HomeMy WebLinkAbout07-14-2014 PCDC 7.14 PacketAuBu TY OF -1 s
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W ASH CNGTON
Planning and Community Development
July 14, 2014 - 5:00 PM
Annex Conference Room 2
AGENDA
CALL TO ORDER
A.
B.
C.
Roll Call
Announcements
Agenda Modifications
II. CONSENT AGENDA
A. Minutes - June 23, 2014* (Tate)
III. ACTION
A. Resolution No. 4959* (Andersen)
The purpose of Resolution No. 4959 is for the City Council to authorize the City of
Auburn to enter into a Project Partnership Agreement (PPA) with the U.S. Army Corps
of Engineers to construct the Mill Creek Wetland 5K project.
IV. DISCUSSION ITEMS
A. Resolution No. 5078* (Mund)
A Resolution of the City Council of the City of Auburn, Washington, setting a public
hearing to consider a franchise agreement with Electric Lightwave, LLC, a wholly
owned subsidiary of Integra Telecom Holdings, Inc
B. Communal Housing Follow -Up Discussion* (Tate)
Discuss modifications to the communal residence program, policies, and regulations.
C. Comprehensive Plan Update Overview* (Chamberlain)
Provide an overview of the comprehensive plan and amendment process.
D. Director's Report (Tate)
E. PCDC Status Matrix* (Tate)
V. ADJOURNMENT
Agendas and minutes are available to the public at the City Clerk's Office, on the City website
(http: / /www.auburnwa.gov), and via e -mail. Complete agenda packets are available for review at
the City Clerk's Office.
*Denotes attachments included in the agenda packet.
Page 1 of 117
C17YOF �*
\NA S H C N G TO
AGENDA BILL APPROVAL FORM
Agenda Subject: Date:
Minutes - June 23, 2014 July 7, 2014
Department: Attachments: Budget Impact:
Community Development & June 23, 2014 Draft Minutes $0
Public Works
Administrative Recommendation:
Planning and Community Development Committee to approve the June 23, 2014
Planning and Community Development Committee minutes as written.
Background Summary:
See attached minutes.
Reviewed by Council Committees:
Other: Planning
Councilmember: Holman Staff: Tate
Meeting Date: July 14, 2014 Item Number: CA.A
CA.A AUBURN * MORE THAN YOU IMAGINED Page 2 of 117
CITY OF �r
A
--- WASH I NGTO[V
I. CALL TO ORDER
Planning and Community
Development
June 23, 2014 - 5:00 PM
Annex Conference Room 2
MINUTES
Chair Holman called the meeting to order at 5:00 p.m. in Annex
Conference Room 2 located on the 2nd floor of One Main Professional
Plaza, One East Main Street, Auburn, Washington.
A. Roll Call
Chair John Holman, Vice -Chair Largo Wales and Member Yolanda
Trout were present. Vice -Chair Wales arrived late due to a conflicting
Pierce County meeting. Also present were Director of Community
Development and Public Works Kevin Snyder, Assistant Director of
Community Development Services Jeff Tate, Assistant Director of
Engineering Services /City Engineer Ingrid Gaub, Environmental
Services Manager Chris Andersen, Planning and Design Services
Manager Elizabeth Chamberlain, and Community Development
Secretary Tina Kriss.
Members of the audience present: Alex Wilford and Kishan Nithwani
of the Master Builders Association (MBA); Robert Whale of the
Auburn Reporter; Michael P. Stringer, AICP, of Maul Foster Alongi;
and Kathi Gough.
B. Announcements
There were no announcements.
C. Agenda Modifications
There were no agenda modifications.
II. CONSENT AGENDA
A. Minutes - June 9, 2014 (Tate)
Member Trout moved and Chair Holman seconded to approve the
June 9, 2014 minutes as written.
Motion carried unanimously. 2 -0
III. DISCUSSION ITEMS
A. 2014 Comprehensive Plan Amendments (Dixon)
CA.A
Page 1 of 3
Page 3 of 117
Planning and Design Services Manager Elizabeth Chamberlain
reviewed the 2014 Comprehensive Plan Amendment docket with five
City- Initiated Text Amendments and two Privately- Initiated Map
Amendments. This is part of the City's annual amendment process
where individuals are invited to submit requests in June for the annual
Comprehensive Plan Amendments.
The Committee and staff discussed the privately- initiated map
amendments and if the applicant would benefit from having the
amendment included as part of the overall Comp Plan update. Staff
agreed to contact the applicant to determine their timeline for
development. The Committee did not have any comments on the
docket.
B. Mill Creek Wetland 5K Restoration Project (Andersen)
Environmental Services Manager Chris Andersen introduced Project
Manager Michael P. Stringer, AICP, of Maul Foster Alongi. An update
was provided regarding the Mill Creek 5K Restoration Project and the
federal /non - federal partnership agreement for City Project No.
CP0746. A map was distributed to the Committee to provide location
and project information.
The project timeline, costs, and project partnership agreement
(between The Department of Army and City of Auburn) were
distributed and discussed. The cost elements, credits, and design
and construction timeline were reviewed by staff.
The Committee will continue to review the details of the agreement to
prepare for a future discussion at the July 14, 2014 PCDC meeting.
C. Plat /Subdivision Process Overview (Tate)
Assistant Director Tate provide an overview for the subdivision /platting
process within Auburn. Planning and Design Services Manager
Chamberlain provided a PowerPoint presentation with preliminary
plat, final plat, and Planned Unit Development (PUD) project
examples and the time it takes to move through the phases of each
project.
Assistant Director Tate explained that in July staff will returning to the
Committee to discuss the option of changing the threshold that
distinguishes between a subdivision and short subdivision from 4 lots
to 9 lots.
D. Connectivity Discussion (Tate)
Assistant Director Tate opened the discussion by providing an
overview of the themes staff has reviewed with the Committee in
regards to walkability, connectivity, economic health, and investment
Page2of3
CA.A Page 4 of 117
in place. Staff provided a map to show existing City communities
where there are missing links to providing connectivity and where
there is potential for connectivity based on the current trails, access
points, and properties owned by government entities.
The Committee and staff discussed the broader question, does the
City desire to take the existing pedestrian friendly, commercial nodes
and connect them. Staff asked the Committee if they would like staff
to begin by developing policies and strategies. After discussing
several options, the Committee asked staff to provide some visual
aids to determine what the framework may look like.
E. Director's Report (Tate)
Assistant Director Tate explained that staff will be putting
together some questions for the July 7, 2014 Planning and
Community Development Committee meeting on the discussion topic
of Communal Housing to get some guidance on potential code
amendments.
A review of the organizational structure and positions in recruitment of
the Community Development division were reviewed with the
Committee. Elizabeth Chamberlain will fill a new role called Planning
and Design Services Manager and Jeff Dixon will then step into the
roll of Planning Services Manager. Community Development is a
division of the newly merged Community Development and Public
Works Department.
F. PCDC Status Matrix (Tate)
Chair Holman reported that the Theater Lease topic will be back for an
update in July.
IV. ADJOURNMENT
There being no further business to come before the Planning and
Community Development Committee, the meeting was adjourned at 7:15
p.m.
Approved this day of , 2014.
John Holman - Chair
Tina Kriss - Planning Secretary
CA.A
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Page 5 of 117
FY OF - *
UBURN
WA5 1 I NcroNI
AGENDA BILL APPROVAL FORM
Agenda Subject:
Resolution No. 4959
Department:
Community Development &
Public Works
Attachments:
Memorandum
Annotated Outline of Project Partnership
Agreement
Resolution No. 4959
Exhibit A - PPA
Administrative Recommendation:
Date:
July 8, 2014
Budget Impact:
Planning and Community Development Committee to recommend City Council adopt
Resolution No. 4959.
Background Summary:
Please see attached memorandum.
Reviewed by Council Committees:
Planning And Community Development, Public Works Other: Legal
Councilmember: Holman
Staff: Andersen
Meeting Date: July 14, 2014 Item Number: ACT.A
ACT.A AUBURN * MORE THAN YOU IMAGINED Page 6 of 117
WASHINGTON
Memorandum
DATE: July 10, 2014
TO:
Auburn City Council Planning and Community Development Committee:
Councilmember John Holman, Chair
Councilmember Largo Wales, Vice Chair
Councilmember Yolanda Trout
FROM: Chris Andersen, CFM, Environmental Services Manager
CC: Nancy Backus, Mayor
Kevin Snyder, AICP, Director, Community Development and Public Works
Ingrid Gaub, PE, City Engineer /Assistant Director, Engineering
SUBJECT: Resolution No. 4959: CP0746 Mill Creek Wetland 5K Project Partnership
Agreement
ENCL: Annotated outline of Project Partnership Agreement
Introduction
At the Committee meeting on June 23, 2014, staff provided an informational briefing about the
Mill Creek Wetland 5K Project, City Capital Project No. CP0746. This memo provides a
summary discussion of the project and relevant background information for Committee
consideration of Resolution No. 4959, which would authorize the City to enter into a Project
Partnership Agreement (PPA) with the U.S. Army Corps of Engineers to construct the project.
Background
The City of Auburn is the local sponsor for a US Army Corps of Engineers (Corps) Ecosystem
Restoration Project (ERP) on Mill Creek. The purpose of the project is to restore stream habitat
for salmon and other fish and wildlife. The project involves habitat enhancement along
approximately one mile of Mill Creek, a tributary of the Green River that flows north through the
City. The project is located on the "Wetland 5K" reach of Mill Creek, so named for the
identification number of the wetland that the stream is located adjacent to. The Wetland 5K reach
is located west of SR 167 extending from SR 18 north past 15th Street NW.
ACT.A Page 7 of 117
The design of the Wetland 5K project was conducted under a 2010 Design Agreement between
the City and the Corps. The 100 - Percent design package for the project was transmitted to the
City earlier this month.
For the project to proceed, the City will need to enter into a Project Partnership Agreement
(PPA) with the Corps. The PPA defines the roles and responsibilities of the City and Corps
including:
• 65% federal / 35% non - federal cost share for total project costs; and
• City responsibility to acquire necessary property interests to conduct the project.
Project Purpose
The Mill Creek Wetland 5K Reach Project (Project) is one element of the Green/Duwamish
River Ecosystem Restoration Project, led by the Corps under authorization from the Water
Resources Development Act (WRDA). The effort is focused on restoration of critical habitat for
ESA - listed salmon within the Green/Duwamish River Watershed.
Mill Creek (Creek) presents an excellent habitat restoration opportunity. The Creek has been
channelized to facilitate agricultural activities that ceased in the 1980s and early 1990s.
Currently, invasive plant species have overrun the channel and floodplain, interrupting natural
riparian processes and significantly degrading habitat function within the Creek.
The primary Project objectives are as follows:
• Re- establish the functions of this segment of Mill Creek to serve for passage of
anadromous salmonids for spawning and rearing;
• Establish accessible refugia for the fry and juveniles of these fish species; and
• Eliminate invasive noxious weed plants (particularly reed canarygrass [Phalaris
arundinacea] within a discrete project corridor approximately 200 to 250 feet wide,
allowing reestablishment of native wetland and woody riparian species
Secondary Project objectives are those that must be considered in the design and may affect the
degree to which the primary Project objectives can be implemented. Those objectives include the
following:
• Create an end state condition that can be effectively managed and maintained by the local
sponsor as a functional ecological preserve and an educational or experiential opportunity
for residents of the City;
• Maintain the regional floodplain and floodway;
• Maintain some level of flood storage commensurate with the City's flood and stormwater
management plans;
• Maintain design functionality of existing drainage control structures while limiting the
extent of and providing access for required maintenance; and
• Protect, incorporate, or enhance existing wetland mitigation sites in the Project area
2
ACT.A Page 8 of 117
• Prevent adverse effects to adjacent properties, existing utilities, and land uses to the
degree possible within the confines of the Project conditions.
Project History
1996 — 2000: USACE conducted a Feasibility Study for ecosystem restoration in
Green/Duwamish Watershed. The study identified 45 site - specific restoration projects including
the Mill Creek Wetland 5K reach. Enhancements downstream of the Wetland 5 Reach were also
identified as the Merlino Reach and Schuler Brothers Reach.
2010: City executes Design Agreement with USACE for Mill Creek Wetland 5K Project
2011: 35% design plan set prepared
2012: Draft 95% design plans and specifications prepared
2013: Additional hydraulic and hydrologic analysis conducted
January — July 2014: 100% design plans and specifications prepared
Elements of Project
The Project is focused on Mill Creek and the adjacent riparian corridor. The design focuses on
improving floodplain connectivity, providing refuge from high -flow events, and creating
conditions to re- establish riparian cover over the Creek to reduce water temperatures and
improve water quality for rearing. The key elements of the restoration design include
• Creating a new, meandering stream channel in sections of the project reach and
enhancing the existing channel in other sections;
• Building earthen berms adjacent to the stream to provide higher ground for establishing
trees and shrubs that provide shading and habitat diversity;
• Creating new side channels and connecting existing tributary channels to provide rearing
habitat and refuge from high stream flow events;
• Clearing reed canarygrass and scraping shallow soil to remove root mass
• Re- planting with mix of trees, shrubs, and herbaceous vegetation;
• Install a new clear -span, three -sided box culvert under 15th Street NW for improved fish
passage and flood flows conveyance;
• Conduct performance monitoring at 1,3, and 5 years post - construction; and
• Conduct limited maintenance to suppress invasive plants and keep culvert clear of debris.
Key Design Challenges
Restoration of urban streams is challenging for a number of reasons including: degraded
condition of habitat, hydrologic impacts of a highly developed watershed, limited space, and
constraints of built infrastructure. The Project has several key design challenges specific to this
reach:
3
ACT.A Page 9 of 117
• Elevated water levels from beaver dams and flow constrictions make access to the site
challenging for accurate topographic survey and for use of heavy equipment;
• Potential for flood elevation rise from increased conveyance through the Project reach
that could create backwater conditions at downstream constrictions; and
• Meeting fish passage requirements for a new culvert under 15th Street NW.
The City has worked closely with the Corps and engaged outside expertise as needed to address
these challenges and achieve a project that is flexible to adapt, requires minimal maintenance,
and creates no net flood rise.
Auburn City Council Resolution No. 4959: Project Partnership Agreement
In 2010, the City entered into a Green/Duwamish ERP Program Design Agreement (DA) with
the Corps. The DA specified Corps and City roles and responsibilities, and cost shares, for the
design of the Mill Creek Wetland 5K project. Now that the design has been completed, a similar
agreement, called a Project Partnership Agreement (PPA) is required for construction of the
proj ect.
A note about the PPA: Similar to the DA, the PPA document is a federal program template
document, and the local office of the Corps (Seattle District) does not have authority to make any
revisions to the template language. The Corps has indicated that revisions or refinements to the
PPA are not allowed without obtaining approval from Washington D.C.; a process that they have
indicated would likely result in the release of the federal funds that are currently budgeted for
this project. Therefore staff is requesting that the Committee consider City participation in
construction of the Wetland 5K project under the terms of the PPA as drafted.
Roles and Responsibilities
The project is being conducted as a federal and local partnership between USACE and the City.
The partnership is formalized in a Design Agreement (which covers the design phase of the
project) and a Project Partnership Agreement (which covers construction, maintenance, and
monitoring). An annotated outline of the PPA document is attached to this memo.
The agreements include a cost sharing provision
• Design: 75% federal funds / 25% local funds
• Construction: 65% federal funds / 35% local funds
4
ACT.A Page 10 of 117
Responsibility
Corps of Engineers
City of Auburn
Engineering Design
Lead
Review and Comment
Lands, Easements, Right -of-
Way, Relocations, and
Disposal Areas (LERRD)
Certify
Lead — obtain property access
through acquisition or
perpetual easement
Permitting
Lead on Federal Permits
Lead on State and Local
Permits
Contracting
Lead
Review and comment on
solicitations, bid documents
and specifications.
Provide written willingness to
proceed prior to issuance of
construction contract
solicitation
Construction Oversight
Lead
Support
Crediting (Lands Easements
and Rights of Way)
Accounting
Packaging, reporting
Maintenance
Create plan
Implement plan
Monitoring (funded within
total construction costs)
Lead
Support
Benefits to City
The Project provides a number of benefits to the /city and aligns with public policy goals
• Contributes to salmon recovery efforts and the Restoration Plan element of the Shoreline
Master Program
• Improves water quality, assisting the City in compliance with NPDES Phase II
requirements
• Improves flood flow conveyance
• Creates potential for future recreation and educational opportunities associated with the
Auburn Environmental Park.
Costs to City
Based on cost estimates developed by the Corps, the estimated total project costs reflected in the
PPA, including construction, design, construction management, property, monitoring and
maintenance is $5,738,048.00.
Total Estimated Project Cost: $5,738,048.00
City 35% Share (including credits for real estate and staff time) $2,008,317.00
5
ACT.A Page 11 of 117
A Total Project Cost document was provided to the Committee at the briefing on June 23rd
Below is additional information summarizing City funding sources for its project cost share.
City Cash Funding Sources for Mill Creek Wetland 5K Project
The City has obtained grant funding to offset costs of the project including a $532,000 grant
from the Washington State Department of Ecology earlier this year. Project funding sources are
listed below:
Design - King Conservation District $200,000.00
Design - King County Flood Control District Opportunity Fund $69,693.00
Construction/RE - City Stormwater Utility Fund $1,250,000.00
Construction/RE - Department of Ecology Floodplains Grant $ 532,000.00
Total $2,051,693.00
Other City Funding for the Project
Under the terms of the PPA, the City also receives credit toward its cost share for certain staff
time (WIK- Work in Kind) during design and construction, and for real estate interests (referred
to as LERRD credit) that it makes available for the project. Estimates of these credits prepared
by the Corps are provided below:
Design- Staff time WIK for design team coordination $20,000.00
Construction- Staff time WIK for construction coordination $40,000.00
LERRD (Real Estate) Credit $900,000.00
Total $960,000.00
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ACT.A Page 12 of 117
MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT
PROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE & SUMMARY
The M reek ethnd 5K Ecosystem Restoration Pmj:tis apartnersht beta een the C of
Auburn and the USArmyCorpsofEngineers (USACE). The ribs and reEpons:bi`l softhetwo
parties are defined h a P ro j tPartneeht A green ant (PPA ).An annotated outline of the PPA is
provided bebw .K ey elan ants of the PPA izclide:
• U SA C E is the bad agency fordesi n and in plan antatbn of the pro 3:t U SA C E w iIfbe the
contracting agency forconstructnn and w iprovile constructnn m a agars ant
• C 11311S raponsbb foraoguirbg neoessarypropertsy inters to conducttheprojectand plays
a key rob h review of deEign doaun ants and contractor sabn itab. The C ity w �aib
s.zpplan ant the U SA C E constructnn m a agars anteffort
• T otalp ro j tcosts are dnared: 65% federal/ 35% non - federal
Annotated Outline
Article I- D efnidons.
Article II- 0 bligat k ns of the G ovemm entand the N on- FederalSponsor
• Federalrolb- inclides contracting, constructnn m anagan ent,m onioring forpericd of 5
years, and reEponsbRily to pay 65% of totalpmjtcosts
• C iy rib- including rJv i and comm enton contractsil bitatibns, plans and qioifbaticns,
providing nary realestate access, bng-tern m ahte name, and responsMity to pay 35%
of totalpmj tcosts
• Finalaacountbg and rec:oncitibn of totalprojectcosts bad by federalgovemm ant
Articb 1 1 1- Lands E assn ents, R fights ofW ay, R ebcations, D isposalArea Im proven ants
(L E R R D ) and C om pliance w ith Public Law 91 -646
• Federalgovemm e nt identifies w hich properties are needed and provides the C ityw ih
notice to prowl in acriuithg acceEs.A coasm ustbe granted pribrto federal
governm entsoIb ldig constructnn contracts.
• C iiy is responsbb forobtaining safficientvesbed Eteresth properties to corn pbte the
pmt
ArticbIV - CreditforLERRD
• Land values based on appraisalconducted by a fin cones by the C ity. A ppraisal
m ustm eet federalguidelines and be approved by U SA C E
• Valle of lands is cred_ilEd agaiist the City's 35% cost d care, including lands already
owned by the City
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MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT
PROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE & SUMMARY
• Incirlantalcosts, including oostof app], cbshg costs, and coozdnatnn are eIiji±1b
to be considered partof talpyojactcosts and apply to C ity oostdnare
Article V- Pro ctC oordinatbn Team
• E stab]idnes ProjctC oordi-iatnn Ten co-chaired by representative of the federal
governm entand the City to provide ovens htand amore clearocm m unisat bn and
accountab>7 r beta can the partners
• C osts ofpartcioat bg in ProjectC oordinat bn Tin are considered partof totalproject
costs and the C iiy's costiare
Article V I- M ethod of Paym ant
• 0 utlines federalgovernm entreEponsMities foraocountbg and states estin ate for total
projectcosts and City (estin ated attire e of agrean ent)
• C ity costdnare catulated as 35% of totalproj tcosts. C 1i-oath m atch is related as
o (r'otalProjtC osts * 35% ) -LE RRD V alie - C iiy's Proms C osts forProjct
M anc in ant- C ity's C ontrbutibn to D esign A green ant.
• Pam entby City is required in hum p sun prior to solic>tatnn of bids for construction
A rticb V II- D ispute R esolition
• E stablidnesproaedure fornotifratbn ofbreach of agrean entand resolitnn through
negotiht bn oraharnatiire depute resolitnn
Articb V 1 1 1- 0 peration, M aintenance, R epair, R ehabihitation, and R eplacan ent
• Upon am potion of the pro} ct, C ity takes on operatnn and m mite name reEponabilibes
• U SA C E w >lLprepare the 0 peratbn and M mite name plan for the pro} ct, w review and
inputfrom the C ity
Ardcb IX- H old And Save
• City dnal]hold and save the federalgovernm ent free from alldan ages arising from
construct bn,m onitor bg, adaptivem anan ant, operatbn,m antanance, repair,
rehabEtatnn, and replan entof the project, except fordan ages due to the faultor
negligence of the federalgovernm entor Is contrrs.
Article X- M aintenance ofR ecords and Audit
• City and federalgovernm antdnandevebp prooedures and m aintain books, records,
docum eats, or other evidence h accordance w ith theEeproaeduresTo the extentperm ILEd
underapplicabb federallav sand regui tibns, the federalgovernm entand the C ity dnalleach
allow the other ID n pectsach books, records, docum eats, orothere idenae
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MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT
PROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE & SUMMARY
ArticbXI— FederalandState Law s
• In the exercize of theirr re rights and obhgatibns under the PPA , the City and the
federalgovemm entdiallcbm plyw ith alLappThabb Federaland State s and regulations,
hclidhg D eves -Bastin A ct
Article X 1 1 1— T ern ination orSuspension
• If atany tin e the City fails to fi i lfiTl obligations under this A green at the U SAC E dnaIl
tern irate this A green entor sagpe nd future perform anae under this A green entunlas
U SAC E detern Ines the contnuatbn of thew ork is detenn Ines thatcontnuatbn of w ork on
the Pmj:tis in the interestof the U nited Staff or is nary h order ID satisfy
agrean ants w ith any othernon- federaThteres<s h connoLbn w ith the Protect
• In the eaantthe federalgovemm entprotcts thatthe am ountof federalfundsavakbb to
the Pmjctthmugh the than-currentorupcom icng f fismlyear isnotsafE'cmtto m eetthe
federaldiare of totalpmjtcosts the federalgovemm entdialLnotify the C its' in wading of
arch inq 1—Mk—Er—icy of funds. U pon the exha.ast bn of federalfunds, future perforn ante under
thisAgrean entdiallbe s.agDended. Such sagpension doll= air h of actuntilsach tin e
thatthe G ovemm antnotifies the C in writing thatsafEcientFederalfunds are avail bb to
m eet the Federaldiare of totalpmjEctcosts.
• In the eaentthatthe federalgovemm entand the Citydetern he to said future
perfbam ancounderthisAgrean at arch s.aqpaisbn diallran air in efEectuntalthe federal
governm entand the City agree to proceed or to teen mate this A green ant
Articb X IV— H azardous Substances
• Non- federalqDonsprrequired to conductpre in haryanvironm antalhvestigatibn on the
pmpertiis. C osts for the hvestgatnn are considered partof totalpmjctcosts and partof
bcaldiare.
• If hazardous s.abstances are found, federalgovemm entand non- federalqDonsDrdisa
whetherornotto pmoeed.N on- federalgponsprbears aILcosts of site hvestaton and
cbanup,whih isnotconsileredpartof totalpmjctcosts.
A rticb X V— N otices
• Identifies prim. arypohtof contact forCity and U SAC E
A rticb X V I— C on fidentia lity
• To the extantpenn >tted by the lad s governing each party, the parties agree to m aintain the
confidentiality of exchanged inform atbn when requested to do so by the pmvi hgparty.
