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2008.07.22 CC Agenda Packet AGENDA Edmonds City Council Council Chambers, Public Safety Complex 250 5th Ave. North, Edmonds ______________________________________________________________ July 22, 2008 6:45 p.m. - Executive Session Regarding Labor Negotiations. 7:00 p.m. - Call to Order and Flag Salute 1. Approval of Agenda 2. Approval of Consent Agenda Items A. Roll Call B. AM-1682 Approval of City Council Meeting Minutes of July 15, 2008. C. AM-1680 Approval of claim checks #105599 through #105681 for July 17, 2008 in the amount of $155,046.93. Approval of payroll direct deposit and checks #46835 through #46955 for the period of July 1, 2008 through July 15, 2008 in the amount of $858,652.39. D. AM-1675 Acknowledge receipt of Claims for Damages from Haines Point Homeowners' Association (amount undetermined), and William Stanton ($1,776.36). E. AM-1672 Proclamation in honor of the 100th anniversary of Edmonds Masonic Lodge No. 165. F. AM-1678 Report on bids opened July 8, 2008 for the Old Woodway Elementary School Park and Regional Infiltration System and award of contract to Premium Construction Group, Inc. This consent agenda item was considered by the Council on July 15, 2008. G. AM-1681 Ordinance amending the Official Street Map authorizing the Development Services Director to make changes (reduce certain planned line right of way on 203rd Street SW from thirty to fifteen feet in width). This consent agenda item was considered by the Council on July 1, 2008. 3. (5 Minutes)Public Service Announcements 4. AM-1667 (45 Minutes) Public Hearing and First Reading: An ordinance of the City of Edmonds, Washington granting a nonexclusive franchise to Verizon Northwest, Inc. to construct, maintain, operate and repair a cable system to provide cable services in, across, over, along under, upon, through and below the public rights-of-way of the City of Edmonds; providing for severability and establishing an effective date. 5. AM-1674 (60 Minutes) Public Hearing on the Planning Board recommendation to deny the request by James Underhill to amend the Comprehensive Plan designation for properties along a portion of 215th Street SW and east of 76th Avenue West from “Mixed Use Commercial” to “Single Family Urban 1” (File AMD-2007-14). 6. AM-1679 Packet Page 1 of 244 6. AM-1679 (30 Minutes) Public Hearing on the proposed vacation of the unopened alley right-of-way located between 8th Avenue North and 9th Avenue North, north of Daley Street. 7.Audience Comments (3 minute limit per person)* *Regarding matters not listed on the Agenda as Closed Record Review or as Public Hearings. 8. AM-1684 (5 Minutes) Proposed interim zoning ordinance amending the provisions of Chapter 16.43 BD (Downtown Business) zones. 9. (15 Minutes)Council reports on outside committee/board meetings. 10. (5 Minutes)Mayor's Comments 11. (15 Minutes)Council Comments ADJOURN Packet Page 2 of 244 AM-1682 2.B. Draft July 15, 2008 City Council Minutes Edmonds City Council Meeting Date:07/22/2008 Submitted By:Sandy Chase Time:Consent Department:City Clerk's Office Type:Action Review Committee: Action: Information Subject Title Approval of City Council Meeting Minutes of July 15, 2008. Recommendation from Mayor and Staff It is recommended that the City Council review and approve the draft minutes. Previous Council Action N/A Narrative Attached is a copy of the draft minutes. Fiscal Impact Attachments Link: 07-15-08 Draft City Council Minutes Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/17/2008 11:04 AM APRV 2 Mayor Gary Haakenson 07/17/2008 11:27 AM APRV 3 Final Approval Sandy Chase 07/17/2008 11:28 AM APRV Form Started By: Sandy Chase Started On: 07/17/2008 11:02 AM Final Approval Date: 07/17/2008 Packet Page 3 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 1 EDMONDS CITY COUNCIL DRAFT MINUTES July 15, 2008 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Michael Plunkett, Council President Peggy Pritchard Olson, Councilmember Steve Bernheim, Councilmember D. J. Wilson, Councilmember Deanna Dawson, Councilmember Dave Orvis, Councilmember Ron Wambolt, Councilmember STAFF PRESENT Tom Tomberg, Fire Chief Al Compaan, Police Chief Duane Bowman, Development Serv. Director Stephen Clifton, Community Services Director Brian McIntosh, Parks & Recreation Director Noel Miller, Public Works Director Rob Chave, Planning Manager Mike Thies, Code Enforcement Officer Rich Lindsey, Park Maintenance Supervisor Mike Clugston, Planner Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder 1. APPROVAL OF AGENDA COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER OLSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS Councilmember Wilson requested Item F be removed from the Consent Agenda and Council President Plunkett requested Item G be removed. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER WILSON, TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF JULY 1, 2008. C. APPROVAL OF CLAIM CHECKS #105274 THROUGH #105455 FOR JULY 3, 2008 IN THE AMOUNT OF $459,270.19, AND #105456 THROUGH #105598 FOR JULY 10, 2008 IN THE AMOUNT OF $364,283.89. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #46733 THROUGH #46834 FOR THE PERIOD OF JUNE 16 THROUGH JUNE 30, 2008 IN THE AMOUNT OF $1,006,599.29. D. COMMUNITY SERVICES AND ECONOMIC DEVELOPMENT QUARTERLY REPORT – JULY, 2008. E. REAPPOINTMENT OF EDMONDS PUBLIC FACILITIES DISTRICT BOARD MEMBER. Packet Page 4 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 2 H. SUBSTITUTE HOUSE BILL 1756 ANNUAL COMPLIANCE REPORT. I. AUTHORIZATION FOR MAYOR TO SIGN THE SUPPLEMENTAL AGREEMENT WITH THE GREATER EDMONDS CHAMBER OF COMMERCE FOR HOT AUTUMN NITES. ITEM F: LIST OF EDMONDS BUSINESSES APPLYING FOR RENEWAL OF THEIR WASHINGTON STATE LIQUOR LICENSES, APRIL - JUNE 2008. Councilmember Wilson reported he received correspondence from citizens concerned with the issuance of a liquor license to a restaurant in Five Corners and asked if any of the licensees were operating at Five Corners. Mayor Haakenson identified the restaurant as The Province, Inc., doing business as Five Spice Bistro and their previous address was 201 5th Avenue South. He noted it was not uncommon for a business to list their current address when they complete the application; the address has been changed with the Washington State Liquor Control Board (WSLCB) to the Five Corners address. Councilmember Wilson suggested scheduling a public hearing or allowing public comment on this item to provide residents of Five Corners an opportunity to express their concerns regarding a full-service lounge in their neighborhood. Councilmember Dawson inquired whether Councilmember Wilson’s intent was to allow public comment tonight or schedule it for another meeting, noting it would be appropriate to also allow the applicant to comment. Councilmember Wilson suggested approving the remaining businesses and scheduling a date for public comment in the future. Councilmember Bernheim asked if this agenda item was issuance of the liquor license. Mayor Haakenson responded the City had no control over whether a business obtained a liquor license. City Attorney Scott Snyder advised the City had no role in the denial of a liquor license and it was his understanding that the extent of the City’s authority was to comment on liquor license applications. He offered to confirm that before scheduling an opportunity for public comment. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER DAWSON, FOR APPROVAL OF THE REMAINDER OF THE LIST OF EDMONDS BUSINESSES APPLYING FOR RENEWAL OF THEIR WASHINGTON STATE LIQUOR LICENSES, APRIL - JUNE 2008. MOTION CARRIED UNANIMOUSLY. Councilmember Wilson requested the Council President schedule a time for public comment to allow the neighbors of Five Corners to speak to the issue. Mayor Haakenson explained the WSLCB sends liquor license applications to the City for comment, particularly the Police Department. On occasion the City has provided comment such as a business that over-serves. It was his understanding the Five Spice Bistro had submitted an application to open a restaurant at Five Corners and this was a normal course of action. Mr. Snyder explained typically the Mayor and staff conducted an investigation and make recommendation to the Council to affirm the recommendation or set the matter for public hearing. He explained once the City receives notice from the State, the City was required to respond within ten days. If the Council wanted to hold a public hearing, the City needed to notify the WSLCB, ask for an extension and schedule a public hearing. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO SET A PUBLIC HEARING REGARDING THE LIQUOR LICENSE FOR PROVINCE, INC., DBA FIVE SPICE BISTRO, SUBJECT TO THE CITY CLERK AND THE COUNCIL PRESIDENT SCHEDULING IT ON THE AGENDA AT AN APPROPRIATE TIME. MOTION CARRIED UNANIMOUSLY. Packet Page 5 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 3 ITEM G: APPROVAL OF FINDINGS OF FACT RELATED TO THE PUBLIC HEARING HELD ON JULY 1, 2008 ON THE PLANNING BOARD RECOMMENDATION TO DENY THE REQUEST BY ZAMMIT/HBA ARCHITECTS TO AMEND THE COMPREHENSIVE PLAN FROM “SINGLE FAMILY – RESOURCE” TO “MULTIPLE FAMILY – HIGH DENSITY.” THE SITE IS LOCATED AT 1030 GRANDVIEW. Council President Plunkett advised he would abstain from the vote as he was absent from this quasi judicial hearing. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF ITEM G. Councilmember Dawson clarified it was a legislative matter, not quasi judicial, but it was appropriate for Council President Plunkett to abstain if he was not comfortable voting due to his absence. MOTION CARRIED (6-0-1), COUNCIL PRESIDENT PLUNKETT ABSTAINED. 3. PUBLIC SERVICE ANNOUNCEMENTS Council President Plunkett explained this was a new item as a result of organizations requesting time on the agenda to make a presentation. He clarified this was an opportunity for any non-political organization to make a public service announcement. Bill Vance, Greater Edmonds Chamber of Commerce, reported the Taste of Edmonds includes three stages for entertainment, a kids area with rides, arts and crafts, food, beverages, commercial areas, artists—all day fun. He described the economic impact of the Taste which brings tens of thousands of people into the City and provides funding that allows the Chamber to sponsor over $20,000 in programs and services from a variety of community service organizations. He recognized the incredible group of over 200 volunteers who put on the Taste event, remarking the Taste was one of the top five festivals in the Northwest. He invited the City Council to be judges at the Taste-Off and urged the public to come to the Taste of Edmonds on August 8, 9 & 10. Free shuttle service is available from Edmonds-Woodway High School, handicapped parking is available, and admission is $3 for adults, children 12 and under are free. More information regarding the event was available at Edmondswa.com or by calling the Chamber at 425-776-6711. 4. ADOPT-A-DOG Council President Plunkett commented this was another new item that had been tried with a great deal of success by other municipalities. Charles Greenberg explained in an effort to reduce the scope of the problem of too many dogs and too few homes which often leads to their being euthanatized, he approached the Council about presenting dogs at Council meetings after reading a magazine article that indicated other municipalities had experienced a 100% adoption rate. He presented 10-year old Comet and described his qualities. He advised many of the dogs came from olddoghaven.org. He provided his phone number 425-774-0138 and Council President Plunkett’s phone number 425-776-1119 for contact. Bill Vance announced he had adopted Comet. 5. CONTINUED PUBLIC HEARING ON PROPOSED AMENDMENTS TO EDMONDS CITY CODE TITLE 6 REGARDING PROPERTY NUISANCES Development Services Director Duane Bowman recalled, following the June 3 public hearing, the Council requested the public hearing be continued to July 15 to allow additional public testimony. He explained the Planning Board initially began work on the performance standards found in Edmonds Community Development Packet Page 6 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 4 Code (ECDC) Chapter 17.60 and concluded with the assistance of the City Attorney that some of the property performance standards were actually nuisance issues that should be in the Edmonds Municipal Code (EMC) and that some of the provisions in Title 6 of the EMC needed to be updated. He advised the originally proposed draft ordinance was contained in the Council packet as Exhibit 1. Since the June 3 public hearing, City Attorney Scott Snyder drafted amendments to address the primary concerns, which were contained in the Council packet as Exhibit 2. Both ordinances have been posted on the City’s website. He referred to an article in the Edmonds Beacon that indicated the City planned to ban RVs as part of its nuisance ordinance, assuring there were no plans to ban RVs. He advised the Planning Board was discussing, as part of property performance standards, the number of vehicles that could be stored on a property and where they could be parked. He suggested members of the public interested in RVs attend the Planning Board’s continued public hearing on Wednesday, July 23 at 7:00 p.m. He emphasized the Council was not considering RVs tonight except if they were junk vehicles. Mr. Bowman explained the purpose of the amendments was to 1) consolidate the nuisance regulations into one location, the EMC, 2) clean up antiquated code in the EMC, 3) the nuisance regulations are part of the City’s broad police powers and should be in the EMC and not the ECDC, and 4) the proposed regulations cover the type of frequent complaints received by the City’s Code Enforcement Officer. He assured the amendments did not regulate RVs, boats, cars and trailers, except if they were junk vehicles. He provided several photographs illustrating debris in a yard, a dilapidated house, blackberry bushes, numerous vehicles parked in a yard, material stored in a carport, material covered with a tarp, old tires enclosed in plastic and the materials in the carport remedied via wire fencing around the carport. He advised Mr. Snyder’s suggested revisions establishes classes of nuisances, including aesthetic nuisances, health and safety nuisances, garbage, recycling and compost facilities, and a separate section for junk vehicles. Mr. Bowman explained staff was seeking direction from the Council that would be used to redraft the ordinance. He commented much of the language was taken from other cities’ ordinances; for example, Mountlake Terrace has a very good nuisance ordinance and they have made a concerted effort to clean up their community via very aggressive enforcement action on property nuisances. Staff recommends, after taking public testimony, the Council direct the City Attorney to prepare the necessary ordinance implementing the City Council's decisions regarding the nuisance ordinance. He urged the Council to inform staff what items they wanted to regulate; any items the Council did not want to regulate, when citizens filed complaints, staff would simply inform them the City did not enforce it. Mr. Snyder commented after listening to comments at the public hearing he realized one of the difficulties with including all nuisances in one section was there were different issues with different nuisances. Staff determined a better approach would be to group like items together and seek direction from the Council whether those were issues they wanted to relate. He noted one man’s treasure was another man’s trash; many communities feel maintenance can contribute to neighborhood blight and there was statistical information that littering and blight, similar to graffiti, have a tendency to spread and affect property values in a community. He referred to Exhibit 2, Section 16.20, that grouped things that could have negative impact on property values based on what they look like. He referred to Section 16.20.041.f which provided an exception for aesthetic nuisances that were wholly enclosed or behind a fence. He noted this may not be effective in areas where the topography allowed neighbors to see into each other’s yards but would address the majority of instances. Mr. Snyder referred to Section 16.20.042 in Exhibit 2 that addressed health and safety nuisances, noting some things even if enclosed by a fence were still a health issue. Subsection A deals with vegetation, subsection B with attractive nuisances to children, subsection C with breeding grounds for vermin or insects, and subsection D with other hazardous substances or materials. He noted the only addition was in subsection D.2 regarding unstable embankments because when the State changed from the Uniform Building Code to the International Building Code, it did not adopt the provisions regarding unstable fill or embankments. Packet Page 7 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 