community.
C.The Property, consisting of approximately 640 acres, is located entirely within the
larger area which formerly comprised the proposed Thurston Highlands Master
Planned Community. Developer proposes a master planned development of the
Property generally consistent with the Urban Village Alternative as described in the
2008 EIS, with area set aside for commercial and public park uses. The Parties
recognize that the Urban Village Alternative depicts only residential development, and
that Developer is separately required to construct commercial development as provided
in this Agreement. The City anticipates that development under this Agreeme nt will
confer a substantial benefit to future development of the adjacent property(ies) and
provide a significant public benefit primarily in the extension of Tahoma Boulevard.
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Developer has separately applied for a Concept and Final Master Plan that proposes to
develop the Property in up to five phases,including a range of residential uses and
densities, specific acreage for future commercial and multifamily development,
stormwater facilities serving the public and private improvements, property dedications
for a public park, property dedication for emergency services, provision of arterial right
of way for a future Tahoma Boulevard roadway to serve the larger region, dedication
for water tower and related service, and dedicated critical areas and buffers
(collectively referred to herein as the “Project”). Developer has worked closely with
the City on utility and grading pla n specifications allowing for technical evaluation of
the viability of the proposed development.
D.Because of the size and scope of the Property and Project, Developer anticipates that
the Project will be built in Phases as identified by the PSA, with multiple Divisions in
each Phase. To maximize marketability, Developer and the City anticipate that each
Phase and potentially Divisions will involve more than one homebuilder at any given
time.
E.Considering the complexity and size of the Project, the City recognizes that additional
regulatory flexibility beyond that set forth in Title 18 YMC is critical to support a
successful development.Regulations pertaining to the Project are adopted as part of the
Concept Master Plan.
F.Development Agreements are authorized by RCW 36.70B.170 to establish the
“development standards and other provisions that shall apply to and govern and vest
the development, use, and mitigation of the development of the real property for the
duration specified in the agreement.”
G.The City and Developer intend to create uniform processes and standards for
entitlement and development of the Property, including master planning and
subdivision. Developer recognizes that the City’s approval of the Concept Master Plan
results in an update to the City’s Official Zoning Map pursuant to YMC 18.15.040.
H.The Parties recognize that development of the Property depends on Developer securing
funding for the extension of the Tahoma Boulevard and other public improvements,
and the City’s public right of way and acquisition of the Tahoma Boulevard, costs of
which are expected to be paid through tax allocation revenue collected within a tax
increment area formed by the City under chapter 39.89 RCW. Because the funding and
acquisition plan is central to the Parties' decision to enter into this Agreement, the
Parties have addressed its role, and the consequences should it not be put in place, in
the operative provisions of this Agreement.
Pursuant to the provisions of RCW 36.70B.170, et seq., and in consideration of the mutual
promises, benefits and obligations set forth herein, the City and Developer hereby enter
into the following Development Agreement:
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DEVELOPMENT AGREEMENT
EXHIBITS:
Exhibit A:Legal Description
Exhibit B: Impact Fee and System Development Charges
Exhibit C:City of Yelm Engineering and Development Design
Exhibit D: Tahoma Boulevard Road Section
Exhibit E:Onsite Road Standards
Exhibit F:Alley Sections
Exhibit G: Trail Sections
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DEFINITIONS:
"Development Regulations" means the controls placed on development or land use
activities by the City including, but not limited to, zoning ordinances, critical areas
ordinances, shoreline master programs, official controls, planned unit ordinances,
subdiv ision ordinances, binding site plan ordinances, environmental review (including
SEPA procedures and substantive SEPA policies), building and site design, utilities,
stormwater, impact fees, transportation concurrency and other laws, ordinance, policies,
an d administrative regulations and guidelines of the City governing land development
contained within the Yelm Municipal Code (hereinafter “YMC”), Comprehensive Plan,
and City Engineering Standards and Specifications. Zoning and other applicable laws,
policies and regulations include but are not limited to the following categories:
i.The uses permitted by existing zoning;
ii.The density and intensity of uses permitted by existing zoning;
iii.The maximum height and size of the proposed buildings;
iv.The provisions for reservation and dedication of land;
v.The public improvements required to be constructed to mitigate the additional
development;
vi.The environmental regulations including SEPA mitigation requirements and
critical areas; and
vii.The development regulations applicable on the date of this Agreement.
“Preliminary plat” means a neat and approximate drawing of a proposed subdivision
showing the general layout of streets and alleys, lots, blocks, and other elements of a
subdivision consistent with the requirements of chapter 58.17 RCW and Title 18 YMC.
Th e preliminary plat shall be the basis for the approval or disapproval of the general layout
of a subdivision.
"Project permit" or "Project permit application"means any land use or environmental
permit or license required from a local government for a project action, including but not
limited to subdivisions, binding site plans, planned unit developments, conditional and
special uses, shoreline substantial devel opment permits, engineering, site plan review,
permits or approvals required by critical area ordinances, site-specific rezones which do
not require a comprehensive plan amendment, but excluding the adoption or amendment
of a comprehensive plan, subarea pl an, or development regulations except as otherwise
specifically included in this subsection.
“Final plat” is the final drawing of the subdivision and dedication prepared for filing for
record with the county auditor and containing all elements and requirements set forth in
chapter 58.17 RCW and Title 18 YMC.
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A.TERM AND GENERAL DEVELOPMENT PROVISIONS
1.Term.The Term of this Agreement shall commence upon the effective date of
t his Agreement and shall continue in full force and effect for the sooner of(i)a
period of ten (1 0) years,or(ii)issuance of the final certificate of occupancy, unless
amended by mutual agreement of the City and Developer. The City and Developer
intend for this Agreement to be in effect for a term concurrent with the Master Plan
and intend that any request for extension of the Master Plan will be processed
concurrently with an extension of this Agreement, and that any expiration of the
Master Plan shall cause this Agreement to expire. The City and Developer agree
that if the Master Plan is extended, the term of this Agreement shall likewis e be
extended for the term of the Master Plan. Notwithstanding the initial ten(1 0) year
term, if Developer completes Phase 1 and Phase 2 within the initial term, the term
of this Agreement shall be extended by an additional five (5) years for each
subsequent Phase (Phase 3, Phase 4, and Phase 5) that thereafter reaches
completion, with e ach such five (5) year extension applying to and measured from
the completion of the corresponding Phase. For purposes of this Section, a Phase is
“completed” when certificates of occupancy have been issued for seventy-five
percent (75%) of the dwelling un its within that Phase.
a.Termination due to Tahoma Boulevard Funding. The Parties recognize that
development of the Property depends on Developer securing funding for
the extension of the Tahoma Boulevard and other public improvements, the
public use of the Tahoma Boulevard, and the City’s acquisition of the
Tahoma Boulevard, costs of which are expected to be paid through tax
allocation revenue collected within a tax increment area formed by the City
under chapter 39.89 RCW. Because the funding for the Project and
formation of the increment area by the City pursuant to chapter 39.89 RCW
are key to this Agreement,this Agreement and the agreement between the
City and the Developer regarding such public use and acquisition (the
“Tahoma Boulevard Agreement” or “TBA”) shall lapse and be of no
further force or effect, automatically and without further action by either
Party, if the ordinance forming the tax increment area is not adopted and
effective within ninety (90)days after the Effective Date of this Agreement.
Upon such lapse, each Party shall bear its own costs and shall have no
further obligation to the other, except for those obligations that expressly
survive termination of this Agreement.
b.Option to Extend Initial Term. The City hereby grants to Developer the
option to extend the initial term of this Agreement for an additional five (5)
years (hereinafter “Extension Option”), provided that such extension is
necessary to accomplish closing obligations under the Purchase and Sale
Agreement and the Developer provides evidence of substantial progress
and commitment to construction of the Development Property. If
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Developer seeks to exercise the Extension Option hereby granted, the
Developer shall notify the City of Yelm Planning and Building Manager,
in writing not less than 90 days prior to the termination date of this
Agreement, of Developer’s intent to exercise the Extension Option.
Developer shall provide evidence of substantial progress and commitment
to construction of the Development Property not later than 60 days prior to
the termination date of this Agreement.
2.Proposed Change to Zoning.Approval of a Concept Master Plan may result in a
zoning determination and change to the City’s Official Zoning Map. YMC
18.15.040.. As part of this Agreement, the City will process the Concept Master Plan
and associated zoning determinations in accordanc e with the YMC and applicable
law and will forward a recommendation in support of the same to the Hearing
Examiner and City Council. The Parties acknowledge that consideration and
approval of the Concept Master Plan and related zoning determinations consti tute
land use actions that cannot be predetermined by this Agreement pursuant to RCW
36.70B.170, that this Agreement creates no obligation on the Hearing Examiner or
City Council to approve the same, and that the City Council retains the full discretion
al lowed by law to approve, approve with modifications, or deny the same following
the public hearing process required by RCW 36.70B.200 and the YMC. Developer
acknowledges and accepts the risk that the Concept Master Plan and related zoning
determinations ma y not be approved as proposed or at all.
3.Vesting of Development Regulations. All Project Permit applications for the
Property for the duration of this Agreement shall vest to the approved Master Plan,
this Agreement, and Development Regulations,defined above and including those
set forth in Title 18 as modified in the Concept Master Plan and otherwise herein,
and other applicable laws in place on the Effective Date of this Agreement, except
as otherwise provided for in this Agreement and its Exhibits. The City shall not apply
to the Project any ordinance, resolution, rule, regulation, policy, standard or other
measure that may be in conflict with the vested-to Development Regulations or that
reduces the rights provided by this Agreement unless agreed to by Developer in
writing. Th e City and Developer agree that this vesting provision shall not apply to
purely procedural standards contained in the YMC, including, administrative final
plat procedures, approving authorities and hearing procedures.