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MILL CREEK WETLAND 5K ECOSYSTEM RESTORATION PROJECT
PROJECT PARTNERSHIP AGREEMENT
ANNOTATED OUTLINE & SUMMARY
A rdcb XV II— H istoric Preservation
• The federalgovemm entw>lLconductcultural and herb resource s.rrveyand bearallthe
costs up to 1% of the totalpro jEctcost.A ny costs ilcurred above thatan ountw>Tbe dared
with the non- federalgoonsorat65 /35 rate.
A rticb X V II— T Party R fights, Benefits, orL iabilit;es
• N othiig in this A green eat is intended, norm aybe consbned, t o crate any rights, confer
any benefits, or raTeve any ]bar, o f any kind whatsoever in any third person notparty t o
thisA groan ent.
A rt icb X IX— N on-L lability of O fbcers and Em ploys
• N o ofEbar, agent, consultant; or an pbyce of the C ity, norany ofEbar, amt, consultant, or
an pbyee of the federalgovernm Ent, m aybe charged personaIy, orheld liebb, under the
tern s orprovisvns of this A green entbe a u, of any breach, attar pied breech, oraThged
breach thereof, excgotasprovded in Section 912 (o) of the W aterResouroesD avebpm ent
A ctof 1986, Public Laq 99 -662, as an ended (42 U S C .1962d -5b note), orotherappliabb
lay.
Article XX— Section 902M axinum CostofPro ct
• Section 902 of thew atErResouroes D e ebpm entA ctof 1986, Public Lay 99 662, as
a n e n d e d ( 3 3 U S C . 2280) estab1idnes them axin um an ountof totalcbsts for the entire
G reen-D uwan th E cosystan Restoration Pro}ct, of which theM reek W etlnd 5K
Projtba sepaisable elan ent. 0n the ef edapofthis Agreanent,themax rum
an ountof totalcosts for the Authorbsd Prot, whbh is the aim of botalprojectcosts for
the Projtand the costs foralLothersepaisable elan ents of the Authorised Protect, is
esda aced to be $215,454, 000,asrahulated in acooraancew ith EngnearRegalstibn 1105-2-
100
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RESOLUTION NO. 4 9 5 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE A PROJECT
PARTNERSHIP AGREEMENT FOR SPECIFICALLY
AUTHORIZED ECOSYSTEM RESTORATION PROJECTS
AND SEPARABLE ELEMENTS
WHEREAS, the Auburn City Council finds that restoration of that portion of Mill
Creek located within the City will benefit the citizens of Auburn by enhancing flood
control within the City and by improving fish habitat; and
WHEREAS, the Auburn City Council previously adopted Resolution No. 4558
authorizing the execution of a Design Agreement between the City of Auburn and the
Department of the Army for design of the Mill Creek Wetland 5K Green Duwamish
Ecosystem Restoration Project on February 12, 2010; and
WHEREAS, the design for construction of the Mill Creek Wetland 5K Green
Duwamish Ecosystem Restoration Project has been completed under the Design
Agreement; and
WHEREAS, U.S. Army Corps of Engineers has received federal funding to
complete the design for the Mill Creek Wetland 5K Green Duwamish Ecosystem
Restoration Project and construct the project; and
WHEREAS, under the Water Resources Development Act of 1986, local
governments wishing to have such projects constructed within their jurisdictions must
contribute a portion of the project design costs; and
WHEREAS, the City of Auburn has included the Mill Creek Wetland 5K Reach
restoration as a project in its 2014 -2019 Capital Facility Plan;
Resolution No. 4959
July 10, 2014
ACTRge 1 of 2
Page 17 of 117
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor and City Clerk are hereby authorized to execute a
Project Partnership Agreement for Specifically Authorized Ecosystem Restoration
Projects and Separable Elements, which agreement shall be in substantial conformity
with the agreement attached hereto as Exhibit A and incorporated herein by this
reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this day of , 2013.
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Resolution No. 4959
July 10, 2014
ACiP.Age 2 of 2
CITY OF AUBURN
NANCY BACKUS, MAYOR
Page 18 of 117
Exhibit A
PROJECT PARTNERSHIP AGREEMENT
BETWEEN
THE DEPARTMENT OF THE ARMY
AND
CITY OF AUBURN
FOR
CONSTRUCTION
OF THE
DUWAMISH/MILL CREEK WETLAND 5K REACH
ECOSYSTEM RESTORATION PROJECT
THIS AGREEMENT is entered into this day of , , by
and between the Department of the Army (hereinafter the "Government "), represented by
the U.S. Army Engineer, Seattle District, and City of Auburn (hereinafter the "Non -
Federal Sponsor "), represented by the Mayor.
WITNESSETH, THAT:
WHEREAS, construction of the Duwamish/Green River Basin Project for
ecosystem restoration (hereinafter the "Authorized Project ") at King County, Washington
was authorized by Section 101(b)(26) of the Water Resources Development Act of 2000,
Public Law 106 -51 in accordance with the plans, and subject to the conditions,
recommended in a final report of the Chief of Engineers if a favorable report to the Chief is
completed not later than December 31, 2000;
WHEREAS, a favorable final report of the Chief of Engineers was completed on
December 29, 2000;
WHEREAS, the Government was authorized to perform monitoring and adaptive
management (as defined in Article I.M. and Article I.N. of this Agreement, respectively)
as part of the Authorized Project;
WHEREAS, the Government and the Non - Federal Sponsor desire to enter into a
Project Partnership Agreement (hereinafter the "Agreement ") for construction of the
Duwamish/ Mill Creek Wetland 5K Reach Ecosystem Restoration Project ( a separable
element of the Authorized Project and hereinafter the "Project ", as defined in Article 1.A of
this Agreement);
WHEREAS, Section 103 of the Water Resources Development Act of 1986, Public
Law 99 -662, as amended, (33 U.S.C. 2213) specifies the cost - sharing requirements
applicable to the Project;
WHEREAS, Section 902 of the Water Resources Development Act of 1986,
Public Law 99 -662, as amended (33 U.S.C. 2280), establishes the maximum amount of
costs for the Authorized Project and sets forth procedures for adjusting such maximum
amount;
ACT.A Page 19 of 117
WHEREAS, the Government and a non - Federal interest entered into an
agreement, dated February 1, 2010 for engineering and design of the Project (hereinafter
the "Design Agreement "), under the terms of which the non - Federal interest contributed a
portion of the costs for engineering and design;
WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91 -611, as
amended (42 U.S.C. 1962d -5b), and Section 103(j) of the Water Resources Development
Act of 1986, Public Law 99 -662, as amended (33 U.S.C. 2213(j)), provide, inter alia, that
the Secretary of the Army shall not commence construction of any water resources project,
or separable element thereof, until each non - Federal interest has entered into a written
agreement to furnish its required cooperation for the project or separable element;
WHEREAS, the Government and Non - Federal Sponsor have the full authority and
capability to perform as hereinafter set forth and intend to cooperate in cost - sharing and
financing of the Project in accordance with the terms of this Agreement; and
WHEREAS, the Government and the Non - Federal Sponsor, in connection with
this Agreement, desire to foster a partnering strategy and a working relationship between
the Government and the Non - Federal Sponsor through a mutually developed formal
strategy of commitment and communication embodied herein, which creates an
environment where trust and teamwork prevent disputes, foster a cooperative bond
between the Government and the Non - Federal Sponsor, and facilitate the successful
implementation of the Project.
NOW, THEREFORE, the Government and the Non - Federal Sponsor agree as
follows:
ARTICLE I - DEFINITIONS
A. The term "Project" shall mean construction of a meandering stream channel,
dendrites, culvert replacement, and large woody debris placement at the Auburn
Environmental Park (Mill Creek Wetland 5K) site, as generally described in the final report
of the Chief of Engineers, dated December 29, 2000, and in the "Green/Duwamish River
Basin Ecosystem Restoration Study, Final Feasibility Report," dated October 2000.
B. The term "total project costs" shall mean the sum of all costs incurred by the
Non - Federal Sponsor and the Government in accordance with the terms of this Agreement
directly related to construction of the Project. Subject to the provisions of this Agreement,
the term shall include, but is not necessarily limited to: the Government's share of
Preconstruction Engineering and Design costs pursuant to the terms of the Design
Agreement; the value of the contributions provided by a non - Federal interest pursuant to
the terms of the Design Agreement; the Government's engineering and design costs during
construction; the Non - Federal Sponsor's and the Government's costs of investigations to
identify the existence and extent of hazardous substances in accordance with Article XIV.A.
of this Agreement; the Government's costs of historic preservation activities in accordance
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ACT.A Page 20 of 117
with Article XVII.A. and Article XVII.B.1. of this Agreement; the Government's costs of
monitoring in accordance with Article II.H. and Article II.I. of this Agreement; the
Government's costs of adaptive management in accordance with Article II.J. and Article
II.K. of this Agreement; the Government's actual construction costs; the Government's
supervision and administration costs; the Non - Federal Sponsor's and the Government's
costs of participation in the Project Coordination Team in accordance with Article V of this
Agreement; the Government's costs of contract dispute settlements or awards; the value of
lands, easements, rights -of -way, relocations, and improvements required on lands,
easements, and rights -of -way to enable the disposal of dredged or excavated material for
which the Government affords credit in accordance with Article IV of this Agreement or for
which reimbursement by the Government is required pursuant to Article II.B.3. of this
Agreement; and the Non - Federal Sponsor's and the Government's costs of audit in
accordance with Article X.B. and Article X.C. of this Agreement. The term does not
include any costs for operation, maintenance, repair, rehabilitation, or replacement of the
Project; any costs of betterments under Article II.G.2. of this Agreement; any costs of
dispute resolution under Article VII of this Agreement; the Government's costs for data
recovery activities associated with historic preservation in accordance with Article
XVILB.2. and Article XVILB.3. of this Agreement; or the Non - Federal Sponsor's costs
of negotiating this Agreement.
C. The term "period of construction" shall mean the time from the date the
Government issues the solicitation for the first construction contract for the Project or
commences construction of the Project using the Government's own forces, whichever is
earlier, to the date that construction, monitoring, and, if necessary, adaptive management
of the Project are complete, as determined by the Government, or the date that this
Agreement is terminated in accordance with Article XIII or Article XIV.C. of this
Agreement, whichever is earlier.
D. The term "financial obligations for construction" shall mean the financial
obligations of the Government that result or would result in costs that are or would be
included in total project costs except for obligations pertaining to the provision of lands,
easements, and rights -of -way, the performance of relocations, and the construction of
improvements required on lands, easements, and rights -of -way to enable the disposal of
dredged or excavated material.
E. The term "non Federal proportionate share" shall mean the ratio of the Non -
Federal Sponsor's total contribution of funds required by Article II.B.2. of this Agreement
to financial obligations for construction, as projected by the Government.
F. The term "highway" shall mean any highway, roadway, street, or way, including
any bridge thereof, that is owned by a public entity.
G. The term "relocation" shall mean providing a functionally equivalent facility
to the owner of a utility, cemetery, highway, railroad, or public facility when such action is
authorized in accordance with applicable legal principles of just compensation; or providing
a functionally equivalent facility when such action is specifically provided for, and is
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ACT.A Page 21 of 117
identified as a relocation, in the authorizing legislation for the Project or any report
referenced therein. Providing a functionally equivalent facility may take the form of
alteration, lowering, raising, or replacement and attendant demolition of the affected facility
or part thereof.
H. The term `functional portion of the Project" shall mean a portion of the Project
for which construction has been completed and that can function independently, as
determined by the U.S. Army Engineer, Seattle District (hereinafter the "District
Engineer ") in writing, although the remainder of the Project is not complete.
I. The term "betterment" shall mean a difference in the construction of an element
of the Project that results from the application of standards that the Government determines
exceed those that the Government would otherwise apply to the construction of that
element. The term does not include any construction for features not included in the
Project as defined in paragraph A. of this Article.
J. The term "Federal program funds" shall mean funds provided by a Federal
agency, other than the Department of the Army, plus any non - Federal contribution
required as a matching share therefor.
K. The term "fiscal year" shall mean one year beginning on October 1 and ending
on September 30.
L. The term "monitoring" shall mean activities, including the collection and
analysis of data, that are necessary to determine if predicted outputs of the Project are
being achieved and to determine if adaptive management is necessary.
M. The term "adaptive management" shall mean measures taken to adjust the
Project in response to the monitoring results so that the predicted outputs of the Project are
achieved following its construction. The term includes, but is not necessarily limited to,
modifications of structures, or adjustments to operation or management, of the Project.
ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND
THE NON - FEDERAL SPONSOR
A. The Government, subject to receiving funds appropriated by the Congress of the
United States (hereinafter the "Congress ") and using those funds and funds provided by the
Non - Federal Sponsor, expeditiously shall construct the Project, applying those procedures
usually applied to Federal projects, in accordance with Federal laws, regulations, and
policies.
1. The Government shall not issue the solicitation for the first contract for
construction of the Project or commence construction of the Project using the
Government's own forces until the Non - Federal Sponsor has confirmed in writing its
willingness to proceed with the Project.
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ACT.A Page 22 of 117
2. The Government shall afford the Non - Federal Sponsor the opportunity to
review and comment on the solicitations for all contracts, including relevant plans and
specifications, prior to the Government's issuance of such solicitations. To the extent
possible, the Government shall afford the Non - Federal Sponsor the opportunity to review
and comment on all proposed contract modifications, including change orders. In any
instance where providing the Non - Federal Sponsor with notification of a contract
modification is not possible prior to execution of the contract modification, the Government
shall provide such notification in writing at the earliest date possible. To the extent possible,
the Government also shall afford the Non - Federal Sponsor the opportunity to review and
comment on all contract claims prior to resolution thereof. The Government shall consider
in good faith the comments of the Non - Federal Sponsor, but the contents of solicitations,
award of contracts or commencement of construction using the Government's own forces,
execution of contract modifications, resolution of contract claims, and performance of all
work on the Project shall be exclusively within the control of the Government.
3. At the time the District Engineer furnishes the contractor with the
Government's Written Notice of Acceptance of Completed Work for each contract awarded
by the Government for the Project, the District Engineer shall furnish a copy thereof to the
Non - Federal Sponsor.
4. As of the effective date of this Agreement, $18,115,600 of Federal
funds have been provided by Congress for the Authorized Project of which $5,000,000 is
currently projected to be available for the Project. The Government makes no
commitment to request Congress to provide additional Federal funds for the Authorized
Project or the Project. Further, the Government's financial participation in the Project is
limited to the Federal funds that the Government makes available to the Project.
B. The Non - Federal Sponsor shall contribute 35 percent of total project costs in
accordance with the provisions of this paragraph.
1. In accordance with Article III of this Agreement, the Non - Federal
Sponsor shall provide all lands, easements, and rights -of -way, including those required for
relocations, the borrowing of material, and the disposal of dredged or excavated material,
shall perform or ensure performance of all relocations, and shall construct improvements
required on lands, easements, and rights -of -way to enable the disposal of dredged or
excavated material that the Government determines to be required or to be necessary for
construction, operation, and maintenance of the Project.
2. The Non - Federal Sponsor shall provide funds in accordance with Article
VI.B. of this Agreement in the amount necessary to meet the Non - Federal Sponsor's
required share of 35 percent of total project costs if the Government projects at any time that
the collective value of the following contributions will be less than such required share: (a)
the value of the contributions provided by a non - Federal interest pursuant to the terms of
the Design Agreement; (b) the value of the Non - Federal Sponsor's contributions under
paragraph B.1. of this Article, as determined in accordance with Article IV of this
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ACT.A Page 23 of 117
Agreement; and (c) the value of the Non - Federal Sponsor's contributions under Article V,
Article X, and Article XIV.A. of this Agreement.
3. The Government, subject to the availability of funds, shall refund or
reimburse to the Non - Federal Sponsor any contributions in excess of 35 percent of total
project costs if the Government determines at any time that the collective value of the
following contributions has exceeded 35 percent of total project costs: (a) the value of the
Non - Federal Sponsor's contributions under paragraph B.2. of this Article; (b) the value of
the contributions provided by a non - Federal interest pursuant to the terms of the Design
Agreement; (c) the value of the Non - Federal Sponsor's contributions under paragraph B.1.
of this Article, as determined in accordance with Article IV of this Agreement; and (d) the
value of the Non - Federal Sponsor's contributions under Article V, Article X, and Article
XIV.A. of this Agreement. After such a determination, the Government, in its sole
discretion, may acquire any remaining lands, easements, and rights -of -way required for the
Project, perform any remaining relocations necessary for the Project, or construct any
remaining improvements required on lands, easements, and rights -of -way to enable the
disposal of dredged or excavated material required for the Project on behalf of the Non -
Federal Sponsor. Notwithstanding the acquisition of lands, easements, and rights -of -way,
performance of relocations, or construction of improvements required on lands,
easements, and rights -of -way to enable the disposal of dredged or excavated material by the
Government under this paragraph, the Non - Federal Sponsor shall be responsible, as
between the Government and the Non - Federal Sponsor, for any costs of cleanup and
response in accordance with Article XIV.C. of this Agreement.
C. When the District Engineer determines that, except for monitoring and
adaptive management, the entire Project, or a functional portion of the Project, is
complete, the District Engineer shall so notify the Non - Federal Sponsor in writing and
furnish the Non - Federal Sponsor with a final Operation, Maintenance, Repair,
Rehabilitation, and Replacement Manual (hereinafter the "OMRR &R Manual ") or, if the
final OMRR &R Manual is not available, an interim OMRR &R Manual for the entire
Project or such completed portion. Upon such notification, the Government also shall
furnish to the Non - Federal Sponsor a copy of all final as -built drawings for the entire
Project or such completed portion if such drawings are available. Not later than 6
months after such notification by the Government that the entire Project is complete, the
Government shall furnish the Non - Federal Sponsor with the final OMRR &R Manual and
all final as -built drawings for the entire Project. In the event the final OMRR &R Manual
or all final as -built drawings for the entire Project cannot be completed within the 6
month period, the Government shall provide written notice to the Non - Federal Sponsor,
and the Government and the Non - Federal Sponsor shall negotiate an acceptable
completion date for furnishing such documents. Further, after completion of all contracts
for the Project, copies of all of the Government's Written Notices of Acceptance of
Completed Work for all contracts for the Project that have not been provided previously
shall be provided to the Non - Federal Sponsor.
D. Upon notification from the District Engineer in accordance with paragraph C.
of this Article, the Non - Federal Sponsor shall operate, maintain, repair, rehabilitate, and
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replace the entire Project, or the functional portion of the Project as the case may be, in
accordance with Article VIII of this Agreement. Concurrent with the Non - Federal
Sponsor's performance of operation, maintenance, repair, rehabilitation, and replacement
for the completed Project or such completed portion, the Government shall perform
monitoring and, if necessary, adaptive management in accordance with the provisions of
this Agreement.
E. Upon the District Engineer's determination that, except for monitoring and
adaptive management, the entire Project is complete, the Government shall conduct an
interim accounting, in accordance with Article VI.C. of this Agreement, and furnish the
results to the Non - Federal Sponsor. Further, upon conclusion of the period of construction
the Government shall amend the interim accounting to complete the final accounting, in
accordance with Article VI.C. of this Agreement, and furnish the results to the Non - Federal
Sponsor.
F. The Non - Federal Sponsor shall not use Federal program funds to meet any of its
obligations for the Project under this Agreement unless the Federal agency providing the
funds verifies in writing that such funds are authorized to be used to carry out the Project.
G. The Non - Federal Sponsor may request the Government to perform or provide,
on behalf of the Non - Federal Sponsor, one or more of the services (hereinafter the
"additional work ") described in this paragraph. Such requests shall be in writing and
shall describe the additional work requested to be performed or provided. If in its sole
discretion the Government elects to perform or provide the requested additional work or
any portion thereof, it shall so notify the Non - Federal Sponsor in a writing that sets forth
any applicable terms and conditions, which must be consistent with this Agreement. In
the event of conflict between such a writing and this Agreement, this Agreement shall
control. The Non - Federal Sponsor shall be solely responsible for all costs of the
additional work performed or provided by the Government under this paragraph and shall
pay all such costs in accordance with Article VI.D. of this Agreement.
1. Acquisition of lands, easements, and rights -of -way; performance of
relocations; or construction of improvements required on lands, easements, and rights -of-
way to enable the disposal of dredged or excavated material for the Project.
Notwithstanding acquisition of lands, easements, and rights -of -way, performance of
relocations, or construction of improvements by the Government, the Non - Federal
Sponsor shall be responsible, as between the Government and the Non - Federal Sponsor,
for any costs of cleanup and response in accordance with Article XIV.C. of this
Agreement.
2. Inclusion of betterments in the construction of the Project. In the event
the Government elects to include any such betterments, the Government shall allocate the
costs of the Project features that include betterments between total project costs and the
costs of the betterments.
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H. Prior to completion of construction of the Project, the Government, in
consultation with the Non - Federal Sponsor and, as appropriate, other concerned agencies,
shall finalize the plan for monitoring of the Project. The monitoring plan shall describe
the specific parameters to be monitored; how these parameters relate to achieving the
desired outcomes and to ascertaining whether adaptive management measures for the
Project will be necessary; methods for measuring those parameters; frequency and
duration of monitoring of the Project; criteria for measuring the success of the Project;
preparation and distribution of monitoring reports and other coordination requirements;
and estimated monitoring costs.
I. Upon providing notification to the Non - Federal Sponsor that the Project is
complete in accordance with paragraph C. of this Article, the Government shall perform
monitoring of the Project in accordance with the monitoring plan for a period of 5
consecutive years from the date of such notification. However, the monitoring of the
Project by the Government shall end prior to the expiration of such period upon the
occurrence of either of the following events: (1) the award of the next contract for
monitoring of the Project, or continuation of monitoring of the Project using the
Government's own forces, would result in the costs incurred for monitoring and adaptive
management of all the features for ecosystem restoration in the Authorized Project
exceeding 7 percent of the amount equal to total project costs of the Project plus the
costs for all other ecosystem restoration separable elements of the Authorized Project
minus the costs for monitoring and adaptive management of all the features for ecosystem
restoration in the Authorized Project; or (2) the District Engineer determines that
continued monitoring of the Project is not necessary.
J. Applying the criteria specified in the monitoring plan, the Government shall
determine whether adaptive management of the Project is necessary. The Government
may make such a determination at any time during the monitoring period described in
paragraph I. of this Article. Within 120 calendar days after the expiration or termination
of such monitoring period, the Government shall make a final determination of whether
adaptive management of the Project is necessary. In making such determinations, the
Government shall consult with the Non - Federal Sponsor and, as appropriate, with other
concerned agencies. Upon any determination by the Government that adaptive
management of the Project is necessary, the Government shall notify the Non - Federal
Sponsor in writing of its determination and expeditiously shall perform such adaptive
management in accordance with paragraph K. of this Article. If, after the expiration or
termination of such monitoring period, the Government determines that adaptive
management of the Project is not necessary, the Government shall notify the Non - Federal
Sponsor in writing of its determination and shall conduct a final accounting in accordance
with paragraph E. of this Article.
K. If the Government determines, pursuant to paragraph J. of this Article, that
adaptive management of the Project is necessary, the Government, in consultation with
the Non - Federal Sponsor and, as appropriate, other concerned agencies, shall perform
adaptive management of the Project in accordance with the provisions of this paragraph
and paragraph A. of this Article.
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1. In no event shall the award of any contract for adaptive management of
the Project, or continuation of adaptive management of the Project using the
Government's own forces, result in the costs incurred for monitoring and adaptive
management of all the features for ecosystem restoration in the Authorized Project
exceeding 7 percent of the amount equal to total project costs of the Project plus the
costs for all other ecosystem restoration separable elements of the Authorized Project
minus the costs for monitoring and adaptive management of all the features for ecosystem
restoration in the Authorized Project. As of the effective date of this Agreement, the costs
of monitoring and adaptive management of the entire Authorized Project are estimated to
be $8,240,000. As of the effective date of the Agreement, the costs of monitoring and
adaptive management of this Project are estimated to be $60,000.
2. When the District Engineer determines that adaptive management of
the Project is complete, or that the costs for monitoring and adaptive management have
or will exceed the 7 percent amount determined in accordance with sub - paragraph 1. of
this paragraph, the District Engineer shall: a) notify the Non - Federal Sponsor in writing
of such completion; b) furnish the Non - Federal Sponsor with an amended OMRR &R
Manual that reflects any modifications to structures or adjustments to operation or
management methods; c) furnish the Non - Federal Sponsor with a copy of any new or
revised as -built drawings for the Project; and d) within 30 calendar days after such notice,
conduct a final accounting in accordance with paragraph E. of this Article.
3. Upon notification from the District Engineer in accordance with sub-
paragraph 2. of this paragraph, the Non - Federal Sponsor shall operate, maintain, repair,
rehabilitate, and replace the entire Project in accordance with Article VIII of this
Agreement.
L. The Non - Federal Sponsor shall prevent obstructions or encroachments on the
Project (including prescribing and enforcing regulations to prevent such obstructions or
encroachments) such as any new developments on Project lands, easements, and rights -of-
way or the addition of facilities which might reduce the outputs produced by the Project,
hinder operation and maintenance of the Project, or interfere with the Project's proper
function.
