HomeMy WebLinkAboutWetland Mitigation Bank Credit Purchase Agreement - Draft 12-27-2021_AEM EDIT.docxGrantor(s): City of Renton
Grantee(s): Renton School District
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SPRINGBROOK CREEK WETLAND MITIGATION BANK MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGEMENT
THIS AGREEMENT, dated Month XX, XXXX, is by and between the City of Renton (the “City”), a Washington municipal corporation, and Click here to enter text. (“Applicant”), Click here to
enter text. The City and the Applicant are referred to collectively in this Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of the last
date signed by both parties.
RECITALS:
WHEREAS, the Springbrook Creek Wetland Mitigation Bank (“SMB”) was established August 8, 2006 through the execution of a Mitigation Bank Instrument (“MBI”) developed by the City and
the Washington State Department of Transportation, and approved by the City, the Washington State Department of Ecology, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife
Service, the Federal Highway Administration, and the U.S. Army Corps of
Engineers (the “Corps”). The MBI established guidelines and responsibilities for the establishment, use, operation and maintenance of the SMB; and
WHEREAS, the SMB was established to provide compensatory mitigation for unavoidable adverse impacts to waters of the United States, including wetlands, and to aquatic habitat, which
result from activities authorized by Federal, State, and local authorities; and
WHEREAS, pursuant to the provisions and conditions of the MBI governing the SMB, the City has performed reestablishment, rehabilitation, and enhancement of wetlands, combined with the
enhancement of upland and riparian areas. In recognition of meeting objectives and performance standards established through the MBI, the Interagency Review Team (“IRT”) has released
to the SMB mitigation credits for use in compensation for future activities unavoidably impacting aquatic resources; and
WHEREAS, pursuant to Section 4.3 of the MBI, City is authorized to sell, transfer, or use the released SMC mitigation credits for its own activities, or for activities undertaken by
public or other private entities; and
WHEREAS, SMB has available mitigation credits, generated through SMB establishment and released by the IRT pursuant to Sections 4.2 and 4.3 of the MBI, that have not been utilized by
the City, have not been otherwise sold or transferred to third parties, and are active on the SMB credit ledger maintained pursuant to Section 4.4 of the MBI. These credits are available
to utilize in the SMB service area, portions of Water Resource Inventory Areas (WIRAs ) 8 and 9, as defined in Section 1.3 of the MBI; and
WHEREAS, Applicant is proposing a 77,000 square foot elementary school_________________ [insert development description here] at 1075 Duvall Ave NE ________________ (location), more
fully described in paragraph 4 below (hereinafter the “Project”). The purpose of the Project is _to provide a new neighborhood elementary school_________________________. The Project
is owned, operated, and maintained by the Renton School District______________________; and
WHEREAS, The Renton School District acted as lead agency for the State Environmental Policy Act (SEPA) Review for the project and on June 21, 2021, issued a Mitigated Determination
of Non-Significance (MDNS) for the RSD Elementary School project with 10 mitigation measures:
There are two existing wetlands on-site. The project avoids impacts to the higher-functioning, Category III, Wetland C, and limits permanent impacts to the lower-functioning, Category
IV, Wetland B. The buffer area temporarily impacted by
clearing and grading associated with the installation of the multi-use playfield is vegetated with invasive or non-native vegetation. Mitigation and restoration of Wetland C will be
provided consistent with City standards. The proposed filling of Wetland B will be mitigated through the use of a wetland bank, as approved by the City. A comprehensive five-year maintenance
and monitoring plan is included in the mitigation plan. This plan will ensure that proposed enhancement plantings will be maintained, monitored, and successfully established within
the first five years following implementation.
For security reasons, black vinyl-coated, four- or six-foot-tall chain link fencing is proposed to be installed along the property boundaries (a six-foot-tall cedar fence will be installed
along a portion of the southern boundary). To minimize impacts to Wetland C and its buffer, the fabric will be raised 12 inches off the ground to allow the passage of small animals.
Concrete footings will not be utilized to secure fence posts in wetland areas. The fencing will be reviewed and approved by the City.
The District will require the selected contractor to develop a construction management plan (CMP) that addresses traffic and pedestrian control during school construction.
The City collects transportation impact fees and has outlined fee rates for a variety of uses. The transportation impact fee for the elementary school project is calculated to be $356,377.
This relates to a fee rate of about $4.63 per square foot (SF) based on the proposed school size of 77,000 SF. The impact fee will be paid, with the final fee established by the City.
In order to comply with street frontage improvement requirements outlined by the City, the project will dedicate right-of-way along the street frontages of Duvall Ave NE and Chelan Ave
NE.
Frontage improvements will be made along Duvall Ave NE and Chelan Ave NE. The District will coordinate with the City to integrate the dedication areas and frontage improvements with
the City’s planned roadway improvement in that segment.
To mitigate school-related traffic impacts, the project will install a traffic signal (replacing the existing HAWK beacon signal) at the NE 10th Street / Duvall Ave NE intersection.
Installation of the new traffic signal will include pedestrian actuated signals and crosswalks on all four legs and final design will be approved by the City.