In the event that this Agreement expires by its terms or by law prior to issuance of
any permits or approvals applied for based on an approved preliminary or final plat
for any Phase or Division and necessary to complete development under this
Agreement, t he City and Developer agree that vesting of these regulations will
apply to said applications, subject to the City’s determination as to whether
additional review under the State Environmental Policy Act, chapter 43.21C RCW,
is required. Further, the City and Developer agree that any preliminary plat which
has not yet been final platted upon termination or expiration of this Agreement, and
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any Project Permits associated therewith but which have not yet been applied for,
shall remain subject to and benefit from the vesting provisions herein.
The City shall not apply subsequently adopted ordinances, regulations and design
standards to infrastructure development of the Property, either directly or indirectly
(i.e., by imposing requirements for such compliance pursuant to the State
Environmental Policy Act), provided that the City reserves authority to apply new
or different regulations as required by a serious threat to public health and safety,
as required by federal or state law, or to address materially changed infrastructure
or environmental conditions. The Parties shall meet not less than once every five
(5) years to review the vested Development Regulations and consider mutually
agreed updates.
The following amendments, additions, increases or other changes to the following
plans, laws, ordinances, regulations, fees and monetary charges, adopted by the
City following the effective date of this Agreement, are exempt from the vesting
provisions of this Agreement:
a) Any permit application, permit review and inspection fees applicable to
any application for a master plan, binding site plan, subdivision or short subdivision
or other land use approval for any portion of the property not included in Exhibit
C and to the extent not waived by this Agreement or other action of the City
Council;
b)Water, sewer, stormwater and irrigation connection charges, general
facility and monthly service charges, (except for the System Development Charges
expressly set forth in Exhibit B, which are locked for the five (5) year period
provided in Section 4), as the City Council may from time to time adopt;
c)The Washington State Building Code, including without limitation the
International Building Code and such other International or other Uniform Codes
adopted by the Washington State Building Code Council and/or the City Council,
including electrical, buildi ng, plumbing, fire and other ancillary uniform or
international construction codes adopted pursuant to Ch. 19.27 or 19.27A RCW;
d)Any plans, policies, ordinances, regulations or development regulations
that the City must change by virtue of, or the City reasonably determines to be
necessary to change to comply with, the requirements of any federal or state law or
the directive of any state or federal agency or court, in order to avoid being in
violation of state or federal law, or to preserve the City’s eligibility to receive shared
revenues, grants or other funding, but only to the extent necessary to comply with
such state or federa l law; and,
e)Taxes of any nature of general applicability throughout the City.
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Any waiver or revision of a vesting provision under this Agreement shall be
processed as a Major Amendment under Section 5 and shall be made only upon the
mutual written agreement of the City and Developer.
4.Impact Fees and System Development Charges.The Project shall vest to those
impact fees and system development charges in those fee categories and rate
schedules expressly set forth in Exhibit B. Only the impact fees, system
development charges, and other fees and charges expressly identified in Exhibit B
are locked as provided in this Section. All other fees and charges shall apply at the
rate and amount in effect at the time a complete permit application is submitted for
the applicable lot or building. Any listed indexed fee shall be adjusted solely by t he
Consumer Price Index for All Urban Consumers (CPI-U), Seattle-Tacoma-
Bellevue, All Items, using July 2025 as the base index, and shall be calculated as
of the date a complete building permit application is submitted for the applicable
lot or building.The impact fees and system development charges set forth in Exhibit
B are locked at the rates and amounts set forth in Exhibit B for a period of five (5)
years commencing on the Effective Date of this Agreement. Upon expiration of that
five (5) year period the lock shall end, and any fee or charge set forth in Exhibit B
for which a complete permit application has not been submitted and the applicable
fee paid before expiration shall thereafter be assessed at the rate and amount in
effect at the time a complete permit application is submitted, regardless of any
extension of the term.
5.Interpretation and Amendment of Agreement. The City and Developer recognize
this Agreement is of an extended duration and covers a significant area of land
within the City limits. As a result, the City and Developer recognize they cannot
forecast long term market conditions or other circumstances which may affect
development or uses of future Phases within the Master Plan. Therefore, the City
Administrator is hereby given wide latitude in interpreting the terms of this
Agreement to prioritize development flexibility in the application of use chart s and
bulk regulations, subject to the Minor and Major Amendment process set forth
below, under which Major Amendments require review and approval by the City
Council. Except for Major Amendments under subsection (a) below, an
Amendment to this Agreement’s s pecific terms and/or provisions set forth in the
Exhibits, condition of the Master Plan or the Master Plan map requested by
Developer shall be processed as a Minor Amendment, approved by the City
Administrator or designee without requirement of public hearing.
a.Major Amendments. An amendment shall only be deemed a Major Amendment
if it: (i) materially changes the Tahoma Boulevard alignment, cross-section, or
connection points; (ii) materially changes the location, size, or configuration of a
public park or other public dedication area; (iii) materially changes the approved
residential densi ty, product mix, or commercial acreage of a Phase; (iv) materially
revises a Phase boundary; (v) reduces any required public dedication; (vi) waives
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or modifies a vested engineering, stormwater, or utility standard in a manner of
more than minor significance; (vii) extends the term of this Agreement beyond the
extensions expressly provided in Section 1, it being understood that exercising an
extension right expressly granted in Section 1, including the automatic Phase-
completion extensions and the Extension Option, is not itself a Major Amendment;
(viii) materially diminishes a mitigation measure relied upon in project-level
environmental review; or (ix) waives or revises a vesting provision under Section
3, or the impact fee or system development charge vesting under Section 4. A Major
Amendment shall require review and approval by the City Council following public
notice.
b.Minor Amendments.All other amendments, including without limitation
minor revisions to internal road or alley alignment within an approved corridor,
utility layout adjustments within an approved corridor or easement, platting details,
lot line adjustments, and minor setback implementation consistent with vested
standards, use-category determinations for uses readily analogous to a listed use,
stormwater configuration changes that preserve approved treatment and detention
volumes, phasing or infrastructure timing changes that do not alter the items listed
as Major, and par k or open-space configuration within the agreed service area that
do not reduce designated open space beyond the tolerance set forth in Section 2 5,
and other comparable development details,shall be deemed Minor Amendments.
c.Any determination that an amendment is Major shall be supported by written
findings issued within fourteen (14) days of request. The final determination
regarding whether an Amendment to this Agreement is Minor or Major shall rest
with the City Administrator subject to appeal to the Hearing Examiner,following
the timelines set forth in Section 6, below.
6.Interpretations of Terms and Modifications of Development Standards. Any
interpretation or modification of a term of this Agreement, condition of the Master
Plan or Development Regulation, or dispute regarding the foregoing, shall be
resolved first by Developer submitting a written request to the City Administrator
or designee, requesting interpretation or modification. The City Administrator or
designe e shall decide whether it agrees with the request in writing within fourteen
(14) days of receiving the request. Any denial or conditional approval shall include
specific written findings, identify the particular Agreement provision or vested
standard relied upon,and describe the basis for the decision with reasonable
specificity. If the City Administrator or designee fails to issue a written decision
within such period, the Parties may agree in writing to an extension; absent
agreement, the request shall be deemed denied and Developer may a ppeal that
constructive denial to the Hearing Examiner as provided below. In no event shall a
request be deemed approved solely by reason of the City’s failure to act within a
specified time.The written decision may be appealed by the Developer to the
Hearing Examiner within ten (10) days of the written decision and within fourteen
(14) days the City shall request that the Hearing Examiner conduct a hearing at its
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earliest opportunity. Any subsequent appeals of the written decision shall be
brought exclusively by Land Use Petition, pursuant to Chapter 36.70C RCW. The
dispute resolution terms set forth in Section 5 8 shall not pertain to this Section.
B.PROJECT DESCRIPTION
7.Property Development. Developer agrees to construct the Property generally
consistent with the PSA, the proposed development of the Property shown on the
Urban Village Alternative Conceptual Land Use Plan, Figure 1.3-6 of the FEIS,
and Concept Master Plan.The City and Developer recognize that modifications to
those Plans may be necessary as the Project proceeds; any such modification shall
be made only through the amendment process set forth in Section 5 of this
Agreement and shall not relieve Developer of its obligations under this Agreement.
Environmental review of any such modifications is addressed separately, herein.
Modifications shall be processed in accordance with Section 5 of this Agreement.
Detailed plans for development of the Property shall be approved through Project
Permits and approval processes set forth herein. Road widths, onsite and offsite
easement and right-of-way dedications, public open spaces, and street and utility
improvements shall be governed by the Master Plan for any future site plan
entitlement application and reviewed under the Development Regulations as vested
to under Section 3, above. However, depictions of building footprints, shapes,
square footage, and number of sto ries in the Master Plan are illustrative only and
shall not bind future Project permit applications.
8.Zoning. The Property is currently zoned Master Planned Community (MPC) and
does not require a rezone to process and approve subdivision under Chapter 58.17
RCW.
9.Permitted Uses. All uses set forth in Title 18, Division 5, YMS (Zoning), as modified
herein and in the Exhibits, shall be those allowed within the Master Plan. In the
event a use is not specifically listed within the zoning code, it shall be allowed if
readily analogous to a listed use. If not, Developer shall be entitled to the requested
use based on an Administrative Zoning Interpretation approved by the Public
Services Director upon reasonable justification. In the event of disagreement, the
Determination process set forth in Section 6 shall be used.
C.PHASING OF DEVELOPMENT.