M. The Non - Federal Sponsor shall not use the Project, or the lands, easements,
and rights -of -way required pursuant to Article III of this Agreement, as a wetlands bank
or mitigation credit for any other project.
ARTICLE III - LANDS, EASEMENTS, RIGHTS -OF -WAY,
RELOCATIONS, DISPOSAL AREA IMPROVEMENTS, AND
COMPLIANCE WITH PUBLIC LAW 91 -646, AS AMENDED
A. The Government, after consultation with the Non - Federal Sponsor, shall
determine the lands, easements, and rights -of -way required for construction, operation, and
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maintenance of the Project, including those required for relocations, the borrowing of
material, and the disposal of dredged or excavated material. The Government in a timely
manner shall provide the Non - Federal Sponsor with general written descriptions, including
maps as appropriate, of the lands, easements, and rights -of -way that the Government
determines the Non - Federal Sponsor must provide, in detail sufficient to enable the Non -
Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non -
Federal Sponsor with a written notice to proceed with acquisition of such lands, easements,
and rights -of -way. Prior to the issuance of the solicitation for each Government contract
for construction of the Project, or prior to the Government incurring any financial
obligations for construction of a portion of the Project using the Government's own
forces, the Non - Federal Sponsor shall acquire all lands, easements, and rights -of -way the
Government determines the Non - Federal Sponsor must provide for that work and shall
provide the Government with authorization for entry thereto. Furthermore, prior to the
end of the period of construction, the Non - Federal Sponsor shall acquire all lands,
easements, and rights -of -way required for construction, operation, and maintenance of the
Project, as set forth in such descriptions, and shall provide the Government with
authorization for entry thereto. The Non - Federal Sponsor shall ensure that lands,
easements, and rights -of -way that the Government determines to be required for the Project
and that were provided by the Non - Federal Sponsor are retained in public ownership for
uses compatible with the authorized purposes of the Project.
B. The Government, after consultation with the Non - Federal Sponsor, shall
determine the relocations necessary for construction, operation, and maintenance of the
Project, including those necessary to enable the borrowing of material or the disposal of
dredged or excavated material. The Government in a timely manner shall provide the Non -
Federal Sponsor with general written descriptions, including maps as appropriate, of such
relocations in detail sufficient to enable the Non - Federal Sponsor to fulfill its obligations
under this paragraph, and shall provide the Non - Federal Sponsor with a written notice to
proceed with such relocations. Prior to the issuance of the solicitation for each Government
contract for construction of the Project, or prior to the Government incurring any financial
obligations for construction of a portion of the Project using the Government's own
forces, the Non - Federal Sponsor shall prepare or ensure the preparation of plans and
specifications for, and perform or ensure the performance of, all relocations the Government
determines to be necessary for that work. Furthermore, prior to the end of the period of
construction, the Non - Federal Sponsor shall perform or ensure performance of all
relocations as set forth in such descriptions.
C. The Government, after consultation with the Non - Federal Sponsor, shall
determine the improvements required on lands, easements, and rights -of -way to enable the
disposal of dredged or excavated material associated with construction, operation, and
maintenance of the Project. Such improvements may include, but are not necessarily
limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features,
stilling basins, and de- watering pumps and pipes. The Government in a timely manner shall
provide the Non - Federal Sponsor with general written descriptions, including maps as
appropriate, of such improvements in detail sufficient to enable the Non - Federal Sponsor to
fulfill its obligations under this paragraph, and shall provide the Non - Federal Sponsor with a
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written notice to proceed with construction of such improvements. Prior to the issuance of
the solicitation for each Government contract for construction of the Project, or prior to the
Government incurring any financial obligations for construction of a portion of the
Project using the Government's own forces, the Non - Federal Sponsor shall prepare plans
and specifications for all improvements the Government determines to be required for the
disposal of dredged or excavated material under that contract, submit such plans and
specifications to the Government for approval, and provide such improvements in
accordance with the approved plans and specifications. Furthermore, prior to the end of the
period of construction, the Non - Federal Sponsor shall provide all improvements set forth in
such descriptions.
D. The Non - Federal Sponsor shall comply with the applicable provisions of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public
Law 91 -646, as amended (42 U.S.C. 4601- 4655), and the Uniform Regulations contained in
49 C.F.R. Part 24, in acquiring lands, easements, and rights -of -way required for
construction, operation, and maintenance of the Project, including those required for
relocations, the borrowing of material, or the disposal of dredged or excavated material, and
shall inform all affected persons of applicable benefits, policies, and procedures in
connection with said Act.
ARTICLE IV - CREDIT FOR VALUE OF LANDS, EASEMENTS, RIGHTS -OF -WAY,
RELOCATIONS, AND DISPOSAL AREA IMPROVEMENTS
A. The Government shall include in total project costs and afford credit toward the
Non - Federal Sponsor's share of total project costs for the value of the lands, easements, and
rights -of -way that the Non - Federal Sponsor must provide pursuant to Article III.A. of this
Agreement; for the value of the relocations that the Non - Federal Sponsor must perform or
for which it must ensure performance pursuant to Article III.B. of this Agreement; and for
the value of the improvements required on lands, easements, and rights -of -way to enable the
disposal of dredged or excavated material that the Non - Federal Sponsor must provide
pursuant to Article III.C. of this Agreement. However, no amount shall be included in total
project costs, no credit shall be afforded, and no reimbursement shall be provided for the
value of any lands, easements, rights -of -way, relocations, or improvements required on
lands, easements, and rights -of -way to enable the disposal of dredged or excavated material
that have been provided previously as an item of cooperation for another Federal project. In
addition, no amount shall be included in total project costs, no credit shall be afforded, and
no reimbursement shall be provided for the value of lands, easements, rights -of -way,
relocations, or improvements required on lands, easements, and rights -of -way to enable the
disposal of dredged or excavated material that were acquired or performed using Federal
program funds unless the Federal agency providing the funds verifies in writing that such
funds are authorized to be used to carry out the Project.
B. The Non - Federal Sponsor in a timely manner shall provide the Government with
such documents as are sufficient to enable the Government to determine the value of any
contribution provided pursuant to Article III.A., Article III.B., or Article III.C. of this
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Agreement. Upon receipt of such documents, the Government in a timely manner shall
determine the value of such contributions for the purpose of including such value in total
project costs and for determining the amount of credit to be afforded or reimbursement to
be provided in accordance with the provisions of this Agreement.
C. For the purposes of determining the value to be included in total project costs
and the amount of credit to be afforded or reimbursement to be provided in accordance with
this Agreement and except as otherwise provided in paragraph G. of this Article, the value
of lands, easements, and rights -of -way, including those required for relocations, the
borrowing of material, and the disposal of dredged or excavated material, shall be the fair
market value of the real property interests, plus certain incidental costs of acquiring those
interests, as determined in accordance with the provisions of this paragraph.
1. Date of Valuation. The fair market value of lands, easements, or rights -
of -way owned by the Non - Federal Sponsor on the effective date of this Agreement shall be
the fair market value of such real property interests as of the date the Non - Federal Sponsor
provides the Government with authorization for entry thereto. The fair market value of
lands, easements, or rights -of -way acquired by the Non - Federal Sponsor after the effective
date of this Agreement shall be the fair market value of such real property interests at the
time the interests are acquired.
2. General Valuation Procedure. Except as provided in paragraph C.3. or
paragraph C.5. of this Article, the fair market value of lands, easements, or rights -of -way
shall be determined in accordance with the provisions of this paragraph.
a. The Non - Federal Sponsor shall obtain, for each real property
interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non -
Federal Sponsor and the Government. The Non - Federal Sponsor shall provide the
Government with the appraisal no later than 6 months after the Non - Federal Sponsor
provides the Government with an authorization for entry for such real property interest.
The appraisal must be prepared in accordance with the applicable rules of just
compensation, as specified by the Government. The fair market value shall be the amount
set forth in the Non - Federal Sponsor's appraisal, if such appraisal is approved by the
Government. In the event the Government does not approve the Non - Federal Sponsor's
appraisal, the Non - Federal Sponsor may obtain a second appraisal, and the fair market value
shall be the amount set forth in the Non - Federal Sponsor's second appraisal, if such
appraisal is approved by the Government. In the event the Government does not approve
the Non - Federal Sponsor's second appraisal, the Non - Federal Sponsor chooses not to obtain
a second appraisal, or the Non - Federal Sponsor does not provide the first appraisal as
required in this paragraph, the Government shall obtain an appraisal, and the fair market
value shall be the amount set forth in the Government's appraisal, if such appraisal is
approved by the Non - Federal Sponsor. In the event the Non - Federal Sponsor does not
approve the Government's appraisal, the Government, after consultation with the Non -
Federal Sponsor, shall consider the Government's and the Non - Federal Sponsor's appraisals
and determine an amount based thereon, which shall be deemed to be the fair market value.
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b. Where the amount paid or proposed to be paid by the Non - Federal
Sponsor for the real property interest exceeds the amount determined pursuant to paragraph
C.2.a. of this Article, the Government, at the request of the Non - Federal Sponsor, shall
consider all factors relevant to determining fair market value and, in its sole discretion, after
consultation with the Non - Federal Sponsor, may approve in writing an amount greater than
the amount determined pursuant to paragraph C.2.a. of this Article, but not to exceed the
amount actually paid or proposed to be paid. If the Government approves such an amount,
the fair market value shall be the lesser of the approved amount or the amount paid by the
Non - Federal Sponsor, but no less than the amount determined pursuant to paragraph C.2.a.
of this Article.
3. Eminent Domain Valuation Procedure. For lands, easements, or rights -
of -way acquired by eminent domain proceedings instituted after the effective date of this
Agreement, the Non - Federal Sponsor, prior to instituting such proceedings, shall submit to
the Government notification in writing of its intent to institute such proceedings and an
appraisal of the specific real property interests to be acquired in such proceedings. The
Government shall have 60 calendar days after receipt of such a notice and appraisal within
which to review the appraisal, if not previously approved by the Government in writing.
a. If the Government previously has approved the appraisal in
writing, or if the Government provides written approval of, or takes no action on, the
appraisal within such 60 day period, the Non - Federal Sponsor shall use the amount set forth
in such appraisal as the estimate of just compensation for the purpose of instituting the
eminent domain proceeding.
b. If the Government provides written disapproval of the appraisal,
including the reasons for disapproval, within such 60 day period, the Government and the
Non - Federal Sponsor shall consult in good faith to promptly resolve the issues or areas of
disagreement that are identified in the Government's written disapproval. If, after such
good faith consultation, the Government and the Non - Federal Sponsor agree as to an
appropriate amount, then the Non - Federal Sponsor shall use that amount as the estimate of
just compensation for the purpose of instituting the eminent domain proceeding. If, after
such good faith consultation, the Government and the Non - Federal Sponsor cannot agree as
to an appropriate amount, then the Non - Federal Sponsor may use the amount set forth in its
appraisal as the estimate of just compensation for the purpose of instituting the eminent
domain proceeding.
c. For lands, easements, or rights -of -way acquired by eminent
domain proceedings instituted in accordance with paragraph C.3. of this Article, fair market
value shall be either the amount of the court award for the real property interests taken, to
the extent the Government determined such interests are required for construction,
operation, and maintenance of the Project, or the amount of any stipulated settlement or
portion thereof that the Government approves in writing.
4. Incidental Costs. For lands, easements, or rights -of -way acquired by the
Non - Federal Sponsor within a five year period preceding the effective date of this
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Agreement, or at any time after the effective date of this Agreement, the value of the interest
shall include the documented incidental costs of acquiring the interest, as determined by the
Government, subject to an audit in accordance with Article X.C. of this Agreement to
determine reasonableness, allocability, and allowability of such costs. In the event the
Government modifies its determination made pursuant to Article III.A. of this
Agreement, the Government shall afford credit for the documented incidental costs
associated with preparing to acquire the lands, easements, or rights -of -way identified in
the original determination, subject to an audit in accordance with Article X.C. of this
Agreement to determine reasonableness, allocability, and allowability of such costs.
Such incidental costs shall include, but not necessarily be limited to, closing and title costs,
appraisal costs, survey costs, attorney's fees, plat maps, mapping costs, actual amounts
expended for payment of any relocation assistance benefits provided in accordance with
Article III.D. of this Agreement, and other payments by the Non - Federal Sponsor for
items that are generally recognized as compensable, and required to be paid, by
applicable state law due to the acquisition of a real property interest in accordance with
Article III of this Agreement. The value of the interests provided by the Non - Federal
Sponsor in accordance with Article III.A. of this Agreement shall also include the
documented costs of obtaining appraisals pursuant to paragraph C.2. of this Article, as
determined by the Government, and subject to an audit in accordance with Article X.C.
of this Agreement to determine reasonableness, allocability, and allowability of such
costs.
5. Waiver of Appraisal. Except as required by paragraph C.3. of this
Article, the Government may waive the requirement for an appraisal pursuant to this
paragraph if it determines that an appraisal is unnecessary because the valuation is
uncomplicated and that the estimated fair market value of the real property interest is
$10,000 or less based upon a review of available data. In such event, the Government
and the Non - Federal Sponsor must agree in writing to the value of such real property
interest in an amount not in excess of $10,000.
D. After consultation with the Non - Federal Sponsor, the Government shall
determine the value of relocations in accordance with the provisions of this paragraph.
1. For a relocation other than a highway, the value shall be only that portion
of relocation costs that the Government determines is necessary to provide a functionally
equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any
removed items.
2. For a relocation of a highway, the value shall be only that portion of
relocation costs that would be necessary to accomplish the relocation in accordance with the
design standard that the State of Washington would apply under similar conditions of
geography and traffic load, reduced by the salvage value of any removed items.
3. Relocation costs shall include, but not necessarily be limited to, actual
costs of performing the relocation; planning, engineering and design costs; supervision and
administration costs; and documented incidental costs associated with performance of the
relocation, as determined by the Government. Relocation costs shall not include any costs
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due to betterments, as determined by the Government, nor any additional cost of using new
material when suitable used material is available. Relocation costs shall be subject to an
audit in accordance with Article X.C. of this Agreement to determine reasonableness,
allocability, and allowability of such costs.
E. The value of the improvements required on lands, easements, and rights -of -way
to enable the disposal of dredged or excavated material shall be the costs of the
improvements, as determined by the Government, subject to an audit in accordance with
Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of
such costs. Such costs shall include, but not necessarily be limited to, actual costs of
providing the improvements; planning, engineering and design costs; supervision and
administration costs; and documented incidental costs associated with providing the
improvements, but shall not include any costs due to betterments, as determined by the
Government.
F. Any credit afforded or reimbursement provided under the terms of this
Agreement for the value of relocations, or improvements required on lands, easements,
and rights -of -way to enable the disposal of dredged or excavated material, performed within
the Project boundaries is subject to satisfactory compliance with applicable Federal labor
laws covering non - Federal construction, including, but not limited to, 40 U.S.C. 3141-
3148 and 40 U.S.C. 3701 -3708 (revising, codifying and enacting without substantive
change the provisions of the Davis -Bacon Act (formerly 40 U.S.C. 276a et seq.), the
Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et seq.) and the
Copeland Anti - Kickback Act (formerly 40 U.S.C. 276c)). Notwithstanding any other
provision of this Agreement, credit or reimbursement may be withheld, in whole or in
part, as a result of the Non - Federal Sponsor's failure to comply with its obligations under
these laws.
G. Where the Government, on behalf of the Non - Federal Sponsor pursuant to
Article II.G.1. of this Agreement, acquires lands, easements, or rights -of -way, performs
relocations, or constructs improvements required on lands, easements, or rights -of -way to
enable the disposal of dredged or excavated material, the value to be included in total
project costs and the amount of credit to be afforded or the amount of reimbursement
provided in accordance with this Agreement shall be the costs of such work performed or
provided by the Government that are paid by the Non - Federal Sponsor in accordance
with Article VI.D. of this Agreement. In addition, the value to be included in total
project costs and the amount of such credit to be afforded or the amount of
reimbursement provided in accordance with this Agreement shall include the documented
costs incurred by the Non - Federal Sponsor in accordance with the terms and conditions
agreed upon in writing pursuant to Article II.G.1. of this Agreement subject to an audit in
accordance with Article X.C. of this Agreement to determine reasonableness, allocability,
and allowability of such costs.
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ARTICLE V - PROJECT COORDINATION TEAM
A. To provide for consistent and effective communication, the Non - Federal Sponsor
and the Government, not later than 30 calendar days after the effective date of this
Agreement, shall appoint named senior representatives to a Project Coordination Team.
Thereafter, the Project Coordination Team shall meet regularly until the end of the period of
construction. The Government's Project Manager and a counterpart named by the Non -
Federal Sponsor shall co -chair the Project Coordination Team.
B. The Government's Project Manager and the Non - Federal Sponsor's counterpart
shall keep the Project Coordination Team informed of the progress of construction and of
significant pending issues and actions, and shall seek the views of the Project Coordination
Team on matters that the Project Coordination Team generally oversees.
C. Until the end of the period of construction, the Project Coordination Team shall
generally oversee the Project, including matters related to: plans and specifications;
scheduling; real property and relocation requirements; real property acquisition; contract
awards and modifications; contract costs; the application of and compliance with 40
U.S.C. 3141 -3148 and 40 U.S.C. 3701 -3708 (revising, codifying and enacting without
substantive change the provisions of the Davis -Bacon Act (formerly 40 U.S.C. 276a et
seq.), the Contract Work Hours and Safety Standards Act (formerly 40 U.S.C. 327 et
seq.) and the Copeland Anti - Kickback Act (formerly 40 U.S.C. 276c)) for relocations and
improvements required on lands, easements, and rights -of -way to enable the disposal of
dredged or excavated material; the investigations to identify the existence and extent of
hazardous substances in accordance with Article XIV.A. of this Agreement; historic
preservation activities in accordance with Article XVII of this Agreement; the
Government's cost projections; final inspection of the entire Project or functional portions
of the Project; preparation of the proposed OMRR &R Manual; finalization of the
monitoring plan; performance of monitoring and adaptive management; anticipated
requirements and needed capabilities for performance of operation, maintenance, repair,
rehabilitation, and replacement of the Project including issuance of permits; and other
matters related to the Project. This oversight of the Project shall be consistent with a project
management plan developed by the Government after consultation with the Non - Federal
Sponsor.
D. The Project Coordination Team may make recommendations to the District
Engineer on matters related to the Project that the Project Coordination Team generally
oversees, including suggestions to avoid potential sources of dispute. The Government in
good faith shall consider the recommendations of the Project Coordination Team. The
Government, having the legal authority and responsibility for construction of the Project,
has the discretion to accept or reject, in whole or in part, the Project Coordination Team's
recommendations.
E. The Non - Federal Sponsor's costs of participation in the Project Coordination
Team shall be included in total project costs and shared in accordance with the provisions
of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement
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to determine reasonableness, allocability, and allowability of such costs. The
Government's costs of participation in the Project Coordination Team shall be included
in total project costs and shared in accordance with the provisions of this Agreement.
ARTICLE VI - METHOD OF PAYMENT
A. In accordance with the provisions of this paragraph, the Government shall
maintain current records and provide to the Non - Federal Sponsor current projections of
costs, financial obligations, contributions provided by the parties, and the value included
in total project costs for lands, easements, rights -of -way, relocations, and improvements
required on lands, easements, and rights -of -way to enable the disposal of dredged or
excavated material determined in accordance with Article IV of this Agreement.
1. As of the effective date of this Agreement, total project costs are
projected to be $5,738,048; the value included in total project costs for lands, easements,
rights -of -way, relocations, and improvements required on lands, easements, and rights -of-
way to enable the disposal of dredged or excavated material determined in accordance with
Article IV of this Agreement is projected to be $900,000; the value of the Non - Federal
Sponsor's contributions under Article V, Article X, and Article XIV.A. of this Agreement is
projected to be $40,000; the Non - Federal Sponsor's contribution of funds required by
Article ILB.2. of this Agreement is projected to be $707,101.80; the non Federal
proportionate share is projected to be 22.26 percent; the Non - Federal Sponsor's
contribution of funds required by Article XVII.B.3. of this Agreement is projected to be
$0; and the Government's total financial obligations for the additional work to be
incurred and the Non - Federal Sponsor's contribution of funds for such costs required by
Article II.G. of this Agreement are projected to be $0. These amounts and percentage are
estimates subject to adjustment by the Government, after consultation with the Non -
Federal Sponsor, and are not to be construed as the total financial responsibilities of the
Government and the Non - Federal Sponsor.
2. By January 2015 and by each quarterly anniversary thereof until the
conclusion of the period of construction and resolution of all relevant claims and appeals
and eminent domain proceedings, the Government shall provide the Non - Federal Sponsor
with a report setting forth all contributions provided to date and the current projections of
the following: total project costs; the value included in total project costs for lands,
easements, rights -of -way, relocations, and improvements required on lands, easements,
and rights -of -way to enable the disposal of dredged or excavated material determined in
accordance with Article IV of this Agreement; the value of the Non - Federal Sponsor's
contributions under Article V, Article X, and Article XIV.A. of this Agreement; the Non -
Federal Sponsor's total contribution of funds required by Article II.B.2. of this
Agreement; the non - Federal proportionate share; the Non - Federal Sponsor's total
contribution of funds required by Article XVII.B.3. of this Agreement; the total
contribution of funds required from the Non - Federal Sponsor for the upcoming fiscal
year; the maximum amount determined in accordance with Article XX of this
Agreement; and the Government's total financial obligations for additional work incurred
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and the Non - Federal Sponsor's contribution of funds for such costs required by Article
II.G. of this Agreement.
B. The Non - Federal Sponsor shall provide the contributions of funds required by
Article II.B.2. and Article XVII.B.3. of this Agreement in accordance with the provisions
of this paragraph.
1. Not less than 30 calendar days prior to the scheduled date for issuance
of the solicitation for the first contract for construction of the Project or commencement
of construction of the Project using the Government's own forces, the Government shall
notify the Non - Federal Sponsor in writing of such scheduled date and the funds the
Government determines to be required from the Non - Federal Sponsor, after consideration
of any cash contribution provided by a non - Federal interest pursuant to the terms of the
Design Agreement, to meet: (a) the non - Federal proportionate share of financial
obligations for construction incurred prior to the commencement of the period of
construction; (b) the projected non - Federal proportionate share of financial obligations
for construction to be incurred in the first fiscal year; or, if use of a continuing contract
has been approved pursuant to Federal laws, regulations, and policies, the projected non -
Federal proportionate share of financial obligations for construction through the first
fiscal year; and (c) the Non - Federal Sponsor's share of the projected financial obligations
for data recovery activities associated with historic preservation pursuant to Article
XVII.B.3. of this Agreement to be incurred in the first fiscal year; or, if use of a
continuing contract has been approved pursuant to Federal laws, regulations, and policies,
the Non - Federal Sponsor's share of the projected financial obligations for data recovery
activities associated with historic preservation pursuant to Article XVII.B.3. of this
Agreement through the first fiscal year. Not later than such scheduled date, the Non -
Federal Sponsor shall provide the Government with the full amount of such required
funds by delivering a check payable to "FAO, USAED, Seattle District " to the District
Engineer, or verifying to the satisfaction of the Government that the Non - Federal
Sponsor has deposited such required funds in an escrow or other account acceptable to
the Government, with interest accruing to the Non - Federal Sponsor, or by presenting the
Government with an irrevocable letter of credit acceptable to the Government for such
required funds, or by providing an Electronic Funds Transfer of such required funds in
accordance with procedures established by the Government.
