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Council 07/17/2006
ior AGENDA RENTON CITY COUNCIL REGULAR MEETING July 17, 2006 Monday, 7 p.m. 1. CALL TO ORDER AND PLEDGE OF ALLEGIANCE 2. ROLL CALL 3. SPECIAL PRESENTATION: "Damn Yankees" Teen Musical Preview 4. ADMINISTRATIVE REPORT 5. AUDIENCE COMMENT (Speakers must sign up prior to the Council meeting. Each speaker is allowed five minutes. The comment period will be limited to one-half hour. The second audience comment period later on in the agenda is unlimited in duration.) When you are recognized by the Presiding Officer,please walk to the podium and state your name and address for the record, SPELLING YOUR LAST NAME. 6. CONSENT AGENDA The following items are distributed to Councilmembers in advance for study and review, and the recommended actions will,be accepted in a single motion. Any item may be removed for further discussion if requested by a Councilmember. a. Approval of Councilmeeting minutes of 7/10/2006. Council concur. Noe b. Mayor Keolker appoints Evelyn Reingold, 833 SW Sunset Blvd., L-56,Renton, 98055, to the Municipal Arts Commission to fill the unexpired term of Edythe Gandy,who as resigned(term to expire 12/31/2006). Refer to Community Services Committee. c. City Clerk reports bid opening on 6/30/2006 for CAG-06-108,Maplewood Golf Course Driving Range Netting Replacement;three bids; engineer's estimate$100,000-$110,000; and submits staff recommendation to award the contract to low bidder,NETServices, LLC, in the amount of $135,449.81. Council concur. d. City Clerk submits Quarterly Contract List for period of 4/1/2006 to 6/30/2006; 51 contracts and 20 addenda totaling$9,108,034.81. Information. e. City Clerk reports appeal of Hearing Examiner's decision regarding the Defoor Short Plat(SHP- 05-089); appeal filed on 6/22/2006 by Terry Defoor,represented by Karen Orehoski,Ricci Grube Aita, PLLC, 1601 2nd Ave., Suite 1080, Seattle, 98112, accompanied by required fee. Refer to Planning and Development Committee. The appeal packet includes one additional letter received as allowed by City Code. Consideration of the appeal by the City Council shall be based solely upon the record,the Hearing Examiner's report,the notice of appeal and additional submissions by parties (RMC 4-8-110F.6.). f. City Clerk reports appeal of Hearing Examiner's decision regarding the Provost variances application(V-06-024); appeal filed on 6/30/2006 by Alan and Cynthia Provost, PO Box 1492, Renton, 98057, accompanied by required fee. Refer to Planning and Development Committee. Consideration of the appeal by the City Council shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties (RMC 4-8-110F.6.). g. Economic Development, Neighborhoods and Strategic Planning Department requests approval of a one-time exception to the December 15 filing deadline for two additional City-initiated 2006 Comprehensive Plan amendments, and referral of the amendments to the Planning and Development Committee and Planning Commission. h. Economic Development,Neighborhoods and Strategic Planning Department recommends approval of an agreement in the amount of$53,200 with Doug Levy for legislative consulting services for 2006-2007. Council concur. (COlt.I'FROVED ON REVERSE SIDE) i. Economic Development,Neighborhoods and Strategic Planning Department recommends approval of an agreement with the U.S. Department of Commerce Economic Development Administration for a $2,054,314 Financial Assistant Award for the South Lake Washington Infrastructure Improvement Project. Council concur. j. Economic Development,Neighborhoods and Strategic Planning Department recommends a public hearing be set on 8/7/2006 to consider the proposed Maplewood Addition Annexation (located in vicinity of Maple Valley Hwy.) and associated zoning, for which the City's requested boundary expansion was approved by the Boundary Review Board (from 60.5 to 340 acres). Council concur. k. Economic Development, Neighborhoods and Strategic Planning Department recommends a public hearing be set on 8/7/2006 for the proposed Querin Annexation(located in vicinity of Hoquiam Ave. NE and SE 112th St.)and associated zoning,the boundaries of which were expanded by the Boundary Review Board from 7.18 to 24 acres. Council concur. I. Hearing Examiner recommends approval, with conditions,of the Honey Creek View Estates Preliminary Plat; nine single-family lots on 1.8 acres located at 3524 NE Sunset Blvd. (PP-05- 118). Council concur. m. Transportation Systems Division requests approval to terminate the Washington State Department of Natural Resources aquatic lands lease agreement, and accept the new aquatic lands lease agreement for the Will Rogers-Wiley Post Memorial Seaplane Base at the Airport. Refer to Transportation (Aviation) Committee. n. Utility Systems Division submits CAG-06-039, Water Main Replacement Project-N. 31st,N. 33rd, and NE 24th Streets; and High Ave. NE; and requests approval of the project, authorization for final pay estimate in the amount of$1,360,commencement of 60-day lien period, and release of retainage in the amount of$12,352.53 to VJM Construction, Inc., contractor, if all required releases are obtained. Council concur. 7. CORRESPONDENCE 8. UNFINISHED BUSINESS Topics listed below were discussed in Council committees during the past week. Those topics marked with an asterisk(*) may include legislation. Committee reports on any topics may be held by the Chair if further review is necessary. a. Community Services Committee: Marie McPeak Appointment to Municipal Arts Commission; Frank Marshall Appointment to,Airport Advisory Committee b. Public Safety Committee: Agreement with Fire District#25 &American Red Cross Concerning Disaster Relief Building and its Supplies 9. RESOLUTIONS AND ORDINANCES Ordinance for first reading: 2006 Budget amendment for public information and community outreach efforts(Council approved 6/12/2006) Ordinances for second and final reading: a. Vacating portions of Park Ave. N. (1st reading 7/10/2006) b. Issuance of Limited Tax General Obligation Bonds(1st reading 7/10/2006) 10. NEW BUSINESS (Includes Council Committee agenda topics; call 425-430-6512 for recorded information.) 11. AUDIENCE COMMENT 12. ADJOURNMENT COMMITTEE OF THE WHOLE AGENDA Lool (Preceding Council Meeting) Council Chambers 6 p.m. Second Quarter Financial Report RENTON CITY COUNCIL Regular Meeting July 17,2006 Council Chambers Monday, 7 p.m. MINUTES Renton City Hall CALL TO ORDER Mayor Kathy Keolker called the meeting of the Renton City Council to order and led the Pledge of Allegiance to the flag. ROLL CALL OF RANDY CORMAN, Council President; TONI NELSON; DAN CLAWSON; COUNCILMEMBERS DENIS LAW; TERRI BRIERE; MARCIE PALMER; DON PERSSON. CITY STAFF IN KATHY KEOLKER, Mayor; JAY COVINGTON, Chief Administrative ATTENDANCE Officer; ZANETTA FONTES,Assistant City Attorney; BONNIE WALTON, City Clerk; PETER HAHN, Deputy Planning/Building/Public Works Administrator-Transportation; TERRY HIGASHIYAMA, Community Services Administrator; BETTE ANDERSON, Library Director; VINCENT ORDUNA,Cultural Arts Coordinator; ALEX PIETSCH, Economic Development Administrator; MICHAEL BAILEY, Finance and Information Services Administrator; MARTY WINE, Assistant CAO; COMMANDER KENT CURRY, Police Department. SPECIAL PRESENTATION Community Services Administrator Terry Higashiyama introduced Bette Library: New Director(Bette Anderson, the new Library Director. Ms. Anderson stated that she is looking Anderson) forward to working with everyone and to working on the Library Master Plan. Community Services: "Damn Continuing, Ms. Higashiyama introduced Cultural Arts Coordinator Vincent Yankees" Teen Musical Orduna who announced that Renton's annual 2006 summer teen musical, Performance Excerpts "Damn Yankees," will run from July 21 to August 13 at Carco Theatre. He introduced performers Joshua Paul Moore, Monica Taylor, Kathryn Stewart, Steven Hudson, Brad Walker, Thomas Webber, and Lee Morris who entertained the audience with two sample numbers from the show. ADMINISTRATIVE Chief Administrative Officer Jay Covington reviewed a written administrative REPORT report summarizing the City's recent progress towards goals and work programs adopted as part of its business plan for 2006 and beyond. Items noted included: * "Celebrate the Heart of Renton" at IKEA Renton River Days, a family festival celebrating pride in the community July 18 through July 23. * Over 700 kids,parents, and friends attended the T-Ball and Coach Pitch Jamboree on July 13. This summer's program has 12 Coach Pitch teams and 16 T-Ball teams. Streets: Park Ave N Closure, Peter Hahn, Deputy Planning/Building/Public Works Administrator- South Lake Washington Transportation, reported on the temporary closure of Park Ave. N. (N. 6th St. to Roadway Improvements Garden Ave. N.), for the South Lake Washington roadway and utility improvements, and described the Garden Ave. N. detour route. He indicated that the closure may be postponed until after the Renton River Days festival, which will be held this week. In response to Council inquiries, Mr. Hahn stated that Park Ave. N. could be closed for as long as 14 months. He assured that affected business owners were notified of the street closure. AUDIENCE COMMENT Sandel DeMastus, Highlands Community Association Vice President, PO Box Citizen Comment: DeMastus- 2041, Renton, 98056, expressed her thanks for those who have supported the Highlands Community Highlands Community Association and her disappointment with those she feels Association have behaved inappropriately. Noting the importance of keeping all July 17,2006 Renton City Council Minutes Page 246 communications open and of not discriminating against any one group or individual, Ms. DeMastus expressed her hope that the City and the Highlands can mend relations. Citizen Comment: Petersen - Inez Somerville Petersen, PO Box 2041, Renton, 98056, spoke on the subject of Various The Landing development, stating that it does not matter who is funding the environmental appeal,but rather if the appeal is valid. Referring to the consent agenda item concerning the contract with Doug Levy for legislative consulting services, Ms. Petersen protested the expenditure. On another topic, she suggested that the Planning Commission agenda and agenda packets remain on the City's web site for a longer period of time. Additionally, she suggested that instead of redoing the City's web site,that the money be used to add streaming video to the current web site. Citizen Comment: Gaunt- Shirley Gaunt-Smith,4102 NE 6th Pl., Renton, 98059, expressed her concern Smith- Resident Involvement regarding elected officials' lack of response to Renton citizens. Pointing out in City Planning that several complex proposed actions are occurring at the same time, she stressed the importance of involving the community in the decision making so that citizens feel a part of and have some ownership in the plans. She stated that the proposals will greatly affect residents, and noted that plans will more likely succeed if residents are involved. Citizen Comment: Maxwell- Marcie Maxwell,PO Box 2048,Renton, 98056, speaking as a Renton School Renton School Board,New District Board Director, introduced Todd Franceschina, the newest school board Director Introduction director. She stated that Mr. Franceschina is a Renton High School graduate, and has a lot of experience in finance and business administration to bring to the board. Mr. Franceschina expressed his excitement about the position. Citizen Comment: Breeden- Raymond Arthur Breeden, Sr., 15279 Maple Dr., Renton, 98058, stated that Wonderland Estates Mobile residents of the Wonderland Estates mobile home park located at Maple Valley Home Park Hwy. and 149th Ave. SE want to be annexed to Renton. He explained that if the property,which is zoned R-12 in King County, is bought by a developer, every resident could be evicted. Mr. Breeden indicated that the residents are working on a business plan to become a co-op, and asked that the City rezone the property. Mayor Keolker reported that she received three letters pertaining to this topic, including one from Mr. Breeden. She explained that the Administration is recommending that the matter be reviewed as part of the Comprehensive Plan amendment process. (See page 247 for consent agenda item.) Citizen Comment: Hale-The Dave Hale,PO Box 3517, Renton,98056,thanked the City for its work to bring Landing Project The Landing shopping center to this area. As a realtor, Mr. Hale indicated that his clients have shown a positive interest in the development. He acknowledged the opposition and roadblocks the development faces, and encouraged the City to continue to move forward with the project. Citizen Comment: Blayden- Bob Blayden,2533 Ilwaco Ave.NE, Renton, 98059,praised the City for its The Landing Project support of The Landing project,noting that it is a key part of Renton's future. He pointed out the need to develop the area in a way that produces the best economic value for the City. Mayor Keolker stated that the Administration and Council is committed to the project. Citizen Comment: Johnson- Arland "Buzz"Johnson, 334 Wells Ave. S., #306, Renton, 98057,praised the Various Mayor's Planting Day that occurred in April, saying that he enjoyed helping to plant the trees. Pointing out a safety problem on the Cedar River Trail,Mr. July 17,2006 Renton City Council Minutes Page 247 Johnson stated that bikers fail to dismount their bikes when they cross the bridge by the Renton Senior Activity Center. On another subject,he thanked Council for its support of the senior center, and conveyed how much he enjoys the center's planned hikes. CONSENT AGENDA Items on the consent agenda are adopted by one motion which follows the listing. Council Meeting Minutes of Approval of Council meeting minutes of 7/10/2006. Council concur. 7/10/2006 Appointment: Municipal Arts Mayor Keolker appointed Evelyn Reingold, 833 SW Sunset Blvd., L-56, Commission Renton, 98055, to the Municipal Arts Commission to fill the unexpired term of Edythe Gandy,who has resigned(term to expire 12/31/2006). Refer to Community Services Committee. CAG: 06-108, Maplewood City Clerk reported bid opening on 6/30/2006 for CAG-06-108, Maplewood Golf Course Driving Range Golf Course Driving Range Netting Replacement; three bids; engineer's Netting,NETServices estimate $100,000- $110,000; and submitted staff recommendation to award the contract to low bidder,NETServices, LLC, in the amount of$135,449.81. Council concur. City Clerk: Quarterly Contract City Clerk submitted Quarterly Contract List for period of 4/1/2006 to List, 4/1/2006 to 6/30/2006 6/30/2006; 51 contracts and 20 addenda totaling $9,108,034.81. Information. Appeal: Defoor Short Plat, City Clerk reported appeal of Hearing Examiner's decision regarding the Defoor Terry Defoor, SHP-05-089 Short Plat; appeal filed on 6/22/2006 by Terry Defoor, represented by Karen Orehoski, Ricci Grube Aita,PLLC, 1601 2nd Ave., Suite 1080, Seattle, 98112, accompanied by required fee. The appeal packet includes one additional letter received as allowed by City Code. Refer to Planning and Development Committee. Appeal: Provost Variances, City Clerk reported appeal of Hearing Examiner's decision regarding the Alan&Cynthia Provost, V-06- Provost variances application; appeal filed on 6/30/2006 by Alan and Cynthia 024 Provost,PO Box 1492, Renton,98057, accompanied by required fee. Refer to Planning and Development Committee. Comprehensive Plan: 2006 Economic Development,Neighborhoods and Strategic Planning Department Amendments requested approval of a one-time exception to the December 15 filing deadline for two additional City-initiated 2006 Comprehensive Plan amendments,and referral of the amendments to the Planning and Development Committee and Planning Commission. EDNSP: Legislative Economic Development,Neighborhoods and Strategic Planning Department Consulting Services, Doug recommended approval of an agreement in the amount of$53,200 with Doug Levy Levy for legislative consulting services for 2006-2007. Council concur. EDNSP: S Lake WA Economic Development,Neighborhoods and Strategic Planning Department Infrastructure Improvement recommended approval of an agreement with the U.S. Department of Project Grant, Economic Commerce Economic Development Administration for a$2,054,314 Financial Development Administration Assistance Award for the South Lake Washington Infrastructure Improvement Project. Council concur. Annexation: Maplewood Economic Development,Neighborhoods and Strategic Planning Department Addition,Maple Valley Hwy recommended a public hearing be set on 8/7/2006 to consider the proposed Maplewood Addition Annexation(located in the vicinity of Maple Valley Hwy.)and associated zoning, for which the City's requested boundary expansion was approved by the Boundary Review Board(from 60.5 to 340 acres). Council concur. July 17,2006 Renton City Council Minutes Page 248 Annexation: Querin II, Economic Development,Neighborhoods and Strategic Planning Department Hoquiam Ave NE recommended a public hearing be set on 8/7/2006 for the proposed Querin II Annexation (located in the vicinity of Hoquiam Ave. NE and SE 112th St.)and associated zoning, the boundaries of which were expanded by the Boundary Review Board from 7.18 to 24 acres. Council concur. Plat: Honey Creek View Hearing Examiner recommended approval, with conditions, of the Honey Creek Estates Preliminary Plat, NE View Estates Preliminary Plat; nine single-family lots on 1.8 acres located at Sunset Blvd, PP-05-118 3524 NE Sunset Blvd. Council concur. Airport: Department of Natural Transportation Systems Division requested approval to terminate the Resources Aquatic Lands Washington State Department of Natural Resources aquatic lands lease Lease agreement, and accept the new aquatic lands lease agreement for the Will Rogers-Wiley Post Memorial Seaplane Base at the Airport. Refer to Transportation (Aviation) Committee. CAG: 06-039, Water Main Utility Systems Division submitted CAG-06-039, Water Main Replacement Replacement, VJM Project-N. 31st, N. 33rd, and NE 24th Streets; and High Ave. NE; and Construction requested approval of the project,authorization for final pay estimate in the amount of$1,360, commencement of 60-day lien period, and release of retainage in the amount of$12,352.53 to VJM Construction Co., Inc., contractor, if all required releases are obtained. Council concur. MOVED BY CORMAN, SECONDED BY NELSON, COUNCIL APPROVE THE CONSENT AGENDA AS PRESENTED. CARRIED. Comprehensive Plan: 2006 Mayor Keolker noted that one of the added proposed Comprehensive Plan Amendments amendments, listed in the above consent agenda, concerns the Wonderland Estates mobile home park property. UNFINISHED BUSINESS Council President Corman brought forward a proposal concerning the Planning: Highlands Area Highlands area redevelopment. He explained that the City Council continues to Redevelopment be committed to the revitalization of the Highlands community, especially the subarea that has been the focus of the City's attention most recently. Mr. Corman recommended that additional Committee of the Whole meetings be held, after any appeals regarding this matter have been resolved, to finalize a rezoning of the Highlands Subarea that will meet the needs of current property owners, while also providing new opportunities and encouragement for developers to make an investment in this community. He also recommended that the local residents be engaged in this planning process. MOVED BY CORMAN, SECONDED BY LAW, THAT BECAUSE A GOOD DEAL OF NEGATIVE ATTENTION HAS BEEN FOCUSED ON THE STATE'S COMMUNITY RENEWAL ACT, PARTICULARLY THE PORTION THAT ALLOWS FOR THE POTENTIAL USE OF EMINENT DOMAIN, THE ADMINISTRATION: • CONTINUE WORKING WITH THE COMMUNITY ON DEVELOPMENT OPPORTUNITIES,THROUGH APPROPRIATE REZONING OF THE AREA,WITHOUT THE USE OF THE COMMUNITY RENEWAL ACT, OR EMINENT DOMAIN, TO ACHIEVE THESE GOALS; • CONTINUE THE USE OF AN AGGRESSIVE CODE ENFORCEMENT EFFORT TO TARGET THOSE PROPERTIES THAT VIOLATE CITY CODE AND ARE A PUBLIC NUISANCE; AND July 17,2006 Renton City Council Minutes Page 249 • IMPLEMENT A POLICE ENFORCEMENT PLAN THAT WILL RESULT IN REDUCING OVERALL CRIME PROBLEMS IN THE COMMUNITY THAT HAVE BEEN IDENTIFIED BY THE ADMINISTRATION.* Councilwoman Briere questioned whether the intent is for the Planning and Development Committee to continue the primary work on the zoning,which also includes changes to the Comprehensive Plan. Council President Corman confirmed that is still the intent. He explained that he is trying to accomplish one major thing: codify the proposal that was made by the Mayor at the 6/26/2006 Council meeting, taking the Community Renewal Act off the table. Additionally, Mr. Corman stated that he wants to convey to the community that the City will meet their challenge on the enforcement of City Code violations. Referring to Mr. Corman's statement regarding finalizing a rezoning of the Highlands Subarea that will meet the needs of current property owners, Councilman Clawson pointed out that most of the Highlands Subarea residents are not property owners,but renters, and they should also be engaged in the planning process. He expressed the need for replacing the low-income housing that will be upgraded or eliminated due to the area's upgrade. He questioned whether the Administration or City Attorney had any concerns regarding the proposal. Assistant City Attorney Zanetta Fontes pointed out that by taking the Community Renewal Act off the table, some of the tools the City may have had to help the residents are being taken away. Councilman Clawson stated that taking this action does not prevent Council from considering using the Community Renewal Act in the future. Referring to the implementation of a police enforcement plan, Chief Administrative Officer Jay Covington noted the need for a discussion with Council regarding the allocation of resources. Council President Corman indicated that when it is determined what is needed to address the issue,Council will make the budget adjustments as required. Council discussion ensued regarding affordable housing, density dynamics, single-family and multi-family housing,the use of the space on a lot, and the Center Village land use designation. *MOTION CARRIED. Community Services Community Services Committee Chair Nelson presented a report Committee recommending concurrence in the staff recommendation to approve Mayor Appointment: Airport Keolker's appointment of Frank Marshall to the Airport Advisory Committee as Advisory Committee Airport Leaseholders alternate representative for a term expiring on 5/7/2007. MOVED BY NELSON, SECONDED BY PALMER, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. Appointment: Municipal Arts Community Services Committee Chair Nelson presented a report Commission recommending concurrence in the staff recommendation to approve Mayor Keolker's appointment of Marie McPeak to the Municipal Arts Commission for an unexpired term expiring 12/31/2006. MOVED BY NELSON, SECONDED BY PALMER, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. July 17,2006 Renton City Council Minutes Page 250 Public Safety Committee Public Safety Committee Chair Law presented a report recommending Community Services: Disaster concurrence in the staff recommendation to approve a joint agreement and Relief Supply Building, Fire memorandum of understanding with King County Fire Protection District#25 District#25 &American Red and the American Red Cross, serving King and Kitsap Counties,to provide a Cross process for the American Red Cross to construct, equip, and maintain a disaster relief supply building, funded by a grant from the Boeing Employees Fund, for the purpose of housing local disaster relief supplies. The Committee recommended that the Mayor and City Clerk be authorized to sign the agreement and memorandum.* Councilman Law pointed out that this is a great opportunity for Renton, as this area of the County lacks such a facility. He stated that the building will be located at Fire Station#16, and the City will not incur any of the costs. *MOVED BY LAW, SECONDED BY NELSON, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. RESOLUTIONS AND The following ordinance was presented for first reading and referred to the ORDINANCES Council meeting of 8/7/2006 for second and final reading: EDNSP: Annexation An ordinance was read amending the 2006 Budget by transferring funds in the Community Outreach, PRR amount of$70,000 from the 2005 year-end fund balance for the purpose of Contract, Budget Amend public information and community outreach efforts related to annexation and incorporation,with $60,087 going to PRR, Inc. to conduct that work,and declaring an emergency. MOVED BY BRIERE, SECONDED BY NELSON, COUNCIL REFER THE ORDINANCE FOR SECOND AND FINAL READING ON 8/7/2006. CARRIED. The following ordinances were presented for second and final reading and adoption: Ordinance#5214 An ordinance was read vacating four portions of right-of-way, a total of Vacation: Park Ave N, City of approximately 21,795 square feet, along Park Ave.N. between N. 8th St. and Renton, VAC-04-005 Logan Ave. N. for the proposed "The Landing" site development street system (City of Renton; VAC-04-005). MOVED BY BRIERE, SECONDED BY LAW, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. Ordinance#5215 An ordinance was read relating to the incurrence of indebtedness;providing for Finance: Bond Issuance, S the sale and issuance of Limited Tax General Obligation Bonds,2006, in the Lake WA Infrastructure& SW aggregate principal amount of$17,980,000 to provide part of the costs of 27th St/Strander Blvd constructing transportation and utility infrastructure and improvements in the Extension Projects City;providing for the date, denominations, form, terms,registration privileges, maturities, interest rates and covenants of the bonds;providing for the annual levy of taxes to pay the principal thereof and the interest thereon; establishing a debt service fund for the bonds; and providing for the sale and delivery of such bonds to D.A. Davidson& Co., Seattle, Washington. MOVED BY CLAWSON, SECONDED BY BRIERE, COUNCIL ADOPT THE ORDINANCE AS READ.* Finance and Information Services Administrator Michael Bailey introduced Fred Eoff, Managing Underwriter with D.A. Davidson& Co., and Lindsay Sovde, Financial Advisor with Seattle Northwest Securities,who both spoke on the topic of the bond issuance. Mr. Eoff reported on the City's bond credit rating,pointing out that both credit rating services, Fitch Rating Services and Standard and Poor's, took a fresh look at the City's economic status and increased their credit ratings for the City from A+to AA-. He noted that the July 17,2006 Renton City Council Minutes Page 251 increased credit ratings resulted in an improvement to the bond insurance premiums and interest rates. Ms. Sovde stated that Seattle Northwest Securities worked as financial advisor on the bond transaction. She indicated that the bond sale went very well, that the bonds were priced fairly in the market, and that the fee charged by the underwriter was fair. *ROLL CALL: ALL AYES. MOTION CARRIED. Chief Administrative Officer Jay Covington stated that the City's credit rating increase will result in savings to the taxpayers. Mayor Keolker noted that the rating upgrade will positively affect how others view Renton as a place to invest. NEW BUSINESS Council President Corman reported a discussion with a Maplewood Glen Public Works: Neighborhood neighborhood resident who informed him that the post office, instead of Mail Box Stations delivering the mail to residents'houses, is installing postal stations. He conveyed that the resident is concerned about the placement of the postal stations, as their placement may cause traffic flow and site distance problems, and block parking and front yards. Pointing out that this is a widespread problem, Mr. Corman asked that the Administration contact the post office to try to become part of the planning process for the locating of postal stations. Mayor Keolker said she will communicate the concerns to the post office. Finance: City Web Site Councilwoman Palmer reported that she and Councilmembers Briere and Update, City Logo Corman had an opportunity to preview the City's new web site last week. She pointed out that the web site looks great, is easy to use and navigate, and is easy for staff to update. However, Ms. Palmer stated her surprise to see a new City logo on the site. She pointed out that discussion occurred two years ago regarding a new logo, and it was decided at the time,partially due to monetary reasons,not to go forward with the effort. MOVED BY PALMER, SECONDED BY PERSSON, COUNCIL STOP USE OF THE NEW CITY LOGO AND REFER THE ITEM TO COMMITTEE OF THE WHOLE.* Discussion ensued regarding the logo on the new web site, and the City's existing logo. Councilwoman Briere explained that the logo was developed as part of the web site,but noted that the City is not yet at the point of changing the City logo. She discussed the opportunity the web site provided to start on a path of updating the City logo at no cost to the City, the reason why she got involved with the web site update project,the lack of a consistent design on City publications, and the cost savings of having a consistent look. Councilmembers Clawson, Law,Nelson, Persson, and Corman discussed the importance of the City logo, and the need for Council review of a City logo change. The comments pertained to the involvement of citizens in a City logo redesign process, the costs associated with changing the logo, staying with the existing logo or adding it to the new web site, the confusion about what is the official City logo, the decision-making authority for logo changes, the lack of notice regarding a new logo on the new web site, and making changes to the new web site. Mayor Keolker discussed the freshening of the look of the web site,the delay this action will cause in the launching of the new web site, the changes that will be necessary, and that the launch of the web site and the City logo are separate issues. July 17,2006 Renton City Council Minutes Page 252 *MOTION CARRIED. Councilman Clawson noted for the record that he abstained from voting. AUDIENCE COMMENT Howard McOmber,475 Olympia Ave.NE, Renton, 98055, thanked Council for Citizen Comment: McOmber- its action concerning the Highlands area,particularly the abandonment of the Highlands Area use of eminent domain. He stressed the importance of resident input on the Redevelopment redevelopment effort. Citizen Comment: Petersen- Inez Somerville Petersen, Highlands Community Association Secretary,PO City Web Site Update, City Box 2041,Renton, 98056, thanked Council for its action concerning the Logo Highlands area. Additionally,Ms. Petersen indicated that changing the graphics on the City's new web site should not be difficult, and she expressed her support for the City's existing logo and the "ahead of the curve" logo. Citizen Comment: DeMastus - Sandel DeMastus, Highlands Community Association Vice President, PO Box Eminent Domain Rally, Safety 2041, Renton,98056, pointed out that a national rally against eminent domain Class was held on June 23 and President Bush issued an Executive Order regarding protecting the property rights of the American people. She also pointed out that the Valley Communications Center(the regional 911 center)will be holding a safety class. Citizen Comment: Breeden- Raymond Arthur Breeden, Sr., 15279 Maple Dr., Renton, 98058, stressed that Wonderland Estates Mobile every resident of the Wonderland Estates mobile home park has a right to live in Home Park peace, and to not worry about the park being sold. ADJOURNMENT MOVED BY PERSSON, SECONDED BY NELSON, COUNCIL ADJOURN. CARRIED. Time: 9:06 p.m. � 41t 41 ,d. datte Bonnie I. Walton, CMC, City Clerk Recorder: Michele Neumann July 17,2006 RENTON CITY COUNCIL COMMITTEE MEETING CALENDAR Office of the City Clerk COUNCIL COMMITTEE MEETINGS SCHEDULED AT CITY COUNCIL MEETING July 17, 2006 COMMITTEE/CHAIRMAN DATE/TIME AGENDA COMMITTEE OF THE WHOLE MON., 7/24 CANCELLED (Corman) MON., 7/31 No Meeting (5th Monday) MON., 8/07 Integrated Emergency Management 5 p.m. Course Training Report; Tri-Park Master Plan Update; WSDOT's Concurrence Plan COMMUNITY SERVICES MON., 8/07 CANCELLED (Nelson) FINANCE MON., 8/07 Vouchers (Persson) 4:30 p.m. PLANNING & DEVELOPMENT THURS., 7/20 Colee Fence Issue (briefing only); (Briere) 3 p.m. Visual Preference Survey for Downtown Signage (briefing only) THURS., 8/03 Street Grid System 3 p.m. PUBLIC SAFETY MON., 8/07 CANCELLED (Law) TRANSPORTATION(AVIATION) THURS., 7/20 Department of Natural Resources Aquatic (Palmer) 2 p.m. Lands Lease Agreements; Regional Transportation Issues Update THURS., 8/03 CANCELLED UTILITIES THURS., 7/20 Springbrook Creek Wetland & Habitat (Clawson) 4 p.m. Mitigation Bank Agreements THURS., 8/03 Springbrook Creek Wetland & Habitat 4 p.m. Mitigation Bank Agreements NOTE: Committee of the Whole meetings are held in the Council Chambers unless otherwise noted. All other committee meetings are held in the Council Conference Room unless otherwise noted. C.)N( Y O‘e ADMINISTRATIVE, JUDICIAL, AND LEGAL SERVICES DEPARTMENT MEMORANDUM DATE: July 17, 2006 TO: Randy Corman, Council President Members of the Renton City Council FROM: Kathy Keolker, Mayor Jay Covington, Chief Administrative Officer SUBJECT: Administrative Report In addition to our day-to-day activities, the following items are worthy of note for this week: GENERAL INFORMATION • "Celebrate the Heart of Renton!" at IKEA Renton River Days, a family festival celebrating pride in our community July 18th through July 23rd. This popular festival offers a variety of events providing time to get together with family, friends, and neighbors to share the amenities and activities that make Renton a great community in which to live, work, and play. For more information call 425.430.6528 or visit www.rentonriverdays.org. • It's "All Aboard for a Night with the Stars" at the Renton Cinema at Liberty Park on Saturday nights this summer! This free event features the best in movies, pre-show entertainment, and wacky contests, including best "urban campsite" and best movie theme costume. The park opens for seating at 7:00 p.m. Saturdays, July 1st through August 26th, with movies starting at dusk, except for this Saturday, July 22nd, due to the Renton River Days festivities. Renton Cinema at Liberty Park will return on Saturday, July 29th, with a showing of"The Sandlot." Call 425.430.6700 for further information. COMMUNITY SERVICES DEPARTMENT • Over 700 kids, parents, and friends attended the T-Ball and Coach Pitch Jamboree on Thursday, July 13th. This summer's program has 12 Coach Pitch Teams and 16 T-Ball teams. • Mad Science performed "Come Fly with Me," a free event held at the Renton Community Center on Wednesday, July 12th. The turnout was fantastic with approximately 175 children and adults. Famous for sparking imaginative learning and audience participation, the show included the creation of a hot air balloon, experiencing the power of a vortex, and a ride on the ultra-cool Mad Science hovercraft for one lucky volunteer. • The 21st Annual Summer Teen Musical "Damn Yankees" opens July 21st at Carco Theatre. The play runs Friday through Sunday until August 13th. For tickets call 425.430.6751. CITY OF RENTON COUNCIL AGENDA BILL AIN: Submitting Data: For Agenda of: July 17, 2006 Dept/Div/Board.. AJLS/Mayor's Office Staff Contact Kathy Keolker, Mayor Agenda Status Consent X Subject: Public Hearing.. Correspondence.. Municipal Arts Commission Appointment: Ordinance Ms. Evelyn Reingold Resolution Old Business Exhibits: New Business Study Sessions Community Service Application Information Recommended Action: Approvals: Legal Dept Refer to Community Services Committee Finance Dept Other Fiscal Impact: Expenditure Required... Transfer/Amendment Amount Budgeted Revenue Generated Total Project Budget City Share Total Project SUMMARY OF ACTION: Mayor Keolker appoints the following to the Municipal Arts Commission for an unexpired term, expiring on December 31, 2006: Ms. Evelyn Reingold, 833 SW Sunset Blvd, L-56, Renton, WA 98055 (position previously held by Edythe Gandy) STAFF RECOMMENDATION: Confirm Mayor Keolker's appointment of Ms. Evelyn Reingold to the Municipal Arts Commission. Rentonnet/agnbill/ bh CITY OF RENTON APPLICATION FOR COMMUNITY SERVICE If you are interested in participating in local government by membership on any of the following City boards, commissions, or committees,please complete this application and return it to: Office of the Mayor City of Renton 1055 South Grady Way Renton, WA 98055 Check the boards/commissions/committees in which you are interested: LI AIRPORT ADVISORY COMMITTEE* LI PLANNING COMMISSION* LI CIVIL SERVICE COMMISSION* LI RENTON ADVISORY COMMISSION ON DIVERSITY ❑ HOUSING AUTHORITY* LI SENIOR CITIZENS ADVISORY COMMITTEE* LI HUMAN SERVICES ADVISORY COMMITTEE* LI SISTER CITY COMMITTEE-CUAUTLA ❑ LIBRARY BOARD ❑ SISTER CITY COMMITTEE-NI s fy 14 MUNICIPAL ARTS COMMISSION* ❑ TRANSIT ADVISORY BOARD ❑ PARK BOARD* JUL 0 6 2006 Yourapplication willbe gership uirements ven everyQoply. Visit nsideration as vacancies oc urus or call 425-430-6500 for details. F Fr ° MR. ❑ MS. NAME 1 ,i1.1 Ke I (� DATE kgq_ [31 10 ADDRESS &.3,1 ZU.1\14 B u A_ L J • . !t _ ZIP CODE _9-8® *owe PHONE: DAY yo�/a 7-9�&/ 70(4-/,;2(01 9--/O 7__D EMAIL `x r 5,261 De" ._"t ft,(64.-,,. ct RENTON RESIDENT? Q \ IF SO,SINCE WHEN? / S"9.0 h CITY OF FORMER RESIDENCE tj �,��J l,�Q t'\415, EDUCATIONAL BACKGROUND ` 1\ p 1 tiUtA ,61.1_,C); CLC.St4 L fli./(1 -- 1,0,S(N-AR--bi!W(o S /A r& - OCCUPATION R\-elk r EMPLOYER -EX`to - oe( G OCCUPATIONAL BACKGROUNDI ku ' k . ,, .. _ L. " 4 S t • ..1 COMMUNITY ACTIVITIES(organizations/clubs/servicegroups,etc.) 1�1,)CX ( . _ a', 11 ILA A .1 A 41 dateCk. REASON FOR APPLYING FOR THIS BOARD/COMMISSION/COMMITTEE .a t ' 1,A A ►I • ` kJ. n(,(LA..) p V� L� &A. 4 CAN ATTEND DAY zMEETINGS? CAN ATTEND GHT MEETINGS? Applications will be kept on file for one year.If you have questions about serving on a board, commission,or committee,please feel free to contact the Mayor's Office at 425-430-6500. 050305 CITY OF RENTON COUNCIL AGENDA BILL AI N: ` e • Submitting Data: For Agenda of: Dept/Div/Board.. AJLS/City Clerk July 17, 2006 Staff Contact Bonnie Walton Agenda Status Consent X Subject: Public Hearing.. Bid opening on June 30, 2006, for CAG-06-108, Correspondence.. Maplewood Golf Course Driving Range Netting Ordinance Replacement Project Resolution Old Business Exhibits: New Business Staff Recommendation Study Sessions Bid Tabulation Sheet (three bids) Information Recommended Action: Approvals: Legal Dept Council concur Finance Dept Other Fiscal Impact: Expenditure Required... $135,449.81 Transfer/Amendment ►° Amount Budgeted Revenue Generated Total Project Budget $140,000.00 City Share Total Project.. SUMMARY OF ACTION: Engineers Estimate: $100,000 - $110,000 In accordance with Council procedure, bids submitted at the subject bid opening met the following three criteria: There was more than one bid, the low bid was within the project budget, and there were no irregularities. STAFF RECOMMENDATION: Accept the low bid submitted by NETServices, LLC in the amount of$135,449.81. 0 0� COMMUNITY SERVICES DEPARTMENT • • * MEMORANDUM DATE: July 10, 2006 TO: Randy Corman, Council President Members of the Renton City Council VIA: Bonnie Walton, City Clerk FROM: Leslie Betlach, Parks Directory- 1 �" - STAFF CONTACT: Kelly Beymer, Golf Course Manager SUBJECT: Acceptance of Bid—Maplewood Golf Course Driving Range Re-netting Project A bid opening was held on Friday, June 30th, 2006 for the Maplewood Golf Course Driving Range Re-netting Project. The scope of work consists of net demolition, site prep for extension of 4' high cyclone protective fencing, installation of cyclone fencing, installation of entire perimeter netting and baffles, re-tensioning guy wires and anchors, and clean-up and repair of any damage. This project follows the Adopted Master Plan of Maplewood Golf Course through the Major Maintenance line item. The perimeter netting is eleven (11) years old with an estimated lifespan of nine (9) years and is showing tremendous wear. Replacement will greatly improve the safety conditions to pedestrians and parked vehicles. 4140., The budget for this project is $140,000 and will be funded by the Maplewood Golf Course Capital Improvements fund (424). This amount was combined through a carry forward ordinance originally allocated as $100,000 for the design and re-netting project and $40,000 for driving range turf carpet repair. Staff recommends deferring the driving range turf carpet repair project to 2007 and using the entire$140,000 for the driving range re-netting project. The life and use of the turf carpet can be extended by one year with no significant effect on operations. The engineer estimated a base bid project cost of$100,000 - $110,000. A total of three (3) bids were submitted including a bid additive. NETServices, LLC submitted the low qualified bid and bid additive including sales tax at $135,449.81. The bid contained no irregularities. The cost difference between the engineer's estimate was from a bid additive for the installation of cyclone fencing along the perimeter of the east and north side of range. The fencing will eliminate the escapement of range balls under the netting, reduce amount of netting needed and provide a clear perimeter for the range picker. Upon completion of the project the total cost including engineering and design fees will total $152,049.81. The remaining $12,049.81 will be funded through 2006 Major Maintenance project savings. We ask that Council Concur with our recommendation that the base bid be awarded to NETServices, LLC in the amount of$135,449.81. "err CC: Terry Higashiyama,Community Services Administrator I:\projects\netting\bidaward renetting CITY OF RENTON BID TABULATION SHEET PROJECT: Maplewood Golf Course Driving Range Netting Replacement; CAG-06-108 DATE: June 30, 2006 FORMS BID BIDDER Bid Triple Bidder's Addenda Includes 8.8% Sales Tax Bond Form Qualifications Epic Construction, LLC X X X Base Bid: $212.160.00 40 Lake Bellevue Dr., Suite 100 Bid Additive: 29,376.00 Bellevue, WA 98005 Douglas R. Zylstra NETServices,LLC X X X X Base Bid: $114,804.91 13010 11th Ae.NE Bid Additive: 20,644.90 Tulalip, WA 98271-6751 Dan Nunn Seawest Construction, Inc. X X X Base Bid: $141,440.00 1819 S. Central Ave., Suite 109 Bid Additive: 26,112.00 Kent, WA 98032 Robert Holmgren ENGINEER'S ESTIMATE TOTAL: $100,000-$110,000 LEGEND. Forms: Triple Form:Non-Collusion Affidavit,Anti-Trust Claims,Minimum Wage -z CITY OF RENTON COUNCIL AGENDA BILL AI#: be ' Submitting Data: For Agenda of: 7/17/2006 Dept/Div/Board.. AJLS/City Clerk Staff Contact Bonnie Walton, x6502 Agenda Status Consent X Subject: Public Hearing.. City of Renton Contracts List Correspondence.. Second Quarter 2006 Ordinance Resolution Old Business Exhibits: New Business List of contracts and addenda signed from April 1, 2006 Study Sessions through June 30, 2006 Information X Recommended Action: Approvals: Legal Dept • None; Information only Finance Dept Other Fiscal Impact: N/A Expenditure Required... Transfer/Amendment Amount Budgeted Revenue Generated Total Project Budget City Share Total Project.. SUMMARY OF ACTION: The contract list shows all agreements executed between the City and outside parties and/or agencies during the second quarter of 2006. There were 51 contracts and 20 addenda, totaling $9,108,034.81. 2nd Quarter 2006 Contract List ;:CONTRACT. :•ADDENDUM/ CONTRACT • APPROVAL tiCJ:1 JIOER.. NAME/TITLE .:MOUNT PURPOSE DATE DIV WA Department of CAG-00-045 Adden#3-06 Transportation 14,000.00 Obligate federal-aid funding for Strander Blvd/SW 27th St 5/15/2006 T Urban&Community Forestry Strategic Plan tree inventory- CAG-03-018 Adden#3-06 Susan Black&Associates N/A Time of completion extended to 7/30/2006 5/26/2006 PA Roth Hill Engineering Additional work for the Sanitary Sewer Model Development CAG-03-102 Adden#3-06 Partners,LLC 48,200.00 and I&I program and time extension through 12/2006 6/12/2006 U Sea-King County Dept KC Medical Emergency Services-Basic Life Support; 2006 CAG-03-121 Adden#3-06 Public Health N/A Revenue$492,082 4/7/2006 F King County Department of Grant agreement for 2006 Local Hazardous Waste CAG-03-160 Adden#3-06 Public Health N/A Management Program(revenue received$22,993.95) 4/20/2006 U Maplewood Water Treatment Facility-additional consulting CAG-03-168 Adden#4-06 HDR Engineering,Inc. 18,700.00 services&extend end date;total is now$1,028,097.35 6/20/2006 U N Renton Infrastructure Improvements-Additional work and CAG-04-013 Adden#6-06 W&H Pacific 468,873.95 extend term to 12/31/2007 6/16/2006 T Programming of RTUs,MTU&Plant HMI for Maplewood CAG-04-051 Adden#1-06 •Reid Instruments&Controls 11,485.00 Water Treatment&Golf Course Improvements 5/17/2006 U Edmonds Ave NE Stormwater Outfall Replacement Design CAG-05-027 Adden#2-06 DMJM Harris N/A Services-Time of completion extended to 12/31/2006 4/25/2006 U Meals on Wheels Program-increase funding by$500 from CAG-05-047 Adden#1-06 Senior Services N/A City of DesMoines 5/10/2006 HS KC Sexual Assault Increase funding by$100,which will be paid by the City of CAG-05-050 Adden#1-06 •Resource Center N/A DesMoines 4/10/2006 PA Whitworth Pest Solutions, 2006 Mosquito Abatement Program-upland areas east of the CAG-05-059 Adden#2-06 Inc. 19,192.32 Panther Creek Wetlands 4/19/2006 U Design services for Emergency Power Facilities-Increase CAG-05-101 Adden#1-06 RH2 Engineering,Inc. 49,819.00',amount of contract to$168,483 and extend time to 9/1/2007 6/7/2006 U Commute Trip Reduction funding agreement for 2nd year's CAG-05-142 Adden#1-06 WA Transportation 44,355.10 funding 6/7/2006 T Lower Cedar River Left Bank/Spawning Channel plat CAG-05-197 Adden#1-06 EarthCorps N/A maintenance-Time of completion extended to 12/31/2006 4/25/2006 U Blumen Consulting Group, Phase 2 Boeing Renton Plant Sub-District 1A Consistency CAG-06-009 Adden#1-06 Inc. N/A Analysis($3,080 paid for by Transwestern Harvest Landing) 5/22/2006 ED Blumen Consulting Group, Phase 2 Boeing Renton Plant Sub-District 1B Consistency CAG-06-010 Adden#1-06 Inc. N/A',Analysis 04,610 paid for by The Boeing Co.per memo) 5/22/2006 ED H:/City Clerk/Contract Log 2006.xls Page I 7/10/2006 2nd Quarter 2006 Contract List .CONTRACT i ADDENDUM/ CONTRACT APPROVAL NUMBER : ._ EXTENSION NAME/TITLE AMOUNT . :. : ;. PURPOSE DATE DIV Roth Hill Engineering Sewer System Analysis,Heather Down/Maplewood Basins- CAG-06-022 Adden#1-06 Partners,LLC N/A Extend completion date to 12/31/2006 6/15/2006 U Airport Quonset Hut Building 790 2nd floor egress&ADA CAG-06-023 Lincoln Construction Co. 129,851.00:upgrades 5/31/2006 A Northwest Security Provide City security personnel at the Renton Community CAG-06-031 Adden# 1-06 Services,Inc.(NWSS) 4,572.72 Center-Additional work items and time extension to 6/2/2006 4/19/2006 PA WTR-27-3287/8-Inch Water Main Replacement in:N 31st St., CAG-06-039 VJM Construction,Inc. 270,249.02;N33rd St.,NE 24th St 4/25/2006 U Federal Aviation Memorandum of Agreement regarding emergency response to CAG-06-043 Administration N/A the FAA building 6/19/2006 F Ohno Construction CAG-06-044 Company 994,990.14 New Park at 233 Union Av NE and NE 3rd Ct 5/18/2006 PA CAG-06-047 Wright Roofing,Inc. 99,382.27 Roof replacement for the Renton Carco Theatre 6/19/2006 PA WA Department of Title VI Non-Discrimination Agreement for Populations Under CAG-06-061 Transportation N/A 100,000 4/5/2006 T Secondary review of wetland delineations/monitoring/maintenance; CAG-06-063 The Watershed Company 15,000.00 mitigation plans for land use applications as needed 4/6/2006 DS Construction management services for Sunset Blvd(SR 900) CAG-06-064 Parametrix,Inc. 182,179.00 Duvall Av Improvement Project(Inspection) 4/11/2006 T CAG-06-065 DMJM Harris 757,248.00 Rainier Av/BNSF Improvements Final Design 4/17/2006 T CAG-06-066 Construct Co. 571,200.00•Airport Entrance Rehabilitation Project 6/8/2006 T 2006 4th of July Event Sponsorship;6 installment payments to CAG-06-067 Freddie's Club N/A City @$4,166.65 each,totaling$25,000 4/18/2006 E State funding of preliminary engineering&environmental CAG-06-069 Sound Transit N/A documentaions of transit improvements to be constructed by City 5/8/2006 T CAG-06-070 •Perteet,Inc. 15,130.00 May Creek Bridge Site Surveying Services 4/25/2006 T 2006 USACE Cedar River Section 205 Project Monitoring CAG-06-071 Golder Associates,Inc. 102,660.33 Consultant 4/27/2006 U Heating,ventilating&air conditioning systems services at City CAG-06-072 McKinstry Co. 63,509.00 Hall;$63,509 annually for 3 years 4/27/2006 PA ( Ilk H:/City Clerk/Contract Log 2006.xls Page 2 7/10/2006 F ( ( 1 . 2nd Quarter 2006 Contract List :.:CONTRACT ADDENDUM] CONTRACT ` . APPROVAL . Nt3mB R: , •EXTENSION , NAME/TITLE. AMOUNT. , PURPOSE DATE DIV Berger/Abam Engineers, Evaluation of the Kennydale Swimming Pier and Log Boom CAG-06-073 , Inc. 10,719.00 project 4/24/2006 PA CAG-06-074 Parametrix,Inc. 29,701.11 Flooding analysis of Ron Regis Park 4/28/2006 PA CAG-06-075 PACE Engineers,Inc. 54,300.00'Surveying services for future Wastewater CIP's 4/28/2006 U CAG-06-076 RAO Associates,Inc. 19,950.00 On-call transportation modeling services 4/27/2006 T 2006 General Services-Lift Station Review/Telemetry and CAG-06-077 RH2 Engineering,Inc. 49,548.00 Data Logger Design Assistance 5/9/2006 U S Lake WA Roadway Improvement Project(The Lakeshore CAG-06-079 DMJM Harris 20,000.00,Landing Constructibility Review) 4/28/2006 T Construction Management Services for the S Lake WA 1 CAG-06-079 Adden#1-06 DMJM Harris 1,597,500.00 Roadway Improvements Project 5/22/2006 T Ikon Office Solutions/IOS Rental Agreement for three printers in the Print Shop CAG-06-081 Capital 188,000.00 (PCP1050-$24,048;CPP500-$26,508;CPP500-$26,508) 5/10/2006 IS Rainier Ave(S 4th P1 to S 2nd St)/Hardie Ave Transit CAG-06-082 KPG,Inc. 2,736,425.00 Improvement Project PE/ED PS&E ROW Design Contract 5/12/2006 T Basilica de Talpa de Event Coordination of an Art Exhibit"Sacred Art Exhibition" CAG-06-083 Allende N/A,at the Renton Community Center 5/8/2006 PA Deanna Isadore dba Lazy Lease/Concession Agreement to manage/operate food& CAG-06-084 "I" Ice Cream N/Abeverage concession at Liberty Park,grandstand 5/15/2006 PA Accept Enhancement Grant Funds of$100,000 for Renton CAG-06-086 WA Transportation 20,000.00 Bicycle Route Connection Plan 6/5/2006 T City's use of designated property for temporary surge parking CAG-06-087 The Stoneway Corporation 1.00 by the Henry Moses Aquatic Center 5/4/2006 PA Develop a plan for migration from City's Novell Infrastructure CAG-06-088 Seitel Leeds&Associates 27,300.00 to a Microsoft based platform. 5/22/2006 IS Puget Sound Refrigeration, CAG-06-089 Inc. 7,441.92 Annual Maintenance HVAC system at Maplewood Clubhouse 4/24/2006 PA Design of Water Relocation for Realignment of Benson Rd and CAG-06-093 HDR Engineering,Inc. 86,844.00 I-405 Overpass 6/9/2006 U Children's Therapy Center CDBG Grant for early intervention for children with CAG-06-094 of Kent 2,500.00 developmental delays&disabilities 6/2/2006 HS H:/City Clerk/Contract Log 2006.xls Page 3 7/10/2006 2nd Quarter 2006 Contract List CONTRACT ADDENDUM/ CONTRACT APPROVAL NtUM$ER. EXTENSION . NAME/TITLE AMOUNT PURPOSE DATE bIV Northwest Archaeological Cultural Resource Survey for South Lake Washington CAG-06-095 Associates 12,498.41 Roadway Improvements 6/5/2006 T Peratrovich,Nottingham& Gene Coulon Memorial Beach Park Underwater&Topside Inspection for CAG-06-096 Drage,Inc. 48,000.00North Log Boom Rehab. and other engineering services 6/8/2006 PA Lindbergh High School CAG-06-099 Cheer Squad 400.00 Provide face painting at Freddie's/City 4th of July event 6/6/2006 PA CAG-06-100 WA Transportation N/A Turnback Agreement on S Lake WA Roadway Improvements 6/19/2006 T CAG-06-101 Western Display Fireworks 15,000.00 Provide fireworks display at Freddie's/City 4th of July event 6/5/2006 E Northwest Hydraulics CAG-06-104 Consultants,Inc. 16,998.00 Annual Cedar River Cross Section Surveys 6/12/2006 U Skyway Water&Sewer Utilities Cooperation Agreement-design/construction of emergency CAG-06-106 District 154,494.00 water system intertie-Dimmitt Booster Pump Station 6/14/2006 U Hamilton/Saunderson Coordinate logistics of the 2006 Spirit of Washington Cinema CAG-06-109 Marketing Partnership 40,000.00 at Liberty Park Sponsorship Agreement 6/26/2006 PA 2006 Spirit of Washington Cinema Sponsorship Agreement, CAG-06-110 Spirit of Washington N/A payable to City of Renton by 6/16/2006($20,000 revenue) 6/26/2006 PA Support&maintenance of Fire Department's Records CAG-06-111 FDM Software Ltd. 21,725.48 Management software system(FDMWin4) 6/26/2006 F Federal Aviation Grant of$150,000 for Security Gate Replacement at the Renton CAG-06-112 Administration N/A Municipal Airport(Airside/Landside Separation Project-Ph II) 6/26/2006 T Performance during City of Renton 2006 4th of July CAG-06-116 Hettel Street Blues 500.00 Celebration,6:00-7:15 pm 5/26/2006 PA Performance during City of Renton 2006 4th of July CAG-06-117 The Juggling Jollies 500.00 Celebration,2:30-3:15 pm 6/15/2006 PA Performance during City of Renton 2006 4th of July CAG-06-118 BrickHouse 1,000.00,Celebration, 8:00-9:45 pm 6/15/2006 PA Performance during City of Renton 2006 4th of July CAG-06-119 Blue 4 Trio 450.00 Celebration,4:30-5:15 pm 5/24/2006 PA CAG-06-120 Avidex Industries 19,990.10 Install a video security system for Maplewood Golf Course 6/23/2006 PA Alexa Milton Interior Provide design services for exterior paint on Maplewood Golf CAG-06-121 Design 7,752.00 Course Clubhouse&Driving Range 6/26/2006 PA ( k H:/City Clerk/Contract Log 2006.xls Page 4 7!10/2006 2nd Quarter 2006 Contract List CONTRACT ADDENDUM] CONTRACT APPROVAL NUMBER EXTENSION NAME/TITLE AMOUNT PURPOSE DATE DIV Extend conduit for security camera system between CAG-06-122 S.E.S.Incorporated 3,508.80 Maplewood Golf Course Clubhouse&Driving Range 6/26/2006 PA Provide telemetry upgrades for the Emergency Power CAG-06-123 Reid Instruments 14,784.14 Generation Facilities 2006 project 6/23/2006 U CAG-06-127 KPG,Inc. 19,607.00 Houser Way/Lake Washington Blvd Alignment Study 6/21/2006 T 51 Contracts 20 Addenda TOTAL 9,108,034.81 H:/City Clerk/Contract Log 2006.xls Page 5 7/10'2006 CITY OF RENTON COUNCIL AGENDA BILL AI#: 6:1 r (.-1141.00, Submitting Data: For Agenda of: 07/17/2006 Dept/Div/Board.. AJLS/City Clerk Staff Contact Bonnie I. Walton Agenda Status Consent X Subject: Public Hearing.. Appeal of Hearing Examiner's decision dated 6/8/2006 Correspondence.. regarding the Defoor Short Plat application. (File No. Ordinance LUA-05-089, SHP) Resolution Old Business Exhibits: New Business A. Response letter - Collins (7/10/2006) Study Sessions B. City Clerk's letter (7/5/2006) Information C. Appeal - Ricci Grube Aita PLLC (6/22/2006) D. Hearing Examiner's Report & Decision (6/8/2006) Recommended Action: Approvals: Refer to Planning and Development Committee. Legal Dept Finance Dept Other Fiscal Impact: N/A Expenditure Required... Transfer/Amendment Amount Budgeted Revenue Generated Total Project Budget City Share Total Project.. SUMMARY OF ACTION: Appeal of the Hearing Examiner decision on the Defoor Short Plat application was filed on 6/22/2006 by Karen Orehoski, Ricci Grube Aita PLLC, Representative for Terry Defoor, accompanied by the required $75 fee. STAFF RECOMMENDATION: Council to take action on the Defoor Short Plat application appeal. cc: Jennifer Henning Larry Warren Rentonnetlagnbill/ bh July 10, 2006 Office of the City Clerk and City Council Members No City of Renton `:44 Renton, WA 98057 Subject: LUA 05-089 Defoor Property Plat — Stream "B" Appeal (9th & Renton Avenue S. Application) Dear City Council Members: This letter concerns the planning / public comment phase of the Appeal of Hearing Examiner's decision dated June 8, 2006 regarding the Defoor Short Plat application, located at 900 Renton Avenue South (position comment allowed per letter dated July 5, 2006 mailed by Bonnie Walton, City Clerk). I wish to stress that I am not an "expert," and have knowledge only through contact with a City of Renton, Park Department Director, senior citizen / long-time neighbors in the vicinity of the stream in question, and daily observations of the groundwater contribution to this stream. The 1939 aerial photograph presented by the applicant during the Hearing Examiner's review of this short plat reinforces some of this knowledge. Per my dear friend Gene Coulon, now deceased, several natural springs / streams originated in and around what is now Phillip Arnold Park, east of Jones Avenue South. One of the springs fed the Nirsoi City water tank at 1308 Beacon Way South. Another of these steams discharged westward along the North side of what is now 9th Street, from the park to the then-wooded area along the North side of the Defoor property (now referred to as "Stream B"). This stream was later held by a man-made dam at the West side of the intersection of 9th and Grant, with the discharge allowed to flow into its previous "channel." This dam is visible in the aerial photograph previously submitted. One will note that South 9th actually splits, just west of the dam, into a "Y", with the primary road heading northeast. The father of the neighbor at 9th and High (SW corner) had first- hand experience with the development/revision of this dam. While housing and street development along South 9th proceeded, this open-air, natural stream was forced into an underground pipe alongside South 9th, the dam was removed, and the intersection of 9th and Grant was developed as we see it today. Natural groundwater from Phillip Arnold Park and vicinity continues to run every day of the year through this pipe, as can be seen and heard by anyone passing along South 9th, for its entire length. Respectfully submitted, / %r. William Collins 420 Cedar Ave So Renton, WA 98057 ti`cY o CITY. OF RENTON ru City Clerk sep , Kathy Keolker,Mayor Bonnie I.Walton July 5, 2006 July 10, 2006 APPEAL FILED BY: Karen Orehoski, Ricci Grube Aita PLLC, Representative for Terry Defoor RE: Appeal of Hearing Examiner's decision dated 6/8/2006 regarding the Defoor Short Plat application, located at 900 Renton Ave. S. (File No. LUA-05-089, SHP) To Parties of Record: Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the hearing examiner's decision on the . -- •' • s- '4. . _ : -•_ •_ :- -••. Defoor Short Plat application has been filed with the City Clerk. In accordance with Renton Municipal Code Section 4-8-110F, the City Clerk shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters limited to support of their positions regarding the appeal within ten (10) days of the date of mailing of the notification of the filing of the appeal. The deadline for submission of additional letters is 5:00 pm, July 17, 2006. NOTICE IS HEREBY GIVEN that the written appeal and other pertinent documents will be reviewed by the Council's Planning and Development Committee. The Council Liaison will notify all parties of record of the date and time of the Planning and Development Committee meeting. If you are not listed in local telephone directories and wish to attend the meeting, please call the Council Liaison at 425-430-6501 for information. The recommendation of the Committee will be presented for consideration by the full Council at a subsequent Council meeting. Copy of the appeal and the Renton Municipal Code regarding appeals of Hearing Examiner decisions or recommendations are attached. Please note that the City Council will be considering the merits of the appeal based upon the written record previously established. Unless a showing can be made that additional evidence could not reasonably have been available at the prior hearing held by the Hearing Examiner, no further evidence or testimony on this matter will be accepted by the City Council. For additional information or assistance, please feel free to call me at 425-430-6502. Sincerely, 166/1 41,441-. ftp, Bonnie I. Walton City Clerk Attachments 1055 South Grady Way-Renton,Washington 98055-(425)430-6510/FAX(425)430-6516 RENTON AHEAD OF THE CURVE .. This paper contains 50%recycled material,30%post consumer CIO/ LL!LCICIO LC1b I l n l btu/ K1(L1 (aFUtit Al 1 A h'LA h'AUL U2/11 APPEAL OF HEARING EXAMINER'S DECISION/RECOMMENDATIOIcI OF RENTCN TO RENTON CITY 4 COUNCIL . FILE NO. L-14 OSqJ -DB , S/PL —/ {{ I, �r APPLICATION NAME De-coo r U r - Pt a RECEIVED CrrY CLERK'S OFFICE Af ficf r-''• MN The undersigned interested party hereby files its Notice of Appeal from the decision or recommendation of the Land Use Hearing Examiner, dated 714 N-C 8 200(o. 1. IDENTIFICATION OF PARTY APPELLANT: /� REPRESENTATIVE (IF ANY): Name: `T-ern/ 1)-e T��Y Name:/c i-cc,/ 6n-4, th Y, P L Le_ Address: 2943 3 / ' ' ' S' Address: //00/ feitr?-rd 1;1/Y., /°2-0 1111/0 //! 14"4 11?-0 / S'.,47t/e, 9g//2- 2. SPECIFICATION OF ERRORS (Attach additional sheets, if necessary) Set forth below are the specific errors or law or fact upon which this appeal is based: FINDING OF FACT: (Please designate number as denoted in the Examiner's Report) No. Error: .P /W A Si 411,01C/7-(.1 od d r,SS/• /�- , o// err-pry- Viii TY7 f7 i/ f/% • City of Renton Municipal Code;Title IV,Chapter 8,Section 110—Appeals 4-8-110C4 The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170,the fee schedule of the City. (Ord. 3658,9-13-82) 4-8-110F: Appeals to City Council—Procedures 1. Time for Appeal: Unless a specific section or State law providing for review of decision of the Examiner requires review thereof by the Superior Court or any other body,any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Council,upon a form furnished by the City Clerk,within fourteen(14)calendar days from the date of the Examiner's written report. 2. Notice to Parties of Record: Within five (5)days of receipt of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the appeal. 3. Opportunity to Provide Comments: Other parties of record may submit letters in support of their positions within ten (10) days of the dates of mailing of the notification of the filing of the notice of appeal. 4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members of the City Council all of the pertinent documents, including the written decision or recommendation, findings and conclusions contained in the Examiner's report,the notice of appeal, and additional letters submitted by the parties. (Ord. 3658, 9-13-1982) 5. Council Review Procedures: No public hearing shall be held by the City Council. No new or additional evidence or testimony shall be accepted by the City Council unless a showing is made by the party offering the evidence that the evidence could not reasonably have been available at the time of the hearing before the Examiner. If the Council determines that additional evidence is required, the Council shall remand the matter to the Examiner for reconsideration and receipt of additional evidence. The cost of transcription of the hearing record shall be borne by the applicant. In the absence of an entry upon the record of an order by the City Council authorizing new or additional evidence or testimony, and a remand to the Hearing Examiner for receipt of such evidence or testimony,it shall be presumed that no new or additional evidence or testimony has been accepted by the City Council,and that the record before the City Council is identical to the hearing record before the Hearing Examiner. (Ord. 4389, 1-25-1993) 6. Council Evaluation Criteria: The consideration by the City Council shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties. 7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-1-050F1, and after examination of the record, the Council determines that a substantial error in tact or law exists in the record, it may remand the proceeding to Examiner for reconsideration, or modify, or reverse the decision of the Examiner accordingly. 8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to RMC 4-1-050F2 and F3, and after examination of the record,the Council determines that a substantial error in fact or law exists in the record, or that a recommendation of the Hearing Examiner should be disregarded or modified, the City Council may remand the proceeding to the Examiner for reconsideration,or enter its own decision upon the application. 9. Decision Documentation: In any event, the decision of the City Council shall be in writing and shall specify any modified or amended findings and conclusions other than those set forth in the report of the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record. The burden of proof shall rest with the appellant.(Ord 3658, 9-13-1982) 10. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames established under subsection G5 of this Section. (Ord. 4660, 3-17-1997) vvi <e <vuu <Vv r ,V r uV r f[1 Vl.l U(CUDC H1 1 H f LH rHl7G l'JJ/ 11 ATTACHMENT TO APPEAL OF HEARING EXAMINER'S ftior DECISION/RECOMMENDATION TO RENTON CITY COUNCIL FILE NO. LUA 05-089, SHPL-H APPEAL OF JUNE 8, 2006 HEARING EXAMINER'S DECISION SPECIFICATION OF ERRORS: FINDINGS OF FACT: No. 17 Error: The Hearing Examiner states in ¶ 17 of his Findings of Fact that neighbors of the Defoor property testified that there is a spring and wet area slope feeding Stream B. The Hearing Examiner improperly assigns this information as a Finding of Fact because the neighbors did not testify as experts and there was no evidence presented that Stream B is fed by a spring. Correction: 1117 should read that there was no evidence supporting the neighbors' testimony and that the neighbors are not experts. The only evidence presented to support that a wet area slope and/or a spring is feeding Stream B was non-expert testimony by neighbors of the property. Further, the existence of ground water is irrelevant to the ultimate decision which is whether or not this watercourse was artificially created. No. 23 Error: The Hearing Examiner states in¶23 of his Findings of Fact that the 1936 aerial photograph does not appear to show Stream B (emphasis added). Correction: This Finding of Fact should read that the 1936 aerial photograph does not show Stream B. No. 24 Error: In the last sentence of¶24, the Hearing Examiner states, "This office finds there is no evidence that there was an intent to create a channel as opposed to just releasing water from a culvert on the downslope side of the roadway." It should be noted that no evidence was presented at all regarding the intent of the City when the culvert system and roadway were constructed. Further, intent is irrelevant to determine the matter at hand as Renton Municipal Code (RMC) does not address intent. Correction: This sentence should be stricken because (1) no evidence was presented to support the Hearing Examiner's conclusion on intent and (2) intent is irrelevant in construing the relevant RMC provisions. No. 26 Error: The Hearing Examiner's summary of the City expert, Hugh Mortensen's, testimony fails to note that the Mr. .Mortensen's conclusion that the stream was perennial because it was flowing in late August was based on one site visit. Mr. Mortensen presented no field notes or other evidence to support his testimony. Mr. Mortensen based his conclusion that Stream B should be classified as a Class 3 stream on one site visit and does not have the field notes to support that finding. Mr. Mortensen states that a possible reason Stream B is not seen in the 1936 aerial photograph is because a six inch stream would not be visible on a photograph of this scale. The Hearing Examiner fails to note in his findings that this is speculation on Mr. Mortensen's behalf and there was no evidence FILE NO. 05-089, SHPL-H APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006 GO/LL/ LGGO 1 J.37 LGO I I G/OG/ Kll.l.,l UKUtSt Fdl I H 1-1_14 r'NUt b4/,11 supporting a finding that Stream B was in existence at all in 1936 and certainly no evidence supporting a finding that it was six inches in width at that time. Further, the ,, Hearing Examiner fails to note that no evidence was presented supporting Mr. Mortensen's conclusion that water other than storm water is feeding Stream B. Correction: ¶26 should note that Mr. Mortensen's conclusions are based upon one site visit and no other evidence was presented supporting his speculation that Stream B was in existence at all in 1936. The paragraph should also reflect that there was no evidence presented that water other than stoma water is feeding Stream B. CONCLUSIONS: No. 5 Error: In¶5 of the Conclusion section, the Hearing Examiner states that he believes this matter has come down to a disagreement between experts. The Hearing Examiner then goes on to state that the decision below must be given substantial weight. While this is true, it goes against reason to assign substantial weight to the decision of the Development Services Director when that decision was based upon one site visit by the City's expert, Hugh Mortensen, and when Mr. Mortensen is unable to support his findings by field notes or any other data. The Appellant presented several geomorphologic experts, all of whom agreed that Stream B is an artificially constructed watercourse and all of whom presented scientific data based upon several visits to the site in question. The Hearing Examiner does not appear to give any weight at all to this testimony and evidence. While City Ordinance 4346 does require the Hearing Examiner to give substantial weight to the decision below, it does not mean that evidence presented to the contrary should not be assigned the proper weight. The Hearing Examiner concludes that because there may be water, other than storm water that runs in Stream B it is perennial and therefore qualifies as a Class 3 stream. This conclusion ignores the evidence that Stream B was formed by actions taken by the City of Renton and not through natural means. The Hearing Examiner bases his conclusion that Stream B is a Class 2 stream on testimony that it has a perennial flow. However, according to RMC, the perennial nature of a watercourse does not bar that watercourse from being a Class 5 stream: Class 5: Class 5 waters are non-regulated non-salmonid-bearing waters which meet one or more of the following criteria: (a) Flow within an artificially constructed channel where no naturally defined channel had previously existed; and/or (b) Are a surficially isolated water body less than one-half(0.5) acre (e.g., pond) not meeting the criteria for a wetland as defined in subsection M of this Section. RMC 4-3-050(L)(a)(v). The Hearing Examiner's conclusion in¶ 5 is based on a flawed reading of RMC. Whether or not the watercourse has a perennial flow is irrelevant to whether it was artificially constructed. The drafters of RMC did not address the nature of the flow of an FILE NO. 05-089, SHPL-H APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006 • Gbl L / LGGb 1 J: J7 LGO I I G/bq I Kll l l UKUbt Hl I H rLH r HUt GD/11 artificially constructed watercourse and the Hearing Examiner cannot now base his Nikiw decision on an element that is not addressed in RMC. Further, the IIearing Examiner does not assign the proper weight to the testimony and evidence presented by the Appellant's experts. The Hearing Examiner fails to note that the City presented no evidence, other than speculation, that Stream B is a naturally occurring stream while the Appellant's experts testified and presented evidence that it is an artificially constructed watercourse. Correction: Because the Hearing Examiner did not take into consideration all the testimony and evidence presented during the hearing, the Hearing Examiner's decision should be reversed based on the evidence and testimony presented by the Appellant's experts. According to RMC, the perennial nature of Stream B does not preclude it from qualifying as a Class 5 stream and inasmuch as the Hearing Examiner's decision is based on the possible perennial nature of Stream B, the decision should be reversed. No. 6 Error: In¶6,the Hearing Examiner concludes that because there were no objections from the previous property owner when the road and culvert were installed, that there must have been a pre-existing stream. There was no evidence presented to support this conclusion of the Hearing Examiner. The decisions of a prior property owner are irrelevant to these proceedings. It is improper for the Hearing Examiner to surmise what a past owner would do and certainly when no evidence was presented that the past owner did not object to the City. Correction: This should be stricken from the Hearing Examiner's decision and the decision should be reversed in that it was partly based on irrelevant information that was not supported by testimony or evidence. No. 7 Error: The Hearing Examiner addresses the photographic evidence presented by the Appellant and concludes that Stream B not appearing in the aerial photographs is not compelling evidence that Stream B did not exist prior to the City's construction of the roadway and culvert. This conclusion by the Hearing Examiner fails to recognize that there was also testimony from the Appellant's experts that Stream B is likely only decades old. This testimony is based on geomorphologic data. The Hearing Examiner failed to consider the photographic evidence and the testimony presented by the Appellant's expert in conjunction with each other. The City failed to present any evidence or testimony to support that Stream B was in existence before the road and culvert were constructed. Correction: The Hearing Examiner's decision should be reversed because the Hearing Examiner failed to consider all the evidence and testimony presented during the hearing. No. 8 Error: The Hearing Examiner addresses the definitions of"artificially" and "constructed"as used in RMC 4-3-050(L)(a)(v)to define a Class 5 stream. RMC does not define "artificially"or"constructed". It is widely recognized in the law that when a statute fails to define a term, that term will he construed in accordance with its general dictionary definition. City of Yakima v. Johnson, 16 Wn.App. 143, 146, 553 P.2d 1104, 1105-1106 (1976). As the Hearing Examiner notes, Webster's Third New International Dictionary defines "artificial"as "contrived through human art or effort and not by natural causes detached from human agency: relating to human direction or effect in FILE NO. 05-089, SHPL-H APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006 06/22/2006 13: 39 2067707607 RICCI GRUBE AITA PLA NAGE 06!11 contrast to nature." "Construct"is defined as "to form, make, or create by combining parts or elements: Build, Fabricate." While the Hearing Examiner recognizes that ordinary meaning must be assigned to these words,he states in¶ 8 that artificially constructed seems to mean there was intent to construct the water course. The Hearing Examiner extends the definitions provided by Webster's Third New International Dictionary by adding the element of intent. The definitions do not speak to intent nor does the RMC. Correction: The Hearing Examiner's decision should be reversed because the ordinary meaning of"artificially" and"construct"do not contain an element of intent and RMC does not require that the City intentionally construct an artificial channel in order for a watercourse to be a Class 5 stream. The drafters of RMC did not include an element of intent in their definition and the Hearing Examiner cannot now base his decision on lack of intent. No. 9 Error: The Hearing Examiner's conclusions in¶9 are based upon his finding that the City did not intentionally construct a watercourse. As noted above, this is in error because neither the ordinary meaning of"artificially"and "constructed"nor RMC require that there be intent. Reading the definition of a Class 5 stream as a whole, it is clear that Stream B is a Class 5 stream: "Flow within an artificially constructed channel where no naturally defined channel had previously existed." The City offered no evidence that Stream B existed prior to the construction of the road and culvert system. On the other hand, the Appellant's experts presented ample evidence that this watercourse was not in existence prior to the construction of the road and culvert system. Correction: The Hearing Examiner's decision should be reversed because he mistakenly bases his decision on lack of intent by the City where intent is not an element in the RMC or the ordinary definitions of"artificially" or"constructed". No. 10 Error: The conclusions reached by the Hearing Examiner in¶ 10 are not supported by any evidence presented by the City. These conclusions are not supported by any Finding of Fact in the record. Correction: The Hearing Examiner's decision should be reversed because his conclusions are not based on evidence of record. No. 11 Error: The Hearing Examiner states the Appellant has speculated that Stream B is artificial and that speculation does not meet the Appellant's burden. The record reflects that the Appellant's case is based on much more than speculation. The Appellant's case is based on geomorphologic science and this qualifies as more than speculation. However, the City's case appears to be based on a conclusion reachedby one person who made one visit to the site at issue. The expert testimony and evidence presented by the Appellant qualifies as more than speculation and should be given more weight than the Hearing Examiner is willing to assign to it. Even while giving substantial weight to the decision below, the ample evidence presented by the Appellant met the Appellant's burden in this matter, demonstrating that the decision below was in error by a showing of clear and convincing evidence. Correction: The Hearing Examiner's decision should be reversed because he fails to base his decision on evidence of record. 4100, FILE NO. 05-089, SHPL-H APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006 • bb/LL/Lobb 1J: .1 Lbb//b/bb/ K1C.:l.:l UkUbt AlIA ILA F'Alat b//11 No. 12 Error: As stated above, the Appellant met the burden of demonstrating that the decision below was in error and did so with clear and convincing evidence. The record itself clearly demonstrates that Stream B was artificially constructed by the City's construction of the roadway and culvert system. The Hearing Examiner fails to assign the proper weight to testimony and evidence presented by the Appellant. Correction: The Hearing Examiner's decision should be reversed because the Appellant did meet his burden of demonstrating error with the decision below and did so by presenting clear and convincing evidence to the Hearing Examiner. SUMMARY OF ACTION RE9UESTED: The Appellant respectfully requests that the Renton City Council reverse the June 8, 2006, decision of the Hearing Examiner and grant the following relief: Classify Stream B as a Class 5 stream based upon the evidence in the record demonstrating that Stream B was artificially constructed when the City of Renton constructed the roadway and culvert system. low Nov FILE NO. 05-089, SHPL-H APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006 UUi 44, LUUU J.J. JJ LUU r r U r oU r Kll.l.,l VKUt7C H1 I i-i 1"'Lt-i I'I-IL G'�/11 REQUEST FOR CITY COUNCIL TO ACCEPT NEW EVIDENCE FILE NO. LUA 05-089, SHPL-H RE: APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006 The Appellant, Terry Defoor; respectfully requests that the City Council accept new evidence in this matter attached to this Request as Exhibit A. This affidavit was not available to the Appellant at the time of the hearing before the Hearing Examiner as the author of the affidavit, Larry Fisher of the Washington Department of Fish and Wildlife, did not make a site visit until after the hearing took place. In accordance with RMC 4-8- 110F(5), this evidence was not available to the Appellant at the time of the hearing before the Hearing Examiner. FILE NO. 05-089, SHPL-II REQUEST FOR CITY COUNCIL TO ACCEPT NEW EVIDENCE CJb/ LL/LGGO 1J. J7 LCJO//YJ(but Kll;LI UKUtit A11A NLA NAVE 1b/11 EXHIBIT A. Defoor Appeal of June 8, 2006 Hearing Examiner's Decision LUA 05-089, SHPL-H EXHIBIT A —Declaration of Larry Fisher ui SuuL H1 iH F rHl7G 11,/ 11 1 2 3 4 S APPEAL OF JUNE S.2006 HEARING EXAMINER'S DECISION/RECOMMENDATION TO RENTON CITY COUNCIL 6 7 R RE: DEFOOR APPEAL FILE NO. LUA 05-0R9, SHPL-H 9 DECLARATION OF LARRY FISHER 10 11 I, Larry Fisher, certify and declare as follows: 12 1. I am an Area,Nahitat 13ialogist with the Washinrtton Department of Fish and Wildlife. 13 2. I have reviewed the features on the Defoor property located in the City of Renton 14 referred to as Stream B and Drainage 1. 15 3. My review of Stream B and Drainage 1 took place on Friday May 30, 2006. at the 16 property site at issue. 1 was accompanied by William Shiels. Principal of Talasaea 17 Consultants, 4.1 R Based on the geomorphologic characteristics of Stream B and Drainage 1, it is my 19 opinion that Stream B and Drainage I are the result of erosion due to the discharge of 20 stormwater along Renton Avenue South,and are therefore artificial watercourses. 21 22 DATED at .5 ky , Washington this z2As4dav of , 2006. 23 24 c' - -- -�-- Larry Fisher 25 Area Habitat Biologist Washington Department of Fish and Wildlife DECLARATION OF LARRY FISHER RE: DEFOOR Name APPEAL TO RENTON CITY COUNCIL.-Parc 1 of 1 • Gb/LL/ LGGb 1.7:J7 LGb I I G I bG I Kll.l.l UKUtSt Nl I Ld r"LH I'liUt Gl/11 RICCI GRUBE AITA , PLLC ATTORNEYS AND COUNSELORS AT LAW 1 0 R 0 BROADACRES BUILDING CITYOF RENTON stare 1601 SECOND AVENUE JUN 2 2 2006 SEATTLE , WASHINGTON 9 8 1 0 1 RECEIVED TEL . ( 206 ) 770 - 7606 CITY CLERK'S OFFICE Fax ( 206 ) 770 7601 ApfrO' . FACSIMILE TRANSMITTAL SHEET TO: �., FROM; .. ��•. Renton City Clerk Karen Orehoski COMPANY: DATE 6/22/2006 FAX NUMBER: TOTAL NO.OF PAGES INCLUDING COVER. 425 430 6516 11 PHONE NUMBER: RE Defoor Appeal of Hearing Examiner's Decision LUA 05-089, SHPL-H 0 URGENT 0 FOR YOUR FILE Q FOR YOUR REVIEW 0 PLEASE REPLY 0 PLEASE RECYCLE Nave NOTES/COMMENTS. Dear Clerk: Following this page you will find my client's Appeal of Hearing Examiner's Decision, File No. LUA 05-089, SHPL-1 I. I am sending the originals via U.S. Mail today. I am also faxing a receipt indicating that we paid the required$75.00 to your office on June 16, 2006. If there are any questions or if you do not receive all the pages, please contact me immediately. You can reach me at (206) 838-8650 Best regards, Karen Orehoslci THE DOCUMENTS ACCOMPANYING THIS FACSIMILE TRANSMISSION CONTAIN INFORMATION THAT IS OR MAY BE CONFIDENTIAL AND/OR PROTECTED BY TUE ATTORNEY-CLIENT PRIVILEGE. TUE INFORMATION TS INTENDED FOR THE SOLE USE OF THE INDIVIDUAL NAMED ON THIS TRANSMISSION SHEET ONLY. IF YOU ARE NOT TUE INTENDED RECIPIENT, OR AN AGENT OR EMPLOYEE OF TUE RECIPIENT. PLEASE BE AWARE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR USE Of THIS INFORMATION IS PROHIBITED. IF YOU HAVE RECEIVED THIS FACSIMILE TRANSMISSION IN ERROR. PLEASE NOTIFY US BY COLLECT TELEPHONE CALL IMMEDIATELY, AND WE WILL ARRANGE FOR TUE RETRIEVAL OF TIE DOCUMENTS. 