10.The PSA provides that the Master Plan shall include up to five Phases for purposes
of subdivision and closings, each Phase not being larger than one-hundred sixty
(160) acres in size unless otherwise approved by the City. Each Phase may be
divided into mul tiple divisions which will be established upon entitlement for each
Phase. Each phase is anticipated to yield the following approximate number of
residential units with the specific unit types and zoning considerations to be provided
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with the Master Plan. Developer may construct Tahoma Boulevard through the
Phase 1 site as part of Phase 1. Upon issuance of the five hundred and ninety-ninth
(599 th)residential occupancy permit, Developer shall commence construct ion of the
remaining segment of Tahoma Boulevard(meaning all portions of Tahoma
Boulevard not previously constructed)and shall complete th e remaining segment
prior to issuance of the eight-hundredth (800 th) residential occupancy permit in
accordance with a construction schedule approved by the City,with progress reports
to the City. The City shall use diligent efforts to acquire any necessary right of way
for Tahoma Boulevard,including condemnation if authorized by the City Council.
Developer and City shall expeditiously coordinate,apply for and diligently pursue
all permits required for Tahoma Boulevard, including from the Washington State
Department of Transportation, in time to meet th e requirement s of this Section.
Nothing in this Agreement prevents Developer from constructing all of Tahoma
Boulevard as part of Phase 1.T he following table reflects the referenced
construction.
PHASE ACREAGE UNIT AND INFRASTRUCURE
MATRIX
(based on gross area)
(Approximate Yield–Final Counts
to be Determined at Preliminary
Plat Phase)
Phase 1 119.83 gross acres+/-600 residential units
Emergency services area
dedication –2 acre s
Regional Sanitary sewer
lift station
Extension of Tahoma Blvd
to the Phase 1 Site and
through Phase 1. Following
issuance of the 599 th
residential occupancy permit,
Developer shall construct and
complete the remaining
segment of Tahoma
Boulevard and connection to
SR 507 prior to issuance of
the eight-hundredth (800 th)
residential occupancy
permit.
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Phase 2 145.70 gross acres+/-650 residential units
Public Park dedication–
10 acres
Water tower and easement
–2 acres
Commercial/mixed-use
tract –4 acres
Extension of Tahoma Blvd
from Phase 1 and through
the final phase of
development and
connection to SR 507.
Phase 3 135.60 gross acres+/-650 residential units
Commercial/mixed-use tract
–6 acres
Extension of Tahoma Blvd
from Phase 1 and through
the final phase of
development and
connection to SR507.
Phase 4 98.51 gross acres+/-400 residential units
Affordable housing parcels
shall be assigned (if not
already completed)
Extension of Tahoma Blvd
from Phase 1 and through
the final phase of
development and connection
to SR507.
Phase 5 146.32 gross acres+/-700 residential units
Extension of Tahoma Blvd
from Phase 1 and through
the final phase of
development and connection
to SR507.
11.The Master Plan identifies, at a minimum, the general location of development areas,
Arterial and Collector public roads, approximate public park dedication area,
sensitive areas and associated buffers, and City of Centralia utility easement. The
Master Plan includes conceptual utility and grading plans for future reference as
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specific entitlement applications proceed. The Master Plan demonstrates that the site
is being developed in an integrated and cohesive manner based on a complete site
delineation of sensitive areas. The Master Plan also shows the Tahoma Boulevard
alignment in its currently planned route offsite from the Property and as
preliminarily designed through the Property.
12.Public Dedication Areas.The City has reviewed the utility and service needs
for the Master Plan and confirms adequate capacity with the proposed water tower,
pond, and well for the anticipated water, sewer, and stormwater demands. The City
has not yet made a determination regarding capacity requirements for emergency
service demands, and that determination is reserved to the City and may be made
following execution of this Agreement.To support these utilities and services,
Developer agrees to dedicate or otherwise set aside from development the following:
approximately two acre s for an emergency services area (Phase 1), approximately
two acres for water tower and treatment area(Phase 2),approximately ten
acres for public park (Phase 2) and areas as needed for Tahoma Boulevard and its
associated improvements (all Phases) (referred to in this Section as the “Public
Dedication Area(s)”). The locations for the Public Dedication Areas as shown on the
Master Plan may be moved only upon written agreement of the City and Developer,
which shall not require further Council approval and shall not be unr easonably
withheld. Considering that the City currently owns the underlying property and
Developer is agreeing to commit certain areas for future public use, the Parties wish
to coordinate on the process for preserving those areas.
a.The Parties agree that Developer will dedicate the land identified on the
Concept Master Plan for each of these Public Dedication Areas as part of
final platting for each Phase, and Division within each Phase if applicable,
assuming final platting is approved after Closing of the given Phase. In the
event Developer has not Closed on the Phase at the time of final plat for
any Phase in which the Public Dedication Area(s) are not otherwise placed
in a separate tract by lot segregation, the final plat shall set forth said public
dedication area(s) as separate lots or tracts and the City shall retain
ownership to public dedication area(s) upon Closing of the Phase under the
PSA.
b.For purposes of the emergency services area, Developer shall ensure that
area is dedicated and available to emergency services upon construction
and dedication of Tahoma Boulevard to the west terminus of Phase 1.
c.With respect to the 10-acre public park area proposed within Phase 2, the
City and Developer agree that a large lot segregation will create a separate
tract over which the City will retain ownership based on agreed property
boundaries for said tract in approximately that location shown on the
Master Plan. However, Developer may adjust the boundaries and location
of such public park area during platting of Phase 2, provided that the full
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ten (10) acres of public park area shall be preserved, in order to reasonably
accommodate other development needs, including but not limited roadway
alignment, location of residential lots, and location of commercial space
anticipated as part of Phase 3.
13.Developer will acquire ownership to the property subject to the easement
benefitting the City of Centralia, Recording Number 221154, as part of Closing on
each Phase. The City will assist in coordination with the City of Centralia for the
proposed road right of way crossings and trail corridor prior to Closing of any
Phase.
14.Each Phase shall have all infrastructure and other mitigation associated with said
Phase constructed or otherwise in place at the time of the first certificate of
occupancy unless otherwise agreed to by the City and Developer as part of each
Project Permit process. However, certificate of occupancy within a Phase shall not
be withheld so long as the public improvements, utilities, stormwater facilities,
mitigation measures, and other infrastructure required to serve the applicable final
plat, lot, or building permit have been installed, bonded, temporarily approved,or
otherwise secured in the manner permitted by vested City standards and the
applicable implementing approval. Infrastructure intended solely to serve later
divisions, later phases, or future off-site system expansion shall not be required as a
condition to issuance of an earlier certificate of occupancy unle ss expressly
identified in this Agreement or the applicable implementing approval.Phased
infrastructure shall be designed and constructed to meet City engineering standards,
as vested herein, for dead end streets and utilities. Bonding for infrastructure shall
be allowed to facilitate final platting. Phases may ultimately be built sequentially or
simultaneously. Accordingly, infrastructure a nd timing of development different
from the Concept Master Plan may be proposed by Developer and processed as a
Minor Amendment under Section 5 of this Agreement, based on the needs and
timing of specific Implementing Projects and technological advancement s.
15.To effectuate phased development and ph ased infrastructure, including
establishment and construction of Tahoma Boulevard, the City understands and
agrees that Developer may require the ability to construct infrastructure or conduct
grading activities, including earthwork, mining and stockpiling, within areas still
owned by the City and outside of any actively developed Phase. The City shall grant
Developer the temporary construction access, license rights, and easement rights
reasonably necessary to perform grading, utility, drainage, roadway, and related
work on City-owned portions of the Property and on City-owned lands needed to
implement approved Project infrastructure. The City shall issue the applicable form
of permissio n within fifteen (15) days a fter receipt of a written request identifying
the work area and proposed activity, provided such work is consistent with an
approved permit, civil plan, or other implementing approval. Such rights shall be
granted at no cost other than mutually agreed thir d-party recording or survey
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expenses.
16.The parties acknowledge that the Master Plan and Phasing sizes and locations are
preliminary and may be changed from time to time based on infrastructure
availability, market conditions, sensitive areas, and other factors, many of which are
beyond the cont rol of the City and Developer. Any such change to Master Plan or
Phasing sizes or locations shall be processed under the Minor or Major Amendment
procedures of Section 5, according to its classification. Developer shall be entitled
to revise the Master Pla n and Phasing from time to time with City approval, subject
to the review processes established by City code, including any applicable Hearing
Examiner and City Council review, so long as the master plan and phasing plan
provide for the development of park s, recreational improvements, the quantity and
type of housing units,and commercial areas as set forth in this Agreement.
Developer shall have the right to make Minor Modifications to the Concept Master
Plan so long as those modifications do not conflict with any conditions of approval
recommended by the Hearing Examiner a nd adopted by the City Council.Any such
Minor Modifications shall be administratively approved by the City, subject to
reasonable conditions that are capable of being accomplished, pursuant to Section 5.
1 7.Commercial. Developer shall construct not less than one hundred fifty thousand
(150,000) gross square feet of commercial, including mixed use,development
within the commercial or mixed use areas designated on the Master Plan. Mixed
use development shall count toward the required one hundred fifty thousand
(150,000) gross square feet only if not less than twenty percent (20%) of the gross
square footage of the mixed-use project consists of non-residential space, excluding
parking and areas primarily serving residential units. Not less than forty percent
(40%) of such commercial development shall be constructed by the completion of
Phase 2, and the remainder shall be constructed by the completion of Phase 3.
Provided, however, that if Developer has not been able, despite commercially
reasonable efforts, to construct the remaining 60 percent (60%)of the required
commercial development by the completion of Phase 3, Developer may satisfy the
requirement by completing pad ready building sites (including providing that
complete infrastructure and utilities are provided to the site in support of
development-ready vertical development) for the required commercial and/or
mixed use development. For purposes of this Agreement, a Phase shall be deemed
complete when certificates of occupancy have been issued for seventy-five percent
(75%) of the dwelling units within that Phase.