2. Thereafter, until the construction of the Project is complete, the
Government shall notify the Non - Federal Sponsor in writing of the funds the Government
determines to be required from the Non - Federal Sponsor, and the Non - Federal Sponsor
shall provide such funds in accordance with the provisions of this paragraph.
a. Where the Government will use a continuing contract approved
pursuant to Federal laws, regulations, and policies to make financial obligations for
construction of the Project or financial obligations for data recovery activities associated
with historic preservation pursuant to Article XVII.B.3. of this Agreement, the
Government shall notify the Non - Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of each fiscal year in which the Government projects that it
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will make such financial obligations, of the funds the Government determines to be
required from the Non - Federal Sponsor, after consideration of any cash contribution
provided by a non - Federal interest pursuant to the terms of the Design Agreement, to
meet: (a) the projected non - Federal proportionate share of financial obligations for
construction for that fiscal year for such continuing contract and (b) the Non - Federal
Sponsor's share of the projected financial obligations for data recovery activities
associated with historic preservation pursuant to Article XVII.B.3. of this Agreement for
that fiscal year for such continuing contract. No later than 30 calendar days prior to the
beginning of that fiscal year, the Non - Federal Sponsor shall make the full amount of such
required funds for that fiscal year available to the Government through any of the
payment mechanisms specified in paragraph B.1. of this Article.
b. For each contract for the Project where the Government will
not use a continuing contract to make financial obligations for construction or financial
obligations for data recovery activities associated with historic preservation pursuant to
Article XVII.B.3. of this Agreement, the Government shall notify the Non - Federal
Sponsor in writing, no later than 60 calendar days prior to the scheduled date for issuance
of the solicitation for such contract, of the funds the Government determines to be
required from the Non - Federal Sponsor, after consideration of any cash contribution
provided by a non - Federal interest pursuant to the terms of the Design Agreement, to
meet: (a) the projected non - Federal proportionate share of financial obligations for
construction to be incurred for such contract and (b) the Non - Federal Sponsor's share of
the projected financial obligations for data recovery activities associated with historic
preservation pursuant to Article XVII.B.3. of this Agreement to be incurred for such
contract. No later than such scheduled date, the Non - Federal Sponsor shall make the full
amount of such required funds available to the Government through any of the payment
mechanisms specified in paragraph B.1. of this Article.
c. Where the Government projects that it will make financial
obligations for construction of the Project using the Government's own forces or
financial obligations for data recovery activities associated with historic preservation
pursuant to Article XVII.B.3. of this Agreement using the Government's own forces, the
Government shall notify the Non - Federal Sponsor in writing, no later than 60 calendar
days prior to the beginning of each fiscal year in which the Government projects that it
will make such financial obligations, of the funds the Government determines to be
required from the Non - Federal Sponsor, after consideration of any cash contribution
provided by a non - Federal interest pursuant to the terms of the Design Agreement, to
meet: (a) the projected non - Federal proportionate share of financial obligations for
construction using the Government's own forces for that fiscal year and (b) the Non -
Federal Sponsor's share of the projected financial obligations for data recovery activities
associated with historic preservation pursuant to Article XVII.B.3. of this Agreement
using the Government's own forces for that fiscal year. No later than 30 calendar days
prior to the beginning of that fiscal year, the Non - Federal Sponsor shall make the full
amount of such required funds for that fiscal year available to the Government through
any of the payment mechanisms specified in paragraph B.1. of this Article.
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3. The Government shall draw from the funds provided by the Non -
Federal Sponsor such sums as the Government deems necessary, after consideration of
any contributions provided by a non - Federal interest pursuant to the terms of the Design
Agreement, to cover: (a) the non - Federal proportionate share of financial obligations for
construction incurred prior to the commencement of the period of construction; (b) the
non Federal proportionate share of financial obligations for construction as financial
obligations for construction are incurred; and (c) the Non - Federal Sponsor's share of
financial obligations for data recovery activities associated with historic preservation
pursuant to Article XVII.B.3. of this Agreement as those financial obligations are
incurred. If at any time the Government determines that additional funds will be needed
from the Non - Federal Sponsor to cover the Non - Federal Sponsor's share of such
financial obligations in the current fiscal year, the Government shall notify the Non -
Federal Sponsor in writing of the additional funds required and provide an explanation of
why additional funds are required. Within 60 calendar days from receipt of such notice,
the Non - Federal Sponsor shall provide the Government with the full amount of such
additional required funds through any of the payment mechanisms specified in paragraph
B.1. of this Article.
C. Upon the District Engineer's determination that, except for monitoring and
adaptive management, the entire Project is complete and all relevant claims and appeals
and eminent domain proceedings have been resolved, the Government shall conduct an
interim accounting and furnish the results to the Non - Federal Sponsor. Further, upon
conclusion of the period of construction and resolution of all relevant claims and appeals
and eminent domain proceedings, the Government shall amend the interim accounting to
complete the final accounting and furnish the results to the Non - Federal Sponsor. If
outstanding relevant claims and appeals or eminent domain proceedings prevent a final
accounting from being conducted in a timely manner, the Government shall conduct an
interim accounting or amend the previous interim accounting, as applicable, and furnish
the Non - Federal Sponsor with written notice of the results of such interim or amended
interim accounting, as applicable. Once all outstanding relevant claims and appeals and
eminent domain proceedings are resolved, the Government shall complete the final
accounting and furnish the Non - Federal Sponsor with written notice of the results of such
final accounting. The interim or final accounting, as applicable, shall determine total
project costs and the costs of any data recovery activities associated with historic
preservation. In addition, for each set of costs, the interim or final accounting, as
applicable, shall determine each party's required share thereof, and each party's total
contributions thereto as of the date of such accounting.
1. Should the interim or final accounting, as applicable, show that the
Non - Federal Sponsor's total required shares of total project costs and the costs of any
data recovery activities associated with historic preservation exceed the Non - Federal
Sponsor's total contributions provided thereto, the Non - Federal Sponsor, no later than 90
calendar days after receipt of written notice from the Government, shall make a payment
to the Government in an amount equal to the difference by delivering a check payable to
"FAO, USAED, Seattle District" to the District Engineer or by providing an Electronic
Funds Transfer in accordance with procedures established by the Government.
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2. Should the interim or final accounting, as applicable, show that the
total contributions provided by the Non - Federal Sponsor for total project costs and the
costs of any data recovery activities associated with historic preservation exceed the Non -
Federal Sponsor's total required shares thereof, the Government, subject to the availability
of funds, shall refund or reimburse the excess amount to the Non - Federal Sponsor within
90 calendar days of the date of completion of such accounting. In the event the Non -
Federal Sponsor is due a refund or reimbursement and funds are not available to refund
or reimburse the excess amount to the Non - Federal Sponsor, the Government shall seek
such appropriations as are necessary to make the refund or reimbursement.
D. The Non - Federal Sponsor shall provide the contribution of funds required by
Article II.G. of this Agreement for additional work in accordance with the provisions of
this paragraph.
1. Not less than 90 calendar days prior to the scheduled date for the first
financial obligation for additional work, the Government shall notify the Non - Federal
Sponsor in writing of such scheduled date and of the full amount of funds the
Government determines to be required from the Non - Federal Sponsor to cover the costs
of the additional work. No later than 30 calendar days prior to the Government incurring
any financial obligation for additional work, the Non - Federal Sponsor shall provide the
Government with the full amount of the funds required to cover the costs of such
additional work through any of the payment mechanisms specified in paragraph B.1. of
this Article.
2. The Government shall draw from the funds provided by the Non -
Federal Sponsor such sums as the Government deems necessary to cover the
Government's financial obligations for such additional work as they are incurred. If at
any time the Government determines that the Non - Federal Sponsor must provide
additional funds to pay for such additional work, the Government shall notify the Non -
Federal Sponsor in writing of the additional funds required and provide an explanation of
why additional funds are required. Within 30 calendar days from receipt of such notice,
the Non - Federal Sponsor shall provide the Government with the full amount of such
additional required funds through any of the payment mechanisms specified in paragraph
B.1. of this Article.
3. At the time the Government conducts the interim or final accounting,
as applicable, the Government shall conduct an accounting of the Government's financial
obligations for additional work incurred and furnish the Non - Federal Sponsor with
written notice of the results of such accounting. If outstanding relevant claims and
appeals or eminent domain proceedings prevent a final accounting of additional work
from being conducted in a timely manner, the Government shall conduct an interim
accounting of additional work and furnish the Non - Federal Sponsor with written notice of
the results of such interim accounting. Once all outstanding relevant claims and appeals
and eminent domain proceedings are resolved, the Government shall amend the interim
accounting of additional work to complete the final accounting of additional work and
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furnish the Non - Federal Sponsor with written notice of the results of such final
accounting. Such interim or final accounting, as applicable, shall determine the
Government's total financial obligations for additional work and the Non - Federal
Sponsor's contribution of funds provided thereto as of the date of such accounting.
a. Should the interim or final accounting, as applicable, show that
the total obligations for additional work exceed the total contribution of funds provided
by the Non - Federal Sponsor for such additional work, the Non - Federal Sponsor, no later
than 90 calendar days after receipt of written notice from the Government, shall make a
payment to the Government in an amount equal to the difference by delivering a check
payable to "FAO, USAED, Seattle District" to the District Engineer or by providing an
Electronic Funds Transfer in accordance with procedures established by the Government.
b. Should the interim or final accounting, as applicable, show that
the total contribution of funds provided by the Non - Federal Sponsor for additional work
exceeds the total obligations for such additional work, the Government, subject to the
availability of funds, shall refund the excess amount to the Non - Federal Sponsor within
90 calendar days of the date of completion of such accounting. In the event the Non -
Federal Sponsor is due a refund and funds are not available to refund the excess amount
to the Non - Federal Sponsor, the Government shall seek such appropriations as are
necessary to make the refund.
ARTICLE VII - DISPUTE RESOLUTION
As a condition precedent to a party bringing any suit for breach of this
Agreement, that party must first notify the other party in writing of the nature of the
purported breach and seek in good faith to resolve the dispute through negotiation. If the
parties cannot resolve the dispute through negotiation, they may agree to a mutually
acceptable method of non - binding alternative dispute resolution with a qualified third
party acceptable to both parties. Each party shall pay an equal share of any costs for the
services provided by such a third party as such costs are incurred. The existence of a
dispute shall not excuse the parties from performance pursuant to this Agreement.
ARTICLE VIII - OPERATION, MAINTENANCE, REPAIR, REHABILITATION,
AND REPLACEMENT (OMRR &R)
A. Upon receipt of the notification from the District Engineer in accordance with
Article B.C. of this Agreement and for so long as the Project remains authorized, the Non -
Federal Sponsor, pursuant to Article II.D. of this Agreement, shall operate, maintain,
repair, rehabilitate, and replace the entire Project or functional portion of the Project, at no
cost to the Government. The Non - Federal Sponsor shall conduct its operation,
maintenance, repair, rehabilitation, and replacement responsibilities in a manner
compatible with the Project's authorized purposes and in accordance with applicable
Federal and State laws as provided in Article XI of this Agreement and specific directions
prescribed by the Government in the interim or final OMRR &R Manual and any
subsequent amendments thereto.
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ACT.A Page 40 of 117
B. The Non - Federal Sponsor hereby gives the Government a right to enter, at
reasonable times and in a reasonable manner, upon property that the Non - Federal Sponsor
now or hereafter owns or controls for access to the Project for the purpose of inspection and,
if necessary, for the purpose of completing, operating, maintaining, repairing, rehabilitating,
or replacing the Project. If an inspection shows that the Non - Federal Sponsor for any
reason is failing to perform its obligations under this Agreement, the Government shall send
a written notice describing the non - performance to the Non - Federal Sponsor. If, after 30
calendar days from receipt of such written notice by the Government, the Non - Federal
Sponsor continues to fail to perform, then the Government shall have the right to enter, at
reasonable times and in a reasonable manner, upon property that the Non - Federal Sponsor
now or hereafter owns or controls for the purpose of completing, operating, maintaining,
repairing, rehabilitating, or replacing the Project. No completion, operation, maintenance,
repair, rehabilitation, or replacement by the Government shall relieve the Non - Federal
Sponsor of responsibility to meet the Non - Federal Sponsor's obligations as set forth in this
Agreement, or to preclude the Government from pursuing any other remedy at law or equity
to ensure faithful performance pursuant to this Agreement.
ARTICLE IX — HOLD AND SAVE
The Non - Federal Sponsor shall hold and save the Government free from all damages arising
from construction, monitoring, adaptive management, operation, maintenance, repair,
rehabilitation, and replacement of the Project and any betterments, except for damages due
to the fault or negligence of the Government or its contractors.
ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT
A. Not later than 60 calendar days after the effective date of this Agreement, the
Government and the Non - Federal Sponsor shall develop procedures for keeping books,
records, documents, or other evidence pertaining to costs and expenses incurred pursuant to
this Agreement. These procedures shall incorporate, and apply as appropriate, the standards
for financial management systems set forth in the Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section
33.20. The Government and the Non - Federal Sponsor shall maintain such books, records,
documents, or other evidence in accordance with these procedures and for a minimum of
three years after completion of the accounting for which such books, records, documents, or
other evidence were required. To the extent permitted under applicable Federal laws and
regulations, the Government and the Non - Federal Sponsor shall each allow the other to
inspect such books, records, documents, or other evidence.
B. In accordance with 32 C.F.R. Section 33.26, the Non - Federal Sponsor is
responsible for complying with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-
7507), as implemented by Office of Management and Budget (OMB) Circular No. A -133
and Department of Defense Directive 7600.10. Upon request of the Non - Federal Sponsor
and to the extent permitted under applicable Federal laws and regulations, the Government
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ACT.A Page 41 of 117
shall provide to the Non - Federal Sponsor and independent auditors any information
necessary to enable an audit of the Non - Federal Sponsor's activities under this Agreement.
The costs of any non - Federal audits performed in accordance with this paragraph shall be
allocated in accordance with the provisions of OMB Circulars A -87 and A -133, and such
costs as are allocated to the Project shall be included in total project costs and shared in
accordance with the provisions of this Agreement.
C. In accordance with 31 U.S.C. 7503, the Government may conduct audits in
addition to any audit that the Non - Federal Sponsor is required to conduct under the Single
Audit Act Amendments of 1996. Any such Government audits shall be conducted in
accordance with Government Auditing Standards and the cost principles in OMB Circular
No. A -87 and other applicable cost principles and regulations. The costs of Government
audits performed in accordance with this paragraph shall be included in total project costs
and shared in accordance with the provisions of this Agreement.
ARTICLE XI - FEDERAL AND STATE LAWS
In the exercise of their respective rights and obligations under this Agreement, the
Non - Federal Sponsor and the Government shall comply with all applicable Federal and
State laws and regulations, including, but not limited to: Section 601 of the Civil Rights
Act of 1964, Public Law 88 -352 (42 U.S.C. 2000d) and Department of Defense Directive
5500.11 issued pursuant thereto; Army Regulation 600 -7, entitled "Nondiscrimination on
the Basis of Handicap in Programs and Activities Assisted or Conducted by the
Department of the Army "; and all applicable Federal labor standards requirements
including, but not limited to, 40 U.S.C. 3141 -3148 and 40 U.S.C. 3701 -3708 (revising,
codifying and enacting without substantive change the provisions of the Davis -Bacon Act
(formerly 40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act
(formerly 40 U.S.C. 327 et seq.) and the Copeland Anti- Kickback Act (formerly 40
U.S.C. 276c)).
ARTICLE XII - RELATIONSHIP OF PARTIES
A. In the exercise of their respective rights and obligations under this Agreement,
the Government and the Non - Federal Sponsor each act in an independent capacity, and
neither is to be considered the officer, agent, or employee of the other.
B. In the exercise of its rights and obligations under this Agreement, neither party
shall provide, without the consent of the other party, any contractor with a release that
waives or purports to waive any rights the other party may have to seek relief or redress
against that contractor either pursuant to any cause of action that the other party may have or
for violation of any law.
24
ACT.A Page 42 of 117
ARTICLE XIII - TERMINATION OR SUSPENSION
A. If at any time the Non - Federal Sponsor fails to fulfill its obligations under this
Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this
Agreement or suspend future performance under this Agreement unless the Assistant
Secretary of the Army (Civil Works) determines that continuation of work on the Project is
in the interest of the United States or is necessary in order to satisfy agreements with any
other non - Federal interests in connection with the Project.
B. In the event the Government projects that the amount of Federal funds the
Government will make available to the Project through the then - current fiscal year, or the
amount of Federal funds the Government will make available for the Project through the
upcoming fiscal year, is not sufficient to meet the Federal share of total project costs and
the Federal share of costs for data recovery activities associated with historic preservation
in accordance with Article XVII.B.2. and Article XVII.B.3. of this Agreement that the
Government projects to be incurred through the then- current or upcoming fiscal year, as
applicable, the Government shall notify the Non - Federal Sponsor in writing of such
insufficiency of funds and of the date the Government projects that the Federal funds that
will have been made available to the Project will be exhausted. Upon the exhaustion of
Federal funds made available by the Government to the Project, future performance
under this Agreement shall be suspended. Such suspension shall remain in effect until
such time that the Government notifies the Non - Federal Sponsor in writing that sufficient
Federal funds are available to meet the Federal share of total project costs and the
Federal share of costs for data recovery activities associated with historic preservation in
accordance with Article XVII.B.2. and Article XVII.B.3. of this Agreement the
Government projects to be incurred through the then- current or upcoming fiscal year, or
the Government or the Non - Federal Sponsor elects to terminate this Agreement.
C. In the event that the Government and the Non - Federal Sponsor determine to
suspend future performance under this Agreement in accordance with Article XIV.C. of
this Agreement, such suspension shall remain in effect until the Government and the
Non - Federal Sponsor agree to proceed or to terminate this Agreement. In the event that
the Government suspends future performance under this Agreement in accordance with
Article XIV.C. of this Agreement due to failure to reach agreement with the Non - Federal
Sponsor on whether to proceed or to terminate this Agreement, or the failure of the Non -
Federal Sponsor to provide funds to pay for cleanup and response costs or to otherwise
discharge the Non - Federal Sponsor's responsibilities under Article XIV.C. of this
Agreement, such suspension shall remain in effect until: 1) the Government and Non -
Federal Sponsor reach agreement on how to proceed or to terminate this Agreement; 2)
the Non - Federal Sponsor provides funds necessary to pay for cleanup and response costs
and otherwise discharges its responsibilities under Article XIV.C. of this Agreement; 3)
the Government continues work on the Project; or 4) the Government terminates this
Agreement in accordance with the provisions of Article XIV.C. of this Agreement.
D. In the event that this Agreement is terminated pursuant to this Article or Article
XIV.C. of this Agreement, both parties shall conclude their activities relating to the Project
25
ACT.A Page 43 of 117
and conduct an accounting in accordance with Article VI.C. of this Agreement. To provide
for this eventuality, the Government may reserve a percentage of total Federal funds
made available for the Project and an equal percentage of the total funds contributed by
the Non - Federal Sponsor in accordance with Article II.B.2. and Article XVII.B.3. of this
Agreement as a contingency to pay costs of termination, including any costs of resolution
of contract claims and contract modifications.
E. Any termination of this Agreement or suspension of future performance under
this Agreement in accordance with this Article or Article XIV.C. of this Agreement shall
not relieve the parties of liability for any obligation previously incurred. Any delinquent
payment owed by the Non - Federal Sponsor shall be charged interest at a rate, to be
determined by the Secretary of the Treasury, equal to 150 per centum of the average bond
equivalent rate of the 13 week Treasury bills auctioned immediately prior to the date on
which such payment became delinquent, or auctioned immediately prior to the beginning of
each additional 3 month period if the period of delinquency exceeds 3 months.
ARTICLE XIV - HAZARDOUS SUBSTANCES
A. After execution of this Agreement and upon direction by the District Engineer,
the Non - Federal Sponsor shall perform, or ensure performance of, any investigations for
hazardous substances that the Government or the Non - Federal Sponsor determines to be
necessary to identify the existence and extent of any hazardous substances regulated under
the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter
"CERCLA ") (42 U.S.C. 9601 - 9675), that may exist in, on, or under lands, easements, and
rights -of -way that the Government determines, pursuant to Article III of this Agreement, to
be required for construction, operation, and maintenance of the Project. However, for lands,
easements, and rights -of -way that the Government determines to be subject to the navigation
servitude, only the Government shall perform such investigations unless the District
Engineer provides the Non - Federal Sponsor with prior specific written direction, in which
case the Non - Federal Sponsor shall perform such investigations in accordance with such
written direction.
1. All actual costs incurred by the Non - Federal Sponsor for such
investigations for hazardous substances shall be included in total project costs and shared in
accordance with the provisions of this Agreement, subject to an audit in accordance with
Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of
such costs.
2. All actual costs incurred by the Government for such investigations for
hazardous substances shall be included in total project costs and shared in accordance
with the provisions of this Agreement.
B. In the event it is discovered through any investigation for hazardous substances
or other means that hazardous substances regulated under CERCLA exist in, on, or under
any lands, easements, or rights -of -way that the Government determines, pursuant to Article
III of this Agreement, to be required for construction, operation, and maintenance of the
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ACT.A Page 44 of 117
Project, the Non - Federal Sponsor and the Government, in addition to providing any other
notice required by applicable law, shall provide prompt written notice to each other, and the
Non - Federal Sponsor shall not proceed with the acquisition of the real property interests
until the parties agree that the Non - Federal Sponsor should proceed.
C. The Government and the Non - Federal Sponsor shall determine whether to
initiate construction of the Project, or, if already in construction, whether to continue with
construction of the Project, suspend future performance under this Agreement, or terminate
this Agreement for the convenience of the Government, in any case where hazardous
substances regulated under CERCLA are found to exist in, on, or under any lands,
easements, or rights -of -way that the Government determines, pursuant to Article III of this
Agreement, to be required for construction, operation, and maintenance of the Project.
Should the Government and the Non - Federal Sponsor determine to initiate or continue with
construction of the Project after considering any liability that may arise under CERCLA, the
Non - Federal Sponsor shall be responsible, as between the Government and the Non - Federal
Sponsor, for the costs of cleanup and response, including the costs of any studies and
investigations necessary to determine an appropriate response to the contamination. Such
costs shall not be considered a part of total project costs. In the event the Non - Federal
Sponsor does not reach agreement with the Government on whether to proceed or to
terminate this Agreement under this paragraph, or fails to provide any funds necessary to
pay for cleanup and response costs or to otherwise discharge the Non - Federal Sponsor's
responsibilities under this paragraph upon direction by the Government, the Government, in
its sole discretion, may either terminate this Agreement for the convenience of the
Government, suspend future performance under this Agreement, or continue work on the
Project.
D. The Non - Federal Sponsor and the Government shall consult with each other in
accordance with Article V of this Agreement in an effort to ensure that responsible parties
bear any necessary cleanup and response costs as defined in CERCLA. Any decision made
pursuant to paragraph C. of this Article shall not relieve any third party from any liability
that may arise under CERCLA.
E. As between the Government and the Non - Federal Sponsor, the Non - Federal
Sponsor shall be considered the operator of the Project for purposes of CERCLA liability.
To the maximum extent practicable, the Non - Federal Sponsor shall operate, maintain,
repair, rehabilitate, and replace the Project in a manner that will not cause liability to arise
under CERCLA.
ARTICLE XV - NOTICES
A. Any notice, request, demand, or other communication required or permitted to be
given under this Agreement shall be deemed to have been duly given if in writing and
delivered personally or sent by telegram or mailed by first - class, registered, or certified mail,
as follows:
27
ACT.A Page 45 of 117
If to the Non - Federal Sponsor:
Environmental Services Manager
City of Auburn
25 West Main Street
Auburn, WA 98001
If to the Government:
Chief, Planning Branch, PPMD
Seattle District, Corps of Engineers
P.O. Box 3755
Seattle, WA 98124 -3755
B. A party may change the address to which such communications are to be
directed by giving written notice to the other party in the manner provided in this Article.
C. Any notice, request, demand, or other communication made pursuant to this
Article shall be deemed to have been received by the addressee at the earlier of such time as
it is actually received or seven calendar days after it is mailed.
ARTICLE XVI - CONFIDENTIALITY
To the extent permitted by the laws governing each party, the parties agree to
maintain the confidentiality of exchanged information when requested to do so by the
providing party.
ARTICLE XVII - HISTORIC PRESERVATION
A. The Government, as it determines necessary for the Project, shall perform any
identification, survey, or evaluation of historic properties. Any costs incurred by the
Government for such work shall be included in total project costs and shared in
accordance with the provisions of this Agreement.
B. The Government, as it determines necessary for the Project, shall perform or
ensure the performance of any mitigation activities or actions for historic properties or
that are otherwise associated with historic preservation including data recovery activities.
1. Any costs incurred by the Government for such mitigation activities,
except for data recovery activities associated with historic preservation, shall be included
in total project costs and shared in accordance with the provisions of this Agreement.
2. As specified in Section 7(a) of Public Law 86 -523, as amended by Public
Law 93 -291 (16 U.S.C. 469c(a)), the costs of data recovery activities associated with
28
ACT.A Page 46 of 117
historic preservation shall be borne entirely by the Government and shall not be included in
total project costs, up to the statutory limit of one percent of the total amount authorized to
be appropriated to the Government for the Project.
3. The Government shall not incur costs for data recovery activities
associated with historic preservation that exceed the statutory one percent limit specified in
paragraph B.2. of this Article unless and until the Assistant Secretary of the Army (Civil
Works) has waived that limit and the Secretary of the Interior has concurred in the waiver
in accordance with Section 208(3) of Public Law 96 -515, as amended (16 U.S.C. 469c-
2(3)). Any costs of data recovery activities associated with historic preservation that exceed
the one percent limit shall not be included in total project costs but shall be shared between
the Non - Federal Sponsor and the Government consistent with the cost sharing requirements
for ecosystem restoration, as follows: 35 percent will be borne by the Non - Federal Sponsor
and 65 percent will be borne by the Government.
C. If, during its performance of relocations or construction of improvements
required on lands, easements, and rights -of -way to enable the disposal of dredged or
excavated material in accordance with Article III of this Agreement, the Non - Federal
Sponsor discovers historic properties or other cultural resources that have not been evaluated
by the Government pursuant to this Article, the Non - Federal Sponsor shall provide prompt
written notice to the Government of such discovery. The Non - Federal Sponsor shall not
proceed with performance of the relocation or construction of the improvement that is
related to such discovery until the Government provides written notice to the Non - Federal
Sponsor that it should proceed with such work.
ARTICLE XVIII - THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES
Nothing in this Agreement is intended, nor may be construed, to create any rights,
confer any benefits, or relieve any liability, of any kind whatsoever in any third person
not party to this Agreement.