4040," THANK YOU. (rL': ed y /Q Orney AJei/ Wolfs Fied /CC!1G /YZQ'n • June 8,2006 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANT Jason Walker Talasea 15020 Bear Creek Road NE Woodinville,WA 98077 Representing: Terry DeFoor,Appellant Debra Eby Ricci 1601 2"d Avenue. Ste. 1080 Seattle, WA 98101 Counsel for: Terry DeFoor,Appellant Zanetta Fontes City of Renton,Assistant City Attorney Jill Ding,Development Services Hugh Mortensen, Watershed Company Defoor Short Plat Appeal File No.: LUA 05-089, SHPL-H PUBLIC HEARING: After reviewing the Appellant's written requests for a hearing and examining available information on file, the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the May 2,2006 hearing. The legal record is recorded on CD. The hearing opened on Tuesday,May 2, 2006,at 9:02 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. Parties present: Zanetta Fontes,Assistant City Attorney Jill Ding,Development Services Hugh Mortensen,Watershed Company Debra Eby Ricci Attorney at Law 1601 2"d Avenue. Ste. 1080 Seattle,WA 98101 Jason Walker Talasea 15050 Bear Creek Road NE Woodinville, WA 98077 Defoor Appeal File No.: LUA-05-089, SHPL-H June 8,2006 Page 2 The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing correspondence Exhibit No.2: Stapled packed dated May 1,2006 asking for the appeal,request to Mr. Watts and his response and the correspondence setting up the appeal hearing. Exhibit No.3: Talasea Letter dated November 17, Exhibit No.4: Icicle Creek Letter dated March 24, 2005 Requesting Reconsideration 2006 signed by Brian R.Beaman Exhibit No.5: GeoTech Engineers Letter dated May Exhibit No.6: More Defined Original Page 5 of 1, 2006 Exhibit 2. Exhibit No.7: Large Map Showing Topography of Exhibit No.8: Renton Coal Mine Map with Site Underground Features Exhibit No. 9: Copy of Aerial Photograph dated 1936 Exhibit No. 10: Actual Aerial Photograph of Exhibit 9 Exhibit No. 11: Drawing by Maryann Reinhart of a 'tow Cross Section of Stream B,West of Big Leaf Maple. The various parties introduced themselves and the parties they were representing. The Examiner stated that he had received a packet this morning and has not had an opportunity to review the information. A short break was taken so Ms. Ricci could look over the yellow file. Jason Walker briefly described the packet presented this morning and the information contained within. The first 15 items were plans and photographs which will be discussed in detail later, the second stapled item was the reconsideration request that is part of the yellow file,the third and fourth stapled items were letters from the consultants that will be testifying today. The site is located on the eastern side of 1-405, the northeast corner is located at 9th Street and Renton Avenue S. The site is a short plat adjacent to the preliminary plat of the same name. This site has two identified streams, Stream B to the north and Stream A and Drainage 1 are to the south and in the same corridor but separate channels,Drainage 1 is just south of Stream A. Offsite to the west is another drainage, Stream C and two wetlands to the west, Wetland A is offsite and Wetland B is onsite and associated with Stream B. This request was to address the Renton Municipal Code under the description of Class 5 Stream. They believe that this stream was of man made origin. A Class 5 Stream is defined as a flow within an artificially constructed channel where no naturally defined channel had previously existed. They requested that Stream B be considered as a Class 5 and not a Class 3 stream as the City had rated this stream. Stream B originates from a 12-inch concrete pipe adjacent to Renton Avenue S. The upper basin of Stream B 44400, conveys storm water from Jones Avenue along 9th Street. There appear to be no detention or treatment structures for this runoff given that it was constructed prior to water quality standards. There are also some • Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 3 catch basins along 10th Avenue South and a portion of Renton Avenue drains down towards Stream A. Stream C, off the southern portion of Cedar Avenue is also fed by stormwater runoff and is conveyed by the drainage channel. A photograph of a 12-inch concrete pipe adjacent to Renton Avenue and the source point of Stream B hydrology were presented. Stream B is comprised of two channels in this eastern portion of the drainage adjacent to Renton Avenue S. These channels are incised features that are eroded and form a confluence into a single channel farther west. Vegetation is primarily alder with some black cottonwood and Big Leaf Maple. The northern channel of Stream B is incised to a depth of 6-feet and flows under the root mass of a Big Leaf Maple. There is a fair amount of erosion occurring in that drainage channel. At the northern end of Stream B the Big Leaf Maple is at the confluence,the eroded channel is beyond the confluence to the western side as it leaves the site. The remainder of Stream B is incised and eroded until it outfalls in a wetland area, the offsite wetland is the location of a historic mining entrance. All the eroded material is dispersed in this area. Stream B joins with Stream C at this point, with a similar drainage feature coming off of Cedar Avenue and then leaves the site at the same location. Stream A is in the southern portion of the site and has more natural characteristics. The Examiner stated that he was reluctant to get into Stream A, it may be different or exhibit characteristics that make it more natural,however,this hearing is dealing with Stream B and it's characteristics, it doesn't matter how it contrasts with another stream. He did decide to allow the testimony at this time. Ms. Ricci stated that they had experts present that can speak to the comparative differences between the two streams. Stream B is not a naturally occurring stream, it is the result of high-pressure storm water flowing down ., ad from the early development of the City of Renton over the last few years. Stream A is a naturally occurring stream that existed as a process over time. Mr.Walker continued his testimony that Stream B is in a location where a previously naturally occurring channel did not exist prior to the intentional discharge of undetained stormwater. The intentional release of stormwater on a highly erodable surface is basically the result of human intervention and that these features are artificially constructed. There were more photographs of the Stream and it's rounded side slopes. Upon cross-examination by Ms. Fontes,Mr. Walker stated that earlier he mentioned an adjacent site, and that site is to the west,under the same ownership and was approved earlier. He did believe that the maple tree was 60-80 years old, the core was rotten and so it was difficult to be sure of the exact age. There are a number of Big Leaf Maple trees on the site,but this is the only one directly in the stream channel. All photographs were taken on Wednesday, April 26,2006. All measurements for the conceptual drawings were taken at the same time as the photographs. Diagram#4 of Exhibit 2 is a conceptual diagram of the two channels, the drawing is approximately to scale. The land between the channels is relatively flat with some undulation. The two channels are approximately 3- feet in depth and 18-inches to 2-feet wide. He didn't know if there was any ground water in these channels. Stream B deposits into Wetland A that is on the adjoining parcel to the west(the Defoor Preliminary Plat)and Stream C skirts the perimeter, it does not enter the wetland. Stream A and the confluence of Stream B and C join another tributary south of the site known as Rolling Hills Creek. Previously in history there has been some activity on the site,there has been a lot of earth moved because of the previous coal mine activities, some of that is still in evidence today. As far as ditching the channels,they are 441001 characteristic of ditches,but have been formed by erosive flows from stormwater. Defoor Appeal File No.: LUA-05-089, SHPL-H June 8,2006 Page 4 Upon questioning by Ms. Ricci,Mr.Walker stated that Big Leaf Maples are not known to grow directly within a channel of a stream unless that stream would have changed course. This tree is a very mature tree,his opinion is that the tree pre-dates the existence of those channels. The roots are being undermined by the water. Brian Beaman,Icicle Creek Engineers,230 NE Juniper Street, Ste., 101,Issaquah,WA 98027 stated that he is a principal engineer and hydrologist and that he was asked to review how this stream was formed. They excavated test pits across the site and drilled deep borings into to the coalmines. They are aware that the site, including Stream A and Stream B, is underlain by about 5-6 feet of weathered bedrock,below that is the hard bedrock itself. It is important to compare the whole site,not just the Stream B corridor because the rest of the site is an example of what should happen should water flow across the ground surface. Stream A to the south has a more natural layer including smooth slopes that lead down to a channel with good topographic relief,there are other swales across the property with similar features of Stream B,they start out fairly flat and then there is somewhat of a broad swale that occurs but the other swales are dry. It is important to understand that Stream B is being fed from the culvert,that is the uphill side, then down from there towards Wetland A. There is a natural process that creates swales across this slope but it may have been redirected and instead of sheet flowing it created the swales, but with the construction of Renton Avenue,the water has not been redirected. The topography on page 5 of Exhibit 2 is probably aerial, it is therefore quite generalized,there are no other swale like features to the north where Stream B runs. Exhibit 7 shows field topography of the upper portion of Stream B, if the stream contours were removed and the erosion features were taken out and the contours brought straight across, it would be a fairly level from the street for about 125-feet or so. As you go further down the channel it does start to develop that swale-like appearance. Looking at the adjacent property to the west,there are other dry swale ___ features across that site. (On Exhibit 7 the dry swales were highlighted in blue). Once the glaciers retreated from this area,the landscape was more than likely barren, the climate was rainier and wetter and certainly a lot of features formed during that time before vegetation took place. That is most likely when these swales formed. They have a water shape feature but are dry. The site has a long history of coal mine development dating to the late 1800's,this portion of the site was not impacted by the mining, the area just to the west of it was. The original main entry to the Renton Coal Mine was located almost where Wetland A is located, and that would have involved roads being built in this area, there was an open mine shaft into the ground at about an 11 degree angle below horizontal. It would not have made much sense to put their mine entry where water surface was going to flow. Some of the historical coal mine maps do show surface topography. The main tributary,Rolling Hills Creek, was shown on the map,there was no stream coming down across the area where Stream B is located today. This map does not show Stream AorB. They also looked at a 1936 aerial photograph of the area. Cedar Avenue and Renton Avenue were identified. The mines closed in the late 20's and this aerial is probably within 5-10 years after the Renton mine closed permanently. He pointed out the Stream A corridor on the photograph,which extends beyond the property to the east. Looking at the Stream B area, there is no topographic or vegetation pattern that would show an additional stream. The watershed for Stream A is visible with a channel like feature that extends off the property. Upon questioning by Ms. Ricci, Mr.Beaman stated that going back during the active mining days, it is likely that the culvert did not exist so there was no water coming down the slope into the area of the main mine operation for the slope. After the mine closed,once water was introduced to the slope area, it found the path of least resistance,created these incised channels and found its way to the old mine entry which was probably Defoor Appeal • File No.:LUA-05-089, SHPL-H June 8,2006 Page 5 somewhat of a low spot. The grading of the stream transitions from a steep slope to a fairly flat area so a lot of depositions occurred and has filled in that area with eroded sediment and created that wet area. On questioning by Ms. Fontes,Mr. Beaman stated that storm water versus water hitting impervious surfaces and making their way into a storm water system would mean that less water would be getting into the ground. On Exhibit 7,he redefined what affect the glacial flows had on the land today. Not all naturally occurring streams have identical characteristics is a fairly general statement, there are certain characteristics which,comparing the Grand Canyon to the Duwamish they are both naturally occurring streams and they both have different characteristics. Miners would have been able to redirect Stream B, if it had been there because it was a small stream. Stream B flows to Wetland A today,but there is no way to know if Stream B was there in 1936 or if it was if it outflowed there or somewhere else. The site evaluation and seeing the character of the Stream B corridor and the 1936 aerial photograph show that there most likely was no stream there prior to the installation of the culvert on Renton Avenue South. If a lot of water were pushed down the steep slopes an incised channel vertically sided similar to what is seen in the field today would occur. This would be considered man made because the water is introduced by something that man has done, the water creates the ditch,but the water is directed to that area by man's activities. Maryann Reinhart, GeoEngineers, 8410 154th Ave NE,Redmond,WA 98052 stated that she is a fluvial geomorphologist and her expertise is in the area of evaluating land forms,their development and particularly so the characteristics of streams from both small creeks all the way to large river systems. She has additional expertise in the area of sediment transport in fluvial systems, including erosion and deposition. She was asked by Talasea Consultants to look at the two streams of interest on the Defoor property, Stream A and Stream B. She did go the property on April 26,2006. Landforms in the Puget Sound area are basically developed as a result of glaciation of continental ice masses that receded from this area somewhere between 10,000 and 13,000 years ago. There were drainage patterns that were left by the receding glaciers and in exchange for that there is a good bit of melt water that was coming from the melting ice. The process of the grinding,advance and recession of the glaciers,as well as the runoff of their melt waters developed much of the landforms and topography here in Puget Sound. In this particular area, some of the drainage swales that are glacially derived played a large roll in the development of the area. One of the key characteristics that seems to be missing from the story is the development of drainage basins. Drainage basin is synonymous with the term of watershed. Watershed is a little more informative of what happens in a natural drainage basin. Water falling from the sky as precipitation or snow runs off of the surface of a watershed and coalesces in a channel through which it then is conveyed to a receiving body, in Western Washington it is either Lake Washington or Puget Sound. The distinction here is important with respect to the origin of Streams A and B on the property. Stream A receives water from upgradient of Renton Avenue South. The watershed extends upstream of Renton Avenue South, that water historically collected off the ground surface of the watershed and was delivered to the main stem channel and then moves down slope. Watersheds tend to deliver water to the receiving channels,those channels, over a period of time,have an opportunity to adjust to the discharge that ends up in that channel as a result of the surface water runoff. There is a definite relationship between the dimensions of the channel that receives water from the watershed and the size of the watershed. Several things can alter the shape and size of the channel, the geologic materials that produce the soils,the gradient of the channel from upstream to downstream, and the climate. In Puget Sound streams there is a general relationship that is typically used with Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 6 regard to the dimensions of the stream that has had an opportunity to evolve and adjust to all of the conditions that prevail over the period of that watershed. The channel will range about three times wider than it is deep. The Examiner stated that he would have to decide on the Sub A definition of flow within an artificially constructed channel where no naturally defined channel has previously existed. What does artificially constructed actually mean. The fact that it is there does not mean that the channel was artificially constructed, no one was out there ditching it with a shovel or backhoe to create it. It may have formed due to some alteration of the flow upstream,with or without a culvert,the road may have taken a dip and risen something like a wash. Ms. Reinhart stated that artificially created could mean that you go in with a backhoe and create a channel where formally there was none. It is very difficult to draw a line between a ditch that is cleared out by a backhoe and an incised gully that is created by the discharge of energized water or just water flowing down the slope where previously there was not a natural drainage pattern within the watershed. In Stream A there is an incised bottom channel showing that probably more water was added recently or more abruptly,maybe caused by urbanization patterns upstream. In the case of Stream B it is a deeply incised channel,six feet deep by two feet wide. The sidewalls are very vertical. It is a very unnatural form for a channel in this environment,meaning the soils, gradient,and the climate does not favor development of an incised gully. From a fluvial geomorphic position Stream B is actually a gully. Based on her observations in the field,water does not flow off the sides of the gully and if left alone the sidewalls would not lay back to an angle of repose with flowing water. She was surprised at her visit to the site, she was looking to the bottom swale that is defined as a dip in the road,that is Stream A, Stream B is located up on the right limb of the Stream A swale, it is at the top,it is a very unusual place for a stream to develop. The Stream B channel does not angle into the Stream A corridor,it makes its own path directly down stream along the fall line. This is not a typical pattern seen in any drainage basin in this area. The channel is getting its water fed to it by the culvert, it is not receiving surface water runoff from the area on either side of the channel, the only water that stream is conveying is water that is fed to it directly from the culvert. In terms of a channel that forms naturally in a watershed or small sub-basin, Stream B does not fit with what is typically seen in the Puget Sound area. If the discharge from the culvert was left to run the way it does now, it is possible that continued incision could be seen,there is bedrock that is seen in the base of the channel which is slightly more erosion resistant than the weathered material,that may represent a bed control feature. The erosion may take a little longer. The characteristics of the sidewalls of the channel are either vertical or concave and the channel is still attempting to adjust to the discharge that is being conveyed by the channel. If it is not allowed to incise further it may broaden slightly,but there will continue to be very unstable sidewalls. This type of channel configuration is very consistent with similar channels that have formed in the direct response to stormwater runoff directed to an area that has not previously seen surface water runoff form a channel. Stream B is truly a gully,which is defined as a straight walled deep channel that is much deeper than it is wide and is typically associated with unmitigated runoff. Gullies are natural,but gullies that develop into streams generally will adjust to gradients,soil types,basin sizes which help the channel to become more stable. A gully is very unstable by definition, the sidewalls can cave in, it will incise, it is not predictable in the form that it will take in terms of the depth and the width of the channel. The gully that matures into a well adjusted conveyance channel of natural waters, the sidewalls will typically, in these soils, lay back to near the angle of repose,they '40.,, will become stabilized with vegetation. Just because a gully is natural, it does not mean that it should be in that particular location. Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 7 An unstable gully will typically have a flat floor and will be wider at the base than it is at the top,which means that from a developmental perspective the water began to coalesce with the inception of the channel and then rapidly, in adjustment to the discharge, it begins to incise and cut down. This channel has probably been developing on the order of decades, as opposed to Stream A that has been developing and adjusting to its conditions for probably thousands of years. The Examiner asked questions regarding how the stream could have started,rivers get their start somewhere and if everyone culverted or filled them there might not be a Columbia River or Cedar River today. Somehow this channel was formed, was it natural or not natural. There was much discussion as to how water courses across this land and how streams are formed and how water has a tendency to flow downstream and what kind of a course might be formed to get the water from point A to point B. The conditions do not seem to be present to generate another channel that have the dimensions and character of Stream B given the watershed area that was discussed. Upon questioning by Ms. Ricci,Ms.Reinhart stated that in a couple of applications,she was familiar with the term hydraulic sluicing and that it is a known form of constructing channels. Hydraulic sluicing is used in a number of different applications, one the direction of discharge from a hose intending to create a depression or channel. If the water source were cut off,there most likely would not be water in that channel and vegetation would eventually take over. Ms.Fontes objected to the question. The Examiner stated that the culvert either could have created the channel or could exacerbate the creation of vole the channel, it would have a sluicing effect. Ms.Reinhart stated that was correct. More discussion continued on sheetflow and natural obstacles on the slope and the affect that would have had on the channel. If the culvert alone did not cause this channel, it might have still been created in this location from any number of reasons. It seems to be doing quite well now that it is there, it does not seem to want to go towards Stream A. Stream B now seems to have a life of its own. If water were merely flowing over the surfaces as surface runoff without the influence of the discharge coming from the culvert,you would have surface water that would make its way down slope by some preferred pathway. It doesn't become a big deal until the discharge is increased over and above what is being generated by the natural surface water runoff from precipitation in that area. The Big Leaf Maple did not grow in the channel,it has been undermined by what is presently the channel. Surface water runoff from the slope from normal precipitation would not have the momentum and energy to cause that type of erosion. A much larger source of discharge with a much higher level of energy would be needed to create that channel. Upon questioning by Ms. Fontes, Ms. Reinhart stated that her opinion regarding the source of the water in the culvert is coming from the urban development and the stormwater runoff from roofs, driveways, and paved areas. A portion of the runoff could be from ground water. She did not know if there were any naturally occurring springs in the area. A drainage channel is either created or happens as a result of an action, urban runoff that is directed to an existing channel,which is attempting to adjust to the increase in runoff from the urban development. Sometimes water channels will move and take different courses,that is part of the adjustment of channels. It is her opinion that Stream A began because of a glacier. There appears to be 200 feet between Stream A and Stream B. Channels can be formed by the discharge of ground water. Defoor Appeal File No.: LUA-05-089, SHPL-H June 8, 2006 Page 8 Ms.Ricci asked further questions of Ms.Reinhart,who stated that there was no indication on the 1936 aerial photo that Stream B existed,and so it mostly likely is on the order of decades old. That is a very recent time frame. There is some point in time in which it could be said that the stream was created decades ago. With respect to the two streams, it is necessary to look at the information provided by the two streams and the environment and what is known about the natural drainage systems and say that it would be unusual at the very best for a channel with these dimensions,that is being very much deeper than it is wide,to be the same age as Stream A,this is a very youthful stream. If you cut off the water,the stream would go dry. A stream must be able to feed itself with water and this one cannot. It would be very hard to cut off the water to Stream A, it is being served by the watershed. If you cut off the water coming from upslope of Renton Avenue South you could create a small dam and it would basically change the hydrology of the stream, it will still get some runoff from the sidewalls downstream,it will not be the stream that it is today. Lunch Break: 12:47 pm Reconvened: 2:15 pm Pat Conger, 1301 South 9th Street,Renton,WA 98055 stated that she lives on the SE corner of 9th Street and Renton Avenue South directly across the street from this parcel. She is directly across the street from the culvert that has been discussed. There is water in the culvert year round,even when there has been no rain. She has lived in this location for the past 12 years. Upon questioning by Ms.Ricci, Ms. Conger stated that the people do water their Iawns,wash their cars and other outside things around their homes. Some water is getting into the system all the time throughout the year. She can hear the sound of the water and sometimes there is more water than at other times. Brian Beaman stated that he is a professional engineer with Civil as a specialty. He routinely looks at plats and short plats, single-family residences,and road projects for discharge of storm water from street drainages. They do not assess the piping,but do assess the outfall and what that outfall might do where it crosses natural ground surfaces or on re-entering streams. He routinely is called on to locate culverts under similar conditions to what is on this site. Based on his knowledge of the soil conditions on this site,with a culvert outflow at that location, he would expect that water would sluice out a ditch following the fall line of the slope. It is not necessary to dig out the trench,the water just creates its own pathway. Hugh Mortensen, Watershed Company, 1410 Market Street,Kirkland, WA 98033 stated that he is an ecologist with over eleven years doing stream and wetland reconnaissance and delineation,he also is an on-call consultant to the City of Renton to review development proposals that come before the planning department. City of Renton,Kirkland, Shoreline,Monroe, Sammamish and Issaquah have called upon him to check classifications of streams. He did the classification of the streams on the Defoor property. On his inspection,he thought that Stream B was a Class 3,he never believed that it was a Class 5 stream. He spoke with Neil Watts regarding the descriptions of various classes of streams in the City of Renton,they further discussed artificially constructed streams and the fact that it had to be where a channel did not previously exist. Regarding Stream C,to the west and appears to start at the corner of the subject property and the adjoining parcel,his initial classification was that it was a Class 5. After talking with Mr. Watts he looked at the definitions more closely and he saw the words"artificially constructed"channel,and after reviewing the elements, he changed his classification to a Class 4. Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 9 He always considered Stream B as a Class 3 stream. In his opinion,this is not a Class 5 stream because he has observed it flowing in late August, since August is the month with the least amount of rainfall in this region,the end of August is the most appropriate time to be looking at a stream to see if it is perennial or not. He checked the rainfall record for the preceding month and it showed to have had little to no rainfall for the 25 days prior to his site visit. When people water their lawns the water sometimes goes into both the stormwater pond and the ground water. The flow in the stream seemed to be more than what could be caused by lawn watering and car washing. Looking at the 1936 aerial photo,there was no retention pond or stormwater pond related to this system in. Just not seeing a stream does not mean that it is not there. If the stream is supported by ground water and has a very low flow,the channel could be in the neighborhood of 6-inches wide and it would not be seen on this scale of photograph. Without a detention pond or stormwater pond storage,water collects on impervious surfaces and runs off while it is raining and for a short time following that storm event it continues to run off. In August,the water that was in Stream B, he believed it to be ground water. Looking at Exhibit 7, in the NE corner of the subject site there are dashed buffer lines around Wetland B,there appears to be some evidence of a broader swale formation and to a lesser extent it represents the same swale formation where Stream A runs. Rainfall in the Puget Sound area falls on the ground and in areas where it can infiltrate,natural areas and non- paved areas,it percolates into the ground and becomes an enormous detention pond, it stores water,the ground „vs is porous,it can store large or small amounts, that water is released down gradient and sometimes at great distances from where the water actually fell. Water seepage is characterized by a very steady metered flow over long periods of time. Water channels can move. The likelihood of a channel forming as a result of water discharging at any point along the gradient upstream is highly plausible. The distance between Stream A and Stream B is 200 feet measured at the point where the culvert is shown on the map. Upon questioning by Ms.Ricci,Mr. Mortensen stated that he has a broad background in studying natural resources. He has a degree in Ecology from Evergreen State College,but no degree in Geology or Civil Engineering. He has been a consultant to the City of Renton for approximately 2 years. He works with geomorphologists at his firm as well as stream biologists and engineers and has been involved in various aspects with designing streams and stream channels. Ms.Ricci asked and received confirmation to his previous testimony today. He did not take any readings from the culvert or as to the water flow from the culvert. He confirmed that his classification of this stream was based on his one visit to the site in August 2005. Although there was ground water naturally occurring in this area,it is not causing the majority of water flow through the culvert. Stormwater is the majority of the water flowing through that culvert, stormwater that is collected up stream of the culvert. He was certain that stormwater has affected this channel. Referencing Exhibit 7,he stated that on this map he sees a smaller swale formation compared to Stream A. He does not necessarily believe that the stream cut that,but that that is an area where the stream channel would ,,, uiti ordinarily flow. He did not see any evidence of ground water interceptions in the channel of Stream B and that the channel did not seem to be picking up ground water further down the hill. The ground water situation is that Defoor Appeal File No.: LUA-05-089,SHPL-H June 8,2006 Page 10 the stormwater system is picking up ground water above the culvert and then shooting it down the hill. The ground water at one point in time did create a small channel subsequent to that and this erosive force of the stormwater has deepened the existing channel and down cut it. Neil Watts,Development Services Director,City of Renton stated that he often is asked to interpret the language of the code and in particular as this case relates to stream classifications. An artificially constructed channel is a channel that has been created as a ditch,typically that would be something like a roadside ditch. It is something that is entirely manmade. Sluicing could be interpreted as a process of artificially creating a ditch. Mr.Watts stated that he is a licensed Civil Engineer,with a degree from Seattle University. He has been involved in land use aspects and land use reviews with Seattle and Renton for over 20 years. He has reviewed this project and has visited the site half a dozen times summer of 2005. Regarding the storm system located on Renton Avenue South and the culvert at that location,the water going through that system,at some point created the stream that it now resides in. There has been a watercourse coming down the hill for a very long time, it has been altered by different influences by man,building yards, ditches,culverts,and storm systems. It is not an entirely natural system any longer. It appears that Stream A and B are far enough apart and that they are defined enough channels that this has been going on to some degree before the roads were built. The underground storm system on 9th Street is pure speculation as to where and how that water ran prior to being constructed. Upon questioning by Ms.Ricci,Mr. Watts stated that he had not reviewed the extent of the area of the collection system on 9th Street nor did he have any sense of the volume that comes through that culvert onto the Defoor property. If the culvert were closed off,it could be expected that there would be some flooding on the other side of the street. The source of the stream is actually the headwaters that are much further upstream. If the drainage course were closed off,the water would cease to flow. Stream B would cease to exist unless it was being fed by ground water sources below that point of closure. All the water that flows through the pipe dumps onto the Defoor property and created the stream channel. They have been unable to find any records or civil engineering records of what was there when the culvert was built. He does not know if there has always been a drainage channel in this exact specific location. He also had no information of a previously existing channel in that exact location. The hill has not gone away and there has always been water running down the hill in some fashion and at some point the water has been directed into a man made system. The water now moves through a man made system. He is charged with determining the language of the code that consultants to the City draft. He is familiar with the term"hydraulic sluicing"which is an attempt to make a ditch or channel by using water from a stream or a fire hose. If a culvert was installed and water was diverted through it,you would get a very steep banked erosive channel for a period of time, as the decades go by it would start to become a more naturally appearing slope,the slopes would start to become less steep, vegetation would set in and after a period of time it would look and function as a natural stream channel. With steep slopes the initial beginning would be to incise the channel. Ruth Larson, 714 High Avenue S,Renton,WA 98055 stated that on Exhibit 5,page 2 she owns the 3`d house down from South 7th Street on High Avenue South and has lived there since 1963. She did not know when the stormwater system and culvert were installed. They have torn up High Avenue South three times since she has lived there,but she doesn't know what they were doing. Defoor Appeal File No.: LUA-05-089, SHPL-H June 8, 2006 Page 11 Uphill from the Renton Avenue South location there are two springs that she has seen, one is located on the SE corner of High Avenue South and South 9th Street and the second one is located on the corner of South 9th Street and Grant Avenue South. Along High Avenue South her house is the first one that has a basement,none of the other homes were allowed to have a basement when they were built because of the water table. She has never seen the people living south of her property ever water their lawns,except for when the lawn was first planted. Brian Beaman stated that he has gone to the site approximately 15 times to do test pits, drilling and general reconnaissance,some of that for coal mine research. They have issued reports to Defoor and those most likely have been submitted to the City. He has done detail studies of the site. The road embankment is creating the contours across the site and because Renton Avenue requires fill on the downhill side,there has been a modification of the contour and likely the house development added fill as well. The culvert didn't extend out far enough so they had to pull the embankment back in to meet the culvert so that it would not get covered. The channel like contouring feature has been created in his opinion. The springs that Ms.Larson spoke of would most likely feed into Stream A as seen in the 1936 aerial photo. Wetland B is 196 square feet and the dotted line around the wetland is the buffer. Ms. Ricci gave her closing statement wherein she recapped the testimony heard today and stated that it is their firm belief that a Class 5 classification is much more consistent with the nature of conditions of this particular set of water features. Ms.Fontes gave her closing statement wherein she recapped their testimony and stated that their expert when reviewing the site saw flowing water and classified Stream B as a Class 3 stream. Stream B is the main focus of „vs today, that is the area where they want to build and has the most impact for them. The water that comes out of the culvert has certainly affected this stream,however,that is not the issue. The issue is whether the streambed was artificially constructed by sluicing,digging or whatever method. Ms.Ricci stated that they did establish that there was no pre-existing channel until the City introduced stormwater, collected and dispersed it onto the Defoor property. The Examiner called for further testimony regarding this project. There was no one else wishing to speak,and no further comments from staff. The hearing closed at 4:08 pm. FINDINGS,CONCLUSIONS &RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: 1. The appellant,Jason Walker,hereinafter appellant, filed an appeal of an administrative decision affecting property in the City of Renton. The decisions involved the classification of water courses that cross the subject property. 2. At the same time, the appellant sought reconsideration of the original decision by the Development Services Director. The original decision was issued on November 17, 2005. The decision denying the reconsideration was issued on December 7,2005. At that time the appeal became active and a hearing was scheduled. The appellant sought a couple of continuances, which were granted. Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 12 3. For purposes of semantics and attempting to use terms that do not foreclose the appellant's appeal or immediately define the subjects of this appeal or prejudge the questions,this office will refer to the three water channels that cross portions of the subject site at issue as"water courses"rather than creeks, gullies, streams or ditches. Those other terms may be used in this decision when describing how other parties other than the Hearing Examiner referred to those features. 4. The subject site is located on the west side of Renton Avenue North. The site is located generally south of South 9th Street if that street were extended west of Renton Avenue. South 10th Street would intersect the southeast corner of the site if that street were extended west of Renton Avenue. The subject site is a trapezoidal shaped parcel where the western property line is shorter than the eastern property line. 5. A number of water courses cross the subject site. They generally flow east to west across the parcel, which slopes down to the west. They are identified on Page 2 of Exhibit 2 and the descriptive names are taken from that page: Drainage 1 enters the site west of the intersection of Renton Avenue and S. 10th Street. It runs in a northwest direction and joins Stream"A." Stream"A" enters the site from approximately halfway along the eastern boundary of the subject site and runs generally in a southwest direction. Stream"A" continues off-site. It joins an"unnamed tributary to Rolling Hills Creek." New Stream"B"runs from what would be the southwest corner of the intersection of Renton Avenue S and S 9th Street. Stream B emerges from a culvert under Renton Avenue S. Not far from where it emerges from the culvert Stream"B"splits into two channels and then merges back into one channel. It generally runs west across the site and enters the north side of Wetland A. Stream"B"according to the map ends at the wetland and then merges with Stream"C". Stream"C" enters at the extreme northwest corner of the subject site and runs south. It turns west and leaves the site continuing to flow along the western edge of Wetland A. Wetland A is located off-site. Wetland A was described as being the location or near the location of a former coal mine entrance. Wetland B is located at the eastern end of Stream B. 6. The appellant challenged the City's stream classifications of three water courses, Streams B and C and Drainage 1. The allegation in each case is that these are not natural streams but that each is an "artificially constructed channel." 7. The appellant was proposing the side-by-side development of a Preliminary Plat and a Short Plat. The Preliminary Plat has been approved and its design would not be affected by this decision. The Short Plat review has been placed on hold, as its design would be affected by this decision. These water courses flow across one or the other or both sites. In preparation for the City's review of those plans the applicant submitted a series of reports. The appellants reports recommended that Streams B and C and lase Drainage 1 (the only water courses at issue for the pending appeal)"be classified as Class 5 streams exempt from the City's critical areas regulations per RMC 4-3-050B.1." (Letter from Development Services Administrator to Michael Chen,November 3, 2005). The City's consultant determined that Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 13 Stream B should be classified as a Class 3 stream and Drainage 1 be identified as an extension of Stream A,a Class 4 stream. Appellant sought reconsideration of Stream B's classification asking that it be classified as an unregulated Class 5 stream. 8. On November 3,2005 the Administrator found that"sufficient information was not(underlined in original)provided to show that Stream B should be a Class 5 Stream, that Stream C be classified as a Class 5 stream, and that Drainage 1 shall be classified as a Class 5 stream." 9. "The Administrator determined that: 1)Drainage 1 shall be classified as a Class 4 stream; 2) Stream B shall be classified as a Class 3 stream;and 3) Stream C shall be classified as a Class 4 Stream." This effectively rejected the reports, to wit: "Therefore,the decision has been made not to accept the Wetland Study, Stream Assessment,Habitat Study, Watershed restoration, and Mitigation Plan prepared by Talasea Consultants, Inc,revised October 3,2005." 10. The appellant alleges that these streams"are the direct result of intentional man-made activities(i.e. erosion due to point-discharge of stormwater)and should therefore be considered artificial by provisions of the RMC." They based this claim on historic aerial photographs,which they say do not show them as distinguishable in 1936 and 1946. They say that they do show as defined after 1965. They attribute this to point-discharge of unrestrained stormwater onto a highly erodable soil surface. At the hearing the appellant produced additional evidence they claim shows that these water courses are not natural(see below). 11. The appellant states: "We believe Stream B, Stream C,and Drainage 1 were created as a result of the implementation of roadway and drainage improvements after 1946...These features exhibit'flow within ;44060 an artificially constructed channel where no naturally defined channel had previously existed'(RMC 4.3.050. (L).1.a.v),and should therefore be considered artificial, meeting the definition of Class 5 Water." 12. The appellant in its appeal and reconsideration letter went on to note that similar drainage channels created by erosion were previously determined as artificial and unregulated. The Director found this line of argument unpersuasive noting that the code provisions had been specifically changed and therefore,prior decisions were not applicable. 13. The appellant then goes on to describe a mitigation and restoration plan to stabilize these water courses. These matters are not pertinent to this review since the only issue at this time is the legal classification of the water courses. The classification will determine what protections they are entitled to and what modifications,if any,are permitted. 14. The appeal was filed in a timely manner. 15. The appellant provided information to contrast the cross section profiles of Stream A and Stream B. The parties agree Stream A is a naturally occurring creek and show its geomorphology, that is, its historic origins and character. Stream A appears to follow or be located in a swale area that originates upstream or above Renton Avenue South. They suggest that it formed over several thousand years (Page 2, GeoEngineers,Report of May 1,2006). They note its stable side-slopes and angle of repose adjusting over the course of its long-term location. It was noted that Stream A is incised at its base probably due to additional water flow resulting from upstream urbanization. Stream B, which the appellant claims is an artificially constructed water course,is deeply incised,the purported absence of a natural swale or depression upstream(east of Renton Avenue)that would have directed the channel in • Defoor Appeal File No.: LUA-05-089, SHPL-H June 8,2006 Page 14 Nome this location and the stream's location at what is termed a"topographic high point." Streams A and B are approximately 200 feet apart. 16. Stream B enters the site and not far downstream of the culvert,splits into two channels. The two channels are approximately 18 inches to 2 feet wide and 3 feet deep. The two channels rejoin(the confluence)approximately 125 to 150 feet down the slope from the culvert. At that point the single channel is approximately 2 to 3 feet wide and 5 to 6 feet deep. 17. Stream B may be fed by a paved and developed area on the east side of Renton Avenue although neighbors report that there is a spring and wet area upslope. These neighbors also report that a storm drain or catch basin located on the opposite side of Renton Avenue,at Renton and 9th,that presumably feeds the culvert always has a strong flow of water in it including during the dry months. The appellant's expert agreed it was a perennial stream but was not sure if ground water contributed to the flow. The appellant's witnesses all agreed that Stream B was formed by erosive flow or hydraulic sluicing generated by stormwater. 18. The two experts noted that the location, on a high topographic aspect,and features of Stream B(deeply incised)do not generally coincide with features of a naturally occurring creek and the erosion signs, soil type, location on slope all support the conclusion it is not a natural stream. 19. There are other swales like Stream B located along the slope but they are dry and still others are more gently curved. The general topography of the area was formed about 10,000 years ago. law 20. It was pointed out that some trees including Big Leaf Maples located near Stream B are not generally associated with wet areas. The Maple is approximately 60 to 80 years old according to a tree ring review. Since the tree is damaged, an accurate count of its rings was not possible. The soil under it is eroded and it is approximately 4 feet above grade. This purports to show that such a tree would not have grown straddling a creek. 21. There are no "as-built" engineering drawings or plans dating back to the 1950's near when the culvert feeding Stream B was constructed. The culvert is 12 inches in diameter. 22. Stream B enters Wetland A offsite where it deposits materials and joins with Stream C. 23. The historic aerial photograph from 1936 does not appear to show Stream B but does show Stream A's course. It shows that the road system has not changed much. 24. A general history of stream formation was presented by the appellant to show how natural versus artificial streams are formed. A stream over time is affected by geologic composition,gradient,and climate. Stream A is approximately 3 times wider than deep,whereas Stream B is "gully-like" and deeply eroded which is not generally natural. Stream B does not appear to follow a natural stream location or evolution. The appellant presented testimony that it is in an unusual place and not a typical pattern. Stream B shows signs of being fairly"youthful" in its steep-walled profile,meaning it is decades old but not anywhere near as old as Stream A appears to be. The appellant alleges Stream B appears to be the result of hydraulic sluicing which was intended to create a depression or channel. The witness agreed that"gully" is not exclusive to a created channel and they do occur naturally. The proximity of Streams A and B make it appear,at least,unusual to be the same age. This office finds there is no evidence that there was an intent to create a channel as opposed to just releasing water from a culvert on the downslope side of the roadway. Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 15 25. The appellant indicated that the old coal mine maps showing surface features do not show either Stream A or Stream B but do show the more major Rolling Hills Creek. 26. The City's expert is familiar with the streams and definitions and helped draft the City's stream regulations. He found no evidence of"construction" such as spoils or ditching in any of the water courses. He had changed opinion on Stream C to Class 4 from initially believing it was a Class 5 based on this lack of purposeful ditching evidence. The expert also noted that the stream was perennial and was flowing in late August. He noted it was a normal August as far as rainfall. That is it was relatively dry with only one event,an approximately 0.05 inch rain on August 18, 2005. He did not believe that lawn watering or car washing or similar human water generating uses would have generated sufficient water to keep Stream B flowing in August, that is, lawn watering,etc would not create runoff that lasted a significant length of time. He noted that there were no detention or retention systems for stormwater or other runoff in the vicinity and that such facilities were generally not required until the 1970's or 1980's. As for the absence of a definitive stream course in the 1936 aerial photos,he noted that a six- inch(6")creek or one with a very low flow would not be very visible on a photo of this scale when the photo was taken. He also noted that water channels can and do move and change location over time. The City emphasized that with water flowing in Stream B all year,it probably has its source in natural ground water from the hillside above the culvert. Stream B,they allege,would appear to be fed by water that does not originate from only storm events and therefore,drains natural,perennial water. The City's expert did not believe that either stream was constructed. 27. The location of the two natural springs noted by neighbors are in the vicinity and southeast of High Avenue and 9th and at 9th and Grant Avenue. It was noted by the appellant that these could be feeding Stream A, the natural stream. ,, ftwool 28. The Administrator who made the decision noted that Stream A and B are far enough apart to support two natural drainage courses. He acknowledges that human intervention has altered the flow and possibly the character of Stream B. The appellant's expert noted the same urbanization probably affected Stream A. There are no records that document the situation before the culvert was constructed. He did speculate that directing water through a culvert,even into a natural shallow swale,could create a steep banked erosive channel that eventually,over additional time, would attain a more natural slope and appearance,but that with steep slopes that occur on this hillside, an incised channel would probably be formed initially. CONCLUSIONS: 1. The appellant has the burden of demonstrating that the decision of the City Official was either in error, or was otherwise contrary to law or constitutional provisions, or was arbitrary and capricious(Section 4- 8-110(E)(7)(b). The appellant has demonstrated that the action of the City should be modified or reversed. The decision regarding the classification of the streams is affirmed. 2. Arbitrary and capricious action have been defined as willful and unreasoning action in disregard of the facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts and circumstances, is not arbitrary or capricious(Northern Pacific Transport Co. v Washington Utilities and Transportation Commission,69 Wn. 2d 472,478(1966). 3. An action is likewise clearly erroneous when,although there is evidence to support it,the reviewing body,on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.(Ancheta v Daly, 77 Wn. 2d 255,259(1969). An appellant body should not necessarily substitute its judgment for the underlying agency with expertise in a matter unless appropriate. Defoor Appeal File No.: LUA-05-089, SHPL-H June 8,2006 Page 16 4. Section 4-8-110(E)(7)(a)requires that the decision of the City official be given substantial weight: "Substantial Weight: The procedural determination by the Environmental Review Committee or City staff shall carry substantial weight in any appeal proceeding. (Ord. 3891,2-25-1985)The Hearing Examiner shall give substantial weight to any discretionary decision of the City rendered pursuant to this Chapter/Title. (Ord.4346,3-9-1992)." In other words the appellant must show clear and convincing evidence of mistake. First,in the matter of Stream C and Drainage 1 the appellant provided little if any testimony directed to those two water courses. The appellant certainly did not provide any compelling evidence that the Director was incorrect in classifying these two water courses. 5. The City summed up the issues quite accurately-here we have a disagreement between experts. There would appear to be reasonable grounds to accept the view of either set of experts. But code requires that the decision below be given substantial weight. So while it may be unlikely that a natural stream might have originated in the immediate vicinity of the culvert,it was not shown that it would be very unlikely. A number of factors can allow this office to determine that a natural stream, albeit,possibly a narrow and shallow stream existed in this location. Somewhere upslope sufficient water accumulates over the course of a year to create a permanent, some might say,perennial stream, Stream B. This water is not generated by single storm events since it flows even in August,a relatively dry month. Neighbors report it flows through a catch basin just east of the culvert all year. 6. A number of issues that were not explored also could lead one to believe some stream or storm flow crossed the subject site in this general location. The property in question was undoubtedly private property when the road and culvert were put in. Yet there is no record that was produced showing any objections from the then property owner about the effect this culvert and steam flow would have on their private property. In other words, it would appear that for some reason the past owner or owners permitted the City to instigate harm using erosive forces to create the water course on the subject site. Or, another alternative might be that the culvert merely formalized a natural drainage course that was located in this general location. As the record demonstrates,the storm drain or catchment on the opposite side of the road appears to always have a flow of water. These may at one time all been surface flows, small creeks,perhaps,that were captured and piped and conveyed to the culvert under Renton Avenue. Again,while the record does not contain any explicit evidence,you would surmise that if private property was being harmed by the culvert and sluicing action of the stormwater,the owner of the property would have raised some objection. Of course, it is possible that it was an absent owner but nonetheless,their interests were being harmed unless water always flowed onto and across the property in this location. 7. The old surface maps fail to show Stream A,the larger and natural stream but do show the more major Rolling Hills Creek. If Stream A was present when these old maps were drawn then it would appear that even this more natural larger stream was considered too small to document. Stream B might have been even smaller still and it might not show up on old aerial photos. Relying on historic maps certainly does not reliably help decide if Stream B existed. The resolution of aerial photographs from the 1930's probably left out smaller detail. Interpreting what details we see in older photographs using our 21st Century mindset could lead to misinterpretations. As we know,current aerial photographs now show incredible detail but that could lead one to believe good detail would be found in 60 and 70 year old photos. The photo evidence is not in itself compelling. 8. Then we have the code wherein it classifies streams with certain characteristics. Class 5 waters: Defoor Appeal File No.:LUA-05-089, SHPL-H June 8,2006 Page 17 Nad "(a)Flow within an artificially constructed channel where no naturally defined channel had previously existed..." The Code does not specifically define"artificially"or"constructed." "Artificially"constructed would seem to mean that there was an intent to "construct"the water course as opposed to just releasing the water from an outfall onto a slope where nature took its course. Webster's Third New International Dictionary(unabridged)defines "artificially" as "in an artificial manner." It defines "artificial" as "contrived through human art or effort and not by natural causes detached from human agency:relating to human direction or effect in contrast to nature." The same source defines "construct"as "to form,make, or create by combining parts or elements : Build,Fabricate(in constructing a new freeway). 9. As noted in the findings,there was no evidence that someone dug a ditch. There were no spoils or piles of material along Stream B. The Director admitted that over time,the culvert could have sluiced the soils and added to Stream B's downward cutting(erosion)or might have created it. But erosion was probably not intended. It does not appear that anyone intentionally planned for erosion to create or deepen Stream B. There is no evidence that anyone purposefully"artificially constructed" Stream B. Stream B might have always been there. Focused by a culvert and unaccompanied by some form of dissipater as would now be installed(if piping to the bottom of the hillside were not required) Stream B could certainly be the gully-like formation we now see. It was also noted that Stream A showed signs of incising although not at the scale of Stream B. Could Stream B have been a very gentle, shallow swale , mid with stream flow,and then been deeply incised after the culvert was installed? There is no answer. 10. Also,while the experts testified that this location would be an unusual location for Stream B to develop, we have the unusual situation where Stream B actually naturally split into two separate channels for a distance of some 120 feet before rejoining in what has been called a confluence. That is something, some impediment whether rock, soil type, log or fit of nature caused a stream that was only one channel to suddenly branch out and create a second parallel channel. Since this was described as an area where no natural channel would naturally form we now have two side-by-side channels. So whatever force of nature created a second channel on this section of sidehill might have been the precursor to a similar event years ago that first created Stream B as opposed to having it been created solely by the installation of the culvert. 11. The appellants have speculated,based on normal geological history,that Stream B was not natural but speculation does not meet the appellant's burden. This office,too,can speculate: Water has probably always flowed down this hillside in various shallow rills. Historically it was channeled or captured into a storm or piped system and culverted and conveyed under Renton Avenue and, in what now would be considered a primitive manner,released unimpeded on the west side of Renton Avenue. This release point might possibly be where it originally crossed the road or hillside. The appellant has the burden of demonstrating that the decision was erroneous and speculation does not meet that burden. 12. The decision below is entitled to substantial weight and will not be overturned unless there is clear and convincing evidence that an error has occurred. If reasonable minds could reach differing conclusions, an error is not substantiated. The decision below must be affirmed. Defoor Appeal File No.: LUA-05-089,SHPL-H June 8,2006 Page 18 '4•00v DECISION: The decision of the Director is affirmed. ORDERED THIS 8th day of June 2006. FRED J. KA AN HEARING E INER TRANSMITTED THIS 8th day of June 2006 to the parties of record: Zanetta Fontes Jason Walker Terry DeFoor Assistant City Attorney Talasea SWI, Inc Renton, WA 98055 15020 Bear Creek Road NE 24633 NE 133`d Street Woodinville, WA 98077 Duvall, WA 98019 vioauf Pat Conger Debra Eby Ricci Jill Ding 1301 S 9th Street Attorney at Law Development Services Renton, WA 98055 1601 2°d Avenue, Ste. 1080 City of Renton Seattle,WA 98101 Renton,WA 98055 Brian Beaman Maryann Reinhart Hugh Mortensen Icicle Creek Engineers GeoEngineers Watershed Company 230 NE Juniper Street, Ste., 101 8410 154th Ave NE 1410 Market Street Issaquah, WA 98027 Redmond, WA 98052 Kirkland,WA 98033 Neil Watts Ruth Larson Eric&Karen Bernard Director, Development Services 714 High Avenue South PO Box 58306 City of Renton Renton, WA 98055 Tukwila,WA 98138 William Collins Tim Burkhardt Michael Chen 420 Cedar Ave S 4927 197th Ave E Core Design, Inc. Renton, WA 98055 Bonney Lake, WA 98390 14711 NE 29th Place, Ste. 101 Bellevue, WA 98007 Ronnie CS Teng, Leng-Sheng Teng,Mei-Yu Teng Dang,Wei Kang Kho, Chiu-Chu Tuan 835 Elm Avenue San Gabriel, CA 91107 Defoor Appeal File No.:LUA-05-089, SHPL-H June 8, 2006 Page 19 TRANSMITTED THIS 86 day of June 2006 to the following: Mayor Kathy Keolker Stan Engler,Fire Marshal Jay Covington, Chief Administrative Officer Larry Meckling,Building Official Julia Medzegian,Council Liaison Planning Commission Larry Warren,City Attorney Transpiration Division Gregg Zimmerman, PBPW Administrator Utilities Division Alex Pietsch, Economic Development Neil Watts,Development Services Jennifer Henning, Development Services Janet Conklin, Development Services Stacy Tucker, Development Services King County Journal Pursuant to Title IV,Chapter 8, Section 100Gof the City's Code,request for reconsideration must be filed in writing on or before 5:00 p.m.,June 22,2006. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact,error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14)days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record,take further action as he deems proper. An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk,accompanying a filing fee of$75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m.,June 22,2006. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the executed Covenants will be required prior to approval by City Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte(private one-on-one)communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. CITY OF RENTON COUNCIL AGENDA BILL AI#: �• Submitting Data: For Agenda of: 07/17/2006 Dept/Div/Board.. AJLS/City Clerk Staff Contact Bonnie I. Walton Agenda Status Consent X Subject: Public Hearing.. Appeal of Hearing Examiner's decision dated 6/20/2006 Correspondence.. regarding the Provost Variances application. (File No. Ordinance LUA-06-024, V) Resolution Old Business Exhibits: New Business A. City Clerk's letter (7/7/2006) Study Sessions B. Appeal - Alan & Cynthia Provost (6/30/2006) Information C. Hearing Examiner's Report & Decision (6/20/2006) Recommended Action: Approvals: Refer to Planning and Development Committee. Legal Dept Finance Dept Other Fiscal Impact: N/A rr+' Expenditure Required... Transfer/Amendment • Amount Budgeted Revenue Generated Total Project Budget City Share Total Project.. SUMMARY OF ACTION: Appeal of the Hearing Examiner decision on the Provost Variances application was filed on 6/30/2006 by Alan & Cynthia Provost, accompanied by the required $75 fee. STAFF RECOMMENDATION: Council to take action on the Provost Variances application appeal. cc: Jennifer Henning Larry Warren Rentonnet/agnbill/ bh Uti�Y o� CITY. OF RENTON ♦ ♦ City Clerk Kathy Keolker,Mayor Bonnie I.Walton July 7, 2006 APPEAL FILED BY: Alan and Cynthia Provost RE: Appeal of Hearing Examiner's decision dated 6/20/2006 regarding the Provost Variances application, located at 3707 Lake Washington Blvd. N. (File No. LUA-06-024, V) To Parties of Record: Pursuant to Title IV, Chapter 8, Renton City Code of Ordinances, written appeal of the hearing examiner's decision on the Provost Variances application has been filed with the City Clerk. In accordance with Renton Municipal Code Section 4-8-110F, the City Clerk shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters limited to support of their positions regarding the appeal within ten (10) days of the date of mailing of the notification of the filing of the appeal. The deadline for submission of additional letters is 5:00 pm, July 17, 2006. NOTICE IS HEREBY GIVEN that the written appeal and other pertinent documents will be reviewed by the Council's Planning and Development Committee. The Council Liaison will notify all parties of record of the date and time of the Planning and Development Committee meeting. If you are not listed in local telephone directories and wish to attend the meeting, please call the Council Liaison at 425-430-6501 for information. The recommendation of the Committee will be presented for consideration by the full Council at a subsequent Council meeting. Copy of the appeal and the Renton Municipal Code regarding appeals of Hearing Examiner decisions or recommendations are attached. Please note that the City Council will be considering the merits of the appeal based upon the written record previously established. Unless a showing can be made that additional evidence could not reasonably have been available at the prior hearing held by the Hearing Examiner, no further evidence or testimony on this matter will be accepted by the City Council. For additional information or assistance, please feel free to call me at 425-430-6502. Sincerely, Bonnie I. Walton City Clerk Attachments 1055 South Grady Way-Renton,Washington 98055-(425)430-6510/FAX(425)430-6516 RENTON AHEAD OF THE CURVE This n�nnr mMninc F!1 L,raYinOr}mMcrinl 480E Mme}mncmnr CITY OF RENTON, JUN 3 0 2006 APPEAL OF HEARING EXAMINER'S DECISION/RECOMMENDA'I tTM AC TO RENTON CITY COUNCIL CSI 'SOFFICE FILE NO.L i r so - `�r - 1-{ /a2:;5- APPLICATION NA I ,rL , , e The undersigned interested party hereby files its Notice of Appeal from the decision or recommendation of the Land Use Hearing Examiner, dated OrD/6 1 Q ,2006 1. IDENTIFICATION OF PARTY APPELLA : C . REPRESENTATIVE(IF ANY): Name: Alt i J = f ' AST' Name: Address:eQ, &OX `'(g Address: 2. SPECIFICATION OF ERRORS (Attach additional sheets,if necessary) Set forth below are the specific errors or law or fact upon which this appeal is based: FINDING OF FACT: (Please designate number as denoted in the Examiner's Report) No.#7 Error: c L- f F T4-C g/6/) Correction: CONCLUSIONS: No../ Error: Sct 47-TO-RED 1( 2 3 Correction: OTHER: No. Error: Correction: 3. SUMMARY OF ACTION REQUESTED The City Council is requested to grant the following relief: (Attac explanation,if desired) Reverse the decision or recommendation and grant the following relief: �tE,47"T/-C (.t' Modify the decision or recommendation as follows: Remand to the Examiner for further consideration as follows: Other ' 0000;00. Aap5pprijosrAft. 6/: C)/ K' AppeIlant/Representative Signature Mr Da *1041 NOTE: Please refer to Title IV,Chapter 8,of the Renton Municipal Code,and Section 4-8-110F,for specific appeal procedures. CC: (lily Rfforney H:\CITY CLERK\APPEALIAPPEAL to Council.doc Ned Ii)ah'S iCied (QSTma4l City of Renton Municipal Code;Title IV,Chapter 8,Section 110—Appeals Ariso° The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170,the fee schedule of the City.(Ord.3658, 9-13-82) 4-8-110F: Appeals to City Council—Procedures 1. Time for Appeal: Unless a specific section or State law providing for review of decision of the Examiner requires review thereof by the Superior Court or any other body,any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Council,upon a form furnished by the City Clerk, within fourteen(14)calendar days from the date of the Examiner's written report. 2. Notice to Parties of Record: Within five(5)days of receipt of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the appeal. 3. Opportunity to Provide Comments: Other parties of record may submit letters in support of their positions within ten (10)days of the dates of mailing of the notification of the filing of the notice of appeal. 4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members of the City Council all of the pertinent documents, including the written decision or recommendation, findings and conclusions contained in the Examiner's report,the notice of appeal,and additional letters submitted by the parties. (Ord. 3658, 9-13-1982) 5. Council Review Procedures: No public hearing shall be held by the City Council. No new or additional evidence or testimony shall be accepted by the City Council unless a showing is made by the party offering the evidence that the evidence could not reasonably have been available at the time of the hearing before the Examiner. If the Council determines that additional evidence is required, the Council shall remand the matter to the Examiner for reconsideration and receipt of additional evidence. The cost of transcription of the hearing record shall be borne by the applicant. In the absence of an entry upon the record of an order by the City Council authorizing new or additional err evidence or testimony,and a remand to the Hearing Examiner for receipt of such evidence or testimony,it shall be presumed that no new or additional evidence or testimony has been accepted by the City Council,and that the record before the City Council is identical to the hearing record before the Hearing Examiner.(Ord.4389, 1-25-1993) 6. Council Evaluation Criteria: The consideration by the City Council shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties. 7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-1-050F1, and after examination of the record, the Council determines that a substantial error in fact or law exists in the record, it may remand the proceeding to Examiner for reconsideration,or modify, or reverse the decision of the Examiner accordingly. 8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to RMC 4-1-050F2 and F3,and after examination of the record,the Council determines that a substantial error in fact or law exists in the record,or that a recommendation of the Hearing Examiner should be disregarded or modified, the City Council may remand the proceeding to the Examiner for reconsideration,or enter its own decision upon the application. 9. Decision Documentation: In any event,the decision of the City Council shall be in writing and shall specify any modified or amended findings and conclusions other than those set forth in the report of the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record. The burden of proof shall rest with the appellant. (Ord 3658,9-13-1982) 10. Council Action Final: The action of the Council approving,modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames Now established under subsection G5 of this Section. (Ord.4660,3-17-1997) Alan and Cyndie Provost P.O. Box 1492 Renton, WA 98057 Re: ATTACHMENT TO APPEAL OF HEARING EXAMINER'S DECISION 2. SPECIFICATION OF ERRORS AND PROPOSED CORRECTIONS FINDING OF FACT#7 Error: That the applicants did not meet conditions placed upon the granting of these same requested variances in 1997. Correction: The evidence presented at the hearing,along with record of the City of Renton a copy of which is attached, proves that the applicant did record the necessary restrictive covenants. The only reason these variances granted in 1997 expired is delay in construction of the house. ERRORS IN CONCLUSION OF LAW#1 A. The erroneous implication that one is less entitled to a variance because one acquires property knowing that the code will cause building problems. This is contrary to the holding in Hoberg v. City of Bellevue, 76 Wn. 2d 810, 854 P.2d 1072(1993)which was that the mere purchase of property with knowledge of defects requiring a variance does not disqualify the owner from seeking the variance. B. The erroneous implication that a variance should only be granted to the extent necessary to allow reasonable use of the property. This limited relief is contrary to the much broader purpose of variances mandated in both Renton Municipal Code 4835,3-27-2000 and RCW 36.70.020(14). The code seeks to use variances so as to not deprive a subject property owner of rights and privileges enjoyed by other property owners in the vicinity and under identical zone classification. The statute echoes this equal privilege goal in its definition of a variance: "a variance is the means by which an adjustment is made in the application of the specific regulations of a zoning ordinance to a particular piece of property, which property, because of special circumstances applicable to it, is deprived of privileges commonly enjoyed by other properties in the same vicinity and zone and which adjustment remedies disparity in privileges". ERRORS IN CONCLUSION OF LAW#2 A. The erroneous statement that"There is no reason to approve a variance for a three-story house". B. The erroneous conclusion that granting a variance regarding a third story would create a precedent entitling every home in the city on a small lot to add a third story. By definition, a variance depends upon the unique characteristics of the particular lot and its location. The Examiner's reasoning ignores the evidence that the subject lot is on the waterfront where other houses being built are large,and that this particular lot has characteristics not shared by the other waterfront properties(a"Z"shape and a peninsula jutting into the water)such that it needs a variance in order to build a home on it like others being built in the same vicinity without a variance. C. The erroneous conclusion that the purpose of the limitation on the number of stories is to control the number of inhabitants including noise and traffic caused by more people. There was no evidence presented at the hearing to support this conclusion,nor was there a citation to the legislative record. In fact,the number of inhabitants is controlled in this zone by the fact that it is to be used only by a single family for that family's residence. This is supported by the fact that the city staff, who would be the ones to raise such issues as traffic etc., in fact supported this proposed variance. The stories ordinance, like all dimension regulations, is a matter of aesthetics, and three stories fits well in this neighborhood. ERRORS IN CONCLUSION OF LAW#3 A. The error of failing to consider the fact that the unique shape of the lot provides more shoreline than anticipated by the 25 foot setback. That even with the requested variance from the 25 foot setback,this lot would leave approximately 1,520 square feet of shoreline whereas the typical 40 foot wide waterfront lot with a 25 foot set back would leave only 1,000 square feet of shoreline. PROPOSED CORRECTED CONCLUSIONS OF LAW A. As stated in the staff's report in support of the variance allowing the 3rd story, the variance is consistent with the goal in the Renton Comprehensive Plan of promoting re-investment and upgrade of existing neighborhoods through redevelopment of small underutilized parcels. B. Conclusions of Law#'s 2 through 5,and#'s 7 through 10 reached by this same Hearing Examiner in 1997 pursuant to a substantially identical application and evidence should be made again. A copy of said 1997 decision is attached. 3. SUMMARY OF REQUESTED RELIEF: Reverse the decision denying the variance for the third story and for a ten foot setback. 'err • 416) • August 14, 1997 OFFICE OF TSE SEARING EXAMINER CITY OF RENTON $F,PORT AND DECISION APPLICANT: Mitch Williams MF Williams Construction Provost Variance Fife No.: LUA-97-065,V LOCATION: North of 3707 Lake Washington Blvd.N SUMMARY OF REQUEST: Variance of the Shoreline Master Program to reduce the required 20 foot setback from the water's edge to 10 feet;and variance to exceed the two-story height limit by one story. SUMMARY OF ACTION: Development Services Recommendation: Approve with conditions DEVELOPMENT SERVICES REPORT: The Development Services Report was received by the Examiner on July 29, 1997. PUBLIC HEARING: After reviewing the Development Services Report,examining available information on file with the application,field checking the property and surrounding area;the Examiner conducted a public hearing on the subject as follows: MINUTES The followbrg minutes are a swummy of the August S,1997 hearing. The kgat record is recorded on tape. The hearing opened on Tuesday,August 5,1997,at 10:05 a.m.in the Council tears on the second floor of the Renton Municipal Building. Parties wishing to testify were affirmed by the Examiner. The following exhibits were altered into the record: Exhibit Na 1: Yellow file containing the original Exhibit Vicinitym ap application,proof of posting,proof of publication and other documentation pertinent to this request_ Fihibit Na t• Plot plan Exhibit No.4: Budding elevations Exhibit No.5: Water boundary map Exhibit No.6: Streetscape of proposed site Exhibit No.2: Illustration of building height and -----.- story limit 1 • Mitch Williams IvIF Williams Construction Provost Variance File No.:LUA-97-065,V ''v"' August 14, 1997 Page 2 The hearing opened with a presentation of the staff report by ZENNIFER HENNING,Project Manager, Development Services,City of Renton,200 Mill Avenue South,Renton,Washington 98055. The applicant is requesting two variances. The first is a variance from the Shoreline Master Program(SMP)requirements and is a request for reduced rear yard setback. The SMP requires that there be a minimum of 20 feet from the water's edge to the structure. The applicant is requesting that a portion of the home be allowed to be located within 10 feet of the water's edge. The second variance being sought is a variance from the City's zoning code pertaining to the height of a single family residential structure. Those development standards specify that the height shall be limited to 30 feet,or to two stories. The applicant is proposing a building that would be between 29 and 30 feet in total height,but would be three stories. This site is located on the shores of Lake Washington and is reached by an existing private access easement. The neighborhood has developed generally with single family residential homes along the lake shore. These lots are unique in that the land area is rather small. The lots that comprise the subject parcel are 49 and 50 and the land area is about 3,300 square feet. It then extends to the west to the inner harbor line of the lake. A substantial portion of the property is actually under water The boat house on the property will remain. An existing shed and garage on the property would be demolished. Because this property is located on both land and water,and because there is an existing rock wall across Lot 49,which is the north half of the subject parcel,it creates a Z-shaped land area in which the applicant could develop this particular property. To meet setbacks requirements,the maximum building pad area would be 960 square feet. The water is at least 56 feet from the southwest corner of the proposed structure. The 10 foot variance requested is from a column that is near the center of the home out to the rock wall. There is just a very short area,from 5 to 17 feet,that would be in the reduced setback area. The criteria for the SMP variance is that there are exceptional or extraordinary circumstances or conditions applying to the subject property that generally do not apply to other properties or shorelines in the same vicinity. The land area of the subject parcel is somewhat unusual because of the existing rock wall which shortens the land area and creates a Z-shaped building pad area. The applicant has contended that the shape of the lot coupled with the 20 foot setback requirement from the water's edge does unjustly restrict the building pad site for the home. A further criteria is that the variance is necessary for preservation and enjoyment of a substantial property right of the applicant that is also possessed by the owners of other properties on shorelines in the same vicinity. The requested variance would permit the applicant to construct a single family home that has a maximum footprint of approximately 960 square feet of floor area on each of three levels. This would preserve the applicant's right to develop a residential home that is either comparable or less than comparable to the other existing homes in the immediate vicinity of the proposed dwelling. Another criteria is that the variance permit would not be detrimental to the public welfare or injure properties on the shoreline in the same vicinity. This particular variance request would not result in impact to a natural beach area nor a public access point. The reduced setback would not impede views to,from or along the water's edge. The SMP encourages uses along the shoreline that do not obstruct views,that do not disturb the community and that have an appropriate design theme. The applicant is proposing a single family home that meets the use,compatibility and aesthetic affects portion of the SMP. There appear to be adequate utilities available to serve the area. The proposed use would not exceed density allowed by the zoning code and it does meet the criteria noted in the residential development portion of the SMP_ Mitch Williams MF Williams Construction Provost Variance File No.:LUA-97.065,V August 14,1997 Page 3 *410 The design of the site and structure appear to be harmonious with the stated policies of the SM?. The first floor of the proposed structure would be garage,a beach room and a bath area. The second story would be kitchen, dining,bathroom,and the third story would have a master bedroom,bath area,and a small guest room. It would result in approximately 2,480 square feet of living area. It would have a flat roof. Regarding the zoning variance,the applicant is requesting relief from the story requirement as defined in the height portion of the zoning code. They would like to build a structure that is between 29 and 30 feet in height which is permitted by the code, . .1 would lice to do this in three stories;not two stories as dictated by code. The adjacent home to the •.'' -?4resentdy a pitched roof and is about 35 feet in height. The applicant contends that the height variance is necessary because of the size and shape of the existing parcel and in order to comply with the setback requirements of die zoning code. Given the cetrent setbacks the maximum building footprint would be 960 square feet. That would allow a total of 1,920 square feet if they were to build a two- story dwelling,but would include the two-car garage. The actual living space of the house would be 1,480 square feet. There arc two existing new homes located to the north that are three story structures and are considerably larger.than 1,920 square feet The SMP does allow structures along the shoreline up to 35 feet in height,but the City's zoning code docs not allow that height. Granting of the height variance does not affect adjacent sight lines which allow views to Lake Washington. This is because of the low elevation of the subject parcel in relation to the raised Burlington northern right-of- way to the east. In addition,the maximum height of the three story structure would not exceed the overall height limit which is 30 feet allowed in the R-8 zone. The proposed structure would not exceed the existing height of the adjacent residence to the south. Staff recommends approval of both the SMP variance for the reduced rear yard setback and also the height variance from the zoning code,subject to conditions. The first condition is that the height of the residence would not exceed the maximum allowed height of the applicable zone as measured in feet that is in effect at the time the application is made for building permit The second condition is that the minimum allowable setback from the water's edge shall not be any less than 10 feet being requested and only in that area that is problematic with regard to the rock wall_ Staff would also request a restrictive covenant be recorded that does not allow any sort of structures within that 10 foot area and that it be maintained as open planted area or ground level patio. A further recommended condition is that applicant be required to obtain all the necessary permits and approvals for the proposal,including building permits,certificate of water and sewer availability,and to comply with all code requirements_ Mitch Williams,P.O_Box 361,Mercer Island,Washington,98040,applicant herein,illustrated the setback area requested.. He explained that the particular design of the structure is two-fold--to make the house more interesting aesthetically,and to provide a small access area to get from the garage and out to the beach and provide a bath arca for waterfront beach activities_ The building footprint itself is rather small. When the applicant purchased the property in 1986 the zoning code allowed three story structures. Mr.Williams stated that they had accommodated the parking for the property immediately to the south as requested by staff. He added that the overall characteristics of the new homes to the north are of a fairly high degree of construction standards_ They are aesthetically pleasing and the initial impression is they are all larger than the property construction being proposed here. Mitch Williams MF Williams Construction Provost Variance File No.:LUA-97-065,V August 14, 1997 Page 4 Al Provost, 1224 N.32nd,Renton,Washington 98056,owner herein,explained the history of his ownership of the subject site and adjacent Lots 5I and 52_ Regarding the existing boathouse,be related the events of a recent windstorm wherein a portion of an attached lean-to had blown onto a neighbor's dock_ He stated the boathouse has been there fora long time and is structurally sound,built with four 14 x 10 inch beams overhead. He would be willing to have the boathouse inspected. Mr.Provost further explained some afire unusual circumstances that prompted the shoreline variance, particularly the angled curve on Lot 49. In looking at the 13 houses that are accessed off the street that goes to the north,there would still be 9 houses out of those 13 houses that are bigger than their proposed house,even with the variances. He also stated that because of the location of the site,there will be no impact to the view from adjacent houses. There are currently two evergreen trees on the property which applicant plans to-keep. • Steven Altringer,3701 Wells Avenue North,Renton,Washington 98056,stated that he owns 600 feet from Lake Washington Boulevard to Wells Avenue all the way up the bill. He has.no objection to the building,but he would like to see the trees removed. His main concern was with the height variance and whether it was setting a precedence for future variance& At some time in the future he plans to short plat his property and will ask for the same variance. The Examiner explained that this applicant was dealing with an unusually small non-submerged surface land area,and that Mr.Altringer would have to show the various hardships and the physical and topographical constraints that would allow a variance. The Examiner called for further testimony regarding this project There was no one else wishing to speak,and no further comments from staff. The bearing closed at 11:00 am_ FINDINGS,CONCLUSIONS.DECCSN)N Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1. The applicant,Mitch Williams for Al and Cindy Provost,filed requests for approval of a variance to allow a three-story single family residence,and for approval of a variance to allow a 10 foot rear yard setback from the shoreline of Lake Washington. 2. The yellow file containing the staff report,the State Environmental Policy Act(SEPA)documentation and other pertinent materials was entered into the record as Exhibit#1. 3. The Environmental Review Committee(ERC),the City's responsible official,determined that the proposal is exempt from an environmental assessment 4. The subject proposal was reviewed by all departments with an interest in the matter. 5. The subject site is located at 370,Lake Washington Boulevard North. Actually,the site is accessed by a separate roadway off Lake Washington Boulevard. The property,consisting of two side-by-side parcels,is located on the shoreline of Lake Washington. weer Mitch Williams MF Williams Construction Provost Variance File No.:LUA-97-065,V August I4, 1997 Page 5 6. The subject site was annexed to the City over a number of months with the adoption of Ordinances 1791, 1800 and 1804 enacted between September and December of 1955)- 7_ The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of single family uses,but does not mandate such development without consideration of other policies of the Plan. 8. The subject site is zoned R-8 which permits up to eight single family homes per acre. 9. As noted,the subject site consists of two lots with part of each lot submerged below the surface of the lake. These parcels are each approximately 20 feet wide. The upland or dry portions of these lots vary in length. The northernmost parcel is approximately 71 feet long and the southern adjoining parcel is approximately 100 feet long. 10. The shoreline or edge of these parcels is clearly defined by a ziplagging rock wall or bulkhead. There is no natural shoreline. 11. Currently,a 20 foot wide and 40 foot deep boathouse is located approximately 12 feet out from the shore of the northern parcel and is connected to the shore by a narrow pier. It suffered wind damage this winter and is in need of repair. 12. An approximately 8 foot square shed is located along the water's edge on the northern lot It will be removed. 13. Section 4-31-5(DX9Xa)restricts the height of single family dwellings as follows: The height of a dwelling or structure shall neither exceed two(2)stories nor thirty feet ,, (30')in height and shall not conflict with the airport height restrictions of Section 4-31- 17 of this Chapter. 14. Therefore,the applicant has requested a variance to allow the building to be three(3)stories tall. 15. The City's Shoreline Master Program requires single family homes to be set back 20 feet from the shoreline of Lake Washington(Section 4.0702(D)). The applicant has proposed a minimum setback of ten(10)feet from the lake. 16. The proposed footprint and three-story height is intended to yield a reasonable single family dwelling. There would be a ground level footprint of 960 square feet. The two-car garage of 400 square feet would leave a two-story home with 1,500 square feet. Projected over,three stories,the home would be approximately 2,880 square feet less 400 square feet or approximately 2,480 square feet 17. The plot plan and building footprint shows the house follows the irregular stepped western or shoreward property line. This creates a setback in one location which is reduced to 10 feet at a corner or angle where the house facade turns back away from the shoreline. l 8. The underlying applicants own the adjoining two parcels to the south. An existing home is located on that property. Mitch Williams MF Williams Construction Provost Variance File No.:LUA-97-065,V Nary August 14, 1997 Page 6 19. There are single family homes both north and south of the subject site. A review of the area shows that the shoreline makes a substantial jog directly in the middle of the applicants current property. The development of a dwelling as proposed would not severely impact the views of adjacent parcels due to the staggered nature of the shoreline. Other homes in the area are both larger and smaller than that proposed in this case. 20. The proposed home would be less than the 30 feet height permitted in the zone,but a recent change in regulations limited homes to two stories in height. 