HomeMy WebLinkAboutRES 4470CITYOFRENTON,WASHINGTONRESOLUTIONNO.4470ARESOLUTIONOFTHECITYOFRENTON,WASHINGTON,AUTHORIZINGTHEMAYORANDCITYCLERKTOENTERINTOAMITIGATIONCREDITPURCHASEAGREEMENTANDACKNOWLEDGMENTWITHRENTONSCHOOLDISTRICTNO.403ANDFURTHERAUTHORIZINGTHESALEOF0.196CREDITSFROMTHESPRINGBROOKCREEKWETLANDMITIGATIONBANKFORTHESUMOF$230,300.00.WHEREAS,theSpringbrookCreekWetlandMitigationBank(“5MB”)wasestablishedAugust8,2006throughtheexecutionofaMitigationBankInstrumentdevelopedbytheCityandtheWashingtonStateDepartmentofTransportation,andapprovedbytheCity,theWashingtonStateDepartmentofEcology,theU.S.EnvironmentalProtectionAgency,theU.S.FishandWildlifeService,theFederalHighwayAdministration,andtheU.S.ArmyCorpsofEngineers;andWHEREAS,the5MBwasestablishedtoprovidecompensatorymitigationforunavoidableadverseimpactstowatersoftheUnitedStates,includingwetlands,andtoaquatichabitat,whichresultfromactivitiesauthorizedbyFederal,State,andlocalauthorities;andWHEREAS,theRentonSchoolDistrictNo.403(“RSD”)haslanduseapprovalforanewelementaryschoolat1024DuvallAveNE(LUA21-000167).Theprojectincludesa77,000squarefootschoolbuilding,associatedsurfaceparkingarea,anoutdoorclassroomarea,multipurposeplayfield,hard/softplayareas,andacoveredplayarea(the“Project”);andWHEREAS,theProjectsitecontainstwowetlands,oneofwhichislocatednearthemiddleofthesiteandpresentsasignificantchallengetodevelopmentofthesiteforthepurposeofanewelementaryschoolcampus;and1
RESOLUTIONNO.WHEREAS,thetwoexistingwetlandsonthesiteincludeaCategoryIllwetlandwithatotalsizeofapproximately0.4$andaCategoryIVwetlandwithatotalsizeofapproximately0.28acres.Theprojectwillavoidimpactstothehigherfunctioning,CategoryIllwetlandneartherearofthesite,butproposestopermanentlyfillthelowerfunctioning,centrallylocatedCategoryIVwetland;andWHEREAS,althoughon-sitewetlandmitigationisthepreferredmitigationmethodpursuanttotheRentonMunicipalCode,RSDdeterminedsuchamethodtobeinfeasibleduetoalackofsuitableareasthatwouldstillallowforthebuildingsizeandamenitiesrequiredforanelementaryschool;andWHEREAS,asanalternativetoon-sitemitigation,RSDproposedaspartofitslanduseapplicationtofilltheCategoryIVwetlandsonthesiteandpurchase0.196mitigationcreditsfromtheSMB;NOW,THEREFORE,THECITYCOUNCILOFTHECITYOFRENTON,WASHINGTON,DORESOLVEASFOLLOWS:SECTIONI.TheMayorandCityClerkareherebyauthorizedtoenterintoaMitigationCreditPurchaseAgreementandAcknowledgmentwithRentonSchoolDistrictNo.403,attachedheretoasExhibit“A”andincorporatedbythisreference.SECTIONII.TheCityCouncilherebyauthorizesthesaleof0.196creditsfromthe5MBforthesum of$230,300.00incompensationfortheProject’santicipated0.28acresofpermanentwetlandimpacts.24470
RESOLUTIONNO.PASSEDBYTHECITYCOUNCILthis______dayof_____________________,2022.Ja71A.Seth,ClyClerkAPPROVEDBYTHEMAYORthis______dayof______________________,2022.AçmjoPavoneiMayorApprovedastoform:ShaneMoloney,CityAttorneyRES-CED:1909:4/22/223447023rdMay23rdMay
RESOLUTIONNO.EXHIBIT“A”MITIGATIONCREDITPURCHASEAGREEMENTANDACKNOWLEDGMENTWITHRENTONSCHOOLDISTRICTNO.40344470
SPRINGBROOK CREEK WETLAND MITIGATION BANKMITIGATION CREDIT PURCHASE AGREEMENT ANDACKNOWLEDGEMENTTHIS AGREEMENT, dated for reference purposes as February 28, 2022, is by and between theCity of Renton (the "City"), a Washington municipal corporation/ and Renton School DistrictNo. 403 ("Applicant")/ a Washington municipal corporation The City and the Appiicant arereferred to collectively in this Agreement as the "Parties." Once fully executed by the Parties,this Agreement is effective as of the last date signed by both parties.RECITALS:WHEREAS, the Springbrook Creek Wetland Mitigation Bank ("SMB") was established August8, 2006 through the execution of a Mitigation Bank Instrument ("MBF) developed by the Cityand the Washington State Department of Transportation/ and approved by the City/ theWashington State Department of Ecology, the U.S. Environmental Protection Agency/ the U.S.Fish and Wildlife Service/ the Federal Highway Administration/ and the U.S. Army Corps ofEngineers (the "Corps"). The MBI established guidelines and responsibilities for theestablishment/ use, operation/ and maintenance of the SMB; andWHEREAS, the SMB was established to provide compensatory mitigation for unavoidableadverse impacts to waters of the United States, including wetlands, and to aquatic habitat/which result from activities authorized by Federal, State/ and local authorities; andWHEREAS, pursuant to the provisions and conditions of the MBI governing the SMB/ the Cityhas performed reestablishment, rehabilitation, and enhancement of wetlands/ combined withthe enhancement of upland and riparian areas. In recognition of meeting objectives andperformance standards established through the MBI, the Interagency Review Team ("IRT")has released to the SMB mitigation credits for use in compensation for future activitiesunavoidably impacting aquatic resources; andWHEREAS/ pursuant to Section 4.3 of the MB!, City is authorized to sell, transfer, or use thereleased SMB mitigation credits for its own activities, or for activities undertaken by public orother private entities; and