To ensure safe routes to school access, the District will construct a sidewalk along the 1155 Duvall Ave NE frontage with ramp at NE 12th St. Design and construction
of the sidewalk improvements is being discussed with the City, with the final design to be reviewed and approved by the City.
To discourage pick-up and drop-off on Chelan Ave NE, the District will install City approved signage at the intersection of NE 10th St and Chelan Ave NE that identifies the street as
a no vehicle pick-up or drop-off area. The District will develop a Transportation Management Plan (TMP) to educate families about the access load/unload procedures for the site’s layout.
The plan will define clear procedures and travel routes for family vehicles and instruct family drivers not to block or partially block travel lanes with queued or waiting vehicles.
The TMP will include one school year of monitoring and other requirements, which may be required by the City. The TMP will be reviewed and approved by the City prior to Temporary Certificate
of Occupancy.
. [insert environmental review process for Project, including any SEPA mitigation measures]; and
WHEREAS, due to unavoidable construction impacts, the Project will encompass and fill approximately ___0.28____ acre(s) of Category __________IV________ wetlands. Wetlands are located
___________on the eastern portion of the site near Duvall Ave NE____________________. The Project and the impacted wetlands fall inside the service area of the SMB.. The SMB is in
the immediate region and contains wetland characteristics representative of the environment of wetlands affected at the project site; and
WHEREAS, pursuant to 33 Code of Federal Regulations § 336.1(a), the Corps does not seek or obtain permits, in conjunction with its own activities, for loss of or impacts to wetlands
or other aquatic resources falling within the scope of waters of the United States as defined under the Clean Water Act. In lieu thereof, the Corps applies all substantive legal requirements
of the Clean Water Act, and evaluates the impacts of the pertinent water resources impacts under Section 404(b)(1) of the Clean Water Act, applying the Guidelines promulgated in 40 Code
of Federal Regulations Part 230; and
WHEREAS, the Corps has determined pursuant to Clean Water Act Section 404(b)(1) that the impacts to __0.28_____ acre(s) of Category __IV___ wetlands are unavoidable in the execution
of the Project, and that compensatory mitigation is required. In light of the preference expressed in 33 Code of Federal Regulations §§ 332.3(a)(1) and (b)(2) for achieving compensatory
mitigation through mitigation bank credits, and in light of the impracticability of developing and maintaining project-specific, on- or off-site mitigation associated with the Project,
the Applicant has determined that satisfaction of its compensatory mitigation obligations through acquisition of credits from the SMB is most advantageous, and that
universal credits generated by the SMB are fully appropriate and sufficient mitigation for the Project’s impacts; and
WHEREAS, the Applicant desires to acquire __?______ credits from the SMB, in compensation for the Project’s anticipated __0.28___ acre(s) of wetland impacts, applying the ratio of ____
credits per acre of Category _______wetlands impact provisionally prescribed in Table 4 2 of the MBI; and
WHEREAS, the City desires to sell the Applicant __?____ mitigation credits of Category ___ IV_ from the SMB; and
WHEREAS, the City and the Applicant desire to enter into this Agreement to set forth the terms and conditions pursuant to which the sale and transfer of aquatic resource mitigation credits
will be impacted.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
Purchase/Sale: The City hereby sells to Applicant and Applicant hereby buys from the City ___?_____ mitigation credits of _____IV___Category of wetland on the terms, covenants, and
conditions set forth in this Agreement.
Compensation: The City has determined it to be in the City’s best interest to sell _?__ credits of Category __IV_ from the SMB to Applicant, at the rate of $___825,000.00_________ per
credit, for the total credit price of $___?_______. In addition to the Purchase Price set forth above, all buyer-participants in the SMB are required to pay a onetime fee in the sum
of $_______, which fee shall cover and include all processing, closing, recording and set up costs associated with finalizing and effectuating transfer of the credits purchased herein,
for a total purchase price of $___?______. The Applicant shall pay said sum upon execution of this Agreement.
Effective Date: The effective date of the credit transaction shall be the date upon which this Agreement is fully executed by both Parties, and payment to the City is made as provided
herein.
Project: The Project, permit(s), and related information is as follows:
Applicant’s Name, Address, Telephone Number, E-mail Address:
Traci Brewer-Rogstad, Facilities Program Director, Capital Planning and Construction, 300 SW 7th St, Renton, WA 98057, (425) 204-4472, tracy.brewerrogstad@rentonschools.us[insert]
Land Use Action Number: _LUA21-000167__________________.
U.S. Army Corps of Engineers Permit Number: ___________________________ dated __________.
Brief Description of Impact(s) to be Compensated for by the Project Mitigation Credits:_Credits: Permanent filling of 0.28-acre Category IV wetlands __________________________________________________________.
Other Permits (as applicable): _Critical Areas Exemption, Construction Permit, Building Permit____________________.
Construction Permit Number: __C21004289______________.
* This agreement does not relieve the applicant from obtaining any required federal, state, or local permits not related to wetland impacts.
Responsibility of the Applicant: Upon delivery of full payment as described above, the obligations of the applicant under this agreement shall be satisfied.