21. A review of variance applications for properties along the shoreline show variances both denied and approved. It appears that each variance determined the unique circumstances of each parcel vis a vis upland area and parcel width and depth. CONCLUSIONS: Height Variance 1. Variances may be granted when the property generally satisfies all the conditions described in part below: a. The applicant suffers undue hardship caused by special circumstances such as:the size,shape, topography,or location where code enforcement would deprive the owner of rights and privileges enjoyed by others similarly situated; Aare b. The granting of the variance would not materially harm either the public welfare or other property in the vicinity; c_ The approval will not constitute a special privilege inconsistent with the limitations on other property in the vicinity;and d. The variance is the minimntun variance necessary to allow reasonable development of the subject site. The applicant's property appears ripe for the variance requested_ 2. The property in question which combines two approximately 20 foot wide lots in order to create one building pad is severely constrained by the shoreline and Lake Washington. Not only are the parcels of unequal length,but a large portion of these side-by-side lots are submerged below the lake's surface. Most of the newer houses along the shoreline in this vicinity have fully exploited their limited unsubmerged area by reducing one or more setbacks to increase the footprint area. In this case,the lot still constrains the development of a reasonable dwelling,particularly when compared with these newer neighbors. • 3_ Approval of a variance to allow a three-story home will not materially harm either the public or neighboring properties. The main reason being that the zone permits a home to be 30 feet tall in any event and the proposed home will not exceed that limit. It also appears that due to the shape of the shoreline and the location of other homes along the shoreline that this dwelling would not significantly intrude in the existing viewscape. °err • - • Mitch Williams MP Williams Construction provost Variance File No.:WA-97-065,V August 14, 1997 ,.rr+ Page 7 4. As noted,other variances have been issued when the underlying parcels were significantly constrained by their size or shape. Granting of this variance should not create any special privilege and is not inconsistent with what has occurred on other nearby properties. 5. The variance for one additional floor is the minimum,given the other constraints that already limit the developable lot area. Again,the additional floor will not exceed the absolute 30 foot height limit imposed on this zone. Shoreline Variance 6_ In addition to the criteria noted above,shoreline variances are subject to some additional review criteria taking into consideration the unique and fragile environment along the shoreline. Those particular criteria are: a. Exceptional or extraon l many circumstances or conditions applying to the subject property,or to the intended use thereof,that do not apply generally to other properties on shorelines in the same vicinity. b. The variance permit is necessary of the preservation and enjoyment of a substantial property right of the applicant possessed by the owners of other properties on shorelines in the same vicinity. c. The variance permit will not be materially detrimental to the public welfare or injurious to property on the shorelines in the same vicinity_ d. The variance granted will be in harmony with the general purpose and intent of this Master Program_ e. The public welfare and interest will be preserved;if more harm will be done to the area by granting the variance than would be done to the applicant by denying it,the variance will be denied,but each property owner shall be entitled to the reasonable use and development of his lands as long as such use and development is in harmony with the general purpose and intent of the Shoreline Management Act of 1971,and the provisions of this Master Program. 7. As discussed above,the shape and overall depth of the upland,unsubmerged combined parcel create unique or exceptional circumstances justifying variance relief The combined width of the two parcels is approximately 40 feet wide. The two parcels are two different lengths,creating an awkward land mass on which to construct a reasonably sized single family home. The home more or less attempts to follow the outline of the combined parcel and one corner of the.home would be within 10 feet of the shoreline while most of the bulk would be set back a greater distance overall. 8. Since variances from the shoreline setback have been granted under similar circumstances where the lot depth or overall width was generally substandard,the approval of this variance will preserve the property right for this applicant as is enjoyed by similarly situated properties along the shoreline. 9. Due to the shape of the property and the nature of the shoreline,the addition of the hone permitted by variance approval will not be materially detrimental to either the public welfare or other property in this vicinity. Staff has recommended that no additional above ground intrusions be permitted in the remaining setback,thereby assuring that any intrusion will be limited. The existing home to the south .• Ecisio,o or HLA-g1,06_ Mitch Williams y9,7 Ml Williams Construction Provost Variance File No.:LUA-97-065,V August 14, 1997 Page 8 and the homes and boathouse to the north and on this lot also already impact others'views to some extent. • 10. The public welfare will be preserved_ Again,the property owner is merely being permitted to exercise rights exercised by others in this vicinity who have had similar constraints due to lot size or depth or width. The applicant will be observing the remaining bulk standards even whale adding one additional story by not intruding into required sideyards or exceeding the permitted 30 foot height. 11. In conclusion,the variances requested appear reasonably necessary to allow the development of a not unreasonable single family dwelling in this location on these two preexisting legal although substandard parcels. DECISION AND RECOMMENDATION: The variances to allow a three-story single family home within 10 feet of the shoreline is approved subject to the following conditions: 1. The applicant shall develop a single family home as demonstrated in Exhibit 3• 2. Applicant shall record a restrictive covenant that does not allow any sort of additional structures within any of the setback area and that it be maintained as open planted area or ground level patio. • 44010- 3. The boathouse may be repaired but shall not be expanded in any direction or have any change in its bulk. 4. The actual physical height of the residence shall not exceed a plane of 30 feet above ground level. 5. The applicant shall be required to obtain all other necessary permits and approvals for the proposal(Le-building permit,certificate of water and sewer availability,etc.). ORDERED THIS 14th day of August, 1997. '4111.--).K4s.:4ANIC-40+11- FRED J. HEARING EXAMINER TRANSMITTED THIS 14th day of August, 1997 to the parties of record: Jennifer Henning Mitch Williams Al Provost 200 MiII Avenue S P O.Box 361 1224 N 32nd Renton,WA 98055 Mercer Island,WA 98040 Renton, WA 98056 • • r -I _ •„•itis': i4,r-c. `a:• ' --. _ I. _ Jesse Tanner.Mayor • • • • April 14, 1998 • Mr.and Mrs.Al Provost • - 1224 N 32nd Renton,WA 98056 Re: Provost Variance File No.LUA97-065,V Dear Mr.and Mrs.Provost Your letter to Jay Covington was redirected to this office as you had the wrong name for the Hearing Examiner. This office has reviewed your letter and concerns. The covenants do run with the land but so do the variances that were applied for by the applicant. The variances will alter the character and reduce the required setbacks for as tang as the structure remains. • The covenants can probably reflect the fact that they would lapse when and if the structure or structures were removed and the lot restored to a vacant state,at which time new permits and variances,if necessary,would be required under the then affective regulations. If the conditions imposed with the approval were unsatisfactory,the applicant should have spoken up at that time. It is now too late to substantially alter the decision. Some of this could have been handled more effectively if the covenants in dreier/II bad been submitted for review • to the City Attorney as instructed in the correspondence from this office. Sincerely, 1 Fred J. Hearing Examiner • cc: Jay Covington ' Larry Warren Jennifer Henning • 200 Mill Avenue South-Renton,Washington 98055-. 235-2593 &Ink woo.err 5O .rearmed ug4vas.]o%post consume CITY OF RENTON PLANNINGBUILDING/PUBLIC WORKS MEMORANDUM DATE: March 30, 1998 TO: Fred Kaufinan.Hearing Examiner FROM: Jennifer Toth Henning dell SUBJECT: Provost Variance(File No.LUA 97-065,V) The Provost's application for two Variances (one from the Shoreline Master Program, and the other from the development standards of the R-8 Zone)was approved in August, 1997 with conditions. The applicant wished to vary from the Shoreline Master Program requirements for a minimum 20-foot setback from the water's edge, and proposed a 10 foot setback from the water's edge. The second variance requested was to exceed the two-story building height limit of the R-8 Zone by one-story. The reconsideration/appeal period for the decision ended on August 28, 1997, and no appeals or : requests for recarsideration were filed. On August 26, 1997,prior to the end of the appeal period,a letter was sent from the Hearing Examiner to the applicant,Mitch Williams(architect/contractor for the owner), reminding him of the appeal deadline, and providing instructions fix the execution of the required restrictive covenants. Condition No.2 states that the: "Applicant shall record a restrictive covenant that does not allow any sort of additional structures within any of the setback area and that ft be maintained as open planted area or ground level patio." The letter(copy attached)states that: "Restrictive covenants. as outlined in the Examiner's Report and Decision, will have to be executed These covenants must also be accompanied by a legal description of the property. Samples of the format are enclosed The restrictive covenants must be approved by the City Attorney prior to execution. Therefore,please provide a copy of the draft covenants to our office and we will than forward them to the City Attorney for review. The required legal description will also require review and approval by the City as to correct format. After the covenants and legal description are approved and the covenants executed, the matter will be considered final and the covenants will be filed with King County by the City Clerk" The property owners(the Provosts)apparently received a copy of the sample format for the restrictive covenants from the applicant, without benefit of the accompanying letter from your office.c. The Provosts recorded restrictive covenants for the property. Unfortunately, the covenants were not reviewed by your office or the City Attorney, prior to recording. The covenants included a sunset clause that would result in the expiration of the covenants on December 31,2025. And,the restrictive covenants went beyond the Hearing Examiner's Condition No. 2 and included Conditions No. 2, 3, 1175 SERVER\SYS2ACOMUM-H.VIVBION.s rEVELOPSEROEVktLANJNOVTININST.DOCyd, err' Match 30, 1998 Page 2 and 4. I forwarded a copy of the covenants to Larry Warren for review. He approved the covenants as to form, provided the sunset clause is removed, as Condition No. 2 was intended to run with the land,in perpetuity. I have had several discussions with the Provosts. They thought that the sample restrictive covenant "duration"date was standard language and needed to be included in their document. They were not happy with the 2T year period that the covenant would be in effect,but they signed("under protest") and recorded the document. The Provosts were quite surprised to find out that the covenant needs to be re-recorded to run with the land"in perpetuity". It appears that the new covenant does not need to include language regarding the boathouse and building height(previously recorded Restrictive Covenants No 2 and No. 3). The Hearing Examiner Decision did not specify that any of the other conditions of approval, other than Condition No. 2 (regarding structures in the setback area),be recorded. The Provosts letter of March 19th appears to raise objections that should have been noted during the reconsideration/appeal period. However,they do raise a valid concern in the last paragraph. If in the future,City requirements change to be more permissive,then they should be required to meet the same restrictions imposed on other properties. There is a process they could go through to remove the restrictive covenant if City regulations no longer apply to the parcel. A description of the method is attached(see Policy and Procedure No.400-13). The attached letter from the Provost's was addressed to Jay Covington. It should have been directed to you. A reply from your office appears to be in order. Could you direct the reply to the owners? They are: Al and Cyndie Provost,PO Box 823,Mercer Island,WA 98040. A copy should also be sent to the applicant Mitch Williams,MF Williams Construction,PO Box 361,Mercer Island,WA ; 98040. Please feel free to contact me at 6186 should you have any questions. t © CITY OF RENTON at Review Comments Now permit Number CP98095 ENERGY COMMENTS: JAN CONKLIN 425-277-6176 1. COMPLETE #6 ON CHECKLIST FOR EXHAUST FANS. SPECIFY ALL FANS TO BE INSTALLED IN KITCHENS, BATHS, LAUNDRY ROOMS. SELF VENTED RANGE DOES NOT MEET CODE REQUIRIINT FOR VENTING TO THE EXTERIOR. SEPARATE FAN REQUIRED. BUILDING/ PLANNING REVIEW: CRAIG BURNELL 1. PROVIDE A COMPLETE SITE PLAN WITH SUBMITTAL PER RENTON REQUIREMENTS. 2. PROVIDE ATTIC VENTILATION 3. MINIMUM VENTILATION AREA REQUIRED IS 5% OF FLOOR AREA. SHOW FLOOR AREA AND AREA OF OPENINGS ON FLOOR 2. 4. SHOW ONE HOUR FIRE SEPARATION BETWEEN GARAGE AND HOUSE. 5. SHOW ONE HOUR FIRE SEPARATION UNDER STAIRS. 6. PROVIDE VERIFICATION OF COMPLIANCE WITH HEARING EXAMINER CONDITION #2. 7. ENGINEER SHOULD EVALUATE DEFLECTION OF STEEL FRAME TO DEMONSTRATE IT IS WITHIN ACCEPTABLE LIMITS. 8. APPLICANT MUST PROVIDE TWO OFF-STREET PARKING SPACES PER SINGLE FAMILY RESIDENCE. TANDEM PARKING IS ALLOWED. THE NEW PARKING SHOWN FOR THE EXISTING HOME DOESN'T MEET CODE REQUIREMENTS. THE APPLICANT WOULD NEED TO PROVIDE MINIMUM DIMENSION OF 9 FEET WIDE BY 40 FEET LONG TO ACCOMODATE THE TWO PARKING SPACES; OR SEEK A MODIFICATION FROM THE PARKING AND LOADING ORDINANCE. FOR TEE MODIFICATION, THE APPLICANT WOULD NEED TO SUBMIT A LETTER TO THE ADMINISTRATOR OF P/B/PW DEPARTMENT. THE LETTER MUST INCLUDE A WRITTEN JUSTIFICATION AND THE REQUESTED MODIFICATION MUST: CONFORM TO THE INTENT AND PURPOSE OF THE CODE; BE SHOWN TO BE JUSTIFIED AND REQUIRED FOR THE USE & SITUATION INTENDED; WILL NOT CREATE ADVERSE IMPACTS TO OTHER PROPERTIES IN THE VICINITY; AND THE REQUEST MUST BE MADE PRIOR TO DETAILED ENGINEERING. 9. APPLICANT STILLS NEEDS TO COMPLY WITH HEARING EXAMINER CONDITIONS, ESPECIALLY REGARDING THE REQUIRED RESTRICTIVE COVENANT. 141110" 131)32044 10/93 dre CITY,-,F RENTON Office of the City Attorney Lawrence 3.Warren Jesse Tanner Mayor �� UEV TY OF R ON MANNING .4400 CIMEMORANDUM MAR 16 199a RECEIVED To: JenniferToth Henning From: Lawrence J.Warren,City Attorney Date: March 13, 1998 Subject: Declaration of Restrictive Covenants - Provost Residence Shoreline Variance(File No. LUA-97-065,V) The covenants are approved as to legal form with the exception that they should be in perpetuity, . until the structures covered by the variance are removed or until further-variances are obtained. ( z fLA Lawrence J. Warren LJW:as. cc: Jay Covington A8:138.24. • Post Office Box 626 - 10 S. 2nd Street-Renton, Washington 98057 - (425)255-8678 *00 Thk minor mains 50%►reinedmateriN. 4poxoartagncr DECLARATION OF RESTRICTIVE COVENANTS 'WHEREAS Al and Cyndie Provost are the owners of the following real property in the City of Renton, County of Niusie King,State of Washington,described as Exhibit`A'attached hereto. WHEREAS,the owners of said-described property desire to impose the following restrictive covenants running with the land as to use,present and future,of the above described real property. NOW,THEREFORE,the aforesaid owners hereby establish,grant and impose restrictions and covenants running with the land herein above described with respect to the use by the undersigned, their successors, heirs, and assigns as follows: RESTRICTIVE COVENANTS 1. No additional structures within any of the setback area are permitted,and that these areas shall be maintained as open planted area or ground level patio. 2. The boathouse may be repaired but shall not be expanded in any direction or have any change in its bulk. 3. The actual physical height of the residence shall not exceed a plane of 30 feet above ground level. DURATION These covenants shall run with the land and expire on December 31,2025.If at any time improvements are installed pursuant to these covenants,the portion of the covenants pertaining to the specific installed improvements required by the Ordinances of the City of Renton shall'terminate without necessity of further documentation. Any violation or breach of these restrictive covenants may be enforced by proper legal procedures in the Superior Court of King County by either the City of Renton or any property owners adjoining subject property who are adversely affected by said breach. 14•100 `% e Provost • 1 Provost STATE OF WASHINGTON ss. County of KING On this day of, _ 1997,before me personally appeared the persons who executed the within and foregoing instrument,and acknowledged said instrument to be the free and voluntary act and deed of said persons for the uses and purposes therein mentioned. IN WITNESS WHEREOF.I have hereunto set my hand and affixed my official seal the day and year first above written. Itlgtpary Public in and for the State of Washington,residing at _ --�— SHORELINE SETBACK VARIANCE AND VARIANCE TO ALLOW A THIRD STORY. THE PROPOSED SF RESIDENCE WOULD BE LOCATED ON LOTS 49 AND 50 AND WOULD NOT EXCEED THE 30 FOOT HEIGHT LIMITATION OF THE R-8 ZONE. THE APPLICANT RESIDES TO THE SOUTH OF THE PROJECT SITE AT 3707 LAKE WASHINGTON BL N. A VARIANCE FROM THE SHORELINE MASTER PROGRAM IS REQUIRED IN ORDER TO CONSTRUCT THE PROPOSED RESIDENCE CLOSER WITHIN 10 FEET OF THE SHORELINE. WHILE VARIANCES WERE CONDITIONALL . ' ' :OVED BY EXAMINER ON 8-17-1997. THIS APPROVAL WAS LATE'- 2- -2000 DISMISSED AND TREATED AS DENIED' BY THE EXAMINE' . REQUIRED CONDITIONS OF APPROVAL WERE NOT COMPLIED WITH. 3)ii--Di/OC-- IA-( r GPIR-6° 4_• C1T .' OF RENTON . -J Hearing Examiner '; Fred ICa■fman Jesse Tanner,Mayor - .. • January 24,2000 CERTIFIED MAIL RETURN RECEIPT REQUESTED Mr. Al Provost 1224 N 32nd •- Renton,WA 98056 Re: Provost Variance File No.LUA97-065,V Dear Mr.and Mrs.Provost This office issued a Decision on the above-referenced matter on August 14, 1997:-That . Decision required reg:rding a restrictive covenant wlndtwouId not allow any structures - to be placed within any of the setback areas,and that it be maintained as open planted area or ground level patio. A draft foam was sent on August 26, 1997,but this office has never received a completed covenant If we do not receive a completed covenant by Ferry 7,2000,this office will dismiss the application with prejudice,and it will be treated as a denial of the request. Sincerely, 117-1 Fred J.Ka •k 1,O,1 Hearing Examiner FJKnnm • cc: Larry Warren,City Attorney Jennifer Henning,Development Services 1055 South Grady Way-Renton,Washington 98055-(425)430-6515 a%M;.owner rrtAtwism ears.,....+..1 mollea.1 911.1L awn ntneseoW ad r M.F. WILLIAMS CONSTRUCTION CO.,INC. P.O. BOX 361 MERCER ISLAND,WA.98040 Neal g G7 a { DECLARATION OF RESTRICTIVE COVENANTS WHEREAS Al and Cyndie Provost are the owners of the following real property in the City of Renton,County of King,State of Washington,described as LOSS 49 AND 50, BLOCK "A", C.D. HILLMAN'S LAKE WASHINGTON GARDEN OF EDEN ADDITION TO SEATTLE,NO. 2, ACCORDING TO THE PLAT RECORDED IN VOLUME 11 OF PLATS, PAGE 64, IN KING O COUNTY,WASHINGTON; SA tot tst TOGETHER WITH SECOND CLASS SHORELANDS ADJOINING;AND e r gri THE WESTERLY 15 hbt OF THAT PORTION OF FORMER NORTHERN vit PACIFIC RAILWAY COMPANY RIGHT-OF-WAY AS LIES BETWEEN 'THE ;` NORTHERLY AND THE SOUTHERLY LINES OF SAID LOTS 49 AND 50. TAX PARCEL IDS:334270-0250-03 WHEREAS,the owners of said described property desire to impose the following restrictive covenants running with the land as to use,present and future,of the above described real property. NOW,THEREFORE,the aforesaid owners hereby establish,garland impose restrictions and covenants running with the land herein above described with respect to the use by the undersigned, their successors,heirs,and assigns as follows RESTRICTIVE COVENANTS e" ! 1;No additional structures within any of the setback area are permitted,and that these areas shall be maintained as open planted area or ground level patio. 2. The boathouse may be repaired but shall not be expanded in any direction or have any change in its bulk. 3. The actual physical height of the residence shall not exceed a plane of 30 feet above ground level. DURATION These covenants shall run with the land aund expire on December 31,2025.If at any time improvements are installed pursuant to these covenants,the portion of the covenants pertaining to the specific installed improvements required by the Ordinances of the City of Renton shall terminate without necessity of further docrinientation. Nok'"` Any violation or breach of these restrictive covenants may be enforced by proper legal procedures in the Superior Court of rung County by either the City of Renton or any property owners adjoining subject property who are adversely affected by said breach. • • e Provost Al Provost STATE OF WASHINGTON ss. County of KING On this _c-,r-Lt- day of A(rive 6.4'�- 1997,before me personally appeared the persons who executed the within and foregoing instrument,and acknowledged said instrument to be the free and voluntary act and deed of said persons for the uses and purposes therein 4 mentioned. C ciArit2 PAt,10,64- 4 4(c R est IN WITNESS WHEREOF,I have hereunto set my band and affixed my official seal the rig *or ri day and year first above written. 4t-ttle Nottary Public in and for the State of Washington,residing at f OF FICIAL.St:AL SHARON GIL9EATSON Mir/Mk-SlMeof INcommission Wits54.01 • June 20,2006 OFFICE OF THE HEARING EXAMINER CITY OF RENTON '41.11 Minutes APPLICANT/OWNER: Al and Cindy Provost PO Box 1492 Renton,WA 98057 PROJECT NAME: Provost Variance File No.: LUA 06-024, V-H LOCATION: North of 3707 Lake Washington Boulevard North SUMMARY OF REQUEST: Applicants have requested three variances: reduce 25-foot setback from water's edge to 10-feet; to exceed two-story height limit by one story; and reduce front yard setback from 20 feet to five feet. SUMMARY OF ACTION: Development Services Recommendation: Approve with conditions DEVELOPMENT SERVICES REPORT: The Development Services Report was received by the Examiner on May 9,2006. PUBLIC HEARING: After reviewing the Development Services Report,examining available information on file with the application,field checking the property and surrounding area; the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the May 16,2006 hearing. The legal record is recorded on CD. The hearing opened on Tuesday,May 16,2006,at 9:04 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing the original Exhibit No.2: Neighborhood Detail Map application,proof of posting,proof of publication and other documentation pertinent to this request. Exhibit No. 3: Site Plan Exhibit No.4: Building Elevations Exhibit No. 5: Lower Level floor Plan and Second Exhibit No. 6: Second Level floor Plan and Upper Floor Framing Plan Level Framing Plan *id Exhibit No. 7: Upper Level floor Plan and Roof Exhibit No.8: Zoning Map Framing Plan Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 2 Now- Exhibit No.9: Drawing of where the house would be Exhibit No. 10: Copy of Covenants from the original drawn back with the 25-foot shoreline setback. filing. Exhibit No, 11: Photo by Mr. Weil of the large tree Exhibit No. 12: Five photos of three new homes on the Provost property under construction in the Barbee Mill area The hearing opened with a presentation of the staff report by Jill Ding, Senior Planner, Development Services, City of Renton, 1055 S Grady Way,Renton, Washington 98055. The property is located along the shores of Lake Washington, west of Lake Washington Boulevard, south of N 38th Street and north of N36th Street. The property is zoned Residential-8 dwelling units per acre(R-8)and is located within the Residential Single-Family Comprehensive Plan Land Use Designation. There is a detached garage structure,shed,a boathouse and dock currently on the property, the shed and the garage are proposed to be removed. The applicant is requesting three variances to construct a three-story single-family residence with a maximum footprint of approximately 960 square feet. The variances include a shoreline variance from the required shoreline setback, a height variance and a front yard setback variance. The shoreline variance and height variance were previously granted under LUA 97-065 in August of 1997. A single-family building permit was also issued on the property in April of 1998. Both approvals have expired. The Examiner stated that he believed the covenants were never signed and so the application for the variance No,„ was dismissed. Ms. Ding stated that she had a timeline for the file and she noted that in January 2000 the Examiner sent a letter stating that he had not yet received the required covenants and that the variance would be dismissed if the covenants were not received by February 7, 2000. On February 1,a second covenant was filed that runs in perpetuity,as requested by the City Attorney, however there is no documentation of the attorney review or approval. The original covenant was not rescinded and both covenants currently encumber the property. There appear to be no copies of either covenant. The proposal for the single-family residence is consistent with the Community Design Element of the City's Comprehensive Plan. The variance requesting an additional story to the residence would not exceed the 30-foot height limit but would exceed the maximum number of stories permitted,which is two. Since the original variance was approved, the City's regulations have changed and front yard setbacks are required to be measured from the edge of an access easement rather than from the edge of the property line. They are now asking for a 5-foot setback from the edge of the access easement rather than the required 20-foot front yard setback. The height variance is necessary due to the size and shape of the existing parcel. The applicant proposes a three-story residence which would be 29-feet 11-inches and would not exceed the 30-foot maximum height limit. A lot of the parcel is underwater and unbuildable, the land area is 3,363 square feet and by City's standards would be a substandard lot. The applicant is dealing with a very small land area combined with the lige shoreline setback and required front and side yard setbacks, there are a lot of constraints on this piece of land. In order to mitigate all those constraints,the applicant has proposed to construct a three-story residence,giving Provost Variance File No.:LUA-06-024, V-H June 20,2006 Page 3 1100 them an adequate buildable area within a minimal footprint. Living space area would be just under 1,500 square feet. Staff does support the three-story height variance due to the constrained lot area. The applicant contends that the front yard setback variance is necessary due to the size and shape of the existing parcel. It was also noted that the southeastern part of the existing garage is located within the access easement and the remainder of the garage is located closer than 5-feet to the access easement. The granting of the height variance would not be materially detrimental to the public,no adjacent sight lines or views of Lake Washington would be affected. The proposed 5-foot front yard variance would not be detrimental as the existing garage is located closer than five feet and actually is within the access easement. The existing homes in the neighborhood are located closer than 5-feet to the access easement. There is no special privilege in granting the three stories as there are existing residences in the neighborhood that have three stories so their residence would not be out of character. The 30-foot three-story structure allows approximately 10 feet of floor-to-ceiling height for each floor. The front yard setback would be 5 feet leaving a maximum footprint of 960 square feet,and actually less than that if the recommendation that the shoreline setback be moved back an additional 5-feet. Shoreline Variance Criteria: The applicant is proposing a 20-foot setback from the shoreline on the north half of the proposed residence, which was the original setback requirement in 1997 when they applied for the original variance. The regulations have changed and a 25-foot setback from the shoreline is required. The southern portion of the residence is proposed to be 10 feet from the shoreline. The land area is unusual in that an existing block wall shortens the land area of the lot and creates a"Z" shaped building pad. The shape and the 25-foot setback requirement from the shoreline restricts the building pad size. Under the original variance the applicant was not requesting a variance for the north portion of the residence,it would have been in compliance at that time, the only variance was the northwest corner of the south portion of the residence which was to be 10-feet from the shoreline. Staff recommends that no variance on the north portion of the residence be granted,the residence should be permitted to encroach 10-feet into the 25-foot setback on the south portion of the residence. The original variance would permit at home that has a maximum footprint of 960 square feet on three levels. Staff has recommended a slightly reduced footprint due to the increase in the shoreline setback. The staff requirements for setbacks would not impact the natural beach area or public access points,nor would it impede any views for adjacent property owners. The Shoreline Master Program encourages uses along shorelines that are not view obstructing,that do not disturb the community and have an appropriate design theme,the applicant's proposal does meet these criteria. There are utilities available to the subject property and the residence would not exceed the 30-foot height that is permitted. The design of the site and structure appear to be harmonious with the stated policies of the Master Program. Al Provost, (mailing address)PO Box 1492,Renton,WA 98057(physical address: 3707 Lake Washington Blvd. N., Renton 98056)stated that he owns this property and lives on the lot immediately south of the subject site. He is attempting to develop the lot to the north of his residence. Originally they applied for a variance to build on the subject site and at that time had a builder, some of the correspondence between the City of Renton and their builder was not communicated to them as owners of the property. They found out about the Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 4 requirement for the covenants and agreed with them,there were some statements that pertained to the perpetuity of those covenants that was discussed with Renton City Attorney. When the issues were settled,the revised covenants were filed, he did not understand why the City did not have a copy of the revised filed covenants. He offered to provide a copy to the City. Regarding the height requirement,he stated that they were not requesting a variance in the actual height of the structure,but only in the amount of stories built in that structure. The only other issue with the recommendation from the City was that when they first applied in 1997 they have maintained the same building plans that were approved at that time,nothing in the neighborhood has changed with regards to conditions that were addressed and approved by the City and the Hearing Examiner. So,with the setback issues,they would like to maintain and get approval for the original 20-foot setback for the northerly portion and the 10-foot setback for the southerly portion of the building. The panhandle is approximately 20-feet wide. The general direction of the shoreline in this area is north/south,however there is a small indent on this parcel and the shoreline direction becomes east/west and causes many problems,one being that by looking at it as a shoreline rather than a side yard or front yard. If viewed as a side yard for the short distance that it runs in the east/west direction they would be able to build in that panhandle. The existing house to the north was built approximately in the late `80's or early '90's,it was built to the 20-foot setback standard. If they are allowed to build to the 20-foot setback,their structure would not be closer to the shoreline than the several houses to the north of them. To the south of this lot,the full lot extends out that 56- foot distance to a north/south shoreline and was finalized in November 2005 and it is set back the 25-feet,but because the lot protrudes out farther there is no view along the shoreline from several houses to the north of their lot because their house sticks out farther to the west. The Examiner stated that the altered shape of the shoreline is the issue today. Some variances may cause all kinds of problems, however the issue is to protect the shoreline. Mr. Provost stated that the lot to the north is 45-feet wide and possibly some of that width was because the lots were not as deep and allowed them more square footage for the homes being built. The lots to the south were limited to a 40-foot width. In 1997 the plans for this house were approved,the City at the time required some structural steel for vertical stability of the house and that was a surprise to the builder and themselves. It imposed a substantial monetary increase in the budget for building the house and so they were unable to continue. They paid for that variance and the plans to be drawn up and so they stayed with the original plans. They appreciate that the City is granting a variance,but if they have to reduce the size of the house again it will require going to an architect and redoing the plans because the foundation will be affected by that change. Ms.Ding displayed Exhibit 9 and clarified that where the arc has been drawn in at the northwest corner of the southern portion of the house would need to be a straight line to make sure that there is 15-feet from all portions of the rock wall. Rebecca Wynsome, 3711 Lake Washington Blvd.N.,Renton 98056 stated that she and her husband Gary live just north of the Provosts. The Redwood tree is closer to the proposed structure than shown on Exhibit 3,the western portion of the tree is more in alignment with the boathouse. The building of the house would impact the tree and currently there is an immature eagle that lands there and other eagles also use that tree. They are in favor of the 25-foot setback, the impact to them from this new house is the privacy of their home, if there were windows on the side they would directly look into the windows of their home. • Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 5 People are looking at the value of being on lakefront property,the boathouse has tremendous value,new boathouses are no longer allowed,this parcel is very valuable to potential buyers,the square footage of the home is not as important as the boathouse and the lakeshore in terms of value. Gary Weil, 3711 Lake Washington Blvd.N,Renton 98056 stated that in 1997 when the variances were originally applied for,it was his understanding that they had not been approved. Looking at the drawing, it appears that the side yard is as big as approximately half of the total width of the lot. Has this been verified,the side yard by the tree seems to be quite narrow when actually walking on the property and not a buildable piece of property. They previously signed a variance because the boathouse is over their property line and that is fine, but he does hope that the setbacks are being measured from the actual property lines and not where their fence is located. They own an additional 18-inches to 2-feet on that side of the property. The Examiner stated that adverse possession or disputes of fence lines must be dealt with by the parties, however, the City must be aware of what is going on and a surveyor may be necessary to clarify the lines. Mr. Weil continued that the tree is within 5-feet of the water,he showed a picture of the tree,in which all easterly limbs would need to be removed to build a 30-foot building. When a foundation is dug to the roots and the tree is limbed,what happens to the tree? It is the requirement of the applicant to verify that the livelihood of the tree would be maintained. Mike Brown, 3703 Lake Washington Blvd.N,Renton 98056 stated that he is the neighbor to the south of the Provosts. When he was at the City earlier,he did pickup a copy of the Restrictive Covenants,which states that no additional structures within the setback areas are permitted,these areas shall be maintained as open planted area or ground level patio. The boathouse may be repaired but not expanded or changed in bulk. The actual , physical height of the residence shall not exceed a plane of 30-feet about ground level. It goes to December 31, 2005 and was recorded in 1997 on November 24. He is not sure what is being proposed,he received mail from Development Services showing that a house of approximately 3,953 square feet was going to be built. He came to the City and met with Jill Ding and she told him it was a 960 square foot footprint. A footprint of 960 times 3 levels is 2,880 square feet. It was clarified that the boathouse was included in the square footage. (A drawing of the footprint and garage was shown to Mr. Brown) There was much discussion on how calculations were reached to determine the footprint and square footage of this proposed residence. The Examiner stated that what is going in is a home, it may be what the Provosts want, 3,226 square foot home or it may be what the City wants, 2,880 square foot home. It could be two stories or three stories. Mr.Provost stated that regarding the tree issue, in 1997 two separate arborists came to the property and inspected the tree and site. Both suggested that there was a way to minimize the impact to the tree and that was to be very careful in the excavation of the portion of the foundation that is adjacent to the tree. Once the roots were exposed decisions could be made as to how to proceed. They were to maintain that tree. Their attorney has assured them that the sales agreement can be written in such a way to provide protection for the tree. When they were notified that the easements were going to be increased,there are three brand new houses in the Barbee Mill area that are currently under construction, 3905,3907,and 3909 Lake Washington Boulevard North. Five photos were entered as exhibits of this new construction. The edges of the homes are protruding out,some flat front and some angled. The foundations are within 10-12 feet from the edge of the lake. Mr.Weil showed a picture of the eagle in the tree. NIS Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 6 law Ms. Ding stated that there are several trees within the City that eagles use for perching and hunting or fishing. Unless it is a nesting tree there are no requirements. The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and no further comments from staff. The hearing closed at 10:40 am. FINDINGS,CONCLUSIONS&RECOMMENDATION Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1. The applicants,Al and Cindy Provost, filed requests for approval of three variances to allow a three- story,single-family residence on a shoreline lot. The variances are to allow a three-story home when code only permits two-story homes,reduce the required front yard from 20 feet to 5 feet and to reduce the setback from the shoreline of Lake Washington to 10 feet from a required 25 feet. 2. The yellow file containing the staff report,the State Environmental Policy Act(SEPA)documentation and other pertinent materials was entered into the record as Exhibit#1. 3. The proposal,while located on a protected shoreline is exempt from environmental review because it is a single-family home. r 4. The subject proposal was reviewed by all departments with an interest in the matter. 5. The subject site is located immediately north of 3707 Lake Washington Boulevard North. Access to the site is via a secondary road off of Lake Washington Blvd. As noted above, the subject site is located on the shoreline of Lake Washington. 6. The subject site was annexed to the City with the adoption of Ordinances 1791, 1800 and 1804 enacted respectively between September,October and December of 1959. 7. The applicants sought similar variances in 1997 for the shoreline setback and the third-story addition. While variances had been initially approved the applicant failed to meet required conditions and the decisions became null and void. 8. The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of Single Family uses,but does not mandate such development without consideration of other policies of the Plan. 9. The subject site is zoned(R-8)which permits up to eight single-family homes per acre. 10. The subject site consists of property located along the shore of Lake Washington. Part of the property is submerged and a portion,the uplands,approximately 3,363 square feet in area, contains a garage,boat house and dock. 11. The uplands parcel is an irregular,panhandled shaped property. The scale of the drawings are an unusual 1 inch equals 4.5 feet and may not be precise,therefore, the dimensions noted are approximate. The southern panhandle is approximately 18 feet wide and juts out into the lake approximately 38 feet. Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 7 . 01 The lot is approximately 40 feet wide. The shoreline or edge of these parcels are clearly defined by a `"" zigzagging rock wall or bulkhead. There is no natural shoreline. 12. A boathouse,approximately 20 feet wide and 40 feet deep, is located approximately 12 feet out from the shore. It will be retained. 13. Section 4-2-110A restricts the height of single-family dwellings to two stories or 30 feet in height and requires a 20-foot setback from the edge of the access easement. 14. Therefore,the applicant has requested one variance to allow the building to be three(3)stories tall and a second variance to allow the front yard setback to be five feet(5'). 15. The Renton Shoreline Master Program(Section 4-3-090L.14.b)requires a 25-foot(25')setback from the water's edge. This has been changed since the applicant applied for the variance in 1997(it was 20 feet at that time). The applicant has proposed a minimum setback of ten(10') feet from the lake. Front yard setbacks had been measured from the property line but are now measured from the access easement. 16. The applicant has basically submitted the same plans that were submitted in 1997 which does not account for code changes that have occurred. This results in seeking greater variances from the shoreline requirements and the front yard requirements. 17. The plot plan and building footprint shows the house follows the irregular stepped western or shoreward property line. This creates a setback in one location which is reduced to 10 feet at a corner or angle where the house facade turns back away from the shoreline. Staff has recommended that the home comply with the 25 foot setback from the shoreline for the northern portion of the home and that a 15 foot setback be permitted for the southern portion of the home. Staff made their recommendation to reflect the prior 1997 variance request in light of the new, larger setback now required. The south portion of the home would have to be setback 15 feet from the shoreline as proposed by staff and this would follow an arc to reflect the angular shoreline. 18. On the east, the front yard,the applicant has proposed a setback of five(5') feet from the access easement rather than 20 feet. Staff has suggested that due to the small lot size, the request for a variance is appropriate. They suggest that a smaller setback on the east is a reasonable tradeoff to allow the home to be located further from Lake Washington on the west. An existing garage already comes within less than five feet of the easement along the front yard of the existing lot. 19. Staff recommended approval of the variance to allow a 3-story home. They thought it was reasonable. 20. As proposed the home would have a footprint of approximately 960 square foot. It would contain 1,920 square feet as a two-story home and 2,880 square feet as a three-story home. 21. The applicants also own the adjoining property to the south. An existing home is located on that property. 22. There are single-family homes both north and south of the subject site. A review of the area shows that the shoreline makes a substantial jog directly in the middle of the applicants' current property. The development of a dwelling as proposed would not severely impact the views of adjacent parcels due to the staggered nature of the shoreline. Other homes in the area are both larger and smaller than that proposed in this case. • Provost Variance File No.: LUA-06-024, V-H June 20,2006 Page 8 Noise 23. The proposed home would be 29'11"tall or about 1(1")inch below the 30 feet permitted in the zone. When the applicants first submitted their application in 1997 there had been a very recent change that limited buildings to two stories in height. That change is now about ten years old. It is a well- established height or"story" limitation. 24. A review of variance applications for properties along the shoreline show variances both denied and approved. It appears that each variance determined the unique circumstances of each parcel vis a vis upland area and parcel width and depth. 25. Neighbors objected to the granting of the variances due to privacy concerns,bulk issues and the potential damage to a large redwood tree in which eagles sometimes perch. Eagle perching trees are not specially protected. CONCLUSIONS: 1. This office has no problems recognizing that the subject site has constraints that probably justify some variance relief. At the same time, the applicant acquired the property knowing full well that the buildable portion of the property was quite limited and that there would be limitations on what could be built on the lots. A variance or in this case,variances are required to provide reasonable use of the subject site,but a small upland lot cannot be expected to support a large spacious home. The lot already accommodates a rather large over-the-water boathouse of 20 feet by 40 feet. In addition,one has to consider that the City specifically changed its code,thereby, in a way defining or redefining what might be reasonable or responsible use of property. The City is very aware of the small lots located along Now, Lake Washington. Nonetheless,they increased the required shoreline setback from 20 to 25 feet. Obviously,they wanted a larger separation between structures and the water and not less. The City also specifically changed code so that single family homes would be no more than 30 feet in height and that such homes only be two-stories. The City limited homes to two-stories nearly 10 years ago or when the applicants first requested a variance from this limitation. The City also enacted setback regulations that required homes with garages to have that garage setback 20 feet from easements as well as public streets. In other words,the defmition of"reasonable"might be deduced from the fact that the City has enacted legislation restricting the size, scale, intensity and bulk of homes in general and homes along the shoreline more so. That sets the backdrop for the consideration of the three variances that the applicant now seeks. In addition,the applicant merely resubmitted plans that were rendered in 1997 without even considering the code changes that have occurred since that time. Code specifically tightened up regulations and these plans do not even attempt to address those changes. Another significant change that reflects on the consideration of this variance is the change in minimum lot sizes permitted in the City. There are now a number of locations in the City that permit small lots and all homes on these lots are constrained by the same two-story limit. Three-Story Variance 2. Variances may be granted when the property generally satisfies all the conditions described in part below: a. The applicant suffers undue hardship caused by special circumstances such as:the size, shape, topography, or location where code enforcement would deprive the owner of rights and privileges enjoyed by others similarly situated; b. The granting of the variance would not materially harm either the public welfare or other property in the vicinity; Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 9 c. The approval will not constitute a special privilege inconsistent with the limitations on other property in the vicinity; and d. The variance is the minimum variance necessary to allow reasonable development of the subject site. There is no reason to approve a variance for a three-story house. The variance is not justified. A limitation on the number of stories carries with it a limitation on living space and that potentially limits the number of inhabitants. These may all be reasonable limitations to assure that a home and its residents are not out-of-scale with the size of the lot. There is no justification to grant a variance that allows a home with more stories. It would create an undue precedent. Every home on a small lot or future home on small lots would be entitled to an additional story. Many lots in the City are 4,000 square feet and new lots can be as small as 3,000 square feet. Each of these lots could use the small lot justification to add additional stories. As noted here in this application: the logic is that this is hidden, unseen space. It has no visible impact. The home would not be taller. But as noted above, the limitation controls the number of inhabitants or population and,therefore,potentially the noise and traffic that a larger home, internal or external,might generate. There is no justification for the increased size whether it is internal or external and the precedent could be far-reaching for other smaller lots. The applicant has reasonable use of the property particularly given the approval or partial approval of the other variances requested. Shoreline Variance ,,, roo 3. In addition to the criteria noted above, shoreline variances are subject to some additional review criteria taking into consideration the unique and fragile environment along the shoreline. Those particular criteria are: a. Exceptional or extraordinary circumstances or conditions applying to the subject property,or to the intended use thereof, that do not apply generally to other properties on shorelines in the same vicinity. b. The variance permit is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by the owners of other properties on shorelines in the same vicinity. c. The variance permit will not be materially detrimental to the public welfare or injurious to property on the shorelines in the same vicinity. d. The variance granted will be in harmony with the general purpose and intent of this Master Program. e. The public welfare and interest will be preserved; if more harm will be done to the area by granting the variance than would be done to the applicant by denying it, the variance will be denied,but each property owner shall be entitled to the reasonable use and development of his lands as long as such use and development is in harmony with the general purpose and intent of the Shoreline Management Act of 1971,and the provisions of this Master Program. Provost Variance File No.:LUA-06-024,V-H June 20,2006 Page 10 *firso, 4. The subject site is definitely constrained. The jog in the property's shoreline or western upland's property line makes accommodating a home harder. Allowing some intrusion into the setback will permit the development of a reasonably sized home. Staffs recommendation of no more than a ten(10) foot encroachment, that is a fifteen(15')foot setback, into the shoreline setback makes sense. The City specifically enlarged the setback and therefore,the variance the applicant applied for 10 years ago is no longer controlling or particularly relevant. The precedent for reducing the shoreline setback though has been created in the past-that is,most of the lots along Lake Washington have rather shallow upland areas since most of the property is submerged under the lake. Since these people do own the property under the lake,they are entitled to develop a reasonable home on the dry portion of their property. 5. It also appears that due to the shape of the shoreline and the location of other homes along the shoreline that this dwelling would not significantly intrude in the existing viewscape. If anything, the existing boathouse is the intrusive element in this area. 6. As noted,other variances have been issued when the underlying parcels were significantly constrained by their size or shape. Granting of this variance should not create any special privilege and is not inconsistent with what has occurred on other nearby properties. 7. Approving the variance should not result in harm and will permit the applicant to develop a single family home on the lot. Front Yard Variance *,,,,,- 8. Again,the same constraints, the rather shallow uplands(dry)area, apply to the variance from the required setback from the easement. The actual uplands of the site is small which limits the footprint of any proposed home. 9. Similar variances from the setback from the easement or street have been granted for homes in this area to accommodate the development of a reasonable single-family dwelling. There is an existing garage already located in this setback area and allowing it to be demolished and replaced by the proposed home appears reasonable and will not create any additional impacts. 10. As noted,other homes in this area have been approved and it would not grant the applicant a special privilege to approve this variance. Nor would it be creating an unacceptable precedent. Again,the lot owned by the applicants extends under the lake. That is,they own a larger lot but much of it is constrained. 11. It would appear that granting the front yard setback variance requested will allow the development of a reasonably sized home and probably is the minimum necessary for relief. 12. In conclusion, two variances that allow the home to encroach on the normally required setbacks appear necessary to allow the development of a reasonably sized home and since the underlying lots are actually larger and the requests create a unique fact situation. The variance to allow more stories than permitted by code is not supported by the facts in this situation and would lead to potential precedents that could be used by anyone to allow a home with more stories than code permits. The variances should be approved with conditions that do not allow any further structures being developed on the site and that all setbacks be maintained as open planted area or ground level patio and that no changes,other than repair,be allowed for the boathouse. • Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 11 DECISION: The Variance to allow a three-story home is denied. The Variances to the Shoreline Setback and the Front Yard Setback are approved subject to the following conditions: 1. The minimum allowable setback from the water's edge shall be no less than 15 feet for only that portion of the proposed structure on the south half of the property that is nearest to the existing rock wall. The applicant shall be required to maintain the minimum required building setback from the water's edge(25 feet) for all other portions of the site. The setbacks are illustrated in Exhibit 9, although the exhibit may not be drawn to scale. 2. The applicant shall be required to obtain all other necessary permits and approvals for the proposal (i.e.building permit,certificate of water and sewer availability,etc.). 3. The applicant shall record a restrictive covenant that does not allow any sort of additional structures within any setback areas and all required setback areas shall be maintained as open planted areas or ground level patio. 4. The boathouse may be repaired but shall not be expanded in any direction or have any change to its bulk. ORDERED THIS 20th day of June 2006. FRED J.KAUF HEARING EXAMINER TRANSMITTED THIS 20th day of June 2006 to the parties of record: Jill Ding Al and Cindy Provost Rebecca Wynsome 1055 S Grady Way PO Box 1492 Gary Weil Renton,WA 98055 Renton,WA 98057 3711 Lake Washington Blvd.N Renton,WA 98056 Mike Brown 3703 Lake Washington Blvd.N Renton, WA 98056 Provost Variance File No.: LUA-06-024,V-H June 20,2006 Page 12 TRANSMITTED THIS 20th day of June 2006 to the following: Mayor Kathy Keolker Stan Engler,Fire Jay Covington, Chief Administrative Officer Larry Meckling,Building Official Julia Medzegian, Council Liaison Planning Commission Gregg Zimmerman,PBPW Administrator Transportation Division Alex Pietsch,Economic Development Utilities Division Jennifer Henning,Development Services Neil Watts,Development Services Stacy Tucker, Development Services Janet Conklin,Development Services King County Journal Pursuant to Title IV, Chapter 8, Section 100Gof the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m.,July 5,2006. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure,errors of law or fact,error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14)days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant,and the Examiner may, after review of the record,take further action as he deems proper. An appeal to the City Council is governed by Title IV,Chapter 8, Section 110,which requires that such appeal be filed with the City Clerk,accompanying a filing fee of$75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m.,July 5,2006. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the executed Covenants will be required prior to approval by City Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte(private one-on-one)communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. 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S/ rr 8 • / 2 1 .I 13 I „ 3'' v • / WOOD RAMP / .e't. tea, GD l I• ' ` ?. X49 r :t V / / ' DECK GD 3� I *- \ -. HOUSE 25 0 \ ', F F - 26 35 c� ` TOP CONC WALL o y�.'i��' 18 6 Go 1 5 4 U g, 5 2, 25 6 \\� ,� TELE J BOX �. �������������..���\�� T•P BOCK WALL 2.4 2.0' W.M. 4.• NE _ I j i EP TOP CONC WALL2 36 0 27 5 • ' / CITY OF RENTON COUNCIL AGENDA BILL AI#: r Submitting Data: For Agenda of: July 17, 2006 Dept/Div/Board.. Economic Development Neighborhoods and Strategic Planning Staff Contact Rebecca Lind Agenda Status Consent X Subject: Public Hearing.. Additional 2006 Comprehensive Plan Amendments and Correspondence.. Concurrent Rezones Ordinance Resolution Old Business Exhibits: New Business Issue Paper Study Sessions Information Recommended Action: Approvals: • Council concur to approve a one time exception to the Legal Dept X Dec. 15 filing deadline in RMC 4-9-020D for two Finance Dept additional city initiated Comprehensive Plan Other Amendments, and • Refer the amendment review to the Planning and Development Committee and the Planning Commission. Fiscal Impact: Expenditure Required... None Transfer/Amendment Amount Budgeted NA Revenue Generated Total Project Budget City Share Total Project.. SUMMARY OF ACTION: The proposal is to add two city-initiated Comprehensive Plan Amendments (CPA) to the 2006 annual review cycle. The extended Maplewood Addition Annexation includes two areas with significant Comprehensive Plan policy issues. These amendments are needed to facilitate timely consideration of pending commercial development proposals for the former Aqua Barn property, and to provide future Renton residents at the Wonderland Mobile Home park with the assurance that the City supports retention of the existing affordable housing at the existing manufactured home park. Adding these work program items is timely because work on the 2006 Comprehensive Plan amendments is still at the briefing stage before the Planning Commission. STAFF RECOMMENDATION: Approve a one time exception to the December 15 Comprehensive Plan Amendment filing date in RMC 4-9-020D for two additional city-initiated Comprehensive Plan Amendments: 2006-M-7 Commercial Designation for two commercial pads at the former Aqua Barn site, and 2006-T-5 Text amendment to allow existing manufactured home"park zoning in the Low Density Residential Comprehensive Plan Designation. Refer these additional 2006 Comprehensive Plan amendments to the Planning and Development Committee and the Planning Commission. C:'\Documents and Settings\mpetersen\Local Settings\Temp\Amended AGENDA BILL 2006 Comp Plan Amendments.doc (cy ECONOMIC DEVELOPMENT, C.) �� NEIGHBORHOODS, AND STRATEGIC ' ' PLANNING DEPARTMENT MEMORANDUM DATE: July 10, 2006 TO: Randy Corman, Council President Members of the Renton City Council VIA: - Kathy Keolker, Mayor FROM: Alex Pietsch STAFF CONTACT: Rebecca Lind (ext 6588) SUBJECT: Revisions to 2006 Comprehensive Plan Amendment Referral ISSUE: Should the City add two city-initiated Comprehensive Plan Amendments (CPAs) to the 2006 annual review cycle? *tor RECOMMENDATION: • Approve a one time exception to the Dec. 15 filing deadline in RMC 4-9-020D for two additional city initiated Comprehensive Plan Amendments • Refer the amendment review to the Planning and Development Committee and the Planning Commission. BACKGROUND SUMMARY: The extended Maplewood Addition Annexation, encompassing 340 acres, includes two properties that will benefit from Comprehensive Plan policy discussion. These two issues were not considered at the time staff evaluated potential comprehensive plan amendments for the 2006 annual cycle because in December this area was still included in the proposed Fairwood Incorporation boundary. Upon decision by the Boundary Review Board that the area would annex to the City, property owners in the affected area approached the City with these requests. The earliest feasible effective date for this annexation is October 13, 2006. The first amendment, 2006-M-7, would recognize a proposed commercial area at the former Aqua Barn site that is shown in the King County Comprehensive Plan as Neighborhood Business, but designated Low Density Residential in Renton's Plan. This amendment is needed because the property owner is preparing a commercial development application, but is not ready to submit through the County permit system and therefore cannot be vested to County zoning upon the effective date of annexation. 14100, h:\ednsp\comp plan\amendments\2006\2006 admin\issue paper amended cpa 2006.doc Addressee Name Page 2 of 2 Date of Memo This property was designated with Neighborhood Business zoning in the County at the time of the Aqua Barn rezoning in 1998. The City knew about this commercial zoning at the time and agreed to it. We knew that eventually the property designation would need to be amended to be consistent in the Renton Comprehensive Plan. If annexation proceeds without property development vesting to King County codes, the property owner will need to wait one additional year before they can apply for their permits for commercial development in Renton. It is recommended that this application be city- initiated because the City previously recognized the inconsistency between and City and County Plans and could have already processed a housekeeping amendment. The fee for a private application would be $2,000 for a map amendment, rezoning, and environmental review. The second amendment, 2006-T-5, would change the Comprehensive Plan text to allow Residential Manufactured Home zoning to be an implementing zone within the Low Density Residential Comprehensive Plan designation. In June, future Renton residents at the Wonderland Mobile Home Park on the Maple Valley Highway requested that the City Council support retention of the affordable housing at this existing manufactured home park. This amendment would address this issue by allowing the City Council to consider Manufactured Home Park zoning for existing affordable mobile home parks within the annexation area. This amendment is recommended to be city-initiated because it is an area-wide text amendment benefiting multiple residents who lease affordable units on this site. City review of this issue is needed to determine if the site meets adopted policy guiding retention of Housing Element Policy H-45. The fee for a private application would be$1,500 for a text amendment and environmental review. Objective H-H: Continue to allow manufactured home parks and manufactured home subdivisions on land that is specifically zoned for these uses. Policy H-45. Maintain existing manufactured housing developments that meet the following criteria: 1. The development provides market rate housing alternatives for moderate and low- income households. 2. The housing is maintained and certified as built to the International Building Code and Federal Department of Housing and Urban Development standards. 3. Site planning includes pedestrian amenities, landscaping, and a community facility. CONCLUSION: In order to add these two work items to the 2006 annual CPA review cycle, the City Council must first grant a one time exception to the December 15 filing deadline that is authorized in RMC 4-9-020D. The Council should also agree to accept these issues as city initiated CPAs and refer these proposed amendments to the Planning and Development Committee and Planning Commission. h:\ednsp\comp plan\amendments\2006\2006 adminlissue paper amended cpa 2006.doc IK` CITY OF RENTON COUNCIL AGENDA BILL AI#: Submitting Data: For Agenda of: Novi Dept/Div/Board.. EDNSP Department July 17, 2006 Staff Contact Alex Pietsch x6592 Agenda Status Consent X Subject: Public Hearing.. Profession Services Agreement with Doug Levy for Correspondence.. legislative consultant services Ordinance Resolution Old Business Exhibits: New Business Contract Study Sessions Information Recommended Action: Approvals: Council Concur Legal Dept X Finance Dept X Other Fiscal Impact: $53,200 Expenditure Required... $53,200 Transfer/Amendment Amount Budgeted $53,200 Revenue Generated kiwi Total Project Budget $53,200 City Share Total Project SUMMARY OF ACTION: This is the annual contract for Doug Levy for legislative consulting for 2006-2007. The City has contracted with Doug Levy annually since 2000 for consultant services on Washington State Legislative matters. Approval is sought to contract for services for the 2006-2007 legislative session,beginning May 2006 to the end of the 2007 session of legislature. STAFF RECOMMENDATION: Authorize the Mayor and City Clerk to execute a contract with Doug Levy in the amount of$53,200 for legislative consultant services. Rentonnet/agnbill/ bh AGREEMENT FOR PROFESSIONAL SERVICES--CONTRACT BETWEEN THE CITY OF RENTON, WASHINGTON AND DOUG LEVY, CONSULTANT THIS AGREEMENT, dated this day of , 2006 by and between the City of Renton, Washington, a municipal code city, hereinafter referred to as "City"and Doug Levy,an independent consultant hereinafter referred to as"Consultant", for the mutual benefits to be derived, hereby agree as follows: WITNESSETH: WHEREAS, the City has determined to contract with Consultant to provide certain professional services as more fully set forth herein, and WHEREAS, Consultant has the expertise to provide said services, and WHEREAS, Consultant is not to be paid any benefits other than the consideration stated below, and WHEREAS, both parties desire to establish and delineate the conditions of said employment and in consideration of the mutual covenant contained herein,the parties hereby agree as follows: Compensation. The City hereby agrees to contract with Consultant, and Consultant hereby agrees to accept said contract in accordance with the terms and provisions of this Agreement and Exhibit A hereto as hereinafter set forth. The Consultant shall be compensated at a rate not to exceed $3,600 per month May through December($1,800 for August to allow for a two-week vacation), then at a flat rate of$4,200 per month January through the end of session(May), for the duties rendered to the City set forth in Exhibit A(Scope of Work). The Consultant will provide monthly progress reports and payments will be made on a percentage of work completed basis. Consultant shall be entitled to reimbursement not to exceed$400/month for customary business expenses incurred to perform services outlined in this Agreement-- including mileage, meals, overnight hotel stays during the legislative session, long-distance phone calls made on behalf of the City of Renton, and office space and parking costs associated with the legislative session. The Consultant will pro-rate such expenses to the maximum extent practicable amongst his various clients. Requests for reimbursements should be submitted to the Department of Economic Development, Neighborhoods and Strategic Planning(EDNSP)for review and approval. Terms of Contract: The consultant's contract shall commence effective in beginning of May 2006 and shall continue to the end of the 2007 Session of the Legislature, and also includes any post-session reports and summaries unless terminated in the manner provided hereinafter in this Agreement. Independent Contractor: The parties intend that an independent consultant relationship exists between the Consultant and the City. The Consultant waives all claims to any benefits available to City employees including, but not limited to,retirement, disability, unemployment, vacation Now EXHIBIT A de Doug Levy Scope of Services 2006—2007 Legislative Session Ni Based on our discussion,and my awareness of what is on the horizon this interim and next session,here are specific activities,tasks,and issues with which I would assist the City: • SST: We want to hold in place the broad-based coalition and full-mitigation legislation (SSB 6594)developed prior to the 2006 Session and worked successfully during the Session. It is likely that 2007 legislation will start in the House,so early discussion with our House members—in particular Rep. Santos and Rep. Clibborn—will be critical. We will want to involve Mike Bailey in discussions and strategy,given his national SST role. • Chastain Trail: We are seeking significant funding for the trail,both at the state and federal levels. We need to sit down with Parks staff and go over the line-item vis-à-vis "programmatic"funding(IAC/WWRP/Enhancement$$)issues. I am recommending we organize a warm-weather boat and walking tour of the trail. Having Senator Prentice attend such a tour would be a must. • Sound Transit: I would like to develop a business and community leader"SWAT Team"that can join us in meetings with selected Sound Transit Board Members and other Opinion Leaders(legislators,WSDOT, Council Member Julia Patterson)to promote the convertible BRT idea for 405. It will be key to have The Boeing Co. on board,as well as Patterson. I have shared with you that Rep.Fred Jarrett is eager to help and to meet with us. r.rie • Transportation—RTID/ST joint ballot: This will be an"inside the region"ongoing discussion, debate,and project-listing exercise leading up to a Fall 2007 ballot. It is important the City be involved in key regional discussions, including the RTID Executive Board, ST Board meetings,ETP, SCATBd,and the PSRC Transportation Policy Board. Separately,but clearly related to the regional goings-on,we will need to track and help to shape the meetings and ultimate recommendations of a"Regional Transportation Commission"evaluating Central Puget Sound transportation and transit governance. • Annexation Financing: With SSB 6686 now safely signed into law,two inter- governmental relations tasks lie ahead: 1)internal to cities and the AWC,having a collaborative, standardized, focused, and judicious shared view of how to document deficits and expend dollars; 2)working with the Governor's Office on 2007 "belt and suspenders"legislation. • "LIFT"/South Lake Washington Project: Assist the City with getting this project—or, depending on timing, a separate one—ready for ultimate pre-application and July 2007 final application processes associated with the passage of 2SHB 2673. Additionally, I have recommended a potential pursuit of"regional mobility"grant dollars for the park- and-ride facility, and I want to at least do some exploration of whether the"one per county"limitation within 2673 could be remedied in 2007. • Shopping Carts: Facilitate discussion amongst Renton,Auburn,and grocery store retailers to see if we can come to terms on some issues such as the amount of time grocers have to retrieve abandoned carts,how fees are structured,and how they could be staggered. • Trapping of moles at municipal golf course: We need to scope out whether there might be a way to address this issue via Fish&Wildlife Commission rule-making, or whether we need to again seek legislative relief. • Initiatives: Two in particular that could obtain the required number of signatures and head to a fall 2006 ballot are I-933 on property rights and 1-917 on"$30 means$30" vehicle fees. I propose to track these,report back,and provide specific recommendations on how the City may need to respond in terms of public information and factual information. • Other interim initiatives building toward 2007: There are a series of other issues where we may well want to involve Renton in discussions and strategy work. They include: *State/local agency liability reform; *Ensuring court contracting authority legislation does not result in new mandates for all Municipal Courts to take on AHO/PO cases; *Auto Theft—an initiative to toughen penalties; *Hotel/Motel Tax—Legislation to remedy an AGO that takes an extremely narrow view of how H/M tax revenues may be expended; *"Follow the Money"—Ensure the City is aware of,and positions itself to pursue,new funding available through new grant and competitive programs—including Emergency Management money, a grant program for innovative projects to control stormwater; and a grant program for view projects to address mudslide and rock slide-damaged roadways. *Legislation to authorize issuance of civil warrants to address facilities and properties with health and safety issues(Seattle drafted a bill for 2006 but decided to wait and work with numerous others including Renton) *Track Interim studies/task forces—There are fewer than in past interims,but we will see discussions and informal groups at the least on LEOFF 1, sex offender residency,etc. *Other ongoing meetings and discussions—These include the FAST Corridor group, Freight Mobility Board,AWC meetings/conference/legislative process,PSRC,etc. Strategy on addressing these issues I recommend a process that involves drafting of an interim plan, further scoping of the above issues and others, and internal meetings with some key City Department Heads. After those things have occurred,we can begin a more concerted legislative outreach, specifically with you/I meeting with some of our area legislators and culminating with development of a 2007 Agenda and Mayor/staff dialogue with our nine legislators from the 11th, 37th, and 41'districts. Getting Started—Some Ideas If the City is agreeable to the scope of services, start date/duration,and compensation suggested above,or an alternative that is mutually acceptable,I would suggest development on an interim work plan with dates and milestones,agreement on a core list of issues,and meetings with key Department Heads. Strategy on addressing these issues I recommend a process that involves drafting of an interim plan, further scoping of the above issues and others, and internal meetings with some key City Department Heads. After those things have occurred, we can begin a more concerted legislative outreach, specifically with you/I meeting with some of our area legislators and culminating with development of a 2007 Agenda and Mayor/staff dialogue with our nine legislators from the 11`h, 37th,and 41 S`districts. Suggested Contract Start Date and Duration As we discussed—especially in light of the City's desire to work the BRT issue with Sound Transit--I am recommending a May 1 start date. I want to forewarn you that I will be taking two weeks' vacation in August,and would thus suggest a Y2-pro-rate for that month. The idea would be to have a lower interim rate that builds up to a higher 2007 Session rate,when the workload is more intense and nearly seven days/week. Preferred duration: A contract start date of May 1,2006, lasting through May 2006 to cover the longer session and the period afterward for a)the Governor's deliberation on bills and signing/vetoes; and b)completing post-session reviews and reporting. Suggested compensation In 2005-06, we worked with a"not to exceed"contract that paid$3500 per month plus expenses in the months leading up to session,and$4000 per month plus expenses during session. I „is continue to recommend a differential rate, because the during-session months are more intensive in terms of workload and hours. I believe that I again provided value to Renton last session,particularly in terms of the annexation financing legislation,a new local transportation funding option(TBDs),the ability to at least compete under LIFT, some helpful budget items, and warding off of adverse-impact legislation. Based on that, I would like to suggest a very slight ramp-up to$3600 plus expenses in pre-session months, followed by$4200/month plus expenses during session. Getting Started—Some Ideas If the City is agreeable to the scope of services, start date/duration, and compensation suggested above, or an alternative that is mutually acceptable, I would suggest development on an interim work plan with dates and milestones,agreement on a core list of issues,and meetings with key Department Heads. In closing, I want to note that I really enjoy working with you,the Mayor,Jay,Mike, Gregg Zimmerman,Peter Hahn,Leslie Betlach and others within the City. I look forward to a continued relationship! May 3600 400 June 3600 400 July 3600 400 Aug 1800 400 Sept 3600 400 Oct 3600 400 Nov 3600 400 Dec 3600 400 Jan 4200 400 Feb 4200 400 March 4200 400 April 4200 400 May 4200 400 48000 5200 53200 CITY OF RENTON COUNCIL AGENDA BILL AI# f I• Submitting Data: For Agenda of: July 17, 2006 Dept/Div/Board.. EDNSP Staff Contact Jennifer Davis Hayes Agenda Status Consent X Subject: Public Hearing.. $2,054,314 Economic Development Administration(EDA) Correspondence.. Financial Assistance Award for the South Lake Ordinance Washington Infrastructure Improvement Project. Resolution Old Business Exhibits: New Business Study Sessions Issue Paper Information Financial Assistance Award grant document &Exhibits Recommended Action: Approvals: Council Concur Legal Dept Finance Dept Other Fiscal Impact: Expenditure Required... $ Transfer/Amendment Amount Budgeted $ Revenue Generated $2,054,314 Total Project Budget $ City Share Total Project.. SUMMARY OF ACTION: The City has been awarded a$2,054,314 Economic Development Administration(EDA) Financial Assistance Award through the US Department of Commerce for the South Lake Washington Infrastructure Improvement Project. The award will support the City's efforts to construct road, water, sewer and storm water infrastructure to encourage commercial redevelopment of surplused Boeing properties within Renton's Urban Center. This EDA award will supplement funding for the project by the City and State. STAFF RECOMMENDATION: Accept the $2,054,314 EDA Financial Assistance Award for the South Lake Washington Roadway Infrastructure Improvement Project and authorize the Mayor and City Clerk to sign the grant agreement. Rentonnet/agnbill/ bh ( YECONOMIC DEVELOPMENT, USE, �� NEIGHBORHOODS, AND STRATEGIC PLANNING DEPARTMENT • NTO MEMORANDUM DATE: July 10, 2006 TO: Randy Corman, Council President Members of the Renton City Council VIA: Mayor Kathy Keolker FROM: Alex Pietsch, Administrator PS-We STAFF CONTACT: Jennifer Davis Hayes ext. 6589 SUBJECT: Economic Development Administration $2,054,314 Financial Assistance Award for South Lake Washington Roadway Infrastructure Improvement Project ISSUE: 44400, Should the City accept the $2,054,314 Economic Development Administration (EDA) Financial Assistance Award from the US Department of Commerce for the South Lake Washington Infrastructure Improvement Project? This award will be used to partially fund the construction of road, water, sewer and storm water infrastructure to support commercial redevelopment of surplused Boeing property, known as The Landing. RECOMMENDATION: Staff recommends accepting the$2,054,314 EDA Financial Assistance Award for the South Lake Washington Roadway Infrastructure Improvement Project and authorize the Mayor and City Clerk to sign the grant agreement. BACKGROUND SUMMARY: The South Lake Washington Infrastructure Improvement Project will leverage significant private sector investment in Renton over the next 25 years and dramatically transform South Lake Washington into a key urban center in the Puget Sound Region. This infrastructure investment will catalyze development by Harvest Partners to build a$390 million, 1.6 million square foot retail and entertainment mixed-use urban village with 900 units of housing. This EDA award will supplement funding for the project by the City and State. CONCLUSION: The investment in the South Lake Washington area infrastructure will help the City diversify its economic base and encourage private investment in this emerging neighborhood. • "T°` U.S. DEPARTMENT OF COMMERCE ;semFt"`�* fp-- Economic Development Ad ' ,,, k4ttt _, Jackson Federal Building, ".o'' :•i` --y '' 4i j ,Z ‘ / Z9 915 Second Avenue ,,* * Seattle,Washington 98174 JUL 1 1 2006 �`°°'„ Fax: (206)220-7669 Phone: (206)220-7660 - ,arcs ''1„' ' - e..; xY w1,.,„. June 23,2006 In reply refer to: Investment No. 07-79-05825 The Honorable Kathy Keolker Mayor, City of Renton 1055 South Grady Way, 6th Floor Renton, Washington 98055 Dear Mayor Keolker: We are pleased to inform you that the Economic Development Administration(EDA)has approved a Financial Assistance Award in an amount not to exceed$2,054,314 in response to your application for federal assistance. These funds are to be used to build infrastructure to serve the redevelopment of a 46-acre former Boeing Company aircraft manufacturing site. The total project cost is $16,380,314, which is based on the line item estimates contained in Attachment No. 1. Enclosed are three signed copies of the Financial Assistance Award. Your agreement to the terms and conditions of the award should be indicated by the signature of your principal official on all three of the signed copies of the Financial Assistance Award. Two of the executed copies should be returned to the Director, Seattle Regional Office, Economic Development Administration, Jackson Federal Building, Room 1890, 915 Second Avenue, Seattle, Washington 98174. You are cautioned not to make any commitments in reliance on this award, nor to enter into negotiations relative hereto, until you have carefully reviewed the terms and conditions and have determined that you are in compliance or that you can comply therewith. Any commitments or undertakings entered into prior to obtaining the approval of the Government in accordance with its regulations and requirements will be at your own risk. Sincerely, / i. _ , A. -onard Sm. •egional Director Enclosures rrr# Form ED-508 U.S. DEPARTMENT OF COMMERCE ATTACHMENT NO. 1 Now, (Rev. 1/99) ECONOMIC DEVELOPMENT ADMINISTRATION PUBLIC WORKS PROJECT COST CLASSIFICATIONS RECIPIENT: City of Renton EDA Award No. 07-79-05825 State: Washington County: King Cost Classification Proposed Approved Administrative and legal expenses $ 0 $ 0 Land, structures and rights-of-way appraisals, etc. 0 0 Relocation expenses and payments 0 0 "r,r- Architectural and engineering fees 0 0 Other architectural and engineering fees 0 0 Project inspection fees 1,000 1,000 Demolition and removal 0 0 Construction 15,549,000 15,549,000 Equipment 0 0 Contingencies 830,314 830,314 TOTAL PROJECT COSTS $ 16,380,314 $ 16,380,314 Please Note: OMB Circulars and 15 CFR Part 24 can be obtained from Google. FORM 450-1EDA)5O U.S. DEPARTMENT OF COMMERCE E1GRANT 0 COOPERATIVE AGREEMENT (REV.10-041 (00450-1 E FINANCIAL ASSISTANCE AWARD ACCOUNTING CODE RECIPIENT NAME City of Renton AWARD NUMBER 07-79-05825 STREET 4ADDRESS 1055 SW Grady Way, 6"' Floor FEDERAL SHARE OF COST $ 2,054,314 CITY,STATE,ZIP CODE Renton Washington 98055 RECIPIENT SHARE OF COST $ 14,326,000 AWARD PERIOD From date of approval shown below through 60 months TOTAL ESTIMATED COST $ 16,380,314 DEPARTMENT OF COMMERCE OPERATING UNIT Economic Development Administration AUTHORITY 42 U.S.C. Section 3149, et seq. Public Works and Economic Development Act, as amended by Public Law 108-373. CFDA NO. 11.300 PROJECT TITLE: Public Works and Economic Development Facilities BUREAU FCFY FUND PROGRAM CODE BUDGET SUBACTIVITY OBJECT 1 CLASS EXPEND ENTITY 20 06 40 79 921 41 10 16 This Award approved by the Grants Officer is issued in triplicate and constitutes an obligation of federal funding. By signing the three documents, the Recipient agrees to comply with the Award provisions checked below and attached. Upon acceptance by the Recipient, two signed Award documents shall be returned to the Grants Officer 1d the third document shall be retained by the Recipient. If not signed and returned without modification by the ecipient within 30 days of receipt, the Grants Officer may unilaterally terminate this Award. ® EDA Standard Terms and Conditions Public Works and Implementation Construction Components, dated 3/99 ® Special Award Conditions and Attachments ® Line Item Budget ® 15 CFR Part 24, Uniform Admin Requirements for Grants/Cooperative Agreements to State & Local Governments ® OMB Circular A-87, Cost Principles for State and Local Governments and Indian Tribal Governments El OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations ❑ 15 CFR, Part 14, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, Other Nonprofit, and Commercial Organizations ❑ OMB Circular A-122, Cost Principles for Nonprofit Organizations ❑ OMB Circular A-21, Cost Principles for Educational Institutions ❑ EDA Standard Terms and Conditions Capacity Building Programs O Department of Commerce Financial Assistance Standard Terms and Conditions, dated 10/98 SIGNATURE OF DEP.RTMENT OF Ci .•CE GRAN NAME A. Leonard Smith DATE OFFICER 1 "7 TITLE Regional Director 6/23/2006 , 71 SIGNAT E OF AUTHORIZED RECIPIENT OFFICIAL TYPED NAME AND TITLE DATE FORM CD-450 U.S. DEPARTMENT OF COMMERCE IRI GRANT 0 COOPERATIVE AGREEMENT (REV. 10-041 (CD450-1 EDAI FINANCIAL ASSISTANCE AWARD ACCOUNTING CODE RECIPIENT NAME City of Renton AWARD NUMBER 07-79-05825 STREET 4ADDRESS 1055 SW Grady Way, 6th Floor FEDERAL SHARE OF COST $ 2,054,314 CITY,STATE,ZIP CODE Renton Washington 98055 RECIPIENT SHARE OF COST $ 14,326,000 AWARD PERIOD From date of approval shown below through 60 months TOTAL ESTIMATED COST $ 16,380,314 DEPARTMENT OF COMMERCE OPERATING UNIT Economic Development Administration AUTHORITY 42 U.S.C. Section 3149, et seq. Public Works and Economic Development Act, as amended by Public Law 108-373. CFDA NO. 11.300 PROJECT TITLE: Public Works and Economic Development Facilities BUREAU FCFY FUND PROGRAM CODE BUDGET SUBACTIVITY OBJECT 1 CLASS EXPEND ENTITY 20 06 40 79 921 41 10 16 This Award approved by the Grants Officer is issued in triplicate and constitutes an obligation of federal funding. By signing the three documents, the Recipient agrees to comply with the Award provisions checked below and attached. Upon acceptance by the Recipient, two signed Award documents shall be returned to the Grants Office- and the third document shall be retained by the Recipient. If not signed and returned without modification by the Recipient within 30 days of receipt, the Grants Officer may unilaterally terminate this Award. ® EDA Standard Terms and Conditions Public Works and Implementation Construction Components, dated 3/99 ® Special Award Conditions and Attachments ® Line Item Budget ® 15 CFR Part 24, Uniform Admin Requirements for Grants/Cooperative Agreements to State & Local Governments ® OMB Circular A-87, Cost Principles for State and Local Governments and Indian Tribal Governments ® OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations ❑ 15 CFR, Part 14, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, Other Nonprofit, and Commercial Organizations El OMB Circular A-122, Cost Principles for Nonprofit Organizations ❑ OMB Circular A-21, Cost Principles for Educational Institutions ❑ EDA Standard Terms and Conditions Capacity Building Programs O Department of Commerce Financial Assistance Standard Terms and Conditions, dated 10/98 SIGNATURE OF DEPARTMENT OF CO i. / E• GRANTS NAME A. Leonard Smith DATE OFFICER // TITLE Regional Director 6/23/2006 . �� ?