1 8.Affordable Housing. Developer shall construct,or coordinate for construction by
an affordable-housing builder for each Phase a minimum of five percent (5%) of
the units in that Phase as affordable units, with a minimum of thirty (30) affordable
units per Phase, affordable to households earning between fifty percent (50%) and
eighty percent (80%) of the area media n income (AMI) for Thurston County.
Developer may defer construction of a Phase’s affordable units only upon a written
15
demonstration to the City that, despite commercially reasonable efforts,
construction financing for the affordable units is not available on commercially
reasonable terms. Any deferral requires the written concurrence of the City
Administrator, shall not e xceed twenty-four (24) months, and shall not reduce the
number of affordable units required. If deferred units are not under construction by
the end of the deferral period,t he City may, in its sole discretion, accept conveyance
of land from the Developer in exchange, in whole or in part, for the Developer’s
obligation to construct affordable housing units. These affordable units shall not
count towards the residential and multifamily units otherwise approved with this
Development Agreement. Developer shall make this conveyance by completion of
Phase 4 subject to the following provisions:
a.Acreage shall be useable for housing construction (i.e. not steep slopes,
wetlands, buffers etc.) and the City shall approve feasibility of the location
for constructing the required minimum number of units. The acreage may
be located in either the residential or commercial portions of the Project.
b.Developer shall be responsible for construction of access, water and sewer,
consistent with vested Development Standards, up to the parcel
boundary(ies)and for all necessary permits and fees associated with the
affordable housing units.The City shall waive utility connection charges
and City controlled impact fees for affordable housing units at or below
seventy percent (70%) of AMI and shall reduce by fifty percent (50%)
those charges and fees for affordable housing units above seventy percent
(70%) and up to eighty percent (80%) of AMI.
c.If the property is conveyed to the City, the City will issue an RFQ/RFP for
potential owner/developers of the affordable housing. Developer, at its
option, can participate in the selection process.
19.Impacts to Public Schools. Developer recognizes the Project will have impacts on
either Rainier or Yelm School Districts as the development occurs. Developer shall
enter into a mitigation agreement with the applicable School District as part of each
Project Phase. Further, pursuan t to the FEIS, it is recognized there may be shortfalls
between revenues generated by the development and the requirement for public
services in the early phases of the project. Provision of services during this period
of time may warrant interim provision s and/or operations funding by the D eveloper
at higher levels than those assumed in the fiscal analysis. The Developer will reach
a “shortfall agreement”, if necessary for public school facilities, to be executed
between the Developer and the applicable school district prior to approval of the
Phase 1 preliminary plat.
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D.STATE ENVIRONMENTAL POLICY ACT(SEPA)
20.Prior SEPA Review.As part of the City’s previous zoning of the Property to MPC,
the City completed a Final Environmental Impact Statement, issued November 25,
2008 (the “FEIS”). That FEIS included comprehensive review of the following
environmental categories:
Aesthetics
Air Quality
Fiscal Analysis
Fish,Wildlife and Habitats
Geology and Soils
Grading,Drainage and Utilities
Infiltration Effects Assessment
Light and Glare
Parks and Recreation
Surface Water Technical Report
Transportation Impact Analysis
Wetlands
No appeals from that environmental review occurred.
21.SEPA Review –Future Phases of Development.At the time of submission of permit
applications for future phases of development of the Property, Developer shall
submit an environmental checklist and any supporting documentation regarding
potential impacts of that phase of the development, except to the extent such impacts
have been previously subjected to environmental review and mitigation as set forth
in this Agreement and the FEIS.
E.PERMIT PROCESSING PROVISIONS
22.Platting of Divisions.Upon approval of the conceptual Master Plan, the City agrees
to process preliminary plat applications for Phases or divisions of Phases in an
expedited manner pursuant to the process set forth herein.
23.Binding Site Plan Process.The City has adopted a binding site plan process under
YMC 18.14.070 for commercial and industrial pads. Said binding site plan process
may be used for residential, commercial or mixed-use development within the
Project.The City agrees to process applications in an expedited manner within the
timeframes established under Chapter 18.10 YMC.
24.Platting Process for Phases Containing Divisions.
a.Preliminary Platting of Divisions. The City agrees to process applications
in an expedited manner within the timeframes established under Chapter
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18.10 YMC. Where any Phase is proposed for preliminary platting by
division, Developer may either submit (i) separate applications for each
division within a Phase, (ii)a single preliminary plat application containing
multiple divisions or (iii) a combination of the foregoing options. For an
application falling under either (ii) or (iii), above, the preliminary plat
approval shall include conditions allowing final plats for each division to
be separately reco rded, subject to any necessary implementing conditions.
b.Final Platting of Divisions. In such event, the first final plat for the first
division shall be recorded within five years of the date of preliminary plat
approval for the Phase. Each final plat for each subsequent division shall
be recorded within two years of the date of the prio r final plat division.
Developer may apply for sequential one-year extensions of the final plat
schedule within thirty (30) days of the deadline to submit the particular
division’s final plat application. The Public Services Director shall grant
such exten sion for good cause, which shall not be unreasonably withheld.
A maximum of 5 extensions may be allowed for each division final plat.
25.Engineering Review; Concurrent Review Allowed; Preliminary Plat Modifications.
The City agrees that Developer may submit engineering plans for review
concurrently with preliminary plat application review for each Phase or division
after the City’s first round of preliminary plat application review comments.
Engineering plan approva l will not be issued before approval of the preliminary plat
but may be issued concurrently therewith. In the event lots approved by preliminary
plat are not desired for final platting and public facilities or services necessary to
serve the plat are subst antively unaffected, the Developer shall be allowed to adjust
individual lot boundaries or reserve said lots within the preliminary plat as future
development or other use tracts during the engineering process and without
requirement for minor modification to the plat. After preliminary plat approval,
minor revisions may be made without triggering Section 5,limited to the lesser of:
(i)a ten (10)percent increase in the number of lots or units; (ii) a change in access
points so long as offsite trip distribution is not materially altered; (iii) a change in
the aggregate area of designated open space that does not decrease the amount of
designated open space by more than five (5) percent, and does not cause Project-
wide designated open space to fall below the twenty percent (20%) minimum; (iv)
any other change which does not substantially alter the character of the approved
preliminary plat. Any reduction of designated open space b eyond the tolerance set
forth in clause (iii) shall be processed as a Major Amendment.
26.Administrative Approvals of Final Plats. While nothing herein shall bind the City to
future legislation,to facilitate the development of the site,the City expresses its
current intent to adopt an administrative final plat approval process prior to the first
final plat within Phase 1 of the Master Plan. In the event of such future legislation,
the City agrees that administrative final plat processes will be applied to final
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platting of each Phase and Division.
27.Final Plat Timelines for Phases and Divisions.Each final plat application shall
include a draft set of Covenants, Conditions and Restrictions for a homeowners’
association to provide controls pursuant to Washington State laws, as may be
amended from time to time. Upon application for a final plat, th e City agrees to
process and schedule said final plat application on the next available City Council
consent agenda within thirty (30) days (consistent with YMC 18.10.090) of complete
application submittal. In the event the City adopts an administrative approval for
final plats, the City agrees to issue a decision on any final plat application within
thirty (30) days (consistent with YMC 18.10.090) of complete application. In the
event the City finds the final plat application is incomplete or inconsistent with any
condition of preliminary plat approval, or otherwise results in a threat to public
health, safety or welfare under RCW 58.17.170 the City shall provide Developer
with a reasonable opportunity to revise the final plat application or otherwise cure
the potential threat prior to denial.
F.TRANSPORTATION IMPROVEMENTS AND ROADWAY STANDARDS
28.Tahoma Boulevard Alignment. The City has planned for the extension of Tahoma
Boulevard between State Route 510 and State Route 507 to address existing an d
future, regional transportation circulation for several years prior to this Agreement.
Pursuant to terms of the PSA, Developer and the City have agreed to the acquisition
and construction of Tahoma Boulevard to extend it from its current terminus through
private property to complete its connection to State Route 507. Developer and the
City have agreed upon a general route to complete this extension. Based on that
agreement, Developer has developed preliminary engineering plans for a
prospective alignment through Phase 5 on which the Concept Master Plan Map
relies. Pursuant to the terms of the PSA, the City and Developer are pursuing further
design work and establishment of necessary and reasonable public right of way. The
Parties recognize that development of the Property depends on Developer securing
funding for the construction of the Tahoma Boulevard and other public
improvements, the public use of the Tahoma Boulevard, and the City’s long-long
term use and acquisition of the Tahoma Boulevard pursuant to the Tahoma
Boulevard Agreement. Costs of such use and acquisition are expected to be paid
through tax allocation revenue collected within a tax increment area formed by the
City under chapter 39.89 RCW. Funding, public use, and transfer of the Tahoma
Boulevard extension and other eligible public improvements shall be governed by
the Tahoma Boulevard Agreement between the City and Developer. The Tahoma
Boulevard Agreement establishes the intent of the City to form the tax increment
area pursuant to chapter 39.89 RCW, to use tax allocation revenue collected within
such tax increment area to acquire the expanded Tahoma Boulevard and related
public improvements, and the public works procurement, prevailing wage, bond, and
retainage requirements applicable to the Tahoma Boulevard expansion and any other
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public improvement s.