Responsibility of the City:
The City certifies that sufficient credits are available in the SMB ledger to satisfy the credit transaction called for in this Agreement.
The City will record the transaction in the SMB ledger, and make applicable notifications and reports to the members of the IRT, pursuant to Section 4.4 of the MBI.
Pursuant to 33 Code of Federal Regulations § 332.3(l)(3), the City and its successors and assigns, accepts responsibility for providing mitigation in compensation for aquatic resource
function loss, equivalent to __?___ mitigation credits of Category ___IV_ generated through the establishment, management, and maintenance of
the SMB, upon the effective date of the credit transaction provided for under this Agreement.
Record Maintenance: The Applicant shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement
and retain such records for as long as may be required by applicable Washington State records retention laws, but in any event no less than six years after the termination of this Agreement.
The Applicant agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington
State Public Records Act (Chapter 42.56 RCW). The provisions of this section shall survive the expiration or termination of this Agreement.
Public Records Compliance: To the full extent the City determines necessary to comply with the Washington State Public Records Act, Applicant shall make a due diligent search of all
records in its possession or control relating to this Agreement and the Work, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos,
or drawings and provide them to the City for production. In the event Applicant believes said records need to be protected from disclosure, it may, at Applicant’s own expense, seek judicial
protection. Applicant shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act
request for which Applicant has responsive records and for which Applicant has withheld records or information contained therein, or not provided them to the City in a timely manner.
Applicant shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. The provisions
of this section shall survive the expiration or termination of this Agreement.
Successors and Assigns: Neither the City nor the Applicant shall assign, transfer or encumber any rights, duties or interests accruing from this Agreement without the written consent
of the other.
Notices: Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address which appears below (as modified in writing from time to time
by such party), and given personally, by registered or certified mail, return receipt requested, by facsimile or by nationally recognized overnight courier service. Time period for notices
shall be deemed to have commenced upon the date of receipt,
EXCEPT facsimile delivery will be deemed to have commenced on the first business day following transmission. Email and telephone may be used for purposes of administering the Agreement,
but should not be used to give any formal notice required by the Agreement.
CITY OF RENTON
Contract/Project Manager NameAlex Morganroth
1055 South Grady Way
Renton, WA 98057
Phone: (425) 430-XXXX7219
E-mail Addressamorganroth@rentonwa.gov
Fax: (425) 430-XXXX
APPLICANT
Applicant Contact NameTracy Brewer-Rogstad, Senior Facilities ProgramD Director, Renton School District
Street Address 300 SW 7th St
Renton, WA 98057City, State Zip
Phone: (XXX) XXX-XXXX(425) 204-4472
E-mail Addresstraci.brewerrogstad@rentonschool.us
Fax: (XXX) XXX-XXXX
Other Provisions:
No Interest in Property: This Agreement shall not be construed as a transfer of any interest in property, real or personal, from one Party to the other.
Effect of Agreement: This Agreement does not in any manner affect the statutory authorities and responsibilities of the Parties. This Agreement is not intended, nor may it be relied
upon, to create any rights or remedies in third parties enforceable in litigation with the United States, the State of Washington, or any agency thereof.
Approval Authority. Each individual executing this Agreement on behalf of the City and Applicant represents and warrants that such individuals are duly authorized to execute and deliver
this Agreement on behalf of the City or Applicant.
General Administration and Management. The City’s project manager is ________________.
Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties.
Conflicts. In the event of any inconsistencies between Applicant proposals and this Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to this Agreement are
incorporated by reference only to the extent of the purpose for which they are referenced within this Agreement. To the extent an Applicant prepared exhibit conflicts with the terms
in the body of this Agreement or contains terms that are extraneous to the purpose for which it is referenced, the terms in the body of this Agreement shall prevail and the extraneous
terms shall not be incorporated herein.
Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington and the City of Renton.
Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other
as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution.
Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County
Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. Applicant hereby expressly consents
to the personal and exclusive jurisdiction and venue of such court even if Applicant is a foreign corporation not registered with the State of Washington.
Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder
of this Agreement, which shall remain in full force and effect.
Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded.
Time is of the Essence. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. Adherence to completion dates set forth in the
description of the Work is essential to the Applicant’s performance of this Agreement.
Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all
duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else.
Binding Effect. The Parties each bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement, and to the partners, successors,
assigns, and legal representatives of such other party with respect to all covenants of the Agreement.
Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent
either the City or Applicant from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed
to be a waiver of any prior or subsequent breach unless it is expressly waived in writing.
Counterparts. The Parties may execute this Agreement in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement.
IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below.
CITY OF RENTON
By:_____________________________
APPLICANT
By:____________________________
Enter Signer’s Name
Enter Signer’s TitleEnter Signer’s Name
Enter Signer’s Title
_____________________________
Date
_____________________________
Date
Attest
_____________________________
Jason A. Seth
City Clerk
Approved as to Legal Form
By: __________________________Enter City Attorney Name
Enter City Attorney Title
SMB Contract Template Updated 11-17-21 (939)