�d�, SIGNATU: OF AUTHORIZED RECIPIENT OFFICIAL TYPED NAME AND TITLE DATE FORM co-450 U.S. DEPARTMENT OF COMMERCE FINANCIAL ASSISTANCE AWARD GJ GRANT 0 COOPERATIVE AGREEMENT (REV.10-04) (CD450-1EDA) ACCOUNTING CODE RECIPIENT NAME City of Renton AWARD NUMBER 07-79-05825 STREET 4ADDRESS 1055 SW Grady Way, 6th Floor FEDERAL SHARE OF COST $ 2,054,314 CITY,STATE,ZIP CODE Renton Washington 98055 RECIPIENT SHARE OF COST $ 14,326,000 AWARD PERIOD From date of approval shown below through 60 months TOTAL ESTIMATED COST $ 16,380,314 DEPARTMENT OF COMMERCE OPERATING UNIT Economic Development Administration AUTHORITY 42 U.S.C. Section 3149, et seq. Public Works and Economic Development Act, as amended by Public Law 108-373. CFDA NO. 11.300 PROJECT TITLE: Public Works and Economic Development Facilities BUREAU FCFY FUND PROGRAM CODE BUDGET SUBACTIVITY OBJECT 1 CLASS EXPEND ENTITY 20 06 40 79 921 41 10 16 This Award approved by the Grants Officer is issued in triplicate and constitutes an obligation of federal funding. By signing the three documents, the Recipient agrees to comply with the Award provisions checked below and attached. Upon acceptance by the Recipient, two signed Award documents shall be returned to the Grants Officer Id the third document shall be retained by the Recipient. If not signed and returned without modification by the ecipient within 30 days of receipt, the Grants Officer may unilaterally terminate this Award. ® EDA Standard Terms and Conditions Public Works and Implementation Construction Components, dated 3/99 ® Special Award Conditions and Attachments ® Line Item Budget ® 15 CFR Part 24, Uniform Admin Requirements for Grants/Cooperative Agreements to State & Local Governments ® OMB Circular A-87, Cost Principles for State and Local Governments and Indian Tribal Governments ® OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations ❑ 15 CFR, Part 14, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, Other Nonprofit, and Commercial Organizations ❑ OMB Circular A-122, Cost Principles for Nonprofit Organizations ❑ OMB Circular A-21, Cost Principles for Educational Institutions ❑ EDA Standard Terms and Conditions Capacity Building Programs O Department of Commerce Financial Assistance Standard Terms and Conditions, dated 10/98 SIGNATURE OF DEPARTMENT OF C• RCE GRA : NAME A. Leonard Smith DATE OFFICE: / // _1 TITLE Regional Director 6/23/2006 / 1 " ' <0i4r , , SIGNAT -E OF AUTHORIZED RECIPIENT OFFICIAL TYPED NAME AND TITLE DATE (Revised 11-08-04 sjm) EXHIBIT"A" U.S. DEPARTMENT OF COMMERCE Economic Development Administration Page 1 of 3 Public Works and Development Facilities RECIPIENT: City of Renton, Washington Award No. 07-79-05825 SPECIAL AWARD CONDITIONS 1. PROJECT DEVELOPMENT TIME SCHEDULE: The Recipient agrees to the following Project development time schedule: Time allowed after receipt of Financial Assistance Award for: Return of Executed Financial Assistance Award - 30 days Time allowed after acceptance by Recipient of Financial Assistance Award for: Start of Construction - 24 months Construction Period - 24 months Project Closeout - All Project closeout documents, including final financial information and any required program reports, shall be submitted to the Government not more than 90 days after the date the Recipient accepts the completed Project from the contractor(s). The Recipient shall pursue diligently the development of the Project so as to ensure completion of the Project and submission of closeout documents within this time schedule. Moreover, the Recipient shall notify the Government in writing of any event which could delay substantially the achievement of the Project within the prescribed time limits. The Recipient further acknowledges that failure to meet the development time schedule may result in the Government's taking action to terminate the Award in accordance with the regulations set forth at 13 CFR 305.99(b) and 15 CFR 24.43 (53 Fed. Reg. 8048-9, 8102, March 11, 1988). 2. GOALS FOR WOMEN AND MINORITIES IN CONSTRUCTION: Department of Labor regulations set forth in 41 CFR 60-4 establish goals and timetables for participation of minorities and women in the construction industry. These regulations apply to all Federally assisted construction contracts in excess of$10,000. The Recipient shall comply with these regulations and shall obtain compliance with 41 CFR 60-4 from contractors and subcontractors employed in the completion of the Project by including such notices, clauses and provisions in the Solicitations for Offers or Bids as required by 41 CFR 60-4. The goal for the participation of women in each trade area shall be as follows: From April 1, 1981,until further notice: 6.9 percent Ned Exhibit "A" Page 2 of 3 Award No: 07-79-05825 Special Award Conditions City of Renton, Washington Nome All changes to this goal, as published in the Federal Register in accordance with the Office of Federal Contract Compliance Programs regulations at 41 CFR 60-4.6, or any successor regulations, shall hereafter be incorporated by reference into these Special Award Conditions. Goals for minority participation shall be as prescribed by Appendix B-80, Federal Register, Volume 45, No. 194, October 3, 1980, or subsequent publications. The Recipient shall include the "Standard Federal Equal Employment Opportunity Construction Contract Specifications" (or cause them to be included, if appropriate)in all federally assisted contracts and subcontracts. The goals and timetables for minority and female participation may not be less than those published pursuant to 41 CFR 60-4.6. 3. TITLE: Prior to EDA authorization to start construction, the Recipient shall provide evidence satisfactory to the Government that the Recipient has acquired good and merchantable title, free of all mortgages, foreclosable liens, or encumbrances, to all land, rights-of-way, and easements necessary for the completion of the Project. 4. FEDERAL SHARE OF PROJECT COSTS: The EDA participation in total eligible project costs will be limited to the EDA grant amount or the EDA share of total allowable project costs based on the area's grant rate eligibility at the time of award,whichever is less. 5. REPORT ON UNLIQUIDATED OBLIGATIONS: If there is an EDA grant award of more than$100,000 which has not been fully disbursed (or disbursed and closed out)as of September 30 each year the recipient must submit OMB Standard Form 269A, Financial Status Report, to EDA annually on the status of unreimbursed obligations. The report will provide information on the amount of allowable project expenses that have been incurred by the Recipient but not claimed for reimbursement as of September 30. The report must be submitted to EDA no later than October 30 of each year. Noncompliance with this requirement will result in the suspension of EDA grant disbursements. EDA will furnish instructions for completing and filing the report to all recipients at least 60 days before the report is due. 6. GRANT SUSPENSION FOR FAILURE TO START CONSTRUCTION: If significant construction(as determined by EDA) is not commenced within two years of approval of the project or by the date estimated for start of construction in the grant award(or the expiration of any extension granted in writing by EDA), whichever is later, the EDA grant will be automatically suspended and may be terminated if EDA determines, after consultation with the grant recipient, that construction to completion cannot reasonably be expected to proceed promptly and expeditiously. Exhibit "A" Page 3 of 3 Award No: 07-79-05825 Special Award Conditions City of Renton, Washington *4100 7. PRESERVATION OF OPEN COMPETITION AND GOVERNMENT NEUTRALITY TOWARDS GOVERNMENT CONTRACTORS' LABOR RELATIONS ON FEDERAL AND FEDERALLY FUNDED CONSTRUCTION PROJECTS: Pursuant to E.O. 13202, unless the project is exempted under section 5(c)of the order, bid specifications,project agreements, or other controlling documents for construction contracts awarded by recipients of grants or cooperative agreements,or those of any construction manager acting on their behalf, shall not: a) include any requirement or prohibition on bidders offerors, contractors, or subcontractors about entering into or adhering to agreements with one or more labor organizations on the same or related construction project(s); or b) otherwise discriminate against bidders, offerors, contractors, or subcontractors for becoming or refusing to become or remain signatories or otherwise to adhere to agreements with one or more labor organizations, on the same or other related construction projects(s). 8. WASHINGTON STATE HISTORIC PRESERVATION OFFICER(SHPO)-Prior to the start of construction, the Recipient shall provide evidence satisfactory to EDA that this Federally-assisted project has been reviewed by the Washington SHPO to determine the potential for impact to archeological or historic resources listed on or eligible for listing on the National Register of Historic Places. If archeological or historic resources are identified in the project area of potential effect, additional consultation and management actions will be required per Section 106 of the National Historic Preservation Act and 36 CFR part 800. 9. PROPERTY MANAGEMENT STANDARDS: In affirming this Award,the Recipient/Owner acknowledges its responsibility to use the real property acquired, benefitted,or improved in whole or in part with this investment assistance for infrastructure to serve the 46-acre, (Sub-District 1A)and to comply with the Economic Development Administration Reauthorization Act of 2004 (Public Law 108-373) interim final rule to reflect the amendments made to EDA's authorizing statute,the Public Works and Economic Development Act of 1965, and 13 CFR PART 314—PROPERTY Subpart B—Real Property 314.7 Title. 10. COSTS INCURRED PRIOR TO APPROVAL: Prior to the initial disbursement of grant funds, the Recipient shall provide acceptable documentation to EDA for costs incurred prior to the Award to determine their eligibility in accordance with requirements of the cost principles contained in OMB Circular,A-87. U. S. DEPARTMENT OF COMMERCE ECONOMIC DEVELOPMENT ADMJNIS1 RATION STANDARD TERMS AND CONDITIONS Title II Public Works and Development Facilities and Economic Adjustment Construction Components 14 1_1NtENT. OF 00 o Jet: BEffiraisa:alifi' 000 sod' + OAMENZ MARCH, 1999 1 MARCH, 1999 Exhibit "B" U. S. DEPARTMENT OF COMMERCE ECONOMIC DEVELOPMENT ADMINISTRATION STANDARD TERMS AND CONDITIONS Title II Public Works and Development Facilities and Economic Adjustment Construction Components Page INTRODUCTION 1 A. STATUTORY AND EXECUTIVE ORDER REQUIREMENTS 1 B. FINANCIAL REQUIREMENTS 5 -Now 1. Financial Reports 5 2. Award Payments 6 3. Federal and Non-Federal Sharing 6 4. Budget Changes and Transfer of Funds Among Categories 7 5. Indirect Costs 7 6. Incurring Costs or Obligating Federal Funds Beyond the Expiration Date8 7. Tax Refunds 9 8. Incurring Costs Prior to Award 9 C. PROGRAMMATIC REQUIREMENTS 9 - 1. Reporting Requirements 9 2. Unsatisfactory Performance 10 3. Programmatic Changes 12 4. Other Federal Awards with Similar Programmatic Activities 12 5. Program Income 12 6. Use of Third Parties to Solicit or Secure This Award 13 7. Consultant and Attorney's Fees 13 8. Member of Congress/Resident Federal Commissioner Restriction 13 9. Hold Harmless Requirement 13 10. Alienation Restriction 14 11 11 . Taxpayer Identification Number Requirement 14 D. NON-DISCRIMINATION REQUIREMENTS 14 1 . Statutory Provisions 14 2. Other Provisions 15 E. AUDITS 15 1. - Organization-Wide and Project Audits 15 2. Audit Resolution Process 16 F. DEBTS 17 1. Payment of Debts Owed the Federal Government 17 2. Late Payment Charges 17 G. NAME CHECK 18 1. Results of Name Check 18 2. = Action(s) Taken as a Result of Name Check Review 1-8 H. LOBBYING RESTRICTIONS 19 1. Statutory Provisions 19 2. - Disclosure of Lobbying Activities 1-9 3. Subaward, Contract, and Subcontract 19 I. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE 20 J. SUBAWARD AND/OR CONTRACT TO A FEDERAL AGENCY 21 K. PROPERTY MANAGEMENT 21 1 . Standards 21 2. Retention of Title 21 3. Disposal of Real Property 22 4. EDA's Interest in Award Property 22 5. Leasing Restrictions 23 ECONOMIC DEVELOPMENT ADMINISTRATION NomeSTANDARD TERMS AND CONDITIONS Title II Public Works and Development Facilities and Title II Economic Adjustment Construction Components For the purpose of these Standard Terms and Conditions, unless the context otherwise requires, (a) the term "Government" refers to the Economic Development Administration (EDA); (b) the term "Recipient" refers to the recipient of Government funds under the Agreement to which this attachment is made a part; (c) the term "Department" and "DoC" refer to the Department of Commerce; and (d) the term "regional office" refers to the appropriate Regional Office of the Economic Development Administration, i.e., the office administering the award. The Public Works and Economic Development Act of 1965,-and its amendments (42 U.S.C. 3121, et seq.), including the comprehensive amendment of the Economic Development Reform Act of 1998 (P.L. 105-393) are hereinafter referred to as PWEDA. A. Statutory and Executive Order Requirements • Some of the terms and conditions herein contain, by reference or substance, a summary of the pertinent statutes, or regulations published in the Federal Register or Code of Federal NuirRequlations (CFR), Executive Orders (EO) or OMB Circulars (Circular). To the extent that it is a summary, such term or condition is not in derogation of, or an amendment to, any such statute, regulation, EO or Circular. All statutes, regulations, EOs or Circulars whether or not referenced herein are to be applied as amended on the date they are administered. 1. The Recipient and any subrecipients must, in addition to the Assurances made as a part of the application, comply and require each of its contract,,,s 2nd subcontractors employed in the completion of the project to comply, with all applicable Federal, state, territorial, and local laws, and in particular the following Federal Public Laws, the regulations issued thereunder, and Executive Orders and Office of Management and Budget (OMB) Circulars: a. The Public Works and Economic Development Act of 1965, P.L. 89-136, as amended (42 U.S.C. 3121, et seq.), including the comprehensive amendment of the Economic Development Reform Act of 1998 (P.L. 105-393), and regulations in 13 CFR, Chapter III; b. The Davis-Bacon Act as amended (40 U.S.C. 276a to 276a (5); 42 U.S.C. 3212); c. The Contract Work Hours and Safety Standards Act, as amended (40 U.S.C. %r.r, 327-333); 2 d. The Copeland "Anti-Kickback" Act, as amended (40 U.S.C. 276(c); (18 U.S.C. 874); e. The Clean Air Act, as amended (42 U.S.C. 7401, et seq.); f. The Clean Water Act (The Federal Water Pollution Control Act, as amended) (33 U.S.C. 1251, et seq.); g. The Endangered Species Act of 1973, as amended (16 U.S.C. 1531, et seq.); h. The Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451, et seq.); i. The Safe Drinking Water Act of 1974, as amended (42 U.S.C. 300f-j26); j. The Energy Conservation and Production Act (applicable to construction of new residential and commercial structures) (42 U.S.C. 6801, et seq.); k. The Wild and Scenic Rivers Act, as amended, P.L. 90-542, (16 U.S.C. 1271, et seq.); I. The Historical and Archeological Data Preservation Act, as amended (16 U.S.C. 469a-1, et seq.); m. Executive Order 11990, Protection of Wetlands, May 24, 1977; n. P.L. 90-480, as amended (42 U.S.C. 4151, et seq.), and the regulations issued thereunder, prescribing standards for the design and construction of any building or facility intended to be accessible to the public or that may result in the employment of handicapped persons therein; o. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, P.L. 91-646, as amended (42 U.S.C. 4601, et seq.); and 15 CFR Part 11; p. The Flood Disaster Protection Act of 1973, P.L. 93-234,_as amended (42 U.S.C. 4002, et seq.), and regulations and guidelines issued thereunder by the Federal Emergency Management Administration (FEMA) or the Economic Development Administration; q. Executive Order 11988, Floodplain Management, May 24, 1977, and regulations and guidelines issued thereunder by the Economic Development Administration; r. The National Environmental Policy Act of 1969, P.L. 91-190, as amended, and 'NS 3 42 U.S.C. Sec 4321 et seq.; Now s. The Lead-based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.), P.L. 91-695, as amended; t. The Resource Conservation and Recovery Act of 1976, as amended, P.L. 94- 580, (42 U.S.C. 6901); u. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.) and the Superfund Amendments and Reauthorization Act of 1986, P.L. 99-499, as amended; v. The Drug-Free Workplace Act of 1988, P.L. 100-690, Title V, Subtitle D, and 15 CFR Part 26 (55 F.R. 21678, May 25, 1990) for projects approved on or after March 18, 1989; w. Restrictions on Lobbying, section 319 of P.L. 101-121, 15_ CFR Part 28, (55 F.R. 6736-6748, 2/26/90); x. Executive Order 12549, Debarment and Suspension, and 15 CFR Part 26, Governmentwide Debarment and Suspension (Nonprocurement);- �..• y. American Indian Religious Freedom Act, P.L. 96-341 (42 U.S.C. Sec 1996); z. Environmental Quality Improvement Act of 1970, P.L. 91-244, as amended (42 U.S.C. Sec 4371-4374); aa. Executive Order 12088, Federal Compliance with Pollution Control Standards; bb. Executive Order 11514, Protection and Enhancement of Environmental Quality, as amended; cc. Executive Order 11593, Protection and Enhancement of the Cultural - Environment; dd. Farmland Protection Policy Act, P.L. 97-98, as amended ,(7 U.S.C. 4201 et seq.); ee. Fish and Wildlife Coordination Act, P.L. 92-522, as amended (16 U.S.C. Sec 661 et seq.); ff. National Historic Preservation Act of 1966, P.L. 89-665, as amended and the Advisory Council on Historic Preservation Guidelines (16 U.S.C. Sec 470 et seq.); 4 gg. Noise Control Act, P.L. 92-574, as amended (42 U.S.C. Sec 4901 et seq.); hh. Environmental Justice in Minority Populations and Low Income Populations, Executive Order 12898 (February 11, 1994). 2. The Recipient agrees that, for the expected useful life of the facility assisted with this award, the project will be properly and efficiently administered, operated and maintained, as required by Section 504 of P.L. 105-393.(42 U.S.C. 3194), for the purpose authorized by this award and in accordance with the terms, conditions, requirements and provisions of the award. If the Government determines, at any time during the useful life of the facility, that the project is not being properly and efficiently administered, operated and maintained, the Government may terminate the award for cause and require the Recipient to repay the award. 3. This award is subject to P.L. 101-510, enacted November 5, 1990, section 1405, amending subchapter IV of Chapter 15, Title 31, United States Code, which prescribes the rules for determining the availability of appropriations. Accordingly, the grant funds obligated for this project will expire in five years from the end of the fiscal year of the grant award. 4. Pursuant to EO 12889, the DoC is required to notify the owner of any valid patent covering technology whenever the DoC or its financial assistance Recipients, without making a patent search, knows (or has demonstrable reasonable grounds to know) that technology covered by a valid United States patent has been or will be used without a license from the owner. To ensure proper notification, if the Recipient uses or has used patented technology under this Award without a license or permission from the owner, the Recipient must notify the DoC Patent Counsel at the following address, with a copy to EDA: Department of Commerce Office of Chief Counsel for Technology Patent Counsel _ 14th Street and Constitution Avenue, NW, Room H-4613 Washington, D. C. 20230 The notification should include the award number, the name.of the DoC awarding agency, a copy of the patent, a description of how the patented technology was used, and the name of the Recipient contact, including an address and telephone number. 5. For use for new building construction projects: The Recipient is aware of and intends to comply with one of the three model codes outlined by the Committee on Seismic Safety in Construction (ICSSC): 5 `w' 1991 ICBO Uniform Building Code 1992 Supplement to the BOCA National Building Code 1991 Amendments to the SBCC Standard Building Code 6. Recipients are hereby notified that they are encouraged, to the greatest extent practicable, to purchase American-made equipment and products with funding provided under this Award. 7. The Recipient must furnish evidence satisfactory in form or substance to the Government that title to real property (other than property of the United States and those limited cases as provided in 13 CFR 314.7(c)), is vested in the Recipient and that such easements, rights-of-way, state permits, or long-term leases, as are required for the project have been or will be obtained within an acceptable time as determined by the Government. All liens, mortgages, other encumbrances, reservations, reversionary interests, or other restrictions on title or the Recipient's interest in the property must be disclosed to EDA. No such encumbrances or restrictions will be acceptable if, as determined by the Government, the encumbrance or restriction will interfere with the construction, use, operation or maintenance of the project during its estimated useful life or except when a waiver has been granted by the Assistant Secretary or his\her designee. ifs., B. FINANCIAL REQUIREMENTS 1. Financial Reports a. The Recipient must submit an "SF-271, Outlay Report and Request for Reimbursement" (ED-113) no more frequently than quarterly to report outlays. A final SF-271 is to be submitted within 90 days after 'U.K.. e j., ^tion date of the award. b. The Recipient must submit a "Federal Cash Transactions Report" (SF-272) for each award where funds are advanced to Recipients. The SF-272 is due 15 working days following the end of each calendar quarter for awards under $1 million; or 15 working days following the end of each month for awards over-$1 million; or unless otherwise specified in a special awardcondition. c. All Recipients of an EDA grant award of more than $100,000 whose grant has not been fully disbursed as of the end of each reporting period are required to submit a financial report to EDA annually on the status of unreimbursed obligations. The report will provide information on the amount of allowable project expenses that have been incurred by the Recipient but not claimed for ,, reimbursement as of the end of the reporting period. The report will be as of September 30 of each year and must be submitted annually until the final grant 6 payment is made by EDA. The report will be submitted to EDA no later than October 30 of each year. Noncompliance with this requirement will result in the suspension of EDA grant disbursements. Standard Form 269A, Financial Status Report, will be used for this purpose. Instructions for completing and filing the report will be furnished to the Recipient at least 60 days before the report is due. d. All financial reports are to be submitted to the regional office. 2. Award Payments a. Unless otherwise specified in a special award condition, the method of payment for the award will be through advance or reimbursement. b. The Recipient must submit an "Outlay Report and Request for Reimbursement, SF-271" (ED-113) no more frequently than monthly to request payment. The SF-271 is to be submitted to the regional office. c. Payments will be made via electronic transfer which transfers funds directly to a Recipient's bank account. The Recipient must complete a payment information form and return it to the regional office. The award number must be included on the payment information form. -- d. Advances will be limited to the minimum amounts necessary to meet immediate disbursement needs. Advanced funds not disbursed in a timely manner will be promptly returned to EDA. Advances will be approved for periods not to exceed 30 days. The regional office determines the appropriate method of payment. If a Recipient demonstrates an unwillingness or inability to establish procedures which will minimize the time elapsing between the transfer of funds and disbursement or if the Recipient otherwise fails to continue to qualify for the advance method payment, the regional office may change the method of payment to reimbursement only. 3.-_Federal and Non-Federal Sharing a. The EDA participation in total eligible project costs will be limited to the EDA grant amount or the EDA share of total allowable project costs based on the area's grant rate eligibility at the time of award, whichever is less. b. The non-Federal share, whether cash or in-kind, is expected to be paid out at the same general rate as the Federal share and must be committed at the time of Award and available over the life of the Award. Cash or in-kind contributions, fairly evaluated by EDA, including contributions of space, equipment, and services, may provide the non-Federal share of the project cost. In-kind contributions must be eligible project costs and meet applicable Federal cost aarioo principles and uniform administrative requirements. Exceptions to this requirement may be granted by EDA based on sufficient documentation 7 demonstrating previously determined plans for or later commitment of cash or in- Nome kind contributions. 4. Budget Changes and Transfer of Funds Among Categories a. Requests for budget changes to the approved estimated budget in accordance with the provision noted below must be submitted to the regional office for review and recommendation. EDA will make the final determination on such requests and notify the Recipient in writing. b. Transfer of funds by the Recipient among direct cost categories are permitted with the written approval of EDA. Transfers will not be permitted if such transfers would cause the Federal grant, or part thereof, to be used for purposes other than those intended. c. The addition of a new line item to the approved budget must be approved in writing by EDA. Such an addition presents a rebuttable presumption of change of scope. d. The Recipient is not authorized at any time to transfer amounts budgeted for direct costs to the indirect costs line item and vice versa, except with the written prior approval of EDA. Nfiw 5. Indirect Costs a. Indirect costs will not be allowable charges against the award unless specifically included as a line item in the approved budget incorporated into the award. b. Excess indirect costs may not be used to offset unallowab;0 d►z act costs. c. If the Recipient has not previously established an indirect cost rate with a Federal agency, the negotiation and approval of a rate is subject to the procedures in the applicable cost principles and the following subparagraphs: (1) The Office of Inspector General (OIG) is authorized to negotiate indirect cost rates on behalf of EDA for those organizations for which DoC is the cognizant agency. The OIG will negotiate only fixed rates. The Recipient must submit to the OIG within 90 days of the award start date, documentation (indirect cost proposal, cost allocation plan, etc.) necessary to establish such rates. The Recipient must provide the EDA regional office with a copy of the transmittal letter to the O1G. (2) When an oversight or cognizant Federal agency other than DoC has Nis" responsibility for establishing an indirect cost rate, the Recipient must submit to that oversight or cognizant Grants Officer within 90 days of the 8 award start date the documentation (indirect cost proposal, cost allocation plan, etc.) necessary to establish such rates. The Recipient must provide both the regional office and the DoC OIG with a copy of the transmittal letter to the cognizant Grants Officer. (3) If the Recipient fails to submit the required documentation to the OIG or other oversight or cognizant Grants Officer within 90 days of the award start date, the EDA regional office will amend the award to preclude the recovery of any indirect costs under the award. If the DoC OIG or EDA determines there is a finding of good and sufficient cause to excuse the Recipient's delay in submitting the documentation, an extension of the 90- day due date may be approved by EDA. (4) Regardless of any approved indirect cost rate applicable to the award at the time of award, the maximum dollar amount of allocable indirect costs for which EDA will reimburse the Recipient shall be the lesser of: (a) The line item amount for the Federal share of indirect costs contained in the approved budget of the award; or (b) The Federal share of the total allocable indirect costs of-the award based on the negotiated rate with the cognizant Grants Officer as established by audit or negotiation. 6. Incurring Costs or Obligating Federal Funds Beyond the Expiration Date a. The Recipient must not incur costs or obligate funds for any purpose pertaining to the operation of the project, program or activities beyond the expiration date stipulated in the award. The only costs which are authorized for a period of up to 90 days following the award expiration date are those strictly associated with closeout activities. Closeout activities are limited to the preparation of final reports. b. Any extension of the award period can only be authorized by the EDA Assistant Secretary or his/her designee. Verbal or written assurances of funding from other than EDA's Assistant Secretary or his/her designee doesnot constitute authority to obligate funds for programmatic activities beyond the expiration date. c. EDA has no obligation to provide any additional funding. 7. Tax Refunds Refunds of FICA/FUTA taxes received by the Recipient during or after the award period must be refunded or credited to EDA where the benefits were financed with Federal funds under the award. The Recipient agrees to contact the regional office 9 immediately upon receipt of these refunds. The Recipient further agrees to refund portions of FICA/FUTA taxes determined to belong to the Federal Government, Nris' including refunds received after the expiration of the award. 8. Incurring Costs Prior to Award Recipients that incurred any project costs prior to a grant award being made by EDA did so at the risk of not being reimbursed; however, EDA may, at its sole discretion, pay for project costs incurred prior to grant award. Such costs must included in the approved project budget and be allowable costs under Federal cost principles and the grant award. C. PROGRAMMATIC REQUIREMENTS 1. Reporting Requirements • a. Financial and performance (technical) reports must be submitted in accordance -- with the procedures in 15 CFR Part 24 or 15 CFR Part 14, as applicable, and the schedule indicated below. failure to submitrequired reports in a timely manner may result in the withholding of payments under this award or deferring the processing of new awards, amendments, or supplemental funding pending the receipt of the overdue report(s), and/or establishing an accounts receivable for the difference between the total Federal share of outlays last reported and the *ow amount disbursed. b. Project performance reports are to be submitted for each calendar quarter. The project performance report will be-due not later than January 15, April 15, July 15 and October 15 for the immediate previous quarter. The report submission dates are to be no more than 30 days after the due date, with a due date of 90 days after expiration of the award. This reporting requirernsnt hegins with the Recipient's acceptance of the award and ends when the final project disbursement is approved. The project performance report should be submitted to the regional office. c. Recipients of awards which involve both Federal financial assistance valued at $500,000 or more and procurement of supplies, equipment, construction, or services are required to submit the SF-334, "Minority Business Enterprise/Women Business Enterprise Utilization Under Federal Grants, Cooperative Agreements, and Other Federal Financial Assistance." Reports are to be submitted on a quarterly basis for the period ending March 31, June 30, September 30, and December 31. Reports are due no later than thirty (30) days following the end of the reporting period during which any procurement in excess of $10,000 is executed under this award. The report should be submitted in duplicate to the regional office. Any questions concerning this report should be *409 directed to the regional office. 10 d. Performance Measures: The Recipient agrees to report on program performance ,ft,00 and project outcomes in such form and at such intervals as may be prescribed by EDA in compliance with the Government Performance and Results Act of 1993 and P. L. 105-393. The performance measures that apply to this project are included with and made a part of the grant award package. EDA will advise the Recipient in writing, within a reasonable period prior to time of submission, in the event there are any modifications in the performance measures. 2. Unsatisfactory Performance a. Recipient will comply with the administrative, procedural and policy requirements contained in applicable EDA regulations in effect at time of their application. b. The Government reserves the right to suspend the award and withhold further payments, or prohibit the Recipient from incurring additional obligations, pending corrective action by the Recipient or a decision by the Government to terminate the award unless the project is completed to the satisfaction of the Government. o. The Government has the right to terminate for cause all or any part of its obligation hereunder if: (1) Any representation made by the Recipient to the Government in connection with the application for Government assistance is incorrect or incomplete in any material respect. (2) The intent and purpose and/or the economic feasibility of the project is changed substantially so as to affect significantly the accomplishment of the project as intended. (3) The Recipient has violated commitments it made in its application and supporting documents or has violated any of the terms and conditions of this award. (4) Any official, employee or agent, member of immediate family, partner, or an organization which employs or is about to employ any of the above of the Recipient becomes directly interested financially in the acquisition of any materials or equipment, or in any construction for the project, or in the furnishing of any service to or in connection with the project, or any benefit arising therefrom. (5) The Recipient fails to report immediately to the Government any change of authorized representative(s) acting in lieu of or on behalf of the Recipient. d. The obligations hereunder may be terminated for convenience if: 11 (1) Both the Recipient and the Government agree that continuation of the 'Igoeproject would not produce beneficial results commensurate with the further expenditure of funds. (2) Both the Recipient and the Government agree upon the termination conditions, including the effective date, and in the case of partial termination, the portion to be terminated. (3) The Recipient agrees to incur no new obligations for the terminated portion after the effective date and to cancel or satisfy all outstanding obligations as of that date. e. The Recipient has the sole authority and full responsibility, without recourse to the Federal Government or any of its agencies, for the settlement and satisfaction of all contractual and administrative issues arising out of this award. f. The Recipient hereby agrees that the Government may, at its option, withhold disbursement of any award funds if the Government learns or has knowledge, that the Recipient has failed to comply in any manner with any provision of the award. The Government will withhold funds until the violation or violations have been corrected to the Government's satisfaction: The Recipient further agrees to reimburse the Government for any ineligible costs which were paid from award funds, or if the Recipient fails to reimburse the Government, the Government shall have the right to offset the amount of such ineligible costs from any undisbursed award funds held by the Government. The Recipient agrees to repay the Government for all ineligible costs incurred in connection with the project and paid from the award including, but not limited to, those costs determined to be ineligible if the Government learns of any award violations after all award funds have been disbursed. g. The Recipient hereby agrees, in the event a beneficiary of the EDA assisted project fails to comply in any manner with certifications, assurances, or agreements that such beneficiary has entered into in accordance with EDA requirements, that the Recipient will reimburse the Government the award amount or an amount to be determined by the Government pursuant to 13 CFR Part 314. Where the Government determines that the failure of the beneficiary to comply with EDA requirements affects a portion of the property benefitted by the award, the Recipient will reimburse the Government proportionately. h. If a recipient materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice New of award, the Grants Officer may, in addition to imposing any of the special conditions outlined in 15 CFR §14.14, take one or more of the following actions, 12 as appropriate in the circumstances: (1) Temporarily withhold payments of funds pending correction of the deficiency by the recipient or more severe enforcement action by the Grants Officer after coordination with the DoC operating unit. (2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance. (3) Wholly or partly suspend or terminate the current award. (4) Withhold further awards for the project or program. (5) Take other remedies that may be legally available. 3. Programmatic Changes a.. The Recipient must not make any programmatic changes to the award without prior written approval by EDA. b. Any requests by the Recipient for programmatic changes must be submitted to EDA for review and approval. The Assistant Secretary or his/her designee will make the final determination and notify the Recipient in writing. '.rr 4. Other Federal Awards with Similar Programmatic Activities The Recipient must immediately provide written notification to EDA in the event that, subsequent to receipt of the EDA award, other Federal financial assistance is received relative to the scope of work of the EDA award. 5. Program Income • __ a. For projects that create long-term rental revenue, i.e., buildings or real property constructed or improved for the purpose of renting or leasing space (e.g., building sites), the Recipient agrees to use such income generated from the rental or lease of the project facility(ies), in the following order of priority: (1) Administration, operation, maintenance and repair of the project facilities for their useful life (as determined by EDA) in a manner consistent with good property management practice and in accord with the established building codes. This includes, where applicable, repayment of indebtedness resulting from any legal encumbrance (e.g., approved mortgage) on the EDA assisted facility. (2) Economic development activities that are authorized for support by EDA, 13 provided such activities are within the EDA eligible area. b. Prior to the final disbursement of grant funds, the Recipient will develop and furnish to EDA for approval, an income reutilization plan that demonstrates that the funds generated from the EDA project will be expended for the purposes established above. Any changes made to the plan during the useful life of the project must also be submitted to EDA for its review and approval. 6. Use of Third Parties to Solicit or Secure This EDA Award Unless otherwise specified in the Special Conditions to the EDA grant award, the Recipient warrants that no person or selling agency has been employed or retained to solicit or secure this award upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by the Recipient for the purpose of securing business. For breach or violation of the warrant, the Government has the right to annul this award without liability, or at its discretion, to deduct from the award sum, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 7. Consultant and Attorney's Fees --- j,a,,. The Recipient hereby agrees that no funds made available from this Award will be used, directly or indirectly, for paying attorneys' or consultants' fees in connection with securing awards made by the Government, such as, for example, preparing the application for this assistance. However, attorneys' and consultants' fees incurred for meeting Award requirements, such as, for example, conducting a title search or preparing plans and specifications, may be eligible project costs and may be paid out of the funds made available from this Award, provided such cnctg are otherwise eligible. 8. Member of Congress/Resident Federal Commissioner Restriction -_ No member of or delegate to Congress or resident Federal Commissioner will be admitted to any share or part of this award or to any benefit that may arise therefrom; but this provision will not be construed to extend to this award if made to a corporation, education, or nonprofit institution for its general benefit. 9. Hold Harmless Requirement To the extent permitted by law, the Recipient agrees to indemnify and hold the Government harmless from and against all liabilities that the Government may incur as a result of providing an award to assist, directly or indirectly, preparation of the project site or construction, renovation, or repair of any facility on the project site, to the extent that such liabilities are incurred because of toxic or hazardous 14 contamination or groundwater, surface water, soil, or other conditions caused by operations of the Recipient or any of its predecessors (other than the Government or its agents) on the property. 10. Alienation Restriction Notwithstanding any other provision of the award, the Recipient will not transfer, pledge, mortgage, or otherwise assign the award, or any interest therein, or any claim arising thereunder, to any party or parties, bank trust companies, or other financing or financial institutions. 11. Taxpayer Identification Number Requirement A Recipient classified for tax purposes as an individual, partnership, proprietorship, or medical corporation is required to submit a taxpayer identification number (TIN) (either social security number or employer identification number as applicable) on Form W-9, "Payer's Request for Taxpayer Identification Number." Tax-exempt organizations and corporations (with the exception of medical corporations) are excluded from this requirement. Form W-9 is to be submitted to the regional office within 60 days of the award start date. The TIN will be provided to the IRS by EDA on Form 1099-G, "Statement for Recipients of Certain Government Payments." Applicable Recipients who either fail to provide their TIN or provide an incorrect TIN may have funding suspended until the requirement is met. Disclosure of a Recipient's TIN is mandatory for Federal income tax reporting purposes under the authority of 26 U.S.C., Section 6011 and 6109(d), and 26 CFR, Section 301.6109-1. This is to ensure the accuracy of income computation by IRS. This information will be used to identify an individual who is compensated with DoC funds or paid interest under the Prompt Payment Act. D. NONDISCRIMINATION REQUIREMENTS No person in the United States can, on the ground of race, color, national origin, handicap, religion, or sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. The Recipient agrees to comply with the nondiscrimination requirements below and any statutes, regulations, and EOs whether or not referenced herein to be applied on the date they are administered: 1. Statutory Provisions a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. P.L. 105-393§ 2000d et seq.) and DoC implementing regulations published at 15 CFR Part 8 which prohibit discrimination on the grounds of race, color, or national origin under programs or activities receiving Federal financial assistance; 15 b. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) ow, prohibiting discrimination on the basis of sex under Federally assisted education programs or activities; c. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794) and DoC implementing regulations published at 15 CFR Part 8b prohibiting discrimination on the basis of handicap under any program or activity receiving or benefitting from Federal assistance; d. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.) and DoC implementing regulations published at 15 CFR Part 20 prohibiting discrimination on the basis of age in programs or activities receiving Federal financial assistance; e. The Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) prohibiting discrimination on the basis of disability under programs, activities, and services provided or made available by state and local governments or instrumentalities or agencies thereto, as well as public or private entities that provide public transportation; and f. Any other nondiscrimination provisions of statutory law. 2. Other Provisions a. Executive Orders 11114, 11246, 11375, and 12086; b. Construction Contractors Affirmative Action Requirements, 41 CFR Part 60-4; and c. 13 CFR Part 317, civil rights requirements for Recipients. E. AUDITS Under the Inspector General Act of 1978, as amended, 5 U.S.C. App. I, section 1 et seq., an audit of the award may be conducted at any time. The Inspector General of the DoC, or any of his or her duly authorized representatives, has access to any pertinent books, documents, papers and records of the Recipient, whether written, printed, recorded, produced or reproduced by any mechanical, magnetic or other process or medium, in order to make audits, inspections, excerpts, transcripts or other examinations as authorized by law. When the OIG requires a project audit, the OIG will usually make the arrangements to audit the award, whether the audit is performed by OIG personnel, an independent accountant under contract with the DOC, or any other Federal, state or local audit entity. 1. Organization-Wide, Program Specific, and Project Audits 16 a. Organization-wide or program-specific audits will be performed in accordance with ,4000, the Single Audit Act Amendments of 1996, as implemented by OMB Circular A- 133, "Audits of States, Local Governments, and Non-Profit Organizations." Recipients that are subject to the provisions of OMB Circular A-133 and that expend $300,000 or more in a year in Federal awards will have an audit performed in accordance with the requirements contained in OMB Circular A-133. Additionally, when required under a special award condition, a project audit will be performed in accordance with Federal Government auditing standards. b. The Recipient must submit copies of audits to each Grants Officer that directly provides funds. Audits must be submitted to the DoC OIG at the following address with a copy of the transmittal letter to the EDA regional office. Office of Inspector General U.S. Department of Commerce Atlanta Regional Office of Audits 401 West Peachtree, NW, Suite 2742 Atlanta, Georgia 30308 c. Recipients expending Federal awards over $300,000 a year and having audits conducted in accordance with OMB Circular A-133 must also submit a copy of organization-wide or program specific audits to the Bureau of the Census, which has been designated by OMB as a central clearinghouse. The address is: Federal Audit Clearinghouse Bureau of the Census 1201 E. 10th Street Jeffersonville, IN 47132 2. Audit Resolution Process a. An audit of the award may result in the disallowance of costs incurred by the Recipient and the establishment of a debt (account receivable) due EDA. For this reason, the Recipient should take seriously its responsibility to respond to all audit findings and recommendations with adequate explanations and supporting evidence whenever audit results are disputed. b. A Recipient whose award is audited has the following opportunities to dispute the proposed disallowance of costs and the establishment of a debt: (1) Unless the Inspector General determines otherwise, the Recipient has 30 days from the date of the transmittal of the draft audit report to submit written comments and documentary evidence. (2) The Recipient has 30 days from the date of the transmittal of the final audit 17 report to submit written comments and documentary evidence. There will be no extension of this deadline. (3) EDA will review the documentary evidence submitted by the Recipient and notify the Recipient of the results in an Audit Resolution Determination Letter. The Recipient has 30 days from the date of receipt of the Audit Resolution Determination Letter to submit a written appeal. There will be no extension of this deadline. The appeal is the last opportunity for the Recipient to submit written comments and documentary evidence that dispute the validity of the audit resolution determination. In addition, an appeal does not preclude the Recipient's obligation to pay a debt that may be established nor does the appeal preclude the accrual of interest on a debt. (4) EDA will review the Recipient's appeal and notify the Recipient of the results in an Appeal Determination Letter. After the opportunity to appeal has expired or after the appeal determination has been rendered, EDA will not accept any further documentary evidence from the Recipient. There will be no other administrative appeals available in EDA. F. DEBTS 1. Payment of Debts Owed the Federal Government Any debts determined to be owed the Federal Government must be paid promptly by the Recipient. A debt will be considered delinquent if it is not paid within 15 days of the due date. Failure to pay a debt by the due date shall result in the imposition of late payment charges as noted below. In addition, failure to pc./ debt or establish a repayment agreement by the due date will also result in the referral of the debt for collection action and may result in DoC taking further action as specified in the standard term and condition entitled "Unsatisfactory Performance." The Recipient may also be suspended or debarred from further Federal financial and -_non-financial assistance and benefits, as provided in 15 CFR Part 26, "Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants)" until the debt has been paid in full or until a repayment agreement has been approved and payments are made in accordance with the agreement. Payment of a debt may not come from other Federally sponsored programs. Verification that other Federal funds have not been used will be made during future program visits and audits. 2. Late Payment Charges a. An interest charge will be assessed on the delinquent debt (over 15 days) as established by the Debt Collection Act of 1982, as amended. The minimum 18 annual interest rate to be assessed is the Department of the Treasury's Current ,411.0 Value of Funds Rate. This rate is published in the Federal Register by the Department of the Treasury. The assessed rate remains fixed for the duration of the indebtedness. b. A penalty charge will be assessed on any portion of a debt that is delinquent for more than 90 days, although the charge will accrue and be assessed from the date the debt became delinquent. c. An administrative charge will be assessed to cover processing and handling the amount due. d. State and local governments are not subject to penalty and administrative charges. G. NAME CHECK A name check review must be performed by the OIG on key individuals associated with nonprofit organizations, unless an exemption has been authorized by the Inspector General. Both officials of state and local governments and officials of accredited colleges and universities who are acting on behalf of their respective entities in applying for assistance are exempt from the name check requirement. In addition, all elected officials of state and local governments who are serving in ex officio capacities when applying for assistance are exempt. 1. Results of Name Check EDA reserves the right to take any of the actions described in G.2. below if any of the following occurs as a result of the name check review: a. A key individual fails to submit the required form "Identification - Applicant for Funding Assistance" (CD-346). b. A key individual made an incorrect statement or omitted a material fact on the CD-346; or c. The name check reveals significant adverse findings that reflect on the business integrity or responsibility of the Recipient and/or key individual. 2. Action(s) Taken as a Result of Name Check Review If any situation noted in G.1. above occurs, EDA, at its discretion, may take one or more of the following actions: a. Consider termination for cause of the award; 19 Nifty, b. Require the removal of any key individual from association with the management of and/or implementation of the award; and/or c. Make appropriate provisions or revisions at EDA's discretion with respect to the method of payment and/or financial reporting requirements. H. LOBBYING RESTRICTIONS 1. Statutory Provisions The Recipient must comply with the provisions of Section 319 of P.L. 101-121, which added Section 1352 to Chapter 13 of Title 31 of the United States Code, and DoC implementing regulations published at 15 CFR Part 28, "New Restrictions on Lobbying." These provisions generally prohibit the use of Federal funds for lobbying the Executive or Legislative Branches of the Federal government in connection with the award, and require the disclosure of the use of non-Federal funds for lobbying. 2. Disclosure of Lobbying Activities - The Recipient receiving in excess of $100,000 in Federal funding must submit a completed "Disclosure of Lobbying Activities" (SF-LLL) regarding the use of non- Federal funds for lobbying. The SF-LLL must be submitted within 30 days following the end of the calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed. The Recipient must submit the SF- LLLs, including those received from subrecipients, contractors, and subcontractors, to the regional office. An Indian tribe or organization that is seeking an exclusion from Certification and Disclosure requirements must provide (preferably in an attorney's opinion) EDA with the citation of the provision or provisions of Federal law upon which it relies to conduct lobbying activities that would otherwise be subject to the above - provisions. 3. Subaward, Contract, and Subcontract a. Applicability of Award Provisions to Subrecipients The Recipient must require all subrecipients, including lower tier subrecipients, under the award to comply with the provisions of the award including applicable cost principles, administrative, and audit requirements. 41100, b. Applicability of Provisions to Subawards, Contracts, and Subcontracts 20 (1) The Recipient must include the following notice in each request for applications or bids: Applicants/bidders for a lower tier covered transaction (except for goods and services under the $100,000 small purchase threshold and where the lower tier Recipient will have no critical influence on or substantive control over the award) are subject to 15 CFR Part 26, Subparts A through E, Governmentwide Debarment and Suspension (Nonprocurement). In addition, applicants/bidders for a lower tier covered transaction for a subaward, contract, or subcontract greater than $100,000 of Federal funds at any tier are subject to 15 CFR Part 28, "New Restrictions on Lobbying." Applicants/ bidders should familiarize themselves with these provisions, including the certification requirements. Therefore, applications for a lower tier covered transaction must include a "Certifications Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions and Lobbying" (CD-512) completed without modification. (2) The Recipient must include a statement in all lower tier covered transactions (subawards, contracts, and subcontracts), that the award is subject to Executive Order 12549, "Debarment and Suspension" and DoC implementing regulations published at 15 CFR Part 26, Subparts A through E, "Governmentwide Debarment and Suspension (Nonprocurement)." (3) The Recipient must include a statement in all lower tier covered transactions (subawards, contracts, and subcontracts) exceeding $100,000 in Federal funds, that the subaward, contract, or subcontract is subject to Section 319 of Public Law 101-121, which added Section 1352, regarding lobbying restrictions, to Chapter 13 of Title 31 of the United States Code as implemented at 15 CFR Part 28, "New Restrictions on Lobbying." The Recipient must further require the subrecipient, contractor, or subcontractor to submit a completed "Disclosure of Lobbying Activities" (SF-LLL) regarding the use of non-Federal funds for lobbying. The SF-LLL must be submitted within 15 days following the end of the calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed. The SF-LLL must be submitted from tier to tier until received by the Recipient. The Recipient must submit all disclosure forms received, including those that report lobbying activity on its own behalf, to the regional office within 30 days following the end of the calendar quarter. I. MINORITY AND WOMEN-OWNED BUSINESS ENTERPRISE *10110 EDA encourages Recipients to utilize minority and women-owned firms and enterprises 21 in contracts awarded under financial assistance awards. The Minority Business Nise Development Agency will assist Recipients in matching qualified minority and women- owned enterprises with contract opportunities. For further information contact: U.S. Department of Commerce Minority Business Development Agency Herbert C. Hoover Building 14th Street and Constitution Avenue, NW Washington, D.C. 20230 J. SUBAWARD AND/OR CONTRACT TO A FEDERAL AGENCY 1. The Recipient, subrecipient, contractor, and/or subcontractor must not sub-grant or sub-contract any part of the approved project to any agency of the DoC and/or other Federal department, agency or instrumentality, without the prior written approval of EDA. 2. Requests for approval of such action must be submitted to the regional office which will review and make the final determination with the concurrence of legal counsel of ""r"'' • EDA and legal counsel of the other Federal department, agency or instrumentality receiving the subaward and/or contract. The Government will notify the Recipient in writing of the final determination. K. PROPERTY MANAGEMENT 1. Standards The Recipient must comply with the pertinent property management standards as stipulated in the applicable uniform administrative requirements, and 13 CFR Part _ 314. Any inventory listings stipulated under the applicable uniform administrative requirements must be submitted on the "Report of Government Property in Possession of Contractor" (CD-281). The CD-281 must be submitted in duplicate (an original and one copy) to the regional office. 2. Retention of Title a. The Government determines who retains title to all nonexpendable personal property in accordance with 15 CFR Part 24 or 15 CFR Part 14 as applicable. Use, management, and disposition of the property will be in accordance with the applicable rules at 15 CFR Part 24 or 14 and EDA regulations at 13 CFR Part '�' 314. 22 b. Title to real property (whether acquired partly or wholly with Federal funds) will ,ter'' vest with the Recipient subject to the condition that the Recipient uses the real property for the authorized purpose of the project. 3. Disposal of Real Property a. When EDA and the Recipient determine that property acquired or improved in whole or in part with grant assistance is no longer needed for the purpose of the original project, the Recipient must obtain prior approval from the Government for the use of the real property in other Federal grant programs, or programs that have purposes consistent with those authorized for support by EDA. b. When property is no longer required as provided above, the Government determines final disposition and must be compensated by the Recipient for the Federal share of the value-of the property, plus costs and interest, as contained in 13 CFR Part 314.5. 4. EDA's Interest in Award Property a. Recording EDA's Interest in Property: (1) For projects involving the acquisition, construction or improvement of a building, the Recipient expressly agrees to declare and furnish to the Government, prior to initial Award disbursement, a lien, covenant or other statement, satisfactory to EDA in form and substance, of EDA's interest in the property acquired or improved in whole or in part with the funds made available under this Award. The statement must specify in years the estimated useful life of the project and shall include, but not be limited to disposition, encumbrance, and compensation of Federal share. (2) This lien, covenant or other statement of the Government's interest must be perfected and placed of record in the real property records of the jurisdiction in which the property is located, all in accordance with local law. EDA may require an opinion of counsel for the Recipient to substantiate that the document has been properly recorded. (3) Facilities in which EDA investment is only a small part of a large project, as determined by EDA, may be exempted from the requirements of this paragraph a., but the property remains subject to the remaining provisions of section K.4. b. The Recipient acknowledges that the Government retains an undivided equitable 23 reversionary interest in the property acquired or improved in whole or in part with the funds made available through this Award throughout the useful life (as determined by EDA) of the property, except in those instances listed in 13 CFR 314.7(c) . c. The Recipient agrees that in the event it disposes of, or alienates in any manner any interest in, the property during its useful life, without EDA's written approval, the Government will be entitled to recover the Federal share of the value of the property. When during its useful life property is no longer needed for the purpose of the Award, as determined by EDA, EDA may permit its use for other acceptable purposes consistent with those authorized for support by EDA. d. For purposes of any lien or security interest, the amount of the Government's share shall be the full amount of the EDA Award. However, the Federal share to which the Government is entitled (as stated in paragraph c., above) may be more or less than the Award. e. Alienation of Award property includes sale or other conveyance of the Recipient's interest, leasing or mortgaging the property, or granting an option for any of the foregoing. During the useful life of the property, EDA ordinarily will approve the alienation of Award property without requiring recovery of the Federal share of its value only where such alienation is intended in the original Award, except that EDA may approve mortgaging of the property as provided by regulation (13 CFR Part 314). 5. Leasing Restrictions Leasing or renting of the facilities is prohibited unless specifically authorized by EDA. The Recipient agrees that any leasing or renting of the facilities iri olved in this project will be subject to the following: that said lease arrangement is consistent with the authorized general and special purpose of the Award; that said lease arrangement is for adequate consideration; and that said lease arrangement is _ consistent with applicable EDA requirements concerning, but not limited to, - nondiscrimination and environmental compliance. CITY OF RENTON COUNCIL AGENDA BILL AI#: t7iji Submitting Data: EDNSP Depart./Neighborhoods & For Agenda of: Dept/Div/Board.. Strategic Planning Division July 17, 2006 Staff Contact Don Erickson(X-6581) Agenda Status X Consent X Subject: Public Hearing.. Maplewood Addition Annexation—Expanded Correspondence.. Boundaries Ordinance Resolution Old Business Exhibits: New Business Issue Paper Study Sessions Boundary Review Board Closing Letter and Information Proceedings Recommended Action: Approvals: Set public hearing on August 7,2006 Legal Dept Finance Dept Other Fiscal Impact: Expenditure Required... Transfer/Amendment Amount Budgeted Revenue Generated Total Project Budget N/A City Share Total Project SUMMARY OF ACTION: The Council accepted a 60%Direct Petition to annex approximately 60.5 acres of unincorporated land located within the City's PAA in April 2005. The City invoked the Boundary Review Board's jurisdiction so that it could consider expanded boundaries that same month and the Board held hearings on possible expansion options for this annexation on May 4 and May 8, 2006. The Board issued its decision on June 9,2006, authorizing the expansion of this annexation to 340- acres. If the Council accepts the Board's modifications, a minimum of two public hearings thirty- days apart are required on future zoning for this area before it is brought into the City. The entire site is currently designated RLD(Residential Low Density)on the Comprehensive Plan Land Use Map and would be prezoned R-4, consistent with this designation, upon being annexed into the City. STAFF RECOMMENDATION: Set August 7, 2006, for a public hearing to decide whether Council wishes to accept the 340-acre site as expanded by the Boundary Review Board and, if it does, consider future zoning consistent with the City's Comprehensive Plan for the subject area. Rentonnet/agnbill/ bh ��Y O CITY OF RENTON ez E, ECONOMIC DEVELOPMENT ' NEIGHBORHOODS, AND STRATEGIC 4NTO� PLANNING MEMORANDUM DATE: July 7, 2006 TO: Randy Corman, Council President Renton City Councilmembers VIA: Kathy Keolker, Mayor FROM: Alex Pietsch, Administrator Pcv1/40P Economic Development, Neighborhoods and Strategic Planning Department STAFF CONTACT: Don Erickson(x-6581) SUBJECT: Maplewood Addition Annexation Area-Expanded ISSUES: • Whether Council wishes to accept the resolution and hearing decision of the 'ow' Boundary Review Board (BRB) for King County expanding the boundaries of the Maplewood Addition Annexation from 60.5 acres to approximately 346 acres? • Whether Council supports rezoning the non-street portions of the annexation site R- 4 consistent with the Comp Plan Land Use Map RLD (Residential Low Density) designation, with the understanding that staff will pursue Comp Plan text and map amendments this year to better reflect existing uses and zoning in the enlarged area west of the original annexation site? • If the Council decides to accept the recommendation of the BRB, whether it wishes to authorize staff to begin preparing ordinances effectuating the expanded area? BACKGROUND: The Council accepted a 60% Direct Petition to Annex approximately 60.5-acres in April 2005 (Figure 1, Vicinity Map) for this annexation. At that time, the Council authorized the administration to submit a Notice of Intent package to the BRB and invoke the Board's jurisdiction. This was so the Board could hold hearings on the possible expansion of the Maplewood Addition Annexation at the same time it considered the Fairwood Incorporation. Three expansion options were presented by staff to the BRB and they selected the intermediate one that included most of valley floor across from the Maplewood Golf Course and Ron Regis Park on the south side of the Renton — Maple Now, Valley Highway and the unincorporated area on the north side of the highway west of the new 154th Place SE bridge across the Cedar River. Because of aquifer protection, landslide and flood prevention/mitigation, fishery habitat, and highway related land use issues, staff Maplewood Addition Annexation-Expansion 2 07/07/06 argued that control over this area was critical to its well being as a "down river" city. Reservations were also expressed about the ability of a financially marginal new city being able to address these issues. The BRB held a public hearing on the Maplewood Addition Annexation as originally proposed, on March 20, 2006. At a subsequent meeting on March 30, 2006, the Board concluded that there was sufficient evidence in the record to support consideration of Renton's request to expand the Maplewood Addition Annexation and hold a public meeting on it. A public hearing to consider expansion was held on May 4, 2006. Following this public hearing, the Board met on May 8, 2006, and issued its findings and decision. DISCUSSION: The Board, in reaching its decision, made a number of findings including the following: 1) Among these was that Option 2—Valley Floor(Figure 2)best achieved consistency with the provisions of RCW 36.93, pertaining to the purpose and objectives of the Board, RCW 36.70A regarding growth management and planning by cities and counties, and in particular, relevant provisions of both the County's and Renton's Comprehensive Plans. "With annexation of the Maplewood Addition Area (Expansion Option 2,) there would be an opportunity to immediately provide consistent and coordinated development plans, environmental protection standards, and public services throughout the entire Maplewood Addition Area community. " 2) The Board also found that Option 2 would promote a viable community because new citizens would be able to participate in local governance — including land use planning, service planning, fiscal planning and planning for public amenities to serve the community. It also found that expansion was also consistent with King County's Annexation Initiative, which calls for annexation of urban lands to local jurisdictions at the earliest feasible date. The Board also found that: "Annexation of the Maplewood Addition area (Expansion — Option 2) into the City of Renton would effectively address Growth Management Act criteria for incorporation of urban areas." 3) The Board stated that annexation of an expanded area (Option 2) would provide property owners/residents a voice and a vote in planning for the future preservation and development of their community. The Board found that: "Annexation of the entire Maplewood Addition Area would provide for an immediately unified community with clearly defined and well established physical boundaries." "Annexation of Maplewood Addition Area (Option 2 — Valley Floor) to the City of Renton will create and preserve logical, discernible neighborhood boundaries. Citizens would benefit by stronger neighborhood links resulting from annexation and by uniform governance available to the community. " 4) The Board also found that annexation of an expanded area (Option 2) would *id advance the creation and preservation of logical service areas because of similar H:\EDNSP\PAA\Annexations\Maplewood Addition\Effectuation Issue Paper.doc\cor Maplewood Addition Annexation-Expansion 3 07/07/06 types of land uses and levels of density, common physical elements, and critical areas. The City of Renton has existing plans establishing the City as the authority responsible for provision of public services and public amenities that will protect the built community and preserve the natural environment. The City of Renton has specific plans, programs, statutes, and guidelines that will enable the City to immediately provide accessible local government to the Maplewood Addition Area (Option 2). " The BRB concluded that the Maplewood Addition Annexation, as modified to include the expanded Maplewood Addition Area (Option 2), advances the standards established in the Boundary Review Board Act (RCW 36.93), Growth Management Act (RCW 36.70A), the King County Comprehensive Plan, the City of Renton Comprehensive Plan, and other state and local guidelines for annexation of urban areas. They concluded that the modified annexation was timely based upon the City's current and historical commitment to guide development and provide municipal services to the area. MUNICIPAL IMPLICATIONS OF ANNEXATION: Public Services: In order to better understand the impacts of an enlarged annexation, staff re-circulated this annexation. Below is a summary of relevant comments received. • Water Utility: The original 60-5-acre area is within the Maplewood Addition Water Cooperative, which is an independent water purveyor for the existing *raw subdivision. Neither Renton nor the Cedar River Water and Sewer Utility are the designated service provider for this area under the East King County Coordinated Water System Plan. The City has existing water mains along the western edge of the Maplewood Addition subdivision and could provide water service to the area if residents requested the City to do so. The estimated cost to construct the necessary infrastructure improvements to provide water service to the proposed annexation area is about$2.5 million or about$15,000 per lot for the 161-lot subdivision. Water service from the City, however, would have to be approved by the King County Department of Health, the Department of Ecology, and the BRB. The Cedar River Water and Sewer Utility District is the designated water purveyor for the area east of the Maplewood Addition subdivision. • Surface Water: There are areas within the proposed Maplewood Addition and expanded annexation boundaries that lie within the Cedar River Flood Hazard Area, with a portion within the FEMA 100-year floodplain and a larger area within the FEMA 500-year floodplain. Properties within the Maplewood Addition experienced flooding during the 1990 floods and the 1995/1996 floods. Staff notes the Cedar River Basin Plan and the King County Flood Hazard plan identify a significant project to build a set-back levee 1,600 feet long which is estimated to cost$6.5 million in 1996 dollars. A cheaper alternative costing$2.0 to$3.0 million in today's dollars may be available. It was also noted that the proposed annexation is in an area currently served by relatively few storm water systems that generally lacks drainage infrastructure. H:\EDNSP\PAA\Annexations\Maplewood Addition\Effectuation Issue Paper.doc\cor Maplewood Addition Annexation-Expansion 4 07/07/06 • Wastewater: The whole annexation area is currently served by septic. The City is the designated sewer service provider for only the original 60.5-acre portion of the enlarged annexation area. The Cedar River Water and Sewer District is the designated provider for the portion east of the Maplewood Addition subdivision. • Land Use: Amendments will have to be made to Renton's Comprehensive Plan Land Use Map to reflect higher residential densities in some portions of the expanded area as well as commercially zoned properties on the former Aqua Barn site. Also, the City's Shoreline Master Program regulations will have to be updated to include the subject along the Cedar River since this area is currently regulated by the County's Shoreline Master Program. • Parks: There are two park facilities within a half-mile of the annexation area. Maplewood Golf Course is just north of it across SR-169 and Ron Regis Park is a half-mile to the east. The Community Services Department notes a deficiency in developed parks in the area. The prorated one-time cost of developing parks for the estimated 1,330 residents of the expanded annexation is an estimated $382,000. • Fire: The City currently serves approximately half of the annexation area under contract with Fire District No. 25. Fire District No. 40 currently serves approximately half of the expanded annexation area. If Council approves the expanded area, the City will serve the whole area. • Police: The Police Department generally supports annexations such as this but notes that this, like all annexations, will likely increase the number of calls for ,40019 service. The Department estimates one call per person or approximately 1,330 additional calls for service, upon annexation. They note that the accumulative impact of this and other annexations would eventually require additional staff. • Public Works Maintenance: The division has not yet had a chance to estimate the annual cost of maintaining existing and new streets within the proposed enlarged annexation area. • Transportation: Staff note that many of the streets within the annexation area are narrow, lacking curbs, gutters and sidewalks, and do not meet City of Renton's road standards. Currently, WSDOT is conducting a Corridor Study to identify a long-range transportation improvement plan for the SR-169 Corridor which include spot widenings to a one lane widening in each direction between I-405 and SE 196th Avenue SE. With annexation, the City will assume ownership of four traffic signals whose maintenance is estimated to be $14,000 per year. Fiscal Analysis: Staff has conducted a fiscal analysis (see attached worksheet) for the proposed expanded annexation area. This analysis assumes that there 598 dwelling units in the area with an estimated population of 1,330 people. The average assessed value for the 340-acre annexation area is $145,282,900. The net estimated annual fiscal cost to the City from the -1410 existing area is $45,149 in today's dollars. H:\EDNSP\PAA\Annexations\Maplewood Addition\Effectuation Issue Paper.doc\cor Maplewood Addition Annexation-Expansion 5 07/07/06 Zoning: Now Pursuant to RCW 35A.14.340, future City zoning must be consistent with the City's Comprehensive Plan, and at least two public hearings thirty or more days apart must be held prior to its adoption. Renton's Comp Plan Land Use Map designates all but a small portion of the expanded annexation area Residential Low Density that most likely would be zoned R-4, four units per net acre, concurrent with annexation. A small portion designated Residential Single Family would likely be zoned R-8, eight units per net acre. This latter area is shown as being owned by King County and has severe slopes on it. As a consequence, it is likely to be rezoned to a lower zoning classification, such as R-4 or R-1, in the future. Because current King County zoning in the expanded area includes R-8, R- 12, and Neighborhood Business, Renton will need to amend its Comprehensive Plan in the near future to better reflect existing land uses. FINDINGS: The expanded annexation is essentially consistent with City policies related to annexation as well as BRB objectives and criteria for annexations. No impediments to the provision of City services to the area have been identified. The City already provides fire service through Fire District No. 25 to at least half of the expanded annexation area and has City facilities including the Maplewood Golf Course and Ron Regis Park immediately across the highway to the north. Water service will continue to be provided to the original 60.5- acre portion of the expanded area by the Maplewood Addition Water Cooperative, and the Cedar River Water and Sewer District is the designated water purveyor for the rest of the area to the east. If residents of the Water Cooperative decide in the future to hook up to soow City water, the City has the necessary infrastructure next door in the Maplewood Garden subdivision to serve this area. The BRB found Renton's arguments about the need to control flooding, land slides, land uses, and protection of its sole source aquifer to be compelling in this case and believed that the City would be in a better position to address these issues than a possible new city with limited resources and experience in these areas. Although there potentially large costs to the City, particularly in the area of flood control and storm drainage, these costs will benefit the rest of the City downstream as well as residents within the annexation area. Controlling land uses across from its substantial investment in the Maplewood Golf Course and Ron Regis Park also is in the City's best interest. Because of differences in Comp Plan land use designations between the County and the City, and subsequent zoning designations, which must be consistent with these designations, Renton's Comp Plan will need to be amended in the future to reflect existing land uses and development patterns on the Valley floor. CONCLUSION: The expanded Maplewood Addition Annexation has been determined by the BRB to be consistent with relevant BRB Objectives, the Growth Management Act, the County and City's Comprehensive Plans, and the City's Business Plan. It would therefore appear to be in the City's interest to proceed with this expanded annexation of unincorporated territory within Renton's designated Potential Annexation Area. H:\EDNSP\PAA\Annexations\Maplewood Addition\Efectuation Issue Paper.doc\cor Maplewood Addition Annexation-Expansion 6 07/07/06 RECOMMENDATION: Support the Maplewood Addition Annexation as modified by the BRB for King County, which expanded it from its original 60.5-acres to approximately 346-acres, and support future zoning consistent with Renton's Comprehensive Plan Land Use with the understanding that future text and map amendments may be necessary to reflect current land uses or those designated on the County's Comprehensive Plan. If Council approves this recommendation, the Administration is requesting that it be directed to prepare the necessary ordinances for annexation effectuation and subsequent City zoning. Attachments cc: Jay Covington Alex Pietsch Rebecca Lind Don Erickson H:\EDNSP\PAA\Annexations\Maplewood Addition\Effectuation Issue Paper.doc\cor C iiii, %514;:'7?:1›1 '7?:1›130,1,'-41-1;,71shRIVER l0:7i1>ir#*0`i' :," ,..,,e'A')'"4---,,4,,::'7h.:A.rrc.N:.,:- I ► , \ o iii it r loi ION IC" 01 AV , -.4 • % t " ��4-)' 'firi17:44 ." A #. 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Zoning I,,...1 R-A5 -- City Limits I 1 R-1 p Economic Development,Neighborhoods&Strategic Planning -- --- Urban Growth I I R-4 1 . 18 000 ♦I ♦ Alex Pictsch,Administrator r�_ , , G.Del Rosario Boundary I I R-12 16 June 2006 79 Neighborhood Business 4111 Washington State Boundary Review Board For King County Yesler Building, Room 402, 400 Yesler Way, Seattle, WA 98104 Phone: (206)296-6800 • Fax: (206)296-6803 • http://www.metrokc.gov/annexatioas June 9, 2996 City of Renton Attn: Don Erickson, AICP Senior Planner 1055 South Grady Way Renton, WA 98055 RE: CLOSING LETTER FOR RESOLUTION AND HEARING DECISION File No. 2197 - City of Renton - Maplewood Addition Annexation Dear Mr. Erickson: We are writing to advise you that the Washington State Boundary Review Board for King County has now completed the Resolution and Hearing Decision, as specified in RCW 36.93, to Now approve the above referenced proposed action filed with the Board effective: April 21, 2005. The Resolution and Hearing Decision for this action is enclosed for filing as prescribed by RCW 36.93.160(4). An appeal period to Superior Court has been established, as mandated by RCW 36.93.160. The appeal period to Superior Court will close on July 9, 2006. In order to finalize the proposed action, the applicant must address the following requirements, where applicable: 1. Compliance with the statutory requirements and procedures specified in the Notice of Intention; 2. Sewer and Water district actions and some other actions are also subject to approval by the Metropolitan King County Council. If the Council makes changes to the proposal, the Board may then be required to hold a public hearing. 3. Filing with King County of franchise application(s), as required, accompanied by a copy of this letter. 4. Filing with King County of permit application(s), as required, accompanied by a copy of this letter. PROCEEDINGS OF THE WASHINGTON STATE BOUNDARY REVIEW BOARD °r"' FOR KING COUNTY RESOLUTION AND HEARING DECISION IN RE: CITY OF RENTON FILE NO.2197 MAPLEWOOD ADDITION Proposed Annexation King County, Washington I. PUBLIC HEARING OVERVIEW On April 21, 2005, the City of Renton submitted to the Washington State Boundary Review Board a Notice of Intention (File No. 2197) to annex 60.5 acres based upon a "property owner" petition under RCW 35A.14. Renton's City Council adopted the petition for annexation in April, 2006 The City of Renton described the original proposal for the Maplewood Addition Area as follows: • The northern boundary is generally formed by Maple Valley Highway (SR 169) and the Maplewood Golf Course. • The southern and eastern boundaries are generally formed by the Cedar River. • The western boundary is formed by the corporate boundaries of the City of Renton (generally west of 130th Avenue SE.) On April 21, 2005, the City of Renton invoked the Board's jurisdiction pursuant to RCW 36.93.100. At that time Renton officials requested that the Board, pursuant to RCW 36.93.150, expand the proposed Maplewood Addition Annexation. As permitted under RCW 36.93.116, the City requested that the Board simultaneously review the proposed Maplewood Addition Annexation with its review of the proposed incorporation of a new City of Fairwood (File No. 2194). On March 8, 2006, the City of Renton proposed three specific options for modification of the Maplewood Addition Area: • Option 1 —"Renton School District": Under Option 1 the proposed Maplewood Addition Area(Expansion)would total 665 acres described as follows: - The northern boundary is generally formed by Renton-Maple Valley Road(except that the boundary extends to the north to include acreage immediately east of Ron Regis Park/149th Avenue SE). - The southern boundary generally follows the Cedar River and connects to SE 161 Street(if extended) - The western boundary is formed by the corporate boundaries of the City of Renton (generally west of 130th Avenue SE) - The eastern boundary is generally formed by 164th Avenue SE(if extended). ■ Option 2—"Valley Floor": Under Option 2 the proposed Maplewood Addition Area(Expansion)would total 346 acres described as follows: - The northern boundary is generally formed by Renton-Maple Valley Road except that the boundary extends to the north to include acreage immediately east of Ron Regis Park/149 Avenue SE). - The southern boundary is serpentine,with the line generally following the Cedar River to SE 151st Street(if extended)to SE 154th Street(if extended). A portion of the southern boundary, generally located east of 140th Way SE and west of 154th Avenue SE,follows SE 161st Street(if extended). - The western boundary is formed by the corporate boundaries of the City of Renton (generally west of 130th Avenue SE.) - The eastern boundary is generally formed by 164th Avenue SE(if extended). 