ARTICLE XIX- NON - LIABILITY OF OFFICERS AND EMPLOYEES
No officer, agent, consultant, or employee of the Non - Federal Sponsor, nor any
officer, agent, consultant, or employee of the Government, may be charged personally, or
held liable, under the terms or provisions of this Agreement because of any breach,
attempted breach, or alleged breach thereof, except as provided in Section 912(b) of the
Water Resources Development Act of 1986, Public Law 99 -662, as amended (42 U.S.C.
1962d -5b note), or other applicable law.
ARTICLE XX - SECTION 902 MAXIMUM COST OF PROJECT
The Non - Federal Sponsor understands that Section 902 of the Water Resources
Development Act of 1986, Public Law 99 -662, as amended (33 U.S.C. 2280) establishes
the maximum amount of total costs for the Authorized Project, of which the Project is a
separable element. On the effective date of this Agreement, the maximum amount of total
29
ACT.A Page 47 of 117
costs for the Authorized Project, which is the sum of total project costs for the Project and
the costs for all other separable elements of the Authorized Project, is estimated to be
$215,454,000, as calculated in accordance with Engineer Regulation 1105 -2 -100, using
October 1, 2013 price levels, and including allowances for projected future inflation. The
Government shall adjust such maximum amount of total costs for the Authorized Project, in
accordance with Section 902 of the Water Resources Development Act of 1986, Public
Law 99 -662, as amended (33 U.S.C. 2280), when necessary.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which
shall become effective upon the date it is signed by the District Engineer.
DEPARTMENT OF THE ARMY CITY OF AUBURN
BY: BY:
Bruce A. Estok Nancy Backus
Colonel, Corps of Engineers Mayor
District Engineer
DATE: DATE:
30
ACT.A Page 48 of 117
CERTIFICATE OF AUTHORITY
I, , do hereby certify that I am the principal legal officer of
the City of Auburn, that the City of Auburn is a legally constituted public body with full
authority and legal capability to perform the terms of the Agreement between the
Department of the Army and the City of Auburn in connection with the Duwamish/Mill
Creek Wetland 5K Reach Ecosystem Restoration Project, and to pay damages, if
necessary, in the event of the failure to perform in accordance with the terms of this
Agreement, as required by Section 221 of the Flood Control Act of 1970, Public Law
91 -611, as amended (42 U.S.C. 1962d -5b), and that the persons who have executed this
Agreement on behalf of the City of Auburn have acted within their statutory authority.
IN WITNESS WHEREOF, I have made and executed this certification this
day of 20 .
Daniel B. Heid
Senior Counsel
31
ACT.A Page 49 of 117
CERTIFICATION REGARDING LOBBYING
The undersigned certifies, to the best of his or her knowledge and belief that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf
of the undersigned, to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee
of a Member of Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit Standard Form -LLL,
"Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be
included in the award documents for all subawards at all tiers (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this certification is
a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352.
Any person who fails to file the required certification shall be subject to a civil penalty of
not less than $10,000 and not more than $100,000 for each such failure.
Nancy Backus
Mayor, City of Auburn
DATE:
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ACT.A Page 50 of 117
CITY t F �� *
BURN
1 +ASf1LNC TONI
AGENDA BILL APPROVAL FORM
DI.A
Agenda Subject:
Resolution No. 5078
Department:
Public Works
Attachments:
Resolution No. 5078
Draft Ordinance No. 6513
Administrative Recommendation:
Date:
July 7, 2014
Budget Impact:
$0
For discussion only.
Background Summary:
Resolution No. 5078 sets the date of the public hearing for Franchise Agreement No.
13 -28 Electric Lightwave LLC for September 2, 2014 at 7:30 pm in Council Chambers.
Franchise Agreement No. 13 -28, Draft Ordinance No. 6513 is attached as back up
documentation for Resolution No. 5078. Per Auburn City Code Chapter 20.06.010, a
franchise shall be required of any commercial utility or telecommunications operator or
carrier or other person who desires to occupy public ways of the city and to provide
telecommunications or commercial utility services to any person or area in the city.
Electric Lightwave LLC (ELI) has applied for a Franchise Agreement to be able to
operate and build within the City's rights of way a telecommunications network. The
applicant will offer telecommunications services to customers within Auburn. The
proposed franchise area is all rights of way in the City, as ELI leases facilities from
CenturyLink and BPA throughout the City to provide service. Should ELI wish to build
their own facilities they would need and amendment to this agreement and would need
to obtain permits as required by the agreement. Exact locations, plans, engineering and
construction schedules of any future ELI owned facilities would be reviewed, approved
and managed through the City's permitting processes that are a requirement of the
Franchise Agreement.
Reviewed by Council Committees:
Planning And Community Development, Public Works
Councilmember: Osborne Staff: Mund
Meeting Date: July 14, 2014 Item Number: DI.A
AUBURN * MORE THAN YOU IMAGINED Page 51 of 117
DI.A
AUBURN * MORE THAN YOU IMAGINED Page 52 of 117
RESOLUTION NO. 5078
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, SETTING A PUBLIC HEARING
TO CONSIDER A FRANCHISE AGREEMENT WITH
ELECTRIC LIGHTWAVE, LLC, A WHOLLY OWNED
SUBSIDIARY OF INTEGRA TELECOM HOLDINGS, INC
WHEREAS, Electric Lightwave, LLC (ELI) has applied to the City for a non-
exclusive Franchise Agreement for the right of entry, use, and occupation of certain public
rights -of -way within the City of Auburn, expressly to install, construct, erect, operate,
maintain, repair, relocate and remove its facilities in, on, upon, along and /or across those
right(s) -of -way; and
WHEREAS, the Public Works Committee of the Auburn City Council has reviewed
ELI's application materials, and, pursuant to ACC 20.06.040, the Public Works Committee
has recommended to the City Council that it schedule a public hearing on the application;
and
WHEREAS, the City Council agrees with the recommendation of the Public Works
Committee,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That a hearing on the application by Electric Lightwave, LLC for a
Franchise Agreement with the City of Auburn is hereby set for 7:30 p.m. on the 2nd day of
September, 2014, at the City Council Chambers at 25 West Main Street, Auburn,
Washington, 98001, with all persons wishing to speak to the application at the public
Resolution No. 5078
Franchise Agreement No. 13 -28
June 9, 2014
Page 1
DI.A Page 53 of 117
hearing being invited to attend.
Section 2. The Mayor is hereby authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation, including
posting notice of such public hearing as required by State law and City Ordinance.
Section 3. This Resolution shall be in full force in effect upon passage and
signatures hereon.
DATED and SIGNED this day of , 2014.
CITY OF AUBURN
Nancy Backus
Mayor
Attest:
Danielle E. Daskam, City Clerk
Approved as to Form:
Daniel B. Heid, City Attorney
Resolution No. 5078
Franchise Agreement No. 13 -28
June 9, 2014
Page 2
DI.A Page 54 of 117
ORDINANCE NO. 6513
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING TO
ELECTRIC LIGHTWAVE, LLC, A WHOLLY OWNED
SUBSIDIARY OF INTEGRA TELECOM HOLDINGS,
INC, A DELEWARE CORPORATION, A FRANCHISE
FOR TELECOMMUNICATIONS TYPE OF UTILITY
WHEREAS, Electric Lightwave LLC ( "ELI ") ( "Grantee ") has applied to the
City of Auburn ( "City ") for a non - exclusive Franchise for the right of entry, use,
and occupation of certain public right(s) -of -way within the City, expressly to
install, construct, erect, operate, maintain, repair, relocate and remove its
facilities in, on, over, under, along and /or across those right(s) -of -way; and
WHEREAS, following proper notice, the City Council held a public hearing
on Grantee's request for a Franchise, at which time representatives of Grantee
and interested citizens were heard in a full public proceeding affording
opportunity for comment by any and all persons desiring to be heard; and
WHEREAS, from information presented at such public hearing, and from
facts and circumstances developed or discovered through independent study and
investigation, the City Council now deems it appropriate and in the best interest
of the City and its inhabitants that the franchise be granted to Grantee,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows:
Section 1. Grant of Right to Use Franchise Area
A. Subject to the terms and conditions stated herein, the City grants to
the Grantee general permission to enter, use, and occupy the right(s) -of -way
and /or other public property within the City of Auburn (the "Franchise Area ").
B. The Grantee is authorized to install, remove, construct, erect,
operate, maintain, relocate and repair the types of facilities specified in Exhibit
"B," attached hereto and incorporated by reference, and all necessary
appurtenances thereto, ( "Grantee Facilities ") for provision of those services set
forth in Exhibit "C" ( "Grantee Services ") in, along, under and across the
Franchise Area.
C. At the time of initial application Grantee represented that it did not
currently own, lease, or have indefeasible rights of use for any facilities that
would be defined as Grantee Facilities under this Franchise. This Franchise does
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not authorize the use of the Franchise Area for any facilities or services other
than Grantee Facilities and Grantee Services, and it extends no rights or
privilege relative to any facilities or services of any type, including Grantee
Facilities and Grantee Services, on public or private property elsewhere within
the City. If Grantee intends to install, construct, erect, operate, or maintain new
Grantee Facilities, it shall submit an application to amend this Franchise, which
amendment may be approved by the City administratively.
D. This Franchise is non - exclusive and does not prohibit the City from
entering into other agreements, including Franchises, impacting the Franchise
Area, unless the City determines that entering into such agreements interferes
with Grantee's right set forth herein.
E. Except as explicitly set forth herein, this Franchise does not waive
any rights that the City has or may hereafter acquire with respect to the
Franchise Area or any other City roads, rights -of -way, property, or any portions
thereof. This Franchise shall be subject to the power of eminent domain, and in
any proceeding under eminent domain, the Grantee acknowledges its use of the
Franchise Area shall have no value.
F. The City reserves the right to change, regrade, relocate, abandon,
or vacate any right -of -way within the Franchise Area. If, at any time during the
term of this Franchise, the City vacates any portion of the Franchise Area
containing Grantee Facilities, the City shall reserve an easement for public
utilities within that vacated portion, pursuant to RCW 35.79.030, within which the
Grantee may continue to operate any existing Grantee Facilities under the terms
of this Franchise for the remaining period set forth under Section 3.
G. The Grantee agrees that its use of Franchise Area shall at all times
be subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to the Franchise Area, except as may be
otherwise required by law.
Section 2. Notice
A. Written notices to the parties shall be sent by certified mail to the
following addresses, unless a different address shall be designated in writing and
delivered to the other party.
City:
Engineering Aide,
Community Development and
Public Works Department - Transportation
City of Auburn
25 West Main Street
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with a copy to:
Grantee:
Auburn, WA 98001 -4998
Telephone: (253) 931 -3010; Fax: (253) 931 -3048
City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001 -4998
Electric Lightwave LLC, ( ELI)
1201 NE Lloyd Blvd, Suite 500
Portland, OR 97232
Attn: Contract Administration
Telephone: 503 - 453 -8000
Fax: 503 - 453 -8221
B. Any changes to the above - stated Grantee information shall be sent
to the City's Engineering Aide, Community Development and Public Works
Department — Transportation Division, with copies to the City Clerk, referencing
the title of this agreement.
C. The above - stated Grantee voice and fax telephone numbers shall
be staffed at least during normal business hours, Pacific time zone.
Section 3. Term of Agreement
A. This Franchise shall run for a period of five (5) years, from the date
of execution specified in Section 5.
B. Renewal Option of Term: The Grantee may renew this Franchise
for an additional five (5) year period upon submission and approval of the
application specified under ACC 20.06.130, as it now exists or is amended,
within the timeframe set forth therein (currently 240 to 180 days prior to
expiration of the then - current term). Any materials submitted by the Grantee for
a previous application may be considered by the City in reviewing a current
application, and the Grantee shall only submit those materials deemed
necessary by the City to address changes in the Grantee Facilities or Grantee
Services, or to reflect specific reporting periods mandated by the ACC.
C. Failure to Renew Franchise — Automatic Extension. If the Parties
fail to formally renew this Franchise prior to the expiration of its term or any
extension thereof, the Franchise automatically continues month to month until
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renewed or either party gives written notice at least one hundred and eighty (180)
days in advance of intent not to renew the Franchise.
Section 4. Definitions
For the purpose of this agreement:
"ACC" means the Auburn City Code.
"Emergency" means a condition of imminent danger to the health, safety and
welfare of persons or property located within the City including, without limitation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots, acts of terrorism or wars.
"Maintenance or Maintain" shall mean examining, testing, inspecting, repairing,
maintaining and replacing the existing Grantee Facilities or any part thereof as
required and necessary for safe operation.
"Relocation" means permanent movement of Grantee facilities required by the
City, and not temporary or incidental movement of such facilities, or other
revisions Grantee would accomplish and charge to third parties without regard to
municipal request.
"Rights -of -Way" means the surface and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements,
rights -of -ways and similar public properties and areas.
Section 5. Acceptance of Franchise
A. This Franchise, and any rights granted hereunder, shall not
become effective for any purpose unless and until Grantee files with the City
Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "D," and
incorporated by reference, (2) all verifications of insurance coverage specified
under Section 15, and (3) the financial guarantees specified in Section 16
(collectively, "Franchise Acceptance "). The date that such Franchise Acceptance
is filed with the City Clerk shall be the effective date of this Franchise.
B. Should the Grantee fail to file the Franchise Acceptance with the
City Clerk within 30 days after the effective date of the ordinance approving the
Franchise, the City's grant of the Franchise will be null and void.
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Section 6. Construction and Maintenance
A. The Grantee shall apply for, obtain, and comply with the terms of all
permits required under ACC Chapter 12.24 for any work done within the City.
Grantee shall comply with all applicable City, State, and Federal codes, rules,
regulations, and orders in undertaking such work, which shall be done in a
thorough and proficient manner.
B. Grantee agrees to coordinate its activities with the City and all other
utilities located within the public right -of -way within which Grantee is under taking
its activity.
C. The City expressly reserves the right to prescribe how and where
Grantee Facilities shall be installed within the public right -of -way and may from
time to time, pursuant to the applicable sections of this Franchise, require the
removal, relocation and /or replacement thereof in the public interest and safety at
the expense of the Grantee.
D. Before commencing any work within the public right -of -way, the
Grantee shall comply with the One Number Locator provisions of RCW Chapter
19.122 to identify existing utility infrastructure.
E. Tree Trimming. Upon prior written approval of the City and in
accordance with City ordinances, Grantee shall have the authority to reasonably
trim trees upon and overhanging streets, public rights -of -way, and places in the
Franchise Area so as to prevent the branches of such trees from coming in
physical contact with the Grantee Facilities. Grantee shall be responsible for
debris removal from such activities. If such debris is not removed within twenty -
four (24) hours of completion of the trimming, the City may, at its sole discretion,
remove such debris and charge Grantee for the cost thereof. This section does
not, in any instance, grant automatic authority to clear vegetation for purposes of
providing a clear path for radio signals. Any such general vegetation clearing will
require a land clearing permit.
Section 7. Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair
and emergency response work as required under the circumstances, provided
that the Grantee shall notify the City Engineering Aide in writing as promptly as
possible, before such repair or emergency work commences, or as soon
thereafter as possible, if advance notice is not practical. The City may act, at
any time, without prior written notice in the case of emergency, but shall notify
the Grantee in writing as promptly as possible under the circumstances.
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Section 8. Damages to City and Third -Party Property
Grantee agrees that if any of its actions under this Franchise impairs or
damages any City property, survey monument, or property owned by a third -
party, Grantee will restore, at its own cost and expense, said property to a safe
condition. Such repair work shall be performed and completed to the satisfaction
of the City Engineer.
Section 9. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
utility, other than the Grantee's, which was installed, constructed, completed or in
place prior in time to Grantee's application for a permit to construct or repair
Grantee Facilities under this Franchise shall have preference as to positioning
and location with respect to the Grantee Facilities. However, to the extent that
the Grantee Facilities are completed and installed prior to another utility's
submittal of a permit for new or additional structures, equipment, appurtenances
or tangible property, then the Grantee Facilities shall have priority. These rules
governing preference shall continue in the event of the necessity of relocating or
changing the grade of any City road or right -of -way. A relocating utility shall not
necessitate the relocation of another utility that otherwise would not require
relocation. This Section shall not apply to any City facilities or utilities that may in
the future require the relocation of Grantee Facilities. Such relocations shall be
governed by Section 11.
B. Grantee shall maintain a minimum underground horizontal
separation of five (5) feet from City water, sanitary sewer and storm sewer
facilities and ten (10) feet from above - ground City water facilities; provided, that
for development of new areas, the City, in consultation with Grantee and other
utility purveyors or authorized users of the Public Way, will develop guidelines
and procedures for determining specific utility locations.
Section 10. Grantee Information
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested by the City Engineering Aide to coordinate municipal
functions with Grantee's activities and fulfill any municipal obligations under state
law. Said information shall include, at a minimum, as -built drawings of Grantee
Facilities, installation inventory, and maps and plans showing the location of
existing or planned facilities within the City. Said information may be requested
either in hard copy or electronic format, compatible with the City's data base
system, as now or hereinafter existing, including the City's geographic
information Service (GIS) data base. Grantee shall keep the City Engineering
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Aide informed of its long -range plans for coordination with the City's long -range
plans.
B. The parties understand that Washington law limits the ability of the
City to shield from public disclosure any information given to the City.
Accordingly, the City agrees to notify the Grantee of requests for public records
related to the Grantee, and to give the Grantee a reasonable amount of time to
obtain an injunction to prohibit the City's release of records.
Grantee shall indemnify and hold harmless the City for any loss or liability
for fines, penalties, and costs (including attorneys fees) imposed on the City
because of non - disclosures requested by Grantee under Washington's open
public records act, provided the City has notified Grantee of the pending request.
Section 11. Relocation of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to
relocate, remove, or reroute its facilities as ordered by the City Engineer at no
expense or liability to the City, except as may be required by RCW Chapter
35.99. Pursuant to the provisions of Section 14, Grantee agrees to protect and
save harmless the City from any customer or third -party claims for service
interruption or other losses in connection with any such change, relocation,
abandonment, or vacation of the Pubic Way.
B. If a readjustment or relocation of the Grantee Facilities is
necessitated by a request from a party other than the City, that party shall pay
the Grantee the actual costs thereof.
Section 12. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and eighty days (180) of Grantee's permanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grantee
shall, at the City's discretion, either abandon in place or remove the affected
facilities.
B. The parties expressly agree that this Section shall survive the
expiration, revocation or termination of this Franchise.
Section 13. Undergrounding
A. The parties agree that this Franchise does not limit the City's
authority under federal law, state law, or local ordinance, to require the
undergrounding of utilities.
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B. Whenever the City requires the undergrounding of aerial utilities in
the Franchise Area, the Grantee shall underground the Grantee Facilities in the
manner specified by the City Engineer at no expense or liability to the City,
except as may be required by RCW Chapter 35.99 Where other utilities are
present and involved in the undergrounding project, Grantee shall only be
required to pay its fair share of common costs borne by all utilities, in addition to
the costs specifically attributable to the undergrounding of Grantee Facilities.
Common costs shall include necessary costs for common trenching and utility
vaults. Fair share shall be determined in comparison to the total number and
size of all other utility facilities being undergrounded.
Section 14. Indemnification and Hold Harmless
A. The Grantee shall defend, indemnify, and hold the City and its
officers, officials, agents, employees, and volunteers harmless from any and all
costs, claims, injuries, damages, losses, suits, or liabilities of any nature including
attorneys' fees arising out of or in connection with the Grantee's performance
under this Franchise, except to the extent such costs, claims, injuries, damages,
losses, suits, or liabilities are caused by the negligence of the City. Should a
court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the concurrent
negligence of the Contractor and the City, its officers, officials, employees, and
volunteers, the Contractor's liability hereunder shall be only to the extent of the
Contractor's negligence.
B. The Grantee shall hold the City harmless from any liability arising
out of or in connection with any damage or loss to the Grantee Facilities caused
by maintenance and /or construction work performed by, or on behalf of, the City
within the Franchise Area or any other City road, right -of -way, or other property,
except to the extent any such damage or loss is directly caused by the
negligence of the City, or its agent performing such work.
C. The Grantee acknowledges that neither the City nor any other
public agency with responsibility for fire fighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close trench
or confined space rescue. The Grantee, and its agents, assigns, successors, or
contractors, shall make such arrangements as Grantee deems fit for the
provision of such services. The Grantee shall hold the City harmless from any
liability arising out of or in connection with any damage or loss to the Grantee for
the City's failure or inability to provide such services, and, pursuant to the terms
of Section 14(A), the Grantee shall indemnify the City against any and all third-
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party costs, claims, injuries, damages, losses, suits, or liabilities based on the
City's failure or inability to provide such services.
D. Acceptance by the City of any work performed by the Grantee shall
not be grounds for avoidance of this section.
E. It is further specifically and expressly understood that the
indemnification provided herein constitutes the Grantee's waiver of immunity
under Industrial Insurance, Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The
provisions of this section shall survive the expiration or termination of this
Agreement.
Section 15. Insurance
A. The Grantee shall procure and maintain for the duration of this
Franchise, insurance against claims for injuries to persons or damage to property
which may arise from or in connection with the performance of the work
hereunder by the Grantee, its agents, representatives, or employees in the
amounts and types set forth below:
1. Automobile Liability insurance covering all owned, non -
owned, hired, and leased vehicles with a minimum combined single limit for
bodily injury and property damage of $1,000,000.00 per accident. Coverage
shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute
form providing equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance with limits no less
than $1,000,000.00 each occurrence, $2,000,000.00 general aggregate and a
$2,000,000.00 products - completed operations aggregate limit. Coverage shall
be written on ISO occurrence form CG 00 01 or a substitute form providing
equivalent coverage and shall cover liability arising from premises, operations,
independent contractors, products - completed operations, stop gap liability, and
personal injury and advertising injury and liability assumed under an insured
contract. The Commercial General Liability insurance shall be endorsed to
provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85 or an
equivalent form. There shall be no endorsement or modification of the
Commercial General Liability insurance for liability arising from explosion,
collapse, or underground property damage. The City shall be named as an
additional insured under the Grantee's Commercial General Liability insurance
policy with respect to the work performed under this Franchise using ISO
Additional Insured Endorsement CG 20 10 10 01 and Additional Insured-
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Completed Operations endorsement CG 20 37 10 01 or substitute endorsements
providing equivalent coverage.
3. Professional Liability insurance with limits no less than
$1,000,000.00 per claim for all professional employed or retained Grantee to
perform services under this Franchise.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
B. The insurance policies are to contain, or be endorsed to contain,
the following provisions for Automobile Liability, Professional Liability, and
Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary
insurance as respects the City. Any insurance, self- insurance, or insurance pool
coverage maintained by the City shall be in excess of the Grantee's insurance
and shall not contribute with it.
2. The Grantee's insurance shall be endorsed to state that
coverage shall not be cancelled by the insurers except after thirty (30) days' prior
written notice has been given to Grantee. Upon receipt of such notice, Grantee
shall immediately notify by certified mail, return receipt requested, the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best rating of not less than A:VII.
D. Verification of Coverage. Grantee shall furnish the City with
documentation of insurer's A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of
Grantee before commencement of the work.
E. Grantee shall have the right to self- insure any or all of the above -
required insurance. Any such self insurance is subject to approval by the City.
F. Grantee's maintenance of insurance as required by this Franchise
shall not be construed to limit the liability of Grantee to the coverage provided by
such insurance, or otherwise limit the City's recourse to any remedy to which the
City is otherwise entitled at law or in equity.
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Section 16. Performance Security
The Grantee shall provide the City with a financial guarantee in the amount of
Fifty Thousand Dollars ($50,000.00) running for, or renewable for, the term of this
Franchise, in a form and substance acceptable to the City. In the event Grantee
shall fail to substantially comply with any one or more of the provisions of this
Franchise, then there shall be recovered jointly and severally from the principal
and any surety of such financial guarantee any damages suffered by City as a
result thereof, including but not limited to staff time, material and equipment
costs, compensation or indemnification of third parties, and the cost of removal or
abandonment of facilities hereinabove described. Grantee specifically agrees
that its failure to comply with the terms of Section 19 shall constitute damage to
the City in the monetary amount set forth therein. Such a financial guarantee
shall not be construed to limit the Grantee's liability to the guarantee amount, or
otherwise limit the City's recourse to any remedy to which the City is otherwise
entitled at law or in equity.
Section 17. Successors and Assignees
A. All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and privileges, as well as all obligations
and liabilities of the Grantee shall inure to its successors, assignees and
contractors equally as if they were specifically mentioned herein wherever the
Grantee is mentioned.
B. This Franchise shall not be leased, assigned or otherwise alienated
without the express prior consent of the City by ordinance.
C. Grantee and any proposed assignee or transferee shall provide and
certify the following to the City not less than sixty (60) days prior to the proposed
date of transfer: (a) Complete information setting forth the nature, term and
conditions of the proposed assignment or transfer; (b) All information required by
the City of an applicant for a Franchise with respect to the proposed assignee or
transferee; and, (c) An application fee which shall be set by the City, plus any
other costs actually and reasonably incurred by the City in processing, and
investigating the proposed assignment or transfer.