5 Mr. Snyder explained garbage, recycling and compost facilities were also placed in a separate section, 16.20.043, acknowledging this may be an area the City Council chooses not to regulate. As more people recycle and compost, many communities regulate the length of time materials can remain at the curb and how they are stored. He noted references to motor vehicles had been deleted from the proposed ordinance in Exhibit 2 as the Planning Board would be considering that separately as part of performance standards. He noted there was previously a reference to dangerous vegetation. Although many common ornamental plantings can be poisonous to children and animals, he narrowed the focus to trees, defining them as in the clearing ordinance 6 inch caliper and specifying in order to be dangerous they must be a danger to the traveling public on a public right-of-way or street. Mayor Haakenson asked Mr. Snyder to provide a definition of a junk vehicle. Mr. Snyder advised the provisions parallel State law, were fairly standard community-to-community, and adopted by reference in Section 16.20.060. Mr. Bowman referred to the definition of junk vehicle in Exhibit 1, a vehicle meeting any three of the following criteria: 1) is three years old or older; 2) is extensively damaged, including but not limited to any of the following conditions: a broken or missing windshield or missing wheels, tires, motor or transmission; 3) is apparently inoperable; 4) has an approximate fair market value equal only to the approximate value of the scrap in it. Councilmember Dawson asked why the age of a vehicle would be relevant. Mr. Snyder advised the definition paralleled RCW Chapter 46.55 which includes a process for abatement and redemption. Council President Plunkett referred to the provision that allowed screening of materials by a fence and asked whether the fence could be shrubbery. Mr. Bowman advised the draft ordinance references a fence; the Council could decide to include vegetation. Mr. Snyder recalled fences and hedges had a lengthy history in the City and the definition of fence was non-living material. If the definition were expanded to include vegetation, he pointed out the height of a vegetative fence may be problematic in some neighborhoods. Councilmember Orvis asked whether the fence would be required to surround a junk pile or was the backyard fence sufficient. Mr. Bowman advised the backyard fence would be sufficient as long as it screened the material from view. He acknowledged the difficulty was although a 6-foot fence may surround a backyard that blocked the view when standing next to the fence, the yard may be visible from a 2-story home next door. Mayor Haakenson opened the public participation portion of the public hearing, advising the Council received a letter from Eileen Nelson and two emails from Ray Martin expressing concern with the proposed ordinance as drafted and a letter from Mr. Pflugrad regarding motor homes and travel trailers. Roger Hertrich, Edmonds, thanked Mr. Snyder for the changes he proposed. He questioned whether the City could regulate view protection, recalling previous discussions that the City could not protect the views from private property. He questioned whether the issue was the public’s view from property from the right-of-way or neighbor-to-neighbor. If the City was unable to protect views, the same should be true with regard to nuisance views. He questioned the definition of screening, commenting a screen/fence could be created via two poles and a tarp. He suggested the definition be changed to “reasonable screening, protection from view outside the property,” etc. so that tarps would be permitted. He questioned the section on aesthetic nuisances that defined a public nuisance as any junk, trash, litter, boxes, salvage materials or lumber not neatly stacked. He advised the original ordinance referred to vehicles in the backyard which could have included motor homes and plastic canopies which were now defined as temporary buildings. He noted attractive nuisances previously were defined but now included anything in a person’s yard. Using that definition, he suggested a plastic pool could constitute an attractive nuisance. John Heighway, Edmonds, advised his comments were with regard to Exhibit 1. He suggested further revisions to the definitions, pointing out the exception that allowed aesthetic nuisances located in a rear yard and Packet Page 8 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 6 screened from view from adjacent properties and the public right of way by a six-foot opaque fence was not workable in sloped areas. He relayed that Snohomish County Code Enforcement only regulated views from the public right-of-way and did not consider the view over a fence from a neighbor’s property. He suggested perpetual yard sales be defined as a nuisance or health issue. He referred to Section 6.20.040 suggesting “any” be deleted from types of nuisances and cited several concerns including if the definition of attractive nuisance would include an old rusty plow he has as part of his landscaping, the definition of graffiti, vague nature of “personal property,” worms in his compost pile that may be prohibited by paragraph K, replacing “any stagnant water” with “known stagnant water” in paragraph L, removing “berry” in paragraph Q, and allowing garbage receptacles that comply with vendor specifications to be located in the front yard (paragraph T) particularly in multifamily zones. In Section 6.20.045 he suggested making an exception for manufactured covers. Dave Page, Edmonds, referred to a property under continuous fine for ongoing violations and asked whether the proposed amendments provided the City more power over violations. Lora Petso, Edmonds, urged the Council to proceed carefully, commenting what constituted a private property nuisance may vary; landscaping may be pleasing to one person and not another, the lawn may not be watered enough to suit everyone, and the house may need painting. Recognizing the City had encountered difficulties with hedges blocking views, she suggested some things were best left to the neighbors to work out. She encouraged the Council to include vegetation as an approved screening method. She encouraged the City to develop its own definition of a junk vehicle rather than relying on the State’s definition. She expressed concern with the definition of a junk vehicle, envisioning an older car stored for a child away at college could meet the definition of a junk vehicle. Don Hall, Edmonds, asked whether these regulations would pertain to the City as well as private property owners. He referred to paragraph F of Section 6.20.040 regarding hazardous trees and vegetation dangerous to the general public health, safety and welfare; and paragraph Q regarding berries and noxious weeds, inquiring whether these sections also applied to parks and rights-of-way. Dave Thorp, Edmonds, commented friends who live next to a hoarder met a great deal of resistance from City staff in responding to the situation, a severe problem that met the definition of a health and safety nuisance in the proposed ordinance. He commended the City for revising its nuisance regulations, pointing out the litigation process was often expensive and lengthy as well as questionable at times for people with mental conditions. Harry Shelton, Edmonds, expressed his disappointment that RVs were not being discussed tonight when he was told on June 3 that would be a topic of discussion tonight. Kevin Clarke, Edmonds, commented this was a very valuable discussion for the community and although contentious, helped citizens understand each other’s points of view. He agreed with Mr. Snyder’s comments that studies show when nuisances are not repaired, a negative environment can be created in a neighborhood that adversely impacts property values. He recommended neighborhoods’ Covenants, Conditions and Restrictions (CC&Rs) that outline nuisances and/or development standards be adopted as part of the City’s regulations and enforced by the City. Mary Humphrey, Edmonds, suggested a fee to file a complaint against a neighbor, pointing out a fee may make a person think about it before making a complaint. She expressed concern the City was overly governing its citizens and preferred they be responsible for themselves. She envisioned a neighbor with a 2-story house next door to a rambler with a 6-foot fence who did not like what their neighbor was doing could continually file complaints. She commented many of the houses in their neighborhood had junk in their yards; they have lived there 45 years so obviously it did not bother them. She questioned how one Code Enforcement Officer could enforce all these regulations. Packet Page 9 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 7 Tom Fagnan, Edmonds, commented when he moved into his home in 1990, it was in unincorporated Snohomish County and he purchased it because there were no CC&Rs regulating the color of his house, what he would have parked in his yard, etc. He objected to the City enacting such regulations, noting one neighbor continually complained to the City about his house/yard, although another neighbor across the street did not object. He commented the condition of his yard had not prevented his property value and taxes from increasing. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. With regard to concern expressed regarding the City’s intrusion into neighbors’ problems, Mr. Snyder explained this was a list of concerns citizens have raised with the Planning Department on a regular basis; staff’s question to Council was whether they wanted to regulate this “laundry list” of items. With regard to covenants, Mr. Snyder pointed out the City did not enforce private covenants because they had not been the subject of a public hearing, voted on by the City Council and in many cases there were covenants in place that prohibited residents based on race or religion, restricted residential or commercial, etc. He was not aware of any City that uniformly incorporated private covenants into their regulations. Regarding the suggestion to use vegetation as a screen, he suggested the Council could add vegetative opaque screens maintained at a certain height. With regard to Ms. Petso’s concerns that a college student’s car could be considered a junk vehicle, he suggested storing it in a garage. Regarding enforcement on public property, he explained the purpose of these regulations was as an enforcement tool; the City has liability for any damage caused by a tree falling from a public right-of-way and the public was encouraged to notify the City of any dangerous trees in the right-of-way. With regard to Mr. Page’s question, the proposed ordinance did not provide any additional enforcement power. With regard to the use of “any” in the definition, that language assisted the City in enforcement actions. With regard to views, he noted the view issue previously discussed by the Council was the transfer of property rights from one property owner to another; in Washington anyone desiring to protect their view must buy a view easement. He noted the City did not regulate design of residential property with regard to design or view blockage, other than height restrictions. Conversely, the view referred to in this ordinance was what a person saw from their window or sidewalk. The revisions he proposed allowed an exception for material screened from view by a 6-foot fence. With regard to municipalities that regulate what was visible from the public right-of- way, he noted that was easy for the Code Enforcement Office as what was visible from the street could be prosecuted and a search warrant was not needed. However, many of the complaints the department receives are regarding what is visible from a neighbors’ window. He acknowledged visibility from the public right-of-way was an approach the Council could take if they wished. With regard to the assertion that an attractive nuisance was anything in a person’s backyard, he cited the items identified as attractive nuisances in Section 6.20.041: 1) abandoned, broken or neglected equipment; 2) rusted, jagged, sharp or otherwise potentially dangerous machinery; 3) household or commercial appliances, including but not limited to refrigerators, freezers, washers, dryers, dishwashers, ovens, hot water tanks, or toilets; 4) unpermitted excavations; and or 5) unprotected or open wells or shafts. Mr. Bowman described the City’s enforcement process: first, code enforcement was done by complaint. After a complaint was received, the Code Enforcement Officer investigates and if there appears to be a violation of the code, they are sent a letter informing them of the issue and providing a timeline for response. If they fail to respond, the Code Enforcement Officer issues an Order to Correct which begins the formal code enforcement process. The Order outlines a deadline to contact the City to resolve the issue and identifies the remedy. If the Order to Correct is ignored, a Notice of Violation is issued, which includes daily fines. He noted once a citizen filed an appeal of the Notice of Violation to the Hearing Examiner, the burden of proof shifts to the City to prove a violation was occurring. The current ordinance was very general and the Hearing Examiner was very Packet Page 10 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 8 conservative in their view of the code; the intent of the proposed ordinance was to strengthen the City’s position in meeting the burden of proof. Council President Plunkett asked staff to respond to the suggestion to charge a fee to file a complaint. Mr. Bowman advised the Council’s policy with regard to complaints has been not to require a fee for an issue the City should be enforcing. He acknowledged a fee could have the effect of making a citizen stop and think. If the Council wanted to charge a fee, an option would be to refund the fee if a violation was found, although that would be a bookkeeping issue. He did not recommend charging a fee for filing a complaint. Council President Plunkett asked how often people filed complaints out of revenge or spite. Mr. Bowman answered that was not routine. Mr. Snyder commented a number of communities utilize neighborhood mediation and there were several groups in Snohomish County that provide this service. Deferring some problems to mediation efforts and out of code enforcement was an option for the Council. Council President Plunkett asked how many appeals the Code Enforcement Officer addressed at any one time. Code Enforcement Officer Mike Thies responded he handled approximately 300 pending complaints at any one time. Some were also handled by the Building Department. With regard to neighbors filing a complaint as revenge, he tried to stop that from happening. Councilmember Orvis asked staff to respond to Mr. Heighway’s question whether a historic item used as part of landscaping could be considered an attractive nuisance. Mr. Bowman answered that was not typically the subject of code enforcement. The attractive nuisances referred to in the ordinance were junk equipment and he did not believe the ordinance would apply to the item described by Mr. Heighway. Mr. Snyder referred to the definition in the attractive nuisance section “rusted, jagged, sharp or otherwise potentially dangerous machinery,” suggesting “rusted” be removed from the definition. He noted yard art that was dangerous to children could be problematic. Councilmember Orvis observed there were First Amendment issues with house color. Mr. Snyder referred to a case in Missouri where a message the homeowner wrote on their house regarding the Vietnam War was protected. He reiterated the City’s design code criteria did not extend to residential neighborhoods, therefore, houses could be painted whatever color the owner wished. Councilmember Orvis summarized as long as something was screened in the backyard, there would not be an aesthetic nuisance, but it could constitute a health, safety and welfare nuisance, such as pooled water. He inquired about the use of vegetation as a screen. If that was the Council’s direction, Mr. Snyder suggested language identifying a hedge or other vegetative material that was opaque and maintained at a certain height. Councilmember Wambolt commented under the proposed definition, a vehicle that was three years old, with a cracked windshield and a dead battery could be defined as a junk vehicle. He asked whether the City was required to adhere to the State’s definition. Mr. Snyder answered the definition paralleled the State provisions to match the process. Using Councilmember Wambolt’s example, he commented a person could likely get their battery fixed during the time it took to begin the enforcement process. He acknowledged the definition was somewhat broad but there were several examples of residents operating what their neighbors considered rebuild/junk operations. Councilmember Wambolt objected to the criterion regarding the age of the vehicle. Mr. Snyder offered to research the State provisions. Councilmember Wambolt referred to Mr. Heighway’s comment regarding garbage receptacles in multifamily zones. Mr. Snyder advised that was addressed in the Architectural Design Board design criteria. Councilmember Wambolt agreed with Mr. Heighway’s suggestion regarding year-round yard sales. Mr. Snyder commented that would not be a nuisance, but a building permit or zoning issue. Mr. Thies advised complaints about perpetual garage sales were addressed via a business license and home occupation. Packet Page 11 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 9 Councilmember Dawson expressed her appreciation for the revisions made by Mr. Snyder. She referred to Section 6.20.041.A, “Any junk, trash, litter, boxes, salvage materials or lumber not neatly stacked,” envisioning neatly stacked referred to lumber only. Mr. Snyder suggested deleting boxes and putting salvage materials or lumber not neatly stacked in a separate paragraph. Councilmember Dawson recalled comments regarding a vehicle being considered a junk vehicle if it were not licensed, but did not see any reference to license in the proposed ordinance. Mr. Snyder advised licensing was incorporated in the definition of operable. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO EXTEND DISCUSSION OF THIS ITEM FOR 15 MINUTES. MOTION CARRIED UNANIMOUSLY. With regard to garbage, recycling and compost, Councilmember Dawson recognized garbage could breed vermin or insects if not stored properly. Mr. Snyder suggested if the Council chose not to include Section 6.20.043 regarding garbage, recycling and compost facilities, staff could consider incorporating a paragraph regarding the vermin attracted by garbage. Councilmember Dawson suggested an exception for compost materials that were properly screened, rather than a section regarding garbage, recycling and compost. Mr. Snyder acknowledged the Council may choose not to regulate those items. He noted a simple method for regulating garbage and recycling was to require it to be removed from the curb. Councilmember Dawson suggested adding neighborhood mediation as an option in the code. She referred to a local taskforce that had been established regarding hoarding. Mr. Thies responded he was on the taskforce. Councilmember Dawson requested he provide Council an update on the taskforce in the future. Mr. Bowman noted there was also a website with a great deal of information about the causes of hoarding, resources, etc. Councilmember Wilson asked whether if Section 6.20.043 were deleted, did Section 6.20.041.C.1 define compost. Mr. Snyder responded if the Council did not want to regulate compost, there were sufficient tools under health and safety nuisances to allow staff to address egregious situations; properly maintained composts were not a problem. Councilmember Wilson referred to Section 6.20.041.F.2, the exception to aesthetic nuisances that were located in a rear yard and screened from view from adjacent properties and the public right of way by a six-foot opaque fence, and asked why that would not apply to front yards. Mr. Bowman answered the problems were typically in side yards and backyards. He acknowledged it was a policy issue if the Council wanted to allow it to be screened in the front yard. Mr. Snyder pointed out there were restrictions on fences in the front yard due to sight distances issues. For Council President Plunkett, Mr. Snyder advised he did not change the protective covering (tarps) provisions. Councilmember Orvis agreed with allowing people to have a reasonable compost on their property. Mr. Bowman agreed a properly maintained compost pile was not a problem. Councilmember Orvis asked whether yard waste bags could be stored on a property until pick-up. Mr. Bowman advised that was a self-correcting problem. Mr. Snyder advised yard waste was a recyclable material that was not considered a nuisance unless stored outside for longer than 30 days. Councilmember Wambolt asked if it was permissible to have a 6-foot fence in the front yard. Mr. Bowman answered it depended on the distance from the right-of-way; front yard fences were regulated for sight distance. Councilmember Wambolt objected to including the age of a vehicle in the definition of a junk vehicle. Mr. Snyder responded he would research the State definition. Mr. Thies advised in his experience in the City, the three year age had never come up. He advised the regulations regarding junk vehicle made it very easy to enforce. Councilmember Wambolt commented it could be problematic if an unhappy neighbor wanted to complain. Packet Page 12 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 10 Council President Plunkett commended staff for doing an excellent job of assembling ideas in an effort to gather Council and citizen input. He recognized private property rights were a sensitive subject. He advised staff would use the information provided to develop another revised ordinance and suggested scheduling another public hearing and potential Council action on those revisions. Councilmember Bernheim questioned the guidance that a laundry list of potential enforcement provided the Council. He preferred staff present a well thought out ordinance with specific language versus the proposed broad ordinance. He found little in the proposed laundry list that he was willing to incorporate in the current code. He noted the current code regulated junk, litter, attractive nuisances, discarded furniture, broken trailers, vehicle part, dangerous trees and junk vehicles, and in the health section, putrid dangerous garbage that was a threat to health. He found the current definition of junk adequate other than minor tweaks, and suggested greater tolerance of neighbors. He noted if blackberries were included as a nuisance, the City would be required to spend a great deal of money to remove blackberries and scotch broom in City rights-of-way. He noted the current law also addressed dangerous compost piles. He agreed with neighborhood mediation as an option as well as requiring a fee for filing a complaint. He noted the reason there were so many open code enforcement files was because there was no fee. He did not object to serious legitimate complaints, but he envisioned in the 300 complaints staff was handling, there were many that were not serious. Councilmember Bernheim was opposed to hiring any additional code enforcement personnel to enforce nuisance regulations and suggested consideration be given to the City’s limited financial resources before enacting the ordinance. With regard to view protection, he acknowledged the Council could legislate aesthetic views. However, his preference was to protect private property rights rather than the view from a neighbor’s property. Another option would be to define regulations as other communities have done, in terms of lowered property values, if a person could prove that the storage of materials on a neighboring property has a substantial impact on their property values. He objected to the language “neatly stacked” and “in disarray,” finding it vague. He sympathized with residents whose neighbors stored an abundance of materials in their yard but preferred to modify the current code to address the real problem rather than rewriting the code. Mayor Haakenson assured, regardless of the regulations the Council passed, there would only be one Code Enforcement Officer. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO DIRECT STAFF TO TAKE THE COUNCIL’S COMMENTS AND REVISE THIS VERSION OF THE ORDINANCE AND BRING IT BACK FOR A PUBLIC HEARING AND POTENTIAL ACTION. Councilmember Wilson suggested having the ordinance reviewed by the Community Services/Development Services Committee. Council President Plunkett agreed that was appropriate and requested it be incorporated into the motion. Councilmember Dawson requested staff provide the Community Services/Development Services Committee an analysis of the ability to impose a fee for frivolous complaints. She envisioned there would not be a fee for legitimate complaints but there would be a fee for frivolous complaints. Councilmember Wambolt asked how a citizen or staff, when the complaint was filed, would know whether it was frivolous. Councilmember Dawson noted it was common in legal proceedings that a person was sanctioned for bringing a frivolous action. For example, a fee could be imposed if staff determined a complaint was filed for the purpose of harassment and/or not based on reality. Mr. Snyder advised an option could be to require a deposit or make a frivolous complaint an infraction. Councilmember Dawson was interested in whether other cities required a fee to file a complaint. Mr. Snyder reiterated staff’s recommendation to move nuisances out of the zoning code and into the police power regulation provisions. He suggested a fine/penalty for making a frivolous complaint, rather than a fee. Packet Page 13 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 11 Mr. Snyder referred to the negative comments made by Councilmembers regarding the garbage and recycling provisions and offered to remove that section and strengthen other sections. MOTION CARRIED UNANIMOUSLY. Mayor Haakenson declared a brief recess. 