1 • Option 3 — "Aquifer Protection Area": Under Option 3 the proposed Maplewood Addition Area (Expansion) would total 102 acres described as follows: - The northern boundary is generally formed by Renton-Maple Valley Road and 140th Way SE. - The southern boundary is serpentine,with the line generally following the Cedar River to SE 155th Place(if extended). - The western boundary is formed by the corporate boundaries of the City of Renton(generally west of 130th Avenue SE.) - The eastern boundary is generally formed by 138`h Place SE(if extended). City of Renton based their request for review of the Maplewood Addition Annexation (Expansion) upon the following: • The City of Renton Comprehensive Plan/Potential Annexation Area provides for the annexation of the entire Maplewood Addition Area(Expansion). • The State Growth Management Act and the King County Comprehensive Plan support the annexation of the entire Maplewood Addition Area (Expansion) into the City of Renton. • The City of Renton has existing plans, programs, and regulations that will provide for the Maplewood Addition (Expansion) Area levels of development, public services, and public amenities necessary to govern the community and address the natural environment. • An action to permit the entire Maplewood Addition Area (Expansion) to join Renton at this time would enable uniform local governance and coordinated services under the aegis of a single local jurisdiction. The Board conducted a public hearing on March 20, 2006 to review the original proposal by the City of Renton to annex the Maplewood Addition Area(60.5 acres). On March 30, 2006, the Boundary Review Board found sufficient evidence in the record to support the conclusion that the original proposal as submitted is inconsistent with one or more of the statutory objectives its decisions must advance (e.g., 36.93 RCW, 36.70A RCW). The Board voted to conduct a Modification Public Hearing to consider Renton's proposal for annexation of the Maplewood Addition Area (Expansion) including Option 1, Option 2 and Option 3 The public hearing to review the proposed Maplewood Addition Area (Expansion) was considered to be consistent with the opinion of Robert Kaufman, Special Assistant Attorney General, that the Boundary Review Board's jurisdiction was duly invoked in the matter of File No. 2197. Therefore, the Boundary Review Board is permitted by statute (Chapter 36.93 RCW) to consider the City of Renton's request to expand the Maplewood Annexation. Following proper legal notice, a Modification Public Hearing was held on May 4, 2006 before a quorum of the Boundary Review Board. Thereafter, a Special Meeting was held on May 8, 2006 for the Board to deliberate and make a preliminary decision in the matter of File No. 2197. The Board is responsible, under State of Washington law, to: (1) examine the record (e.g., application materials; technical studies; fiscal studies; regulatory analyses; other documents, exhibits, statements and testimony); (2) determine the specific policies and guidelines are applicable to the proposed action; (3) review and balance these elements; and (4)take the action that best advances those elements. As prescribed by the state law, the Board reviewed File No. 2197 in accord with RCW 36.93. (Local Governments— Boundaries—Review Boards). The Board directed particular attention to RCW 36.93.170 (Factors)and RCW 36.93.180 (Objectives). The Board also considered RCW 36.93.150, the authority for modification of annexation proposals. The Board also considered RCW 36.70.A, the Growth Management Act, the King County Comprehensive Plan, the City of Renton Comprehensive Plan, together with other applicable state, regional, and local regulations and guidelines. NNWII 2 On the basis of the testimony, evidence and exhibits presented at said hearing, and the matters on record in said File No. 2197 it is the decision of the Board that the action proposed in said Notice of Intention be, and the same is, hereby approved with modifications to include the Maplewood Addition Area (Expansion - Option 2) of approximately 346 acres. The legal description of the Maplewood Addition Area (Expansion - Option 2)as approved with modifications, is attached hereto and marked as "Exhibit I", together with a map showing the boundaries of the area herein marked as"Exhibit II." 11. FINDINGS The Board finds that State Law (Chapters 36.93 RCW, RCW 36.70A, RCW 35A.14, et seq.); the King County Comprehensive Plan/Countywide Policies; the Renton Comprehensive Plan and its enabling regulations (e.g., zoning code)are applicable to consideration of: • The City of Renton original Notice of Intention for the Maplewood Area(60.5 acres); • The City of Renton proposal for the Maplewood Addition Area(Expansion—Option 1,Option 2, and Option 3) The Boundary Review Board finds that the record for File No. 2197 provides documentation (e.g., governance plans and policies; analysis of service capacity; fiscal studies), evidence of community notification, and certification of petitions and/or legislative action. The findings provided in this record are sufficient to support review of: • The City of Renton original Notice of Intention for the Maplewood Area(60.5 acres); • The City of Renton proposal for the Maplewood Addition Area(Expansion—Option 2(346 acres) • The City of Renton proposal for the Maplewood Addition Area(Expansion—Option 3(102 acres) The Board finds insufficient evidence in the record to support the City of Renton's proposal for the Maplewood Addition Area(Expansion—Option 1 (665 acres), The Board therefore finds that any modification of the annexation shall be limited to the original Maplewood Addition Area, and to Maplewood Addition Area (Expansion - Option 2), and to Maplewood Addition Area (Expansion -Option 3). Name Based upon a review of the entire record (including written documentation and public testimony) that the City of Renton Maplewood Addition Area (Expansion — Option 2) to best achieve consistency with the provisions of 36.93, RCW, 36.70A RCW, the King County Comprehensive Plan, and the City of Renton Comprehensive Plan. Option 2 encompasses 346 acres. Within the boundaries established for Maplewood Addition Area Option 2 are included the original Maplewood Addition Area (60.5 acres) and the Maplewood Addition Area (Expansion—Option 3) (102 acres). Following is a presentation of key legal authorities on which the Board based the review and preliminary decision for proposed annexation to the City of Renton of the Maplewood Addition Area /Maplewood Addition Area (Expansion). RCW 36.93.170 FACTORS AFFECTING THIS PROPOSAL The Boundary Review Board finds the following Factors (RCW 36.93.170)applicable to the proposed City of Renton Maplewood Addition Area/Maplewood Addition Area (Expansion). Additional authorities applicable to the Maplewood Addition Area/Maplewood Addition Area (Expansion) include, but are not limited to: RCW 36.70A, RCW 35.13, King County Comprehensive Plan/Countywide Policies, the City of Renton Comprehensive Plan and its enabling regulations (e.g., zoning code). These State and local authorities are intended to ensure reasonable development regulations and adequate public services to local communities. A brief review of key issues related to each applicable element is presented below: RCW 36.93.170(1)POPULATION AND TERRITORY The Board finds the following factors to be applicable: Population Density; Proximity to Other Populated Areas; Land Area/Land Uses; Comprehensive Land Use Plans; Topography, Natural Boundaries and Nair 3 Drainage Basins; Likelihood of Significant Growth in the Area During the Next Ten Years; and Population Density/Proximity to Other Populated Areas/Land Area/Land Uses. The entire Maplewood Addition Area/Maplewood Addition Area (Expansion) lies within the Urban Growth Area delineated by King County. The State Growth Management Act and the King County Comprehensive Plan provides for transfer of lands in the Urban Growth Area to a local jurisdiction. County Comprehensive Plan/Countywide Policies call for contiguous orderly growth of local jurisdictions (e.g., U-304, U-208, U-301, U-304.). Policies also establish cities as the appropriate providers of local governance and urban services (e.g., FW-13, CO-1, CO-3; LU-31 - LU-34, LU-36). King County Policy LU-31 requires cities to designate potential annexation areas to include adjacent urban lands and to eliminate unincorporated islands between cities. Policy LU- 32 calls upon cities to incorporate lands within annexation areas into city boundaries. Further, the Maplewood Addition Area/Maplewood Addition Area (Expansion) is included in the "Annexation Element" of the City of Renton Comprehensive Plan and is located within the Renton Potential Annexation Area. The proposed action is based upon Renton Comprehensive Plan policies addressing annexation, including those provisions which call for inclusion of urban areas within the City for local governance and pertaining to encouraging annexations in areas where urban infrastructure and services are available for development at urban densities and in areas contiguous to City boundaries (e.g., Land Use Policies LU-1; LU-36; LU-37; LU-41 and LU-42). The evidence shows that annexation of the Maplewood Addition Area (Expansion-Option 2) is consistent with the provisions of RCW 36.93.170 (1) as this territory is unified —and linked to the City of Renton — with respect to: ■ Physical Elements: The Maplewood Addition Area (Expansion — Option 2) is characterized by numerous environmentally sensitive areas. Maplewood Addition Area (Expansion — Option 2) is located on a valley floor. The valley is separated from the greater proposed City of Fairwood by a steep ridge; the ridge has been classified by the U.S. Geological Service as a landslide hazard area. The valley is in a floodplain that is created by the Cedar River which traverses much of the Maplewood Addition Area (Expansion — Option 2). A sole source aquifer underlies the Maplewood Addition Area(Expansion—Option 2. ■ Social Elements: Maplewood Addition Area (Expansion — Option 2) is an urban community that is characterized by a relatively uniform population density. The community is proximate to other populated areas. Land development (e.g., residential uses, commercial uses, public spaces) are similar throughout the local community and similar to land uses within the adjacent City of Renton. The City of Renton recognizes that the Maplewood Addition Area (Expansion — Option 2) is substantially developed with residential uses and limited commercial uses. The City also recognizes that there is land that is suitable for redevelopment or new development with residential uses and/or commercial uses. There is also opportunity for enhancement of public facilities. Thus, the City planned for growth at urban levels of density in the Maplewood Addition Area (Expansion— Option 2). City plans establish standards to guide ongoing uses in this Area following annexation. Future residential development would reportedly be generally similar to and compatible with existing housing in terms of zoning, levels of density (equal to or less than currently permitted density), and design requirements. The City also recognized and planned for the management of Maplewood Addition Area (Expansion — Option 2) critical areas (e.g., Cedar River, valley floor, sloped terrain, floodplain, and sole source aquifer). Renton has in place an approved Comprehensive Plan, Zoning Regulations, and a Critical Areas Ordinance that includes provisions to manage these lands for protection of built areas and preservation of environmentally sensitive areas. These regulatory controls include (but are not limited to) land use development/density standards, public services programs (e.g., water service, sewer service, storm water management) and standards for maintenance of open space/vegetated areas. 4 With annexation of the Maplewood Addition Area (Expansion—Option 2) there would be an opportunity to immediately provide consistent and coordinated development plans, environmental protection standards, �,.,. and public services throughout the entire Maplewood Addition Area(Expansion—Option 2)community. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would, likewise, be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. RCW 36.93.170(2)MUNICIPAL SERVICES The Board considered the following factors to be applicable: need for municipal services; effects of ordinances, governmental codes, regulations and resolutions on existing uses; present cost and adequacy of governmental services and controls in area; probable future need for such services; costs; effect on the finance, debt structure and contractual obligations; and prospects of government services from other sources, and rights of other affected governmental units. Following is a brief review of key issues related to these factors. The Maplewood Addition Area (Expansion — Option 2) now requires or will soon require a range of municipal services and facilities. Service policies are established by the State Growth Management Act and the King County Comprehensive Plan. For example, King County Policy FW-13 states that cities are the appropriate provider of local urban services to Urban Areas. Policies FW-29 and FW-30 address the need for jurisdictions to plan for and coordinate services. Additionally, annexation is appropriate under Countywide Policy CO-1, when a jurisdiction has "identified and planned for (a) full range of urban services". Pursuant to the State Growth Management Act and the King County Plan, the City of Renton has developed policies — through the City's Comprehensive Land Use Plan, Comprehensive Service Plans, and other regulatory authorities — for serving all properties within its corporate boundaries. Upon annexation of Maplewood Addition Area (Expansion — Option 2), the City of Renton would immediately love include the newly incorporated area in the municipality's Service Area. Then, as is customary, the City can provide—either directly or by contract—a full array of specific service plans and programs for public services including: water service, surface water management, sewer service, fire service, police service, emergency medical services, utilities, road maintenance, law and justice services, human services, libraries, and parks and recreation services. These services can be provided in response to citizen requests for new services or to supplant failing systems. The School Districts would be unaffected by any of the proposed changes to municipal boundaries. The City of Renton has conducted fiscal studies related to the proposed Maplewood Addition Area/Maplewood Addition Area (Expansion). Revenues and expenditures are measured related to state funds, local property assessments, and costs for service incurred by the City. The City of Renton expends approximately $3000 per citizen each year to provide government services. Costs are generally based upon an averaged estimate of per capita use(e.g., police, parks, sewers). For Maplewood Addition Area (Expansion — Option 2), the City estimates expenditures at $720,025. Revenues are estimated at $674,876. Thus, the City would incur a cost of approximately $45,149 for service to the Maplewood Addition Area (Expansion—Option 2). The City of Renton's resource base is sufficient to sustain levels of service to the entire City (including Maplewood Addition Area [Expansion- Option 2]). Further the City can continue, over time, to provide these services at reasonable customer rates, based upon the funds realized from assumption by property owners of their share of the City's regular and special levy rates for capital facilities and public services. Future capital needs and costs will be examined and funded through Renton's Capital Investment Program. Allow 5 Additionally, Berk & Associates conducted a Fiscal Feasibility Analysis to estimate the fiscal impacts of removal of the Maplewood Addition Area from the proposed City of Fairwood. This Analysis determined that the new City of Fairwood would lose revenue in the event that the Maplewood Addition Area (Expansion —Options 1-3) is removed from the boundaries of the proposed jurisdiction. The annexation of the Maplewood Addition Area (Expansion —Option 2) to the City of Renton is estimated to result in an approximate loss of revenue of approximately $450,000 to the City of Fairwood. Berk & Associates estimates that, as a consequence of this loss of revenue, the City of Fairwood would have an available surplus of approximately $250,000. As a consequence annexation of the Maplewood Addition Area (Expansion - Option 2) to the City of Renton would result in only a modest impact to the funding base of the proposed City of Fairwood. The King County Comprehensive Plan/Countywide Planning Policies permit — and encourage — annexation of the Maplewood Addition Area (Expansion—Option 2). A consolidated annexation provides for a more logical municipal service area. The City can provide cohesive policies, standards, coordinated programs and operations to the Maplewood Addition Area (Expansion—Option 2). Coordinated services are more efficient and less costly to both government and citizens. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres) into the City of Renton is also inconsistent with this criterion. RCW 36.93.170(3) EFFECTS OF PROPOSAL The Board considered the following factors to be applicable: mutual economic and social interests, and local government structure. Below is a brief review of key issues. The record for File No. 2197 supports annexation of the Maplewood Addition Area (Expansion — Option 2). The Maplewood Addition Area (Expansion — Option 2) is contiguous to — and shares mutual social and economic profiles with—the City of Renton. Annexation of the Maplewood Addition Area (Expansion — Option 2) would promote a viable community NIS because new citizens would be able to participate in local governance — including land use planning, service planning, fiscal planning and planning for public amenities to serve the community. Coordinated integration of citizens of the Maplewood Addition Area (Expansion — Option 2) into Renton would preserve social organization, support economic health, and protect public safety and welfare. Annexation of the Maplewood Addition Area (Expansion — Option 2) is also consistent with the King County Annexation Initiative, which calls for annexation of urban lands to local jurisdictions at the earliest feasible date. City officials testified that Renton is prepared to govern and to provide full services to this community. Immediate annexation of the Maplewood Addition Area (Expansion—Option 2)) better promotes balanced governance than incremental annexation or incorporation into an existing or new jurisdiction. Annexation of the Maplewood Addition Area (Expansion — Option 2) into the City of Renton promotes strong and unified local government. Annexation of the Maplewood Addition Area (Expansion) would promote a viable community because new citizens would be able to participate in local governance— including land use planning, service planning, fiscal planning and planning for public amenities to serve the community. Coordinated integration of citizens of the Maplewood Addition Area (Expansion) into Renton would preserve social organization, support economic health, and protect public safety and welfare. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. Finally, annexation of the Maplewood Addition Area (Expansion—Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. 6 CONSISTENCY WITH THE GROWTH MANAGEMENT ACT Pursuant to RCW 36.93.157 that Boundary Review Board decisions must be consistent with three sections of the Growth Management Act: • RCW 36.70A.020 Planning Goals • RCW 36.70A.110 Urban Growth Areas • RCW 36.70A.210 Countywide Planning Policies In this matter, the key Growth Management issues involve the Countywide Planning Policies pertaining to land use and municipal services (RCW 36.70A.020 and RCW 36.70A.110). The Growth Management Act policies that guide the provision of public services and that are relevant to the proposed Annexation include: • RCW 36.70A.020 (1) Urban Growth: Encourages development in urban areas where adequate public facilities and services exist or can be provided efficiently. • RCW 36.70A.020 (2) Reduce Sprawl: Reduce inappropriate conversion of undeveloped land into sprawling low- density development. • RCW 36.70A.020(10)Environment:Protect and enhance the environment and quality of life. • RCW 36.70A.020 (11) Citizen Participation and coordination in the planning process and ensure coordination between communities/jurisdictions to reconcile conflicts. • RCW 36.70A.020 (12) Public Facilities and services: Ensures that adequate public services and facilities are available to serve land developments. • RCW 36.70A.110(1/6)calls for each county to designate an urban growth area. • RCW 36.70A.110(3)directs urban growth to areas with existing or available public services and facilities. • RCW 36.70A.110(4)states that"(in)general, cities are the units of local government most appropriate to provide urban ...services." • RCW 36.70A.210(1)calls for cities to be primary providers of governmental services in urban growth areas. Annexation of the Maplewood Addition Area (Expansion — Option 2) into the City of Renton would effectively address Growth Management Act criteria for incorporation of urban areas. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. Finally, annexation of the Maplewood Addition Area (Expansion—Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. RCW 36.93.180 OBJECTIVES The Boundary Review Board has considered RCW 36.93.180(Objectives), as follows: RCW 36.93.180(1)PRESERVATION OF NATURAL NEIGHBORHOODS AND COMMUNITIES The Maplewood Addition Area (Expansion—Option 2) is a neighborhood, as that term is defined by case law as "either geographically distinct areas or socially... distinct groups of residents". The Maplewood Addition Area (Expansion — Option 2), in its entirety, exhibits many features that support its link with the City of Renton. The Maplewood Addition Area (Expansion — Option 2) is connected to the City of Renton by geographic features including the form of the terrain (a valley floor formed by a steep ridge), the Cedar River, a floodplain, a sole source aquifer, and linked open spaces. Maplewood Addition Area (Expansion — Option 2) and the adjacent City of Renton community are primarily residential in character. The citizens have similar demographic characteristics. Residents of the City and the Maplewood Addition Area (Expansion — Option 2) use common community facilities — schools, roadways, libraries, shopping centers, parks, and recreation facilities. 4400, 7 The City of Renton Comprehensive Plan anticipates annexation of the Maplewood Addition Area (Expansion — Option 2). The City of Renton establishes Maplewood Addition Area (Expansion — Option 2) in its Comprehensive Plan as a Potential Annexation Area. Accordingly, the City of Renton is the NIS jurisdiction designated to govern Maplewood Addition Area(Expansion—Option 2). The City included the Maplewood Addition Area (Expansion —Option 2) in community planning programs in order to guide its growth and to provide coordinated services. The City of Renton has existing plans, programs, statutes, and guidelines that will provide for the Maplewood Addition (Expansion) Area appropriate levels of development, public services, and public amenities that will serve the citizens and address the natural environment. The City of Renton also has in place plans, programs, statutes and guidelines that will provide for both routine administration and emergency management necessary to preserve environmentally sensitive areas within and near to the Maplewood Addition Area (Expansion—Option 2). The evidence shows that upon annexation of the Maplewood Addition Area (Expansion — Option 2) the City of Renton would provide property owners/residents a voice and a vote in planning for the future preservation and development of their community. Community representatives demonstrate plans to effectively govern and serve this area as a part of a unified community. Annexation of the Maplewood Addition Area (Expansion — Option 2) to the City of Renton advances the objective of preserving the natural neighborhood because this action would encourage a more effective connection to the City of Renton. The evidence shows that the State Growth Management policies (RCW 36.70A.020) support the annexation of the Maplewood Addition Area(Expansion—Option 2)to the City of Renton. King County Comprehensive Plan/Countywide Planning Policies support the annexation of the Maplewood Addition Area (Expansion — Option 2) to the City of Renton. For example, County Comprehensive Plan/Countywide Policies call for contiguous orderly growth of local jurisdictions (e.g., U- 304, U-208, U-301, U-304.). King County Policy LU-31 requires cities to designate potential annexation areas to include adjacent urban lands and to eliminate unincorporated islands between cities. Policy LU- 32 calls upon cities to incorporate lands within annexation areas into city boundaries. Additionally, annexation is appropriate under Countywide Policy CO-1, when a jurisdiction has "identified and planned for(a)full range of urban services". . The Board finds that the evidence shows that annexation of the Maplewood Addition Area (Expansion — Option 2)advances RCW 38.93.180-Objective 1. The Board finds that annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion —Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion—Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. RCW 36.93.180 (2) USE OF PHYSICAL BOUNDARIES, INCLUDING BUT NOT LIMITED TO BODIES OF WATER, HIGHWAYS,AND LAND CONTOURS Based upon its physical boundaries, the Maplewood Addition Area (Expansion — Option 2) is appropriate for annexation to the City of Renton. The evidence shows that addition to the City of Renton of the Maplewood Addition Area (Expansion — Option 2) is based upon reasonable physical boundaries, including co-terminus borders, rights-of way, and individual property lines. Annexation of the entire Maplewood Addition Area (Expansion) furthers progress toward incorporation of the greater unincorporated area in King County. This comprehensive annexation would provide for an immediately unified community with clearly defined and well-established physical boundaries. Nikod 8 State Growth Management policies (RCW 36.70A.020) support the annexation of the Maplewood Addition Area (Expansion—Option 2)to the City of Renton. The evidence further shows that King County owe Comprehensive Plan/Countywide Planning Policies support the annexation of the Maplewood Addition Area (Expansion — Option 2) to the City of Renton. For example, County Comprehensive Plan/Countywide Policies call for contiguous orderly growth of local jurisdictions (e.g., U-304, U-208, U- 301, U-304.). King County Policy LU-31 requires cities to designate potential annexation areas to include adjacent urban lands and to eliminate unincorporated islands between cities. Policy LU-32 calls upon cities to incorporate lands within annexation areas into city boundaries. The City of Renton established Maplewood Addition Area (Expansion — Option 2) in its Comprehensive Plan as a Potential Annexation Area; therefore, the City of Renton is the jurisdiction designated to govern Maplewood Addition Area (Expansion—Option 2). Annexation of Maplewood Addition Area (Expansion — Option 2) to the City of Renton will create and preserve logical, discernible neighborhood boundaries. Citizens would benefit by stronger neighborhood links resulting from annexation and by uniform governance available to the community. The Board finds that the evidence shows that annexation of the Maplewood Addition Area (Expansion— Option 2)is consistent with RCW 38.93.180-Objective 2. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. RCW 36.93.180(3)CREATION AND PRESERVATION OF LOGICAL SERVICE AREAS Annexation of Maplewood Addition Area (Expansion —Option 2) into the City of Renton will advance the creation and preservation of logical service areas. The evidence shows that the Maplewood Addition Area (Expansion—Option 2) is linked to the City of Renton by the built environment—i.e., similar types of land uses and levels of density, by common physical elements (e.g., roadways); and by critical areas me (e.g., Cedar River, topographic features—valley floor and sloped terrain;floodplain;sole source aquifer). Annexation of the Maplewood Addition Area (Expansion — Option 2) will create and preserve logical service areas by including a greater number of properties in the City of Renton's service area thereby enabling the design and the implementation of efficient, consistent, consolidated service programs throughout the greater community. The City of Renton has existing plans establishing the City as the authority responsible for provision of public services and public amenities that will protect the built community and preserve the natural environment. These plans include, but are not limited to the: Comprehensive Land Use Plan, Comprehensive Sewer Plan, Comprehensive Water Plans, Transportation Element of the Comprehensive Plan, Comprehensive Storm Water Management Plan). The City also has specific plans and contracts for provision of emergency services, including fire prevention, policing, medical aid, as well as an array of public facilities and amenities. More precisely, • The City of Renton has specific plans, programs, statutes and guidelines that will enable the City to immediately provide accessible local government to the Maplewood Addition Area (Expansion — Option 2). • The City of Renton has specific plans, programs, statutes and guidelines that allow the City to immediately provide a full array of services to the Maplewood Addition Area (Expansion — Option 2). Services include fire prevention, policing, medical aid, storm water management, and utilities. Water service and sewer service are also available to all properties. The City also provides law and justice services, housing services, and human services programs. Services also include parks and recreation facilities, libraries, and other public amenities, Now 9 • The City of Renton has specific plans, programs, statutes and guidelines that will provide for both routine administration and emergency management (e.g., land maintenance, storm water management, flood control) necessary to preserve environmentally sensitive areas within and near to 411801 the Maplewood Addition (Expansion—Option 2). The State Growth Management Act and the King County Comprehensive Plan support the annexation of Maplewood Addition Area (Expansion — Option 2) into the City of Renton. The evidence shows that annexation of Maplewood Addition Area (Expansion — Option 2) is consistent with State policies (RCW 36.70A) and County policies that provide for transfer of lands in the Urban Growth Area to an established local jurisdiction in order to ensure that citizens benefit from reliable governance and service. King County Policy LU-31 requires cities to designate potential annexation areas that include adjacent urban lands and eliminate unincorporated islands between cities. The City of Renton established Maplewood Addition Area (Expansion — Option 2) in its Comprehensive Plan as a Potential Annexation Area; therefore, the City of Renton is the jurisdiction designated to govern Maplewood Addition Area (Expansion—Option 2). Annexation of the Maplewood Addition Area (Expansion — Option 2) to the City of Renton addresses County Comprehensive Plan/Countywide Policies that call for contiguous orderly growth of local jurisdictions(e.g., U-304, U-208, U-301, U-304.). Policies that establish cities as the appropriate providers of local governance and urban services (e.g., FW-13, CO-1, CO-3; LU-31 - LU-34, LU-36) also support the proposed Maplewood Addition Area (Expansion — Option 2). The County supports annexation of urban areas, such as the Maplewood Addition Area, as King County does not have the resources to efficiently manage and serve unincorporated islands. Annexation of the Maplewood Addition Area (Expansion—Option 2) to the City of Renton would create a logical local governance plan for the greater community. Under the aegis of the City of Renton, a single established local jurisdiction, citizens would receive the benefits resulting from coordinated, efficient, and reliable land development, public service programs and public facilities. Citizens will benefit from the City of Renton's regulation and preservation of the environmentally sensitive areas that exist within the Maplewood Addition Area(Expansion—Option 2)and link to the City of Renton. The Board finds that the evidence shows that annexation of the Maplewood Addition Area (Expansion — Option 2)advances RCW 38.93.180-Objective 3. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. The evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres)into the City of Renton would be inconsistent with this criterion. RCW 36.93.180(4)PREVENTION OF ABNORMALLY IRREGULAR BOUNDARIES Approval of Maplewood Addition Area (Expansion — Option 2) would provide a reasonable and regular boundary consistent with the Renton Comprehensive Plan Annexation Element/Potential Annexation Area mapping of the Maplewood Addition Area community. The Maplewood Addition Area (Expansion —Option 2) has logical physical boundaries. The Maplewood Addition Area (Expansion— Option 2)is similar to --and linked with —the built community in the adjacent City of Renton, The Maplewood Addition Area (Expansion—Option 2) is characterized by environmentally sensitive areas extending to (and having an effect upon) the City of Renton. These environmentally sensitive areas have a lesser geographic connection to (and lesser impact upon) the remaining City of Renton Potential Annexation Area -- e.g., Maplewood Addition Area (Expansion — Option 1), Fairwood community. The evidence shows that annexation of the Maplewood Addition Area (Expansion—Option 2) into the City of Renton would also advance the State Growth Management Act and the King County Comprehensive Plan policies. Annexation of Maplewood Addition Area (Expansion—Option 2) is consistent with State 10 • policies (RCW 36.70A) providing for transfer of lands in the Urban Growth Area to an established local jurisdiction in order to ensure that citizens benefit from reliable governance and service. County Nor.r Comprehensive Plan/Countywide Policies that call for contiguous orderly growth of local jurisdictions (e.g., U-304, U-208, U-301, U-304.). King County Policy LU-31 requires cities to designate potential annexation areas to include adjacent urban lands and to eliminate unincorporated islands between cities. The City of Renton identifies Maplewood Addition Area (Expansion—Option 2) in its Comprehensive Plan as a Potential Annexation Area; therefore, the City of Renton is the jurisdiction designated to govern Maplewood Addition Area (Expansion—Option 2). Maplewood Addition Area (Expansion—Option 2) includes boundaries that are reasonable and necessary to facilitate coordinated land uses, offer effective, efficient provision of services, and preserve critical areas for the benefit of the greater community. Annexation of the Maplewood Addition Area (Expansion — Option 2) to Renton would enable uniform local governance and coordinated services under a single local jurisdiction. The Board finds that the evidence shows that annexation of the Maplewood Addition Area (Expansion — Option 2)advances RCW 38.93.180-Objective 4. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. RCW 36.93.180(5)DISCOURAGEMENT OF MULTIPLE INCORPORATIONS RCW 36.93.180(5) is not applicable to File No. 2197. RCW 36.93.180(6)DISSOLUTION OF INACTIVE SPECIAL PURPOSE DISTRICTS RCW 36.93.180(6) is not applicable to File No. 2197. RCW 36.93.180(7)ADJUSTMENT OF IMPRACTICAL BOUNDARIES Annexation of the Maplewood Addition Area (Expansion — Option 2) to the City of Renton would create more practical boundaries to enable coordinated governance. Annexation would place the natural environment and built environment under City jurisdiction, thus creating more practical boundaries for governance of this community. The evidence shows that the boundaries proposed for Maplewood Addition Area (Expansion — Option 2) promote a unified community which will facilitate participation in local governance. Annexation of the proposed Maplewood Addition Area (Expansion—Option 2) into the City of Renton would also permit the City and the citizens to work together to achieve: • coordination of land planning and management activities (e.g., implementation of uniform land uses and development standards); • effective and efficient provision of public facilities and public services; • coordination of maintenance and emergency management for environmentally sensitive areas. For example, the proposed boundary will create confusion for emergency service providers. The evidence shows that annexation of the Maplewood Addition Area (Expansion—Option 2) into the City of Renton promotes the State Growth Management Act and the King County Comprehensive Plan policies. Annexation of Maplewood Addition Area (Expansion — Option 2) is consistent with State policies (RCW 36.70A) policies that provide for transfer of lands in the Urban Growth Area to an established local jurisdiction in order to ensure that citizens benefit from reliable governance and service. County Comprehensive Plan/Countywide Policies that call for contiguous orderly growth of local jurisdictions (e.g., U-304, U-208, U-301, U-304.). King County Policy LU-31 requires cities to designate potential annexation areas to include adjacent urban lands and to eliminate unincorporated islands between cities. The City of Renton establishes Maplewood Addition Area (Expansion — Option 2) in its Comprehensive Plan as a Potential Annexation Area; therefore, the City of Renton is the jurisdiction Now designated to govern Maplewood Addition Area (Expansion—Option 2). 11 The Maplewood Addition Area (Expansion—Option 2) has boundaries which are practical and necessary to facilitate coordinated land uses, offer effective, efficient provision of services, and preserve critical areas for the benefit of the greater community. Annexation of the Maplewood Addition Area (Expansion— Option 2) to Renton will enable uniform local governance and coordinated services under a single local jurisdiction. The Board finds that the evidence shows that annexation of the Maplewood Addition Area (Expansion — Option 2)advances RCW 38.93.180-Objective 7. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion. Annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres) into the City of Renton would be inconsistent with this criterion. RCW 36.93.180(8) INCORPORATION AS CITIES OR ANNEXATION TO CITIES OF UNINCORPORATED AREAS WHICH ARE URBAN IN CHARACTER The entire Maplewood Annexation Area (Expansion — Option 1, Option 2 and Option 3) is located within the Urban Growth Area established by the King County Comprehensive Plan. The Maplewood Addition Area (Expansion— Option 1, Option 2 and Option 3) designation as an "urban" area is also supported by the State Growth Management Act. The City of Renton Comprehensive Plan includes the Maplewood Addition Area (Expansion— Option 1, Option 2 and Option 3) in its Potential Annexation Area and designates this territory as an urban area. Approval of Maplewood Addition Area (Expansion — Option 2) is appropriate based upon the direct associations between this unincorporated area and the City of Renton. These links are based upon the similar existing/future built community and the connected environmentally sensitive areas. This association is germane to both existing land characteristics and future designation/use plans for the Maplewood Addition Area(Expansion—Option 2). Immediate annexation of the Maplewood Addition Area (Expansion — Option 2) into Renton would promote uniform governance, development, and public services/facilities appropriate for this urban territory. Annexation of the original Maplewood Addition Area (60.5 acres) into the City of Renton would be inconsistent with this criterion because this area fails to include unincorporated urban lands which are appropriate for immediate annexation to the City of Renton. Similarly, the evidence demonstrates that annexation of the Maplewood Addition Area (Expansion — Option 3/102 acres) into the City of Renton would be inconsistent with this criterion because this area fails to include unincorporated urban lands which are appropriate for immediate annexation to the City of Renton.. The evidence shows that the territory proposed by the City of Renton for Maplewood Addition Area (Expansion —Option 1/665 acres) includes lands separate from the Maplewood Addition Area (Expansion — Option 2 -/346 acres) that are suitable for annexation to a local jurisdiction in accord with statutory mandate (e.g., RCW 36.93, the State Growth Management Act, and the King County Comprehensive Plan, et seq.). Annexation of the Maplewood Addition Area (Expansion — Option 1/665 acres) into the City of Renton would be inconsistent with RCW 36.93.180 — Objective 8. This criterion and the remaining statutory mandate fail to support the annexation to the City of Renton of those portions of the Maplewood Addition community that extend beyond the boundaries of the Maplewood Addition Area (Expansion - Option 2). Annexation of this greater area to Renton at this time does not promote the statutory mandate for logical orderly growth of urban communities. Annexation to Renton of this greater portion of the Maplewood Addition Area is not timely because, at present, the community is more closely linked by geography, land use, and social neighborhood to the proposed new City of Fairwood. This extended Maplewood Addition Area (Expansion -Option 1) is currently included within the boundaries of the proposed new City. 12 The Board finds that the evidence shows that annexation of the Maplewood Addition Area (Expansion — *be Option 2)advances RCW 38.93.180-Objective 8. RCW 36.93.180 (9) PROTECTION OF AGRICULTURAL AND RURAL LANDS FOR LONG TERM PRODUCTIVE AGRICULTURAL/RESOURCE USE RCW 36.93.180(8) is not applicable to File No. 2197. III. BOUNDARY REVIEW BOARD FINDINGS AND DECISIONS The Boundary Review Board conducted review and deliberation of File No. 2197 based upon the record of written documents and oral testimony, in keeping with applicable state, regional and local regulations. The Board focused upon RCW 36.93 (Boundary Review Board Enabling Act); RCW 36.70A (Growth Management Act); King County Comprehensive Plan/Countywide Policies; City of Renton Comprehensive Plans, RCW 35A.14(Annexation of Cities); RCW 35.02 (Incorporation of New Cities)and other relevant regulations and guidelines. As prescribed by statutory mandate, the Boundary Review Board considered the following options: • The Maplewood Addition Area Annexation (60.5 acres) could be accepted as initially proposed by the City of Renton, if this action advances the provisions of RCW 36.93 and other applicable regulations (e.g., State Growth Management Act, the King County Comprehensive Plan and the Renton Comprehensive Plan). • The Maplewood Addition Area could be modified to incorporate 665 acres (Expansion—Option 1) if the proposed expansion advances the basic requirements of RCW 36.93 and other applicable regulations (e.g., the State Growth Management Act, the King County Comprehensive Plan, and the Renton Comprehensive Plan). This alternative would require all properties within the Maplewood Addition Area (Expansion — Option 1) to immediately be annexed into the City of Renton. • The Maplewood Addition Area Annexation could be modified to incorporate 346 acres(Expansion— Option 2), if the proposed expansion advances the basic requirements of RCW 36.93 and other applicable regulations (e.g., the State Growth Management Act, the King County Comprehensive Plan, and the Renton Comprehensive Plan). This alternative would require all properties within the Maplewood Addition Area (Expansion — Option 2) to immediately be annexed into the City of Renton. ■ The Maplewood Addition Area Annexation could be modified to incorporate 102 acres (Expansion— Option 3), if the proposed expansion advances the basic requirements of RCW 36.93 and other applicable regulations (e.g., the State Growth Management Act, the King County Comprehensive Plan, and the Renton Comprehensive Plan). This alternative would require all properties within the Maplewood Addition Area (Expansion — Option 3) to immediately be annexed into the City of Renton. • The Maplewood Addition Area/Maplewood Addition Area (Expansion — Option 1, Option 2, Option 3) Annexation could be denied in its entirety if incorporation fails to advance any of the objectives contained in RCW 36.93 and other applicable regulations. *** The record for File No. 2197 is detailed and extensive. The parties provided considerable materials supporting their positions. The Board has deliberated upon the complete record in order to come to a decision for the originally proposed Maplewood Addition Area (60.5 acres) and the proposed alternatives: Maplewood Addition Area (Expansion — Option 1/665 acres), Maplewood Addition Area (Expansion — Option 2/346 acres) and Maplewood Addition Area (Expansion—Option 3/102 acres). 13 The Boundary Review Board finds that: ■ Maplewood Addition Area/Maplewood Addition Area (Expansion — Option 1 — Option 3) annexation proposals were evaluated according to the criteria established in RCW 36.93.170. Annexation of the Maplewood Addition Area (Expansion — Option 2) is consistent with the provisions of RCW 36.93.170 (1); RCW 36.93.170(2)' and RCW 36.93.170 (3). The originally proposed annexation of Maplewood Addition Area (60.5 acres) is not consistent with the provisions of RCW 39.63.170. The proposed modification of the annexation of Maplewood Addition Area (Expansion—Option 1/665 acres) is not consistent with the provisions of RCW 36.93.170. The proposed modification of the annexation of Maplewood Addition Area (Expansion—Option 3/102 acres)is not consistent with the provisions of RCW 36.93.170. ■ Maplewood Addition Area/Maplewood Addition Area (Expansion — Option 1 — Option 3) annexation proposals were evaluated according to the criteria established in RCW 36.93.180 as follows: RCW 36.93.180 MAPLEWOOD ADDITION AREA • MAPLEWOOD ADDITION AREA (EXPANSION- OPTION 2 VALLEY (ORIGINAL AT 60.5 ACRES) FLOOR 346 ACRES) ■ MAPLEWOOD ADDITION AREA (THIS OPTION ALSO INCLUDES THE (EXPANSION-OPTION 1 ENTIRETY OF THE ORIGINAL RENTON SCHOOL DISTRICT AT MAPLEWOOD ADDITION AREA OF 60.5 665 ACRES) ACRES AND THE ENTIRETY OF OPTION 3 AT 102 ACRES) • MAPLEWOOD ADDITION AREA (EXPANSION-OPTION 3 AQUIFER PROTECTION AREA AT 102 ACRES) OBJECTIVE 1 - PRESERVATION OF ADVANCES CRITERION BY ANNEXATION OF • FAILS TO ADVANCE CRITERION NATURAL NEIGHBORHOODS AND PROPERTIES INCLUDED IN A NATURAL COMMUNITIES COMMUNITY • FAILS TO ADVANCE CRITERION ■ FAILS TO ADVANCE CRITERION OBJECTIVE 2 - USE OF PHYSICAL ADVANCES CRITERION BY ACHIEVING • FAILS TO ADVANCE CRITERION BOUNDARIES ESTABLISHED PHYSICAL BOUNDARIES & COMPREHENSIVE PLAN PAA BOUNDARIES • FAILS TO ADVANCE CRITERION ■ FAILS TO ADVANCE CRITERION OBJECTIVE 3 - CREATION AND ADVANCES BASIC CRITERION BY ENABLING • FAILS TO ADVANCE CRITERION PRESERVATION OF LOGICAL SERVICE COORDINATED SERVICES TO ADDRESS AREAS PUBLIC HEALTH&WELFARE. • FAILS TO ADVANCE CRITERION • FAILS TO ADVANCE CRITERION OBJECTIVE 4-PREVENTION OF ADVANCES CRITERION BY CREATING ■ FAILS TO ADVANCE CRITERION ABNORMALLY IRREGULAR BOUNDARIES REGULAR BOUNDARY LINES • FAILS TO ADVANCE CRITERION • FAILS TO ADVANCE CRITERION OBJECTIVE 5-DISCOURAGEMENT OF ADVANCES CRITERION BY INCLUDING ■ FAILS TO ADVANCE CRITERION MULTIPLE INCORPORATIONS MAPLEWOOD ADDITION IN AN EXISTING, AUTHORIZED MUNICIPALITY • FAILS TO ADVANCE BASIC CRITERION • FAILS TO ADVANCE BASIC CRITERION 14 RCW 36.93.180 MAPLEWOOD ADDITION AREA • MAPLEWOOD ADDITION AREA _Lli'° (EXPANSION- OPTION 2 VALLEY FLOOR (ORIGINAL AT 60.5 ACRES) 346 ACRES) • MAPLEWOOD ADDITION AREA (THIS OPTION ALSO INCLUDES THE (EXPANSION-OPTION 1 RENTON ENTIRETY OF THE ORIGINAL MAPLEWOOD SCHOOL DISTRICT AT ADDITION AREA OF 60.5 ACRES AND THE 665 ACRES) ENTIRETY OF OPTION 3 AT 102 ACRES) • MAPLEWOOD ADDITION AREA (EXPANSION-OPTION 3 AQUIFER PROTECTION AREA AT 102 ACRES) OBJECTIVE 6-DISSOLUTION OF INACTIVE DOES NOT APPLY • DOES NOT APPLY SPECIAL PURPOSE DISTRICTS • DOES NOT APPLY • DOES NOT APPLY OBJECTIVE 7 - ADJUSTMENT OF ADVANCES CRITERION BY CREATING • FAILS TO ADVANCE CRITERION IMPRACTICAL BOUNDARIES PRACTICAL BOUNDARY LINES • FAILS TO ADVANCE CRITERION • FAILS TO ADVANCE CRITERION OBJECTIVE 8 - INCORPORATION ...OR ADVANCES CRITERION AS ENTIRE URBAN • FAILS TO ADVANCE CRITERION ANNEXATION TO CITIES .... OF AREA IS INCORPORATED INTO A LOCAL UNINCORPORATED URBAN AREAS JURISDICTION. • FAILS TO ADVANCE CRITERION • FAILS TO ADVANCE CRITERION OBJECTIVE 9 - PROTECTION OF DOES NOT APPLY ■ DOES NOT APPLY AGRICULTURAL AND RURAL LANDS... • DOES NOT APPLY • DOES NOT APPLY • Maplewood Addition Area/Maplewood Addition Area (Expansion — Option 1 — Option 3) annexation proposals were evaluated according to the criteria established in the State Growth Management Act (RCW 36.70A). Annexation of the Maplewood Addition Area (Expansion — Option 2) is consistent with the provisions of RCW 36.70A The originally proposed annexation of Maplewood Addition Area (60.5 acres) is not consistent with the provisions of RCW 36.70A. The proposed modification of the annexation of Maplewood Addition Area (Expansion —Option 1/665 acres) is not consistent with the provisions of RCW 36.70A. The proposed modification of the annexation of Maplewood Addition Area (Expansion —Option 3/102 acres) is not consistent with the provisions of RCW 36.70A. ■ Maplewood Addition Area/Maplewood Addition Area (Expansion — Option 1 — Option 3) annexation proposals were evaluated according to the criteria established in the King County Comprehensive Plan/Countywide Planning Policies. Annexation of the Maplewood Addition Area (Expansion — Option 2) is consistent with the provisions of the King County Comprehensive Plan/Countywide Planning Policies. The originally proposed annexation of Maplewood Addition Area (60.5 acres) is not consistent with the provisions of the King County Comprehensive Plan/Countywide Planning Policies. The proposed modification of the annexation of Maplewood Addition Area (Expansion —Option 1/665 acres) is not consistent with the provisions of the King County Comprehensive Plan/Countywide Planning Policies. °tirrr° 15 The proposed modification of the annexation of Maplewood Addition Area (Expansion —Option 3/102 acres) is not consistent with the provisions of the King County Comprehensive Plan/Countywide Planning Policies. ■ Maplewood Addition Area/Maplewood Addition Area (Expansion — Option 1 — Option 3) annexation proposals were evaluated according to the criteria established in the City of Renton Comprehensive Plan. Annexation of the Maplewood Addition Area (Expansion — Option 2) is consistent with the provisions of the City of Renton Comprehensive Plan.. The originally proposed annexation of Maplewood Addition Area (60.5 acres) is not consistent with the provisions of the City of Renton Comprehensive Plan. The proposed modification of the annexation of Maplewood Addition Area (Expansion—Option 1/665 acres)is not consistent with the provisions of the City of Renton Comprehensive Plan. The proposed modification of the annexation of Maplewood Addition Area (Expansion—Option 3/102 acres)is not consistent with the provisions of the City of Renton Comprehensive Plan. • Annexation of the Maplewood Addition Area (Expansion — Option 2) is consistent with RCW 35.02, RCW 35A.14, et seq. IV. CONCLUSION Annexation of the Maplewood Addition Area, as modified to include the Maplewood Addition Area (Expansion- Option 2/346 acres), advances the standards established in the Boundary Review Board Act (RCW 36.93), Growth Management Act(RCW 36.70A), King County Comprehensive Plan, City of Renton Comprehensive Plan, and other state and local guidelines for incorporation of urban areas. The Boundary Review Board approval of the City of Renton Notice of Intention to annex the Maplewood Addition Area with modifications to include the Maplewood Addition Area (Expansion—Option 2) is timely based upon the City of Renton's current and historical commitment to guide development and provide municipal services to this area. Annexation will enable the City of Renton to provide a harmonious efficient plan for the governance of the built community, preserving the environment, and protecting public health and welfare. (Note: Under state law, the City of Renton must adopt an Ordinance or Resolution affirming the Maplewood Addition Area Annexation(Expansion—Option 2)following action by the Boundary Review Board. Under state law,the City must confirm the action as approved by the Boundary Review Board. Alternatively, the Council may decide not to pursue the action. However, the City cannot modify the boundaries that have been approved by the Boundary Review Board.) `'+111/0 16 lrrr+ NOW,THEREFORE, BE IT RESOLVED BY THE WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY THAT, for the above reasons, the action proposed in the Notice of Intention contained in said File No. 2197 be, and the same is, hereby approved with modifications as described in Exhibits attached hereto and incorporated herein by reference. ADOPTED BY SAID WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY by a vote of e HT in favor, h1p NG in opposition, and ONJ�, abstentions, on this 8th day of June 2006, and signed by me in authentication of its said adoption on said date. WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY 'A IL/ Charles Booth, Chair Nor, FILE this cr day 50 N E , 2006 BY: Lenora Blauman, Executive Secretary 17 EXHIBITS EXHIBIT I CITY OF RENTON MAPLEWOOD ADDITION AREA (OPTION 2 - "VALLEY FLOOR"): LEGAL DESCRIPTION OF MODIFIED ANNEXATION AREA BOUNDARIES EXHIBIT II CITY OF RENTON MAPLEWOOD ADDITION AREA(OPTION 2-"VALLEY FLOOR"):MAP OF MODIFIED ANNEXATION AREA BOUNDARIES 'rrrlf� 18 RECEIVED JUN 0 6 2006 wA ew Maplewood Addition State KmBounqCo Legal Description An area encompassing portions of Sections 21, 22, 23, and 24, all in Township 23 North, Range 5 East, Willamette Meridian in King County, Washington, described as follows; Commencing at the point of intersection of the Thread of the Cedar River and the west line of the northwest quarter of the southwest quarter of said Section 22; Thence in southeasterly and northeasterly directions along the course of said Thread of the Cedar River to an intersection with the thread of Molasses Creek; Thence in a southeasterly direction along said Thread of Molasses Creek to an intersection with the boundary of a parcel of land deeded to King County by Recording Number 9810304345; Thence N 23°58'46" W, along said boundary, a distance of 78.30 feet, per said deed; Thence N 32°24'58"E, along said boundary, a distance of 95.30 feet,per said deed, to an. intersection with the south line of Lot "L"of King County Lot Line Adjustment LO 1 L0026, recorded under King County Recording No. 20010730900003, records of King County, Washington; Thence S 68°35'41" E, along said south line, a distance of 18.29 feet; Thence N 76°45'23"E, along said south line, a distance of 17.35 feet; Thence N 72°54'52" E, along said south line, a distance of 98.96 feet to an intersection with the boundary line of Lot "J"of said lot line adjustment; Thence N 83°19'42"E, along said boundary, a distance of 38.87 feet; Thence N 78°32'03" E, along said boundary, a distance of 21.06 feet; Thence N 73°36'54"E, along said boundary, a distance of 37.74 feet; EXHIBIT I Thence N 78°29'12"E, along said boundary, a distance of 36.02 feet; .,, Thence N 72°58'25" E, along said boundary, a distance of 52.65 feet; Thence S 01°17'33"W, along said boundary, a distance of 598.94 feet; Thence S 32°49'04"E, along said boundary, a distance of 956.24 feet; Thence S 89°08'18" E, along said boundary, a distance of 476.75 feet; Thence N 15°15'41"W, along said boundary, a distance of 435.00 feet; Thence N 82°15'40"E, along said boundary, a distance of 90.00 feet; Thence N 75°45'44"E, along said boundary, a distance of 464.37 feet to an intersection with the southwesterly right-of-way margin of 140th Way Southeast, as conveyed to King County under King County Recording No. 9902252114,records of King County, Washington; Thence in a northeasterly direction, perpendicular to the centerline of said 140th Way Southeast, a distance of 100 feet, more or less, to an intersection with the northeasterly margin thereof; Thence in a northwesterly direction along said northeasterly margin to an intersection with the boundary line of Tract "E", of the Plat of Elliott Farm, recorded in Volume 180 of Plats, Pages 4 through 15, records of King County, Washington; Thence S 81°57'59" E, along said boundary, a distance of 16.37 feet; Thence 24.42 feet along said boundary on a tangential curve, with a central angle of 27°46'21", and a 50.00 foot radius; Thence N 70°15'39" E, along said boundary, a distance of 47.81 feet; ` t Thence S 10°24'04" E, along said boundary, a distance of 41.68 feet; Thence N 87°13'29" E, along said boundary, a distance of 209.37 feet; Thence N 10°24'04"W, along said boundary, a distance of 56.37 feet; Thence 72.65 feet along said boundary on a non-tangential curve, with a central angle of 83°29'11", and a 50.00 foot radius; Thence N 86°06'45" E, along said boundary, a distance of 168.88 feet; Thence N 86°27'18" E, along said boundary, a distance of 141.81 feet; Thence N Ol°11'20" E, along said boundary, a distance of 215.81 feet; Thence N 59°00'49" W, along said boundary, a distance of 19.40 feet; Nap. Thence 27.88 feet along said boundary on a non tangential curve, with a central angle of 31°56'46", and a 50.00 foot radius; Thence N 00°57'35" W, along said boundary, a distance of 34.60 feet; Thence N 21°12'07" W, along said boundary, a distance of 34.66 feet; Thence N 65°19'12" W, along said boundary, a distance of 25.48 feet; Thence N 38°28'09" E, along said boundary, a distance of 33.00 feet; Thence S 44°18'37" E, along said boundary, a distance of 10.84 feet; Thence S 21°12'07" E, along said boundary, a distance of 88.80 feet; Thence S 42°29'43" E, along said boundary, a distance of 36.31 feet; • Thence S 52°31'19" E, along said boundary, a distance of 14.27 feet; Thence S 01°11'20"W, along said boundary, a distance of 147.91 feet; Thence N 74°31'08" E, along said boundary, a distance of 50.97 feet; Thence S 79°06'31"E, along said boundary, a distance of 106.37 feet; Thence N 01°41'41"E, along said boundary, a distance of 45.00 feet; Thence N 89°17'47"E, along said boundary, a distance of 56.14 feet; Thence S 10°05'37"E, along said boundary, a distance of 58.53 feet; Thence 63.25 feet along said boundary on a tangential curve, with a central angle of 72°28'56", and a 50.00 foot radius; Thence S 80°50'23"E, along said boundary, a distance of 24.58 feet; Thence S 20°54'53"E, along said boundary, a distance of 40.01 feet; Thence 5.29 feet along said boundary on a tangential curve, with a central angle of 06°04'00", and a 50.00 foot radius; Thence S 26°58'53" E, along said boundary, a distance of 36.61 feet; Thence 22.37 feet along said boundary on a tangential curve, with a central angle of 25°38'19", and a 50.00 foot radius; Thence S 52°37'13" E, along said boundary, a distance of 26.92 feet; Thence S 08°52'38" E, along said boundary, a distance of 8.73 feet; Nosy- Thence S 30°30'16"W, along said boundary, a distance of 14.86 feet; Thence 101.91 feet along said boundary on a tangential curve, with a central angle of 116°47'06", and a 50.00 foot radius; Thence S 86°16'50"E, along said boundary, a distance of 25.00 feet; Thence 52.21 feet along said boundary on a tangential curve, with a central angle of 59°49'52", and a 50.00 foot radius; Thence N 33°53'19"E, along said boundary, a distance of 16.12 feet; Thence N 63°17'17"E, along said boundary, a distance of 41.32 feet; Thence S 87°03'12"E, along said boundary, a distance of 56.04 feet; laise Thence S 64°57'06"E, along said boundary, a distance of 52.86 feet; Thence 41.41 feet along said boundary on a tangential curve, with a central angle of 47°26'54", and a 50.00 foot radius; Thence N 67°36'01"E, along said boundary, a distance of 30.71 feet; Thence 57.38 feet along said boundary on a tangential curve, with a central angle of 65°45'06", and a 50.00 foot radius; Thence S 89°17'47" E, along said boundary, a distance of 150.01 feet; Thence S 01°41'41" W, along said boundary, a distance of 783.74 feet to an intersection with the south line of the northeast quarter of the southeast quarter of said Section 22; Thence S 89°21'31" E, along said south line, a distance of 370.00 feet to an intersection with the north line of Tract"H" of said Plat of Elliott Farm; `'rrr Thence N 22°28'41" E, along said north line, a distance of 80.61 feet; Thence N 17°38'52" W, along said north line, a distance of 52.25 feet; Thence N 9°22'47" E, along said north line, a distance of 45.59 feet; Thence S 89°21'51" E, along said north line, a distance of 42.46 feet; Thence S 57°55'49" E, along said north line, a distance of 80.73 feet; Thence N 85°01'18" E, along said north line, a distance of 73.50 feet; Thence N 54°15'06" E, along said north line, a distance of 73.70 feet; Thence S 73°23'29" E, along said north line, a distance of 27.63 feet; Thence S 32°53'25" E, along said north line, a distance of 58.82 feet; Thence S 30°59'21" E, along said north line, a distance of 48.73 feet; Thence S 48°07'16" E, along said north line, a distance of 65.22 feet; Thence S 80°03'07" E, along said north line, a distance of 70.94 feet; Thence N 78°04'15" E, along said north line, a distance of 50.75 feet; Thence S 10°18'40" E, along said north line, a distance of 37.66 feet; Thence S 89°20'16" E, along said north line, a distance of 439.26 feet, to an intersection with the west line of said Section 23; Thence in a southerly direction along said west line to the south line thereof; .,,r,o# • Nur' Thence in an easterly direction along said south line to an intersection with the east line of the west half of the of the west half of said Section 23; Thence in a northerly direction along said east line to an intersection with the north line of Tract "A", King County Short Plat Number L99S3019, recorded under King County Recording No. 20010831900002, records of King County, Washington; Thence N 84°00'58" E, along said north line, a distance of 68.37 feet; Thence N 73°10'48" E, along said north line, a distance of 62.21 feet; Thence N 84°36'01" E, along said north line, a distance of 40.48 feet; Thence S 81°29'32" E, along said north line, a distance of 68.54 feet; Thence N 1°48'52" E, along said north line, a distance of 53.56 feet; iota" Thence N 70°52'25"E, along said north line, a distance of 29.64 feet; Thence N 31°43'39"E, along said north line, a distance of 32.79 feet; Thence N 74°23'24" E, along said north line, a distance of 54.88 feet; Thence S 86°23'48"E, along said north line, a distance of 56.97 feet; Thence N 83°20'48" E, along said north line, a distance of 49.07 feet; Thence N 24°03'28" E, along said north line, a distance of 6.17 feet; Thence N 85°16'15" E, along said north line, a distance of 71.48 feet; Thence N 73°17'58" E, along said north line, a distance of 73.58 feet; Thence N 11°58'32" E, along said north line, a distance of 43.31 feet; Thence S 88°37'09"E, along said north line, a distance of 80.00 feet; Thence N 1°22'51" E, along said north line, a distance of 526.59 feet; Thence S 87°46'52"E, along said north line, a distance of 647.66 feet to an intersection with the west line of the east half of said Section 23; Thence in a northerly direction along said west line to an intersection with the north line of Tract "A", of the Plat of Valley Faire II, recorded in Volume 131 of Plats, Pages 39 through 43, records of King County, Washington; Thence N 81°54'25" E, along said north line, a distance of 190.00 feet; Thence S 88°43'54" E, along said north line, a distance of 584.39 feet; Thence N 71°03'25" E, along said north line, a distance of 505.00 feet; Thence N 81°54'25"E, along said north line, a distance of 853.41 feet to an intersection with the southeast corner of Lot 6, of the Plat of Valley Faire I-Phase III, recorded in Volume 139 of Plats, Pages 8 through 10, records of King County, Washington; Thence N 02°23'04" E, along the east line of said plat and it's extension thereof, a distance of 484.50 feet to an intersection with the north Right-of-Way margin of Renton- Maple Valley Highway(Also known as SR-169) as deeded to the State of Washington, by Recording Numbers 9303151553 through 9303151559, records of King County, Washington; Thence in a northwesterly direction along said north margin to an intersection with the southwesterly extension of the southeasterly Right-of-Way margin of 154th Place SE (also known as W.J. 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P-��� .11111=1- �1 w�•I&l j�!/:.. %♦AV I\��1Iy • n_ _• �\�r 1 \:U1�jr i ���.� 111•���_ I Maplewood Addition Annexation King County Zoning Designation 0 1500 3 000 Option 2 - King Co. Zoning I I R-A5 -- City Limits I I R-1 ',0%.„,,, Economic Development,Neighborhoods&Strategic Planning — • — Urban Growth I J R-4 1 : 18000 Alcx Pic(sch,Administrator pp . G.Del Rosario Boundary I I R-12 ANT• 16 June 2006 ® Neighborhood Business W CITY OF RENTON COUNCIL AGENDA BILL AI#: �}'s Submitting Data: For Agenda of: 1/4100, Dept/Div/Board.. Economic Development, July 17, 2006 Neighborhoods, and Strategic Planning Dept. Staff Contact Don Erickson Agenda Status Consent X Subject: Public Hearing.. X Querin Annexation - Expanded Zoning Hearing Correspondence.. Ordinance Resolution Old Business Exhibits: New Business Issue Paper Study Sessions Boundary Review Board Decision Information Recommended Action: Approvals: Set public hearing on August 7, 2006 Legal Dept X Finance Dept Other Fiscal Impact: Expenditure Required... Transfer/Amendment Amount Budgeted Revenue Generated e Total Project Budget N/A City Share Total Project.. err' SUMMARY OF ACTION: The City is now in receipt of the Boundary Review Board's decision relating to the expansion of the proposed Querin Annexation. The BRB expanded the boundaries of this annexation from 7.18-acres to 24.0 acres, going all the way up to Sunset Boulevard NE on the north. The site now abuts the City on its southern, western, and northern boundaries. The site is designated Residential Single Family and Residential Low Density on the Comprehensive Plan Land Use Map and to be consistent with the Comp Plan would receive R-4 and R-8 zoning if Council eventually accepts the BRB's recommendation. Although the Council has held one public hearing on zoning for this annexation it must now hold at least two more since the boundaries have been expanded. State law requires that these public hearings be held at least 30-days apart. The recommended hearing will be the first of at least two on the enlarged annexation area. STAFF RECOMMENDATION: Set August 7, 2006, for a public hearing to decide whether to accept the expanded boundaries per the recommendation of the Boundary Review Board, and if it does, what future zoning for this enlarged annexation site might be. 1116101 C:1Documents and Settings\mpetersen\Local Settings\Temp\Agnd Bill forExpnd Area 8-7-06.doc �Y ECONOMIC DEVELOPMENT, Nlogre tiE; 0'ft NEIGHBORHOODS, AND STRATEGIC ' .LL ' PLANNING DEPARTMENT MEMORANDUM DATE: July 7, 2006 TO: Randy Corman, Council President Members of the Renton City Council VIA: —Ev_Kathy Keolker, Mayor FROM: Alex Pietsch, Administrator STAFF CONTACT: Don Erickson(x6581) SUBJECT: Proposed Querin Annexation—Expansion and Future Zoning ISSUES: • Whether Council wishes to accept the resolution and hearing decision of the Boundary Review Board(BRB) for King County expanding the boundaries of the Now Querin Annexation from 7.18 acres to 24.0 acres? • If the Council decides to accept the recommendation of the BRB expanding the boundaries, whether it wishes to authorize staff to prepare an ordinance effectuating the expanded area? • Whether Council supports rezoning the non-street portions of the annexation site designated RLD (Residential Low Density), as shown on the City's Comp Plan Land Use Map, R-4, and the non-street portions of the annexation site designated RS (Residential Single Family), as shown on the City's Comp Plan Land Use Map,R-8? RECOMMENDATION: Council accept the recommendation of the BRB expanding the boundaries of the 7.18- acre Querin Annexation to approximately 24-acres, and support future zoning consistent with the City's Comprehensive Plan Land Use Map designations shown for the area. If Council accepts this recommendation, staff is requesting that it be directed to prepare the necessary ordinances for annexation effectuation and subsequent City zoning. Now h:\ednsp\paa\annexations\querin\expansion issue paper.doc Querin Annexation-Expansion Page 2 of 3 July 6,2006 BACKGROUND SUMMARY: The Council accepted a 60%Direct Petition to Annex approximately 7.18-acres in November 2005 (Figure 1) for this annexation in November 2005. At that time, Council authorized the administration to submit a Notice of Intent package to the Boundary Review Board and invoke its jurisdiction so that it could consider expanding the boundaries of this annexation to the north. Because of pending annexations to the east, this was important to avoid creating an island of unincorporated territory surrounded by the City. The BRB held a public hearing on the original 7.18-acre annexation site on May 16, 2006, and a second public hearing on May 22, 2006, the latter to consider the City's request to expand the boundaries of this annexation to the north. The BRB issued its resolution and hearing decision on June 9, 2006, expanding the boundaries of Querin Annexation to 24.0-acres by bringing in the property to the north up to NE Sunset Boulevard as well as the portion on the west side of 142nd Avenue SE, bordered by the City on its north, west, and south(see Figure 2). The annexation area is within the water service area District 90 by agreement under the East King County Coordinated Water System Plan. Although the area also is not currently served by sewer, Renton is the designated service provider for it. Fire suppression services are currently provided by Fire District 25 and the King County Sheriff's Office provides police services. Upon annexation, Renton would take over both fire suppression and police services. Staff recirculated this annexation on June 16th, 2006, for departmental comments and no one reported any major obstacles to it. Surface Water reported that the annexation site is located within the Honey Creek Sub-basin of May Creek where drainage problems exist downstream. As a result, future development would be encouraged to meet the Level II standards of the 2005 King County Surface Water Design Manual. The Water Utility reported that the portion of the expanded annexation on the west side of 142nd Avenue SE (Hoquiam)would receive Renton water whereas that located on the east side of 142nd Avenue SE would be served by Water District 90. Future road improvements and sewer extensions to the area are anticipated to be provided by those developing properties in the area. As a result, the City should be obtaining new streets with curbs, gutters, and street lighting at no cost to it. Resurfacing of the existing roadways, however,may have to be undertaken by the City. Zoning: When this area is brought into the City, zoning has to be consistent with the City's Comprehensive Plan Land Use Map. Currently, the Comp Plan shows two land use designations for the expanded annexation site. The original annexation site south of SE 112 Place is designated Residential Single Family(RS) as is the expanded area on the west side of 142nd Avenue SE. These areas would typically be zoned R-8, eight units per net acre, upon annexation. The larger area north of SE 112th Place and west of 142nd Avenue SE is designated Residential Low Density on the Comp Plan Land Use Map and would most likely be zoned R-4, four units per net acre, upon annexation. R-4 zoning is more consistent with those properties adjacent and abutting Honey Creek. Fiscal Analysis: H:\EDNSP\PAA\Annexations\Querin\Expansion and Rezone Issue Paper.doc Querin Annexation-Expansion Page 3 of 3 July 6,2006 Fiscally, the expanded annexation area is estimated to create a surplus for the City of "or approximately$24,251 a year in 2006 dollars at full build out. A one-time parks acquisition and development cost attributable to this annexation is estimated to be approximately$40,489. Also, as noted in the previous issue papers, the proposed annexation complies with most of the City's annexation policies. CONCLUSION: Pursuant to RCW 35A.14.120, the expanded Querin Annexation has been determined by the BRB to be consistent with its objectives, relevant provisions of the Growth Management Act, and the County's and City's Comprehensive Plans. It also appears consistent with the City's Business Plan in that this annexation would benefit the City. To be consistent with the City's Comp Plan, future zoning is likely to be R-8 and R-4, with R-4 being applied to the more environmentally sensitive areas along Honey Creek. Since the annexation site is within Renton's Potential Annexation Area and no impediments to the provisions of City services have been identified, the expanded Querin Annexation would appear to be in the City's general interest and welfare. Attachments cc: Jay Covington Alex Pietsch Rebecca Lind Don Erickson '`trr►' H:\EDNSP\PAA\Annexations\Querin\Expansion and Rezone Issue Paper.doc PROCEEDINGS OF THE WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY err RESOLUTION AND HEARING DECISION IN RE: CITY OF RENTON FILE NO.: 2222 Querin Area Proposed Annexation King County, Washington I. PUBLIC HEARING OVERVIEW In December of 2005 the City of Renton filed a Notice of Intention (File No. 2222) to annex a seven acre territory(Querin Area) based upon an annexation petition by property owners, pursuant to RCW 35A.14. The Renton City Council adopted the petition for annexation in November 2005. The Notice of Intention describes the original Querin Area as follows: • The northern boundary is formed by SE 112thth Street • The southern boundary of the site is generally formed by SE 114`h Place(if extended). • The western boundary of the site is formed by Hoquiam Avenue NE. • The eastern boundary is generally formed by 144th Avenue SE(if extended.) With the filing of the Notice of Intention, the City of Renton invoked jurisdiction for the Querin Area Annexation requesting the addition of an approximately 17 acre territory, defined as the Querin Area (Expanded). The City requested that the Board conduct a public hearing to consider the proposed Querin Area (Expanded)—for a total of 24 acres-- based upon the following: • The City of Renton Comprehensive Plan establishes the jurisdiction's commitment to annexation of the entire Querin Area(Expanded);and • The City of Renton has plans and programs in place which ensure that the City can immediately provide for the Querin Area (Expanded) accessible local government and a full array of services. The City has established standards to support appropriate levels of development, services, and protection for the sensitive natural environment;and • Annexation of the Querin Area (Expanded) into the City of Renton would reportedly provide more practical boundaries and logical area for community governance and for provision of services to the community;and • The State Growth Management Act and the King County Comprehensive Plan both establish local jurisdictions as the appropriate units to govern urban areas. The Board held a Public Hearing on May 16, 2006 before a quorum of the Boundary Review Board in order to consider the original proposal by the City of Renton to incorporate the Querin Area Annexation (seven acres). At the conclusion of that public hearing, the Boundary Review Board resolved to conduct a modification hearing on May 22, 2006 to consider Renton's request to expand the original annexation area. The Board found sufficient evidence in the record that the original Querin Area proposal is inconsistent with one or more of the statutory objectives its decisions must advance (e.g., 36.93 RCW, 36.70A RCW). Legal notice having been duly given, a modification hearing was held on May 22, 2006 before a quorum of the Boundary Review Board. 1 At the May 22, 2006 public hearing, the City of Renton presented evidence in support of expansion of the original Querin Area annexation. The Querin Area (Expanded) includes the initial Querin Area (7 acres), together with adjacent land of 17 acres. The Querin Area (Expanded) boundaries are more specifically described as follows: • The entire Querin Area (Expanded) is located on the east side of the City of Renton. The Querin Area (Expanded)boundaries are more specifically described as follows: • The northern boundary of the site is formed by Sunset Highway; this boundary is contiguous with the existing Renton city limits. • The southern boundary of the site is generally formed by the SE 114th Street(if extended); this boundary is contiguous with the existing Renton city limits. • The western boundary is variously formed by Hoquiam Avenue/142nd Avenue SE and by 141st Avenue SE (if extended);this boundary is contiguous with the existing Renton city limits. • The eastern boundary is generally formed by 144th Avenue SE. The Board reviewed File No. 2222 in accord with 36.93 RCW. (Local Governments — Boundaries — Review Boards). The Board directed particular attention to RCW 36.93.170 (Factors) and RCW 36.93.180 (Objectives). The Board also considered RCW 36.93.150, the statutory authority for modification of annexation proposals. The Board also considered RCW 36.70.A, the Growth Management Act, the King County Comprehensive Plan, the City of Renton Comprehensive Plan, and other applicable state, regional, and local regulations and guidelines. The Boundary Review Board considered two alternative plans for annexation as follows: ■ The City of Renton's initial Notice of Intention for the Querin Area Annexation(7 acres). • The City of Renton's proposed modification of the Querin Area Annexation — identified as the Querin Area (Expanded)—at 24 acres. On the basis of the testimony, evidence and exhibits presented at said hearing, and the matters on record in said File No. 2222, it is the decision of the Board that the action proposed in said Notice of Intention be, and the same is, hereby approved with modifications to include the Querin Area (Expanded) Annexation at approximately 24 acres. The legal description of the Querin Area (Expanded)Annexation, as approved with modifications, is attached hereto and marked as "Exhibit I", together with a map showing the boundaries of the area herein marked as "Exhibit II." II. FINDINGS The Board finds that Chapters 36.93 RCW, 36.70A RCW, 35A.14 RCW, King County Comprehensive Plan/Countywide Policies, the Renton Comprehensive Plan and its enabling regulations (e.g., zoning code) are applicable to its consideration of both the original annexation and the proposed modification. The Board finds that the record for File No. 2222 provides sufficient documentation (e.g., technical data, fiscal data), evidence of community information programs, and certification of petitions and/or legislative action to complete its review of the Querin Area Annexation (Expanded). RCW 36.93.170 FACTORS AFFECTING THIS PROPOSAL The Board finds the following Factors (RCW 36.93.170) to be applicable to the City of Renton's initially proposed Querin Annexation (7 acres) and to the Querin Area (Expanded) Annexation (26 acres). Additional authorities applicable to the Querin/Querin Area (Expanded) include, but are not limited to: 36.70A RCW, 35A.14 RCW, King County Comprehensive Plan/Countywide Policies, the Renton Comprehensive Plan and its enabling regulations (e.g., zoning code). These State and local authorities are intended to ensure reasonable development regulations and adequate public services to local communities 2 A brief review of key issues related to each applicable element is presented below: RCW 36.93.170(1)POPULATION AND TERRITORY The Board finds the following factors applicable to this matter: Population Density; Proximity to Other Populated Areas; Land Area/Land Uses; Comprehensive Land Use Plans; Topography, Natural Boundaries and Drainage Basins; Likelihood of Significant Growth in the Area During the Next Ten Years; and Population Density/Proximity to Other Populated Areas/Land Area/Land Uses. Following is a brief review of key issues related to these factors. The entire Querin Area (Expanded) lies within the Urban Growth Area delineated by King County. The community is unified with respect to its specific physical elements (e.g., geographic features) and social elements. The King County Comprehensive Plan contemplates transfer of the Querin Area (Expanded) to a local jurisdiction. County Comprehensive Plan/Countywide Policies call for contiguous orderly growth of local jurisdictions (e.g., U-304, U-208, U-301, U-304.). Policies also establish cities as the appropriate providers of local governance and urban services (e.g., FW-13, CO-1, CO-3; LU-31 - LU- 34, LU-36). King County Policy LU-31 requires cities to designate potential annexation areas to include adjacent urban lands and to eliminate unincorporated islands between cities. Policy LU-32 calls upon cities to incorporate lands within annexation areas into city boundaries. In addition, the Querin Area (Expanded) is included in the "Annexation Element" of the City of Renton Comprehensive Plan and lies within the City's Potential Annexation Area. The proposed action is based upon Renton Comprehensive Plan annexation policies, including the policies supporting inclusion of urban areas within the City for local governance and pertaining to encouraging annexations in areas where urban infrastructure and services are available for development at urban densities and in areas contiguous to City boundaries (e.g., Land Use Policies LU-378; LU-386; LU- 388). The Querin Area (Expanded) (24 acres) is an urban community with both developed and vacant residential lands. The original Querin Area site includes three single-family homes; the remainder of the property is currently vacant. The Querin Area (Expanded) currently includes approximately 17 residential dwellings. There is also limited vacant land located within the Querin Area (Expanded). The Querin Area contains environmentally sensitive features. Both the original Querin Area and the Querin Area (Expanded) includes variable topography (including landslide and erosion areas) currently characterized by substantial natural vegetation and some open space. Honey Creek traverses the entire Querin Area. Class 2 wetlands also exist in the Querin Area. The Querin Area (Expanded) will likely experience continuing urban growth over the next ten years. The Querin Area (Expanded) comprises primarily residential development. However, there is vacant land suitable and permitted for new residential development and there is land that is appropriate for redevelopment with residential uses. Portions of the environmentally sensitive lands require planning and management to ensure the preservation of these critical areas. The City of Renton Comprehensive Plan provides for growth at urban levels of density which are consistent with the built environment. The Renton Comprehensive Plan provides support for the natural environment within the Querin Area (Expanded). Renton plans permit only residential development in the Querin Area (Expanded). Future development would be generally similar to and compatible with existing housing in terms of land designation and zoning/density. Development in that northern portion of the Querin Area (Expanded) which includes environmentally sensitive areas would be limited to a range of one to four dwelling units per net acre. In the portion of the Querin Area/Querin Area (Expanded) which is not characterized by environmentally sensitive territory, residential development could be permitted to a maximum of eight dwelling units per net acre. 3 The City of Renton Comprehensive Plan provides for the commitment and the resources to govern the Querin Area (Expanded) under regulatory controls designed to ensure consistent and coordinated development plans and environmental protection standards to benefit this community. Under the City's Comprehensive Plan, citizens of the Querin Area (Expanded) would also be provided with a full array of uniform public services, facilities and infrastructure. RCW 36.93.170(2)MUNICIPAL SERVICES The Board considered the following factors to be applicable: need for municipal services; effects of ordinances, governmental codes, regulations and resolutions on existing uses; present cost and adequacy of governmental services and controls in area; probable future need for such services; costs; effect on the finance, debt structure and contractual obligations; and prospects of government services from other sources, and rights of other affected governmental units. Following is a brief review of key issues related to these factors. The evidence shows that the Querin Area and Querin Area (Expanded are urban lands requiring municipal services and facilities. Service goals and policies for urban areas are established by the State Growth Management Act and the King County Comprehensive Plan. For example, King County FW-13 states that cities are the appropriate provider of local urban services to Urban Areas. FW-29 and FW-30 address the need for jurisdictions to plan for and coordinate services. Additionally, annexation is appropriate under Countywide Policy CO-1, when a jurisdiction has "identified and planned for(a)full range of urban services". Consistent with the State Growth Management Act and the King County Plan, the City of Renton has developed policies — through the City's Comprehensive Land Use Plan, Comprehensive Service Plans, and other regulatory authorities —for provision of services to all properties within its corporate boundaries. Upon annexation, the City of Renton would include the newly incorporated area in the municipality's Service Area. Then, as is its custom, the City can provide — directly or by contract— a full array of specific service plans and programs for public services including water service, surface water management, sewer service, fire service, police service, emergency medical services, utilities, road maintenance, law and justice services, human services, libraries, and parks and recreation services. The Renton School District would continue to administer school assignments. At current development the City estimates revenue from the Querin Area (Expanded) in the amount of $21,297; costs are estimated at $24,512. At present the City will realize a deficit of $3,215. At full development, City expenditures are estimated at $121,027 and revenues are estimated at $143,722. Based upon this analysis, the City will realize a surplus of$22,695 at full development. Following annexation, property owners will no longer pay County taxes for services and would assume their share of the City's regular and special levy rates for capital facilities and public services. The City has established a plan whereby building and maintenance of roadways will be funded in part by the developer of new homes and in part by the City of Renton. Mr. Erickson testified that, both at current development (with a modest deficit) and at full development, the City will have sufficient funds to serve the area without a significant impact on cost and adequacy of services, finances, debt structure or rights of other governmental units. Future capital needs and costs will be examined and funded through the Renton Capital Investment Program. Studies demonstrate that the City would be able to sustain levels of service to the entire community at reasonable customer rates including sewer service and water service to individual properties. Future capital needs and costs will be examined and funded through the Renton Capital Investment Program. King County officials support annexation of the Querin Area (Expanded) (24 acres). This consolidated action is reported to create a more logical municipal service area than the original Querin Area Annexation (seven acres). The City can provide more cohesive policies, standards, 4 programs, cohesive operations, and efficient, economic control of services than would result from the more limited original Querin Area. Annexation limited to the original Querin Area would result in `iio' fragmentation of the community as both County providers and local providers will be required to serve the community. Thus, services will be more effective, more efficient, and less costly to both government and citizens with the annexation to the City of Renton of the Querin Area (Expanded). RCW 36.93.170(3) EFFECTS OF PROPOSAL The Board considered mutual economic and social interests, and local government structure effects to be applicable. The following is a brief review of key issues. The evidence shows that the Querin Area (Expanded) is contiguous to — and shares mutual social and economic profiles with — the City of Renton. Coordinated integration of citizens of the Querin Area (Expanded) into Renton would preserve social organization, support economic health, and protect public safety and welfare. New citizens would participate in local governance including land use planning, service planning, fiscal planning and planning for public amenities to serve the community. Renton officials testified that the City is prepared to govern and to provide full services to this community. King County Comprehensive Plan/Countywide Planning Policies encourage local governance of communities. Annexation of the Querin Area (Expanded) is also consistent with the King County Annexation Initiative, which calls for transfer of urban lands to local jurisdictions at the earliest feasible date. Immediate annexation of the Querin Area (Expanded) better promotes balanced governance than does the incremental incorporation proposed in the initial Querin Area Annexation. Incorporation of the Querin Area (Expanded) into the City of Renton promotes strong and unified local government. CONSISTENCY WITH THE GROWTH MANAGEMENT ACT RCW 36.93.157 mandates that Boundary Review Board decisions must be consistent with three sections of the Growth Management Act: • RCW 36.70A.020 Planning Goals • RCW 36.70A.110 Urban Growth Areas • RCW 36.70A.210 Countywide Planning Policies Key Growth Management issues relating to the Querin Area include the Countywide Planning Policies pertaining to land use and municipal services (RCW 36.70A.020 and RCW 36.70A.110). The Growth Management Act policies that guide the provision of public services and that are relevant to the proposed Querin Area Annexation include: • RCW 36.70A.020 (1) Urban Growth: Encourages development in urban areas where adequate public facilities and services exist or can be provided efficiently. • RCW 36.70A.020 (2) Reduce Sprawl: Reduce inappropriate conversion of undeveloped land into sprawling low-density development. • RCW 36.70A.020(10)Environment: Protect and enhance the environment and quality of life. • RCW 36.70A.020 (11) Citizen Participation and coordination in the planning process and ensure coordination between communities/jurisdictions to reconcile conflicts. • RCW 36.70A.020(12)Public Facilities and services: Ensures that adequate public services and facilities are available to serve land developments. • RCW 36.70A.110(1/6)calls for each county to designate an urban growth area. • RCW 36.70A.110(3)directs urban growth to areas with existing or available public services and facilities. • RCW 36.70A.110 (4) states that "(in) general, cities are the units of local government most appropriate to provide urban ...services." • RCW 36.70A.210(1)calls for cities to be primary providers of governmental services in urban growth areas. err+ 5 Annexation of the Querin Area (Expanded) into the City of Renton will satisfy Growth Management Act criteria for governance of urban areas and is consistent therewith. For example, the annexation is supported by RCW 36.70.20, which requires community planning goals, for urban growth, services and infrastructure, and environmental preservation. Additionally, the proposed Querin Area (Expanded) Annexation is consistent with RCW 36.70A.020 (1), encouraging development in urban areas where there are adequate public services. It is also consistent with RCW 36.70A.020 (12), which calls for public services to support permitted development. Annexation would also permit urban growth — and protection of environmentally sensitive areas — as envisioned in the Growth Management Act. RCW 36.93.180 OBJECTIVES The Boundary Review Board considered RCW 36.93.180 (Objectives), as follows: RCW 36.93.180(1)PRESERVATION OF NATURAL NEIGHBORHOODS AND COMMUNITIES The Querin Area (Expanded) is a neighborhood as that term is defined by case law, as "either geographically distinct areas or socially... distinct groups of residents". The Querin Area (Expanded), in its entirety, exhibits many features that support its link with the City. Both the Querin Area (Expanded) and the adjacent City lands are residential in character. Demographic profiles are similar. Residents of the City and the Querin Area (Expanded) use common community facilities — schools, roadways, libraries, shopping centers, parks, and recreation facilities. The entire Querin Area (Expanded) is linked to the City of Renton by its significant environmental features, including Honey Creek, topographic elements, vegetated areas, and wetlands. The "built community" in the Querin Area (Expanded) and in the adjacent City of Renton both affects and is affected by these natural features. The City of Renton Comprehensive Plan anticipates annexation of the Querin Area (Expanded). The City has already included the Querin Area (Expanded) in its Potential Annexation Area. The Querin Area (Expanded) is included in community planning programs in order to enable the City to guide growth and to provide coordinated services. Annexation of the Querin Area (Expanded) promotes ; the preservation of the neighborhood because this action would provide stronger links within the greater community and encourages a more effective connection to the City of Renton. Annexation of the Querin Area (Expanded) advances preservation of the neighborhood because this action would provide stronger tools for the City of Renton to guide coordinated community development in a manner which considers both built lands and the critical natural areas. Renton officials have an established commitment to provide Querin Area (Expanded) citizens a voice and a vote in planning for the future development of the built community and preservation of environmentally sensitive areas. City representatives demonstrate plans to effectively govern and serve this area as a part of a unified community. King County officials support the annexation of the entire Querin Area (Expanded) citing that annexation would be consistent with state, regional and local guidelines. Further, annexation at this time will benefit the citizens by providing uniform governance of the Area. RCW 36.93.180 (2) USE OF PHYSICAL BOUNDARIES, INCLUDING BUT NOT LIMITED TO BODIES OF WATER, HIGHWAYS,AND LAND CONTOURS Physical boundaries (e.g., roadways, topographic features) existing in this general area support the annexation of the Querin Area (Expanded) as a more logical action than annexation of the original Querin Area. The Querin Area (Expanded) Annexation provides reasonable physical boundaries (e.g., co-terminus borders, rights-of way); the original Querin Area included boundaries that divide the community and create less a less discernible framework for provision of local governance and service. 