Notwithstanding anything to the contrary herein, in the Tacoma Boulevard
Agreement or any other related document, the parties acknowledge that financing
obtained by Developer for construction of the Tahoma Boulevard and other public
improvements shall sole ly be an obligation of the Developer and shall not be
guaranteed by or otherwise an obligation of the City. The parties acknowledge that
the City intends to use tax allocation revenue to acquire the Tahoma Boulevard and
other public improvements if and to the extent such tax allocation revenue is
available for such purpose. The City’s obligation shall not be a debt, shall bear no
interest, does not represent a repayment obligation, and will not be evidenced by a
promissory note, bond or other evidence of indebtedness issued by the City, and no
pledge of City funds, its full faith and credit or its non-voted taxing or debt authority
shall be pledged.
29.Traffic Impact Analysis for Master Plan and Entitlements for Project Phases.
Developer has submitted a traffic analysis memorandum to support the Concept
Master Plan which does not identify any new or increased significant adverse
environmental impact likely to result from development consistent with the Concept
Master Plan. The City has not reviewed or confirmed that conclusion. The City’s
determination under this Section is reserved and may be made following execution
of this Agreement, and nothing in this Section constitutes City concurrence with the
traffic analysis memorandum.
Traffic Impact Analysis for Phases 1 t hrough 5, are addressed below.
30.Tahoma Boulevard Temporary Terminus.
a.The roadway cross-section for Tahoma Boulevard as currently constructed
as part of the Tahoma Terra development has sufficient capacity to
accommodate traffic from Phases 1 and 2 of the Project. The boulevard
design with a separated landscape median results in a greater factor of safety
for purposes of emergency se rvices by providing two routes of travel.
b.Developer has conducted a traffic analysis report related to anticipated traffic
impacts resulting from up to 1,320 residential units anticipated for Phases 1
and 2 of the Project. Given the staged construction of Tahoma Boulevard for
each Phase, the City has considered the potential impacts of issuing
certificates of occupancy based on a separated boulevard design and agrees
it is reasonable to issue the foregoing number of certificates of occupancy
for Phases 1 and 2.
c.Developer shall then construct secondary access to serve future Phases of the
Project, whether that be through extension of Tahoma Boulevard to connect
to State Route 507 or alternative secondary access that is approved by the
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City at that time, which may also take into account temporary access for fire
and life safety purposes.
31.Traffic Impact Analysis for Phases 1 and 2. The Developer has submitted traffic
impact analyses for Phases 1 and 2 and the City’s review of those analyses has not
been completed. The Parties acknowledge that the City’s confirmation and related
decisions under this Section are reserved to the City and may follow the execution
of the Agreement.
32.Traffic Impact Analysis for Phases 3-5.
a.For Phases 3 through 5, D eveloper shall submit a traffic impact analysis
as part of the entitlement application for each Phase, based on the scoping
parameters set forth in this Section. The traffic analysis for each future
phase shall be established through a traffic scoping process with the City to
address the following study intersections:
i.Burnett Rd/ Yelm Ave(SR 510)
ii.93 rd Ave/Yelm Ave(SR 510)
iii.Mountain View Road/Yelm Ave(SR 510)
iv.Killion Rd/Yelm Ave(SR 510)
v.Cullens Rd/Yelm Ave(SR 510)
vi.Longmire St/Yelm Ave(SR 510)
vii.Edwards St SW/Yelm Ave(SR 510)
viii.First St S(SR 507)/Yelm Ave(SR 510)
ix.First St S(SR 507)/Mosman Ave SE
x.SR 507 /Mill Road
xi.Tornado Alley/Tahoma Blvd
a.The City and Developer will agree upon adjustments to the traffic
forecasts at study intersections related to timing and completion of the
North Yelm Loop.
b.A future horizon year consistent with the anticipated buildout of each
Phase shall be established in traffic scoping with the City.
c.An assumption regarding a growth rate for background traffic shall be
mutually agreed upon by Developer and the City through traffic
scoping.
d.Following submission of each traffic impact analysis, the City shall
have the TIA report peer reviewed by the City’s traffic consultant. Any
discrepancies between the traffic impact analysis and the peer review
shall be resolved by mutual agreement of the City and Developer in a
final traffic report. The final report shall serve as the basis for all SEPA
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review of traffic impacts of development of the Phase on offsite
intersections and for mitigation of such impacts.
33.Impact Mitigation for Intersections.
a.Developer proposes that, f or Phases 1 and 2, payment of the transportation
impact fees identified in Exhibit B and completion of the signal timing or
striping modifications identified through the City’s review of the traffic
impact analyses for Phases 1 and 2 constitute Developer's sole off-site
transportation mitigation obligation.The City has not confirmed this
proposal; confirmation, modification, or rejection is reserved to the City
upon completion of its review of the traffic impact analyses for Phases 1
and 2, which the Parties acknowledge may occur following execution of
this Agreement.
b.For Phases 3 through 5, any off-site transportation mitigation not already
funded through adopted impact fees shall be limited to Developer's
proportionate-share impact, calculated by the mutually approved final
traffic impact analysis for the applicable P hase using the trip generation,
trip distribution/assignment, background growth, and horizon-year
assumptions established during written traffic scoping.
c.Under no circumstance shall Developer be required to fund correction of
existing deficiencies or future system improvements beyond its
proportionate share.
d.Any required Developer-funded off-site improvement shall be subject to a
dollar cap equal to Developer's proportionate share as shown in the final
approved traffic analysis, and all eligible design,right-of-way,permitting,
and construction costs shall be credited automatically against transportation
impact fees otherwise due for the Project, with any excess credited or
waived against other fees otherwise due for the Project or carried forward
as a transferable pr oject credit.
e.For those intersections identified in a TIA which are projected to fall below
the LOS established by the Comprehensive Plan without impacts from a
Developer Project Phase, and which require improvements not listed in the
Yelm CIP (and therefore not include d in the transportation impact fees),
the City and Developer shall agree upon a proportionate share contribution
that would reasonably provide financial mitigation for the Project Phase
impacts without delay to the Project Phase or otherwise imposing a
req uirement that Developer fully resolve the LOS failure.
f.For those intersections identified in a TIA which are projected to fall below
the LOS established by the Comprehensive Plan as the result of the given
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Phase, and which require improvements not listed in the Yelm CIP (and
therefore not included in the transportation impact fees), the following shall
apply:
i.The City shall determine whether the improvement needed to
meet City-adopted LOS is a system-improvement necessary to
accommodate regional future traffic growth, or a direct and
proportionate impact of the given Phase.
ii.The City shall determine whether to add the improvement
required to bring the intersection or roadway into compliance
with City LOS standards to the City’s transportation plan and
transportation impact fee funded list or require Developer to
construct the improvements.
iii.If the City determines that Developer must construct the
improvement, Developer shall receive full credit against
transportation impact fees from the City. In the event the
Developer constructs any improvement pursuant to this
Agreement, the City agrees Developer shall be entitled to a
latecomer agreement as provided for under Washington State
laws. Eligible costs for credit against transportation impac t fees,
reimbursement and latecomer agreement include design,
engineering, permitting, and construction costs, the costs of
right-of-way acquisition and the value of property dedication
required for construction of the improvements, and any actual
management and contingency costs. Developer shall maintain
accurate records of all costs and payments eligible for such
credit and shall segregate costs associated with offsite
improvements and costs associated with the three-quarter (¾)
street frontage improvements abutting the Developer Property.
Such records shall be provided to the City in support of an
application by Developer for such transportation impact fee
credits. Credits may be applied against transportation impact
fees for all phases of the Developer development,but in no event
shall the total impact fee credits for transportation improvements
awarded pursuant to this Agreement exceed the total amount of
standard and supplemental transportation impact fees owing by
Developer for its development.
iv.If the City determines that the right of way required to construct
the improvement is not available, Developer shall be given the
option of paying a fee in lieu of construction in the amount of
Developer’s share of the cost of the improvement or reducing
the amount of any pending credit against transportation im pact
23
fees in the amount of Developer’s share of the cost of the
improvement.
G.SENSITIVE AREAS
34.Sensitive Areas Study and Native Growth Protection Area. Developer has submitted
a sensitive areas study in support of the Concept Master Plan. Therein, the biologist
has completed a delineation of all wetlands located on site and concluded there are
no streams on site. The report further establishes buffers f or each onsite wetland.
This study is considered the final report for purposes of the Master Plan, this
Agreement and Phase 1 of the Project. The final report shall further serve as the basis
for review of sensitive area impacts of development of the Prope rty through all
remaining Phases. Based on the Master Plan wetland delineation, Developer shall
develop a native grown protection area map which shall be reviewed and approved
by the City, recorded against the Property and bind all development to the recor ded
critical areas and their buffers for purposes of future entitlement for all Phases so
long as developed consistent with the terms of this Agreement. To the extent
Developer proposes any wetland or wetland buffer modifications,alterations or fill,
the City reserves the authority to require further critical areas evaluation to comply
with chapter 18.21, YMC, as vested to herein.
35.Sensitive Area Alterations and Mitigations.Developer shall have the option to
propose sensitive alterations, buffer reductions, buffer averaging and to use other
mitigation techniques in accordance with the provisions of Chapter 18.21 YMC.
H.STORMWATER;SEWER;DOMESTIC WATER.