6. PUBLIC HEARING ON THE PARKS, RECREATION AND OPEN SPACE COMPREHENSIVE PLAN AND THE COMMUNITY CULTURAL PLAN TO UPDATE THE CITY OF EDMONDS COMPREHENSIVE PLAN. Parks & Recreation Director Brian McIntosh advised this was a required public hearing in advance of the eventual adoption of the Parks, Recreation & Open Space Comprehensive Plan and the Community Cultural Plan. He explained the review process for the update of both Plans began in March 2007 with the development of two 20 person Advisory Committees that met monthly for the remainder of the year. Two public open houses were held as well as three presentations to the Planning/Parks Board including a public hearing. The Plans have since been presented at three City Council meetings including a public hearing. He relayed staff’s appreciation for the review and input from City Council and citizens to update these plans to reflect the uniqueness of Edmonds and its quality of life. Since the May 20 meeting a question raised was whether levels of service in regard to park standards are less ambitious in the updated Plan. This has been a point of discussion from the beginning of the planning process with the realization that Edmonds was close to build out and land was not readily available. Therefore a high emphasis has been placed on upgrading existing properties and working with partners (School District, County, and neighboring jurisdictions) to make existing space more usable and enjoyable. There were several of these listed in the Action Plan. He summarized this update was realistic in regard to land acquisition and service areas and did not restrict in any way the ability of Council to acquire or develop property of any size, in any location, if the opportunity arose. With regard to regional park levels of service, he acknowledged the City was not at national standards but had unique regional parks, such as the 900 foot fishing pier, the underwater park, and numerous waterfront amenities. He emphasized the unique nature of many of the City’s parks, such as the waterfront, are not reflected in the level of service acreages. Mayor Haakenson opened the public participation portion of the public hearing. Lora Petso, Edmonds, recalled she previously protested the procedures being used for this Comprehensive Plan amendment and the Plan itself. She noted the field inventory on page 317 was still incorrect and still showed adult soccer fields at Sierra and Seaview Parks. She expressed concern with the reduction in levels of service. She asserted Mayor Haakenson has said that he does not want more parks because it requires paying staff to maintain them. She emphasized it was not purely Mayor Haakenson’s decision, the Council could decide to maintain the current levels of service and meet the levels of service adopted in 2001. She commented there had not been any changes since 2001 to justify lower service levels, people did not stop wanting parks or pools, and the only change since 2001 was the doubling of REET revenue which should make it easier to maintain service levels. She reiterated none of the council members ran for Council proclaiming their commitment to building maintenance or to lower park level of service and several claimed to support parks and quality of life. She asked which council members were willing to lower the level of service for every park type. She referred to a newspaper article that stated Seattle was striving to maintain an admittedly poor 1 acre/1,000 neighborhood park space. She noted Edmonds was not at 1 acre/1,000; in 2001, the goal was .95 acres/1,000, and the proposed Plan recommends .71 acres/1,000. Although the Council had some discretion in meeting the City’s park needs, it could not deliberately fail to meet park needs. She anticipated the size of Edmonds with no adult playfields would be in violation of the GMA. She commented leaving acquisition of future park land to political whim was also not compliant with the GMA. Packet Page 14 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 12 Mayor Haakenson requested Ms. Petso forward him the email or comment he made that he did not want more parks in the City. He advised the City was opening two new neighborhood parks, Woodway Elementary and Meadowdale Community Park, the first since 1973. John Heighway, Edmonds, commented he recently moved from the bowl area to the Perrinville area and had seen a gross difference in the attitude toward park maintenance in the Snohomish County Park. He supported increasing the park ratio to 1 acre/1,000, pointing out increased density put more pressure on the City’s parks. He urged the Council to purchase more park land. Roger Hertrich, Edmonds, recalled the Antique Mall and Skippers properties were discussed extensively before the Council approved the Parks Plan to meet a grant deadline and questioned whether those properties were identified in the Plan as future park areas. He agreed with Ms. Petso’s concern with reducing the park level of service and recommended the Council reconsider that issue. Next he referred to the statement in the Community Cultural Plan regarding themes and interests 1994 - 2008 in marketing plans and greater effort to promote Edmonds as a cultural destination with arts as an integral part of the City identity, and asked the amount of funding committed to the marketing plan and what programs were devised to market the City. With the emphasis on some public participation in the Antique Mall/Skippers area, he envisioned a market plan in conjunction with planning for that area was important. Hearing no further public comment, Mayor Haakenson closed the public participation portion of the public hearing. Council President Plunkett asked Mr. McIntosh to address Ms. Petso’s comments regarding park level of service. Mr. McIntosh referred to the level of service chart for the five park types, explaining the purpose of this update was to make those levels of service more realistic. He commented he could add acreage to those charts to increase the level of service, but the reality was those acres were not there. The goal was to identify areas in the City where there was a deficit of a certain type of parks. He noted people from throughout the City, as well as outside the City, used all of the City’s parks. For example, neighborhood parks are designed for the neighborhood to walk to them and have a one-half mile radius, and he hoped people walked a mile or biked two miles to reach the neighborhood park. He summarized it was not correct to say they were lowering their expectations for the level of service. Council President Plunkett asked if the level of service was inflated in the past. Mr. McIntosh answered it was the difference between a quality neighborhood park being a 3-5 acre park versus a two-acre property. The proposed plan indicates any neighborhood park would be an average of two acres; two acres multiplied by six equated to twelve acres that they foresee achieving in this Comprehensive Plan. He noted the two neighborhood parks that were opening were not two acres; one was 5.6 acres and the other was one-half acre. Both were neighborhood parks but with different functions. Council President Plunkett summarized Mr. McIntosh’s comments that whether someone liked the level of service or not, it was a better reflection of reality. Mr. McIntosh answered yes, both in staff’s opinion and the consultant’s opinion. Councilmember Wilson recognized staff’s attempts to be realistic. To the extent this was a visioning document, he did not want to reduce the Council’s ambitions, particularly as it becomes more important to have vibrant green spaces in a larger metropolitan area. He found Mr. McIntosh’s comments regarding the fishing pier compelling, commenting