6 "Social neighborhoods" may also be the basis for boundaries. The evidence shows that the City and the Querin Area (Expanded)form a single social neighborhood. Annexation of the Querin Area (Expanded) furthers the planning goals established by King County and by the City of Renton in support of providing local governance to unincorporated urban area in King County. The Querin Area (Expanded)Annexation is a comprehensive action designed to create a unified community with established physical and social boundaries. Approval of the original Querin Area Annexation would create confusion with respect to community identification. RCW 36.93.180(3)CREATION AND PRESERVATION OF LOGICAL SERVICE AREAS Annexation of the Querin Area (Expanded) into the City of Renton will advance the creation and preservation of logical service areas. The State Growth Management Act and the King County Comprehensive Plan identify cities as the providers of urban services. The Renton Comprehensive Plan (including the Land Use Plan, Comprehensive Sewer and Water Plans, Transportation Element, Comprehensive Storm Water Management Plan) designates the City as the provider of services for the entire Querin Area (Expanded). The Querin Area (Expanded) creates and preserves logical service areas by including a greater number of properties in the City's service area. Modification to include this entire area will enable design and implementation of efficient, consistent, consolidated service programs throughout the Querin Area (Expanded). These services (e.g., upgrades to rights-of-way; provision of storm water and surface water management systems) will promote protection of the built environment and the natural environment. King County officials support incorporation of the Querin Area (Expanded) into the City of Renton to provide citizens with more effective, efficient governance. A single, integrated annexation would permit coordinated development plans, uniform service areas and service systems, and cohesive environmental protection standards. A more limited, incremental annexation plan will further complicate an already complex service system. The County supports annexation of small isolated urban areas, such as the Querin Area (Expanded), because King County does not have the resources to efficiently manage and serve unincorporated islands. RCW 36.93.180(4)PREVENTION OF ABNORMALLY IRREGULAR BOUNDARIES The evidence shows that annexation of the Querin Area (Expanded) would provide a reasonably regular boundary consistent with the Renton Comprehensive Plan Annexation Element/Potential Annexation Area Map. Modification of the original Querin Area proposal to include the Querin Area (Expanded) for annexation to Renton is consistent with the intent of this criterion to achieve the boundaries necessary to facilitate coordinated land uses and offer a more effective, efficient solution to provision of services. The original Querin Area Annexation would create a more discontinuous than regular boundary. This boundary would not promote effective governance and is inconsistent with this objective. RCW 36.93.180(5)DISCOURAGEMENT OF MULTIPLE INCORPORATIONS RCW 36.93.180 (5) is not applicable to File No. 2222. RCW 36.93.180(6)DISSOLUTION OF INACTIVE SPECIAL PURPOSE DISTRICTS RCW 36.93.180(6) is not applicable to File No. 2222. RCW 36.93.180(7)ADJUSTMENT OF IMPRACTICAL BOUNDARIES The Querin Area (Expanded) Annexation would create practical boundaries necessary to achieve the preservation of the community, coordinated governance, and planning activities (e.g., establishment of coordinated land uses and development standards.) The Querin Area (Expanded) Annexation would also place the linked natural environment under City jurisdiction, thus creating more practical boundaries for preservation and management of critical areas. 1610, 7 The original Querin Area Annexation fragments community borders. Fragmented boundaries result in splintering of community identity. Effective and efficient governance is hindered by discontinuous boundaries. NINO RCW 36.93.180 (8) INCORPORATION AS CITIES OR ANNEXATION TO CITIES OF UNINCORPORATED AREAS WHICH ARE URBAN IN CHARACTER The entire Querin Area (Expanded) lies within the Urban Growth Area established by the King County Comprehensive Plan. This definition addresses both existing land characteristics and future designation/use plans applicable to the Querin Area (Expanded). The "urban" designation of the Querin Area (Expanded) is also supported by the State Growth Management Act. The City of Renton Comprehensive Plan includes the entire Querin Area (Expanded) in its Potential Annexation Area. Immediate annexation of the Querin Area (Expanded) into Renton will promote uniform governance, development, and services appropriate for this urban territory. RCW 36.93.180 (9) PROTECTION OF AGRICULTURAL AND RURAL LANDS FOR LONG TERM PRODUCTIVE AGRICULTURAL/RESOURCE USE RCW 36.93.180 (9) is not applicable to File No. 2222. III. BOUNDARY REVIEW BOARD FINDINGS AND DECISIONS The Boundary Review Board undertook review and deliberation of File No. 2222 based upon the record of written documents and oral testimony, in keeping with applicable state, regional and local regulations. The Board considered Chapter 36.93 RCW (Boundary Review Board Enabling Act); Chapter 36.70A RCW (Growth Management Act); King County Comprehensive Plan/Countywide Policies; City of Renton Comprehensive Plans, Chapter 35A.14 RCW (Annexation by Code Cities); and other relevant regulations and guidelines. As prescribed by statutory mandate, the Boundary Review Board considered the following options: ■ The Querin Area Annexation (seven acres) could be accepted as originally proposed by the City of Renton if this action is consistent with the provisions of 36.93 RCW and other applicable regulations (e.g., 36.70A RCW, King County Comprehensive Plan, Renton Comprehensive Plan). ■ The Querin Area Annexation could be modified as proposed by the City of Renton to incorporate 24 acres (Querin Area — Expanded) if the proposed expansion is consistent with the basic requirements of 36.93 RCW and other applicable regulations (e.g., the State Growth Management Act, the King County Comprehensive Plan, and the Renton Comprehensive Plan). Modification can be accomplished pursuant to RCW 36.93.150, which establishes the standard by which the Board may revise annexation boundaries to cities. This alternative would require all properties within the Querin Area (Expanded)to immediately be incorporated into the City of Renton. ■ The Querin Area/Querin Area (Expanded) could be denied by the City of Renton if this action is consistent with the provisions of 36.93 RCW and other applicable regulations (e.g., 36.70A RCW, King County Comprehensive Plan, Renton Comprehensive Plan). The record for File No. 2222 is detailed and extensive. The parties provided considerable materials supporting their positions. The Board has deliberated upon the complete record in order to come to a decision for the proposed Querin Area Annexation and the proposed alternative Querin Area (Expanded)Annexation. The Board finds that: ■ Annexation of the Querin Area (Expanded) is consistent with the provisions of 36.93 RCW. For example, the Querin Area (Expanded) annexation addresses criteria established in RCW 36.93.170 with respect to population, territory, comprehensive planning, land uses, natural environment, service needs and service capacity, and mutual social and economic needs, et al. The initially proposed Querin Area is inconsistent with the preponderance of provisions of RCW 39.63.170. 8 Additionally, the proposed Querin Area Annexation and the Querin Area (Expanded) were evaluated according to the criteria established in RCW 36.93.180 as follows: *00010, RCW 36.93.180 QUERIN AREA (EXPANDED) QUERIN AREA(7 ACRES) (24 ACRES) OBJECTIVE 1 - PRESERVATION ADVANCES OBJECTIVE BY INCONSISTENT WITH OF NATURAL NEIGHBORHOODS ANNEXATION OF PROPERTIES OBJECTIVE AND COMMUNITIES INCLUDED IN A NATURAL COMMUNITY OBJECTIVE 2 - USE OF ADVANCES OBJECTIVE BY INCONSISTENT WITH PHYSICAL BOUNDARIES ACHIEVING ESTABLISHED OBJECTIVE COMPREHENSIVE PAA BOUNDARIES. OBJECTIVE 3 - CREATION ADVANCES OBJECTIVE BY INCONSISTENT WITH AND PRESERVATION OF LOGICAL ENABLING COORDINATED OBJECTIVE SERVICE AREAS SERVICES TO ADDRESS PUBLIC HEALTH&WELFARE. OBJECTIVE 4-PREVENTION ADVANCES OBJECTIVE BY INCONSISTENT WITH OF ABNORMALLY IRREGULAR CREATING REGULAR BOUNDARY OBJECTIVE BOUNDARIES LINES OBJECTIVE 5 — DOES NOT APPLY DOES NOT APPLY DISCOURAGEMENT OF MULTIPLE INCORPORATIONS OBJECTIVE 6 - DISSOLUTION DOES NOT APPLY DOES NOT APPLY OF INACTIVE SPECIAL PURPOSE DISTRICTS OBJECTIVE 7 - ADJUSTMENT ADVANCES OBJECTIVE BY INCONSISTENT WITH OF IMPRACTICAL BOUNDARIES CREATING PRACTICAL BOUNDARY OBJECTIVE LINES OBJECTIVE 8 — ADVANCES OBJECTIVE AS ENTIRE INCONSISTENT WITH INCORPORATION ...OR URBAN AREA IS INCORPORATED OBJECTIVE ANNEXATION TO CITIES .... OF INTO A LOCAL JURISDICTION. UNINCORPORATED URBAN AREAS OBJECTIVE 9—PROTECTION OF DOES NOT APPLY DOES NOT APPLY AGRICULTURAL AND RURAL LANDS... ■ State Growth Management Act policies and King County Comprehensive Plan/Countywide Policies require logical and orderly growth. In accord with those guidelines, RCW 36.93.150 permits the Board to modify an annexation (e.g., increase the territory incorporated into a city) to promote logical and orderly growth —e.g., effective governance, efficient service provision. The Board finds that annexation of the Querin Area (Expanded) achieves/advances the provisions of the Growth Management Act(36.70A RCW). ■ The King County Comprehensive Plan/Countywide Policies and the Renton Comprehensive Plan contemplate logical and orderly growth of communities. These County and City plans support local governance to assure balanced, sound, cost-effective governance for community members. 9 The Board finds that the proposed Querin Area (Expanded) Annexation meets the provisions of the King County Comprehensive Plan/Countywide Policies and the City of Renton Comprehensive Plan. Annexation of the Querin Area (Expanded) would achieve that balance that the County and the City seek from incorporations IV. CONCLUSIONS Approval of the Querin Area (Expanded) Annexation as modified to include the proposed 24 acre area, advances the goals established in the Boundary Review Board Act (36.93 RCW ), Growth Management Act (RCW 36.70A), King County Comprehensive Plan, City of Renton Comprehensive Plan, and other state and local guidelines for incorporation of urban areas. Approval of the City of Renton Notice of Intention to annex the Querin Area with modifications to include the Querin Area (Expanded) is timely based upon the City of Renton's commitment — as established in the Renton Comprehensive Plan — to guide development and provide municipal services to this area. The Querin Area (Expanded) Annexation will enable the City of Renton to provide a harmonious, efficient plan for governance of the built community, preservation of the natural environment, and protection of public welfare. Oi 10 Nixie NOW, THEREFORE, BE IT RESOLVED BY THE WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY THAT, for the above reasons, the action proposed in the Notice of Intention contained in said File No. 2222 be, and the same is, hereby approved with modifications as described in Exhibits attached hereto and incorporated herein by reference. ADOPTED BY SAID WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY by a vote of fl in favor , N p w e in opposition, and Z abstentions, on this$day of June, 2006, and signed by me in authentication of its said adoption on said date. WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY '4irrr+ ett6,-_LL ! Charles Booth, Chair FILED th. l day of 1.370 et, , 2006 BY: Lenora Blauman, Exe utive Secretary low 11 EXHIBITS EXHIBIT I CITY OF RENTON QUERIN AREA (EXPANDED): LEGAL DESCRIPTION OF MODIFIED ANNEXATION AREA BOUNDARIES EXHIBIT II CITY OF RENTON QUERIN AREA(EXPANDED): MAP OF MODIFIED ANNEXATION AREA BOUNDARIES NIS *4416101 12 EXHIBIT I QUERIN II ANNEXATION LEGAL DESCRIPTION That portion of the Northeast quarter of the Northwest quarter of the Northeast quarter of Section 10, Township 23 North, Range 5 East, W.M., King County, Washington, lying northerly of the south line of the north 165 feet of the south half(1/2) thereof; LESS the west 30 feet thereof. Nea,,,. TOGETHER WITH that portion of the Southwest quarter of the Southeast quarter of Section 3, Township 23 North, Range 5 East, W.M., King County, Washington, lying southwesterly of the existing City Limits of Renton as annexed by Ordinance No. 4092, and lying easterly of the existing City of Limits of Renton as annexed by Ordinance No. 4026. ii tt!4* 1 ..• .il #46 ■I► I / /l Ir Frii imitiror mark/.if1/1 II��►1 1��; NEER Yrii �laig ' 0 dil.�li� ./bra /1 a lui Q P. 04-th St, mien i 31 IN IUhi moi► '•�04 lill c■1�l�Li mt j�� � f� NI, `►�i1► �'�Ill* 1 � AMMO 114 wet* a ii- .■ ^� m « pMIA .l, Win aDq o0, ■rr,_41.,..iouritovi ,q) nktri, 6 totters �, w ift...,-- . a� • N Nam -7ATir....trA M Wil $24!;I :' ;: ' �vr• tA i icS•1'i {•el . 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WigSIMIlifl . 111,1114 fai ii RE ma gm .:t it io I : = -G' i Num ►�iilI 1Irr 1r��� w■11iNOM ,�/ilk la :` 4 r► 4iii 1[�i1�1■ ■ ■'(�71�i �" ./dol � „Aor* .1 [[� lore ��411it, 111111b J",HO ■ Mk Iowmenf N o araphk notion.not PamUM /iil�l� ►E 6th S' ■ ; . ►,F"' r a,ar�.1aolo�.sa.e to mop a for d,„r z,„-- ondS ,—..—.L.b_L.)uerin II Annexation EXHIBIT II ° 800 1600 vie figure 1:Vicinity Map 1 : 9600 t4 r----- Economic Development,Neighborhoods&Strategic Planning — -- Renton City Limits AM 1. Alp,Pieccch.Administrator Original Annexation Area Figure 1. , I la O ; O L= ......41ii 'egSf,..., 111/111 I 0 If O %eco 4 00 - D o Q. Q41 0 g tz :7 0 o i , ,L2 . tri; IMI 11111 ' w Nal L a:II - • - ! i o ri , 'L O O LEIER '""Siik O , . This document is a graphic representation,not guaranteed to �y accuracy, mended for city pu poses only and based the best'formation owtloble of the date shown. This mop is for display purposes only. Querin Annexation 0 200 400 Nuogure 3: Existing Structure Map 1 : 2400 GtiT 0,6 Economic Development,Neighborhoods&Strategic Planning Existing Structure Alex Pietsch,Administrator �N`� + G.Del Rosario -- Renton City Limits . To'$ 26 October 2004 I I Proposed Annexation Area Figure 2. I ❑ I I Y 0 G u D CL1r3i .k I I 0 Cf) ‘C/C2 H o i 41111101imi . 1/4 L ,es.04. 90_, __, '_,'-f ._ H ':::: : al .....,. alb, ulta, ilL no it .MI , , , . I iiimpr-::„ •, MS ► 77 0 1 ] � S ° 7 C U C C 1 / C - . — • E __,-- E 0 \ 0 This isurvey ent Is auraaya intehic dedrepresentation, foritypunoest ogniy ander based on the Deet information avatlthle os of theydate shown. i _T This map is for display purposes only. Querin II Expanded Annexation 0 200 400 Noliogure 3: Existing Structure Map 1 : 2400 S' 0.41 {, Economic Development,Neighborhoods&Strategic Planning Existing Structure + + Alex Pietsch,Administrator "` G.Del Rosario Renton City Limits��NTO 18 January 2006 I= Proposed Annexation Area Figure 3, lain G •*41% , OW ... goods ai . - 0 • 48114° 10 1011 a _ rie," A "AL 1s HI f__ p rill A MINAmid • ' .________i i ___, _ , II w , i1lpes $ Ceek IS.t /I •.. ,>:' • . .. . _, , ., ,. _ . 0 ,110, ,._As:-:,-. 1,4 C, '41rive 11111b4111110 SE11 t Illtalai Itl H I f 1 .0 1111111111 , ,� � t ____\ , - v Q 0 i_, j , ,___________.,.., ,_cD ,- . __,„.., -_,. it 11T- St Q '-- Mill IIII I ------------------ !i\ Ir This document is a graphic representation,not guaranteed I to survey accurxy, tendetl iorawity Wrpouas ly and — based on the best in/p purposes ilobie as f the date shown. This map is for display purposes only. , s-l-t Querin II Expanded Annexation 400 800 „ Zoning Map 1 : 4800 c.>. O,„ Economic Development,Neighborhoods&Strategic Planning --- ----- Renton City Limits • gt ♦ Alex Pietsch,Administrator Proposed Boundary d Annexation G.Del Rosario '4'NTO$ 18 January 2006 1 I Proposed R-8 Zoning t v.., f ity of Renton ( ( Merritt II (Phase II) Current Annexations r 7,-„ . , ,' (.11 ,Perkins 52.7 ac. 15.6 ac. v, • , . t,,,,, , „... -- - -\- ,,7-- ,_ Aster Park ,/, . \•,,. ,i -1-1- r, .:-: '- ',..1: 18.5 ac. Querin 5- 101 ‘t 24,0 ac.SEA ITi 41. 1,,, ' '77\'',,\ ¢ C 2 ....0 Hoquiam 20,4 ac. , ,,,, 1 • Preserve Our Plateau 1474,5 ac. \ \ , ,,A, :! . - , [ --,q, ;,,:',. . . ' ' - " . ,,,, 1: -, , Leitch . , . 1 ,1 16.2 ac. , Maplewood ,, , i - . ,,,„, -!-,.• Addition I' i K W i l'A 60.5 ac. , ,, ,.....m,-.-., i r "' - " - ^ °" -'I Hudson Akers Farms I) , ; 5 14.6 ac. 13,9 ac., • ! i t , , - : I t Falk 11 ' , 6.8 ac. 1 „ 't t„..• ,,,, 1 , ,•., , t I , I Anthone' - -, V 25.7 ac, ,. x CITY OF RENTON COUNCIL AGENDA BILL AI#: . �n Submitting Data: For Agenda of: 7/17/2006 Dept/Div/Board.. Hearing Examiner Staff Contact Fred J. Kaufman, ext. 6515 Agenda Status Consent X Subject: Public Hearing.. Correspondence.. Honey Creek View Estates Preliminary Plat Ordinance File No. LUA-05-118, ECF, PP Resolution Old Business Exhibits: New Business Hearing Examiner's Report and Recommendation Study Sessions Legal Description and Vicinity Map Information Recommended Action: Approvals: Legal Dept Council Concur Finance Dept Other Fiscal Impact: Expenditure Required... N/A Transfer/Amendment Amount Budgeted Revenue Generated Total Project Budget City Share Total Project.. SUMMARY OF ACTION: The hearing was held on May 9, 2006. The Hearing Examiner's Report and Recommendation on the Honey Creek View Estates Preliminary Plat was published on June 12, 2006. The appeal period ended on June 26, 2006. The Examiner recommends approval of the proposed preliminary plat subject to the conditions outlined on pages 11 and 12 of the Examiner's Report and Recommendation. Conditions placed on this project are to be met at later stages of the platting process. STAFF RECOMMENDATION: Approve the Honey Creek View Estates Preliminary Plat with conditions as outlined in the Examiner's Report and Recommendation. Rentonnetlagnbill/ bh June 12, 2006 14100, OFFICE OF THE HEARING EXAMINER CITY OF RENTON Minutes APPLICANT: Phillip Kitzes PK Enterprises 23035 SE 263rd Street Maple Valley, WA 98038 PROJECT NAME; Honey Creek View Estates Preliminary Plat File No.: LUA 05-118, ECF, PP, CAR, V-H LOCATION: 3524 NE Sunset Boulevard SUMMARY OF REQUEST: Approval for a 9-lot 2-tract subdivision of a 1.8- acre site intended for the development of single- family detached residences. SUMMARY OF ACTION: Development Services Recommendation: Approve subject to conditions DEVELOPMENT SERVICES REPORT: The Development Services Report was received 'Nor by the Examiner on May 2,2006. PUBLIC HEARING: After reviewing the Development Services Report,examining available information on file with the application, field checking the property and surrounding area; the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the May 9, 2006 hearing. The legal record is recorded on CD. The hearing opened on Tuesday,May 9, 2006,at approximately 9:01a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing the Exhibit No. 2: Geotechnical Engineer's Site original application,proof of posting,proof of Plan Sheet A2 Showing Cross Sections publication and other documentation pertinent to this project. err 41111111111111111116. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP,CAR,V-H, ECF June 12,2006 Page 2 Exhibit No.3: Preliminary Plat Plan Exhibit No.4: Preliminary Storm, Sewer and Water Plan Exhibit No.5: Preliminary Grading Plan Exhibit No. 6: Conceptual Landscape Plan Exhibit No.7: Critical Area Exemption Exhibit No. 8: Boundary/Topographic Survey Letter Exhibit No.9: Zoning Map Exhibit No. 10: ERC Mitigation Measures The hearing opened with a presentation of the staff report by Jill Ding, Senior Planner, Development Services,City of Renton, 1055 S Grady Way,Renton,Washington 98055. The property is zoned Residential—10 dwelling units per acre(R-10)and is located in the Comprehensive Plan designation of Residential Medium Density(RMD). The existing site contains a single-family residence that is proposed to be removed. The property is located north of NE Sunset Boulevard,NE 17th Place is northeast of the subject site and the property is west of Union Avenue NE. The neighborhood surrounding the proposal is primarily single-family residential and the site is approximately 1.8 acres. The proposal would include 9 single-family lots and 2 tracts,Tract A for stormwater and Tract B is a sensitive area tract. Within Tract B is Honey Creek, Class 3 Stream, some protected slope areas and a wetland in the SE corner. The proposed lots would range from approximately 3,000 square feet to 4, 333 square feet. A Class 4 stream was identified on the property to the northeast of the subject site, the applicant has proposed to connect to the existing sewer line to the north and would have to run under a piped section of the stream. The applicant has proposed a vault for the stormwater in Tract A, from that vault a stormwater outlet pipe would go down the protected slope area within Tract B and would outfall into Honey Creek. A Critical Exemption letter to locate the stormwater pipe within the stream buffer was approved,a variance is required for any impacts proposed to a protected slope. Access to the proposed lots would be provided through a 42-foot wide internal access road(Road A)that will access off of NE Sunset Boulevard on the southern portion of the subject site. Road A terminates in a hammerhead turnaround,at the northern terminus of the hammerhead a modification has been granted to reduce the right-of-way width to 20 feet. The Environmental Review Committee issued a Determination of Non-Significance—Mitigated (DNS-M),which included 8 mitigation measures. No appeals were filed. An addendum to the DNS-M was issued on May 3,2006,which discloses the presence of a stream. No appeal period is required for an addendum. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR, V-H, ECF June 12,2006 Page 3 The proposed plan is consistent with the Land Use Element,Community Design Element and Environmental Element of the Comprehensive Plan Designation. The proposed plat has a net density of 9.57 du/ac, which complies with the density requirements for the R-10 zone. All lots appear to be in compliance with the required lot width, depth and size standards as prescribed in the R-8 zone. Proposed Lots 3-6 would have rear yards abutting an R-8 zoned property, these lots will be required to provide 25-foot rear yard setbacks. The proposed lots appear to contain adequate area to provide for the construction of single-family residences. All setbacks will be verified prior to issuing individual building permits. The proposed lots will be limited to one single-family dwelling unit per lot,the face of the final plat will have a note stating that no more that 1 single-family dwelling unit is permitted on each lot. An existing residence is proposed to be removed from the subject site. The demolition permit and all inspections must be completed prior to final plat approval. A conceptual landscape plan has been provided that proposes a 10-foot landscaped strip along the Lots 1 and 9 within the NE Sunset Boulevard right-of-way and a 5-foot landscape strip within Lots 2 and 7 along the proposed frontage of Road A. Approximately 11 trees are proposed for the front yards of just about every lot. err The lots appear to comply with arrangement and access requirements of the Subdivision Regulations. The proposed lots appear to have sufficient building area for the development of detached single-family homes. All corner lots at intersections of dedicated public rights-of-way shall have a minimum radius of 15 feet. A homeowner's association or maintenance agreement for the development will be required for any common improvements and/or tracts within the plat. Traffic,Fire and Parks Mitigation Fees have been imposed on the project. The project site slopes down from south to north at approximately at 19.7%slope. There are moderate landslide hazard areas, erosion hazard areas and sensitive slopes located on the portion of the property that is proposed to be developed. Temporary Erosion and Sediment Control Plan and the use of Best Management Practices would serve to mitigate potential erosion and off-site sedimentation impacts. The project will be subject to the 2001 Depai fluent of Ecology Manual regarding erosion control. The City's critical areas regulation require that critical areas be protected under a Native Growth Protection Easement. Tract B will have a NGPE recorded prior to or concurrently with the recording of the final plat map. The majority of the vegetation would be removed for the construction of the short plat improvements, driveways, and building pads. Twenty-five percent(25%)of the existing trees are New required to be replaced on development within the City. The retention of trees outside of the Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR,V-H, ECF June 12,2006 Page 4 Ned sensitive area tract on this site is not possible due to the small size of the lots,any trees that would be retained would significantly hinder the proposed development due to the extensive amount of grading that is required. The applicant has proposed to remove all of the trees and has proposed a landscape plan that includes the installation of 11 Serviceberry trees,which is a replacement rate of 11%of the existing trees. The site is located within the boundaries of the Renton School District and the district has stated that they can accommodate the proposed 4 additional students. The existing surface water runoff sheet flows to the north into Honey Creek. The proposed onsite vehicular flows and other impervious runoff would be treated within a two-cell detention and water quality vault. The proposed vault would be located within the north central portion of the site within Tract A and would discharge into Honey Creek. The project is required to comply with the 2005 King County Surface Water Design Manual to meet both detention and water quality improvements. A landscape plan should be submitted for review and approval prior to recording of the plat. The development is located within the City of Renton's water and sewer service area. There is an existing 12-inch water main in NE Sunset Boulevard that can deliver a flow rate of 4,500 gallons per minute. Water main improvements require an 8-inch extension within the new street and fire hydrants capable of a minimum of 1,000 gpm must be located within 300 feet of all of the new structures. A sewer main extension along the proposed Road A will be required,any sewer mains outside of the right-of-way require a 15-foot utility easement with a drivable access through the easement. A sewer easement will be granted by the property owner to the north of the site, if the applicant is not successful in obtaining this easement,an alternate sewer location will be required and additional land use approvals may be required for the installation of the sewer main. Variance Criteria: A variance is required in order to locate a stormwater discharge pipe on a protected slope. The granting of the variance would provide better protection of the protected slope in this case. The denial of the variance would force the discharge of surface water to be at the top of the slope causing the water to flow down the slope and could cause potential erosion and compromise the stability of the slope. The stormwater discharge pipe would serve the surface water runoff needs of the residents of the subdivision and prevent any excess surface water runoff from leaving the project site and damaging properties downstream. The impacted area is proposed to be restored and replanted with vegetation that would have roots that would not impact the integrity of the stormwater outlet pipe. It would not jeopardize any endangered or sensitive species. The location within the protected slope area is the minimum variance that will accomplish the desired purpose and the variance is based on the best available science. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR, V-H, ECF June 12,2006 Page 5 Nose Phillip Kitzes,23035 SE 263'd Street,Maple Valley, WA 98038 stated that he is the applicant and contact person for the new owner,Price Property, LLC, 1201 Monster Road SW,#320, Renton 98055. They concur with the conditions that staff has presented. As to the sewer easement with the • property owners to the north, (Arthur and Wauneta Eastman)they have met several times. The actual alignment of where the sewer is to be located is going to be more apparent at final engineering. It will be an 18-inch culvert with a birdcage at the entrance to it, it is completely piped and controlled with manholes on site, a catch basin on site and finally goes down the slope and is released. He has not put together the final easement documents,but they are in communication with the Eastman's. They would like to see some fencing along the property line and planting of new vegetation and some repair work on the existing wall that is there. He would propose that the fencing on Tract B would be from the future residences only, going all the way around the property was not what they were looking for. The soils are excellent and very stable. The project works and meets all the codes, and meets the land use and intent that the City of Renton would like to see developed. The storm drainage will use the method that will have the least impact and not be a major disturbance. The roof drains will be captured,treated in the pond and then released. Neil Watts,Director Development Services stated that the geotech report addresses the existing soil conditions, the soils on this site are very good for development there are no unusual circumstances with the soil. The future reports will need to address the fill materials that will be brought into the site as well as specifics on certain construction aspects. The vault itself will need a building permit due to its very nature. The comprehensive plan for this area would allow for a variety of different zoning to be placed on this property,however the choice of preference would be the detached housing that has been chosen for this site. In the past this would have been treated as a short plat,with the new regulations,any site with 10 or greater lots, tracts, etc is treated as a preliminary plat. Therefore,rather than the Examiner making the final decision this request must go through an additional consideration with the City Council for final approval. There have been some unforeseen delays associated with this project and so it has been asked that, if possible it would be appreciated if the process moves along as quickly as possible. The tightline system recommended for this project required the variance, a sheet flow system would not have an impact to the slope,but in practice as time goes on it is very hard to keep those functioning. If it gets a little out of level the water tends to come out at one point versus a sheet flow and that is where the erosion problems begin on the slope. • • There is a lot of code support for tree replacement for projects,tree retention is not specifically spelled out but they are aiming for 25%retention. In the more open space lots they have been e able to achieve the 25%,on this particular property the trees in the sensitive areas are not Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP,CAR, V-H,ECF June 12,2006 Page 6 Nave counted,there did not appear to be any reasonable way to get to the 25%without setting aside an entire lot to be filled with trees. They looked carefully at the landscaping plan to include trees that would get them to the 11%ratio. There are substantial trees in the critical areas and those trees will be retained. For this project the soil types are very amenable to infiltration,the difficulty is when you get to the size of lots to have a reasonable place to dig infiltration pits. They should be a certain distance from the homes so that there is the ability to go in and do maintenance without undermining the structures. To be practical the design does call for tightlining the roof drains to the drainage system and down to the creek, which is allowed by the King County Surface Water Manual that will be used in this project. The property owners to the northwest seem to be very amenable to granting the easement. In order for this project to proceed,they will need the sewer easement. In the past plats have been approved where street systems required the approval from an adjacent plat that was in the preliminary phase. This plat will need a condition that in order to proceed they will have to have the sewer easement. There is a sewer main in Sunset,however the line is too high and would require a pump station and the City sewer utility is not approving a pump station approach for this site. There also is a sewer main along Honey Creek,the sewer line cannot be placed at the surface, it would have to be bored or trenched in some fashion. Any fencing would be along Tract B and the frontages with the new residential lots being created in the plat. The rest of the sensitive area extends off the property and they would be running fences that would not really make any sense. The Examiner called for further testimony regarding this project. There was no one else wishing to speak,and no further comments from staff. The hearing closed at approximately 10:06 am. FINDINGS, CONCLUSIONS&RECOMMENDATION Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1. The applicant,Phil Kitzes,PK Enterprises, filed a request for a 9-lot Preliminary Plat together with a variance to allow stormwater line intrusion across a sensitive slope. 2. The yellow file containing the staff report,the State Environmental Policy Act(SEPA) documentation and other pertinent materials was entered into the record as Exhibit#1. 3. The Environmental Review Committee(ERC), the City's responsible official issued a Determination of Non-Significance -Mitigated(DNS-M). 4. The subject proposal was reviewed by all departments with an interest in the matter. NIS Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR, V-H,ECF June 12,2006 Page 7 Noisy 5. The subject site is located 3524 NE Sunset Boulevard. The subject site is located on the north side of Sunset between Monroe Avenue NE on the west and Redmond Avenue NE on the east. 6. The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of medium density residential uses, but does not mandate such development without consideration of other policies of the Plan. 7. The subject site is currently zoned R-10 (Residential Options- 10 dwelling units/acre). 8. The subject site was annexed to the City with the adoption of Ordinance 1631 enacted in August 1957. 9. The subject site is approximately 1.8 acres or 78,512 square feet. The parcel is L-shaped or panhandle shaped. The parcel is approximately 464 feet wide at the northern property line, 218 deep along the western property line, approximately 137 feet wide along the eastern property line and has approximately 190 feet of frontage along Sunset Boulevard. 10. An existing home located in the southeast corner of the subject site would be removed if the plat were approved. Notsv 11. The subject site slopes downward to the north and northeast as it drops down to Honey Creek. The site slopes at an average of 19.7 percent. Moderate Landslide Hazard Areas, Erosion Hazard Areas and Sensitive slopes cover a majority of the subject site. Steeper, protected slopes,over 40 percent,are located along Honey Creek. Honey Creek runs at a diagonal across the eastern panhandle of the subject site and most of this area will be maintained as natural open space in Proposed Tract B. (See below for storm drainage exception) 12. Honey Creek is a Class 3 Stream. There is also a Category 3 wetland south of the creek in the extreme southeast corner of the panhandle of the site. Both of these areas as well as their required stream and wetland buffers would also be contained with Tract B. 13. The site is covered with a variety of second growth vegetation including Alder,Douglas Fir and Maple trees and ground shrubs including ivy, fern and blackberry. Most of the vegetation outside of the protected area would be removed to allow the development of homes, roads and driveways. 14. The plat will contain nine(9) single-family lots as well as two(2) separate tracts. The lots will be arranged around a hammerhead roadway that enters the site from Sunset Boulevard. Proposed Lots 1 and 2 are located west of the new roadway. Proposed Lots 3,4, 5 and 6 are located along the north side of the hammerhead while Proposed Lots 7 and 9 are located east of the hammerhead and Proposed Lot 8 located east of Proposed Lot 7. The proposed lots will range in size from approximately 3,000 square feet to 4,333 square feet. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP,CAR, V-H,ECF June 12,2006 Page 8 15. Two tracts would also be created. Tract A would contain the stormwater detention system and it would be 5,587 square feet. It would be located east of Proposed Lot 6. Tract B would contain the sensitive slopes,Honey Creek,the wetland and the creek and wetland buffer areas. It would be approximately 34,389 square feet. Tract B encompasses most of the eastern panhandle that extends off the northern portion of the site. 16. As noted, a hammerhead roadway would provide a 42-foot right-of-way into the site. A 20-foot east to west roadway will provide access to Proposed Lots 3, 6 and 8. A modification was granted to allow this portion of the road to be 20 feet wide. 17. The density for the plat would be 9.57 dwelling units per acre after subtracting sensitive areas, in this case,wetland,creek course and steep slopes, and roadways. The R-10 zoning permits a variety of housing types including the proposed detached single-family units. Staff did recommend that a condition restrict each lot to only one dwelling. 18. The subject site is located within the Renton School District. The project is expected to generate approximately 3 or 4 school age children. These students would be spread across the grades and would be assigned on a space available basis. 19. The development will increase traffic approximately 10 trips per unit or approximately 90 trips for the 9 single-family homes. Approximately ten percent of the trips,or approximately 9 additional peak hour trips will be generated in the morning and evening. 20. Stormwater currently sheet flows into the adjacent Honey Creek. Stormwater that falls on paved surfaces will be treated in a water quality vault on Tract A before being released to Honey Creek. The ERC imposed a condition requiring the higher 2005 Manual requirements for flow control. The vault will be required to have a building permit. The applicant has proposed releasing the stormwater at a point down the slope adjacent to Honey Creek. In order to install a pipe to convey water to the creek a variance will be necessary to intrude onto the steeper slopes above the creek. 21. Domestic water and sanitary sewer service is provided by the City in this area. The main sewer line along Sunset Boulevard is apparently too high to serve this site by gravity.The sewer line would require cooperation from an adjacent owner or a new plan will be required in order to provide sewer to the subject site. CONCLUSIONS: Critical Areas Variance 1. A variance may be used to locate certain necessary infrastructure in critical areas. "Special Review Criteria" (Section 4-9-250B(10)must be evaluated before granting a variance.to locate such infrastructure in critical areas containing protected slopes, wetlands, geologic hazard areas,etc. Public/Quasi-Public Utility or Agency Altering Aquifer Protection,Geologic Hazard,Habitat,or Wetland Regulations: In lieu of the variance criteria of subsection B5 of this Section, applications by public/quasi-public Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR, V-H, ECF June 12,2006 Page 9 utilities or agencies proposing to alter aquifer protection, geologic hazard, habitat, stream and lake or wetland regulations shall be reviewed for compliance with all of the following criteria: a. Public policies have been evaluated and it has been determined by the Department Administrator that the public's health, safety,and welfare is best served; b. Each facility must conform to the Comprehensive Land Use Plan and with any adopted public programs and policies; c. Each facility must serve established, identified public needs; d. No practical alternative exists to meet the needs; e. The proposed action takes affirmative and appropriate measures to minimize and compensate for unavoidable impacts; f. The proposed activity results in no net loss of regulated wetland area, value,or function in the drainage basin where the wetland is located; g. The proposed activities will not jeopardize the continued existence of endangered, threatened or sensitive species as listed by the Federal government or the State; h. That the proposed activities will not cause significant degradation of groundwater or surface water quality; and i. The approval as determined by the Hearing Examiner is a minimum variance that will accomplish the desired purpose. (Ord.4835, 3-27-2000; Amd. Ord.4851, 8- Nouse 7-2000) Section 4-9-250B(10)contains the following language: "Special Review Criteria-Public/Quasi-Public Utility or Agency Altering Aquifer Protection, Geologic Hazard,Habitat, Stream/Lake or Wetland Regulations: In lieu of the variance criteria of subsection B5 of this Section, applications by public/quasi-public utilities or agencies proposing to alter aquifer protection, geologic hazard,habitat, stream and lake or wetland regulations shall be reviewed for compliance with all of the following criteria:" (Emphasis supplied) It would appear that these criteria may be used to grant a public or quasi-public agency the ability to apply for a variance to place the storm line down the steep slopes but this does not extend to a private entity such as the applicant or the successor-in-interest, homeowners association. It would appear that variances from the critical area protections were intended for larger public projects that affect the overall public health, safety and welfare. One might also surmise that public agencies might be able to deal with any monetary consequences should the utility fail and jeopardize a hillside or creek or wetland. This office does not believe it can grant a variance to a private entity in this matter. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR,V-H, ECF June 12,2006 Page 10 Preliminary Plat 2. At the public hearing the parties acknowledged that they were dealing with a problematic property and that it took a concerted effort to design a project that could meet the City's development regulations. As can be seen by the difficulties in dealing with both stormwater and sanitary sewer waste,the site is constrained by its physical location. The reality is that while developing this parcel serves the applicant's property interests and even serves the City's interests in creating new,affordable housing tracts, sometimes a site has severe limitations. With that in mind,this office will recommend that the City Council approve this plat but only after the applicant succeeds in overcoming the remaining obstacles. This office will need to see how the applicant will create acceptable sewer and stormwater solutions before forwarding the matter to the City Council. 3. Subject to the first conclusion above,the proposed plat appears to generally serve the public use and interest. It provides additional single-family detached housing in a growing suburban community. It will also provide small-lot housing for those who did not want to maintain larger lots. The plat also accommodates its sensitive area and site. The applicant will be protecting almost three-quarters of an acre of creek bed,wetlands and steep slopes in Tract B. 4. The ERC has imposed mitigation fees to help offset the impacts on the roads,emergency services and the city's parks. The development of the plat should also generate additional taxes that offset the impacts of this development on the City. „,IS 5. The applicant will have to provide written assurances in some form or other that a sewer line can serve the subject site. Currently,the applicant proposes connecting to a system northwest of the subject site but has not yet received the necessary right to make that connection. Before a plat can be approved, a known method of accommodating its sanitary sewerage is required. 6. The applicant will now,also,have to come up with a method that deals with its stormwater. Even the variance criteria pertaining to public agencies required that "no practical alternative exists to meet the needs" of the proposal. The applicant will have to come up with some other practical method of handling stormwater for this site. Again, an actual design plan will be required so that this office can assure the City Council that this plat is appropriate and will not burden the City or its eventual homeowners with potential problems. 7. In summary,the Preliminary Plat is not ready to be forwarded to the City Council. The applicant will have to provide necessary assurances that it can provide sewer service to the nine lots and also provide a method of dealing safely and affectively with its stormwater. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR, V-H,ECF June 12,2006 Page 11 Nose RECOMMENDATION: When the applicant has appropriately designed its sanitary sewer and stormwater conveyance system,the City Council should approve the Preliminary Plat subject to the following conditions: 1. The applicant shall comply with all requirements of the Determination of Non- Significance—Mitigated that were issued by the Environmental Review Committee on March 14,2006. 2. A note shall be recorded on the face of the final plat stating that no more than one single-family dwelling unit is permitted on each lot. 3. A demolition permit shall be obtained and all inspections completed on the demolition of the existing residence prior to final plat approval. 4. The applicant shall be required to place"No Parking"signage along the hammerhead prior to final plat approval. 5. A homeowner's association or maintenance agreement shall be created concurrently with the recording of the final plat in order to establish maintenance responsibilities for shared roadway, stormwater and utility improvements. A draft of the documents(s) shall be submitted to the City of Renton Development Services for review and approval by the City Attorney and Property Services section prior to the recording of the final plat. 6. A Native Growth Protection Easement shall be recorded over Tract B prior to the recording of the final plat map. 7. The proposed sensitive area tract(Tract B) shall be delineated with a split rail fence and identified with signage as approved by the Development Services Division Project Manager. A fencing and signage detail shall be submitted to the Development Services Division project manager at the time of Utility Construction Permit for review and approval and that such fencing and signage shall be installed prior to the recording of the final plat. 8. The landscape plan shall be revised to show that 2-inch caliper trees shall be provided within the interior of the plat as opposed to the 1 V2-inch caliper trees proposed. A revised landscape plan shall be submitted prior to final plat approval. 9. A trail easement within Tract B shall be dedicated to the City of Renton Parks Department for the Honey Creek Trail. The easement shall be required to be dedicated prior to or concurrently with the recording of the final plat. 10. The applicant shall submit a landscape plan for the storm water detention tract `"'i' (Tract A). Proposed landscaping shall either be drought tolerant or irrigated. Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR,V-H, ECF June 12,2006 Page 12 The landscape plan shall be submitted at the time of Utility Construction Permit application to the Development Services Division project manager for review and approval. The landscaping shall be installed prior to recording of the final plat. 11. The applicant shall provide documentation that they can effectively provide sanitary sewer service to the subject site. The applicant shall provide written approval by the City's utility division that their proposed method meets City criteria. 12. The applicant shall provide documentation that they can effectively provide stormwater service to the subject site. The applicant shall provide written approval by the City's utility division that their proposed method meets City criteria. ORDERED THIS 12th day of June 2006 FRED J.KA AN HEARING E INER TRANSMITTED THIS 12th day of June 2006 to the parties of record: ,44100- Jill Jill Ding Neil Watts Philip Kitzes 1055 S Grady Way Director,Development Services PK Enterprises Renton,WA 98055 City of Renton 23035 SE 263`d Street Maple Valley,WA 98038 James&Minoo Costello Charles&Mahwash Price Ali&Farideh Mastan 22814 77th Avenue SE 16102 NE 175th Street 13910 SE 42"d Street Woodinville,WA 98072 Woodinville,WA 98072 Bellevue,WA 98006 Arthur E.Eastman A.L.Meakin 3533 NE 17TH place 7100 S Taft Street Renton,WA 98056 Seattle,WA 98178 TRANSMITTED THIS 12th day of June 2006 to the following: Mayor Kathy Keolker Stan Engler,Fire Jay Covington, Chief Administrative Officer Larry Meckling,Building Official Julia Medzegian,Council Liaison Planning Commission Gregg Zimmerman, PBPW Administrator Transportation Division Alex Pietsch, Economic Development Utilities Division Jennifer Henning,Development Services Neil Watts,Development Services Stacy Tucker,Development Services Janet Conklin,Development Services King County Journal Honey Creek View Estates Preliminary Plat File No.: LUA-05-118 PP, CAR, V-H,ECF June 12, 2006 Page 13 New Pursuant to Title IV, Chapter 8, Section 100(G)of the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m.,June 26,2006. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact,error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14) days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record,take further action,as he deems proper. An appeal to the City Council is governed by Title IV,Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of$75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m.,June 26,2006. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the executed Covenants will be required prior to approval by City Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte(private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a Now land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. 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CITY Of R YR. - • ( %, -INININ NIA A CITY OF RENTON DETERMINATION OF NON-SIGNIFICANCE-MITIGATED MITIGATION MEASURES APPLICATION NO(S): LUA05-118, PP, CAR, V-H, ECF APPLICANT: Phil Kitzes, PK Enterprises PROJECT NAME: Honey Creek View Estates Preliminary Plat DESCRIPTION OF PROPOSAL: The applicant is proposing to subdivide an existing 78,512 square foot (1.8 acre) parcel located within the Residential-10 (R-10) dwelling unit per acre zoning designation into 9 lots, a stormwater detention tract (Tract A), and a native growth protection tract (Tract B). An existing residence is proposed to be removed. The lots would be proposed for the future construction of detached single family residences. The lots range in area from 3,000 square feet to 4,333 square feet. Access to the lots would be provided via a new 42-foot wide road (Road A)proposed to be dedicated as right-of-way. The proposed Road A terminates in a hammerhead turnaround. A class 3 stream (Honey Creek) flows across the eastern portion of the subject site; in addition Protected Slopes and a category 3 wetland'are located on the eastern portion of the subject site. LOCATION OF PROPOSAL: 3524 NE Sunset Boulevard LEAD AGENCY: The City of Renton Department of Planning/Building/Public Works Development Planning Section MITIGATION MEASURES: 1. The earthwork activities to be conducted onsite shall only be permitted to occur during the dry months of the year. The applicant to comply with the recommendations found in the preliminary geotechnical site evaluation prepared by Bergquist Engineering Services dated July 22, 2005 and the follow up geotechnical evaluation dated February 12, 2006. 3. The applicant shall be required to provide a Temporary Erosion and Sedimentation Control Plan (TESCP) designed pursuant to the Department of Ecology's Erosion and Sediment Control Requirements outlined in Volume II of the Stormwater Management Manual and provide staff with a Construction Mitigation Plan prior to issuance of Construction Permits. This condition shall be subject to the review and approval of the Development Services Division. 4. The applicant shall be required to comply with the recommendations found in the Wetland Study report prepared by Habitat Technologies dated September 23, 2005 and the Supplemental Stream Study and Mitigation Plan prepared by Ecological Land Services, Inc. dated December 9, 2005. 5. The detention system for this project shall be required to comply with the requirements found in the 2005 King County Surface Water Design Manual to meet both detention (conservation flow control — Level 2) and water quality improvements. 6. The applicant shall pay a Parks Mitigation Fee based on $530.76 per each new single family lot prior to the recording of the final plat. 7. The applicant shall pay a Traffic Mitigation Fee in the amount of $75 per net new average daily trip prior to the recording of the final plat. 8. Staff recommends that the applicant pay a Fire Mitigation Fee based on $488.00 per new single family lot prior to the recording of the final plat. ERC Mitigation Measures Page 1 of 1 Order Number. 205115003 ?RAis EXHIBIT"A" THAT PORTION OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 4, TOWNSHIP 23 NORTH, RANGE 5 EAST, W.M., DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EAST LINE OF SAID SUBDIVISION 373 FEET NORTH OF THE SOUTHEAST CORNER THEREOF, SAID POINT BEING THE NORTHERLY MARGIN OF STATE HIGHWAY NO. 2(SUNSET HIGHWAY); THENCE WESTERLY ALONG SAID SUNSET HIGHWAY 300 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTHERLY PARALLEL WITH SAID EAST LINE OF SAID SUBDIVISION A DISTANCE OF 145 FEET; THENCE EASTERLY 300 FEET TO A POINT ON SAID EAST LINE WHICH IS 145 FEET NORTH OF THE NORTHERLY MARGIN OF SAID SUNSET HIGHWAY; THENCE NORTH ALONG SAID EAST LINE TO THE NORTH LINE OF SAID SUBDIVISION, BEING THE NORTHEAST CORNER THEREOF; THENCE WEST ALONG SAID NORTH LINE 484.62 FEET TO A POINT WHICH IS 170 FEET EAST OF THE WEST LINE OF SAID SUBDIVISION; THENCE SOUTH, PARALLEL TO SAID WEST LINE TO THE NORTHERLY MARGIN OF SUNSET HIGHWAY; THENCE EASTERLY ALONG SAID SUNSET HIGHWAY TO THE TRUE POINT OF BEGINNING; EXCEPT THAT PORTION THEREOF CONDEMEND IN KING COUNTY SUPERIOR COURT CAUSE NO. 742207 FOR SUNSET HIGHWAY. ,r, .. , ,__ v, .<,, , , SE 95th P1. cjJ COC '‹ ifri"11 0 SE 98t . .. 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' a cs A + 4 T23N R5E E 1/2 5304 CITY OF RENTON DETERMINATION OF NON-SIGNIFICANCE-MITIGATED MITIGATION MEASURES APPLICATION NO(S): LUA05-118, PP, CAR, V-H, ECF APPLICANT: Phil Kitzes, PK Enterprises PROJECT NAME: Honey Creek View Estates Preliminary Plat DESCRIPTION OF PROPOSAL: The applicant is proposing to subdivide an existing 78,512 square foot (1.8 acre) parcel located within the Residential-10 (R-10) dwelling unit per acre zoning designation into 9 lots, a stormwater detention tract (Tract A), and a native growth protection tract (Tract B). An existing residence is proposed to be removed. The lots would be proposed for the future construction of detached single family residences. The lots range in area from 3,000 square feet to 4,333 square feet. Access to the lots would be provided via a new 42-foot wide road (Road A) proposed to be dedicated as right-of-way. The proposed Road A terminates in a hammerhead turnaround. A class 3 stream (Honey Creek)flows across the eastern portion of the subject site; in addition Protected Slopes and a category 3 wetland are located on the eastern portion of the subject site. LOCATION OF PROPOSAL: 3524 NE Sunset Boulevard LEAD AGENCY: The City of Renton Department of Planning/Building/Public Works Development Planning Section MITIGATION MEASURES: 1. The earthwork activities to be conducted onsite shall only be permitted to occur during the dry months of the year. 2. The applicant to comply with the recommendations found in the preliminary geotechnical site evaluation prepared Bergquist Engineering Services dated July 22, 2005 and the follow up geotechnical evaluation dated February fi irAlor 2006. 3. The applicant shall be required to provide a Temporary Erosion and Sedimentation Control Plan (TE SCP) designed pursuant to the Department of Ecology's Erosion and Sediment Control Requirements outlined in Volume II of the Stormwater Management Manual and provide staff with a Construction Mitigation Plan prior to issuance of Construction Permits. This condition shall be subject to the review and approval of the Development Services Division. 4. The applicant shall be required to comply with the recommendations found in the Wetland Study report prepared by Habitat Technologies dated September 23, 2005 and the Supplemental Stream Study and Mitigation Plan prepared by Ecological Land Services, Inc. dated December 9,2005. 5. The detention system for this project shall be required to comply with the requirements found in the 2005 King County Surface Water Design Manual to meet both detention (conservation flow control — Level 2) and water quality improvements. 6. The applicant shall pay a Parks Mitigation Fee based on $530.76 per each new single family lot prior to the recording of the final plat. 7. The applicant shall pay a Traffic Mitigation Fee in the amount of $75 per net new average daily trip prior to the recording of the final plat. 8. Staff recommends that the applicant pay a Fire Mitigation Fee based on $488.00 per new single family lot prior to the recording of the final plat. ERC Mitigation Measures Page 1 of 1 CITY OF RENTON COUNCIL AGENDA BILL I AI#: 1`° f I Submitting Data: Planning/Building/Public Works For Agenda of: ilksie Dept/Div/Board.. Transportation Systems Division July 17, 2006 Staff Contact Bruce Fisher, Airport Operations Agenda Status Specialist (x7471) Consent X Subject: Public Hearing.. Termination of Washington State Department of Correspondence.. Natural Resources (DNR) Aquatic Lands Lease Ordinance Agreement No. 22-090012 and acceptance of DNR Resolution Aquatic Lands Lease Agreement No. 22-A90012 Old Business Exhibits: New Business DNR Lease Agreement No. 22-090012 Study Sessions DNR Lease Agreement No. 22-A90012 Information Summary of Seaplane Base Survey - Exhibits A and B Issue Paper Resolution (forthcoming) Recommended Action: Approvals: Legal Dept X Refer to Transportation/Aviation Committee Finance Dept Other Fiscal Impact: Expenditure Required... $2,271.91 plus $500 Bond Transfer/Amendment Amount Budgeted Revenue Generated Total Project Budget $2,777.91 City Share Total Project.. $2,777.91 SUMMARY OF ACTION: Council approval is needed to authorize the Termination of Aquatic Lands Lease Agreement No. 22-090012 and to execute Lease Agreement No. 22-A90012, which modifies the previous lease agreement. Payment of a one-time $500.00 fmancial security bond and annual Aquatic Lands Lease Agreement fee will be financed through the Airport's current operating budget. STAFF RECOMMENDATION: Authorize the Mayor and City Clerk to execute Aquatic Lands Lease No. 22-A90012 and the Termination Agreement of(old) Aquatic Lands Lease No. 22-090012. H:\File Sys\AIR-Airport,Transportation Services Division\03 Projects\O1Tasks\Agenda Bills\DNR Aquatic Lands Lease 2006\Agbill DNR Aquatic Lands Lease.doc PLANNING/BUILDING/ PUBLIC WORKS DEPARTMENT MEMORANDUM DATE: July 17, 2006 TO: Randy Corman, Council President Members of the Renton City Council VIA: ;C. Kathy Keolker, Mayor FROM: Gregg Zimmerman, Administrator STAFF CONTACT: Bruce Fisher, Airport Operations Specialist (x7471) SUBJECT: Termination of Washington State Depai lment of Natural Resources (DNR) Aquatic Lands Lease Agreement No. 22-090012 and acceptance of DNR Aquatic Lands Lease Agreement No. 22-A90012 ISSUE: Should Council authorize the execution of Aquatic Lands Lease No. 22-A90012 for a term of 30 Nur years, and the signing of the Termination Agreement No. 22-090012 for the Will Rogers—Wiley Post Memorial Seaplane Base as required by state law and administered by the Washington State Department of Natural Resources? RECOMMENDATION: Authorize the Mayor and City Clerk to execute Aquatic Lands Lease No. 22-A90012 and the Termination Agreement of(old) Aquatic Lands Lease No. 22-090012. BACKGROUND SUMMARY: On December 30, 2004, the Airport received a letter from the Washington Department of Natural Resources (DNR) requesting an updated survey of the Aquatic Lands Lease No. 22-090012. This lease authorizes both the location and use of the seaplane dock structure and is due for renewal on April 1, 2007. This lease was originally transferred from a Port District to DNR on October 1, 1984, and as of 2005, had not had a proper survey conducted to illustrate the extent of the leasehold area. In the spring of 2005, Duane Hartman & Associates, Inc., (DHA) presented an updated survey to Airport management that showed a large leasehold area. The annual rent on the size of the area *ow in question would have been a financial hardship for the Airport to bear. As a result of the Randy Corman,Council President Page 2 of 2 July 17,2006 pending costs of maintaining this leasehold area, Airport staff began thoroughly researching files (some dating back to the early 1940's) and discovered two plots of City-owned near-shore land missing from past surveys. Several meetings with both DHA and DNR followed and a new survey was conducted in the fall of this same year. Additional discussions with DNR exploring the possibility of designating the Airport's seaplane base as a Public Use Facility were unsuccessful, and the language of the current lease was finalized by DNR on March 30, 2006. Rent for the period of April 1, 2006, to March 31, 2007, will be in the amount of$2,277.91. In addition, a one-time financial security fee (Security Bond) to ensure full performance of the lease terms in the amount of$500.00 will be required. Total cost for this forthcoming year will amount to $2,777.91. The Lease allows for a rent adjustment every four years, with the first adjustment on April 1, 2010. cc: Jay Covington,CAO Peter Hahn,Deputy PBPW Administrator—Transportation Ryan Zulauf,Airport Manager Bruce Fisher,Airport Operations Specialist Connie Brundage,Transportation Administrative Secretary Susan Campbell-Hen/Carolyn Currie,Airport Secretary 'rrr� NIS c:\documents and settings\mpetersen\local settings\temp\isspaper dnr aquatic lands lease 6-13-06.doc IP WASHINGTON STATE DEPARTMENTOF DOUG SUTHERLAND Natural Resources Commissioner of Public Lands March 28, 2006 Mr. Ryan Zulauf, Airport Manager City of Renton, Renton Airport 616 West Perimeter Road Renton, WA 98055 Subject: Aquatic Lands Lease No. 22-090012-Termination Dear Mr. Zulauf: Enclosed are two (2) identical originals of Termination of Lease No. 22-090012. Please sign and date both copies and return them within thirty (30) days from the date of this letter to: Department of Natural Resources Shoreline District Aquatics Region 950 Farman Avenue North 4ome Enumclaw, WA 98022-9282 Please note that your signature must be notarized. Each document contains a certificate of acknowledgement for this purpose. Upon receiving the items listed above and completion of our final evaluation, we will submit them to DNR management for their review and final execution. Please call me at(360) 825- 1631 extension 2008 if you have any questions. Sincerely, Monica Durkin,Natural Resource Specialist Enclosures c: Region File Aquatic Resources file gj/22090012Transmit-Termination SOUTH PUGET SOUND REGION 1950 FARMAN AVE N I ENUMCLAW, WA 98022-9282 TEL:(360)825-1631 I FAX:(360)825-1672 I TTY:(360)825-6381 -4914— Equal Opportunity/Affirmative Action Employer RECYCLED PAPER 0 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands NOTICE OF AND AGREEMENT TO TERMINATE LEASE TABLE OF CONTENTS SECTION PAGE BACKGROUND 1 1. TERMINATION DATE 1 2. IMPROVEMENTS 1 3. WARRANTIES 1 4. APPLICABLE LAW AND VENUE 2 '"" 5. RECORDATION 2 6. MODIFICATION 2 Form Date: 10/2003 i Agreement No.22-090012 STATE OF WASHINGTON r DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands NOTICE OF AND AGREEMENT TO TERMINATE LEASE LEASE TERMINATION NO. 22-090012 THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through the Department of Natural Resources ("State"), and the CITY OF RENTON, a governemnt agency/entity, whose address is 616 West Perimeter Road, Renton, WA 98055 ("Lessee"). BACKGROUND A. Lessee and State have entered into, and are bound by, the terms and conditions of Lease No. 22-090012, recorded with the King County Auditor's Office under recording number N/A, including any amendments thereto (the "Lease"). B. Lessee desires to terminate this Lease, and State agrees that such lease may be terminated. `""` THEREFORE, the parties agree as follows: SECTION 1 TERMINATION DATE The Termination Date of the Lease shall be accelerated to March 31, 2006. SECTION 2 IMPROVEMENTS The"Lessee" -owned Improvements described in Exhibit A shall be authorized under lease number 22-A90012. SECTION 3 WARRANTIES Lessee represents and warrants to State that (i) Lessee is not in default or breach of the Lease; (ii) Lessee has no causes of action, claims, offsets, or defenses associated with the Lease; Form Date: 10/2003 1 of 5 Agreement No.22-090012 (iii) Rents due subsequent to this Termination have not been paid in advance by Lessee or have been fully refunded by State; (iv) All subleases of the Property will terminate and all sublessees will have vacated the Property prior to the Termination Date of the Lease; (v) No other person or entity has any interest in this lease that would be affected by its termination; and (vi) To the best of Lessee's knowledge, the property is in full compliance with all applicable federal, state, and local governmental permits, rules, ordinances, and laws. Lessee shall defend, indemnify and hold State harmless from any claims, known or unknown, of the Lessee, and for any breach of the foregoing warranties. State expressly reserves all rights against Lessee for any claims it may have for damage to the Property or associated natural resources. SECTION 4 APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with the laws of the State of Washington. Venue for any action arising out of or in connection with this Lease shall be in the Superior Court for Thurston County, Washington. SECTION 5 RECORDATION Lessee shall record this Lease Termination or a memorandum documenting the existence of this Lease in the county in which the Property is located, at Lessee's sole expense. The memorandum shall, at a minimum, contain the Property description,the names of the parties to the Lease,the State's lease number, and the duration of the Lease. Lessee shall provide State with recording information, including the date of recordation and file number. Lessee shall have thirty(30) days from the date of delivery of the final executed Termination agreement to comply with the requirements of this subsection. If Lessee fails to record this Lease Termination, State may record it and Lessee shall pay the costs of recording upon State's demand. SECTION 6 MODIFICATION Any modification of this Agreement must be in writing and signed by the parties. State shall not be bound by any oral representations or statements. Form Date: 10/2003 2 of 5 Agreement No.22-090012 THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last �.r signature below. Tenant: CITY OF RENTON Dated: By: KATHY KEOLKER Title: Mayor Address: 1055 S. Grady Way Renton, WA 98055 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES Dated: By: DOUG SUTHERLAND Title: Commissioner of Public Lands Address: Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Approved as to Form May, 2005 by Joe Panesko Assistant Attorney General State of Washington Nov Form Date: 10/2003 3 of 5 Agreement No.22-090012 411111111111. REPRESENTATIVE ACKNOWLEDGMENT *401 STATE OF ) ) ss County of ) I certify that I know or have satisfactory evidence that KATHY KEOLKER is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) Notary Public in and for the State of Washington, residing at My appointment expires Form Date: 10/2003 4 of 5 Agreement No.22-090012 ' STATE ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss County of ) I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Commissioner of Public Lands, and ex officio administrator of the Department of Natural Resources of the State of Washington to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) `,kiw Notary Public in and for the State of Washington, residing at My appointment expires Form Date: 10/20035 of 5 Agreement No.22-090012 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND,Commissioner of Public Lands NOTICE OF AND AGREEMENT TO TERMINATE LEASE TABLE OF CONTENTS SECTION PAGE BACKGROUND 1 1. TERMINATION DATE 1 2. IMPROVEMENTS 1 3. WARRANTIES 1 4. APPLICABLE LAW AND VENUE 2 5. RECORDATION 2 6. MODIFICATION 2 Form Date: 10/2003 1 Agreement No.22-090012 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands NOTICE OF AND AGREEMENT TO TERMINATE LEASE LEASE TERMINATION NO. 22-090012 THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through the Department of Natural Resources ("State"), and the CITY OF RENTON, a governemnt agency/entity, whose address is 616 West Perimeter Road, Renton, WA 98055 ("Lessee"). BACKGROUND A. Lessee and State have entered into, and are bound by, the terms and conditions of Lease No. 22-090012, recorded with the King County Auditor's Office under recording number N/A, including any amendments thereto (the "Lease"). B. Lessee desires to terminate this Lease, and State agrees that such lease may be terminated. THEREFORE,the parties agree as follows: SECTION 1 TERMINATION DATE The Termination Date of the Lease shall be accelerated to March 31, 2006. SECTION 2 IMPROVEMENTS The "Lessee" -owned Improvements described in Exhibit A shall be authorized under lease number 22-A90012. SECTION 3 WARRANTIES Lessee represents and warrants to State that (i) Lessee is not in default or breach of the Lease; (ii) Lessee has no causes of action, claims, offsets, or defenses associated with the Lease; Now Form Date: 10/2003 1 of 5 Agreement No.22-090012 • (iii) Rents due subsequent to this Termination have not been paid in advance by Lessee or have been fully refunded by State; (iv) All subleases of the Property will terminate and all sublessees will have vacated the Property prior to the Termination Date of the Lease; (v) No other person or entity has any interest in this lease that would be affected by its termination; and (vi) To the best of Lessee's knowledge,the property is in full compliance with all applicable federal, state,and local governmental permits, rules, ordinances, and laws. Lessee shall defend, indemnify and hold State harmless from any claims, known or unknown, of the Lessee,and for any breach of the foregoing warranties. State expressly reserves all rights against Lessee for any claims it may have for damage to the Property or associated natural resources. SECTION 4 APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with the laws of the State of Washington. Venue for any action arising out of or in connection with this Lease shall be in the Superior Court for Thurston County, Washington. SECTION 5 RECORDATION Lessee shall record this Lease Termination or a memorandum documenting the existence of this Lease in the county in which the Property is located, at Lessee's sole expense. The memorandum shall, at a minimum, contain the Property description,the names of the parties to the Lease,the State's lease number, and the duration of the Lease. Lessee shall provide State with recording information, including the date of recordation and file number. Lessee shall have thirty(30)days from the date of delivery of the final executed Termination agreement to comply with the requirements of this subsection. If Lessee fails to record this Lease Termination, State may record it and Lessee shall pay the costs of recording upon State's demand. SECTION 6 MODIFICATION Any modification of this Agreement must be in writing and signed by the parties. State shall not be bound by any oral representations or statements. Form Date: 10/2003 2 of 5 Agreement No.22-090012 Ng THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last *my signature below. Tenant: CITY OF RENTON Dated: By: KATHY KEOLKER Title: Mayor Address: 1055 S. Grady Way Renton, WA 98055 STATE OF WASHINGTON **o DEPARTMENT OF NATURAL RESOURCES Dated: By: DOUG SUTHERLAND Title: Commissioner of Public Lands Address: Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Approved as to Form May, 2005 by Joe Panesko Assistant Attorney General State of Washington Form Date: 10/2003 3 of 5 Agreement No.22-090012 REPRESENTATIVE ACKNOWLEDGMENT STATE OF ) ) ss County of ) I certify that I know or have satisfactory evidence that KATHY KEOLKER is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) Notary Public in and for the State of Washington, residing at ter+'' My appointment expires Form Date: 10/2003 4 of 5 Agreement No.22-090012 `400 STATE ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss County of ) I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Commissioner of Public Lands, and ex officio administrator of the Department of Natural Resources of the State of Washington to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) Na'" Notary Public in and for the State of Washington, residing at My appointment expires 4or Form Date: 10/2003 5 of 5 Agreement No.22-090012 1. WASHINGTON STATE DEPARTMENT OF DOUG SUTHERLAND I' Natural Resources Commissioner of Public Lands s111r May 17, 2006 Bruce Fisher City of Renton Airport 616 West Perimeter Rd. Renton, WA 98055 J Subject: Aquatic Lands Lease No. 22-A90012 te.' Dear Mr. Fisher: VP se Enclosed are two(2) identical originals of Lease No. 22-A90012. Please sign, date and return both copies within thirty (30) days from the date of this letter to: Department of Natural Resources Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Noisy Please note that the mayor's signature must be notarized. Each document contains a certificate of acknowledgement for this purpose. Before the department can finalize your aquatic lands Lease, within thirty(30) days we must also receive: 1. Rent for the period of April 1, 2006, to March 31, 2007, in the amount of$2,277.91. 2. Financial security to ensure full performance of Lease terms in the amount of$500.00, pursuant to Subsection 10.2 of the Lease. Upon receiving the items listed above and completion of our final evaluation, we will submit them to DNR management for their review and final execution. Please call me at(360) 825- 1631 extension 2006, if you have any questions. Sincerely, .,Yi ✓ Monica Durkin,Natural Resource Specialist Enclosures c: Region File **kw Aquatic Resources file fm/22A900I2Transmitll SOUTH PUGET SOUND REGION 1950 FARMAN AVE N I ENUMCLAW, WA 98022-9282 TEL:(360)825-1631 I FAX:(360)825-1672 I TTY:(360)825-6381 Equal Opportunity/Affirmative Action Employer RECYCLED PAPER CI STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS LEASE (Commercial) TABLE OF.CONTENTS SECTION PAGE BACKGROUND 1 1. PROPERTY 1 1.1 Property Defined 1 1.2 Survey, Maps, and Plans 1 1.3 Inspection 1 `"S 2. USE 2 2.1 Permitted Use 2 2.2 Restrictions on Use 2 2.3 Conformance with Laws 2 2.4 Liens and Encumbrances 2 3. TERM 2 3.1 Term Defined 2 3.2 Renewal of the Lease 3 3.3 Delay in Delivery of Possession 3 3.4 End of Term 3 3.5 Hold Over 3 4. RENT 3 4.1 Annual Rent 3 4.2 Payment Place 3 4.3 Adjustment Based on Use 4 4.4 Rent Adjustments for Water-Dependent Uses 4 4.5 Rent Adjustment Procedures 4 Form Date:May,2005 i Commercial Lease 22-A90012 5. OTHER EXPENSES 4 Nome 5.1 Utilities 5 5.2 Taxes and Assessments 5 5.3 Right to Contest 5 5.4 Proof of Payment 5 5.5 Failure to Pay 5 6. LATE PAYMENTS AND OTHER CHARGES 5 6.1 Late Charge 5 6.2 Interest Penalty for Past Due Rent and Other Sums Owed 5 6.3 No Accord and Satisfaction 5 6.4 No Counterclaim, Setoff, or Abatement of Rent. 6 7. IMPROVEMENTS 6 7.1 Existing Improvements 6 7.2 Tenant-Owned Improvements 6 7.3 Construction 6 7.4 Removal 6 7.5 Unauthorized Improvements 7 8. ENVIRONMENTAL LIABILITY/RISK ALLOCATION 7 8.1 Definition 7 8.2 Use of Hazardous Substances 7 8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate 7 8.4 Notification and Reporting 8 8.5 Indemnification 9 Nifty 8.6 Cleanup 10 8.7 Sampling by State, Reimbursement, and Split Samples 10 8.8 Reservation of Rights 11 9. ASSIGNMENT AND SUBLETTING 11 9.1 State Consent Required 11 9.2 Event of Assignment 12 9.3 Rent Payments Following Assignment 12 9.4 Terms of Subleases 12 9.5 Routine Subleasing of Moorage Slips 13 10. INDEMNITY, FINANCIAL SECURITY, INSURANCE 13 10.1 Indemnity 13 10.2 Financial Security 13 10.3 Insurance 14 10.4 State's Acquisition of Insurance 16 10.5 Self Insurance 16 11. MAINTENANCE AND REPAIR 17 11.1 State's Repairs 17 11.2 Tenant's Repairs, Alteration, Maintenance and Replacement 17 12. DAMAGE OR DESTRUCTION 17 13. CONDEMNATION 18 13.1 Definitions 18 Form Date:May,2005 y �] Commercial Lease 22-A90012 13.2 Effect of Taking 18 13.3 Allocation of Award 18 14. DEFAULT AND REMEDIES 19 15. ENTRY BY STATE 20 16. DISCLAIMER OF QUIET ENJOYMENT 20 17. NOTICE 20 18. MISCELLANEOUS 21 18.1 Authority 21 18.2 Successors and Assigns 21 18.3 Headings 21 18.4 Entire Agreement 21 18.5 Waiver 21 18.6 Cumulative Remedies 21 18.7 Time is of the Essence 21 18.8 Language 21 18.9 Invalidity 21 18.10 Applicable Law and Venue 22 18.11 Recordation 22 18.12 Modification 22 EXHIBIT A: LEGAL DESCRIPTION AND SURVEY EXHIBIT B: PLAN OF OPERATIONS AND MAINTENANCE Form Date: May,2005 iii Commercial Lease 22-A90012 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS LEASE (Commercial) AQUATIC LANDS LEASE NO. 22-A90012 THIS LEASE is made by and between the STATE OF WASHINGTON, acting through the Department of Natural Resources ("State"), and the CITY OF RENTON, a government agency/entity, ("Tenant"). BACKGROUND Tenant desires to lease the aquatic lands commonly known as Lake Washington,which is a harbor area located in King County, Washington, from State, and State desires to lease the property to Tenant pursuant to the terms and conditions of this Lease. THEREFORE, the parties agree as follows: SECTION 1 PROPERTY Nov 1.1 Property Defined. State leases to Tenant and Tenant leases from State the real property described in Exhibit A together with all the rights of State, if any,to improvements on and easements benefiting the Property, but subject to the exceptions and restrictions set forth in this Lease(collectively the "Property"). This Lease is subject to all valid interests of third parties noted in the records of King County,or on file in the office of the Commissioner of Public Lands, Olympia, Washington; rights of the public under the Public Trust Doctrine or federal navigation servitude; and treaty rights of Indian Tribes. Not included in this Lease are any right to harvest, collect or damage any natural resource, including aquatic life or living plants,any water rights, or any mineral rights, including any right to excavate or withdraw sand, gravel,or other valuable materials. State reserves the right to grant easements and other land uses on the Property to others when the easement or other land uses will not unreasonably interfere with Tenant's Permitted Use. 1.2 Survey, Maps, and Plans. In executing this Lease, State is relying on the surveys,plats, diagrams, and/or legal descriptions provided by Tenant. Tenant is not relying upon and State is not making any representations about any survey, plat, diagram, and/or legal description provided by State. 1.3 Inspection. State makes no representation regarding the condition of the Property, improvements located on the Property, the suitability of the Property for Tenant's Permitted Use, Form Date:May,2005 1 of 25 Commercial Lease 22-A90012 compliance with governmental laws and regulations, availability of utility rights, access to the Property or the existence of hazardous substances on the Property. Tenant has inspected the v Property and accepts it"AS IS." SECTION 2 USE 2.1 Permitted Use. Tenant shall use the Property for seaplane moorage (the"Permitted Use"), and for no other purpose. The Permitted Use is described or shown in greater detail in Exhibit B, the terms and conditions of which are incorporated by reference and made a part of this Lease. The parties agree that this is a water-dependent use. 2.2 Restrictions on Use. Tenant shall not cause or permit any damage to natural resources on the Property. Tenant shall also not cause or permit any filling activity to occur on the Property. This prohibition includes any deposit of rock, earth, ballast, refuse, garbage, waste matter(including chemical, biological or toxic wastes),hydrocarbons, any other pollutants, or other matter in or on the Property, except as approved in writing by State. Tenant shall neither commit nor allow waste to be committed to or on the Property. If Tenant fails to comply with all or any of the restrictions on the use of the Property set out in this Subsection 2.2, State shall notify Tenant and provide Tenant a reasonable time to take all steps necessary to remedy the failure. If Tenant fails to do so in a timely manner, then State may take any steps reasonably necessary to remedy this failure. Upon demand by State, Tenant shall pay all costs of such remedial action, including but not limited to the costs of removing and disposing of any material deposited improperly on the Property. This section shall not in any way limit Tenant's liability under Section 8, below. The prohibitions in this section against damage to natural resources, filling, deposition of any unapproved materials,and waste, shall also apply to protect state-owned aquatic lands adjacent to the Property from any of Tenant's activities related to Tenant's occupation of the Property. All obligations imposed by this section on Tenant to cure any violation of the prohibited activities in this section shall also extend to state-owned aquatic lands adjacent to the Property when the violation arose from Tenant's activities related to Tenant's occupation of the Property. 2.3 Conformance with Laws. Tenant shall, at all times, keep current and comply with all conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other government rules and regulations regarding its use or occupancy of the Property. 2.4 Liens and Encumbrances. Tenant shall keep the Property free and clear of any liens and encumbrances arising out of or relating to its use or occupancy of the Property. SECTION 3 TERM 3.1 Term Defined. The term of this Lease is thirty (30) years (the "Term"), beginning on the 1st day of April, 2006 (the "Commencement Date"), and ending on the 31St day of March, 2036 (the "Termination Date"), unless terminated sooner under the terms of this Lease. Form Date:May,2005 2 of 25 Commercial Lease 22-A90012 3.2 Renewal of the Lease. Tenant shall have the option to renew this Lease for zero (0) Isaradditional terms of N/A years each. The initial Term of this Lease, and all renewal terms, shall not exceed thirty (30) years in the aggregate. Tenant shall exercise this option by providing written notice of its election to renew at least ninety (90) days prior to the Termination Date of the initial Term or any renewal term of this Lease. Tenant shall not be entitled to renew if it is in default under the terms of this Lease at the time the option to renew is exercised. The terms and conditions of any renewal term shall be the same as set forth in this Lease, except that rent shall be recalculated, the required amounts of financial security may be revised, and provisions dealing with hazardous waste or impacts to natural resources may be changed at the time of the renewal. 3.3 Delay in Delivery of Possession. If State, for any reason whatsoever, cannot deliver possession of the Property to Tenant on the Commencement Date,this Lease shall not be void or voidable, nor shall State be liable to Tenant for any loss or damage resulting from the delay in delivery of possession. In such event, the date of delivery of possession shall be the Commencement Date for all purposes, including the payment of rent. In the event Tenant takes possession before the Commencement Date,the date of possession shall be the Commencement Date for all purposes, including the payment of rent. If the Lease Term commences earlier or later than the scheduled Commencement Date,the Termination Date shall be adjusted accordingly. 3.4 End of Term. Upon the expiration or termination of the Term or extended term, as applicable, Tenant shall surrender the Property to State in the same or better condition as on the Commencement Date, reasonable wear and tear excepted. 