36.Stormwater System Design. The City and Developer agree upon the following
adjustments to the City of Yelm Engineering Specifications and Standard Details
(ESSD):
a.No retention/detention facility shall be located within an area that is used to
satisfy an open space requirement unless it is approved during Site Plan
Review. ESSD 3.00.020 Part A. In the event trails or other active recreation
is planned on or around retention/detention facilities,Developer shall
receive a credit toward open space requirements for any such amenities and
such use shall be counted toward the twenty percent (20%) open space
estimation.
b.The maximum depth of an infiltration facility (including but not limited to
bioretention, infiltration pond, vaults) shall be seven feet from the bottom
of the facility to the top of the facility or side slope. This depth will account
for six feet of pondi ng depth and one foot of freeboard. Reference: 2024
Department of Ecology Manual, BMP 17.10. Infiltration facilities shall be
designed with a minimum 3:1 side slopes, and if over four-point-five (4.5)
24
of ponding depth, a three-foot wide bench shall be provided halfway down
the slope or a fence shall be installed around the entirety of the facility.
c.The stormwater from individual lots (roof and footing drains) may be
collected and conveyed with six-inch pipes and cleanouts and connect
directly to catch basins within the Right-Of-Way. Up to six individual lots
may share one six-inch pipe connection to a single catch basin in the Right-
Of-Way.
d.On-lot infiltration is anticipated for portions of the Project depending on site
conditions. The design and location of the infiltration systems, including
setbacks, will be determined by a licensed geotechnical engineer and will be
specific to the site and lot conditions in each case. This will allow the
Developer to minimize the size and impact of the trenches while still
delivering a system that is appropriately designed for the application based
on lot size,lot grade,soil type,and like considerations.
e.The City will consider measures to address flow control needs of the Project
and hydrology based on site conditions, wetland ratings and available
stormwater management practices, such as dispersion devices based upon
review of Developer’s civil engineer a nd biologist.
f.All stormwater facilities (infiltration, detention and retention facilities)
located on public property shall be owned and maintained by the City of
Yelm. Private facilities on private lots, if used, will be owned and maintained
by the homeowner. EDDS, Sec tion 3.00.100.
g.Stormwater facilities shall be designed to accommodate the lot coverage
assumptions. Impervious surface on private lots that exceeds the lot coverage
assumptions may be managed by private facilities on the lot they serve.
h.Stormwater facilities may be designed and constructed to serve multiple
phases of the Project. Facilities constructed as part of an earlier phase may
be expanded, modified, or supplemented to accommodate runoff from
subsequent phases.
i.Stormwater facilities approved and constructed under prior phase approvals
shall be deemed compliant with the stormwater regulations in effect at the
time of their approval and shall not be required to be retroactively modified
to meet subsequently adopted stormwater regulations, provided that the
originally approved treatment and detention volumes for such prior phases
are preserved.
j.In the event a stormwater facility is expanded or modified to serve additional
phases, only the incremental improvements necessary to accommodate
runoff from the new phase(s) shall be required to comply with the stormwater
regulations in effect at the time of application for the subsequent phase. The
previously approved and constructed portions of the facility shall not be
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subject to re-evaluation or upgrade to current standards, except as necessary
to ensure that:
i.The total required stormwater volumes (existing and new) are fully
provided,
ii.The functionality and performance of the overall facility are not
materially impaired, and
iii.The expanded facility meets current standards solely with respect to
the additional contributing area.
iv.Nothing herein shall be construed to waive the requirement that the
combined system, as expanded, provides the total required
stormwater management for all contributing phases.
37.Sewer Lift Station Design. Developer has provided initial design for a gravity flow
system, combined with lift stations, for sewer service across the Project as part of
its Concept Master Plan. The City concurs with this design approach and has
received final approval from the Was hington State Department of Ecology.
a.In the event the City does not have standard details for sewer appurtenances
related to gravity sewer, WSDOT standards shall be followed.Details
provided by engineer of record or manufacturer shall also be acceptable.
b.The City has confirmed sewer capacity for serving the Project for the
following number of ERUs based on the following capacity measurements
assuming detached and attached residential, up to approximately two
hundred and forty (240) apartments, up to thirty thousand (30,000) square
feet of commercial development, and all public dedication areas as
improved:
ESTIMATED WATER & WASTEWATER DEMAND
Detached Multifamily
Commercial Residential Commercial Park Total
Phase Residential Residential
SF ERUs ERUs ERU ERU
Units Units s s
1 600 0 0 600 0 0 600
2 650 0 0 650 0 5 655
3 650 240 30,000 842 36 0 878
4 400 0 0 400 0 0 400
5 700 0 0 700 0 0 700
Total 3,000 240 30,000 3,192 36 5 3,233
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38.Reclaimed Water. Developer has provided a reclaimed water design for the Concept
Master Plan. The design extends reclaimed water along the Tahoma Boulevard
through a twelve-inch main and provide loops therefrom in a smaller pipe size to
provide reclaimed water to be used for irrigation purposes in open spaces.
39.Utility Separation and Cover. A five-foot (5’) separation horizontally between all
non-potable utilities (such as sewer, storm, and reclaimed water) shall be allowed.
A horizontal separation of ten-feet (10’) between potable water and non-potable
utilities shall be met to the extent feasible. Where infeasible, alternate measures
may be allowed, such as encasing the potable water, enhancing of pipe materials,
or placement of the utilities in separate trenches, as allowed by the Washington
State Department of Ecology “Orange Book”formally Criteria for Sewage Works
Design.
Vertical separation between non-potable utilities shall be a minimum of 6”. Vertical
separations between non-potable and potable water, developer may request an
adjustment to vertical utility separations (eighteen inches (18”) minimum), by
providing altern ative safety measures. For example, six inch (6”) vertical separation
with a casing or controlled density fill, throughout the Project or on a Phased or
Division basis based upon reasonable justification, which may include economic or
site design considera tions to allow for development yield objectives to be met.
ESSD 4.00.150. Minimum and maximum cover over pipes may be adjusted to
allow for maximum serviceability of the overall site.
40.Emergency Services. Developer shall dedicate a minimum of two acre s for City use
for emergency services use which shall be located at a location to be determined by
Developer but contained within Phase 1,located within the western area of Phase 1
so as to be centrally located to the Project and readily accessible to future Phases.
Developer shall provide such dedication with the final plat of Phase 1, Division 2,
consistent with Section 1 2.
41.Domestic Water and Water Tower. City has confirmed there is sufficient water
rights, capacity and pressure to serve the Project, assuming construction of a water
tower, pond and well. City will design and construct the water tower, pond and well
based on the following funding parameters and for service to the Project upon
issuance of the 500 th building permit. City will assume the first four million dollars
in costs to allow for up front design and construction. City will fund the following
two million dollars in construction costs from Water System Development Charges
paid by the first 250 building permits in Phase 1. Developer will construct booster
pumps for Phase 1 buildout as may be necessary, depending on City’s construction
schedule. In the event reasonable construction costs exceed six million dollars,
Developer will pay for up to two million dollars in actual costs and will be
subsequently credited its Water System Development Charges on a per permit basis.
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Thereafter City shall collect Water System Development Charges on a per permit
basis for the remainder of the project. If construction is delayed, all Developer
deadlines and performance obligations dependent upon water service availability
shall be automatically extended for the duration of the delay, and Developer s hall
not be deemed in default by reason of such delay.
42.Latecomers Agreements (Water; Sewer). In the event Developer constructs water
and/sewer from the current terminus of Tahoma Boulevard to the Project which
infrastructure is not otherwise funded, Developer shall be entitled to a latecomer
agreement for a duration of not exceeding fifteen(15)years pursuant to YMC
13.12.010.
43.Site Grading. To achieve site-wide mass balance, the Developer shall be permitted
to conduct grading, excavation (borrow), and/or stockpiling activities within areas
of the Project site that are located outside the limits of the phase under active
construction (“Off-Phase Areas”), including within future phases, provided that
borrow and stockpiling activities shall be conducted only on portions of the
Property that Developer has purchased and closed on under the PSA or that are
subject to a written lease, easement or other license between the City and
Developer. Borrow areas and stockpile locations shall be identified on the approved
civil plans, including associated limits of disturbance, clearing, grading, and
erosion and sediment control measures in accordance with applicable Cit y
standards and permits. The City acknowledges that field conditions may necessitate
adjustments to the location, configuration, and extent of such borrow and stockpile
areas. Accordingly, the Developer shall be permitted to modify these areas in the
field, provided that:
Such modifications are consistent with the overall intent of the approved
plans,
Appropriate erosion and sediment control measures are implemented
and maintained, and
The modifications are documented and submitted to the City as part of
record drawings and/or through applicable field revision or inspection
processes, as determined by the City.
No additional discretionary approvals shall be required for such
adjustments, provided the work remains within the Project boundaries and
complies with applicable grading, drainage, and environmental regulations.
All disturbed Off-Phase Areas shall be stabilized in accordance with City
standards and permit requirements until such time as they are developed
under a subsequent phase.
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Grading within on-site slopes identified as geologically hazardous areas may be
permitted when supported by a geotechnical report prepared by the Project
geotechnical engineer. Such areas may be regraded, stabilized, and improved as
engineered slopes in ac cordance with the geotechnical recommendations,provided
that the design demonstrates long-term stability.
Where a geologically hazardous area is regraded and constructed as an engineered
slope in accordance with an approved geotechnical design, the associated geologic
hazard buffer may be reduced or eliminated, as appropriate, provided that:
The geotechnical report demonstrates that the regraded slope achieves a factor
of safety and performance standard consistent with or exceeding applicable
code requirements,
The need for the buffer is mitigated through engineering design, including slope
geometry, reinforcement, drainage controls, and erosion protection measures,
and
The City concurs that the engineered condition no longer warrants the full
extent of the standard buffer.
Any modified or eliminated buffer shall not be required to be re-established in
future phases,provided the engineered slope remains in place and continues to
perform as designed.
44.Road Standards.Developer and the City will, to the extent feasible, work to modify
applicable road standards in order to implement low impact development techniques.
Such techniques may require deviations from road standards, which will be
considered through the City’s road standards variance process.
45.Tahoma Boulevard Road Standard.The improvements to Tahoma Boulevard shall
be constructed in accordance with the City of Yelm Engineering Development
Design Standards (“EDDS”), as shown on Exhibit C(excerpted roadway standards)
and except as specifically agreed to per modified Tahoma Boulevard roadway
section, as shown on Exhibit D.