D. Prior to the City's consideration of a request by Grantee to consent
to a Franchise assignment or transfer, the proposed Assignee or Transferee shall
file with the City a written promise to unconditionally accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to insist on full compliance prior to transfer
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does not waive any right to insist on full compliance thereafter.
Section 18. Dispute Resolution
A. In the event of a dispute between the City and the Grantee arising
by reason of this Agreement, the dispute shall first be referred to the operational
officers or representatives designated by Grantor and Grantee to have oversight
over the administration of this Agreement. The officers or representatives shall
meet within thirty (30) calendar days of either party's request for a meeting,
whichever request is first, and the parties shall make a good faith effort to
achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this
manner, either party may then pursue any available judicial remedies. This
Franchise shall be governed by and construed in accordance with the laws of the
State of Washington. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically
understand and agree that venue shall be exclusively in King County,
Washington. The prevailing party in any such action shall be entitled to its
attorneys' fees and costs of suit, which shall be fixed by the judge hearing the
case, and such fees shall be included in the judgment.
Section 19. Enforcement and Remedies
A. If the Grantee shall willfully violate, or fail to comply with any of the
provisions of this Franchise through willful or unreasonable negligence, or should
it fail to heed or comply with any notice given to Grantee under the provisions of
this agreement, the City may, at its discretion, provide Grantee with written notice
to cure the breach within thirty (30) days of notification. If the City determines the
breach cannot be cured within thirty days, the City may specify a longer cure
period, and condition the extension of time on Grantee's submittal of a plan to
cure the breach within the specified period, commencement of work within the
original thirty day cure period, and diligent prosecution of the work to completion.
If the breach is not cured within the specified time, or the Grantee does not
comply with the specified conditions, the City may, at its discretion, either (1)
revoke the Franchise with no further notification, or (2) claim damages of Two
Hundred Fifty Dollars ($250.00) per day against the financial guarantee set forth
in Section 16 for every day after the expiration of the cure period that the breach
is not cured.
B. Should the City determine that Grantee is acting beyond the scope
of permission granted herein for Grantee Facilities and Grantee Services, the
City reserves the right to cancel this Franchise and require the Grantee to apply
for, obtain, and comply with all applicable City permits, franchises, or other City
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permissions for such actions, and if the Grantee's actions are not allowed under
applicable federal and state or City laws, to compel Grantee to cease such
actions.
Section 20. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Grantee shall comply with all
applicable federal and state or City laws, regulations and policies (including all
applicable elements of the City's comprehensive plan), in conformance with
federal laws and regulations, affecting performance under this Franchise.
Furthermore, notwithstanding any other terms of this agreement appearing to the
contrary, the Grantee shall be subject to the police power of the City to adopt and
enforce general ordinances necessary to protect the safety and welfare of the
general public in relation to the rights granted in the Franchise Area.
B. The City reserves the right at any time to amend this Franchise to
conform to any hereafter enacted, amended, or adopted federal or state statute
or regulation relating to the public health, safety, and welfare, or relating to
roadway regulation, or a City Ordinance enacted pursuant to such federal or
state statute or regulation upon providing Grantee with thirty (30) days written
notice of its action setting forth the full text of the amendment and identifying the
statute, regulation, or ordinance requiring the amendment. Said amendment
shall become automatically effective upon expiration of the notice period unless,
before expiration of that period, the Grantee makes a written call for negotiations
over the terms of the amendment. If the parties do not reach agreement as to
the terms of the amendment within thirty (30) days of the call for negotiations, the
City may enact the proposed amendment, by incorporating the Grantee's
concerns to the maximum extent the City deems possible.
C. The City may terminate this Franchise upon thirty (30) days written
notice to the Grantee, if the Grantee fails to comply with such amendment or
modification.
Section 21. License, Tax and Other Charges
This Franchise shall not exempt the Grantee from any future license, tax,
or charge which the City may hereinafter adopt pursuant to authority granted to it
under state or federal law for revenue or as reimbursement for use and
occupancy of the Franchise Area.
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Section 22. Consequential Damages Limitation
Notwithstanding any other provision of this Agreement, in no event shall
either party be liable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Section 23. Severability
If any portion of this Franchise is deemed invalid, the remainder portions
shall remain in effect.
Section 24. Titles
The section titles used herein are for reference only and should not be
used for the purpose of interpreting this Franchise.
Section 25. Implementation.
The Mayor is hereby authorized to implement such administrative
procedures as may be necessary to carry out the directions of this legislation.
Section 26. Effective date.
This Ordinance shall take effect and be in force five days from and after its
passage, approval and publication as provided by law.
INTRODUCED:
PASSED:
APPROVED:
NANCY BACKUS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
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APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Published:
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nib
Exhibit A
Franchise Area
m
Mit
WW1 in 4.1
lirP :11
pErpA
411010.
mak
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Exhibit B
Grantee Facilities
Leased and owned telecommunication and communication conduit and fiber
facilities within the Right of Ways. As of the date of this Ordinance ELI does not
own facilities but may at a future date install ELI owned facilities at and pursuant
to the lawful permitting process of the City.
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Exhibit C
Grantee Services
Telecommunications and communication services.
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EXHIBIT "D"
STATEMENT OF ACCEPTANCE
Electric Lightwave, LLC. ( ELI), for itself, its successors and assigns, hereby
accepts and agrees to be bound by all lawful terms, conditions and provisions of
the Franchise attached hereto and incorporated herein by this reference.
Electric Lightwave LLC ( ELI)
By: Date:
Name:
Title:
STATE OF
COUNTY OF
)ss.
On this day of , 2014, before me the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn,
personally appeared, of , the company that
executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said company, for the
uses and purposes therein mentioned, and on oath stated that he /she is
authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date hereinabove set forth.
Signature
NOTARY PUBLIC in and for the State of
, residing at
MY COMMISSION EXPIRES:
Ordinance No. 6513
Franchise Agreement No. 13 -28
June 9, 2014
Page 19 of 19
DI.A Page 73 of 117
FY OF - *
UBURN
WASH I NO IO N
AGENDA BILL APPROVAL FORM
DI.B
Agenda Subject:
Communal Housing Follow -Up Discussion
Department: Attachments:
Community Development & Memorandum
Public Works ExhibitA
Exhibit B
Date:
July 7, 2014
Budget Impact:
$0
Administrative Recommendation:
For discussion only
Background Summary:
See attached memorandum.
Reviewed by Council Committees:
Other: Planning
Councilmember: Holman Staff: Tate
Meeting Date: July 14, 2014 Item Number: DI.B
AUBURN * MORE THAN YOU IMAGINED Page 74 of 117
CITY OF — s
WASHINGTON
MEMORANDUM
TO: Councilmember John Holman, Chair, Planning and Community
Development Committee
Councilmember Largo Wales, Vice Chair, Planning and Community
Development Committee
Councilmember Yolanda Trout, Planning and Community Development
Committee
CC: Mayor Backus
FROM: Jeff Tate, Assistant Director of Community Development Services
Elizabeth Chamberlain, Planning and Design Services Manager
DATE: July 7, 2014
RE: Communal Housing Follow Up Report
Background
On June 16, 2014 City Council adopted Resolution No. 5079 which established a
moratorium on the acceptance or processing of applications for business licenses
and other licenses, permits and approvals for communal residential rental housing.
Pursuant to RCW 35A.63.220 the City Council scheduled a public hearing for July
21, 2014 to further consider the moratorium.
During the June 9, 2014 Planning and Community Development Committee
(PCDC) meeting the Committee discussed two Conditional Use Permits that were
currently under consideration by the Hearing Examiner. A discussion was also
held regarding additional information pertaining to the communal residence
program and data provided by Green River Community College. PCDC indicated
that it was interested in seeing the Hearing Examiner decisions which are attached
as Exhibit A. PCDC also expressed interest in revisiting the communal residence
standards to ensure that they are meeting Council's intent. As background
information, Exhibit B is the matrix that was presented to PCDC on August 12,
2013 which highlights specific features of rental housing programs in other cities.
To facilitate the conversation, staff has prepared the following questions and
factors to consider when contemplating thoughts and answer to these questions.
1. Should adult family homes, group residence facilities, and residences that have
a rehabilitation focus be included in the definition of a communal residence or
treated differently? Factors to consider:
a. Adult family homes and group residence facilities are licensed by the State
of Washington and have very specific definitions. State law precludes City's
DI.B Page 75 of 117
from establishing rules that prohibit these facilities in residential zoning
districts when the occupancy is at 6 or fewer persons.
b. There are a number of homes in Auburn (and other communities) where the
property is choosing to rent to tenants who are recovering from an addiction
to drugs or alcohol, or they have been recently released from prison. These
types of homes do not require a license from the State and do not have an
onsite manager; they are rental homes where the owner is trying to cater to
a particular population.
2. Are there circumstances where it is appropriate for a communal residence to be
permitted that has more than 4 occupants? Factors to consider:
a. Site specific considerations; e.g. zoning designation, parcel size, house
size, and number of bedrooms
b. Process considerations; e.g. conditional use permit
c. Governance considerations; e.g. these properties receive a higher level of
scrutiny, monitoring, control, and ramifications for failing to abide
d. Overall consideration; should there simply be a cap set on the number of
occupants, if so, is 4 the correct number?
3. Is it appropriate to establish different rules for different geographic areas?
Factors to consider:
a. Different rules in different residential zoning designations
b. Different rules based upon an overlay that is established
4. Is it appropriate to establish density and distance rules? Factors to consider:
a. A minimum distance between communal residences with 4 or fewer
occupants
b. A minimum distance between communal residences that allow for more
than 4 occupants
c. A maximum number of communal residences within the City or within
neighborhoods
5. The Hearing Examiner added a number of conditions to his recent decision that
permits 2 communal residences of 7 occupants. Those conditions are attached
as Exhibit A. Should the code be modified to incorporate any of those
conditions?
6. Some jurisdictions require that a third party conduct the annual building
inspection. The City's program assumes that the City will conduct the
inspection. Should the City require a third party to conduct an inspection and
DI.B Page 76 of 117
the inspection results be provided as a condition of license issuance and
renewals? Factors to consider:
a. If the City did require a third party inspection should the City prepare the
inspection checklist that must be used and provided? Would it make sense
to also require that the inspector provide a statement of qualifications?
b. The City faces a logistical challenge by conducting its own inspections for
renewals. While new applications trigger a process that includes the
building plan reviewer or inspector to review the application, renewals are
simply obtained by mailing in the payment and renewal form or paying
online. The City receives approximately 3,000 renewal payments each
December. Renewals are processed in batches where there is no
substantive review of the information submitted. Communal residences are
the only types of business licenses where there is an interruption in the
renewal process due to the need to conduct an inspection prior to obtaining
the next year's license. Requiring that the inspection be submitted with the
renewal is one way of streamlining the renewal process. Alternatively, staff
can pull the communal licenses out of the batch process that we currently
use and develop an alternative way of sending out renewal notices and
processing /issuing renewals.
c. Some jurisdictions issue rental licenses with a longer term of validity, e.g. a
two year license instead of a one year license. Is there value in considering
this alternative?
7. When the communal residence regulations were adopted on September 3,
2014 they included a provision that required all existing communal residences
to comply with the standards by December 31, 2013. If there are additional
modifications to the communal residence regulations should there be new
grace periods established for compliance?
DI.B Page 77 of 117
Exhibit A
(Hearing Examiner Decisions)
DI.B Page 78 of 117
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BEFORE THE HEARING EXAMINER FOR THE Cif-
Phil Olbrechts, Hearing Examiner
1L
'JUN 4 2014
AUBURN
f loi \A t Nl w r a m m
Re: Shao Xia Zhu and Gary Kiefer
CUP1.4 -0001
Conditional Use Permit
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND DECISION
INTRODUCTION
The applicants have applied for a conditional use permit to convert the use of a single -
family home to a communal residence for the housing of up to seven students. The
application is approved subject to very restrictive conditions that the applicant may not
find worth pursuing. The application is only approved for a period of three years. The
applicant will be required to file yearly reports with the City detailing all complaints
received and how they were resolved. At the end of the three year period the applicant
will have to secure approval of another conditional use permit to continue operations, if
that option is still available at that time. In a new application the yearly reports will
provide needed information on the impacts of communal residences operated by the
applicant. The conditional use approval is personal to the applicant (cannot be
assigned) and the applicant's sole residence must continue to be at its current location
in order for the applicants to continue their exemplary near on -site supervision of their
communal residences. The applicants' leases must contain a provision mandating
eviction for failure to comply with house rules. Failure to comply with the conditions
of approval will subject the conditional use permit to revocation.
This is an extremely difficult case. The examiner was able to find land use court
opinions from four other states that addressed conditional or special use permit
applications for similar housing arrangements, specifically college sororities and
fraternities. In every single case, the courts ruled that community fears of noise, traffic
and inadequate property maintenance were not sufficient to justify denial of the
permits'. This case is distinguishable because neighborhood testimony was based on
historical impacts of student housing in their neighborhood as opposed to speculation
of what those impacts would be in the future. The testimony of the neighbors on these
issues was completely uncontested. Most notably, the applicants at no point disputed
the fact that the student housing in their neighborhood has significantly disrupted .
everyone's lives. Although the opposition testimony lacked specificity, it was clear
that student housing in general has created significant adverse impacts to the
' See Brooks v. Fisher, 705 SW.2d 135 (1985); Tempo Holding Co. v. Oxford City
Council, 603 NE.2d 472 (1984); Franklin and Marsh College v. Zoning Bd of
Lancaster, 371 A.2d 557 (1977); Phi Sigma Kappa v. Grosberg, 30 AD.2d 887 (1968).
Conditional Use
p. 1 Findings, Conclusions and Decision
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surrounding neighborhood in terms of noise, disruptive behavior, parking and poor
property maintenance.
Even though the impacts of student housing in general are fairly clear, there is also
strong evidence that the applicants are uniquely qualified and in a unique position to
ensure that their proposed communal residences will not disrupt their neighborhood.
The applicants have operated a communal residence with an unknown number of
students since 2006. With the exception of a written comment that the communal
residence has generated some unspecified noise incidents, project opponents
acknowledged that the applicants have been responsible stewards of their operations
and it is uncontested that the applicants have received no complaints over the conduct
of their students. A primary reason the applicants have been successful in maintaining
order on their properties is because they live on the same street as their rental
properties, apparently adjacent to or very close to one of the two homes. The
applicants note that they are a daily presence in the lives of the students by their
involvement in the cleaning and maintenance of the homes, transporting the students
on daily errands and sharing holiday meals with them. This level of adult supervision
stands a good chance of preventing the type of impacts identified by project opponents.
The historical success of the applicants supports a determination that they can operate
without creating significant impacts, but unfortunately the record does not contain any
information as to the number of students the applicants have rented to in the past. The
applicants propose not one but two communal residences with seven students each,
which presents numerous opportunities for disruptive conduct. Even with the
exceptional management skills of the applicants, it cannot be concluded with
reasonable certainty that the applicants will be able to fully maintain order on their
properties. Since the low impacts of the proposal are uniquely attributable to the
personal skills and qualifications of the applicants and their ability to maintain order
for 14 students is not entirely clear, this conditional use permit is subject to the fairly
unusual condition that it is approved personal to the applicants and only for a
temporary, trial basis. These stringent restrictions are reasonable given the modest
expense involved in creating the business.
ORAL TESTIMONY
Gary Yao, planner, presented several exhibits to be entered into the record, numbered
11, 12, 13, and 14. Mr. Yao identified the two properties which are the subjects of the
hearings at two residences from the Rainier Ridge subdivision which received its final
approval in the 1980s and 90s, prior to the time that the subdivisions were within the
corporate limits of Auburn. Both residences were identified by Mr. Yao as being close
to the single ingress /egress to the subdivision and are identified as 12428 S.E. 318th
Way (CUP14 -0001) and 12728 S.E. 318th Way (CUP14- 0002). The subdivision is
located approximately one -tenth of a mile from the entrance to Green River
Community College. The neighborhood has a single- family designation with R -5
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zoning. The intent for this zoning is to create single family dwellings with 4 to 5
dwellings per acre. According to Ordinance 6477 from September of 2013 and
ACC81.07, which clarify community residences with regard to living arrangements
with unrelated occupants in this designation and zoning, no more than 4 unrelated
occupants may reside in a single dwelling. If there are more than 4 unrelated
occupants, a CUP is required. Mr. Yao noted that standards for community residences
by the city of Auburn include specified required parking spaces, additional levels of
trash and recycling required, and annual building inspections. In addition, there are
more stringent requirements for community residences requesting a CUP for over four
residences, including a demonstration of adequate living spaces, requiring a designated
property manager, a noise mitigation (or "house rules ") plan presented to the city, and a
demonstration of no adverse impacts.
Mr. Yao stated that in developing the staff report, the city considered numerous
concerns that had been presented in comment letters received after the notice of
application. He noted that issues such as the number of people on the streets, the
behavior of college students (who would be likely renters), the lack of integration of
renters into the neighborhood, and tenant /landlord issues were all considered and
addressed in CUP regulations. The streets are public, not private. The behavior of
college students are individual behaviors so no blanket assumption of behavior can be
made by the city. He noted that property owners are accountable for their renters, and
that the staff report recommended a condition that if more than three violations of
ordinances and regulations were issued within a 12 month period, the CUP for that
residence would be withdrawn. The city has no jurisdiction to control or enforce
tenant /landlord negotiations. With regard to parking, the community dwellings must
abide by code that requires 1 parking space per each car - owning occupant. As on- street
parking is shared and open to all residents, the city cannot restrict who parks there.
However, for off - street parking, it is required that cars are parked on improved
surfaces. To address concerns over property maintenance and volume of trash and
recycling, Mr. Yao referred to requirements found in ACC Title 8 Health & Safety, and
reiterated that if there were over three formal infractions, this would cause the CUP to
be revoked.
With regard to concern over community residences, rental properties, and large
numbers of college renters being detrimental to property values, Mr. Yao stated that the
city found that community residences did not cause an economic detriment. He noted
that the condition requiring these residences to enforce house rules, parking
regulations, and have an annual renewal would address any issues that would harm
property values. The community residences meet the city requirements for bedroom
and living space square footage. The city regulates the conversion of non - bedrooms to
bedrooms, and legal permitted conversions must be consistent with the CUP. The city
found no traffic impact fees would be necessary for the increase in the number of
residences. The effect on water by community residences is no different to that of
single family residences as it is based on level of consumption, not number of
residents. He reiterated that any increase in nuisance of these community residences
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and any unresponsive owners will be dealt with through the condition of 3 formal
violations in 12 months causing the revoking of the CUP.
Mr. Yao stated that the staff recommends approval based on the conditions expressed.
These conditions should be met prior to business license: vehicle ownership affidavit,
noise mitigation / "house rules ", alteration permits approved and deemed consistent with
requirements, compliance to code within 14 days of Hearing Examiner' s decision, CUP
will be revoked in the event of 4th formal notice to correct, payment for license and
timely payment for renewal, inspection by city, provide adequate parking on
appropriate surfaces, adequate trash and recycling, and lawn and garden maintenance
per code.
With regard to revoking the CUP, Mr. Yao stated that the violation must occur on the
property, and is not just tied to the resident. The city had not considered a 24 hour "hot
line" to the homeowner in order to mitigate infractions immediately, but would not be
opposed to this as a condition of approval.
Applicants:
Mr. and Mrs. Keifer had no comments but to indicate that they would be willing to
have a 24 hour phone line and that they lived next door to the subject residences.
Public Comments:
Hank Galmish stated that he is an English teacher at Green River Community College,
has lived in the community for 18 years and lives across the street from one of the
subject residences. He believes that there is an impact on property values. He is trying
to sell his house and noted that buyers are expressing issues with the fact that larger
numbers of college renters may be moving in to the area. There is lots of noise from
students in the neighborhood, not specifically from the applicants' houses, but in total.
It does not feel like a single family neighborhood. They have worked with the city and
4 unrelated residents are reasonable, the exceptions are not. The CUP allows for too
many violations.
Jimmy Spade has lived in the neighborhood for 23 years. He says it is a family
neighborhood and should not be a college student neighborhood. There are too many
parties, etc.
Don Beers testified that he has lived in the neighborhood for 20 years and opposes the
measure.
Jeffrey Klouser stated that he is concerned with the issue that "house rules" will be
unenforceable with any future change. He is afraid that problems which occur after the
CUP is issued will be difficult to rectify. This idea is based on all the initial work they
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did to create a rule for four residents. He believes that there has already been an impact
by adding more students and the neighborhood is becoming a housing area for GRCC.
Jean Lix stated that she is an original owner from the neighborhood who moved in in
1982. She bought her home because it was a single- family R -5 neighborhood. For
three years they have worked with the city to protect the neighborhood. The college
should be building more student housing. The proximity to the college has caused
problems and brought down property values.
Kim McHenry testified that she is a 13 year resident of the community. She stated that
GRCC's international program is making money for the college. She wants to keep the
community residents to four and not open it up to 7. It would be a tragedy to turn the
neighborhood into a rental community. This has become a big deal and real problem
that residents experience.
Robert Lutz stated that the paperwork from the staff report does not address the
primary concerns of citizens. Student behavior will not keep a single family home
environment. He wants officials to "consider their own neighborhood."
Judy Craig said she is a 30 year resident of the neighborhood. 15 years ago she took in
students renters and stopped because they were so poorly behaved. 4 residents is
enough, 7 is too many.
Mr. and Mrs. Roman are 20 year residents. They are raising their family here and
would like to stay. Traffic issues cause fear for children playing. They also fear "For
Sale" signs and think their property value is declining. 4 residents are fine, but 7 is
excessive.
Stacey Griffin testified that she is a realtor who lives in the neighborhood. She stated
that buyers request demographics when they consider moving into a neighborhood and
they will not buy when the number of renters increases. Values have been increasing
since the economic downturn, but will suffer if more renters come in.
Scott Griffin noted that he is a 15 year resident. He stated that the city officials do not
live there and do not know what the neighborhood is like. He describes wild driving,
wrecked mailboxes, vehicles broken into, and a deteriorating parking situation. He
noted that his request for a speed bump was denied. He noted that the city does not
understand the real situation due to their lack of first -hand experience in the
neighborhood.
Mr. Olinger expressed concern with 7 residents in a single family home each having a
car that needs to be parked. He also noted concerns with trash and recycling levels, the
increasing degree of college student foot traffic around the public school bus stops, and
noted that drinking has become a problem.
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Leanne Kroon said she is an original owner in the neighborhood of 21 years. She
expressed concern with an increase in trash around the neighborhood, lack of street
lighting, and an increase in traffic going in and out of the neighborhood, noting that
both pedestrians and drivers are unobservant and pose a danger.
Mr. Kroon testified that he and his wife moved to Auburn for a family oriented
environment and have chosen to stay in their subdivision. He owns a rental in an area
zoned for rentals. He notes that it is difficult to deal with renters and is hard to control
them. He thinks that 4 is reasonable and 7 is greed.
Karl Yuhasz testified that he is a 27 year resident. He noted problems with drivers
disregarding children in the street. In addition, he expressed concern with the special
use being grandfathered to a house, noting that rules and conditions may not be abided
by if there is a new owner and the city cannot control it. He noted a sense of fear not
knowing one's neighbors and is concerned because he thought that this had all been
decided last year in 2013.
Frank Sunderland purchased his house in the neighborhood in 1992, lived there four
years, and then rented to a family. He has now moved back in as he has retired. He
noted seeing drug deals on the street and was concerned with mixing numbers of
college students with local high school students.
Delee Baker said she is adamantly opposed to the CUPs. She wants to live in a quiet
modest neighborhood and feels that her living situation should not be compromised so
people can make money. The behavior and atmosphere of a college community is
disruptive.
Mr. Baker said he is a 30 year resident who has worked at GRCC for 37 years. He
noted that the neighborhood is stressed by GRCC. He had moved there so that he
could walk to work, but the neighborhood has changed. Rental houses will become
party houses. The neighborhood does not need any more stress.
Dana Russell noted that, regarding CUP002, it appeared to her that the living /dining
room lacked sufficient size as required, requesting clarification. In general. Ms.
Russell stated that the standards for these community residences are low. She stated
that it is not right that they have just set standards and are now recommending a change
through the CUP, and that does not seem right. This is inconsistent behavior.
Mr. Cicholas has lived in the neighborhood for 20 years and stated that this decision is
being based on the book, not on reality. He encourages those making the decisions to
come out of their offices. He wants the interest of the people placed before profit.
Peter Tifft said he lives one mile from the neighborhood and stated that everyone in
proximity to GRCC is affected by this decision. It will impact the housing market. He
noted that student rentals in his neighborhood have caused issues. Four is enough,
Conditional Use p. 6 Findings, Conclusions and Decision
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going higher is a bad idea. He expressed concern with parking and licensing o
vehicles and stated that the city is not protecting the people of the community.