WHEREAS/ SMB has available mitigation credits, generated through SMB establishment andreleased by the IRT pursuant to Sections 4.2 and 4.3 of the MBI, that have not been utilizedby the City, have not been otherwise sold or transferred to third parties, and are active on theSMB credit ledger maintained pursuant to Section 4.4 of the MBI. These credits are availableto utilize in the SMB service area, portions of Water Resource Inventory Areas (WIRAs ) 8 and9, as defined in Section 1.3 of the MB1; andWHEREAS, Applicant is proposing a 77,000 square foot elementary school at 1075 Duvall AveNE, more fully described in paragraph 4 below (hereinafter the "Project"}. The purpose of theProject is to provide a new neighborhood elementary school. The Project is owned, operated/and maintained by the Renton School District; andWHEREAS, Applicant acted as lead agency for the State Environmental Policy Act (SEPA)Review for the Project and on June 21, 2021, issued a Mitigated Determination of Non-Significance (MDNS) for the Project with certain mitigation measures.a) There are two existing wetlands on-site. The Project avoids impacts to the higher"functioning. Category 111, Wetland C, and Nmits permanent impacts to the iower-functioning. Category IV, Wetland B. The buffer area temporarily impacted byclearing and grading associated with the installation of the multi-use playfield isvegetated with invasive or non-native vegetation. IVIitigation and restoration ofWetland C will be provided consistent with City standards. A comprehensive five-year maintenance and monitoring plan is included in the mitigation plan. This planwill ensure that proposed enhancement plantings will be maintained, monitored,and successfully established within the first five years following implementation;andb) The proposed filling of Wetland B wiif be mitigated through the use of a wetlandbank/ as approved by the City; andWHEREAS, due to unavoidable construction impacts, the Project will encompass and fil!approximately 0.28 acre(s) of Category IV wetlands. Wetlands are located on the easternportion of the site near Duvall Ave NE. The Project and the impacted wetlands fall inside theservice area of the SMB. The SMB is in the immediate region and contains wetlandcharacteristics representative of the environment of wetlands affected at the project site; andWHEREAS/ pursuant to 33 Code of Federal Regulations §336.1(a), the Corps does not seek orobtain permits, in conjunction with its own activities, for !oss of or impacts to wetlands orother aquatic resources falling within the scope of waters of the United States as defined
under the Clean Water Act. !n lieu thereof/ the Corps applies all substantive legalrequirements of the Clean Water Act, and evaluates the impacts of the pertinent waterresources impacts under Section 404(b)(l) of the Clean Water Act, applying the Guidelinespromulgated in 40 Code of Federal Regulations Part 230; andWHEREAS/ the Corps has determined pursuant to Clean Water Act Section 404(b)(l) that theimpacts to 0.28 acre(s) of Category IV wetlands are unavoidable in the execution of theProject, and that compensatory mitigation is required. In light of the preference expressed in33 Code of Federal Regulations §332.3(a)(l) and (b)(2) for achieving compensatory mitigationthrough mitigation bank credits, and in light of the impracticability of developing andmaintaining project-specific, on- or off-site mitigation associated with the Project, theApplicant has determined that satisfaction of its compensatory mitigation obligations throughacquisition of credits from the SMB is most advantageous, and that universal creditsgenerated by the SMB are fully appropriate and sufficient mitigation for the Project's impacts;andWHEREAS, the Applicant desires to acquire 0.196 credits from the SMB, in compensation forthe Project's anticipated 0.28 acre(s) of wetland impacts, applying the adjustment factor of0.7 for Category