46.Internal Road Standards.The improvements to these roads, alleys and access tracts
shall be constructed in accordance with the EDDS, as shown on Exhibit E
(excerpted roadway standards) and except as specifically agreed to below:
a.Developer shall be allowed adjustments and/or deviations from the adopted
minimum street design standards including but not limited to road grades,
right of way widths, and curb radius, which shall be subject to City approval
that shall not be unreasonably withheld and may be conditioned on
reasonable requirements.
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b.All road section details that have a varying buffer, which is noted “to be
determined by the City Engineer”, shall be zero (0).
c.City Curb ramp detail 2-12 is not compliant with current ADA and
PROWAG standards, WSDOT curb ramps shall be sure for the site.
d.Alley standards.Alleys shall be utilized for rear loaded product and follow
the standards below
i.Alleys shall be twenty(20)feet wide and accepted as public
roadways.
ii.Alleys maybe be inverted crown or supered to one side as
demonstrated on Exhibit F.
iii.Alleys shall include stormwater collection conveyance. While other
utilities are not anticipated to be placed in Alleys,developer
reserves the right to run any other utility necessary to serve to units
within the alley such that utility separations, as provided herein,
and appropriate easements are provided.
e.Developer shall be entitled to construct three-quarter (¾) street
improvements (including sidewalks and landscaping on one side of the road
and two travel lanes) where any roadway is bifurcated between Phases,
Divisions or property boundaries. The City wil l review any such proposed
three-quarter (¾) street improvement on a case-by-case basis to apply
reasonable conditions regarding adequate and safe transportation of
vehicles and pedestrians, and for future full street construction where a
three-quarter (¾)street exists along a Phase or Division boundary.
f.On Street Parking.On street parking is allowed on all internal roads except
along Tahoma Boulevard and collector roads which interconnect Phases
and Tahoma Boulevard. Developer may use a local street standard cross-
section for any collector (same overall ROW) where alley-lo aded
residential product lines both sides of the fronting roadway.
g.Off street Parking. Off-street parking may be provided in private driveways,
garages or off-street parking lots.Driveway parking shall be
8.5 feet wide by 20 feet deep,min.
h.Street Corners. Given the Project development as a Master Plan, the City
agrees that site planning for individual entitlement applications need not
meet the provisions set forth in YMC 18.59.060 for purposes of single
family and townhome residential units.
i.Contractor shall be allowed to use onsite suitable materials for subbase in
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lieu of import gravel base. Geotechnical engineer shall review on site
materials and compaction must still be met.
47.Deviations or Adjustments from Engineering Standards.Developer may require
certain engineering standard and specification deviations or adjustments to
accommodate development as anticipated under the Concept Master Plan. The
parties have attempted herein to list those potential areas of deviation or adjustm ent
that could be needed but recognize that it is impossible to anticipate any or all
necessary requests. The City agrees to accept and process any deviation or
adjustment request and provide a decision within thirty (30) days, absent extenuating
circumstances. The City shall review each such request in its reasonable discretion
and may approve, approve with reasonable conditions, or deny the request based on
sound engineering judgment, consistency with the Concept Master Plan, a nd
compliance with the applicable provisions of the YMC and this Agreement. In the
event of disagreement over any City decision, the City shall provide a written
decision with administrative appeal opportunity to the City’s Hearing Examiner to
be resolved on an expedited basis as provided for in Section 6.
I.PARKS,RECREATION,OPEN SPACE,AND PEDESTRIAN
CONNECTIONS
48.Parks and Recreation. At least one public park of a minimum size of 10 acres shall
dedicated, or otherwise set aside and retained in City ownership, as part of Phase 2
of the Project,unless otherwise agreed in writing by the City.The 10-acre public
park dedication space shall be situated so that it is located centrally to all phases at
the location depicted and amenities outlined on the Concept Master Plan or similar
location which serves the equivalent purposes and approved by the City
Administrator pursuant to Section 5. The purpose of the public park is to serve as a
focal point and organizing element for Project,including both the
commercial/mixed-use area and residential neighborhoods for their use and
enjoyment. The City recognizes that the value of this dedication was bargained for
with the PSA and constitutes Developer’s reasonable contribution towards park
impacts of the Project. Developer shall propose, fund, and construct the park
amenities, including but not limited to amenities supporting events and recreational
open space or play area(s)up to a total cost of two million dollars, which amount
shall be adjusted annually on each anniversary of the Effective Date by the
percentage change in the Consumer Price Index for All Urban Consumers (CPI-U)
for the Seattle-Tacoma-Bellevue area published by the United States Bureau of
Labor Stati stics.The park improvements shall be completed as of Phase 3
completion (defined above as 75% occupancy).
49.Open Space. Inclusive of the above park area, Developer agrees to set aside at least
twenty percent (20%) of the total site area to a combination of public and private,
active and passive, open spaces. This calculation is based on a Project-wide basis;
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each Phase will have varying amounts of open space depending on the phase
characteristics, development layout and location of critical areas. These open spaces
include public park area(s), community meeting spaces, event spaces, trails, private
parks (incl uding pocket parks), critical areas and buffers. Stormwater ponds are not
counted toward open space calculations however activated spaces around ponds
and/or over stormwater vaults would count toward open space calculations. At least
one active open space area will be located within every division of a Phase.Pocket
parks are to be owned and maintained by the Phase and Division homeowner
association. Active open spaces shall include, but not be limited to the following
outside privately owned yards:
(i)Playgrounds developed with children’s play equipment;
(ii)Improved pedestrian or bicycle paths with hard or soft surfaces;
(iii)Sports fields with associated improvements;
(iv)Indoor or outdoor sports courts(such as volleyball,basketball or
tennis courts), swimming pools, and similar facilities;
(v)Picnic areas with permanent tables,benches or gazebos;
(vi)Community clubhouse and meeting facilities;
(vii)Community gardens for use by the residents;
(viii)Plazas with lighting,artwork,and sitting space for pedestrians
(ix)Outdoor exercise facilities and courses
(x)Pet relief strips and play areas;and
(xi)Other similar uses.
50.Pedestrian Connectivity.
a.There shall be pedestrian and visual connectivity between Phases and
Divisions.
b.Sidewalks may be utilized as pedestrian connections between parks in
addition to unpaved trail systems.
c.A mix of paved and soft-surface trails and paths will be provided throughout
the site for interconnectivity of open spaces, parks and amenities. Options
for trails include wood chip/hog fuel, compacted soils, gravel, asphalt and
concrete. Trail materials will be based on use and site design. Trail sections
are provided in Exhibit G. Sections are provided in concept only and
materials, width, and design of trails may differ from shown.
d.To the extent that adjacent phases or properties are currently undeveloped,
temporary barricades shall be installed at the ends of the pedestrian
connections in order to discourage unauthorized or unsafe access onto such
other properties.
e.Those trails and paths which are paved shall comply with applicable ADA
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requirements in accordance with applicable law.
J.MISCELLANEOUS
51.Construction.The requirements of this Agreement are intended to complement and
expand on the requirements in the City of Yelm Municipal Code. To the extent that
a conflict exists between this Agreement and the YMC, the terms of this Agreement
shall control. The City an d Developer shall cooperate in good faith and in a spirit
of cooperation and fair dealing in the interpretation and application of the terms of
this Agreement.
52.Parties and Authority.The signatories to this Agreement represent that they have
the full authority of their respective entities to commit to all terms of this Agreement,
to perform the obligations hereunder and to execute the same.A memorandum of
this Agreement shall be recorded and a complete copy kept at Yelm City Hall and
made available to anyone requesting review or a copy consistent with the
Washington State Public Records Act.
53.Transfer of Obligations and Assignments.
a.Assignment of Interest After Closing. Developer shall have the right to
assign or transfer all or any portion of its interests, rights, obligations, or
responsibilities under this Agreement to third parties acquiring an interest in
any portion of the Prope rty that Developer has closed on under the PSA.
b.Assignment of Interest Prior to Closing. Prior to entitlement of any Phase of
the Project, Developer shall be entitled to assign its interest subject to the
terms of the PSA.Developer may assign all or any portion of its rights and
obligations under this Agreement, whether to an affiliate, merchant builder,
parcel taker, financing entity, or other successor in interest, upon written
notice to the City together with an assumption agreement executed by the
assignee. City consent, not unreasonably withheld, shall be required for any
assignment of rights or obligations relating to an unbuilt Phase or to Project-
wide infrastructure. The assigning Developer’s release from liability with
respect t o the transferred property shall take effect only upon a written
assumption agreement and the City’s written confirmation of the assignee’s
capacity to perform. City consent shall not be required for assignments to
affiliates or for transfers of lots,tracts,divisions,or phases to builders or
purchasers that assume the applicable obligations for the transferred
property. Upon effectiveness of any assignment and assumption, assigning
Developer shall be released from liability for obligations first arising after
the effectiv e date of assignment with respect to the transferred property,
except for obligations expressly retained in writing.
c.No Creation of Master Developer Relationship. Under no circumstance will
assignment create a Master Developer relationship under this Agreement.
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54.Voluntary Agreement.The Parties intend and acknowledge that this Agreement is
a voluntary contract binding upon the Parties hereto, as well as their successors and
assigns.
55.Amendment of Agreement This Agreement may be amended only by a written
instrument executed by Developer and approved by the City in the manner required
for the particular amendment classification under Section 5 of this Agreement.
56.Applicable Law and Venue.This Agreement is entered into under the laws of the
State of Washington, and the Parties intend that Washington state law shall apply to
interpretation of this Agreement. Venue and jurisdiction to enforce all obligations
under this Agreement shall lie in Thurston County Superior Court.