Julie Sunderland (wife of Frank Sunderland) stated that her neighborhood has changed,
and described a fight in the street and yard recently. She noted that it is a good
neighborhood and should stay that way. She expressed that she believed that the
Hearing Examiner appeared to be paying attention to the public testimony.
Mr. Herschei is opposed to the CUP. He stated that he did not think that the staff
recommendation should be allowed before public comment. Rental properties are
causing problems for real estate values and resale. Most rental properties are not kept
up. They do not want college dorm -style living in their neighborhood. They don't
want businesses in their neighborhood. The growth of the college is impacting the
community. They need mitigation through compromise. He would like the permits
denied.
Russ Campbell stated there is an error in Mr. Powell's presentation. There is a student
village with 340 students. (It can be located in the southwest corner of the vicinity map
in the PowerPoint.) Mr. Campbell noted that he has collected signatures on a petition
against both of these measures. The petition will be entered as Exhibit 15. Mr.
Campbell stated that community residence businesses in the neighborhood have been
flying under the radar for a long time. In this situation, the house is the business. He
noted that property values may go up but quality of life will go down. If there is a
conflict between the description of the house with regard to bedrooms and bathrooms
with the record found in the County this is an issue. He stated that the conditions
associated with this particular design are due to the actions of the applicant and the
changes were made by the homeowners without permit. They have been running a
communal house there for years. The deadline for compliance was January 1 of this
year. They did not file a conditional use permit until February 24. He wants to know
why it took nearly 2 months to file an application for a CUP.
Staff Rebuttal
Mr. Yao reemphasized that the city is uncomfortable with making a blanket assumption
of the behavior of the occupants of these homes. Without demonstration of this bad
behavior they cannot make a blanket assumption that the renters will cause issues in
the neighborhood. With regard to the four occupants, this has to do with requiring a
more specific form of control. With regard to pride in the neighborhood and trash, etc.
he noted that the city cannot make an assumption without giving the renters a chance.
He agrees that the law is imperfect and is difficult to enforce rules and regulations. This
is why they have imposed a timeline that must be adhered to and this is why
compliance is necessary in order to hold onto the CUP.
Applicant Rebuttal
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With regard to public comments about conversion of the house, the applicant noted that
they converted a loft into a bedroom and that was their mistake. They are working with
the CPU to rectify the problem. A real estate flyer describing the applicant's house as
purchased was entered as Exhibit 16.
EXHIBITS
Exhibits 1 -10 identified at page 14 of the May 22, 2014 staff report were admitted at
hearing. The following documents were also admitted during the hearing:
Exhibit 11
Exhibit 12
Exhibit 13
Exhibit 14
Exhibit 15
Exhibit 16
affidavit of notice of cancellation and date change of the public
hearing in the Seattle Times
Letter from Sara Gantz dated May 23, 2014
Letter from Sarah Wild dated May 27, 1014
Staff power point presentation.
Petition submitted by Mr. Campbell
Real estate flyer for Xia Zhu residence
FINDINGS OF FACT
Procedural:
1. Applicant. Shao Xia Zhu and Gary Kiefer.
2. Hearing. The Hearing Examiner conducted a hearing on the application at
5:30 p.m. at Auburn City Hall in the Council Chambers on May 28, 2014.
Substantive:
3. Site /Proposal Description. The applicants request a conditional use permit
for a communal residence The communal residence is located at 12428 SE 318 Way
housing up to seven (7) occupants. The communal residence is an existing single -
family residence with two (2) paved off - street parking spaces and two (2) garage
parking spaces. Current tenants own one (1) car total and are subject to the applicants'
"House Rules ", which prohibit excessive noise, alcohol consumption, parties, and
behavior harmful to others in the communal residence or neighborhood.
4. Characteristics of the Area. The proposed communal residence will be
located in the Rainier Ridge neighborhood, for which the Division I Final Plat was
recorded on September 24, 1980, and the Division II Final Plat was recorded on April
5, 1993. The Rainier Ridge neighborhood was developed exclusively as single - family
residences. There is one entrance to the subdivision located at 124th Ave SE, which
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borders the Green River Community College ( "GRCC "). The subject property is
located two residential lots from this entrance.
The quiet residential character of the neighborhood has changed over the years as the
Green River Community College has changed from a commuter school to a school in
need of student housing. In the 1990s the GRCC adopted an international student
program, attracting students from around the world. This program in turn increased the
demand for student housing and several properties in the Rainier Ridge neighborhood
were purchased and converted into group homes for the students. See Campbell letter,
Ex. 9. As a result of these conversions, Rainer Ridge residents experienced a
significant increase in noise, parties, parking, trash, poor driving and poorly maintained
properties. See verbal testimony of Hank Galmish, Jimmy Spade, Scott Griffin,
Olinger, Karl Yuhasz, Frank Sunderland; written comments, Ex. 9, by Manuel Vea,
Kitty Harrison, Frank and Julie Sunderland, Hank Galmish, Russ Campbell, Galen and
Ellen Hirschi.
The problems caused by student housing in areas surrounding GRCC prompted the
City Council to adopt Ordinance No. 6477 on September 3, 2013. Ordinance No. 6477
regulates "communal residences ", defined as a dwelling that is rented to a group of
unrelated individuals. Ordinance No. 6477 imposes numerous standards designed to
mitigate the impacts of communal residents, including requiring one parking stall per
tenant that owns a vehicle, minimum garbage service, yearly building inspections and a
designated property manager that is available 24 hours a day. Ordinance No. 6477
requires a conditional use permit for communal residences that house more than four
tenants.
5. Adverse Impacts. It cannot be determined that the proposal will not create adverse
impacts that exceed those allowed by the residential uses otherwise allowed in the R5
zoning district or the Rainier Ridge neighborhood. In point of fact, the preponderance
of evidence establishes that student communal residences in general adversely affect
neighboring properties by the generation of noise, parking, trash and disturbances of
the peace. However, the applicants have demonstrated that they are uniquely qualified
to mitigate those impacts. If the conditional use permit is limited to a three year
period, it can be concluded that under the applicants' personal supervision the proposed
communal residences will not create a significant adverse impact on the neighborhood.
Neighborhood testimony from numerous persons as identified in Finding of Fact No. 4
establishes that the proliferation of student housing in the Rainier Ridge neighborhood
as well as other GRCC neighborhoods has significantly and adversely affected
neighborhood character through loud parties, rowdy behavior, poor driving and
parking, drunken behavior and poor property maintenance. This behavior is what one
would reasonably expect from students who are experiencing the freedom from adult
supervision for the first time coupled with the transitory nature of their housing.
Threats of eviction and other penalties are not particularly effective for students
nearing the end of their yearly lease.
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The increase in the allowed number of students in the proposal from the four
authorized outright by Ordinance No. 6477 to the seven individuals proposed can be
reasonably expected to compound and exacerbate the problems associated with student
housing. Seven occupants is almost three times the average number of occupants per
dwelling in the City of Auburn.2 The uncontested testimony of several neighbors was
that there is strong financial incentive to create student housing in their neighborhood
and that the number of conversions to communal residences will continue at a high
rate. Consequently, if conditional use permits are authorized for communal residents
in the Rainier Ridge neighborhood for seven students as proposed by the applicant, this
will significantly alter the character of the neighborhood by increase in population
alone. Further, it is more likely than not that increases in the number of occupants per
communal residence will result in increases in the problems associated with student
housing, to wit noise, parties, poor property maintenance, and disruptive behavior.
Although there were plenty of testimonials on the unruly behavior of community
college students, the record was primarily anecdotal and lacking in hard numbers. It
would have been useful to know exactly how many homes in the Rainier Ridge
neighborhood have been converted to communal residences and how often parties and
other incidents have disrupted the peace. However, there was no evidence presented
disputing the impacts recited by the numerous neighborhood opponents. The applicant
did not at any time deny that student housing has disrupted the peace and aesthetic
appeal of the Rainier Ridge neighborhood. Staff also did not dispute that student
housing has adversely affected the neighborhood in the past. Indeed, the adoption of
Ordinance No. 6477 reveals that the student housing has caused problems that need to
be addressed.
Of course, Ordinance No. 6477 imposes numerous standards that are specifically
designed to mitigate the impacts created by student housing. Enhanced parking
standards, specific trash requirements and the availability of a property manager
probably will go a long way in reducing problems in homes with four or fewer
students. However, at this point the Ordinance No. 6477 standards are too new for any
historical assessment of effectiveness. Without such a track record one is left
speculating on a "more likely than not" basis as to whether the regulations will be able
to fully mitigate the problems caused by a proliferation of seven occupant communal
residences in the Rainier Ridge neighborhood. Given the new age of majority of the
students, the lack of in -house adult supervision, the difficulties in enforcing noise
standards and the lack of information on City resources to enforce, a "more likely than
2 The most current occupancy averages available as a matter of judicial notice are
found in the Auburn Comprehensive Plan. Chapter 1, Figure 1.1 identifies the
population for the City of Auburn in 2000 as 40,000. Page 1 -5 of the plan notes that
Auburn had 16,108 households in 2000. Consequently, the average number of
occupants per household in 2000 was approximately 2.5.
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not" assessment has to be that the standards probably will not be sufficient to prevent
adverse impacts. In point of fact, most reasonably intelligent persons would conclude
that the standards imposed by Ordinance No. 6477 will have little impact in preventing
a house with seven unsupervised 18 -22 year olds from engaging in loud and disruptive
behavior as their school year and the term of their lease runs out. Given the historical
evidence provided by the neighbors, it would be pure fiction to expect that no impacts
would occur if seven occupant communal residences are allowed to proliferate
throughout the Rainier Ridge neighborhood.
It must be understood that the findings of this decision are very fact specific and
limited to the Rainier Ridge neighborhood. The fact that the City Council has adopted
a conditional use process for communal residences housing more than four students
clearly indicates that the Council believes that more than four students will be
compatible in some areas. Large lots with significant buffering from adjacent uses or
communal residences in less residential areas may well be appropriate for a seven
occupant communal residence. In contrast, the aerial photographs and vicinity maps of
the record show that Rainier Ridge is entirely composed of single- family homes
closely packed together on small lots. A proliferation of communal residences in this
environment with almost three times the number of occupants of surrounding homes is
unlikely to co -exist without creating compatibility problems.
Although student communal residences in general pose a significant threat to the
Rainier Ridge neighborhood, that determination is not so clear cut for the communal
residence proposed by the applicant in particular. To the contrary, with the strict
conditions imposed by this decision the impacts of the proposal will be mitigated to
insignificant levels. For the reasons identified in the introduction of this decision, the
applicants are uniquely qualified to ensure order on their property due to their hands on
involvement in the lives of their students and the proximity of their residence to their
rental properties. These qualities provide for adult supervision that is likely lacking in
most other types of student communal residences. However, as further noted in the
introduction the applicants are proposing two communal residences and it is unknown
how many students they have worked with in the past. There is a reasonable chance
that noise and other disruptive incidents may still occur. Under the close supervision
of the applicants these types of incidents will likely be isolated. If limited to three
years of operation as conditioned by this decision, these isolated incidents are unlikely
to cumulatively result in significant adverse impacts to adjoining properties so long as
the applicants maintain that close supervision. The conditions of approval are designed
to ensure that the proposal can only move forward so long as the applicants maintain
their exemplary level of property management. The conditions include record keeping
requirements so that more precise data can be reviewed upon any reapplication in the
future.
It should be understood that it is expected that a new application for a conditional use
permit to take effect upon the expiration of this one will not be filed until after the end
of winter quarter, 2017. The purpose of the record keeping conditions of this decision
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is to accumulate data to make a more informed assessment of the potential impacts of
the proposed communal residence. Given the uncertainties of the applicants' proposal,
a proven track record is necessary for any further extensions of the proposed use. This
decision cannot legally mandate that the next application be filed after a specific date,
because such a condition would be construed as interfering with the applicants' ability
to vest their permit application. See West Main Associates v. City of Bellevue
106 Wash.2d 47 (1986). Suffice it to say that under the evidence produced for this
application, the applicant cannot get anything more approved than a three year permit.
Many project opponents asserted that approval of the permits would adversely affect
their property values, including a real estate agent. However, none of these comments
were supported by any comparable sales figures or anything else approaching a formal
real estate appraisal. Further, this testimony directly conflicted with testimony that the
neighborhood properties were in high demand by investors wishing to convert them to
communal residences. In short, there was no compelling evidence that property values
would be adversely affected.
6. Infrastructure. The proposal is served by adequate public services and
infrastructure. Staff have determined that the proposal will be served by adequate
public infrastructure and services and there is no evidence to the contrary. The fact that
the proposal will be within an existing home of a fully developed subdivision is
consistent with the staff s finding.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. Both ACC 14.03.030(G) and 18.64.020(B)
grant the Hearing Examiner with the authority to review and issue final decisions on
conditional use permits applications.
Substantive:
2. Zoning Designation. Residential, five dwelling units per acre (R5).
3. Review Criteria and Application. Table 18.07.020 requires a conditional
use permit for communal residences accommodating more than four unrelated
individuals in the R5 zone. The criteria for conditional use permits are governed by
ACC 1.8.64.040. Those review criteria are quoted below in italics and applied through
corresponding conclusions of law.
ACC 18.64.040(A): The use will have no more adverse effect on the health, safety or
comfort of persons living or working in the area and will be no more injurious,
economically or otherwise, to property or improvements in the surrounding area than
would any use generally permitted in the district.
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4. As determined in Finding of Fact No.5, as conditioned the proposal will not create
significant adverse impacts and there is no evidence to reasonably conclude that the
proposal will adversely affect property values. For these reasons the criterion is met.
ACC 18.64.040(B): The proposal is in accordance with the goals, policies and
objectives of the Comprehensive Plan.
5. As determined in the staff report, the analysis of which is adopted by this
reference, the proposal is in conformance with the goals, policies and objectives of the
comprehensive plan.
ACC 18.64.040(C): The proposal complies with all requirements of this title.
6. The most significant development standard for communal residences is ACC
18.31.130(F)(3), which requires that a communal residence with more than four
occupants "will not adversely affect the surrounding community ". As determined in
Finding of Fact No. 5, the proposal will not significantly affect the surrounding
community. There is nothing else in the record to suggest any inconsistencies with
any other provisions of Title 18 ACC.
ACC 18.64.040(D): The proposal can be constructed and maintained so as to be
harmonious and appropriate in design, character and appearance with the existing or
intended character of the general vicinity.
7. As determined in Finding of Fact No. 5, the proposal will not create any
significant impacts, so the proposed use will be harmonious and appropriate in
character with the surrounding neighborhood and vicinity. Since the proposal will
involve no exterior alterations to the residences, the proposal is also appropriate in
design and appearance with the surrounding neighborhood and vicinity.
ACC 18.64.040(E): The proposal will not adversely affect the public infrastructure.
8. As determined in Finding of Fact No. 6, the proposal is served by adequate
infrastructure. The criterion is met.
ACC 18.64.040(F): The proposal will not cause or create a public nuisance.
9. As determined in Finding of Fact No. 5, as conditioned the proposal will not
create any significant impacts so no nuisances are anticipated. The criterion is met.
DECISION
Based upon the application and Findings of Fact and Conclusions of Law, the
conditional use permit application is approved subject to the following conditions:
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1. The applicant shall mail a 24 hour complaint number to all residences within 300
feet of the communal residence.
2. By January 30 of each year, the applicant shall submit a yearly report for the
preceding year to the Planning and Development Department of the City of
Auburn. The report shall identify all complaints received for operation of the
communal residence with an explanation of how the complaint was resolved. The
yearly reports shall be updated to the date of application should the applicant
choose to apply for a conditional use permit to extend past the expiration date of
this permit (see Condition 6).
3. This conditional use permit approval is personal to the applicants and may not be
assigned to any other party.
4. The conditional use permit is only approved so long as the applicants continue to
reside in their existing residence or one of similar proximity to the proposed
communal residence.
5. To the extent consistent with landlord tenant laws, all of the applicants' leases shall
contain a provision that provides for eviction should the tenant fail to comply with
the house rules admitted as Exhibit 6.
6. This conditional use permit approval shall expire one month after the end of the
spring quarter for Green River Community College in 2017.
7. Prior to issuance of the initial business license and prior to annual renewal, vehicle
ownership affidavits and signed "House Rules" (or other equivalent noise mitigation
measures) shall be provided to the City. The purpose of this condition is to determine and
validate that the property manager or owner is establishing parameters that are designed to
mitigate impacts to neighbors by establishing rules that limit noise and other possible
public nuisances from developing. City staff is not reviewing these rules against landlord -
tenant laws or other statutes that the City does not have authority to enforce.
8. Prior to issuance of the initial business license, the Alteration Permit application (ALT14 -0105)
shall be reviewed for consistency with the International Property Maintenance Code and all
applicable sections of the ACC and shall be approved, issued, and the final inspection passed.
9. The Applicant shall apply for a City of Auburn business license within 14 days of the Hearing
Examiner decision for the Conditional Use Permit (CUP) and secure the business license within
30 days of the Hearing Examiner decision.
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10. The CUP shall be revoked, as consistent with the process regulated by applicable
landlord /tenant laws, in the event that the communal residence is issued (3) formal Notice
to Correct Violations, citations, or infractions within any (12) month period, whether for
public nuisances, inconsistency with the terms of CUP approval, inconsistency with the
terms of business license approval, or any other inconsistency with the ACC. Terms and
conditions of business license approval include, but are not limited to, the following:
a. Submittal and payment of the initial license application.
b. Payment of annual business license renewal no later than December 31st of each year.
c. Scheduling and completing an annual home inspection with the City of Auburn Building
Division. Given that a home inspection may require follow corrective actions, this
condition shall be satisfied if the first inspection is requested and completed. before
December 31st of a given year. It is understood that corrective actions and follow up
inspections may be required and that they may occur after December 31st.
d. Provision of adequate off street parking per ACC 18.31.130(A)(1). Parking vehicles of any
kind upon an unimproved surface is a violation per ACC 18.52.050.
e. Provision of sufficient garbage and recycling service. Service itself is not satisfactory.
There shall be adequate trash and recycling receptacles for the entire household.
f. Vegetation control, weed control, hedge and tree control, and lawn maintenance as
consistent with the applicable sections of the ACC.
11. Any modification to the SFR that alters the existing condition of the SFR, as it exists or is
permitted for on date of CUP approval, shall require a Building Permit application.
Additionally, any modification shall be subject to the Minor Adjustment and Major Adjustment
processes of ACC 18.64.035(C).
12. Any exterior alteration shall require elevation drawings that demonstrate that materials match
the exterior of the existing house.
13. Grocery carts shall not be allowed on the property.
14. Failure to comply with any conditions of approval or failure to identify all
complaints in the required yearly reports shall result in revocation of the
conditional use permit.
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Dated this 22nd day of June, 2014.
I'll 11 Ask Otbteck t
City of Auburn Hearing Examiner
Appeal Right and Valuation Notices
This decision is final subject to appeal to superior court as governed by Chapter 36.70C
RCW.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
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BEFORE THE HEARING EXAMINER FOR THE C
Phil Olbrechts, Hearing Examiner
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Re: Shao Xia Zhu and Gary Kiefer
CUP1.4 -0002
Conditional Use Permit
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND DECISION
INTRODUCTION
This application concerns a second communal residence proposed by the applicants.
The proposal is approved subject to the same conditions applicable to the first
communal residence (CUP14- 0001). Since the second proposed communal residence
is essentially the same in all pertinent characteristics as the first, most of the findings
and conclusions of the first decision will be adopted by reference.
The only significant difference between the hearings on the first and second communal
residence applications is the issue of whether the conditional use permit should only be
granted in exceptional circumstances. Several project opponents had the impression
that the conditional use process was only to be used for exceptional circumstances.
There is nothing in the communal residence regulations that remotely suggests that
conditional use permits are only to be issued in exceptional circumstances. However,
given this understanding by the public the examiner requested legislative history of the
communal residency regulations to determine the Council's understanding of when
conditional use permits would be approved. The recording of the August 12, 2013 City
Council Planning and Community Development Committee meeting' reveals that some
council members did understand the conditional use process to only provide an "out"
for unusual circumstances. Staff certainly did not construe the language as only
applying under exceptional circumstances, as they recommended approval in this case
without reference to any unusual conditions pertaining to the proposed residences.
There is an unfortunate disconnect between Council expectations in the conditional use
process and what the regulations actually require. In the absence of any ambiguity in
the regulations, the examiner is bound to follow the regulations regardless of what the
Council had intended. Failure to do so will result in invalidation of the decision by a
reviewing court and potential liability to the City. There is nothing in the conditional
use or communal residence standards that limit the issuance of conditional use criteria
to exceptional circumstances. As referenced in the prior decision (CUP14- 0001)
As referenced in the letter from Russ Campbell, Ex. 18, the portion of the meeting
most revealing on the Council's intent regarding the conditional use process was a
discussion occurring between 6:17 and 6:26.
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and asserted in the staff recommendation for approval, decisions on conditional use
permits are essentially legally barred from being based upon stereotyped behavior.
With these types of limitations, there will usually not be a strong legal basis for
denying a conditional use permit. This historical and current use of homes for student
housing in Rainier Ridge present a rare opportunity to document student housing
impacts in the Rainier Ridge neighborhood. Information generated from operation of
the Zhu homes and more specific documentation from the neighbors of problems
associated with other communal residences will put the City in a better position to
prohibit proposals that threaten the integrity and peace and enjoyment of living in the
Rainier Ridge development.
Of course, beyond developing better data the Council can also amend its regulations to
more narrowly limit the conditions under which more than four residents per
communal residence will be allowed. The communal residence regulations can specify
that conditional use permits should only be issued for unusual circumstances such as
large lot sizes or areas that are built out with primarily nonresidential uses. Some
Council comments suggested that an unusual circumstance would be an unusually large
house. If that's the focus, the conditional use process is probably not the best suited for
that type of consideration. Conditional use criteria are focused upon impacts to
adjoining neighbors. The size of a home is not directly related to those types of
impacts.
ORAL TESTIMONY
All members of the public who testified in CUP14 -0001 stated they wished to
incorporate that testimony into the hearing of this application as well. The testimony of
CUP14 -0001 is summarized in the decision on the application and is not repeated here.
Staff Report
Mr. Yao stated that according to code there is currently a 50sgft. minimum per
occupant. The subject residence does not currently meet the 150 ft 2 living area that is
required. Per the condition of approval and the current application that is still under
review, the occupant will have to take steps to make an alteration and it will have to
have approval. There are no occupants for this home that own any cars. There will be
house rules required for this home. There will be a property manager available 24/7. A
permit has been approved for alterations 14 — 0106. Based on previous findings and for
this specific house, the staff finds that it meets all criteria for conditional use permit. All
those criteria and conditions applicable to CPU14 -0001 are applicable to CPU14 -0002.
He noted that this includes affidavits of vehicle ownership, house rules, requirement in
applying for /holding business license within 30 days of Examiner's decision. This also
includes the condition that CUP can be revoked with over three formal notices in any 12
month period.
Public Comments
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Delee Baker stated that she hopes that whoever is making the decision will take into
consideration the hard - working people who have paid taxes in this neighborhood for a
long while and that they will be given more consideration than foreign exchange
students or people who are just going to school here. Additionally, the Examiner should
take into consideration that those students who do not live in on- campus housing do so
because they do not want the rules regulations and restrictions from those apartment.
Hank Galmish commented on the staff reports inclusion of comments that grocery carts
are not allowed on property. He noted that there are no grocery stores close and that the
students go to stores that are far away and bring the grocery carts to bring the things
home. He stated that you will not see the grocery carts on somebody's property, and
that they leave them on the street in the drainage ditches. This indicates that this
neighborhood is not designed for this student population and does not have the structure
to support this number of students.
Applicant
In regard to why the application was not filed before December, 31st, she stated that she
went to the city December 23 with her application. She did not have the information
that the city required and she found that she could not apply because she did not have
the documents it needed to be addressed. There were lots of emails back and forth as
they prepared all the necessary information. They tried to get it in before December
31St, but could not meet the deadline
Public Testimony.
Russ Campbell requested to submit documents regarding his comments from the prior
hearing. Mr. Campbell's comments were submitted as Exhibit 11. Mr. Campbell stated
that Mr. Yao describes this is a five bedroom house when it is actually a two- bedroom
house. He states that the living room is a walled off two - bedroom so there is a five
bedroom house with the kitchen and no living space. His problem is there were changes
made without permits and now the only reason the applicants are able to ask for seven
bedrooms is because of these unpermitted changes. He says the staff report
demonstrates what is possible or allowable, but he wants to know if we have to do what
is possible or if we have to do what is right. He stated that the public would like to have
faith in the Hearing Examiner as a reasonable man.
Jean Lix said that when they were putting together the rule of 4 unrelated individuals
for these track homes, it was their understanding that the CUP was put in is an
exception for large houses or acreage.
Russ Campbell stated that in the meetings when they were creating the rule of four for
unrelated occupants, that it was the city officials who led them to believe that the CUP
would be used for larger houses homes with acreage and would not apply to their type
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of subdivision with small track comes. He stated that this is why they feel everything
has been redesigned. They believed that four was reasonable and appropriate, but going
beyond 7 is a "cash cow ". He also noted that the houses where the students live become
a social dead zone. There is a blank spot in the neighborhood as nobody gets to know
the students.