IV wetlands impact; andWHEREAS/ the City desires to sell the Applicant 0.196 mitigation credits from the SMB; andWHEREAS, the City and the Applicant desire to enter into this Agreement to set forth theterms and conditions pursuant to which the sale and transfer of aquatic resource mitigationcredits will be impacted.AGREEMENT:NOW, THEREFORE/ in consideration of the foregoing recitals and other good and valuableconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties herebyagree as follows:1. Purchase/Sale: The City hereby sells to Applicant and Applicant hereby buys from theCity 0.196 mitigation credits on the terms, covenants, and conditions set forth in thisAgreement.2. Compensation: The City has determined it to be in the City's best interest to sel! 0.196credits from the SMB to Applicant, at the rate of $1,175,000.00 per credit adjusted by
a factor or 0.7 for Category IV wetlands, for the total credit price of $230,300.00. TheApplicant shall pay said sum upon execution of this Agreement.3. Effective Date: The effective date of the credit transaction shall be the date uponwhich this Agreement is fuliy executed by both Parties/ and payment to the City ismade as provided herein.4. Project: The Project, permit(s), and related information is as follows:A. Appiicant's Name, Address, Telephone Number, E-mail Address:Traci Brewer-Rogstad, Facilities Program Director, Capita! Planning andConstruction, 300 SW 7th St, Renton, WA 98057, (425) 204-4472/tracy.brewerrogstad@rentonschools.us.B. Land Use Action Number: LUA21-000167.C. U.S. Army Corps of Engineers Permit Number: NWS-2020-848 dated February II/2022.D. Brief Description of Impact(s) to be Compensated for by the Project MitigationCredits: Permanent filling of 0.28-acre Category IV wetlands.E. Other Permits (as applicable): Critical Areas Exemption, Construction Permit,Building Permit.Construction Permit Number: C21004289.* This Agreement does not relieve the Applicant from obtaining any requiredfederal, state, or local permits not related to wetland impacts.5. Responsibility of the Applicant: Upon delivery of full payment as described above,the obligations of the Applicant under this Agreement shall be satisfied.6. Responsibility of the City:A. The City certifies that sufficient credits are available in the SMB ledger to satisfythe credit transaction called for in this Agreement.L"?!PAGE 4 OF 9
B. The City will record the transaction in the SMB ledger and make applicablenotifications and reports to the members of the IRT, pursuant to Section 4.4 of theMBI.C. Pursuant to 33 Code of Federal Regulations §332.3(1)(3)/ the City and its successorsand assigns, accept responsibility for providing mitigation in compensation foraquatic resource function loss/ equivalent to 0.196 mitigation credits generatedthrough the establishment/ management/ and maintenance of the SMB, upon theeffective date of the credit transaction provided for under this Agreement.7. Record Maintenance: The Applicant shall maintain accounts and records, whichproperly reflect all direct and indirect costs expended and work provided in theperformance of this Agreement and retain such records for as long as may be requiredby applicable Washington State records retention laws, but in any event no less thansix years after the termination of this Agreement The Applicant agrees to provideaccess to and copies of any records related to this Agreement as required by the Cityto audit expenditures and charges and/or to comply with the Washington State PubiicRecords Act (Chapter 42.56 RCW). The provisions of this section shall survive theexpiration or termination of this Agreement.8. Public Records Compliance: To the full extent the City determines necessary to complywith the Washington State Public Records Act, Applicant shall make a due diligentsearch of ail records in its possession or control relating to this Agreement and theProject, including, but not limited to, e-mail, correspondence, notes/ saved telephonemessages, recordings/ photos, or drawings and provide them to the City forproduction. In the event Applicant believes said records need to be protected fromdisclosure/it may/at Applicant's own expense, seek judicial protection. Applicant shallindemnify, defend, and hold harmless the City for ail costs/ including attorneys' fees,attendant to any claim or litigation related to a Public Records Act request for whichApplicant has responsive records and for which Applicant has withheld records orinformation contained therein, or not provided them to the City in a timely manner.Applicant shal! produce for distribution any and all records responsive to the PublicRecords Act request in a timely manner, unless those records are protected by courtorder. The provisions of this section shai! survive the expiration or termination of thisAgreement.PAGE 5 OF 9