44160, 3.5 Hold Over. If Tenant remains in possession of the Property after the Termination Date, the occupancy shall not be an extension or renewal of the Term. The occupancy shall be a month-to-month tenancy, on terms identical to the terms of this Lease,which may be terminated by either party on thirty(30) days written notice. The monthly rent during the holdover shall be the same rent which would be due if the Lease were still in effect and all adjustments in rent were made in accordance with its terms. If State provides a notice to vacate the Property in anticipation of the termination of this Lease or at any time after the Termination Date and Tenant fails to do so within the time set forth in the notice, then Tenant shall be a trespasser and shall owe the State all amounts due under RCW 79.01.760 or other applicable law. SECTION 4 RENT 4.1 Annual Rent. Until adjusted as set forth below, Tenant shall pay to State an annual rent of Two Thousand Two Hundred Seventy Seven Dollars and Ninety One Cents ($2,277.91) related to the water-dependent use. The annual rent, as it currently exists or as adjusted or modified(the "Annual Rent"), shall be due and payable in full on or before the Commencement Date and on or before the same date of each year thereafter. 4.2 Payment Place. Payment is to be made to Financial Management Division, 1111 Washington St SE, PO Box 47041, Olympia, WA 98504-7041. Form Date:May,2005 3 of 25 Commercial Lease 22-A90012 4.3 Adjustment Based on Use. Annual Rent is based on Tenant's Permitted Use of the Property, as described in Section 2 above. If Tenant's Permitted Use changes, the Annual Rent shall be adjusted as appropriate for the changed use. 4.4 Rent Adjustments for Water-Dependent Uses. (a) Inflation Adjustment. State shall adjust water-dependent rent annually pursuant to RCW 79.105.010 -902, except in those years in which the rent is revalued under Subsection 4.4(b) below. This adjustment shall be effective on the anniversary of the Commencement Date. (b) Revaluation of Rent. State shall, at the end of the first four-year period of the Term, and at the end of each subsequent four-year period,revalue the water-dependent Annual Rent in accordance with RCW 79.105.010-.902. (c) Rent Cap. After the initial year's rent is determined under Subsection 4.1,rent may increase by operation of Subsection 4.4(a) or 4.4(b). If application of the statutory rent formula for water-dependent uses would result in an increase in the rent attributable to such uses of more than fifty percent(50%) in any one year,the actual increase implemented in such year shall be limited to fifty percent(50%)of the then-existing rent, in accordance with RCW 79.105.260. The balance of the increase determined by the formula shall be deferred to subsequent years and added to the next and subsequent years'rental increases until the full amount of the increase is lawfully implemented. 4.5 Rent Adjustment Procedures. (a) Notice of Rent Adjustment. Notice of any adjustments to the Annual Rent that are allowed by Subsection 4.4(b) shall be provided to Tenant in writing no later than ninety(90) days after the anniversary date of the Lease. (b) Procedures on Failure to make Timely Adjustment. In the event the State fails to provide the notice required in Subsection 4.5(a),it shall be prohibited from collecting any adjustments to rent only for the year in which it failed to provide notice. No failure by State to adjust Annual Rent pursuant to Subsection 4.5(a) shall affect the State's right to establish Annual Rent for a subsequent lease year as if the missed or waived adjustment had been implemented. The State may adjust, bill, and collect Annual Rent prospectively as if any missed or waived adjustments had actually been implemented. This includes the implementation of any inflation adjustment and any rent revaluations that would have been authorized for previous lease years. SECTION 5 OTHER EXPENSES During the Term, Tenant shall pay the following additional expenses: Form Date:May,2005 4 of 25 Commercial Lease 22-A90012 5.1 Utilities. Tenant shall pay all fees charged for utilities in connection with the use and occupancy of the Property, including but not limited to electricity, water, gas, and telephone service. 5.2 Taxes and Assessments. Tenant shall pay all taxes (including leasehold excise taxes), assessments, and other governmental charges, of any kind whatsoever, applicable or attributable to the Property, Tenant's leasehold interest, the improvements, or Tenant's use and enjoyment of the Property. 5.3 Right to Contest. Tenant may, in good faith, contest any tax or assessment at its sole cost and expense. At the request of State, Tenant shall furnish reasonable protection in the form of a bond or other security, satisfactory to State, against any loss or liability by reason of such contest. 5.4 Proof of Payment. Tenant shall, if required by State, furnish to State receipts or other appropriate evidence establishing the payment of any amounts required to be paid under the terms of this Lease. 5.5 Failure to Pay. If Tenant fails to pay any of the amounts due under this Lease, State may pay the amount due, and recover its cost in accordance with the provisions of Section 6. SECTION 6 LATE PAYMENTS AND OTHER CHARGES 6.1 Late Charge. If any rental payment is not received by State within ten(10) days of the date due, Tenant shall pay to State a late charge equal to four percent(4%) of the amount of the *la '" payment or Fifty Dollars ($50), whichever is greater,to defray the overhead expenses of State incident to the delay. 6.2 Interest Penalty for Past Due Rent and Other Sums Owed. If rent is not paid within thirty(30)days of the date due, then Tenant shall, in addition to paying the late charges determined under Subsection 6.1, above,pay interest on the amount outstanding at the rate of one percent(1%)per month until paid. If State pays or advances any amounts for or on behalf of Tenant, including but not limited to leasehold taxes,taxes, assessments, insurance premiums, costs of removal and disposal of unauthorized materials pursuant to Section 2 above, costs of removal and disposal of improvements pursuant to Section 7 below, or other amounts not paid when due, Tenant shall reimburse State for the amount paid or advanced and shall pay interest on that amount at the rate of one percent(1%) per month from the date State notifies Tenant of the payment or advance. 6.3 No Accord and Satisfaction. If Tenant pays, or State otherwise receives, an amount less than the full amount then due, State may apply such payment as it elects. In the absence of an election, the payment or receipt shall be applied first to accrued taxes which State has advanced or may be obligated to pay, then to other amounts advanced by State, then to late charges and accrued interest, and then to the earliest rent due. State may accept any payment in any amount without prejudice to State's right to recover the balance of the rent or pursue any other right or remedy. No endorsement or statement on any check, any payment, or any letter accompanying any check or payment shall constitute or be construed as accord and satisfaction. iorsy Form Date:May,2005 5 of 25 Commercial Lease 22-A90012 6.4 No Counterclaim, Setoff, or Abatement of Rent. Except as expressly set forth elsewhere in this Lease, rent and all other sums payable by Tenant pursuant to this Lease shall be paid without the requirement that State provide prior notice or demand, and shall not be subject to any counterclaim, setoff, deduction, defense or abatement. SECTION 7 IMPROVEMENTS 7.1 Existing Improvements. On the Commencement Date, the following improvements are located on the Property: floating dock, and approximately six (6) galvanized steel pilings ("Existing Improvements"). The improvements are not owned by State. 7.2 Tenant-Owned Improvements. So long as this Lease remains in effect, Tenant shall retain ownership of all Existing Improvements, and all authorized improvements and trade fixtures it may place on the Property (collectively "Tenant-Owned Improvements"). Tenant- Owned Improvements shall not include any construction,reconstruction,alteration, or addition to any Unauthorized Improvements as defined in Subsection 7.5 below. No Tenant-Owned Improvements shall be placed on the Property without State's prior written consent. 7.3 Construction. Prior to any construction, alteration, replacement,removal or major repair of any improvements (whether State-Owned or Tenant-Owned),Tenant shall submit to State plans and specifications which describe the proposed activity. Construction shall not commence until State has approved those plans and specifications in writing and Tenant has obtained a performance and payment bond in an amount equal to 125% of the estimated cost of construction. The performance and payment bond shall be maintained until the costs of , .001 construction, including all laborers and material persons, have been paid in full. State shall have sixty(60)days in which to review the proposed plans and specifications. The plans and specifications shall be deemed approved and the requirement for State's written consent shall be treated as waived, unless State notifies Tenant otherwise within the sixty(60) days. Upon completion of construction, Tenant shall promptly provide State with as-built plans and specifications. State's consent and approval shall not be required for any routine maintenance or repair of improvements made by the Tenant pursuant to its obligation to maintain the Property in good order and repair that does not result in the construction, alteration, replacement, removal, or major repair of any improvements on the Property. 7.4 Removal. Tenant-Owned Improvements shall be removed by Tenant by the Termination Date unless State notifies Tenant that the Tenant-Owned Improvements may remain. If the State elects for the Tenant-Owned Improvements to remain on the Property after the Termination Date, they shall become the property of State without payment by State (if the provisions of RCW 79.125.300 or RCW 79.130.040 apply, Tenant shall be entitled to the rights provided in the statute). To the extent that Tenant-Owned Improvements include items of personal property which may be removed from the leasehold premises without harming the Property, or diminishing the value of the Property or the improvements, the State asserts no ownership interest in these improvements unless the parties agree otherwise in writing upon termination of this Lease. Any Tenant-Owned Improvements specifically identified as personal property in Exhibit A or B shall be treated in accordance with this provision. Tenant shall notify State at Form Date:May,2005 6 of 25 Commercial Lease 22-A90012 least one hundred eighty (180) days before the Termination Date if it intends to leave the Tenant- Owned Improvements on the Property. State shall then have ninety (90) days in which to notify Tenant that it wishes to have the Tenant-Owned Improvements removed or elects to have them remain. Failure to notify Tenant shall be deemed an election by State that the Tenant-Owned Improvements will remain on the Property. If the Tenant-Owned Improvements remain on the Property after the Termination Date without State's actual or deemed consent, they still will become the property of the State but the State may remove them and Tenant shall pay the costs of removal and disposal upon State's demand. 7.5 Unauthorized Improvements. Improvements made on the Property without State's prior consent pursuant to Subsection 7.3 or which are not in conformance with the plans submitted to and approved by State ("Unauthorized Improvements") shall immediately become the property of State, unless State elects otherwise. Regardless of ownership of Unauthorized Improvements, State may, at its option, require Tenant to sever, remove, and dispose of them, charge Tenant rent for the use of them, or both. If Tenant fails to remove an Unauthorized Improvement upon request, State may remove it and charge Tenant for the cost of removal and disposal. SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION 8.1 Definition. "Hazardous Substance"means any substance which now or in the future becomes regulated or defined under any federal, state, or local statute, ordinance,rule, regulation, or other law relating to human health,environmental protection,contamination or cleanup, including, but not limited to,the Comprehensive Environmental Arino, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601 et seq., and Washington's Model Toxics Control Act("MTCA"), RCW 70.105D.010 et seq. 8.2 Use of Hazardous Substances. Tenant covenants and agrees that Hazardous Substances will not be used, stored, generated,processed, transported, handled, released, or disposed of in, on, under, or above the Property, except in accordance with all applicable laws. 8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate. (a) State makes no representation about the condition of the Property. Hazardous Substances may exist in, on, under, or above the Property. With regard to any Hazardous Substances that may exist in, on, under, or above the Property, State disclaims any and all responsibility to conduct investigations,to review any State records, documents or files, or to obtain or supply any information to Tenant. (b) Tenant shall exercise the utmost care with respect to both Hazardous Substances in, on, under, or above the Property as of the Commencement Date, and any Hazardous Substances that come to be located in, on, under, or above the Property during the Term of this agreement, along with the foreseeable acts or omissions of third parties affecting those Hazardous Substances, and the foreseeable consequences of those acts or omissions. The obligation to exercise utmost care under this Subsection 8.3 includes, but is not limited to, the following requirements: Form Date:May,2005 7 of 25 Commercial Lease 22-A90012 (1) Tenant shall not undertake activities that will cause, contribute to, or exacerbate contamination of the Property; (2) Tenant shall not undertake activities that damage or interfere with the operation of remedial or restoration activities on the Property or undertake activities that result in human or environmental exposure to contaminated sediments on the Property; (3) Tenant shall not undertake any activities that result in the mechanical or chemical disturbance of on-site habitat mitigation; (4) If requested, Tenant shall allow reasonable access to the Property by employees and authorized agents of the Environmental Protection Agency, the Washington State Department of Ecology, or other similar environmental agencies; and (5) If requested, Tenant shall allow reasonable access to potentially liable or responsible parties who are the subject of an order or consent decree which requires access to the Property. Tenant's obligation to provide access to potentially liable or responsible parties may be conditioned upon the negotiation of an access agreement with such parties, provided that such agreement shall not be unreasonably withheld. (c) It shall be Tenant's obligation to gather sufficient information concerning the Property and the existence, scope, and location of any Hazardous Substances on the Property, or adjoining the Property,that allows Tenant to effectively meet its obligations under this lease. 8.4 Notification and Reporting. (a) Tenant shall immediately notify State if Tenant becomes aware of any of the following: (1) A release or threatened release of Hazardous Substances in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property; (2) Any problem or liability related to, or derived from, the presence of any Hazardous Substance in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property; (3) Any actual or alleged violation of any federal, state, or local statute, ordinance, rule, regulation, or other law pertaining to Hazardous Substances with respect to the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property; NIS Form Date:May,2005 8 of 25 Commercial Lease 22-A90012 (4) Any lien or action with respect to any of the foregoing; or, (5) Any notification from the US Environmental Protection Agency (EPA) or the Washington State Department of Ecology (DOE) that remediation or removal of Hazardous Substances is or may be required at the Property. (b) Upon request, Tenant shall provide State with copies of any and all reports, studies, or audits which pertain to environmental issues or concerns associated with the Property, and which were prepared for Tenant and submitted to any federal, state or local authorities pursuant to any federal, state or local permit, license or law. These permits include, but are not limited to, any National Pollution Discharge and Elimination System Permit, any Army Corps of Engineers permit, any State Hydraulics permit, any State Water Quality certification, or any Substantial Development permit. 8.5 Indemnification. (a) Tenant shall fully indemnify, defend, and hold State harmless from and against any and all claims, demands, damages, natural resource damages,response costs, remedial costs, cleanup costs, losses, liens, liabilities, penalties, fines, lawsuits, other proceedings, costs, and expenses(including attorneys' fees and disbursements), that arise out of, or are in any way related to: (1) The use, storage, generation,processing,transportation, handling, or disposal of any Hazardous Substance by Tenant, its subtenants, New contractors, agents, employees, guests, invitees, or affiliates in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property, during the Term of this Lease or during any time when Tenant occupies or occupied the Property or any such other property; (2) The release or threatened release of any Hazardous Substance, or the exacerbation of any Hazardous Substance contamination, in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property, which release, threatened release, or exacerbation occurs or occurred during the Term of this Lease or during any time when Tenant occupies or occupied the Property or any such other property, and as a result of: (i) Any act or omission of Tenant, its subtenants, contractors, agents, employees, guests, invitees, or affiliates; or, (ii) Any foreseeable act or omission of a third party unless Tenant exercised the utmost care with respect to the foreseeable acts or omissions of the third party and the foreseeable consequences of those acts or omissions. Form Date:May,2005 9 of 25 Commercial Lease 22-A90012 (b) In addition to the indemnifications provided in Subsection 8.5(a), Tenant shall fully indemnify State for any and all damages, liabilities, costs or expenses (including attorneys' fees and disbursements) that arise out of or are in any way related to Tenant's breach of the obligations of Subsection 8.3(b). This obligation is not intended to duplicate the indemnity provided in Subsection 8.5(a) and applies only to damages, liabilities, costs, or expenses that are associated with a breach of Subsection 8.3(b) and which are not characterized as a release, threatened release, or exacerbation of Hazardous Substances. 8.6 Cleanup. If a release of Hazardous Substances occurs in, on, under, or above the Property, or other State-owned property, arising out of any action, inaction, or event described or referred to in Subsection 8.5, above, Tenant shall, at its sole expense, promptly take all actions necessary or advisable to clean up the Hazardous Substances. Cleanup actions shall include, without limitation, removal, containment and remedial actions and shall be performed in accordance with all applicable laws, rules, ordinances, and permits. Tenant's obligation to undertake a cleanup under this Subsection 8.6 shall be limited to those instances where the Hazardous Substances exist in amounts that exceed the threshold limits of any applicable regulatory cleanup standards. Tenant shall also be solely responsible for all cleanup, administrative, and enforcement costs of governmental agencies, including natural resource damage claims, arising out of any action, inaction, or event described or referred to in Subsection 8.5, above. Tenant may undertake a cleanup pursuant to the Washington State Department of Ecology's Voluntary Cleanup Program,provided that: (1)Any cleanup plans shall be submitted to State (DNR) for review and comment at least thirty(30) days prior to implementation(except in emergency situations), and(2) Tenant must not be in breach of this lease. Nothing in the operation of this provision shall be construed as an agreement by State that the voluntary cleanup complies with any laws or with the provisions of this Lease. 8.7 Sampling by State, Reimbursement, and Split Samples. (a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of the Property at any time to determine the existence, scope, or effects of Hazardous Substances on the Property, any adjoining property, any other property subject to use by Tenant in conjunction with its use of the Property, or any natural resources. If such Tests, along with any other information, demonstrates the existence, release, or threatened release of Hazardous Substances arising out of any action, inaction, or event described or referred to in Subsection 8.5, above, Tenant shall promptly reimburse State for all costs associated with such Tests. (b) State's ability to seek reimbursement for any Tests under this Subsection shall be conditioned upon State providing Tenant written notice of its intent to conduct any Tests at least thirty (30) calendar days prior to undertaking such Tests, unless such Tests are performed in response to an emergency situation in which case State shall only be required to give such notice as is reasonably practical. Form Date:May,2005 10 of 25 Commercial Lease 22-A90012 (c) Tenant shall be entitled to obtain split samples of any Test samples obtained by State, but only if Tenant provides State with written notice requesting such samples within twenty (20) calendar days of the date Tenant is deemed to have received notice of State's intent to conduct any non-emergency Tests. The additional cost, if any, of split samples shall be borne solely by Tenant. Any additional costs State incurs by virtue of Tenant's split sampling shall be reimbursed to State within thirty (30) calendar days after a bill with documentation for such costs is sent to Tenant. (d) Within thirty(30) calendar days of a written request (unless otherwise required pursuant to Subsection 8.4(b), above), either party to this Lease shall provide the other party with validated final data, quality assurance/quality control information, and chain of custody information, associated with any Tests of the Property performed by or on behalf of State or Tenant. There is no obligation to provide any analytical summaries or expert opinion work product. 8.8 Reservation of Rights. The parties have agreed to allocate certain environmental risks, liabilities, and responsibilities by the terms of Section 8. With respect to those environmental liabilities covered by the indemnification provisions of Subsection 8.5, that subsection shall exclusively govern the allocation of those liabilities. With respect to any environmental risks, liabilities, or responsibilities not covered by Subsection 8.5,the parties expressly reserve and do not waive or relinquish any rights, claims, immunities, causes of action, or defenses relating to the presence, release, or threatened release of Hazardous Substances in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property,that either party may have against the other under federal, state, or local laws, including but not limited to, CERCLA, MTCA, and the common law. No right, claim, immunity, or defense either party may have against third parties is affected by this Lease and the parties expressly reserve all such rights, claims, immunities, and defenses. The allocations of risks, liabilities, and responsibilities set forth above do not release either party from, or affect either party's liability for, claims or actions by federal, state, or local regulatory agencies concerning Hazardous Substances. SECTION 9 ASSIGNMENT AND SUBLETTING 9.1 State Consent Required. Tenant shall not sell, convey, mortgage, assign, pledge, sublet, or otherwise transfer or encumber all or any part of Tenant's interest in this Lease or the Property without State's prior written consent, which shall not be unreasonably conditioned or withheld. (a) In determining whether to consent, State may consider, among other items, the proposed transferee's financial condition, business reputation and experience,the nature of the proposed transferee's business, the then-current value of the Property, and such other factors as may reasonably bear upon the suitability of the transferee as a tenant of the Property. Tenant shall submit information regarding any proposed transferee to State at least thirty (30) days prior to the date of the proposed transfer. Form Date:May,2005 11 of 25 Commercial Lease 22-A90012 (b) State reserves the right to condition its consent upon: (1) changes in the terms and conditions of this Lease, including the Annual Rent and other terms; and/or (2) the agreement of Tenant or transferee to conduct Tests for Hazardous Substances on the Property or on other property owned or occupied by Tenant or the transferee. (c) Each permitted transferee shall assume all obligations under this Lease, including the payment of rent. No assignment, sublet, or transfer shall release, discharge, or otherwise affect the liability of Tenant. 9.2 Event of Assignment. If Tenant is a corporation, a dissolution of the corporation or a transfer(by one or more transactions) of a majority of the voting stock of Tenant shall be deemed to be an assignment of this Lease. If Tenant is a partnership, a dissolution of the partnership or a transfer(by one or more transactions) of the controlling interest in Tenant shall be deemed an assignment of this Lease. 9.3 Rent Payments Following Assignment. The acceptance by State of the payment of rent following an assignment or other transfer shall not constitute consent to any assignment or transfer. 9.4 Terms of Subleases. All subleases shall be submitted to State for approval and shall meet the following requirements: (a) The sublease shall be consistent with and subject to all the terms and conditions of this Lease; (b) The sublease shall confirm that if the terms of the sublease conflict with the terms of this Lease,this Lease shall control; (c) The term of the sublease(including any period of time covered by a renewal option) shall end before the Termination Date of the initial Term or any renewal term; (d) The sublease shall terminate if this Lease terminates, whether upon expiration of the Term, failure to exercise an option to renew, cancellation by State, surrender or for any other reason; (e) The subtenant shall receive and acknowledge receipt of a copy of this Lease; (f) The sublease shall prohibit the prepayment to Tenant by the subtenant of more than one month's rent; (g) The sublease shall identify the rental amount to be paid to Tenant by the subtenant; Form Date:May,2005 12 of 25 Commercial Lease 22-A90012 (h) The sublease shall confirm that there is no privity of contract between the 4iim, subtenant and State; (i) The sublease shall require removal of the subtenant's improvements and trade fixtures upon termination of the sublease; and, (j) The subtenant's permitted use shall be within the Permitted Use authorized by this Lease. 9.5 Routine Subleasing of Moorage Slips. In the case of routine subleasing of moorage slips to recreational and commercial vessel owners for a term of one year or less, Tenant shall not be required to obtain State's written consent or approval pursuant to Subsection 9.1 or Subsection 9.4. Tenant shall be obligated to ensure that these moorage agreements conform to the sublease requirements in Subsection 9.4. SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE 10.1 Indemnity. Tenant shall indemnify, defend, and hold harmless State, its employees, officers, and agents from any and all liability, damages (including bodily injury,personal injury and damages to land, aquatic life, and other natural resources), expenses, causes of action, suits, claims, costs, fees (including attorneys' fees),penalties, or judgments, of any nature whatsoever, arising out of the use, occupation, or control of the Property by Tenant, its subtenants, invitees, agents, employees, licensees, or permittees, except as may arise solely out of the willful or negligent act of State or State's elected officials, employees, or agents. To the extent that Nitiw RCW 4.24.115 applies, Tenant shall not be required to indemnify, defend, and hold State harmless from State's sole or concurrent negligence. Tenant's liability to State for hazardous substances, and its obligation to indemnify, defend, and hold the State harmless for hazardous substances, shall be governed exclusively by Section 8. 10.2 Financial Security. (a) At its own expense, Tenant shall procure and maintain a corporate surety bond or provide other financial security satisfactory to State (the "Bond") in an amount equal to Five Hundred Dollars ($500), which shall secure Tenant's full performance of its obligations under this Lease, with the exception of the obligations under Section 8 (Environmental Liability/Risk Allocation) above. The Bond shall be in a form and issued by a surety company acceptable to State. State may require an adjustment in the amount of the Bond: (1) At the same time as revaluation of the Annual Rent; (2) As a condition of approval of assignment or sublease of this Lease; (3) Upon a material change in the condition of any improvements; or, Now Form Date:May,2005 Y 13 of 25 Commercial Lease 22-A90012 (4) Upon a change in the Permitted Use. A new or modified Bond shall be delivered to State within thirty (30) days after adjustment of the amount of the Bond has been required by State. (b) Upon any default by Tenant in its obligations under this Lease, State may collect on the Bond to offset the liability of Tenant to State. Collection on the Bond shall not relieve Tenant of liability, shall not limit any of State's other remedies,and shall not reinstate or cure the default or prevent termination of the Lease because of the default. 10.3 Insurance. At its own expense,Tenant shall procure and maintain during the Term of this Lease,the insurance coverages and limits described in Subsections 10.3(a) and(b)below. This insurance shall be issued by an insurance company or companies admitted and licensed by the Insurance Commissioner to do business in the State of Washington. Insurers must have a rating of B+or better by "Best's Insurance Reports," or a comparable rating by another rating company acceptable to State. If non-admitted or non-rated carriers are used,the policies must comply with Chapter 48.15 RCW. (a) Types of Required Insurance. (1) Commercial General Liability Insurance. Tenant shall procure and maintain Commercial General Liability insurance and, if applicable, Marina Operators Legal Liability insurance covering claims for bodily injury,personal injury,or property damage arising on the Property and/or arising out of Tenant's operations. If necessary, commercial umbrella insurance covering claims for these risks shall be procured and maintained. Insurance must include liability coverage with limits not less than those specified below: Description Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 State may impose changes in the limits of liability: (i) As a condition of approval of assignment or sublease of this Lease; (ii) Upon any breach of Section 8, above; (iii) Upon a material change in the condition of the Property or any improvements; or, (iv) Upon a change in the Permitted Use. Form Date:May,2005 14 of 25 Commercial Lease 22-A90012 New or modified insurance coverage shall be in place within thirty(30) -.wr.• days after changes in the limits of liability are required by State. (2) Property Insurance. Tenant shall procure and maintain property insurance covering all real property located on or constituting a part of the Property in an amount equal to the replacement value of all improvements on the Property. Such insurance may have commercially reasonable deductibles. (3) Worker's Compensation/Employer's Liability Insurance. Tenant shall procure and maintain: (i) State of Washington Worker's Compensation coverage, as applicable, with respect to any work by Tenant's employees on or about the Property and on any improvements; (ii) Employers Liability or"Stop Gap"insurance coverage with limits not less than those specified below. Insurance must include bodily injury coverage with limits not less than those specified below: Each Employee Policy Limit By Accident By Disease By Disease $1,000,000 $1,000,000 $1,000,000 (iii) Longshore and Harbor Worker's Act and Jones Act coverage, aslou,, applicable, with respect to any work by Tenant's employees on or about the Property and on any improvements. (4) Builder's Risk Insurance. As applicable, Tenant shall procure and maintain builder's risk insurance in an amount reasonably satisfactory to State during construction, replacement, or material alteration of the Property or improvements on the Property. Coverage shall be in place until such work is completed and evidence of completion is provided to State. (5) Business Auto Policy Insurance. As applicable, Tenant shall procure and maintain a business auto policy. The insurance must include liability coverage with limits not less than those specified below: Description Each Accident Bodily Injury and Property Damage $1,000,000 (6) Aviation Liability Insurance. Tenant shall procure and maintain insurance covering liability arising from ownership, maintenance or use of aircraft, including liability assumed under an insurance contract. The insurance must include liability coverage with limits not less than those specified below: Form Date:May,2005 15 of 25 Commercial Lease 22-A90012 General Description Per Seat Aggregate Bodily Injury and Property Damage $1,000,000 $5,000,000 (b) Terms of Insurance. The policies required under Subsection 10.3 shall name the State of Washington, Department of Natural Resources as an additional insured (except for State of Washington Worker's Compensation coverage, and Federal Jones' Act and Longshore and Harbor Worker's Act coverages). Furthermore, all policies of insurance described in Subsection10.3 shall meet the following requirements: (1) Policies shall be written as primary policies not contributing with and not in excess of coverage that State may carry; (2) Policies shall expressly provide that such insurance may not be canceled or nonrenewed with respect to State except upon forty-five(45) days prior written notice from the insurance company to State; (3) To the extent of State's insurable interest,property coverage shall expressly provide that all proceeds shall be paid jointly to State and Tenant; (4) All liability policies must provide coverage on an occurrence basis;and (5) Liability policies shall not include exclusions for cross liability. (c) Proof of Insurance. Tenant shall furnish evidence of insurance in the form of a Certificate of Insurance satisfactory to the State accompanied by a checklist of coverages provided by State, executed by a duly authorized representative of each insurer showing compliance with the insurance requirements described in section 10, and, if requested, copies of policies to State. The Certificate of Insurance shall reference the State of Washington, Department of Natural Resources and the lease number. Receipt of such certificates or policies by State does not constitute approval by State of the terms of such policies. Tenant acknowledges that the coverage requirements set forth herein are the minimum limits of insurance the Tenant must purchase to enter into this agreement. These limits may not be sufficient to cover all liability losses and related claim settlement expenses. Purchase of these limits of coverage does not relieve the Tenant from liability for losses and settlement expenses greater than these amounts. 10.4 State's Acquisition of Insurance. If Tenant fails to procure and maintain the insurance described above within fifteen (15) days after Tenant receives a notice to comply from State, State shall have the right to procure and maintain comparable substitute insurance and to pay the premiums. Tenant shall pay to State upon demand the full amount paid by State, together with interest at the rate provided in Subsection 6.2 from the date of State's notice of the expenditure until Tenant's repayment. Form Date:May,2005 16 of 25 Commercial Lease 22-A90012 10.5 Self Insurance. Tenant warrants that it has the capacity to self insure for the risks and coverages specified in Section 10. Tenant's obligations under Section 10 may be met by providing evidence of self insurance that is acceptable to State. Any acceptance of Tenant's proof of self insurance by State must be obtained in writing. The decision to accept, or reject, Tenant's proof of self insurance is within the sole discretion of the State. Tenant must provide State with proof of continuing ability to provide self insurance within thirty (30)days of any written request by State for such proof. Tenant shall also provide State with written notice within seven (7) days of any material change in its ability to self insure, or to its program of self insurance. If Tenant elects to discontinue its program of self insurance, or if State provides written notice withdrawing its acceptance of Tenant's proof of self insurance, Tenant shall be subjected to the requirements of Section 10. Tenant shall be in compliance with the requirements of Section 10 prior to exercising an election to terminate self insurance coverage and shall comply with those requirements within thirty (30) days of receipt of any notice from State withdrawing its consent to self insurance. All sublease agreements must comply with the provisions of Section 10. SECTION 11 MAINTENANCE AND REPAIR 11.1 State's Repairs. State shall not be required to make any alterations,maintenance, replacements, or repairs in, on, or about the Property, or any part thereof, during the Term. 11.2 Tenant's Repairs, Alteration, Maintenance and Replacement. (a) Tenant shall, at its sole cost and expense, keep and maintain the Property and all improvements (regardless of ownership) in good order and repair, in a clean, attractive, and safe condition. (b) Tenant shall, at its sole cost and expense, make any and all additions, repairs, alterations, maintenance, replacements, or changes to the Property or to any improvements on the Property which may be required by any public authority. (c) All additions, repairs, alterations, replacements or changes to the Property and to any improvements on the Property shall be made in accordance with, and ownership shall be governed by, Section 7, above. SECTION 12 DAMAGE OR DESTRUCTION (a) In the event of any damage to or destruction of the Property or any improvements, Tenant shall promptly give written notice to State. Unless otherwise agreed in writing, Tenant shall promptly reconstruct, repair, or replace the Property and any improvements as nearly as possible to its condition immediately prior to the damage or destruction. (b) Tenant's duty to reconstruct, repair, or replace any damage or destruction of the Property or any improvements on the Property shall not be conditioned upon the availability of any insurance proceeds to Tenant from which the cost of repairs may be paid. �Wr✓ Form Date:May,2005 17 of 25 Commercial Lease 22-A90012 (c) Unless this Lease is terminated by mutual agreement, there shall be no abatement or reduction in rent during such reconstruction, repair, and replacement. (d) Any insurance proceeds payable by reason of damage or destruction shall be first used to restore the real property covered by this Lease, then to pay the cost of the reconstruction, then to pay the State any sums in arrears, and then to Tenant. (e) In the event Tenant is in default under the terms of this Lease at the time damage or destruction occurs, State may elect to terminate the Lease and State shall then have the right to retain any and all insurance proceeds payable as a result of the damage or destruction. SECTION 13 CONDEMNATION 13.1 Definitions. (a) Taking. The term"taking," as used in this Lease, means the taking of all or any portion of the Property and any improvements thereon under the power of eminent domain, either by judgment or settlement in lieu of judgment. Taking also means the taking of all or a portion of the Property and any improvements thereon to the extent that the Permitted Use is prevented or, in the judgment of State, the Property is rendered impractical for the Permitted Use. A total taking occurs when the entire Property is taken. A partial taking occurs when the taking does not constitute a total taking as defined above. (b) Voluntary Conveyance. The terms "total taking"and "partial taking" shall include a voluntary conveyance, in lieu of formal court proceedings, to any agency, authority, public utility, person, or corporate entity empowered to condemn property. (c) Date of Taking. The term "date of taking" shall mean the date upon which title to the Property or a portion of the Property passes to and vests in the condemnor or the effective date of any order for possession if issued prior to the date title vests in the condemnor. 13.2 Effect of Taking. If during the Term there shall be a total taking, the leasehold estate of Tenant in the Property shall terminate as of the date of taking. If this Lease is terminated, in whole or in part, all rentals and other charges payable by Tenant to State and attributable to the Property taken shall be paid by Tenant up to the date of taking. If Tenant has pre-paid rent, Tenant will be entitled to a refund of the pro rata share of the pre-paid rent attributable to the period after the date of taking. In the event of a partial taking, there shall be a partial abatement of rent from the date of taking in a percentage equal to the percentage of Property taken. 13.3 Allocation of Award. State and Tenant agree that in the event of any condemnation, the award shall be allocated between State and Tenant based upon the ratio of the fair market value of Tenant's leasehold estate and Tenant-Owned Improvements on the Property and State's Form Date:May,2005 18 of 25 Commercial Lease 22-A90012 interest (a) in the Property, (b) in the reversionary interest in Tenant-Owned Improvements, and (c) in State-Owned Improvements. In the event of a partial taking, this ratio will be computed on the basis of the portion of Property or improvements taken. If Tenant and State are unable to agree on the allocation, it shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association. SECTION 14 DEFAULT AND REMEDIES (a) Tenant shall be in default of this Lease on the occurrence of any of the following: (1) Failure to pay Annual Rent or other expenses when due; (2) Failure to comply with any law, regulation, policy, or order of any lawful governmental authority; (3) Failure to comply with any other provision of this Lease; (4) Two or more defaults over a period of time, or a single serious default, that demonstrates a reasonable likelihood of future defaults in the absence of corrective action by Tenant; or (5) Proceedings are commenced by or against Tenant under any bankruptcy act or for the appointment of a trustee or receiver of Tenants'property. (b) A default shall become an event of default("Event of Default") if Tenant fails to cure the default within sixty(60)days after State provides Tenant with written notice of default, which specifies the nature of the default. (c) Upon an Event of Default, State may terminate this Lease and remove Tenant by summary proceedings or otherwise. State may also, without terminating this Lease,relet the Property on any terms and conditions as State in its sole discretion may decide are appropriate. If State elects to relet, rent received by it shall be applied: (1) to the payment of any indebtedness other than rent due from Tenant to State; (2) to the payment of any cost of such reletting; (3)to the payment of the cost of any alterations and repairs to the Property; and, (4)to the payment of rent and leasehold excise tax due and unpaid under this Lease. Any balance shall be held by State and applied to Tenant's future rent as it becomes due. Tenant shall be responsible for any deficiency created by the reletting during any month and shall pay the deficiency monthly. State's reentry or repossession of the Property under this subsection shall not be construed as an election to terminate this Lease or cause a forfeiture of rents or other charges to be paid during the balance of the Term, unless State gives a written notice of termination to Tenant or termination is decreed by legal proceedings. State may at any time after reletting elect to terminate this Lease for the previous Event of Default. err.► Form Date:May,2005 19 of 25 Commercial Lease 22-A90012 SECTION 15 ENTRY BY STATE State shall have the right to enter the Property at any reasonable hour to inspect for compliance with the terms of this Lease. SECTION 16 DISCLAIMER OF QUIET ENJOYMENT As indicated in Section 1.1, this Lease is subject to all valid recorded interests of third parties, as well as rights of the public under the Public Trust Doctrine or federal navigation servitude, and treaty rights of Indian Tribes. State believes that its grant of the Lease is consistent with the Public Trust Doctrine and that none of the identified interests of third parties will materially and adversely affect Tenant's right of possession and use of the Property as set forth herein, but makes no guaranty or warranty to that effect. Tenant and State expressly agree that Tenant shall be responsible for determining the extent of its right to possession and for defending its leasehold interest. Consequently, State expressly disclaims and Tenant expressly releases State from any claim for breach of any implied covenant of quiet enjoyment with respect to the possession of the Property. This disclaimer includes, but is not limited to, interference arising from or in connection with access or other use rights of adjacent property owners or the public over the water surface or in or under the water column, including rights under the Public Trust Doctrine; rights held by Indian Tribes; and the general power and authority of State and the United States with respect to aquatic lands, navigable waters, bedlands,tidelands, and shorelands. In the event Tenant is evicted from the Property by reason of successful assertion of any of these rights,this Lease shall terminate as of the date of the eviction. In the event of a partial eviction, Tenant's rent obligations shall abate as of the date of the partial eviction, in direct proportion to the extent of the eviction, but in all other respects,this Lease shall remain in full force and effect. SECTION 17 NOTICE Any notices required or permitted under this Lease may be personally delivered, delivered by facsimile machine, or mailed by certified mail, return receipt requested,to the following addresses or to such other places as the parties may direct in writing from time to time: State: DEPARTMENT OF NATURAL RESOURCES Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Tenant: CITY OF RENTON 616 West Perimeter Road Renton, WA 98022 A notice shall be deemed given and delivered upon personal delivery, upon receipt of a confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set forth above, whichever is applicable. Form Date:May,2005 20 of 25 Commercial Lease 22-A90012 SECTION 18 MISCELLANEOUS Also- 18.1 Authority. Tenant and the person or persons executing this Lease on behalf of Tenant represent that Tenant is qualified to do business in the State of Washington, that Tenant has full right and authority to enter into this Lease, and that each and every person signing on behalf of Tenant is authorized to do so. Upon State's request, Tenant will provide evidence satisfactory to State confirming these representations. This Lease is entered into by State pursuant to the authority granted it in Chapters 79.105 to 79.145 RCW and the Constitution of the State of Washington. 18.2 Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the parties, their successors and assigns. 18.3 Headings. The headings used in this Lease are for convenience only and in no way define, limit, or extend the scope of this Lease or the intent of any provision. 18.4 Entire Agreement. This Lease, including the exhibits and addenda, if any, contains the entire agreement of the parties. All prior and contemporaneous agreements, promises, representations, and statements relating to this transaction or to the Property, if any, are merged into this Lease. 18.5 Waiver. The waiver by State of any breach or default of any term, covenant, or condition of this Lease shall not be deemed to be a waiver of such term, covenant, or condition; of any subsequent breach or default of the same; or of any other term, covenant, or condition of this Lease. State's acceptance of a rental payment shall not be construed to be a waiver of any preceding or existing breach other than the failure to pay the particular rental payment that was accepted. 18.6 Cumulative Remedies. The rights and remedies of State under this Lease are cumulative and in addition to all other rights and remedies afforded to State by law or equity or otherwise. 18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of this Lease. 18.8 Language. The word "Tenant" as used in this Lease shall be applicable to one or more persons, as the case may be. The singular shall include the plural, and the neuter shall include the masculine and feminine. If there is more than one Tenant, their obligations shall be joint and several. The word "persons," whenever used, shall include individuals, firms, associations, and corporations. 18.9 Invalidity. If any provision of this Lease shall prove to be invalid, void, or illegal, it shall in no way affect, impair, or invalidate any other provision of this Lease. Nov Form Date:May,2005 21 of 25 Commercial Lease 22-A90012 18.10 Applicable Law and Venue. This Lease shall be interpreted and construed in accordance with the laws of the State of Washington. Any reference to a statute shall mean that statute as presently enacted or hereafter amended or superseded. Venue for any action arising out of or in connection with this Lease shall be in the Superior Court for Thurston County, Washington. 18.11 Recordation. Tenant shall record this Lease or a memorandum documenting the existence of this Lease in the county in which the Property is located, at Tenant's sole expense. The memorandum shall, at a minimum, contain the Property description, the names of the parties to the Lease, the State's lease number,and the duration of the Lease. Tenant shall provide State with recording information, including the date of recordation and file number. Tenant shall have thirty(30) days from the date of delivery of the final executed agreement to comply with the requirements of this subsection. If Tenant fails to record this Lease, State may record it and Tenant shall pay the costs of recording upon State's demand. 18.12 Modification. Any modification of this Lease must be in writing and signed by the parties. State shall not be bound by any oral representations or statements. Form Date:May,2005 22 of 25 Commercial Lease 22-A90012 THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last „o,,, signature below. Tenant: CITY OF RENTON Dated: By: KATHY KEOLKER Title: Mayor Address: 1055 S. Grady Way Renton, WA 98055 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES Dated: By: DOUG SUTHERLAND Title: Commissioner of Public Lands Address: Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Approved as to Form May, 2005 by Joe Panesko Assistant Attorney General State of Washington Now Form Date:May,2005 23 of 25 Commercial Lease 22-A90012 aye REPRESENTATIVE ACKNOWLEDGMENT Nimid STATE OF ) ) ss County of ) I certify that I know or have satisfactory evidence that KATHY KEOLKER is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) Notary Public in and for the State of Washington, residing at *4000 My appointment expires Form Date:May,2005 24 of 25 Commercial Lease 22-A90012 STATE ACKNOWLEDGMENT Now STATE OF WASHINGTON ) ) ss County of ) I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Commissioner of Public Lands, and ex officio administrator of the Department of Natural Resources of the State of Washington to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) 41to Notary Public in and for the State of Washington,residing at My appointment expires Form Date: May,2005 25 of 25 Commercial Lease 22-A90012 i 111 Il i — . ! = i _ 1 1 4,4 ..ii N fl I I I Y Oil. ' w ° E-. _I • 1e \1 1;11. O 8 - wow , ' 47 107 11) -2 _ _ ,— 1_____i,A ,v 1 . litt ,241i F x,_ 9,�-- irux7(Od -, 0 6 r 1 o / ig / � h ' , e � o0 E~ � "g t �` ? �' o NCi M 1 ;i 0 r.L, el S2 o .7 Ip It 11 II Ai g IL° I 14; 4 1 Hk8 \\ A t N 1 li i M I :Jai I ; if iii ii *alp 1 2,4 \ t.. i 40 ‘ ; 4 ; leo ! nid2 R ii! Ili ! II R ,c)Q \ A- 5 1 - I eliiiip 0 Tv �r Mgt mill re ' 'e7 • Ei il a- -II :41� v lig r _ ;sli: • 1 fild �� � ��� yrs ' ; _ ;da w Nil ' $ . Nit g i ° V 1! E t _ S ` %V i1 - i la tNa l7 / 0 !i !1; its .3 ' " i .0! :ft ii IP am: lilt " fil i 1 1;1 a ag a E rb1 i ii ' ,., iii ii.------ w lig! 5Ik _ )� 4 a � � � a fp 1 �Q !< i Il t ' �4 ei 11 381 z 1111 I a II 14;11 e i ..,rte h41L- _,F, 4?)1111114q11' , 0110111• 1, -,1k- ii t1g 1 4 q 1 1 1 Q j a i 1 111411 ID! it 1 l - �,, - b ` � L ' v EXHIBIT B PLAN OF DEVELOPMENT, OPERATION, AND MAINTENANCE Lease No. 22-A90012 City of Renton 616 West Perimeter Rd. Site Description and Present Use The City of Renton lease is located on the southern shore of Lake Washington,just west of the mouth of the Cedar River. The waters of Lake Washington are used for recreational purposes such as boating, swimming, and fishing. The following fish are found in Lake Washington; sockeye salmon(Oncorhynchus nerka), coho salmon(0. kisutch) , steelhead salmon(0. mykiss), chinook salmon (0. tshawytscha), and trout. The Boeing Company is located to the east of the leasehold and a small boat moorage facility is located to the west of the leasehold. The City of Renton runs a seaplane base at this site. The floating dock is made of untreated wood with metal grating on the walkway allowing light to penetrate to the lake bottom. The dock is lined with tires to prolong its life. Future Use and Condition The City of Renton may expand their floating dock in the future. Tenant must notify the State of any plans for changes to their leasehold and the State must approve these changes. Any expansion or decrease in the leasehold area will require an amendment to the lease. SECTION 2 USE 2.1 Permitted Use. Tenant is permitted to use the 15,006 square foot leasehold for seaplane moorage, which includes a floating dock that rises and falls with the lake level on approximately six galvanized steel pilings. All seaplanes must be moored in a manner that ensures that they are located within the leasehold area. The area needed for ingress and egress from the leased premises is included in the leasehold area. Exhibit B 1 of 2 Lease No.22-A90012 SECTION 7 IMPROVEMENTS 7.2 Tenant-Owned Improvements. The "Tenant-Owned Improvements" currently located on the site include: floating dock and approximately six galvanized steel pilings. SECTION 11 MAINTENANCE AND REPAIR 11.2 Tenant's Repairs, Alteration, Maintenance and Replacement. Maintenance of the floating dock includes periodic structural and safety inspections. Routine maintenance of the tires, wood planks, metal grating, cleaning (including power washing), and repair of all portions of the dock occur at periodic intervals or when necessary to assure the safe operation of the dock. Over water seaplane maintenance such as washing and engine maintenance is not permitted. SECTION 15 ENTRY BY STATE SITE INSPECTION Monica Durkin, of the Washington State Department of Natural Resources (DNR), conducted an inventory and a site inspection of the dock on July 7, 2005. SECTION 16 DISCLAIMER OF QUIET ENJOYMENT For purposes of abatement of rent in Section 16 of this lease, the phrases "date of eviction" and "date of partial eviction" shall mean that date Tenant is stopped from all use of the property by reason of an assertion of the rights described in Section 16 of this lease. SECTION 17 NOTICE The City of Renton shall designate a contact person for the Department of Natural Resources. This person has the responsibility of notifying the DNR of the status of the lease. The current contact person is: Bruce Fisher City of Renton Airport 616 West Perimeter Rd. Renton, WA 98055 (425) 430-7471 The current contact for the Department of Natural Resources is: Snoqualmie Land Manager 950 Farman Avenue North Enumclaw, WA 98022 (360) 825-1631 Exhibit B 2 of 2 Lease No.22-A90012 '%r/ STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS LEASE (Commercial) TABLE OF CONTENTS SECTION PAGE BACKGROUND 1 1. PROPERTY 1 1.1 Property Defined 1 1.2 Survey, Maps, and Plans 1 loopy 1.3 Inspection 1 2. USE 2 2.1 Permitted Use 2 2.2 Restrictions on Use 2 2.3 Conformance with Laws 2 2.4 Liens and Encumbrances 2 3. TERM 2 3.1 Term Defined 2 3.2 Renewal of the Lease 3 3.3 Delay in Delivery of Possession 3 3.4 End of Term 3 3.5 Hold Over 3 4. RENT 3 4.1 Annual Rent 3 4.2 Payment Place 3 4.3 Adjustment Based on Use 4 4.4 Rent Adjustments for Water-Dependent Uses 4 4.5 Rent Adjustment Procedures 4 Form Date: May,2005 j Commercial Lease 22-A90012 4mr 5. OTHER EXPENSES 4 NS 5.1 Utilities 5 5.2 Taxes and Assessments 5 5.3 Right to Contest 5 5.4 Proof of Payment 5 5.5 Failure to Pay 5 6. LATE PAYMENTS AND OTHER CHARGES 5 6.1 Late Charge 5 6.2 Interest Penalty for Past Due Rent and Other Sums Owed 5 6.3 No Accord and Satisfaction 5 6.4 No Counterclaim, Setoff, or Abatement of Rent. 6 7. IMPROVEMENTS 6 7.1 Existing Improvements 6 7.2 Tenant-Owned Improvements 6 7.3 Construction 6 7.4 Removal 6 7.5 Unauthorized Improvements 7 8. ENVIRONMENTAL LIABILITY/RISK ALLOCATION 7 8.1 Definition 7 8.2 Use of Hazardous Substances 7 8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate 7 8.4 Notification and Reporting 8 8.5 Indemnification 9 *4.601 8.6 Cleanup 10 8.7 Sampling by State,Reimbursement,and Split Samples 10 8.8 Reservation of Rights 11 9. ASSIGNMENT AND SUBLETTING 11 9.1 State Consent Required 11 9.2 Event of Assignment 12 9.3 Rent Payments Following Assignment 12 9.4 Terms of Subleases 12 9.5 Routine Subleasing of Moorage Slips 13 10. INDEMNITY,FINANCIAL SECURITY, INSURANCE 13 10.1 Indemnity 13 10.2 Financial Security 13 10.3 Insurance 14 10.4 State's Acquisition of Insurance 16 10.5 Self Insurance 16 11. MAINTENANCE AND REPAIR 17 11.1 State's Repairs 17 11.2 Tenant's Repairs, Alteration, Maintenance and Replacement 17 12. DAMAGE OR DESTRUCTION 17 13. CONDEMNATION 18 13.1 Definitions 18 Form Date:May,2005 ii Commercial Lease 22-A90012 13.2 Effect of Taking 18 �.r 13.3 Allocation of Award 18 14. DEFAULT AND REMEDIES 19 15. ENTRY BY STATE 20 16. DISCLAIMER OF QUIET ENJOYMENT 20 17. NOTICE 20 18. MISCELLANEOUS 21 18.1 Authority 21 18.2 Successors and Assigns 21 18.3 Headings 21 18.4 Entire Agreement 21 18.5 Waiver 21 18.6 Cumulative Remedies 21 18.7 Time is of the Essence 21 18.8 Language 21 18.9 Invalidity 21 18.10 Applicable Law and Venue 22 18.11 Recordation 22 18.12 Modification 22 EXHIBIT A: LEGAL DESCRIPTION AND SURVEY EXHIBIT B: PLAN OF OPERATIONS AND MAINTENANCE wwr Form Date:May,2005 iii Commercial Lease 22-A90012 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES ,,, ► DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS LEASE (Commercial) AQUATIC LANDS LEASE NO. 22-A90012 THIS LEASE is made by and between the STATE OF WASHINGTON,acting through the Department of Natural Resources ("State"), and the CITY OF RENTON, a government agency/entity, ("Tenant"). BACKGROUND Tenant desires to lease the aquatic lands commonly known as Lake Washington,which is a harbor area located in King County, Washington, from State, and State desires to lease the property to Tenant pursuant to the terms and conditions of this Lease. THEREFORE,the parties agree as follows: SECTION 1 PROPERTY , 400/ 1.1 Property Defined. State leases to Tenant and Tenant leases from State the real property described in Exhibit A together with all the rights of State, if any,to improvements on and easements benefiting the Property, but subject to the exceptions and restrictions set forth in this Lease (collectively the "Property"). This Lease is subject to all valid interests of third parties noted in the records of King County, or on file in the office of the Commissioner of Public Lands, Olympia, Washington; rights of the public under the Public Trust Doctrine or federal navigation servitude; and treaty rights of Indian Tribes. Not included in this Lease are any right to harvest, collect or damage any natural resource, including aquatic life or living plants,any water rights, or any mineral rights, including any right to excavate or withdraw sand, gravel, or other valuable materials. State reserves the right to grant easements and other land uses on the Property to others when the easement or other land uses will not unreasonably interfere with Tenant's Permitted Use. 1.2 Survey,Maps,and Plans. In executing this Lease, State is relying on the surveys,plats, diagrams, and/or legal descriptions provided by Tenant. Tenant is not relying upon and State is not making any representations about any survey, plat, diagram, and/or legal description provided by State. 1.3 Inspection. State makes no representation regarding the condition of the Property, improvements located on the Property, the suitability of the Property for Tenant's Permitted Use, Form Date:May,2005 1 of 25 Commercial Lease 22-A90012 compliance with governmental laws and regulations, availability of utility rights, access to the w••• Property or the existence of hazardous substances on the Property. Tenant has inspected the Property and accepts it "AS IS." SECTION 2 USE 2.1 Permitted Use. Tenant shall use the Property for seaplane moorage (the "Permitted Use"), and for no other purpose. The Permitted Use is described or shown in greater detail in Exhibit B, the terms and conditions of which are incorporated by reference and made a part of this Lease. The parties agree that this is a water-dependent use. 2.2 Restrictions on Use. Tenant shall not cause or permit any damage to natural resources on the Property. Tenant shall also not cause or permit any filling activity to occur on the Property. This prohibition includes any deposit of rock, earth, ballast,refuse, garbage, waste matter(including chemical, biological or toxic wastes),hydrocarbons, any other pollutants, or other matter in or on the Property, except as approved in writing by State. Tenant shall neither commit nor allow waste to be committed to or on the Property. If Tenant fails to comply with all or any of the restrictions on the use of the Property set out in this Subsection 2.2, State shall notify Tenant and provide Tenant a reasonable time to take all steps necessary to remedy the failure. If Tenant fails to do so in a timely manner, then State may take any steps reasonably necessary to remedy this failure. Upon demand by State, Tenant shall pay all costs of such remedial action, including but not limited to the costs of removing and disposing of any material deposited improperly on the Property. This section shall not in any way limit Tenant's liability under Section 8, below. The prohibitions in this section against damage to natural resources, filling, deposition of any unapproved materials,and waste, shall also apply to protect state-owned aquatic lands adjacent to the Property from any of Tenant's activities related to Tenant's occupation of the Property. All obligations imposed by this section on Tenant to cure any violation of the prohibited activities in this section shall also extend to state-owned aquatic lands adjacent to the Property when the violation arose from Tenant's activities related to Tenant's occupation of the Property. 2.3 Conformance with Laws. Tenant shall, at all times, keep current and comply with all conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other government rules and regulations regarding its use or occupancy of the Property. 2.4 Liens and Encumbrances. Tenant shall keep the Property free and clear of any liens and encumbrances arising out of or relating to its use or occupancy of the Property. SECTION 3 TERM 3.1 Term Defined. The term of this Lease is thirty(30)years (the "Term"), beginning on the 1st day of April, 2006 (the "Commencement Date"), and ending on the 31St day of March, 2036 (the "Termination Date"), unless terminated sooner under the terms of this Lease. Form Date:May,2005 2 of 25 Commercial Lease 22-A90012 3.2 Renewal of the Lease. Tenant shall have the option to renew this Lease for zero (0) additional terms of N/A years each. The initial Term of this Lease, and all renewal terms, shall ,,00+ not exceed thirty (30) years in the aggregate. Tenant shall exercise this option by providing written notice of its election to renew at least ninety (90) days prior to the Termination Date of the initial Term or any renewal term of this Lease. Tenant shall not be entitled to renew if it is in default under the terms of this Lease at the time the option to renew is exercised. The terms and conditions of any renewal term shall be the same as set forth in this Lease, except that rent shall be recalculated,the required amounts of financial security may be revised, and provisions dealing with hazardous waste or impacts to natural resources may be changed at the time of the renewal. 3.3 Delay in Delivery of Possession. If State, for any reason whatsoever, cannot deliver possession of the Property to Tenant on the Commencement Date, this Lease shall not be void or voidable, nor shall State be liable to Tenant for any loss or damage resulting from the delay in delivery of possession. In such event,the date of delivery of possession shall be the Commencement Date for all purposes, including the payment of rent. In the event Tenant takes possession before the Commencement Date,the date of possession shall be the Commencement Date for all purposes, including the payment of rent. If the Lease Term commences earlier or later than the scheduled Commencement Date, the Termination Date shall be adjusted accordingly. 3.4 End of Term. Upon the expiration or termination of the Term or extended term,as applicable, Tenant shall surrender the Property to State in the same or better condition as on the Commencement Date, reasonable wear and tear excepted. 3.5 Hold Over. If Tenant remains in possession of the Property after the Termination Date, the occupancy shall not be an extension or renewal of the Term. The occupancy shall be a month-to-month tenancy, on terms identical to the terms of this Lease, which may be terminated by either party on thirty(30) days written notice. The monthly rent during the holdover shall be the same rent which would be due if the Lease were still in effect and all adjustments in rent were made in accordance with its terms. If State provides a notice to vacate the Property in anticipation of the termination of this Lease or at any time after the Termination Date and Tenant fails to do so within the time set forth in the notice, then Tenant shall be a trespasser and shall owe the State all amounts due under RCW 79.01.760 or other applicable law. SECTION 4 RENT 4.1 Annual Rent. Until adjusted as set forth below, Tenant shall pay to State an annual rent of Two Thousand Two Hundred Seventy Seven Dollars and Ninety One Cents ($2,277.91) related to the water-dependent use. The annual rent, as it currently exists or as adjusted or modified (the "Annual Rent"), shall be due and payable in full on or before the Commencement Date and on or before the same date of each year thereafter. 4.2 Payment Place. Payment is to be made to Financial Management Division, 1111 Washington St SE, PO Box 47041, Olympia, WA 98504-7041. *409 Form Date:May,2005 3 of 25 Commercial Lease 22-A90012 4.3 Adjustment Based on Use. Annual Rent is based on Tenant's Permitted Use of the ,,. Property, as described in Section 2 above. If Tenant's Permitted Use changes, the Annual Rent shall be adjusted as appropriate for the changed use. 4.4 Rent Adjustments for Water-Dependent Uses. (a) Inflation Adjustment. State shall adjust water-dependent rent annually pursuant to RCW 79.105.010 -902, except in those years in which the rent is revalued under Subsection 4.4(b) below. This adjustment shall be effective on the anniversary of the Commencement Date. (b) Revaluation of Rent. State shall, at the end of the first four-year period of the Term, and at the end of each subsequent four-year period, revalue the water-dependent Annual Rent in accordance with RCW 79.105.010-.902. (c) Rent Cap. After the initial year's rent is determined under Subsection 4.1,rent may increase by operation of Subsection 4.4(a) or 4.4(b). If application of the statutory rent formula for water-dependent uses would result in an increase in the rent attributable to such uses of more than fifty percent(50%) in any one year, the actual increase implemented in such year shall be limited to fifty percent(50%) of the then-existing rent, in accordance with RCW 79.105.260. The balance of the increase determined by the formula shall be deferred to subsequent years and added to the next and subsequent years' rental increases until the full amount of the increase is lawfully implemented. 4.5 Rent Adjustment Procedures. (a) Notice of Rent Adjustment. Notice of any adjustments to the Annual Rent that are allowed by Subsection 4.4(b) shall be provided to Tenant in writing no later than ninety(90)days after the anniversary date of the Lease. (b) Procedures on Failure to make Timely Adjustment. In the event the State fails to provide the notice required in Subsection 4.5(a), it shall be prohibited from collecting any adjustments to rent only for the year in which it failed to provide notice. No failure by State to adjust Annual Rent pursuant to Subsection 4.5(a) shall affect the State's right to establish Annual Rent for a subsequent lease year as if the missed or waived adjustment had been implemented. The State may adjust, bill, and collect Annual Rent prospectively as if any missed or waived adjustments had actually been implemented. This includes the implementation of any inflation adjustment and any rent revaluations that would have been authorized for previous lease years. SECTION 5 OTHER EXPENSES During the Term, Tenant shall pay the following additional expenses: �Wr► Form Date:May,2005 4 of 25 Commercial Lease 22-A90012 5.1 Utilities. Tenant shall pay all fees charged for utilities in connection with the use and occupancy of the Property, including but not limited to electricity, water, gas, and telephone *Nur" service. 5.2 Taxes and Assessments. Tenant shall pay all taxes (including leasehold excise taxes), assessments, and other governmental charges, of any kind whatsoever, applicable or attributable to the Property, Tenant's leasehold interest,the improvements, or Tenant's use and enjoyment of the Property. 5.3 Right to Contest. Tenant may, in good faith, contest any tax or assessment at its sole cost and expense. At the request of State, Tenant shall furnish reasonable protection in the form of a bond or other security, satisfactory to State, against any loss or liability by reason of such contest. 5.4 Proof of Payment. Tenant shall, if required by State, furnish to State receipts or other appropriate evidence establishing the payment of any amounts required to be paid under the terms of this Lease. 5.5 Failure to Pay. If Tenant fails to pay any of the amounts due under this Lease, State may pay the amount due, and recover its cost in accordance with the provisions of Section 6. SECTION 6 LATE PAYMENTS AND OTHER CHARGES 6.1 Late Charge. If any rental payment is not received by State within ten(10) days of the date due, Tenant shall pay to State a late charge equal to four percent(4%) of the amount of the payment or Fifty Dollars ($50), whichever is greater,to defray the overhead expenses of State incident to the delay. 6.2 Interest Penalty for Past Due Rent and Other Sums Owed. If rent is not paid within thirty(30)days of the date due, then Tenant shall, in addition to paying the late charges determined under Subsection 6.1, above,pay interest on the amount outstanding at the rate of one percent(1%)per month until paid. If State pays or advances any amounts for or on behalf of Tenant, including but not limited to leasehold taxes,taxes, assessments, insurance premiums, costs of removal and disposal of unauthorized materials pursuant to Section 2 above, costs of removal and disposal of improvements pursuant to Section 7 below, or other amounts not paid when due, Tenant shall reimburse State for the amount paid or advanced and shall pay interest on that amount at the rate of one percent(1%)per month from the date State notifies Tenant of the payment or advance. 6.3 No Accord and Satisfaction. If Tenant pays, or State otherwise receives, an amount less than the full amount then due, State may apply such payment as it elects. In the absence of an election, the payment or receipt shall be applied first to accrued taxes which State has advanced or may be obligated to pay, then to other amounts advanced by State,then to late charges and accrued interest, and then to the earliest rent due. State may accept any payment in any amount without prejudice to State's right to recover the balance of the rent or pursue any other right or remedy. No endorsement or statement on any check, any payment, or any letter accompanying any check or payment shall constitute or be construed as accord and satisfaction. Noire Form Date:May,2005 5 of 25 Commercial Lease 22-A90012 6.4 No Counterclaim, Setoff, or Abatement of Rent. Except as expressly set forth viage elsewhere in this Lease, rent and all other sums payable by Tenant pursuant to this Lease shall be paid without the requirement that State provide prior notice or demand, and shall not be subject to any counterclaim, setoff, deduction, defense or abatement. SECTION 7 IMPROVEMENTS 7.1 Existing Improvements. On the Commencement Date, the following improvements are located on the Property: floating dock, and approximately six (6) galvanized steel pilings ("Existing Improvements"). The improvements are not owned by State. 7.2 Tenant-Owned Improvements. So long as this Lease remains in effect, Tenant shall retain ownership of all Existing Improvements, and all authorized improvements and trade fixtures it may place on the Property (collectively "Tenant-Owned Improvements"). Tenant- Owned Improvements shall not include any construction, reconstruction, alteration, or addition to any Unauthorized Improvements as defined in Subsection 7.5 below. No Tenant-Owned Improvements shall be placed on the Property without State's prior written consent. 7.3 Construction. Prior to any construction, alteration, replacement, removal or major repair of any improvements (whether State-Owned or Tenant-Owned), Tenant shall submit to State plans and specifications which describe the proposed activity. Construction shall not commence until State has approved those plans and specifications in writing and Tenant has obtained a performance and payment bond in an amount equal to 125% of the estimated cost of ,, ,, construction. The performance and payment bond shall be maintained until the costs of construction, including all laborers and material persons, have been paid in full. State shall have sixty(60) days in which to review the proposed plans and specifications. The plans and specifications shall be deemed approved and the requirement for State's written consent shall be treated as waived, unless State notifies Tenant otherwise within the sixty(60)days. Upon completion of construction, Tenant shall promptly provide State with as-built plans and specifications. State's consent and approval shall not be required for any routine maintenance or repair of improvements made by the Tenant pursuant to its obligation to maintain the Property in good order and repair that does not result in the construction, alteration,replacement, removal, or major repair of any improvements on the Property. 7.4 Removal. Tenant-Owned Improvements shall be removed by Tenant by the Termination Date unless State notifies Tenant that the Tenant-Owned Improvements may remain. If the State elects for the Tenant-Owned Improvements to remain on the Property after the Termination Date, they shall become the property of State without payment by State(if the provisions of RCW 79.125.300 or RCW 79.130.040 apply, Tenant shall be entitled to the rights provided in the statute). To the extent that Tenant-Owned Improvements include items of personal property which may be removed from the leasehold premises without harming the Property, or diminishing the value of the Property or the improvements, the State asserts no ownership interest in these improvements unless the parties agree otherwise in writing upon termination of this Lease. Any Tenant-Owned Improvements specifically identified as personal property in Exhibit A or B shall be treated in accordance with this provision. Tenant shall notify State at Form Date:May,2005 6 of 25 Commercial Lease 22-A90012 • least one hundred eighty (180) days before the Termination Date if it intends to leave the Tenant- Owned Improvements on the Property. State shall then have ninety (90)days in which to notify „I` Tenant that it wishes to have the Tenant-Owned Improvements removed or elects to have them remain. Failure to notify Tenant shall be deemed an election by State that the Tenant-Owned Improvements will remain on the Property. If the Tenant-Owned Improvements remain on the Property after the Termination Date without State's actual or deemed consent, they still will become the property of the State but the State may remove them and Tenant shall pay the costs of removal and disposal upon State's demand. 7.5 Unauthorized Improvements. Improvements made on the Property without State's prior consent pursuant to Subsection 7.3 or which are not in conformance with the plans submitted to and approved by State ("Unauthorized Improvements") shall immediately become the property of State, unless State elects otherwise. Regardless of ownership of Unauthorized Improvements, State may, at its option,require Tenant to sever, remove, and dispose of them, charge Tenant rent for the use of them,or both. If Tenant fails to remove an Unauthorized Improvement upon request, State may remove it and charge Tenant for the cost of removal and disposal. SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION 8.1 Definition. "Hazardous Substance"means any substance which now or in the future becomes regulated or defined under any federal, state, or local statute, ordinance,rule, regulation, or other law relating to human health, environmental protection, contamination or cleanup, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601 et seq., and ,,, 411 Washington's Model Toxics Control Act("MTCA"), RCW 70.105D.010 et seq. 8.2 Use of Hazardous Substances. Tenant covenants and agrees that Hazardous Substances will not be used, stored, generated,processed,transported,handled, released, or disposed of in, on, under, or above the Property, except in accordance with all applicable laws. 8.3 Current Conditions, Duty of Utmost Care,and Duty to Investigate. (a) State makes no representation about the condition of the Property. Hazardous Substances may exist in,on,under, or above the Property. With regard to any Hazardous Substances that may exist in, on, under, or above the Property, State disclaims any and all responsibility to conduct investigations,to review any State records, documents or files, or to obtain or supply any information to Tenant. (b) Tenant shall exercise the utmost care with respect to both Hazardous Substances in, on, under, or above the Property as of the Commencement Date, and any Hazardous Substances that come to be located in, on, under, or above the Property during the Term of this agreement, along with the foreseeable acts or omissions of third parties affecting those Hazardous Substances, and the foreseeable consequences of those acts or omissions. The obligation to exercise utmost care under this Subsection 8.3 includes, but is not limited to, the following requirements: Form Date:May,2005 7 of 25 Commercial Lease 22-A90012 (1) Tenant shall not undertake activities that will cause, contribute to, or *ow exacerbate contamination of the Property; (2) Tenant shall not undertake activities that damage or interfere with the operation of remedial or restoration activities on the Property or undertake activities that result in human or environmental exposure to contaminated sediments on the Property; (3) Tenant shall not undertake any activities that result in the mechanical or chemical disturbance of on-site habitat mitigation; (4) If requested, Tenant shall allow reasonable access to the Property by employees and authorized agents of the Environmental Protection Agency, the Washington State Department of Ecology, or other similar environmental agencies; and (5) If requested, Tenant shall allow reasonable access to potentially liable or responsible parties who are the subject of an order or consent decree which requires access to the Property. Tenant's obligation to provide access to potentially liable or responsible parties may be conditioned upon the negotiation of an access agreement with such parties, provided that such agreement shall not be unreasonably withheld. (c) It shall be Tenant's obligation to gather sufficient information concerning the °war Property and the existence, scope, and location of any Hazardous Substances on the Property, or adjoining the Property, that allows Tenant to effectively meet its obligations under this lease. 8.4 Notification and Reporting. (a) Tenant shall immediately notify State if Tenant becomes aware of any of the following: (1) A release or threatened release of Hazardous Substances in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property; (2) Any problem or liability related to, or derived from, the presence of any Hazardous Substance in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property; (3) Any actual or alleged violation of any federal, state, or local statute, ordinance, rule, regulation, or other law pertaining to Hazardous Substances with respect to the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property; Form Date:May,2005 8 of 25 Commercial Lease 22-A90012 (4) Any lien or action with respect to any of the foregoing; or, (5) Any notification from the US Environmental Protection Agency (EPA) or the Washington State Department of Ecology (DOE) that remediation or removal of Hazardous Substances is or may be required at the Property. (b) Upon request, Tenant shall provide State with copies of any and all reports, studies, or audits which pertain to environmental issues or concerns associated with the Property, and which were prepared for Tenant and submitted to any federal, state or local authorities pursuant to any federal, state or local permit, license or law. These permits include, but are not limited to, any National Pollution Discharge and Elimination System Permit, any Army Corps of Engineers permit, any State Hydraulics permit, any State Water Quality certification, or any Substantial Development permit. 8.5 Indemnification. (a) Tenant shall fully indemnify, defend, and hold State harmless from and against any and all claims, demands, damages, natural resource damages, response costs, remedial costs, cleanup costs, losses, liens, liabilities,penalties, fines, lawsuits, other proceedings, costs, and expenses (including attorneys' fees and disbursements),that arise out of,or are in any way related to: (1) The use, storage, generation, processing, transportation, handling, or disposal of any Hazardous Substance by Tenant, its subtenants, contractors, agents, employees, guests, invitees, or affiliates in, on,under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property, during the Term of this Lease or during any time when Tenant occupies or occupied the Property or any such other property; (2) The release or threatened release of any Hazardous Substance, or the exacerbation of any Hazardous Substance contamination, in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property, which release, threatened release, or exacerbation occurs or occurred during the Term of this Lease or during any time when Tenant occupies or occupied the Property or any such other property, and as a result of: (i) Any act or omission of Tenant, its subtenants, contractors, agents, employees, guests, invitees, or affiliates; or, (ii) Any foreseeable act or omission of a third party unless Tenant exercised the utmost care with respect to the foreseeable acts or omissions of the third party and the foreseeable consequences of those acts or omissions. Form Date: May,2005 9 of 25 Commercial Lease 22-A90012 (b) In addition to the indemnifications provided in Subsection 8.5(a), Tenant shall l,,w fully indemnify State for any and all damages, liabilities, costs or expenses (including attorneys' fees and disbursements) that arise out of or are in any way related to Tenant's breach of the obligations of Subsection 8.3(b). This obligation is not intended to duplicate the indemnity provided in Subsection 8.5(a) and applies only to damages, liabilities, costs, or expenses that are associated with a breach of Subsection 8.3(b) and which are not characterized as a release, threatened release, or exacerbation of Hazardous Substances. 8.6 Cleanup. If a release of Hazardous Substances occurs in, on, under, or above the Property, or other State-owned property, arising out of any action, inaction, or event described or referred to in Subsection 8.5, above, Tenant shall, at its sole expense, promptly take all actions necessary or advisable to clean up the Hazardous Substances. Cleanup actions shall include, without limitation, removal, containment and remedial actions and shall be performed in accordance with all applicable laws, rules, ordinances, and permits. Tenant's obligation to undertake a cleanup under this Subsection 8.6 shall be limited to those instances where the Hazardous Substances exist in amounts that exceed the threshold limits of any applicable regulatory cleanup standards. Tenant shall also be solely responsible for all cleanup, administrative, and enforcement costs of governmental agencies, including natural resource damage claims, arising out of any action, inaction, or event described or referred to in Subsection 8.5, above. Tenant may undertake a cleanup pursuant to the Washington State Department of Ecology's Voluntary Cleanup Program,provided that: (1)Any cleanup plans shall be submitted to State (DNR) for review and comment at least thirty(30) days prior to implementation(except ,, ,, in emergency situations), and (2) Tenant must not be in breach of this lease. Nothing in the operation of this provision shall be construed as an agreement by State that the voluntary cleanup complies with any laws or with the provisions of this Lease. 8.7 Sampling by State, Reimbursement, and Split Samples. (a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests")of the Property at any time to determine the existence, scope, or effects of Hazardous Substances on the Property, any adjoining property, any other property subject to use by Tenant in conjunction with its use of the Property, or any natural resources. If such Tests, along with any other information, demonstrates the existence, release, or threatened release of Hazardous Substances arising out of any action, inaction, or event described or referred to in Subsection 8.5, above, Tenant shall promptly reimburse State for all costs associated with such Tests. (b) State's ability to seek reimbursement for any Tests under this Subsection shall be conditioned upon State providing Tenant written notice of its intent to conduct any Tests at least thirty (30) calendar days prior to undertaking such Tests, unless such Tests are performed in response to an emergency situation in which case State shall only be required to give such notice as is reasonably practical. 44109 Form Date:May,2005 10 of 25 Commercial Lease 22-A90012 (c) Tenant shall be entitled to obtain split samples of any Test samples obtained by State, but only if Tenant provides State with written notice requesting such , samples within twenty (20) calendar days of the date Tenant is deemed to have received notice of State's intent to conduct any non-emergency Tests. The additional cost, if any, of split samples shall be borne solely by Tenant. Any additional costs State incurs by virtue of Tenant's split sampling shall be reimbursed to State within thirty (30) calendar days after a bill with documentation for such costs is sent to Tenant. (d) Within thirty (30) calendar days of a written request(unless otherwise required pursuant to Subsection 8.4(b), above), either party to this Lease shall provide the other party with validated final data, quality assurance/quality control information, and chain of custody information, associated with any Tests of the Property performed by or on behalf of State or Tenant. There is no obligation to provide any analytical summaries or expert opinion work product. 