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HomeMy WebLinkAboutSpringbrook Creek Wetlands Bank Agreement_FINAL_SIGNED.pdfCAG-22-172 SPRINGBROOK CREEK WETLAND MITIGATION BANK MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGEMENT THIS AGREEMENT, dated for reference purposes as February 28, 2022, is by and between the City of Renton (the "City"), a Washington municipal corporation, and Renton School District No. 403 ("Applicant"), a Washington municipal corporation 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 SMB 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 at 1075 Duvall Ave NE, 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, Applicant 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 Project with certain mitigation measures. a) 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. 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; and b) The proposed filling of Wetland B will be mitigated through the use of a wetland bank, as approved by the City; 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 (119 PAGE 2 OF 9 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 0.196 credits from the SMB, in compensation for the Project's anticipated 0.28 acre(s) of wetland impacts, applying the adjustment factor of 0.7 for Category IV wetlands impact; and WHEREAS, the City desires to sell the Applicant 0.196 mitigation credits 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: 1. Purchase Sale: The City hereby sells to Applicant and Applicant hereby buys from the City 0.196 mitigation credits on the terms, covenants, and conditions set forth in this Agreement. 2. Compensation: The City has determined it to be in the City's best interest to sell 0.196 credits from the SMB to Applicant, at the rate of $1,175,000.00 per credit adjusted by (D PAGE 3 of 9 a factor or 0.7 for Category IV wetlands, for the total credit price of $230,300.00. The Applicant shall pay said sum upon execution of this Agreement. 3. 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. 4. Project: The Project, permit(s), and related information is as follows: A. 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, tract'.brewerrogstad@rentonschools.us. B. Land Use Action Number: LUA21-000167. C. U.S. Army Corps of Engineers Permit Number: NWS-2020-848 dated February 11, 2022. D. Brief Description of Impact(s) to be Compensated for by the Project Mitigation Credits: Permanent filling of 0.28-acre Category IV wetlands . E. 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. 5. Responsibility of the Applicant: Upon delivery of full payment as described above, the obligations of the Applicant under this Agreement shall be satisfied. 6. Responsibility of the City: A. The City certifies that sufficient credits are available in the SMB ledger to satisfy the credit transaction called for in this Agreement. 0 PAGE 4 OF 9 B. 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. C. Pursuant to 33 Code of Federal Regulations §332.3(I)(3), the City and its successors and assigns, accept responsibility for providing mitigation in compensation for aquatic resource function loss, equivalent to 0.196 mitigation credits generated through the establishment, management, and maintenance of the SMB, upon the effective date of the credit transaction provided for under this Agreement. 7. 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. B. 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 Project, 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. 'dl.. 9. 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. 10. Notices: Except for service of legal process, 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 email, or by nationally recognized overnight courier service. Time period for notices shall be deemed to have commenced upon the date of receipt, EXCEPT email delivery will be deemed to have commenced on the first business day following transmission. 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 APPLICANT Alex Morganroth 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-7219 amorganroth@rentonwa.gov And Copy to City Clerk cityclerk@rentonwa.gov Name: Title: ('r&r— D Address: `7 / ;k S 0 1 a 14 -"" St ftA4L-. L-:2-A a~st'�g Phone: LA-2-5- Zo q - 447 A E-mail Address: hraL%• b�{��ro•�5� re -}o^ sc-. 4'01 s.uS 11. Other Provisions: A. 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. 8, 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. C. 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. PAGE 6 of 9 D. General Administration and Management. The City's project manager is Alex Morganroth, Senior Planner, Community and Economic Development Department. E. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. E. 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. G. 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. H. 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. I. 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. J. 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. PAGE 7 OF 9 K. 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. L. 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. M. 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. N. 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. O. 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. P. 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. Q. Recording, A Notice of Wetland Mitigation Credit Sales in substantially the same or similar form as that attached hereto as Exhibit A shall be recorded with the King County Recorder's office. IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date last signed by the Parties below. PAGE 8 OF 9 CITY OF RFNTON By: Armondo Pavone Mayor 5/25/2022 ©ate Attest Jason A. Seth City Clerk Approved as to Legal Form APPLICANT Awl()l� Dad By: Approved by Cheryl Beyer via 5/12/2022 email Shane Moloney City Attorney SMB NS Contract Template Updated 2-28-22 (939)