Mr. Sunderland stated that you can predict how college students will acts although the
city says you it is not possible. All you need to do is look at the newspapers reports for
student housing areas throughout the city and you see the issues that occur. Insurance
companies do this all the time, they look at this age group, everybody's been to college
knows what happens.
Mr. Baker stated that Mr. Yao provided a list of all the potential complaints and that he
addressed them. Mr. Baker stated that they are not speculating, they know what the
students are capable because they have seen them do it. There are bad things happening
and this is not speculation, it is what is happening now.
Staff Rebuttal
Mr. Yao stated that the code as it stands addresses the possibility of obtaining
conditional use permits if there are more than four unrelated occupants. The behavior of
college students and the issue that whether homes are rented out to college students are
issues not currently addressed by the code. With regard to the comments that changes
were made to these homes by the property owners, ACC18.70 states that conditions
surrounding a variance cannot be done by the homeowner. However, ACC18.64
regarding the CUP does not contain the same criteria.
Applicant Rebuttal
With regard to the issue of four or five bedrooms in this house, the applicant stated that
they have been working with the inspector and will be taking down a wall so it will be
four bedrooms. She stated that the number of occupants may be up to seven, but
sometimes as few as two or three. She noted that they have never had a complaint
during the time that they have been renting to students. Whether there are four or
seven, it depends on responsible landlords. If you are irresponsible as a landlord, it
does not matter if there are even fewer than four renters. She does not believe house
values will drop.
Public Testimony
Mr. Sunderland stated that he had been woken up by their neighbors at 11:00 at night.
The previous summer they were having parties at midnight. He noted that they never
called the police or informed her and that they have been putting off confrontation. He
does not like having to call police on his neighbors.
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EXHIBITS
Exhibits 1 -10 identified at page 14 of the May 22, 2014 staff report were admitted at
hearing. The following documents were also admitted during the hearing:
Exhibit 11
Exhibit 12
Exhibit 13
Exhibit 14
Exhibit 15
Exhibit 16
Exhibit 17
Exhibit 18
Exhibit 19
Procedural:
Mr. Campbell's comments
Affidavit for the notice of rescheduling of hearing
Public comment letter from Ken Kier, May 22, 2014.
Public comment letter from Sara Gantz, May 23, 2014
Public comment letter from Sarah Wild, May 27, 2014
Staff powerpoint presentation
Legislative history of Ordinance No. 6477 (recordings of planning
commission, city council and council committees on communal
residence provisions and all agendas, minutes and staff reports
pertaining thereto).
June 6, 2014 letter from Russ Campbell
June 9, 2014 response from applicants.
FINDINGS OF FACT
1. Applicant. Shao Xia Zhu and Gary Kiefer.
2. Hearing. The Hearing Examiner conducted a hearing on the application at
5:30 p.m. at Auburn City Hall in the Council Chambers on May 28, 2014. The hearing
was left open through June 10, 2014 for the submission of legislative history on the
communal residence ordinance and comments pertaining to that history.
Substantive:
3. Site /Proposal Description. The applicants request a conditional use permit
for a communal residence The communal residence is located at 12728 SE 318 Way
housing up to seven (7) occupants. The communal residence is an existing single -
family residence with two (2) paved off - street parking spaces and two (2) garage
parking spaces. Current tenants own one (1) car total and are subject to the Applicant's
"House Rules ", which prohibit excessive noise, alcohol consumption, parties, and
behavior harmful to others in the communal residence or neighborhood.
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Findings of Fact No. 4 -6 of CUP14 -0001 are incorporated and adopted by his reference
as if set forth in full.
CONCLUSIONS OF LAW
Conclusions of Law No. 1 -9 of CUP14 -0001 are adopted and incorporated by this
reference as if set forth in full.
DECISION
Based upon the application and Findings of Fact and Conclusions of Law, the
conditional use permit application is approved subject to the following conditions:
1. The applicant shall mail a 24 hour complaint number to all residences within 300
feet of the communal residence.
2. By January 30 of each year, the applicant shall submit a yearly report for the
preceding year to the Planning and Development Department of the City of
Auburn. The report shall identify all complaints received for operation of the
communal residence with an explanation of how the complaint was resolved. The
yearly reports shall be updated to the date of application should the applicant
choose to apply for a conditional use permit to extend past the expiration date of
this permit (see Condition 6).
3. This conditional use permit approval is personal to the applicants and may not be
assigned to any other party.
4. The conditional use permit is only approved so long as the applicants continue to
reside in their existing residence or one of similar proximity to the proposed
communal residence.
5. To the extent consistent with landlord tenant laws, all of the applicants' leases shall
contain a provision that provides for eviction should the tenant fail to comply with
the house rules admitted as Exhibit 6.
6. This conditional use permit approval shall expire one month after the end of the
spring quarter for Green River Community College in 2017.
7. Prior to issuance of the initial business license and prior to annual renewal, vehicle
ownership affidavits and signed "House Rules" (or other equivalent noise mitigation
measures) shall be provided to the City. The purpose of this condition is to determine and
validate that the property manager or owner is establishing parameters that are designed to
Conditional Use
p. 6 Findings, Conclusions and Decision
P
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mitigate impacts to neighbors by establishing rules that limit noise and other possible
public nuisances from developing. City staff is not reviewing these rules against landlord -
tenant laws or other statutes that the City does not have authority to enforce.
8. Prior to issuance of the initial business license, the Alteration Permit application (ALT 14 -0106)
shall be reviewed for consistency with the International Property Maintenance Code and all
applicable sections of the ACC and shall be approved, issued, and the final inspection passed.
9. The Applicant shall apply for a City of Auburn business license within 14 days of the Hearing
Examiner decision for the Conditional Use Permit (CUP) and secure the business license within
30 days of the Hearing Examiner decision.
10. The CUP shall be revoked, as consistent with the process regulated by applicable
landlord /tenant laws, in the event that the communal residence is issued (3) formal Notice
to Correct Violations, citations, or infractions within any (12) month period, whether for
public nuisances, inconsistency with the terms of CUP approval, inconsistency with the
terms of business license approval, or any other inconsistency with the ACC. Terms and
conditions of business license approval include, but are not limited to, the following:
a. Submittal and payment of the initial license application.
b. Payment of annual business license renewal no later than December 31st of each year.
c. Scheduling and completing an annual home inspection with the City of Auburn Building
Division. Given that a home inspection may require follow corrective actions, this
condition shall be satisfied if the first inspection is requested and completed before
December 31st of a given year. It is understood that corrective actions and follow up
inspections may be required and that they may occur after December 31st.
d. Provision of adequate off street parking per ACC 18.31.130(A)(1). Parking vehicles of any
kind upon an unimproved surface is a violation per ACC 18.52.050.
e. Provision of sufficient garbage and recycling service. Service itself is not satisfactory.
There shall be adequate trash and recycling receptacles for the entire household.
f. Vegetation control, weed control, hedge and tree control, and lawn maintenance as
consistent with the applicable sections of the ACC.
11. Any modification to the SFR that alters the existing condition of the SFR, as it exists or is
permitted for on date of CUP approval, shall require a Building Permit application.
Conditional Use
P. 7 Findings, Conclusions and Decision
P
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Additionally, any modification shall be subject to the Minor Adjustment and Major Adjustment
processes of ACC 18.64.035(C).
12. Any exterior alteration shall require elevation drawings that demonstrate that materials match
the exterior of the existing house.
13. Grocery carts shall not be allowed on the property.
14. Failure to comply with any conditions of approval or failure to identify all
complaints in the required yearly reports shall result in revocation of the
conditional use permit.
Dated this 22nd day of June, 2014.
"Phil A breclusM,
City of Auburn Hearing Examiner
Appeal Right and Valuation Notices
This decision is final subject to appeal to superior court as governed by Chapter 36.70C
RCW.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Conditional Use
p. 8 Findings, Conclusions and Decision
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BEFORE THE HEARING EXAMINER FOR THE CITY OF AUBURN
Phil Olbrechts, Hearing Examiner
Re: Shao Xia Zhu and Gary Kiefer
CUP14 -0001 and CUP14 -0002
Conditional Use Permit
DECISION ON RECONSIDERATION
City staff have requested reconsideration of the above - captioned two applications to
make minor revisions to the conditions of approval. The conditions of approval are
identical to each decision and both applications involve the same applicant. For these
reasons the requests for reconsideration are consolidated into one decision document.
The requests are minor in substance and only serve to clarify deadlines, so no
additional public input is necessary and the requests are granted.
DECISION
Condition No. 6 of CUP14 -0001 and CUP14 -0002 is revised to provide as follows:
6. This conditional use permit approval shall expire on July 14, 2017.
Condition No. 6 of CUP14 -0001 and CUP14 -0002 is revised to provide as follows:
9. The Applicants shall apply for a City of Auburn business license within 14 days of the Hearing
Examiner decision for the Conditional Use Permit (CUP) and secure the business license
within 30 days of the Hearing Examiner decision. The date of the Hearing Examiner decision
shall be construed to be the date of issuance of the Hearing Examiner's final decision on
Requests for Reconsideration filed consistent with Auburn City Code (ACC) 2.46.150, if
applicable.
Dated this 30th day of June, 2014.
Conditional Use
. Ofl broch.t.c
City of Auburn Hearing Examiner
p. 1 Findings, Conclusions and Decision
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Appeal Right and Valuation Notices
This decision is final subject to appeal to superior court as governed by Chapter 36.70C
RCW.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Conditional Use
p. 2 Findings, Conclusions and Decision
Pa
e 104 of 117
Exhibit B
(Jurisdiction Comparison)
D I . B Page 105 of 117
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Page 106 of 117
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• Incorporate elements from City of Boston's website into Auburn's
website update when we implement the program
• No parking in the required front or side yard that is unpaved
• Landlord must provide trash and recycling bins and posting
instructions regarding the pick -up schedules
• Submission of floor plans and any proposed modifications
• Providing a 24 -hour contact person in the state to resolve
complaints
• Maximum of 4 students per dwelling unit providing compliance
with the building code for minimum square footage.
• Extensive website with information specifically outlined for:
o Landlords
o Tenants — specific information for students
o Frequently Asked Questions
o Good Neighbor Handbook
o http:/ /www.citvofboston.gov /dnd /bncc/
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Agenda Subject:
Comprehensive Plan Update Overview
Department: Attachments:
Community Development & Memorandum
Public Works Flow Chart
AGENDA BILL APPROVAL FORM
Date:
July 7, 2014
Budget Impact:
$0
Administrative Recommendation:
For discussion only.
Background Summary:
Please see the attached memorandum.
Reviewed by Council Committees:
Other: Planning
Councilmember: Holman Staff: Chamberlain
Meeting Date: July 14, 2014 Item Number: DI.0
AUBURN * MORE THAN YOU IMAGINED Page 108 of 117
CITY OF
AUBURN
* WASHINGTON
MEMORANDUM
TO: Councilmember John Holman, Chair, Planning and Community Development
Committee
Councilmember Largo Wales, Vice Chair, Planning and Community Development
Committee
Councilmember Yolanda Trout, Planning and Community Development Committee
CC: Jeff Tate, Assistant Director, Community Development Services
FROM: Elizabeth Chamberlain, AICP, Planning and Design Services Manager
DATE: July 10, 2014
RE: Comprehensive Plan Overview /Comprehensive Plan Update 101
Overview
RCW 36.70A contains provisions pertaining to compliance with the Growth Management Act
including preparation and update of a Comprehensive Plan that must plan for a minimum of 20
years of growth. Every county and city in the state is required to conduct a periodic update,
though the obligation varies depending on whether the jurisdiction is fully or partially planning.
Per state law, fully planning counties and cities must complete the periodic update for their
entire comprehensive plan and development regulations. "Fully planning" means that a city or
county must meet all GMA requirements, including adoption of a comprehensive plan and a
complete set of development regulations implementing the plan; this also includes the critical
areas ordinance. The City of Auburn is a fully planning city as are other cities in King County.
Many communities amend their comprehensive plan annually and regularly adopt changes to
the development regulations that implement them. In addition to these regular amendments,
GMA requires counties and cities to periodically conduct a thorough review of their plan and
regulations to bring them up to date with any relevant changes in the GMA and to respond to
changes in land use and population growth. This mandatory "periodic update" takes place for
most communities at least once every eight years and required to be completed June 30, 2015.
The "periodic" updating of a Comprehensive Plan is a significant work effort involving the City
Council, City Administration, the Planning Commission, community stakeholders, residents, and
businesses. GMA imposes a significant expectation of public involvement.
RCW 36.70A outlines what elements of the Comprehensive Plan are required. A City also has
the choice of whether to include optional elements in the comprehensive plan related to physical
development within the city. Here is outline of the required elements and the optional elements
Auburn has included:
DI.0
Page 11
Page 109 of 117
Required Elements
Optional Elements
Land Use
• Land Use Designations
• Density Ranges
• Population and Employment Growth
Projections
Historic Preservation
Housing
• Inventory
• Affordable Housing
• Accommodate Growth
Urban Design
Capital Facilities
• Water, Sewer, and Storm
• Public buildings /other facilities
• School Districts
Transportation
• Motorized
• Non - motorized
• Financial Plan
• Transit
• Level of Service
• Concurrency
Economic Development
• Goals for Economic Development
Parks and Recreation
• Parks facilities — existing and new
• Level of Service standards
• Arts
Utilities
• Private Utilities
Attachment:
Flow Chart State and Regional Requirements /Influences on the Comprehensive Plan Update
Process
For the Commission's information, links to the Countywide Planning Policies and Puget Sound
Regional Council Vision 2040.
http://www.psrc.orq/qrowth/vision2040/pub/vision2040-document/
King County CPPs http: / /www.kingcounty.gov /property /permits /codes /growth /GMPC /CPPs.aspx
Pierce County CPPs http: / /www.co. pierce .wa.us /index.aspx ?nid =1781 (link at bottom of page)
DI.0
Page 110 of 117
Page 12
How State Requirements and Regional Documents Relate to Auburn's
Comprehensive Plan Update
State Requirements
Revised Code of Washington
(RCW) 36.70A
Required Chapters /Elements
of a Comprehensive Plan
RCW 36.70A.070:
• Land Use
• Housing
• Capital Facilities Plan
• Utilities Element
• Transportation
• Economic Development
• Parks and Recreation
Optional Elements /Chapters in
Auburn's Comprehensive Plan
• Historic Preservation
• Urban Design
Countywide Planning Policies
Required RCW 36.70A.210 -215
Population Projections Required
RCW 43.62.035 and RCW
36.70A.110
July,C2014
Puget Sound Regional Council (aka
Metropolitan Planning Organization):
• 4- county regional organization
• Primary function — distribution of
federal transportation funding
• Certify transportation elements of
comprehensive plans —
(connection with federal
transportation funding)
• Vision 2040 adopted in 2008 — 4
county regional growth strategy;
Algona designated a small city
• Transportation 2040 — 4 county
regional transportation strategy,
regional Transportation
Improvement Program, and
funding strategy
King County and Pierce County
Countywide Planning Policies (CPPs)
— Updated 2012 and 2013 respectively
to be consistent with Puget Sound
Regional Council's Vision 2040.
Main Topic areas:
• Population and Employment
Targets Established based on
regional geography — Auburn a
core city
• Annexation policies
• Urban Growth Area Expansion
policies
• Regional Transportation policies
• CPPs consistent with Vision 2040
Auburn's Comprehensive Plan and
Major Update
• Consistent with King County and
Pierce County CPPs
• Consistent with Vision 2040
• Not conflict with King County's or
Pierce County's Comprehensive
Plan
• Coordinate with adjacent
jurisdictions so plans are not
inconsistent — Algona, Kent,
Federal Way
Page 111 of 117
DI.E
Ate
\ 'A S ll C N G TO (
AGENDA BILL APPROVAL FORM
Agenda Subject: Date:
PCDC Status Matrix July 7, 2014
Department: Attachments: Budget Impact:
Community Development & PCDC Status Matrix $0
Public Works
Administrative Recommendation:
For discussion only.
Background Summary:
See attached PCDC Status Matrix.
Reviewed by Council Committees:
Other: Planning
Councilmember: Holman Staff: Tate
Meeting Date: July 14, 2014 Item Number: DI.E
AUBURN * MORE THAN YOU IMAGINED Page 112 of 117
PCDC Work Plan Matrix — July 14, 2014
LAND USE CODES /POLICIES
Comments
Planning Department staff went before the Planning Commission on 1 -22 -14
and 3 -4 -14. The code amendment process is on- going. Once Planning
Commission has made their recommendation that will be presented to PCDC
and staff anticipates that taking place August 2014, most likely at the 2nd
meeting.
Staff to develop a work plan as part of the overall comprehensive plan updates.
Staff will provide a plat and short plat training session during the June 23rd
PCDC meeting. Staff will then return to PCDC on July 28th with an overview of
potential draft code amendments.
Staff will be moving forward with a proposed code amendment related to floor
area ratio within the Downtown Urban Center (DUC) zone to the Planning
Commission 2nd meeting in July or 1st meeting in August.
Staff will formulate a strategy action plan and bring back to Committee as part of
the overall comprehensive plan update.
Code concepts and ideas to be developed based on Council retreat direction
and linked to the overall comprehensive plan update.
Funding options and ideas to construct and install the remaining 6 pedestrian
kiosks downtown. Staff is moving forward with the project ideas presented at
the 3 -7 -14 PCDC meeting and will look for other funding opportunities with the
City Council for the upcoming 2015 -2016 two year budget cycle.
PARKS, ARTS & RECREATION
Discussion of the Auburn Avenue Theater.
Staff /Council
Lead
0
C
o
Chamberlain
RI
i-
Chamberlain
Chamberlain
Chamberlain
Chamberlain
Faber
Next on PCD
August
N
N
_
=
August 2014
-
N
N
0
CO
1-
January
Topic /Issue
Code Amendments
• Marijuana /Cannabis
• Healthcare District Overlay
• Short Plat Threshold
• FAR (Floor Area Ratio) with
DUC zone
Historic Preservation Strategies
Strategy Areas for
Population /Business /Employment
Pedestrian Kiosks
Theater Lease
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O
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Please Note:
O
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Page 113 of 117
Comments
COMMUNITY SERVICES DIVISION
PCDC requested an update at a future meeting; briefing to be scheduled.
Updates provided as needed or requested.
Community Services to give annual updates.
BOARDS, COMMISSIONS & HEARING EXAMINER
On 12/09/13 the Arts Commission provided a presentation updating PCDC of
their 2013 plans and activities and will return for an update in 2014.
The Human Services Committee provided a 2013 update before PCDC on
01- 27 -14. The Human Services Committee is scheduled to present a 2014
update in 12 -2014.
The Hearing Examiner attended PCDC to present an annual briefing on
11/12/13. The next briefing is scheduled for fall of 2014.
Annual update occurred 7 -22 -13 with PCDC; the next update will take place 7-
28 -2014.
The Committee held a Joint Meeting with the Planning Commission on 3/18/14.
The next joint meeting will be in September, 2014.
Annual update occurred on 5 -28 -13 with PCDC.
Annual update occurred 10 -28 -13 with PCDC.
COMPREHENSIVE PLAN /CAPITAL FACILITIES PLANNING (Long Range Planning)
Major update of the comprehensive plan for the next 20 years +;
Staff /Council
Lead
Hursh
Hursh
Hursh
Faber
Hursh
C
O
X_
0
Faber
Chamberlain
Thordarson
Faber
Chamberlain
Next on PCD
0
Co
1—
Ongoing
0
co
1—
December
2014
December
2014
Fall 2014
July 28
September
2014
Summer 2014
Fall 2014
0
co
H
Topic /Issue
Building Community
Human Services Center
Unify communities through
centralized communication and
outreach
Arts Commission
Human Services Committee
Hearing Examiner
Parks & Recreation Board
Planning Commission
Transportation, Transit, and Trails
Urban Tree Board
Major Comprehensive Plan
Update
(O
O
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Page 114 of 117
Comments
Community visioning meetings were held the week of March 11 -13 and March
18 -20 with grocery store intercept events held April 7 -9. Report back to the
community of the vision themes was held May 21St. Next step a draft report to
be presented at the June 30th COW meeting.
Update to the three utility comprehensive plans as the City updates its
comprehensive plan. Joint PCDC and PWC meeting held on June 2nd to review
the draft policies for the three utility comprehensive plans.
Comprehensive Transportation Plan Update in concert with the comprehensive
plan update project.
Resolution No. 5075, the 2015 -2020 Transportation Improvement Program
(TIP) was approved on 6 -16 -14 by City Council.
Update annually as needed as part of the comprehensive plan update process.
City Council adopted Ordinance No. 6489, the 2013 Comprehensive Plan
Amendments at the 12 -2 -13 City Council meeting.
Committee discussion on impact fees and calculations.
UPDATES AND BRIEFINGS
An Economic Development update was provided to the Committee on 4- 14 -14,
future briefings will be provided as needed.
Staff /Council
Lead
Chamberlain
Public Works
L
as
LL
L
as
LL
Finance
Tate/
Chamberlain
Mayor
Next on PCD
0
0
0
M0
LW
0
M0
LW
M0
LWL
I-
Topic /Issue
• Visioning for the major update
• Water, Sewer, Storm
Scope: Update to the Water,
Sewer, and Storm
Comprehensive Plans in concert
with the Comprehensive Plan
Update project.
• Transportation Planning
Scope: Long -term planning for
the interrelationship between
land use and transportation
infrastructure.
Transportation Improvement
Program (TIP)
Scope: 6 -year TIP that is
updated annually identifying
transportation related capital
projects
Capital Facilities Plan
Scope: 6 -year capital facilities
plan for the City's public
facilities /utilities
Fee discussions
Economic Development Updates
N-
OD
N-
0)
N-
0
N
Page 115 of 117
Comments
Staff to stay in touch with Planning Dept. and keep coordination &
communication open with Tribe. The City met with the Muckleshoot Tribe on
11- 19 -13.
The Auburn Downtown Association provided an update at the 04 -14 -14 meeting
and will return in the spring of 2015 for their annual update.
City tracking potential station stops expansion study by Amtrak. Public Works
staff provided an update at the Committee's 3 -25 -13 meeting, the WSDOT
station stop expansion feasibility study is expected to be complete in June,
2013. Council passed Resolution No. 4949 supporting an Amtrak stop in
Auburn.
LGCC to provide a briefing as needed.
Stream and wetland restoration activities are ongoing.
CRS: Staff is evaluating the 2013 changes to the CRS program requirements
and developing policy options for the Committee to consider for City's future
approach to CRS participation. FEMA on -site audit of the City's CRS Program
is scheduled for November 6, 2014.
NFIP -ESA: City has received notice that FEMA's model floodplain ordinance
has been revised and new City regulations must be adopted and submitted to
FEMA. Staff is preparing amendments to the City's regulations to meet this
requirement.
Staff /Council
Lead
a)
Ls
I—
Chamberlain
Mayor Backus
Wagner
Andersen
c
a)
L
a)
c
Q
Next on PCD
CO
L
I—
Spring
2015
CO
L
CO
L
Spring 2015
0
CO
LL
r
Topic /Issue
Muckleshoot Tribe
The ADA
Amtrak
Les Gove Community Campus
Auburn Environmental Park
Floodplain programs — NFIP and
CRS
N
N
N co
N
N
co
Page 116 of 117
Comments
On 4 -14 -2014 staff provided an update of City environmental restoration
projects planned and in progress for 2014, and will return in the Spring of 2015
for an update.
CP1016: Fenster Phase 2 Levee Setback - Revised preliminary design has
been approved by the Washington State Salmon Recovery Funding Board
(SRFB). Project proceeding to final design and construction.
CP0746: Mill Creek Wetland 5K Restoration - Staff is working with Army Corps
to complete 95 %- design and prepare draft Project Partnership Agreement
(PPA) for Committee review. On April 7, 2014, the City was notified that it has
been selected to receive an additional $532,000 in state floodplain management
grant funds for this project.
CP1315: City Wetland Mitigation — Design and construction of compensatory
wetland mitigation in the Auburn Environmental Park is ongoing.
Resolution No. 5031, the Comprehensive Downtown Parking Management Plan
was adopted by City Council on 2 -3 -14. The parking permit program will be
blended into the CDPMP. Staff will provide monthly briefings on the
development and implementation of parking management strategies.
Ordinance No. 6477 was adopted by City council on 9 -3 -13. Staff provided an
update at the 6/09/14 meeting. The City Council passed a one -year moratorium
on 6 -16 -14 to look at the regulations that were adopted back in September.
Now that the new regulations have been implements for about nine months, the
City is evaluating whether additional code modifications are needed.
Staff /Council
Lead
c
a)
i2
L
a)
c
Q
Chamberlain/
Yao
Chamberlain/
Tate
Next on PCD
c
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r
Topic /Issue
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Downtown Parking
Management Plan
Communal Residences
N
OD
N
0)
N
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