8.8 Reservation of Rights. The parties have agreed to allocate certain environmental risks, liabilities, and responsibilities by the terms of Section 8. With respect to those environmental liabilities covered by the indemnification provisions of Subsection 8.5, that subsection shall exclusively govern the allocation of those liabilities. With respect to any environmental risks, liabilities, or responsibilities not covered by Subsection 8.5,the parties expressly reserve and do not waive or relinquish any rights, claims, immunities, causes of action, or defenses relating to the presence,release, or threatened release of Hazardous Substances in, on, under, or above the Property, any adjoining property, or any other property subject to use by Tenant in conjunction with its use of the Property,that either party may have against the other under federal, state,or local laws, including but not limited to, CERCLA, MTCA, and the common law. No right, claim, immunity, or defense either party may have against third parties is affected by this Lease and the parties expressly reserve all such rights, claims, immunities, and defenses. The allocations of risks, liabilities, and responsibilities set forth above do not release either party from, or affect either party's liability for, claims or actions by federal, state, or local regulatory agencies concerning Hazardous Substances. SECTION 9 ASSIGNMENT AND SUBLETTING 9.1 State Consent Required. Tenant shall not sell, convey, mortgage, assign, pledge, sublet, or otherwise transfer or encumber all or any part of Tenant's interest in this Lease or the Property without State's prior written consent, which shall not be unreasonably conditioned or withheld. (a) In determining whether to consent, State may consider, among other items, the proposed transferee's financial condition,business reputation and experience,the nature of the proposed transferee's business, the then-current value of the Property, and such other factors as may reasonably bear upon the suitability of the transferee as a tenant of the Property. Tenant shall submit information regarding any proposed transferee to State at least thirty (30) days prior to the date of the proposed transfer. Form Date:May,2005 11 of 25 Commercial Lease 22-A90012 (b) State reserves the right to condition its consent upon: (1) changes in the terms and conditions of this Lease, including the Annual Rent and other terms; and/or (2) the agreement of Tenant or transferee to conduct Tests for Hazardous Substances on the Property or on other property owned or occupied by Tenant or the transferee. (c) Each permitted transferee shall assume all obligations under this Lease, including the payment of rent. No assignment, sublet, or transfer shall release, discharge, or otherwise affect the liability of Tenant. 9.2 Event of Assignment. If Tenant is a corporation, a dissolution of the corporation or a transfer(by one or more transactions) of a majority of the voting stock of Tenant shall be deemed to be an assignment of this Lease. If Tenant is a partnership, a dissolution of the partnership or a transfer(by one or more transactions)of the controlling interest in Tenant shall be deemed an assignment of this Lease. 9.3 Rent Payments Following Assignment. The acceptance by State of the payment of rent following an assignment or other transfer shall not constitute consent to any assignment or transfer. 9.4 Terms of Subleases. All subleases shall be submitted to State for approval and shall meet the following requirements: Ne r (a) The sublease shall be consistent with and subject to all the terms and conditions of this Lease; (b) The sublease shall confirm that if the terms of the sublease conflict with the terms of this Lease, this Lease shall control; (c) The term of the sublease (including any period of time covered by a renewal option) shall end before the Termination Date of the initial Term or any renewal term; (d) The sublease shall terminate if this Lease terminates, whether upon expiration of the Term, failure to exercise an option to renew, cancellation by State, surrender or for any other reason; (e) The subtenant shall receive and acknowledge receipt of a copy of this Lease; (f) The sublease shall prohibit the prepayment to Tenant by the subtenant of more than one month's rent; (g) The sublease shall identify the rental amount to be paid to Tenant by the subtenant; Form Date:May,2005 12 of 25 Commercial Lease 22-A90012 (h) The sublease shall confirm that there is no privity of contract between the subtenant and State; , NO (i) The sublease shall require removal of the subtenant's improvements and trade fixtures upon termination of the sublease; and, (j) The subtenant's permitted use shall be within the Permitted Use authorized by this Lease. 9.5 Routine Subleasing of Moorage Slips. In the case of routine subleasing of moorage slips to recreational and commercial vessel owners for a term of one year or less,Tenant shall not be required to obtain State's written consent or approval pursuant to Subsection 9.1 or Subsection 9.4. Tenant shall be obligated to ensure that these moorage agreements conform to the sublease requirements in Subsection 9.4. SECTION 10 INDEMNITY,FINANCIAL SECURITY,INSURANCE 10.1 Indemnity. Tenant shall indemnify, defend, and hold harmless State, its employees, officers, and agents from any and all liability, damages (including bodily injury,personal injury and damages to land, aquatic life, and other natural resources), expenses,causes of action, suits, claims, costs, fees (including attorneys' fees),penalties, or judgments,of any nature whatsoever, arising out of the use, occupation, or control of the Property by Tenant, its subtenants,invitees, agents, employees, licensees, or permittees, except as may arise solely out of the willful or negligent act of State or State's elected officials,employees, or agents. To the extent that RCW 4.24.115 applies, Tenant shall not be required to indemnify, defend,and hold State harmless from State's sole or concurrent negligence. Tenant's liability to State for hazardous substances,and its obligation to indemnify, defend, and hold the State harmless for hazardous substances, shall be governed exclusively by Section 8. 10.2 Financial Security. (a) At its own expense, Tenant shall procure and maintain a corporate surety bond or provide other financial security satisfactory to State (the"Bond") in an amount equal to Five Hundred Dollars ($500),which shall secure Tenant's full performance of its obligations under this Lease, with the exception of the obligations under Section 8 (Environmental Liability/Risk Allocation) above. The Bond shall be in a form and issued by a surety company acceptable to State. State may require an adjustment in the amount of the Bond: (1) At the same time as revaluation of the Annual Rent; (2) As a condition of approval of assignment or sublease of this Lease; (3) Upon a material change in the condition of any improvements; or, .04000 Form Date:May,2005 13 of 25 Commercial Lease 22-A90012 (4) Upon a change in the Permitted Use. ‘4r.r A new or modified Bond shall be delivered to State within thirty(30) days after adjustment of the amount of the Bond has been required by State. (b) Upon any default by Tenant in its obligations under this Lease, State may collect on the Bond to offset the liability of Tenant to State. Collection on the Bond shall not relieve Tenant of liability, shall not limit any of State's other remedies, and shall not reinstate or cure the default or prevent termination of the Lease because of the default. 10.3 Insurance. At its own expense, Tenant shall procure and maintain during the Term of this Lease,the insurance coverages and limits described in Subsections 10.3(a)and (b)below. This insurance shall be issued by an insurance company or companies admitted and licensed by the Insurance Commissioner to do business in the State of Washington. Insurers must have a rating of B+or better by "Best's Insurance Reports," or a comparable rating by another rating company acceptable to State. If non-admitted or non-rated carriers are used, the policies must comply with Chapter 48.15 RCW. (a) Types of Required Insurance. (1) Commercial General Liability Insurance. Tenant shall procure and maintain Commercial General Liability insurance and, if applicable, Marina Operators Legal Liability insurance covering claims for bodily 44.00, injury,personal injury, or property damage arising on the Property and/or arising out of Tenant's operations. If necessary, commercial umbrella insurance covering claims for these risks shall be procured and maintained. Insurance must include liability coverage with limits not less than those specified below: Description Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 State may impose changes in the limits of liability: (i) As a condition of approval of assignment or sublease of this Lease; (ii) Upon any breach of Section 8, above; (iii) Upon a material change in the condition of the Property or any improvements; or, (iv) Upon a change in the Permitted Use. Nose Form Date:May,2005 14 of 25 Commercial Lease 22-A90012 New or modified insurance coverage shall be in place within thirty (30) days after changes in the limits of liability are required by State. ,, 100 (2) Property Insurance. Tenant shall procure and maintain property insurance covering all real property located on or constituting a part of the Property in an amount equal to the replacement value of all improvements on the Property. Such insurance may have commercially reasonable deductibles. (3) Worker's Compensation/Employer's Liability Insurance. Tenant shall procure and maintain: (i) State of Washington Worker's Compensation coverage, as applicable, with respect to any work by Tenant's employees on or about the Property and on any improvements; (ii) Employers Liability or"Stop Gap" insurance coverage with limits not less than those specified below. Insurance must include bodily injury coverage with limits not less than those specified below: Each Employee Policy Limit By Accident By Disease By Disease $1,000,000 $1,000,000 $1,000,000 (iii) Longshore and Harbor Worker's Act and Jones Act coverage, as applicable, with respect to any work by Tenant's employees on or about the Property and on any improvements. (4) Builder's Risk Insurance. As applicable, Tenant shall procure and maintain builder's risk insurance in an amount reasonably satisfactory to State during construction,replacement, or material alteration of the Property or improvements on the Property. Coverage shall be in place until such work is completed and evidence of completion is provided to State. (5) Business Auto Policy Insurance. As applicable, Tenant shall procure and maintain a business auto policy. The insurance must include liability coverage with limits not less than those specified below: Description Each Accident Bodily Injury and Property Damage $1,000,000 (6) Aviation Liability Insurance. Tenant shall procure and maintain insurance covering liability arising from ownership, maintenance or use of aircraft, including liability assumed under an insurance contract. The insurance must include liability coverage with limits not less than those specified below: Form Date:May,2005 15 of 25 Commercial Lease 22-A90012 General �.r Description Per Seat Aggregate Bodily Injury and Property Damage $1,000,000 $5,000,000 (b) Terms of Insurance. The policies required under Subsection 10.3 shall name the State of Washington, Department of Natural Resources as an additional insured (except for State of Washington Worker's Compensation coverage, and Federal Jones' Act and Longshore and Harbor Worker's Act coverages). Furthermore, all policies of insurance described in Subsection10.3 shall meet the following requirements: (1) Policies shall be written as primary policies not contributing with and not in excess of coverage that State may carry; (2) Policies shall expressly provide that such insurance may not be canceled or nonrenewed with respect to State except upon forty-five (45) days prior written notice from the insurance company to State; (3) To the extent of State's insurable interest, property coverage shall expressly provide that all proceeds shall be paid jointly to State and Tenant; (4) All liability policies must provide coverage on an occurrence basis; and (5) Liability policies shall not include exclusions for cross liability. (c) Proof of Insurance. Tenant shall furnish evidence of insurance in the form of a Certificate of Insurance satisfactory to the State accompanied by a checklist of coverages provided by State, executed by a duly authorized representative of each insurer showing compliance with the insurance requirements described in section 10, and, if requested, copies of policies to State. The Certificate of Insurance shall reference the State of Washington, Department of Natural Resources and the lease number. Receipt of such certificates or policies by State does not constitute approval by State of the terms of such policies. Tenant acknowledges that the coverage requirements set forth herein are the minimum limits of insurance the Tenant must purchase to enter into this agreement. These limits may not be sufficient to cover all liability losses and related claim settlement expenses. Purchase of these limits of coverage does not relieve the Tenant from liability for losses and settlement expenses greater than these amounts. 10.4 State's Acquisition of Insurance. If Tenant fails to procure and maintain the insurance described above within fifteen(15) days after Tenant receives a notice to comply from State, State shall have the right to procure and maintain comparable substitute insurance and to pay the premiums. Tenant shall pay to State upon demand the full amount paid by State, together with interest at the rate provided in Subsection 6.2 from the date of State's notice of the expenditure until Tenant's repayment. Form Date:May,2005 16 of 25 Commercial Lease 22-A90012 10.5 Self Insurance. Tenant warrants that it has the capacity to self insure for the risks and coverages specified in Section 10. Tenant's obligations under Section 10 may be met by , 110 providing evidence of self insurance that is acceptable to State. Any acceptance of Tenant's proof of self insurance by State must be obtained in writing. The decision to accept, or reject, Tenant's proof of self insurance is within the sole discretion of the State. Tenant must provide State with proof of continuing ability to provide self insurance within thirty (30) days of any written request by State for such proof Tenant shall also provide State with written notice within seven(7) days of any material change in its ability to self insure, or to its program of self insurance. If Tenant elects to discontinue its program of self insurance, or if State provides written notice withdrawing its acceptance of Tenant's proof of self insurance, Tenant shall be subjected to the requirements of Section 10. Tenant shall be in compliance with the requirements of Section 10 prior to exercising an election to terminate self insurance coverage and shall comply with those requirements within thirty (30) days of receipt of any notice from State withdrawing its consent to self insurance. All sublease agreements must comply with the provisions of Section 10. SECTION 11 MAINTENANCE AND REPAIR 11.1 State's Repairs. State shall not be required to make any alterations,maintenance, replacements, or repairs in, on, or about the Property, or any part thereof,during the Term. 11.2 Tenant's Repairs,Alteration, Maintenance and Replacement. (a) Tenant shall, at its sole cost and expense, keep and maintain the Property and all improvements(regardless of ownership) in good order and repair, in a clean, , IS attractive, and safe condition. (b) Tenant shall, at its sole cost and expense,make any and all additions, repairs, alterations, maintenance,replacements, or changes to the Property or to any improvements on the Property which may be required by any public authority. (c) All additions, repairs, alterations,replacements or changes to the Property and to any improvements on the Property shall be made in accordance with, and ownership shall be governed by, Section 7, above. SECTION 12 DAMAGE OR DESTRUCTION (a) In the event of any damage to or destruction of the Property or any improvements, Tenant shall promptly give written notice to State. Unless otherwise agreed in writing, Tenant shall promptly reconstruct, repair, or replace the Property and any improvements as nearly as possible to its condition immediately prior to the damage or destruction. (b) Tenant's duty to reconstruct, repair, or replace any damage or destruction of the Property or any improvements on the Property shall not be conditioned upon the availability of any insurance proceeds to Tenant from which the cost of repairs may be paid. Form Date:May,2005 17 of 25 Commercial Lease 22-A90012 wrr (c) Unless this Lease is terminated by mutual agreement, there shall be no abatement 'rare or reduction in rent during such reconstruction, repair, and replacement. (d) Any insurance proceeds payable by reason of damage or destruction shall be first used to restore the real property covered by this Lease, then to pay the cost of the reconstruction, then to pay the State any sums in arrears, and then to Tenant. (e) In the event Tenant is in default under the terms of this Lease at the time damage or destruction occurs, State may elect to terminate the Lease and State shall then have the right to retain any and all insurance proceeds payable as a result of the damage or destruction. SECTION 13 CONDEMNATION 13.1 Definitions. (a) Taking. The term "taking," as used in this Lease, means the taking of all or any portion of the Property and any improvements thereon under the power of eminent domain, either by judgment or settlement in lieu of judgment. Taking also means the taking of all or a portion of the Property and any improvements thereon to the extent that the Permitted Use is prevented or, in the judgment of State, the Property is rendered impractical for the Permitted Use. A total taking occurs when the entire Property is taken. A partial taking occurs when the taking does not constitute a total taking as defined above. (b) Voluntary Conveyance. The terms "total taking" and"partial taking"shall include a voluntary conveyance, in lieu of formal court proceedings,to any agency, authority, public utility, person, or corporate entity empowered to condemn property. (c) Date of Taking. The term"date of taking"shall mean the date upon which title to the Property or a portion of the Property passes to and vests in the condemnor or the effective date of any order for possession if issued prior to the date title vests in the condemnor. 13.2 Effect of Taking. If during the Term there shall be a total taking, the leasehold estate of Tenant in the Property shall terminate as of the date of taking. If this Lease is terminated, in whole or in part, all rentals and other charges payable by Tenant to State and attributable to the Property taken shall be paid by Tenant up to the date of taking. If Tenant has pre-paid rent, Tenant will be entitled to a refund of the pro rata share of the pre-paid rent attributable to the period after the date of taking. In the event of a partial taking, there shall be a partial abatement of rent from the date of taking in a percentage equal to the percentage of Property taken. 13.3 Allocation of Award. State and Tenant agree that in the event of any condemnation,the award shall be allocated between State and Tenant based upon the ratio of the fair market value of Tenant's leasehold estate and Tenant-Owned Improvements on the Property and State's Form Date:May,2005 18 of 25 Commercial Lease 22-A90012 interest(a) in the Property, (b) in the reversionary interest in Tenant-Owned Improvements, and (c) in State-Owned Improvements. In the event of a partial taking, this ratio will be computed on 4600 the basis of the portion of Property or improvements taken. If Tenant and State are unable to agree on the allocation, it shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association. SECTION 14 DEFAULT AND REMEDIES (a) Tenant shall be in default of this Lease on the occurrence of any of the following: (1) Failure to pay Annual Rent or other expenses when due; (2) Failure to comply with any law, regulation, policy, or order of any lawful governmental authority; (3) Failure to comply with any other provision of this Lease; (4) Two or more defaults over a period of time, or a single serious default, that demonstrates a reasonable likelihood of future defaults in the absence of corrective action by Tenant; or (5) Proceedings are commenced by or against Tenant under any bankruptcy act or for the appointment of a trustee or receiver of Tenants'property. (b) A default shall become an event of default("Event of Default") if Tenant fails to cure the default within sixty(60)days after State provides Tenant with written notice of default, which specifies the nature of the default. (c) Upon an Event of Default, State may terminate this Lease and remove Tenant by summary proceedings or otherwise. State may also, without terminating this Lease, relet the Property on any terms and conditions as State in its sole discretion may decide are appropriate. If State elects to relet, rent received by it shall be applied: (1)to the payment of any indebtedness other than rent due from Tenant to State; (2)to the payment of any cost of such reletting; (3)to the payment of the cost of any alterations and repairs to the Property; and, (4)to the payment of rent and leasehold excise tax due and unpaid under this Lease. Any balance shall be held by State and applied to Tenant's future rent as it becomes due. Tenant shall be responsible for any deficiency created by the reletting during any month and shall pay the deficiency monthly. State's reentry or repossession of the Property under this subsection shall not be construed as an election to terminate this Lease or cause a forfeiture of rents or other charges to be paid during the balance of the Term, unless State gives a written notice of termination to Tenant or termination is decreed by legal proceedings. State may at any time after reletting elect to terminate this Lease for the previous Event of Default. Nord Form Date:May,2005 19 of 25 Commercial Lease 22-A90012 SECTION 15 ENTRY BY STATE 4410., State shall have the right to enter the Property at any reasonable hour to inspect for compliance with the terms of this Lease. SECTION 16 DISCLAIMER OF QUIET ENJOYMENT As indicated in Section 1.1, this Lease is subject to all valid recorded interests of third parties, as well as rights of the public under the Public Trust Doctrine or federal navigation servitude, and treaty rights of Indian Tribes. State believes that its grant of the Lease is consistent with the Public Trust Doctrine and that none of the identified interests of third parties will materially and adversely affect Tenant's right of possession and use of the Property as set forth herein, but makes no guaranty or warranty to that effect. Tenant and State expressly agree that Tenant shall be responsible for determining the extent of its right to possession and for defending its leasehold interest. Consequently, State expressly disclaims and Tenant expressly releases State from any claim for breach of any implied covenant of quiet enjoyment with respect to the possession of the Property. This disclaimer includes, but is not limited to, interference arising from or in connection with access or other use rights of adjacent property owners or the public over the water surface or in or under the water column, including rights under the Public Trust Doctrine; rights held by Indian Tribes; and the general power and authority of State and the United States with respect to aquatic lands, navigable waters, bedlands,tidelands, and shorelands. In the event Tenant is evicted from the Property by reason of successful assertion of any of these rights,this Lease shall terminate as of the date of the eviction. In the event of a partial eviction, Tenant's rent obligations shall abate as of the date of the partial eviction, in direct proportion to the extent of the eviction, but in all other respects,this Lease shall remain in full force and effect. SECTION 17 NOTICE Any notices required or permitted under this Lease may be personally delivered, delivered by facsimile machine, or mailed by certified mail, return receipt requested, to the following addresses or to such other places as the parties may direct in writing from time to time: State: DEPARTMENT OF NATURAL RESOURCES Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Tenant: CITY OF RENTON 616 West Perimeter Road Renton, WA 98022 A notice shall be deemed given and delivered upon personal delivery, upon receipt of a confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set forth above, whichever is applicable. Form Date:May,2005 20 of 25 Commercial Lease 22-A90012 SECTION 18 MISCELLANEOUS 18.1 Authority. Tenant and the person or persons executing this Lease on behalf of Tenant represent that Tenant is qualified to do business in the State of Washington, that Tenant has full right and authority to enter into this Lease, and that each and every person signing on behalf of Tenant is authorized to do so. Upon State's request, Tenant will provide evidence satisfactory to State confirming these representations. This Lease is entered into by State pursuant to the authority granted it in Chapters 79.105 to 79.145 RCW and the Constitution of the State of Washington. 18.2 Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the parties, their successors and assigns. 18.3 Headings. The headings used in this Lease are for convenience only and in no way define, limit, or extend the scope of this Lease or the intent of any provision. 18.4 Entire Agreement. This Lease, including the exhibits and addenda, if any, contains the entire agreement of the parties. All prior and contemporaneous agreements,promises, representations, and statements relating to this transaction or to the Property, if any, are merged into this Lease. 18.5 Waiver. The waiver by State of any breach or default of any term, covenant,or condition of this Lease shall not be deemed to be a waiver of such term, covenant, or condition; of any subsequent breach or default of the same; or of any other term, covenant, or condition of Nod this Lease. State's acceptance of a rental payment shall not be construed to be a waiver of any preceding or existing breach other than the failure to pay the particular rental payment that was accepted. 18.6 Cumulative Remedies. The rights and remedies of State under this Lease are cumulative and in addition to all other rights and remedies afforded to State by law or equity or otherwise. 18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of this Lease. 18.8 Language. The word "Tenant" as used in this Lease shall be applicable to one or more persons, as the case may be. The singular shall include the plural, and the neuter shall include the masculine and feminine. If there is more than one Tenant, their obligations shall be joint and several. The word "persons," whenever used, shall include individuals, firms, associations,and corporations. 18.9 Invalidity. If any provision of this Lease shall prove to be invalid, void, or illegal, it shall in no way affect, impair, or invalidate any other provision of this Lease. vold Form Date:May,2005 21 of 25 Commercial Lease 22-A90012 18.10 Applicable Law and Venue. This Lease shall be interpreted and construed in '"" '` accordance with the laws of the State of Washington. Any reference to a statute shall mean that statute as presently enacted or hereafter amended or superseded. Venue for any action arising out of or in connection with this Lease shall be in the Superior Court for Thurston County, Washington. 18.11 Recordation. Tenant shall record this Lease or a memorandum documenting the existence of this Lease in the county in which the Property is located, at Tenant's sole expense. The memorandum shall, at a minimum, contain the Property description, the names of the parties to the Lease, the State's lease number, and the duration of the Lease. Tenant shall provide State with recording information, including the date of recordation and file number. Tenant shall have thirty (30) days from the date of delivery of the final executed agreement to comply with the requirements of this subsection. If Tenant fails to record this Lease, State may record it and Tenant shall pay the costs of recording upon State's demand. 18.12 Modification. Any modification of this Lease must be in writing and signed by the parties. State shall not be bound by any oral representations or statements. Nur %se Form Date:May,2005 22 of 25 Commercial Lease 22-A90012 THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last signature below. Noili Tenant: CITY OF RENTON Dated: By: KATHY KEOLKER Title: Mayor Address: 1055 S. Grady Way Renton, WA 98055 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES `void Dated: By: DOUG SUTHERLAND Title: Commissioner of Public Lands Address: Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022-9282 Approved as to Form May, 2005 by Joe Panesko Assistant Attorney General State of Washington Form Date:May,2005 23 of 25 Commercial Lease 22-A90012 REPRESENTATIVE ACKNOWLEDGMENT STATE OF ) ) ss County of ) I certify that I know or have satisfactory evidence that KATHY KEOLKER is the person who appeared before me, and said person acknowledged that she signed this instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) Notary Public in and for the State of No ,, Washington, residing at My appointment expires Form Date:May,2005 Y 24 of 25 Commercial Lease 22-A90012 STATE ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss County of ) I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Commissioner of Public Lands, and ex officio administrator of the Department of Natural Resources of the State of Washington to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: (Signature) (Print Name) Notary Public in and for the State of ; Washington, residing at My appointment expires Form Date:May,2005 25 of 25 Commercial Lease 22-A90012 `rr i rii i a � ' pf , ;ill1t i i x INK ; I; is mi Iii I 10:i . if 4 2'» _ - tin l ! Ih R IJJ !! t r le !! ! t11 o a ;it i! i K let 0.; IW il_ 1 i li J 1 1.6 ��}! i , 1Rq , . I; O ! 10.011 �t _ $rl part, ( ' III 91 1i Pli 1 iY'li m VP dr g 1 k hie ft_ : ii P if kilii IV i f I! iliii i Af 49: E F9111 I V gi' I iiiii 313 xi 99 4e 11 11 f i $$ 111101tiii _ _ -1-- $4 ° ; R �-,moi ! I 48 §i 11 II 11/4 R1 1 \ , ro il1 lq apr mivy li \ v, I aq ` ` ^^ led ! R� �s \ O O 1 k V' 11 0 PI b g k intir 1 III to to .4 vrl , I Vii\ _ 1 Q R k i I .,. .. 1 I , -4 ° 4 I----1 5 ;; m 4 / N\ 4 R "C4 ii$ i 1 ! 1 4' i / N '. 41' l ' : P114 e I ii1 . , , 1, ,. d,,, . 1 � '��* f-,J. .,- ti P 04 1 14 M IY E�AM9h TO '' ;7 W'r------1- '--..-:---.r. --....: _..,...__.--- ---- .7 .. 2 �`i , �` � k I,j y 9 „` s {,t , \ , cz c a r Q EP V , II t c 0 WO We g , , N 51 tt= k •f . EXHIBIT B PLAN OF DEVELOPMENT, OPERATION, AND MAINTENANCE Lease No. 22-A90012 City of Renton 616 West Perimeter Rd. Site Description and Present Use The City of Renton lease is located on the southern shore of Lake Washington,just west of the mouth of the Cedar River. The waters of Lake Washington are used for recreational purposes such as boating, swimming, and fishing. The following fish are found in Lake Washington; sockeye salmon(Oncorhynchus nerka),coho salmon(0. kisutch) , steelhead salmon(0. mykiss), chinook salmon (0. tshawytscha), and trout. The Boeing Company is located to the east of the leasehold and a small boat moorage facility is located to the west of the leasehold. The City of Renton runs a seaplane base at this site. The floating dock is made of untreated `veal wood with metal grating on the walkway allowing light to penetrate to the lake bottom. The dock is lined with tires to prolong its life. Future Use and Condition The City of Renton may expand their floating dock in the future. Tenant must notify the State of any plans for changes to their leasehold and the State must approve these changes. Any expansion or decrease in the leasehold area will require an amendment to the lease. SECTION 2 USE 2.1 Permitted Use. Tenant is permitted to use the 15,006 square foot leasehold for seaplane moorage, which includes a floating dock that rises and falls with the lake level on approximately six galvanized steel pilings. All seaplanes must be moored in a manner that ensures that they are located within the leasehold area. The area needed for ingress and egress from the leased premises is included in the leasehold area. Exhibit B 1 of 2 Lease No.22-A90012 SECTION 7 IMPROVEMENTS 7.2 Tenant-Owned Improvements. The "Tenant-Owned Improvements" currently located on the site include: floating dock and approximately six galvanized steel pilings. SECTION 11 MAINTENANCE AND REPAIR 11.2 Tenant's Repairs, Alteration, Maintenance and Replacement. Maintenance of the floating dock includes periodic structural and safety inspections. Routine maintenance of the tires, wood planks, metal grating, cleaning (including power washing), and repair of all portions of the dock occur at periodic intervals or when necessary to assure the safe operation of the dock. Over water seaplane maintenance such as washing and engine maintenance is not permitted. SECTION 15 ENTRY BY STATE SITE INSPECTION Monica Durkin, of the Washington State Department of Natural Resources (DNR), conducted an inventory and a site inspection of the dock on July 7, 2005. SECTION 16 DISCLAIMER OF QUIET ENJOYMENT For purposes of abatement of rent in Section 16 of this lease, the phrases "date of eviction" and Noire "date of partial eviction" shall mean that date Tenant is stopped from all use of the property by reason of an assertion of the rights described in Section 16 of this lease. SECTION 17 NOTICE The City of Renton shall designate a contact person for the Department of Natural Resources. This person has the responsibility of notifying the DNR of the status of the lease. The current contact person is: Bruce Fisher City of Renton Airport 616 West Perimeter Rd. Renton, WA 98055 (425) 430-7471 The current contact for the Department of Natural Resources is: Snoqualmie Land Manager 950 Farman Avenue North Enumclaw, WA 98022 (360) 825-1631 Exhibit B 2 of 2 Lease No.22-A90012 p. r 4 i 1 ` ;! . I t 411 fisli . 1 i ,_,I,,,,,i.,.,,..,p in qpit.n pqii i 6i I ..Aiezi1it 14s ." ,. yr-, ,,, / ri,„ -,„0. t A 0.... jFa.will4 U r, ca I i NDISMNdx3>coo wutru0d ' e . - ..K 61_, d t i ii� -", j ., A 2-73.T / 1 rt' 1 , ,...,4 bp oiri 1 ! ,,,:::,::1:12,,,,":,. .,Er, ,z,, ,„ c:.e 04 [-4,r6IN ,-46. ENR /i , - ® owl o 41 0 kg 14 eitcr)0 gqi b OI J. . It ; xl1, \ g).1 ` alCb il . ; 11 ni Pa .1, .., Hili i tOii t I h \ 1 I� b � 112111.1s ��� a ii x w \\ +� 11a1 I Karr 1 ill I kIfl , I1IIIit qtO i \10331 0 ' I e 111 % 111 1 !i htRhi1 : I 11 14' g. 1,,. g 1 litigil %Staple ttibbisi li iii 1 1 1 -- sspe g V- Ili i II I 2511I HMI ik nat WI i II% hi li MLA N // b -‘4' /V 2R :.‘,2 /4. 4 1 0 /& 4„ 1 4 % 1 1 ir Till bl o // /� i 4.- IN 1 1 b a''k I a: aha h@ I e 9 8 N 3 d Iii r `k " 3 I b R1 111 1 1 k I 'a a §gs lb I ip i b , a� .a 41 R IAN ii 11g4 $ 11"11 & W i 8! , ;„ 6a3. X 3•Rk � 1 golt ��- �i_ s a� � �� a� � MI� � �a � , i 4^ Xrb lay9% ll ; � '' sa R A _ tO @a b!ti!! a 1111 — — $ft. k a 5 .V I p i WATER-DEPENDENT RENT CALCULATION WORKSHEET 7.Uses 8.Acres 1.Lease Number 22-090012 5.UBI_/_/ / Seaplane Moorage 15,006 Square Feet 2.Name City of Renton 6.DNR /_/ / Alternate Parcel? No 3.County King 4.Previous Rent NA .9.f"»rrent_ evaluation Assessment Date April 1,2006 10.County 11.Upland 12.Acres/ 13.Upland 14.Aquatic 15.Aquatic 16.Lease 17.Rent Parcel No. Value Sq.Ft. Value/Acre Value @ 30% Lease Acres Area Value @ 5.06% 1. 0723059007 72,910,700 7291073 $10.00 $3.00 15.006 45,018 $2,277.91 2. 3. 4. Remarks: Is the new water-dependent rent more than a 50 percent increase from the previous rent? Yes No If yes,do not increase annual rents by more than 50 percent each year. PPI Adjustments(Used only for Revaluations and PPj TRUST DIST. Adjustment Years) OF RENT . 90-91+4.958%1.04958 NAV. 91-92+3.654%1.03654 15 %_$ 92-93+0.170%1.00170 93-94+0.601%1.00601 FC Tide/Shore 94-95+1.450%1.01450 20 96!$ 95-96+1.262%1.01262 96-97+3.571%1.03571 SC Tide/Shore 97-98+2.326%1.02326 21 % $ 98-99- 0.235% .99765 99-00-2.508% .97492 Harbor Area 00-01+ .884%1.00884 25 %_$ 01-02+5.657%1.05657 02-03+1.13% 1.0113 03-04 -2.31% 0.9769 04-05 +5.34% 1.0534 05-06 +6.15% 1.06227 Date By 1) If use is log storage,the rent is$374.62 per acre for July 1,2005 to June 30,2006. No parcel numbers are needed. J:/Agency/DNR DOCS/AQR DOC/General Forms/"WaterDepeadRentCalcForm_FY 2006" updated 4/20/9005 r CITY OF RENTON COUNCIL AGENDA BILL AI #: e fl , iiiiipsof Submitting Data: Planning/Building/Public Works For Agenda of: Dept/Div/Board Utility Systems July 17, 2006 Staff Contact Rick Moreno, x7208 Agenda Status Consent X Subject: Public Hearing.. Final Pay Estimate for CAG-06-039 Correspondence.. 2006 Water Main Replacement in: Ordinance N 31St St.,N 33rd St.,NE 24th St. &High Ave. NE Resolution Contractor: VJM Construction, Inc. Old Business Exhibits: New Business Final Pay Estimate Study Sessions Notice of Completion of Public Works Contract Information Project Location Map Recommended Action: Approvals: Council Concur Legal Dept Finance Dept X Other Fiscal Impact: Expenditure Required $1,360.00 (final pay estimate) Transfer/Amendment N/A Amount Budgeted $1,500.00 (final pay estimate) Revenue Generated N/A Total Project Budget $358,000.00 City Share Total Project 100% Acct:425.500.18.5960.34.65.55170 (2006 total project budget for design, construction& administration) SUMMARY OF ACTION: • The contractor, VJM Construction, Inc., started construction of the project on April 25, 2006, and completed the project on June 23, 2006. The original contract amount was $270,749.02 and the final contract amount is $268,790.94. There are sufficient funds in the Water Utility project budget to cover the final pay estimate. STAFF RECOMMENDATION: Accept the project, approve the final pay estimate in the amount of$1,360.00, and release the retained amount of$12,352.53 after 60 days, subject to the City's receipt of all required authorizations. H:\File Sys\WTR-Drinking Water Utility\WTR-27-Water Project Files\WTR-27-3287-N 31st,N 33rd,NE 24th,High Ave NE-2006 Water Main Replacement\In-House Correspondence\Agenda-bill-final-pay-estimatel.doc\RLMtp TO: FINANCE DIRECTOR FROM: PUBLIC WORKS ADMINISTRATOR NTRACTOR: VJM CONSTRUCTION COMPANY NTRACT NO. CAG-06-039 ESTIMATE NO. 3(Final) PROJECT: 2006 8-INCH WATER MAIN REPLACEMENT PROJECT 1. CONTRACTOR EARNINGS THIS ESTIMATE $1,250.00 2. SALES TAX C@ 8.80% $110.00 3. TOTAL CONTRACT AMOUNT THIS ESTIMATE $1,360.00 4. EARNINGS PREVIOUSLY PAID CONTRACTOR $233,510.47 5. * EARNINGS DUE CONTRACTOR THIS ESTIMATE $1,187.50 6. SUBTOTAL-CONTRACTOR PAYMENTS $234,697.97 7. RETAINAGE ON PREVIOUS EARNINGS $12,290.03 8. ** RETAINAGE ON EARNINGS THIS ESTIMATE $62.50 9. SUBTOTAL- RETAINAGE $12,352.53 10. SALES TAX PREVIOUSLY PAID $21,630.44 11. SALES TAX DUE THIS ESTIMATE $110.00 12. SUBTOTAL- SALES TAX $21,740.44 * (95%x LINE 1) ** (RETAINAGE:5%) GRAND TOTAL: $268,790.94 FINANCE DEPARTMENT ACTION: MENT TO CONTRACTOR (Lines 5 and 11): ACCOUNT 425/500/18.5960.34.65/55170/55171/5460 $1,297.50 # 3(Final) $1,297.50 RETAINED AMOUNT(Line 8): ACCOUNT 425/500/18.5960.34.65/551.70/55171/5460 $62.50 # 3(Final) $62.50 TOTAL THIS ESTIMATE: $1,360.00 CHARTER 116, LAWS OF 1965 CITY OF RENTON CERTIFICATION I,THE UNDERSIGNED DO HEREBY CERTIFY UNDER PENALTY OF PERJURY,THAT THE MATERIALS HAVE BEEN FURNISHED,THE SERVICES RENDERED OR THE LABOR PERFORMED AS DESCRIBED HEREIN,AND THAT THE CLAIM IS A JUST,DUE AND UNPAID OBLIGATION AGAINST THE CITY OF RENTON,AND THAT I AM AUTHORIZED TO AUTHENTICATE AND CERTIFY TO SAID CLAIM Signed: &%b.4, C6/3064 GA6c, M13 6, 3v1" Iftsre Printed On:06/30/2006 City of Renton Public Works Department Page 1 • Printed On:06/30/2006 City of Renton Public Works Department Page 1 Project: 2006 8-INCH WATER MAIN REPLACEMENT PROJECT Contract Number: CAG-06-039 Contractor:VJM Construction Co. Pay Estimate 3(Final) Closing Date: 06/27/2006 Item Description Unit Est. Unit Previous Previous This This Total Total No. Quantity Price Quantity Amount Quantity Amount Quantity Amount r 001. Mobilization&Demobilization Lump Sum 1 $12,000.00 100 $12,000.00 0.00 $0 00 1.00 $12,000.00 002. Trench Excavation Safety Systems Lump Sum 1 $2,000.00 1.00 $2,000 00 0.00 $0.00 1.00 $2,000.00 003. Construction Surveying,Staking,&As-Builts Lump Sum 1 $5,000.00 0.75 $3,750.00 0.25 $1250.00 1.00 $5,000.00 004. Temporary Erosion/Sedimentation Controls Lump Sum 1 $2,000.00 1.00 $2,000.00 0.00 $0.00 1.00 $2,000.00 005. Traffic Control Lump Sum 1 $10,000.00 1.00 $10,000.00 0.00 $0.00 1.00 $10,000.00 006. 3/4'Water Service Connection Each 36 $1,100.00 36.00 $39,600.00 0.00 $0.00 36.00 $39,600.00 007. 8-Inch DIP,Cl.52&Fittings(Pollywrapped) Linear Foot 2120 $45.00 2137.00 $96,165.00 0.00 $0.00 2137.00 $96,165.00 008. 8-Inch Gate Valve Assembly Each 7 $900.00 7.00 $6,300.00 0.00 $0.00 7.00 $6,300.00 009. Fire Hydrant Assembly Each 5 $3,500.00 5.00 $17,500.00 0.00 $0.00 5.00 $17,500.00 010. Connection to Existing Water Main Each 4 $3,800.00 4.00 $15,200.00 0.00 $0.00 4.00 $15,200.00 011. Concrete Thrust Blocks&Dead-man Blocks Cubic yard 10 $200.00 6.50 $1,300.00 0.00 $0.00 6.50 $1,300.00 012. Removal&Replacement of Unsuitable Foundation Material Ton 20 $0.01 0.00 $0.00 0.00 $0.00 0.00 $0 013. Select Imported Trench Backfill(Gravel Borrow) Ton 250 $15.00 0.00 $0.00 0.00 $0.00 0.00 $0.00 014. Crushed Surfacing Top Course&Crushed Rock Backfill Ton 350 $15.00 490.40 $7,356.00 0.00 $0.00 490.40 $7,356.00 015. Asphalt Patch Class B Ton 250 $120.00 1 222.50 $26,700.00 0.00 $0.00 222.50 $26,700.00 016. Remove&Replace Concrete Sidewalk&Driveway Sq.Yard 20 $30.00 0.00 $0.00 0.00 $0.00 0.00 $0.00 017. Remove,Restore Lawn,Landscaping Restoration Lump Sum 1 $2,000.00 1.00 $2,000.00 0.00 $0.00 1.00 $2,000.00 018. Removal of Existing Fire Hydrants,Valve Boxes Lump Sum 1 $250.00 1.00 $250.00 0.00 $0.00 1.00 $250.00 019. CO No.1,2-inch B.O Assembly,1-Inch Service adjustment Lump Sum 1 $2,600.00 1.00 $2,600.00 0.00 $0.00 1.00 $2,600.00 020. CO No.2,Survey Additional work Lump Sum 1 $1,079.50 1.00 $1,079.50 0.00 $0.00 1.00 $1,079.50 000. 0 0 0 $0.00 0.00 $0.00 $0.00 0.00 $0.00 Subtotal $245,800.50 $1,250.00 $247,050.50 8.8%Sales Tax $21,630.44 $110.00 $21,740.44 TT Total $267,430.94 $1,360.00 $268,790.9,' 4-AA--' 1424010 hil 4 0 30/at, State of Washington Reg.No.: STATEo� Department of Revenue Audit Procedures&Administration Date: PO Box 47474 1889 l'53 PO Washington 98504-7474 NOTICE OF COMPLETION OF PUBLIC WORKS CONTRACT From: DEPARTMENT USE ONLY City of Renton Assigned To 1055 South Grady Way Renton,WA 98055 Date Assigned Notice is hereby given relative to the completion of contract or project described below. Description of Contract CAG-06-039 8-Inch Water Main Replacement in: N 31st St.,N 33rd St.,NE 24th St&High Ave NE Project No. WTR-27-3287 Contractor's Name VJM Construction, Inc. Telephone No. (425) 868-9066 Contractor's Address 12409 230th Pl.NE,Redmond, WA 98053 Date Work Commenced Date Work Completed Date Work Accepted April 25,2006 June 23, 2006 July 17,2006 Surety or Bonding Co. Developers Surety and Indemnity Company Agent's Address 724 West Smith Street Kent, WA 98035 Agent: Glenn Davidson, Phone 253-458-2252 Contract Amount: $248,850.20 Amount Disbursed: $256,438.41 Deductions ($1,799.70) Amount Retained: $12,352.53 Sales Tax: $21,740.44 Total: $268,790.94 Total $268,790.94 By (Disbursing Officer) Phone No: The Disbursing Officer must complete and mail THREE copies of this notice to the Department of Revenue, Olympia, Washington 98504-7474, immediately after acceptance of the work done under this contract. NO PAYMENTS SHALL BE MADE FROM RETAINED FUND until receipt of Department's certificate, and then only New in accordance with said certificate. H:\File Sys\WTR-Drinking Water Utility\WTR-27-Water Project Files\WTR-27-3287-N 31st,N 33rd,NE 24th,High Ave NE-2006 Water Main Replacement\In-House Cor espondence\Notice_of completion.doc\RLM . 8— INCH WATER MAIN REPLACEMENT IN : N 31ST. ST, N 33RD ST. AND NE 24TH ST.,, Mil I% in ....... ►����. �'7 .,.t--- . ►_� III — illi=►■ _ - �� �� AU1� =mumill. ���■ Mr Iii.1mi minuet— • ■f H MI■ I1rnIf11 w M �' LAKE WASHINGTON I I lit I if ....an p '_,.. / I-■ 1 1.1��i■■ z-■.111/,��,111111 A 7 r . 3 31 4.,.. iiia — .. .•iti I I ..■■� ■ •j/�' 1/1—..i ■ in...■■ i2I NI::mit I X11111 —' ■nnn...iinu la It �- N 33RD ST —arl. 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Lm I,[: . 111::Q :: . di ...2 •rl..■ �l■ -ll- I , - ■ 1N — ` :►MN — to .i: • IF 11111 i I"i: : bin ..4 "Iii: -.:il i i:' C■ :'.. rte J • L f .- II ' ii :Ili :::I illi • __. .. .■ 'illi . pi.' :::■ j am:isi: :� :■ .I... so + cul mums ■: n/!U 101. I ■ illi°:p X1111'.i■ p "7 �d ■I: :Illlllll ill ►�111.111.: ullllllr: :: mid PROJECT VICINITY MAP NO SCALE C:17 COUNCIL Date_7- " a COMMUNITY SERVICES COMMITTEE REPORT July 17, 2006 Appointment of Frank Marshall to the Airport Advisory Committee (July 10, 2006) The Community Services Committee recommends concurrence in the staff recommendation to •approve Mayor Keolker's appointment of Frank Marshall to the Airport Advisory Committee as Airport Leaseholders alternate representative for a term expiring on May 7, 2007. Toni Nelson, Chair Marcie Palmer, Vice-Chair Dan Clawson, em e�`r^ C: Ryan Zulauf Airport Adv Cmte-Marshall-cmt report.doc\ Rev 1/06 bh A7717,1171 BY 1 CE T COMM. COMMUNITY SERVICES Date COMMITTEE REPORT July 17, 2006 • Municipal Arts Commission: Appointment of Ms. Marie McPeak (Referred June 19, 2006) The Community Services Committee recommends concurrence in the staff recommendation to approve Mayor Keolker's appointment of Ms. Marie McPeak to the Municipal Arts Commission for an unexpired term expiring December 31, 2006. Toni Nelson, Chair Marcie Palmer, Vice Chair Dan Clawson,Member Muni Arts-McPeak.doc\ Rev 1/06 bh AM:MOVED BY 1 CITY COUNCIL ' Data 7 /7-A zt '1 PUBLIC SAFETY COMMITTEE COMMITTEE REPORT July 17,2006 Agreement Concerning a Disaster Relief Supply Building and Supplies (July 10, 2006) The Public Safety Committee recommends concurrence in the staff recommendation to approve a Joint Agreement and Memorandum of Understanding with King County Fire District #25 and The American Red Cross, serving King and Kitsap Counties, to provide a process for the American Red Cross to construct, equip, and maintain a Disaster Relief Supply Building, funded by a grant from the Boeing Employees Fund, for the purpose of housing local disaster relief supplies. The Committee recommends that the Mayor and City Clerk be authorized to sign the agreement and memorandum. L,), „Zi,t,, - Denis W. Law, Chair s a Toni Nelson, Vic-- hair /'------7 .. _ fR Don Persson, Member cc: Terry Higashiyama,Community Services Administrator Larry Rude,Deputy Fire Chief Peter Renner,Facilities Director 1:\COMMITTEE\Reports\Public Safety\2006\RedCrossMOU.doc 7/11/2006 CITY OF RENTON, WASHINGTON ORDINANCE NO. AN ORDINANCE OF THF: CITY OF RENTON, WASHINGTON, AMENDING THE 2006 BUDGET BY TRANSFERRING FUNDS IN THE AMOUNT OF $70,000 FROM THE 2005 YEAR-END FUND BALANCE FOR THE PURPOSE OF PUBLIC INFORMATION AND COMMUNITY OUTREACH EFFORTS RELATED TO ANNEXATION AND INCORPORATION, WITH $60,087 GOING TO PRR, INC., CAG #06- TBD, TO CONDUCT THAT WORK, AND DECLARING AN EMERGENCY. NOW, 'THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DOES ORDAIN AS FOLLOWS: SECTION L Appropriation in the General Governmental Fund is hereby increased as follows: *law Original Budget 2006 Adjusted Fund Budget Increase Budget 000.000000.003.5130.0010.41.000193 21,100 $70,000 $91,100 Source of funds: 2005 year-end fund balance. SECTION IL Funds for this line item are hereby added to the 2006 budget and hereby removed from the 2005 year-end fund balance. SECTION III. An emergency is hereby declared and this ordinance shall become effective immediately upon its passage and approval. PASSED BY THE CITY COUNCIL this day of , 2006. Bonnie I. Walton, City Clerk 1 ORDINANCE NO. APPROVED BY THE MAYOR this day of , 2006. Kathy Keolker, Mayor Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD.1272.7/3/06:ma 2 /si4etiiy 7/i / Ok e /1sld 7'/ gyoc CITY OF RENTON, WASHINGTON l�doPf 7-/ -06 ORDINANCE NO. ,-c//4/ AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, VACATING PORTIONS OF PARK AVENUE N., BETWEEN N. Bch ST. AND LOGAN AVENUE N., FOR THE PROPOSED "THE LANDING" 1' SITE DEVELOPMENT STREET SYSTEM (CITY OF RENTON; VAC 04- 005) WHEREAS, a proper petition for vacating portions of Park Avenue N. was filed with the City Clerk on December 17, 2005, and that petition was signed by the owners representing more than two-thirds (2/3) of the property abutting upon the street or alley to be vacated; and WHEREAS, the City Council, by Resolution No. 3730, passed on January 3, 2005, set January 24, 2005, at 7:30 p.m. in the City Council Chambers of the City of Renton as the time and place for a public hearing on this matter; and the City Clerk having given proper notice of this hearing as provided by law, and all persons having been heard who appeared to testify in favor or in opposition on this matter, and the City Council having considered all information and arguments presented to it; and WHEREAS, the Administrator of the Planning/Building/Public Works Department has considered this petition for vacation, and has found it to be in the public interest and for the public benefit, and that no injury or damage to any person or properties will result from this vacation; NOW, THEREFORE,THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DOES ORDAIN AS FOLLOWS: SECTION I. The following described portions of Park Avenue N., to wit: 1 ORDINANCE NO. (Four portions of right-of-way, a total of approximately 21,795 square feet, along Park Ave. N. between N. 8th St and Logan Ave. N. ) See Exhibits "A" and "B" attached hereto and made a part hereof as if fully set forth herein are hereby vacated subject to a temporary stormwater utility easement over, across, under and on all that part described as follows in favor of the City: Tract H and I of the BOEING LAKESHORE LANDING BINDING SITE PLAN as approved by the City of Renton under Land Use Action number LUA-04-081-BSP and as recorded in King County, Washington under Recording Number 20041223000856. All situate in Section 8, Township 23 North, Range 5 East, W.M., in the City of Renton, King County, Washington. This easement is for the purpose of constructing, reconstructing, installing, repairing, replacing, enlarging, operating and maintaining utilities and utility pipelines, including, but not limited to, water, sewer and storm drainage lines, together with the right of ingress and egress thereto. The City may also construct such additional facilities as it may require. This easement is subject to the following terms and conditions: That a utility easement be retained over the above-described right-of-way, with the understanding that the property may be developed fully if the existing utilities are relocated, with the City's approval, at the sole cost of the developer; and That this easement shall run with the land described herein, and shall be binding upon the parties, and their heirs and successors in interest and assigns; and That this easement will expire upon completion of the proposed The Landing infrastructure improvements or formal declaration of City-approved replacement easements. 2 ORDINANCE NO. SECTION II. No compensation is required for this street vacation. SECTION III. This ordinance shall be effective upon its passage, approval, and five days after its publication. A certified copy of this ordinance shall be filed with the Office of Records and Elections, and as otherwise provided by law. PASSED BY THE CITY COUNCIL this day of , 2005. Bonnie I. Walton, City Clerk APPROVED BY THE MAYOR this day of , 2005. Kathy Keolker-Wheeler, Mayor Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD.1174:7/12/06 3 EXHIBIT A LEGAL DESCRIPTION: Tract H, I, K and N of the unrecorded BOEING LAKESHORE LANDING BINDING SITE PLAN approved by the City of Renton under Land Use Action number LUA-04- 081-BSP and contained in Land Record Number LND-35-0013. All situate in Section 8, Township 23 North,Range 5 East, Williamette Meridian, in the City of Renton, King County, Washington. EXHIBIT B VAC-04-005 Tract K h ‘fi Tract H N°� Jeove \ Tract av A r zdeet Bio 1 trs d fib• a a a Tr ct N North 8th Street final Verso as (ecoLied CITY OF RENTON, WASHINGTON y./7-6 ORDINANCE NO. 5215 Aad /7-o6 AN ORDINANCE RELATING TO THE INCURRENCE OF INDEBTEDNESS; PROVIDING FOR THE SALE AND ISSUANCE OF LIMITED TAX GENERAL OBLIGATION BONDS, 2006, IN THE AGGREGATE PRINCIPAL AMOUNT OF $17,980,000 TO PROVIDE PART OF THE COSTS OF CONSTRUCTING TRANSPORTATION AND UTILITY INFRASTRUCTURE AND IMPROVEMENTS IN THE CITY; PROVIDING FOR THE DATE, DENOMINATIONS, FORM, TERMS, REGISTRATION PRIVILEGES, MATURITIES, INTEREST RATES AND COVENANTS OF THE BONDS; PROVIDING FOR THE ANNUAL LEVY OF TAXES TO PAY THE PRINCIPAL THEREOF AND THE INTEREST THEREON; ESTABLISHING A DEBT SERVICE FUND FOR THE BONDS; AND PROVIDING FOR THE SALE AND DELIVERY OF SUCH BONDS TO D.A. DAVIDSON & CO., SEATTLE, WASHINGTON WHEREAS, the City of Renton (the "City") has determined that there is a need for infrastructure and other improvements for the South Lake Washington Infrastructure project and the SW 27th Street Extension project and it is in the best interest of the residents of the City to construct such roadway and utility infrastructure improvements in the City; and WHEREAS, the City Council deems it to be in the best interest of the City that the City borrow money and issue and sell obligations in the form of limited tax general obligation bonds for the purpose of providing part of the costs of the Project(hereinafter defined); and WHEREAS, the incurrence of indebtedness by the City to pay the costs of the Project will not cause the total indebtedness of the City to be incurred without the assent of the voters of the City to exceed the limitations set forth in Chapter 39.36 RCW; and ORDINANCE NO. 5215 WHEREAS, D.A. Davidson & Co. (the "Purchaser") has offered, by way of the Bond Purchase Agreement (the "Purchase Agreement"), to purchase such limited tax general obligation bonds upon the terms and conditions hereinafter set forth; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: Section I. Finding, Purpose and Description of Bonds. The City authorizes the sale and issuance of its "Limited Tax General Obligation Bonds, 2006" (the "Bonds") for the purpose of providing part of the funds necessary to pay the costs of constructing transportation and utility infrastructure and improvements in the South Lake Washington Infrastructure project and the SW 27th Street Extension project, and to pay certain"incidental costs and costs related to the sale and issuance" (as defined in RCW 39.46.070) of the Bonds (the"Project"). The Bonds shall be in the aggregate principal amount of $17,980,000; shall be dated August 1, 2006; shall be issued in fully registered form as to both principal and interest; shall be in the denomination of$5,000 each or any integral multiple thereof within a single maturity; shall be numbered separately in such manner and with any additional designation as the fiscal agencies of the State of Washington (the "State") located in Seattle, Washington and New York, New York (collectively, the"Registrar"),may deem necessary for purpose of identification; shall bear interest at the rates; and shall mature on December 1 in each of the years, in the principal amounts, as set forth below: 2 ORDINANCE NO. 5215 Maturity Date Principal Interest Rate (December 1) Amount Per Annum 2008 $ 520,000 4.25% 2009 540,000 4.25 2010 565,000 3.90 2011 585,000 4.25 2012 610,000 5.00 2013 640,000 4.50 2014 670,000 5.25 2015 700,000 5.25 2016 750,000 4.30 2017 775,000 5.00 2019* 1,670,000 5.00 2020 900,000 5.00 2021 945,000 5.00 2022 1,000,000 5.25 2023 1,040,000 5.25 2024 1,095,000 5.25 2028* 4,975,000 5.00 *Term Bonds The Bonds shall bear interest (computed on the basis of a 360-day year of twelve 30-day months) from their date or from the most recent interest payment date to which interest has been paid or duly provided for, whichever is later, payable on December 1, 2006, and semiannually thereafter on June 1 and December 1 of each year to the maturity or earlier redemption thereof. If any Bond is not paid upon proper presentment at its maturity or redemption date, the City shall be obligated to pay interest at the same rate from and after such maturity or earlier redemption until such Bond, both principal and interest, is paid in full. The Bonds shall be negotiable instruments to the extent provided by RCW 62A.8-102 and RCW 62A.8-105. On the date of issue of the Bonds, all Bonds maturing in the same maturity year shall be issued in the form of a single certificate, which certificate shall be registered in the name of The 3 ORDINANCE NO. 5215 Depository Trust Company or any successor thereto engaged to operate a book-entry system for recording the beneficial ownership of the Bonds, as Custodian (the "Custodian"), or its nominee, and delivered to the Custodian. The Custodian shall hold each such Bond certificate in fully immobilized form for the benefit of the beneficial owners of the Bonds (the `Beneficial Owners") pursuant to the Blanket Issuer Letter of Representations (the "Letter of Representations"), from the City and the Registrar to the Custodian pertaining to the payment of the Bonds and the book-entry system, until the earliest to occur of either (1) the date of maturity of the Bonds evidenced by such certificate, at which time the Custodian shall surrender such certificate to the Registrar for payment of the principal of and interest on such Bonds coming due on such date, and the cancellation thereof; (2) the fifth business day following the date of receipt by the Registrar of the City's request to terminate the book-entry system of registering the beneficial ownership of the Bonds (the "Book-Entry Termination Date"); or(3) the date the City determines to utilize a new Custodian for the Bonds, at which time the old Custodian shall (provided the City is not then in default of any payment then due on the outstanding Bonds) surrender the immobilized certificates to the Registrar for transfer to the new Custodian and cancellation as herein provided. For so long as any outstanding Bonds are registered in the name of the Custodian or its nominee and held by the Custodian in fully immobilized form as described in this Section II, the rights of the Beneficial Owners shall be evidenced solely by an electronic and/or manual entry made from time to time on the records established and maintained by the Custodian in accordance with the Letter of Representations, and no certificates evidencing such Bonds shall be issued and registered in the name of any Beneficial Owner or such Beneficial Owner's nominee. 4 ORDINANCE NO. 5215 The City may terminate the"book-entry" system of registering ownership of the Bonds at any time (provided the City is not then in default of any payment then due on the outstanding Bonds) by delivering to the Registrar: (a) a written request that it issue and deliver Bond certificates to each Beneficial Owner or such Beneficial Owner's nominee on the Book-Entry Termination Date; (b) a list identifying the Beneficial Owners as to both name and address; and (c) a supply of Bond certificates, if necessary for such purpose. Upon surrender to the Registrar of the immobilized certificates evidencing all of the then outstanding Bonds, the Registrar shall issue and deliver new certificates to each Beneficial Owner or such Beneficial Owner's duly appointed agent, naming such Beneficial Owner or such Beneficial Owner's nominee as the registered owner (the "Owner") thereof. Such certificates may be in any integral multiple of $5,000 within a single maturity. Following such issuance, the Owners of such Bonds may transfer and exchange such Bonds in accordance with Section IX hereof. Neither the City nor the Registrar shall have at any time any responsibility or liability to any Beneficial Owner of any Bonds or to any other person for any error, omission, action or failure to act on the part of the Custodian with respect to payment, when due, to the Beneficial Owner of the principal and interest on the Bonds, proper recording of beneficial ownership of Bonds, proper transfers of such beneficial ownership, or any notices to Beneficial Owners or any other matter pertaining to the Bonds. Section II. Place, Manner and Medium of Payment. Both the principal of and interest on the Bonds shall be payable in lawful money of the United States of America. Prior to the Book-Entry Termination Date, the principal and interest on the Bonds shall be paid by the Registrar to the Custodian as the Owner thereof, for the benefit of the Beneficial Owners thereof, in accordance with the Letter of Representations. 5 gisommuk • ORDINANCE NO. 5215 From and after the Book-Entry Termination Date, interest on the Bonds shall be paid by check or draft mailed on or before the interest payment date, to the persons identified as the Owners on the fifteenth day of the month preceding the interest payment date at the addresses shown for the Owners on the registration books for the Bonds (the "Bond Register") maintained by the Registrar; provided, however, that if so requested in writing by the Owner of at least $1,000,000 principal amount of Bonds, interest will be paid by wire transfer on the interest payment date to an account with a bank located in the United States. From and after the Book- Entry Termination Date, principal of the Bonds shall be payable upon presentation and surrender of the Bonds by the Owners at the principal corporate trust office of the Registrar. Section III. Redemption; Open Market Purchase. The Bonds maturing on December 1, 2019 and 2028 are term bonds (the "Term Bonds") and, if not previously purchased by the City in the open market or optionally redeemed as set forth below, are subject to mandatory sinking fund redemption in part and by lot (in such manner as the Registrar shall determine), at par plus accrued interest to the redemption date on December 1 in the following years and in the following mandatory sinking fund redemption amounts: Mandatory Sinking Fund Redemption Dates Mandatory Sinking Fund (December 1) Redemption Amounts 2018 $ 815,000 2019* 855,000 2025 1,155,000 2026 1,210,000 2027 1,275,000 2028* 1,335,000 *Scheduled maturity 6 • ORDINANCE NO. 5215 The Bonds maturing on December 1 in the years 2008 through 2016, inclusive, shall not be subject to redemption prior to maturity. The Bonds maturing on or after December 1, 2017 shall be subject to optional redemption prior to maturity beginning on December 1, 2016, in whole or in part at any time (maturities to be selected by the City and by lot within a maturity in such manner as the Registrar shall determine), at par plus accrued interest to the date of redemption. If the City shall optionally redeem Term Bonds or purchase Term Bonds in the open market, the par amount of the Term Bonds so redeemed or purchased (irrespective of their actual redemption or purchase prices) shall be credited against one or more scheduled mandatory redemption amounts for such Term Bonds (as allocated by the City) beginning not earlier than 60 days after the date of the optional redemption or purchase, and the City shall promptly notify the Registrar in writing of the manner in which the credit for the Term Bonds so redeemed or purchased has been allocated. Any Bond in the principal amount of greater than $5,000 may be partially redeemed in any integral multiple of$5,000. Prior to the Book-Entry Termination Date, the Bonds shall be partially redeemed in accordance with the Letter of Representations. From and after the Book- Entry Termination Date, in the event of a partial redemption of a Bond, upon surrender of such Bond at the principal corporate trust office of the Registrar, a new Bond or Bonds (at the option of the Owner) of the same maturity and interest rate and in the aggregate principal amount remaining unredeemed shall be authenticated and delivered to the Owner, without charge to the Owner for such partial redemption, in any denomination authorized by this Ordinance and selected by the Owner. Prior to the Book-Entry Termination Date, the Registrar shall give, or cause to be given, notice of a call for redemption of any Bonds to the Custodian, as the Owner thereof, for the 7 ORDINANCE NO. 5215 benefit of the Beneficial Owners thereof, in accordance with the Letter of Representations. From and after the Book-Entry Termination Date, notice of any such intended redemption shall be given by or on behalf of the City not less than 30 nor more than 60 days prior to the date fixed for redemption by first-class mail, postage prepaid, to the Owner of each Bond to be redeemed at the address appearing on the Bond Register on the day the notice is given. The requirements of this section shall be deemed to be complied with when notice is mailed as herein provided, whether or not it is actually received by the Owner. In addition, such redemption notice shall be mailed within the same time period, postage prepaid, to each then existing nationally recognized municipal securities information repository designated by the SEC ("NRMSIR"), to the State Information Depository ("SID"), if one is created, and to MBIA Insurance Corporation (the "Bond Insurer") or their respective successors, but such mailings shall not be a condition precedent to the redemption of such Bonds. If such notice to the Owners shall have been given and the City shall have set aside sufficient money for the payment of all Bonds called for redemption on the date fixed for redemption, the Bonds so called shall cease to accrue interest after such redemption date, and all such Bonds shall be deemed not to be outstanding hereunder for any purpose, except that the Owners of such Bonds shall be entitled to receive payment of the redemption price and interest accrued on the principal of the Bonds to the redemption date from the money set aside for such purpose. The City reserves the right to purchase any or all of the Bonds on the open market at any time and at any price. All Bonds purchased or redeemed by the City shall be surrendered to the Registrar for cancellation. 8 • ORDINANCE NO. 5215 Section IV. Debt Limit Not Exceeded. The City finds and covenants that the Bonds are issued within all constitutional and statutory debt limitations presently applicable to the City. Section V. Pledge of Full Faith, Credit and Resources. The Bonds are limited tax general obligations of the City. Unless the principal of and interest on the Bonds are paid from other sources, so long as any Bonds are outstanding, the City hereby irrevocably covenants to include in its budgets and to make annual levies of taxes within the constitutional and statutory tax limitations provided by law without a vote of the qualified voters of the City upon all property within the City subject to taxation in amounts which, together with any other money legally available therefor, shall be sufficient to pay the principal and interest on the Bonds as the same shall become due. The City hereby irrevocably pledges its full faith, credit and resources to the annual levy and collection of such taxes and for the prompt payment of such principal and interest. All of such taxes shall be paid into the Bond Fund hereinafter created. Section VI. Form of Bonds. The Bonds shall be typewritten, printed or lithographed on good bond paper in a form consistent with this Ordinance and State law. Section VII. Execution of Bonds. The Bonds shall be signed on behalf of the City with the facsimile or manual signatures of the Mayor and the City Clerk, and shall have the seal of the City impressed or a facsimile thereof imprinted thereon. In case either or both of the officers who shall have executed any Bond shall cease to be such officer or officers of the City before the Bond so signed shall have been authenticated or delivered by the Registrar or issued by the City, such Bond nevertheless may be authenticated, delivered and issued and upon such authentication, delivery and issuance, shall be as binding upon the City as though those who signed the same had continued to be such officers of the City. Any Bond also may be signed and attested on behalf of the City by such persons as at the actual 9 ORDINANCE NO. 5215 date of execution of such Bond shall be the proper officers of the City although at the original date of such Bond such persons were not such officers of the City. Section VIII. Authentication and Delivery of Bonds by Registrar. The Registrar is authorized and directed, on behalf of the City, to authenticate and deliver Bonds initially issued or transferred or exchanged in accordance with the provisions of such Bonds and this Ordinance. Only such Bonds as shall bear thereon a "Certificate of Authentication" manually executed by an authorized signatory of the Registrar shall be valid or obligatory for any purpose or entitled to the benefits of this Ordinance. Such Certificate of Authentication shall be conclusive evidence that the Bonds so authenticated have been duly executed, authenticated and delivered hereunder and are entitled to the benefits of this Ordinance. The Registrar shall be responsible for its representations contained in the Certificate of Authentication on the Bonds. Section IX. Registration: Transfer and Exchange. The Registrar shall keep, or cause to be kept,the Bond Register at its principal corporate trust office. The City and the Registrar, each in its discretion, may deem and treat the Owner of each Bond as the absolute owner thereof for all purposes, and neither the City nor the Registrar shall be affected by any notice to the contrary. Payment of any such Bond shall be made only as described in Section II hereof, but such registration may be transferred as herein provided. All such payments made as provided in Section II hereof shall be valid and shall satisfy and discharge the liability of the City upon such Bond to the extent of the amount or amounts so paid. The registered ownership of any Bond may be transferred. Prior to the Book-Entry Termination Date, the beneficial ownership of the Bonds may only be transferred on the records 10 ORDINANCE NO. 5215 established and maintained by the Custodian. On and after the Book-Entry Termination Date, no transfer of any Bond shall be valid unless it is surrendered at any principal corporate trust office of the Registrar, with the assignment form appearing on such Bond duly executed by the Owner or such Owner's duly authorized agent, in a manner satisfactory to the Registrar. Upon such surrender, the Registrar shall cancel the surrendered Bond and shall authenticate and deliver, without charge to the Owner or transferee therefor (other than governmental fees or taxes payable on account of such transfer), a new Bond or Bonds (at the option of the new Owner), of the same maturity and interest rate and for the same aggregate principal amount, in any authorized denomination, naming as Owner the person or persons listed as the assignee on the assignment form appearing on the surrendered Bond, in exchange for such surrendered and cancelled Bond. On and after the Book-Entry Termination Date, any Bond may be surrendered at the principal corporate trust office of the Registrar and exchanged, without charge, for an equal aggregate principal amount of Bonds, in any authorized denomination. The Registrar shall not be obligated to transfer or exchange any Bond during the 15 days preceding any applicable interest payment, principal payment or redemption date. The Registrar may become the Owner of any Bond with the same rights it would have if it were not the Registrar and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of the Owners of the Bonds. The City covenants that, until all Bonds shall have been surrendered and cancelled, it will maintain a system of recording the ownership of each Bond that complies with the provisions of the Internal Revenue Code of 1986, as amended(the"Code"). 11 ORDINANCE NO. 5215 Section X. Mutilated, Lost, Stolen or Destroyed Bonds. If any Bond becomes mutilated, lost, stolen or destroyed, the Registrar may authenticate and deliver a new Bond of the same maturity and interest rate and of like tenor and effect in substitution therefor, all in accordance with law. If such mutilated, lost, stolen or destroyed Bond has matured, the City at its option, may pay the same without the surrender thereof. However, no such substitution or payment shall be made unless and until the applicant shall furnish (a) evidence satisfactory to the Registrar of the destruction or loss of the original Bond and of the ownership thereof, and (b) such additional security, indemnity or evidence as may be required by or on behalf of the City. No substitute Bond shall be furnished unless the applicant shall reimburse the City and the Registrar for their respective expenses in the furnishing thereof. Any such substitute Bond so furnished shall be equally and proportionately entitled to the security of this Ordinance with all other Bonds issued hereunder. Section XI. Defeasance. If money and/or "Government Obligations" (as such obligations are defined in Chapter 39.53 RCW, as now in existence or hereafter amended) maturing at such times(s) and bearing such interest to be earned thereon (without any reinvestment thereof) as will provide a series of payments which shall be sufficient, together with any money initially deposited, to provide for the payment of all of the principal of and interest on all or a portion of the Bonds, when due in accordance with their terms in accordance with a refunding plan adopted by the City, are set aside in a special fund (hereinafter called the "trust account") to effect such payment and are pledged irrevocably for the purpose of effecting such payment, then no further payments need be made into the Bond Fund for the payment of the principal of and the interest on such Bonds, the Owners thereof shall cease to be entitled to any lien, benefit or security of this Ordinance except for the right to receive the money and the 12 ORDINANCE NO. 5215 principal and interest proceeds on the obligations set aside in the trust account, and such Bonds shall no longer be deemed to be outstanding hereunder. Section XII. Sale of the Bonds; Delivery. The Purchaser has presented a bond purchase agreement (the "Purchase Agreement") to the City pursuant to which the Purchaser has offered to purchase the Bonds, under the terms and conditions provided in the Purchase Agreement, which written Purchase Agreement is on file with the City Clerk and is incorporated herein by this reference. The City Council finds that entering into the Purchase Agreement is in the City's best interest and therefore accepts the offer contained in the Purchase Agreement and authorizes the execution of the Purchase Agreement by the Mayor, her designee, the Chief Administrative Officer of the City or the Finance and Information Services Administrator. The Bonds will be prepared at City expense and will be delivered to the Purchaser in accordance with the terms of the Purchase Agreement with the approving legal opinion of Gottlieb, Fisher & Andrews, PLLC, bond counsel, Seattle, Washington, relative to the issuance of the Bonds, printed on or attached to each Bond. Bond counsel has not been engaged to participate in the preparation or review of, or express any opinion concerning the completeness or accuracy of, any official statement or other disclosure documentation used in connection with the offer or sale of the Bonds by any person, and bond counsel's opinion shall so state. Bond counsel has not been retained to monitor, and shall not be responsible for monitoring, the City's compliance with any federal law or regulations to maintain the tax-exempt status of the interest on the Bonds. Section XIII. Delivery of Bonds; Temporary Bonds. The proper City officials, including, but not limited to, the City Finance and Information Services Administrator, are authorized and directed to execute and/or approve, as appropriate, all documents, including but 13 ORDINANCE NO. 5215 not limited to, the final Official Statement pertaining to the Bonds and the commitment from the Bond Insurer for the issuance of an insurance policy for the Bonds, and to do everything necessary for the preparation and delivery of a transcript of proceedings pertaining to the Bonds, and the printing, execution and prompt delivery of the Bonds to the Purchaser and for the proper application and use of the proceeds of the sale thereof. If definitive Bonds are not ready for delivery by the date established for closing (the "Closing"), the City Finance and Information Services Administrator, upon the approval of the Purchaser, may cause to be issued and delivered to the Purchaser one or more temporary Bonds with appropriate omissions, changes and additions. Any temporary Bond or Bonds shall be entitled and subject to the same benefits and provisions of this Ordinance with respect to the payment, security and obligation thereof as definitive Bonds authorized hereby. Such temporary Bond or Bonds shall be exchangeable without cost to the Owners thereof for definitive Bonds when the latter are ready for delivery. Section XIV. Establishment of Bond Fund; Application of Bond Proceeds. There is hereby created and established in the office of the City Finance and Information Services Administrator a special fund to be designated as the "Limited Tax General Obligation Bond Fund, 2006"(the"Bond Fund"). The accrued interest on the Bonds, if any, received by the City upon the sale of the Bonds shall be deposited into the Bond Fund and shall be applied to the payment of interest coming due on the Bonds. The remaining proceeds of the sale of the Bonds, less the underwriter's discount and plus the net original issue premium, shall be deposited, upon receipt, to the "South Lake Washington 14 ORDINANCE NO. 5215 Infrastructure Project Fund" (the "Project Fund"), established in the office of the City Finance and Information Services Administrator, to pay part of the costs of the Project. Except as provided by the Code and Section XV of this Ordinance, the interest and profits derived from the investment of Bond proceeds shall be deposited in the Project Fund and applied as described in the preceding paragraph. Except as provided by the Code and Section XV of this Ordinance, if any money allocable to the Bond proceeds remains in the Project Fund after payment of all the costs of the Project or after termination of the Project by the City, such money shall be transferred to the Bond Fund and applied to the payment of the principal of and interest on the Bonds. Pending application as described in this Section XIV and subject to the requirements of the Code and Section XV of this Ordinance, money allocable to the Bond proceeds in the Project Fund may be temporarily deposited in such institutions or invested in such investments as may be lawful for the investment of City funds. Section XV. Tax-Exemption Covenants. The City covenants that it will not take or permit to be taken on its behalf any action that would adversely affect the exclusion of the interest on the Bonds from the gross income for purposes of federal income taxation, and will take or require to be taken such acts as may be permitted by Washington law and as may from time to time be required under applicable law to continue the exclusion of the interest on the Bonds from the gross income for purposes of federal income taxation. Without limiting the generality of the foregoing, the City will not invest or make or permit any use of the proceeds of the Bonds or of its other money at any time during the term of the Bonds which would cause the Bonds to be"arbitrage bonds"within the meaning of Section 148 of the Code. 15 ORDINANCE NO. 5215 The City covenants that it shall calculate or cause to be calculated, and shall rebate to the United States, all earnings from the investment of Bond proceeds that are in excess of the amount that would have been earned had the yield on such investments been equal to the yield on the Bonds, plus income derived from such excess earnings, to the extent and in the manner required by Section 148 of the Code. The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that the City is a bond issuer the arbitrage certifications of which may not be relied upon. The City will take no actions and will make no use of the proceeds of the Bonds or any other funds held under this Ordinance which would cause any Bond to be treated as a "private activity bond" (as defined in Section 141(b) of the Code) subject to treatment under said Section 141(b) as an obligation not described in Section 103(a) of the Code, unless the tax exemption thereof is not affected. Section XVI. Preliminary Official Statement Declaration. The City has been provided with copies of a preliminary official statement dated July 5, 2006, (the "Preliminary Official Statement"), prepared in connection with the sale of the Bonds. For the sole purpose of the Purchaser's compliance with Securities and Exchange Commission Rule 15c2-12(b)(1), the City "deems final" the Preliminary Official Statement, as of its date, except for the omission of information on offering prices, interest rates, selling compensation, delivery dates, ratings, other terms of the Bonds dependent on such matters. Section XVII. Undertaking to Provide Continuing Disclosure. This section constitutes the City's written undertaking for the benefit of the Owners and Beneficial Owners of the Bonds 16 ORDINANCE NO. 5215 required by subsection (b)(5)(i) of the Rule 15c2-12 (the "Rule") of the United States Securities and Exchange Commission(the"SEC"). The City hereby agrees to provide or cause to be provided to each then existing NRMSIR, to the SID, if one is created, and to the Bond Insurer the following annual financial information and operating data (collectively, the "Annual Financial Information") for each prior fiscal year, commencing with the fiscal year ending December 31, 2006, on or before the last day of the seventh month following the end of such prior fiscal year: (a) Annual financial statements prepared in accordance with the generally accepted accounting principles applicable to governmental units, as such principles may be changed from time to time and as permitted by State law; which statements will not be audited, except that if and when audited financial statements are otherwise prepared and available to the City, they will be provided (the"Annual Financial Statements"); (b) The assessed valuation of taxable property in the City; (c) Ad valorem taxes due and the percentages of taxes collected; (d) Property tax levy rates per$1,000 assessed valuation; (e) A statement of authorized, issued and outstanding general obligation indebtedness of the City; and (f) A narrative explanation of the reasons for any amendments to this Section XVII made during the previous fiscal year and the impact of such amendments on the Annual Financial Information being provided. In its provision of such financial information and operating data, the City may cross- reference to any "final official statement" (as defined in the Rule) available from the Municipal 17 ORDINANCE NO. 5215 Securities Rulemaking Board (the "MSRB") documents theretofore provided to each then existing NRMSIR or the SID, if one is created, and to the Bond Insurer. If not submitted as part of the Annual Financial Information, then when and if available, the City shall provide its Annual Financial Statements, which shall have been audited by such auditor as shall be then required or permitted by the State law, to each then existing NRMSIR, to the SID, if one is created. The City further agrees to provide or cause to be provided, in a timely manner, to the SID, if one is created, and to either the MSRB or each then existing NRMSIR and to the Bond Insurer, notice of any of the following events with respect to the Bonds, if material: 1. Principal and interest payment delinquencies; 2. Non-payment related defaults; 3. Unscheduled difficulties; 4. Unscheduled draws on credit enhancements reflecting financial difficulties; 5. Substitution of credit or liquidity providers, or their failure to perform; 6. Adverse tax opinions or events affecting the tax-exempt status of the Bonds; 7. Modification to rights of the Owners of the Bonds; 8. Optional redemptions of the Bonds; 9. Defeasances of the Bonds; 10. Release, substitution or sale of property securing repayment of the Bonds; and 11. Rating changes. The City also agrees to provide or cause to be provided, in a timely manner, to the SID, if one is created, and to either the MSRB or each then existing NRMSIR, notice of its failure to 18 ORDINANCE NO. 5215 provide the Annual Financial Information for the prior fiscal year on or before the last day of the seventh month following the end of such prior fiscal year. After the issuance of the Bonds, so long as the interests of the Owners or Beneficial Owners of the Bonds will not be materially impaired thereby, as determined by a party unaffiliated with the City (including, without limitation, a trustee for the Owners, nationally recognized bond counsel or other counsel familiar with the federal securities law), or pursuant to a favorable "no-action letter" issued by the SEC, this Section XVII may only be amended in connection with any change in legal requirements, change in law, or change in the identity, nature or status of the obligated person, or type of business conducted, and only in such a manner that the undertaking of the City, as so amended, would have complied with the requirements of the Rule at the time of the primary offering, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances. The City's obligations to provide Annual Financial Information and notices of certain events shall terminate without amendment upon the defeasance, prior redemption or payment in full of all of the then outstanding Bonds. This Section XVII or any provision hereof, shall be null and void if the City (i) obtains an opinion of nationally recognized bond counsel or other counsel familiar with the federal securities laws to the effect that those portions of the Rule which require this Section XVII or any such provision are invalid, have been repealed retroactively or otherwise do not apply to the Bonds; and (ii) notifies and provides the SID, if any, and either the MSRB or each then existing NRMSIR with copies of such opinion. The right of each Owner or Beneficial Owner of Bonds to enforce the provisions of this Section XVII shall be limited to the right to obtain specific enforcement of the City's obligations 19 ORDINANCE NO. 5215 under this Section XVII, and any failure by the City to comply with the provisions of this undertaking shall not be a default with respect to the Bonds under this Ordinance. The City Finance and Information Services Administrator is authorized and directed to take such further action on behalf of the City as may be necessary, appropriate or convenient to carry out the requirements of this Section XVII. Section XVIII. Contract; Severability. The covenants contained in this Ordinance shall constitute a contract between the City and the Owners of each and every Bond. The City unconditionally covenants that it will keep and perform all of the covenants of the Bonds and this Ordinance. If any one or more of the provisions of this Ordinance shall be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining provisions of this Ordinance or the Bonds, and this Ordinance and the Bonds shall be construed and enforced as if such unconstitutional or invalid provision had not been contained herein. 20 ORDINANCE NO. 5215 Section XIX. Effective Date. This Ordinance shall take effect and be in force five days from and after its passage and publication as provided by law. PASSED BY THE CITY COUNCIL this 17th day of July, 2006. Bonnie I. Walton, City Clerk APPROVED BY THE MAYOR this day of , 2006. Kathy Keolker, Mayor Approved as to form: Bond Counsel Date of Publication: (summary) 21