57.Default. No party shall be in default under this Agreement unless it has failed to
perform as required under this Agreement for a period of thirty (30) days after
written notice of default from the other party. Each notice of default shall specify
the nature of t he alleged default and the manner by which the default may be cured
satisfactorily. If the nature of the alleged default is such that it cannot be cured within
the thirty (30) day period, then commencement of the cure within such time period
and the diligent prosecution to completion of the cure activities shall be deemed a
cure. Any disputes under this section shall be resolved pursuant to the Dispute
Resolution terms herein.
58.Dispute Resolution. In the event of any dispute between the City and Developer
arising from this Agreement, including but not limited to deadlines, duties of parties,
material breach, or damages but excluding determinations made under Sections 5
and 6, the parties will firs t attempt to resolve the dispute informally. If informal
resolution fails, the Parties shall participate in good-faith, non-binding mediation. If
mediation does not resolve the dispute, either party may bring an action in Thurston
County Superior Court. Th e Parties may, only by separate written agreement entered
after a dispute arises, submit that dispute to binding arbitration; no dispute
concerning land use regulations, public dedications, or other matters of public law
shall be subject to mandatory or bi nding arbitration. The parties shall attempt to
agree on a mutually acceptable mediator during the next thirty days.If agreement
is not reached within such time period,either party may request that the Presiding
Judge of the Thurston County Superior Court appoints an arbitrator. The arbitration
shall be conducted pursuant to the Rules of the American Arbitration Association,
regardless of whether the arbitrator is a member of that Association. The arbitrator’s
fee shall be divided equally between the parties, provi ded the arbitrator shall award
costs,including the arbitrator’s fee,to the prevailing party if the arbitrator determines
that a party has pursued claims in bad faith or claims which are frivolous. This
section shall not apply to any action subject to Section 6, above.
59.Attorneys’ Fees and Costs.In any arbitration or judicial action to enforce or
34
determine a party's rights under this Agreement, the prevailing party (or the
substantially prevailing party, if no one party prevails entirely) shall be entitled to
reasonable attorneys' fees and costs, including fees and costs incurred in the appeal
of a ny ruling of a lower court. In the event of litigation or arbitration between the
parties hereto, declaratory or otherwise, in connection with this Agreement, the
prevailing party shall recover its reasonable costs and attorneys' fees actually
incurred, in cluding for appeals, which shall be determined and fixed by the court or
arbitrator as part of the judgment, provided the parties hereby agree that the amounts
actually charged to the parties by their respective counsel shall be presumed to be
reasonable by any court or arbitrator and shall not be reduced or increased unless the
court or arbitrator specifically finds that the rates for such legal work were
unreasonable or that some portion of the legal work was unnecessary or performed
without justification.
60.Severability.If any term or provision of this Agreement, or its applicability to a
particular situation, is found to be invalid, void or unenforceable by a court of
competent jurisdiction, then the remaining provisions of this Agreement shall
continue in full force and effect unless and to the extent the remaining provisions, if
implemented, would be inconsistent with or otherwise fail to carry out the mutual
intent of the Parties.
61.Mutual Drafting and Construction.The Parties agree that both Parties participated
fully in the negotiation and drafting of this Agreement and the rules of construction
of ambiguities against the drafter shall not apply to either Party. The Parties
acknowledge that all placeholders, drafting notes, bracketed alternatives, and
incomplete exhibit references shall be removed and finalized before execution of the
Agreement.
62.No Third Party Beneficiaries.Except and only as may be set forth explicitly herein,
nothing in this Agreement is intended to create any third-party beneficiary
relationship whatsoever, nor any right of a third party to appeal or otherwise demand
interpretation or dispute resolution un der this Agreement.
63.No Joint Venture.Nothing in this Agreement is intended to create any type of joint
venture or partner relationship between the City and Developer as to the Property or
its development.
64.Binding; Successors and Assigns.The terms of this Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the Parties hereto.
This Agreement runs with the land and does not operate to limit or expand the
rights of any Party to assign its interests.
65.Notices. All notices required or permitted under this Agreement shall be in writing
and shall be deemed given when personally delivered, when sent by electronic mail
with confirmation of receipt, or three (3) business days after deposit in the United
35
States mail, postage prepaid, registered or certified, return receipt requested,
addressed to the Parties below, or to such other address as a Party may designate by
written notice to the other. Nothing in this Section modifies or replaces notice
requirements applicable to Project Permit applications or approvals under the Yelm
Municipal Code or state law, which are governed by those provisions.
To the City:
To the Developer:
Blue Fern Development
18300 Redmond Way, Suite 120
Redmond, WA 98052
Attn: Benjamin Paulus
Email: ben@bluefern.com
Phone: (360) 708-9130
with a copy to:
Blue Fern Development
18300 Redmond Way, Suite 120
Redmond, WA 98052
Attn: Duana Kolouskova
Email: duana@bluefern.com
Phone: (206) 200-8986
66.Entire Agreement. This Agreement, together with the Exhibits attached hereto,
constitutes the entire agreement between the Parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings relating to that subject matter, provided that this Agreement does not
supersede, and shall be read together with, the Purchase and Sale Agreement and the
Tahoma Boulevard Agreement between the Parties.
67.Recording. This Agreement shall be recorded by the City with the Thurston County
Auditor in accordance with RCW 36.70B.190 and shall run with the Property as
provided in this Agreement.
68.Incorporation by Reference. All Exhibits and appendices attached to this Agreement
are incorporated by reference as though fully set forth herein.
69.Waiver. The waiver by either Party of the performance of any covenant, condition,
or promise under this Agreement shall not invalidate this Agreement, nor shall it be
considered a waiver of any other covenant, condition, or promise. No waiver shall
be effective unless in writing and signed by the Party against whom it is asserted,
36
and the exercise of any remedy provided by law or under this Agreement shall not
exclude any other consistent remedy.
70.Time is of the Essence. Time is of the essence of this Agreement and of each
provision in which the time of performance is a factor.
71.Compliance with Laws. Throughout the Term, and subject to the vesting and other
provisions of this Agreement, Developer shall, at its sole cost and expense, comply
with all applicable laws and ordinances as they relate to the Property and the Project.
To the extent Developer's compliance requires the cooperation of the City, the City
shall use reasonable efforts to cooperate.
72.Indemnification. To the maximum extent permitted by law, Developer shall defend,
indemnify, and hold harmless the City and its officers, officials, employees, and
agents from and against any and all claims, actions, suits, liabilities, losses, costs,
and expenses, includ ing reasonable attorneys' fees, arising out of or resulting from
(a) Developer's performance of, or failure to perform, its obligations under this
Agreement; (b) Developer's design or construction of any public or private
improvements contemplated by this Agreement, or Developer's activities on City-
owned property during phased development; and (c) any third-party challenge to the
validity of this Agreement or to any approval granted by the City under it, including
any petition under Chapter 36.70C RCW, pro vided the City promptly tenders the
defense and reasonably cooperates. This indemnity does not extend to claims caused
by the sole negligence or willful misconduct of the City, is in addition to and not in
limitation of any indemnity in the Purchase and Sa le Agreement, and shall survive
the expiration or termination of this Agreement
73.Survival.The following provisions of this Agreement, and any other provision that
by its nature is intended to survive, shall survive the expiration or termination of this
Agreement: the Dispute Resolution provisions; the Indemnification provisions; the
Attorneys'Fees and Costs provisions; the cost allocation upon lapse set forth in
Section 1; the continuation of vesting for any preliminary plat not yet final platted
and its associated Project Permits as provided in Section 3; the No Third Party
Beneficiaries prov ision; the Applicable Law and Venue provision; the Recording
provision; the rights and obligations of the Parties under the Tahoma Boulevard
Agreement; and any accrued payment, reimbursement, or indemnification
obligations, or other matters necessarily involving material rights or obligations
necessarily extending beyond the expiration of any Term of this Agreement or the
termination hereof.
74.Exculpation. Notwithstanding any other provision of this Agreement, there shall be
no personal liability on the part of any individual officer, official, employee, or
director of the City or the Developer with respect to any of the obligations, terms,
covenants, or c onditions of this Agreement, and each Party shall look solely to the
37
other Party, or to any assignee or successor in interest, for the satisfaction of any
remedy available in the event of a breach by the other Party.
75.Counterparts.This Agreement may be executed in counterparts.
Dated as of the day and year first above written.
[signatures on next page]
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CITY OF YELM
Attested by:
By
Joseph DePinto,Mayor,City Clerk
Approved as to form:
Brent Dille, City Attorney
Date:,2026.
STATE OF WASHINGTON)
)ss.
COUNTY OF THURSTON)
I hereby certify that I know or have satisfactory evidence that Joseph DePinto is the Mayor
of the City of Yelm, a Washington municipal corporation, and is the person who appeared
before me, and acknowledged that he signed this instrument on behalf of such City,on oath
stated that he was authorized to execute the instrument and acknowledged it as the free and
voluntary act of such City for the uses and purposes mentioned in this instrument.
DATED: .
Notary Seal
_
(Print Name)
Notary Public
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Residing at
My appointment expires:
40
YELM MPC,LLC,a Washington limited
liability company
By
Ben Paulus, its President
Date: ,2026.
STATE OF WASHINGTON)
)ss.
COUNTY OF THURSTON)
I hereby certify that I know or have satisfactory evidence that Ben Paulus is the President
of Yelm MPC, LLC, a Washington limited liability company, and is the person who
appeared before me, and acknowledged that he signed this instrument on behalf of such
limited liability company, on oath stated that he was authorized to execute the instrument
and acknowledged it as the free and voluntary act of the limited liability company for the
uses and purposes mentioned in this instrument.
DATED: .
Notary Seal
_
(Print Name)
Notary Public
Residing at
My appointment expires:
41