D. General Administration and Management. The City's project manager is AiexMorganroth, Senior Planner, Community and Economic DevelopmentDepartment.E. Amendment and Modification. This Agreement may be amended only by aninstrument in writing, duly executed by both Parties.F. Conflicts. In the event of any inconsistencies between Applicant proposals and thisAgreement, the terms of this Agreement shall prevail. Any exhibits/attachmentsto this Agreement are incorporated by reference only to the extent of the purposefor which they are referenced within this Agreement. To the extent an Applicantprepared exhibit conflicts with the terms in the body of this Agreement or containsterms that are extraneous to the purpose for which it is referenced/ the terms inthe body of this Agreement shall prevail and the extraneous terms shall not beincorporated herein.G. Governing Law. This Agreement shall be made in and shall be governed by andinterpreted in accordance with the laws of the State of Washington and the City ofRenton.H. Joint Drafting Effort. This Agreement shall be considered for al! purposes asprepared by the Joint efforts of the Parties and shall not be construed against oneparty or the other as a result of the preparation, substitution, submission or otherevent of negotiation, drafting or execution.I. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforceor interpret this Agreement or any of its terms or covenants shall be brought in theKing County Superior Court for the State of Washington at the Maleng RegionalJustice Center in Kent, King County/ Washington, or its replacement orsuccessor. Applicant hereby expressly consents to the personal and exclusivejurisdiction and venue of such court even if Applicant is a foreign corporation notregistered with the State of Washington.J. Severability. A court of competent Jurisdiction's determination that any provisionor part of this Agreement is illegal or unenforceable shall not cancel or invalidatethe remainder of this Agreement/ which shall remain in full force and effect.PAGE 7 OF 9
K. So!e and Entire Agreement. This Agreement contains the entire agreement of theParties and any representations or understandings/ whether oral or written, notincorporated are excluded.L Time is of the Essence. Time is of the essence of this Agreement and each and allof its provisions in which performance is a factor.M. Third-Party Beneficiaries. Nothing in this Agreement is Intended to, nor shall beconstrued to give any rights or benefits in the Agreement to anyone other than theParties, and all duties and responsibilities undertaken pursuant to this Agreementwiil be for the sole and exclusive benefit of the Parties and no one else.N. Binding Effect. The Parties each bind themselves, their partners, successors,assigns, and legal representatives to the other Party to this Agreement, and to thepartners, successors/ assigns, and legal representatives of such other party withrespect to all covenants of the Agreement.0. Waivers. All waivers shall be in writing and signed by the waiving party. EitherParty's failure to enforce any provision of this Agreement shall not be a waiver andshal! not prevent either the City or Applicant from enforcing that provision or anyother provision of this Agreement in the future. Waiver of breach of any provisionof this Agreement shall not be deemed to be a waiver of any prior or subsequentbreach unless it is expressly waived in writing.P. Counterparts. The Parties may execute this Agreement in any number ofcounterparts, each of which shall constitute an original, and all of which willtogether constitute this one Agreement.Q. Recording. A Notice of Wetland Mitigation Credit Sales in substantially the sameor similar form as that attached hereto as Exhibit A shall be recorded with the KingCounty Recorder's office.IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of thedate last signed by the Parties below.
CITYOFRENTONAPPLICANTBy:.Armondo PavoneMayorDateAttestDatN ^\y^/y] ^f/b^y}^ //&TJtie: L^^y?/^(^/^/_^33^-Jason A. SethCity ClerkApproved as to Legal FormBy:Shane MoloneyCity AttorneySMB NS Contract Template Updated 2-28-22 (939)i>lPAGE 9 OF 9