the value of that amenity could not be measured in acreage. He suggested a different method to demonstrate the City’s ambition. He referred to Seattle Magazine’s ranking of best neighborhoods that reported Edmonds had the smallest amount of park acreage, noting that was not how the city wanted to be perceived. If acreage was the only measure, he could not support the Plan. He supported being more ambitious rather than less in the Plan. Mr. McIntosh commented ambition in the Plan is reflected in many areas. Both Packet Page 15 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 13 advisory groups, the surveys, open house and public hearings emphasized the importance of connections; this Plan is very ambitious with regard to making connections and includes at least ten connection projects, including the Interurban Trail and the Meadowdale walkway. He referred to the Comprehensive Plan Action Plan that includes the CIP which identifies six field improvement projects. He acknowledged the field improvements may not be glamorous and may only be drainage improvements, but another overriding theme in the Plan was to make use of what the City has. He concluded the ambition in the Plan to acquire more park land was not any less, it was actually more. Councilmember Dawson asked staff to respond to Ms. Petso’s comments regarding the adult-sized soccer fields. Mr. McIntosh advised there was a standard length and width of an adult-sized soccer field. He agreed the fields in Sierra and Seaview Parks are not full-size adult soccer fields. He offered to correct that in the Park’s matrix. Councilmember Wambolt observed people often remark they do not like the increase in density, however, the population of the City is increasing as reflected by the population number on the City’s website of 40,760. He noted other communities are able to add land via annexation; the only way Edmonds will get more land is to manufacture it. He noted Hong Kong obtains most of their waterfront by reclaiming land. He summarized as housing became denser the City needs to add more parks, as well as identify revenue to fund their acquisition and development. Councilmember Wambolt referred to Ms. Petso’s comment about REET funds, pointing out REET revenue year-to-date was 47% less the same period last year and total revenue collected for 2008 was projected to be $774,000 and not $1.4 million as budgeted. He pointed out the Seattle Times reported home sales in Edmonds were down 56.8% in June 2008 compared to June 2007, and prices are down 9.1%. He anticipated REET revenue would continue to drop. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER OLSON, TO DIRECT THE CITY ATTORNEY TO PREPARE AN ORDINANCE TO FORMALLY ADOPT THE PARKS, RECREATION AND OPEN SPACE COMPREHENSIVE PLAN AND THE COMMUNITY CULTURAL PLAN AS PART OF THE CITY OF EDMONDS COMPREHENSIVE PLAN. Councilmember Bernheim expressed disappointment regarding the increase per capita availability of parks, noting as the population grows the City had a responsibility to increase its park land rather than just acknowledge that it could not be done. He agreed with Councilmember Wilson that a more aggressive policy needed to be reflected in the Plan. He pointed out the 23 acre Edmonds Marsh, although a wonderful amenity, offered little recreation opportunity. Similarly, the 26 acre Underground Park, one of the City’s largest parks and acreage that increases the park ratio, did not provide recreational opportunity for everyone. Councilmember Bernheim pointed out the Burnstead property as well as the property in the Downtown Waterfront Activity Center and other undeveloped properties should be considered for increasing the City’s park inventory. He also agreed with the importance of connections. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO AMEND THE MOTION TO ADD ON PAGE 10 OF THE COMMUNITY CULTURAL PLAN (PAGE 417 OF THE PACKET) A FOURTH GOAL, 1.3.d, THAT READS, “SUPPORT THE CREATION OF OPEN SPACES AND PUBLIC AMENITIES IN THE DOWNTOWN WATERFRONT ACTIVITY CENTER THAT WOULD ATTRACT OUT OF TOWN VISITORS.” Councilmember Wambolt asked what area Councilmember Bernheim felt encompassed the Downtown Waterfront Activity Center. Councilmember Bernheim answered it included the Antique Mall, the ferry parking lot, the Skippers property and the Port property. Councilmember Wambolt clarified it was the entire bowl area. Councilmember Bernheim explained his intent was to generalize the issue so as not to raise hackles by identifying the Antique Mall/Safeway as the property to be acquired. He was satisfied with acquiring any area within the Downtown Waterfront Activity Center due to his interest in attracting tourists via a public heritage center. Packet Page 16 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 14 Councilmember Wambolt advised he would not support this or Councilmember Bernheim’s other amendments because they focused exclusively on enhancing the bowl area. He pointed out the bowl area was bordered on the south by Pine Street, by Caspers on the north, by 9th on the east and Puget Sound to the west. He recalled complaints from residents in northern Edmonds, such as Meadowdale, that the Council was bowl-centric. Councilmember Wilson commented the larger question before the Council was priorities. He suggested a more appropriate venue for this amendment would be the Council’s summer retreat where agenda items will include a discussion of priorities as well as discussion of the waterfront area. Councilmember Dawson agreed it was appropriate to consider the City’s capital facilities needs in the context of a larger policy discussion. If the Council determined the highest priority for funding was additional park space, it would be appropriate to add additional language to the Plan. She noted the plans were not formally adopted until the Comprehensive Plan was adopted. Council President Plunkett recalled this was included on the agenda to meet a grant deadline. Mr. McIntosh advised Council’s approval of the Plan via resolution on May 20 satisfied the State requirement. Councilmember Bernheim commented it was important to include his proposed language in the Plan, commenting the Plan was the City’s wish list and it was not required that everything in the Plan be accomplished. Rather, it was important to include items in the Plan in the event opportunities arose. He noted the Downtown Waterfront Activity Center was important to tourism development and was the gem and center of the City’s entire geographic orientation. Council President Plunkett advised he would support the amendment but also supported Councilmember Wilson’s suggestion for further discussion at the summer retreat. COUNCILMEMBER DAWSON MOVED, SECONDED BY COUNCILMEMBER WILSON, TO TABLE THE UNDERLYING MOTION. MOTION FAILED (2-5), COUNCILMEMBER DAWSON AND COUNCILMEMBER WILSON IN FAVOR. UPON ROLL CALL, THE AMENDMENT CARRIED (5-2), COUNCIL PRESIDENT PLUNKETT AND COUNCILMEMBERS ORVIS, WILSON, DAWSON AND BERNHEIM IN FAVOR; COUNCILMEMBERS WAMBOLT AND OLSON WERE OPPOSED. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCIL PRESIDENT PLUNKETT, TO REVISE THE SECOND PARAGRAPH, UNDER DETERMINATION OF DEMAND STANDARD FOR REGIONAL PARKS ON PAGE 4-5 OF THE PARKS PLAN, “THE CITY OF EDMONDS SHOULD CONTINUE TO PURSUE OPPORTUNITIES TO ACQUIRE WATERFRONT PROPERTIES AND PROPERTIES WITHIN THE WATERFRONT ACTIVITY CENTER AND TO PARTNER WITH PRIVATE OWNERS FOR PUBLIC ACCESS TO THE WATERFRONT AND PROPERTIES WITHIN THE WATERFRONT ACTIVITY CENTER. Councilmember Bernheim explained the rewording was intended to express the City’s intent to pursue opportunities to acquire property within the Downtown Waterfront Activity Center, not to partner for access to the Downtown Waterfront Activity Center. Councilmember Wambolt reiterated when Councilmember Bernheim wrote the amendments, he did not understand the scope of the geography of the Downtown Waterfront Activity Center, which was the entire bowl. The priority in the plan is to acquire contiguous waterfront property, not property in the area up to 9th. Councilmember Bernheim responded he was proposing the City continue to pursue opportunities to acquire property within the Downtown Waterfront Activity Center, which includes specific properties but he did not want to limit the acquisition of other properties within that area. Councilmember Wambolt pointed out it was not necessary for the Plan to be that definitive. For example, the portion of Old Milltown the City was attempting to purchase was not in the Parks Plan. He did not support the amendment. Packet Page 17 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 15 COUNCILMEMBER ORVIS, MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO EXTEND DISCUSSION OF THIS ITEM 20 MINUTES. MOTION CARRIED UNANIMOUSLY. COUNCILMEMBER ORVIS MOVED, SECONDED BY PLUNKETT, TO EXTEND THE MEETING TIME UNTIL MIDNIGHT. MOTION CARRIED UNANIMOUSLY. Mayor Haakenson agreed the Council could consider purchasing any property in the City regardless of whether it was in the Park Plan. Councilmember Dawson recalled the City has expressed interest in pursuing opportunities to purchase open space in the downtown area because of its draw for visitors; therefore, it was appropriate to identify that as a goal in the Comprehensive Plan and to add that language to reflect the Council’s intent. THE VOTE ON THE AMENDMENT CARRIED (5-2), COUNCIL PRESIDENT PLUNKETT, AND COUNCILMEMBERS ORVIS, WILSON, DAWSON AND BERNHEIM IN FAVOR; COUNCILMEMBERS WAMBOLT AND OLSON WERE OPPOSED. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO ADD A PURPLE STARBURST ON THE RECOMMENDED FACILITIES MAP IN THE VICINITY OF THE DOWNTOWN WATERFRONT ACTIVITY CENTER WHICH SYMBOLIZES A PROPOSED COMMUNITY/REGIONAL PARK. UPON ROLL CALL, MOTION CARRIED (4-3), COUNCIL PRESIDENT PLUNKETT AND COUNCILMEMBERS BERNHEIM, DAWSON AND ORVIS IN FAVOR; COUNCILMEMBERS WAMBOLT, WILSON AND OLSON WERE OPPOSED. Councilmember Dawson supported further Council discussion regarding the level of service as well as more ambitious goals in the Park Plan in the context of other Council priorities. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO REFER THE PLAN WITH AMENDMENTS TO THE SUMMER RETREAT. MOTION CARRIED UNANIMOUSLY. 7. AUDIENCE COMMENTS Natalie Shippen, Edmonds, recalled on May 27, Finance Director Dan Clements outlined a path to purchase the Antique Mall and Skippers properties that included the following Steps, 1) determine which parcels to purchase, 2) get an appraisal, and 3) define uses if the property is acquired. She recalled Mr. Snyder explained the condemnation process and his indication that if the property were acquired via condemnation, it could only be used for public purposes and the City is required to show specific plans to illustrate it was purchasing exactly what was needed. Mr. Snyder also indicated private uses could only be incidental and could accomplished via a concession agreement in support of the park. She referred to a list she created of public uses that justify condemnation and a list of potential concession uses and requested the City provide citizens a similar list. She expressed concern this discussion occurred seven weeks ago and nothing else had been done. She requested the City provide the public a fact sheet with regard to acquisition of these properties. John Heighway, Edmonds, reported Perrinville residents were recently provided an architect’s plan to amend the Comprehensive Plan and found the proposal did not meet the residents' needs. The Planning Board subsequently denied approval of their proposal. He recalled staff’s presentation was somewhat bland and used the plan for Firdale Village as a template. The Planning Board suggested the Perrinville residents present their vision. He asked for assistance with how the residents could develop a plan that reflected what they wanted. Jack Bevan, Edmonds, commented the City’s parks did not need to be like every other city. He pointed out the value of waterfront parks, including the public amenity provided by the Port. He recalled the City received the 120-acre county park from the University of Washington when he served on the Council; one day that would be returned to the City, which would drastically change the acreage per 1,000. Packet Page 18 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 16 Don Hall, Edmonds, commented although the Comprehensive Plan referred to the Downtown Waterfront Activity Center, access from the Antique Mall and Skippers properties was blocked by a parking lot, railroad tracks, and a 3-story and 5-story building, the definition of waterfront was land that abuts a body of water. He pointed out the use of the language Downtown Waterfront Activity Center gave many people the wrong impression; they think it is waterfront when it is not. With regard to parks being an economic driver, he said parks that were economic drivers were typically a zoo, an aquarium, or Disneyland. In his experience, private development was a much better economic driver than public development. Before the Council spent money on an appraisal, he urged them to consider whether they were willing to proceed with condemnation as well as developing and maintaining the property. Roger Hertrich, Edmonds, recalled the Council’s interest in green building and a LEED platinum building for the new PCC at the former Albertson’s site resulted in the Council allowing a rain barrel in the setback. He recalled there were public concerns about locating the rain barrel in the setback. Further, he noted the possible loss of trees and cited the illegal cutting of trees that occurred a few weeks ago. Now the rain barrel structure is atop a large concrete stand where the trees were previously located, a structure that staff determined was constructed without a building permit. Next, he suggested City Park as a location for the Bettinger/Kretzler historic home. Mr. Hertrich then reported the Senior Center’s recent financial reports indicated they have lost $21,000 and project losses of $42,000. He noted the Center was still controlled by the same group, there were no fundraisers, and they were losing money. He questioned whether allowing the Senior Center to go out of business was purposeful to allow another use. He urged the City to get involved. 8. DISCUSSION ON BD1 CODE INTERPRETATION. Mayor Haakenson advised staff was asked to make an interpretation regarding the Council’s intent about ground floor depth requirements in the BD1 zone Mr. Chave explained the benefit of the interpretation based on a question rather than a permit application was the Council was able to clarify the code such as via an interim zoning ordinance if a change was required versus via a quasi judicial matter. He explained there were three questions to be addressed: • What does the code require? • What was the Council’s intent? • What, if any, ‘fix’ is desired? He displayed a drawing of an “idea” of a building proposed for the 555 Main Street site, clarifying that they have not yet submitted an application. The drawing illustrated a building with a 15-foot ground floor and upper floor viewed from the front in the street depth area and behind, in the non-street depth area, there would be a different arrangement of floors, with the lower floor partially submerged. Staff issued an interpretation on July 2, 2008 based on staff’s reading of the code, together with pertinent legislative history; any appeal would need to be filed by July 16. He reviewed legislative history, explaining the terms “ground floor” and “first floor” were used interchangeably in Planning Board and Council discussions, BD1 ground floor/first floor was always discussed as being a standard (15-foot) height, and there was no discussion of allowing ‘other’ uses behind commercial in BD1. He reviewed the BD1 requirements: • Only commercial uses allowed on ground floor in BD1 • Entry from Main or 5th, within 7” of sidewalk • Parking not considered to be a commercial use • BD2, BD3 and BD4 require commercial use only for the first 60 feet of the ground floor – there is no such exception for BD1 Packet Page 19 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 17 He reviewed a definition in ECDC 21.35.017 dating from 1993 that addressed this situation in the BC zone and clarifies the location of the ground floor in relation to the stacked floor. If the Council agreed with the applicant, the following questions arise: • If the area behind the street-front is not a ground floor, what is it? • If it isn’t a ground floor, it is not regulated. • If it is not regulated, then any use can go there? He reviewed options for Council consideration 1. Let the interpretation stand. 2. Agree with the applicant. (staff withdraw interpretation and reissue based on Council interpretation/clarification of intent.) 3. Clarify the Council’s intent, in light of the situation highlighted here and have the City Attorney and staff provide code language that does not have the ground floor definition relevant in BD1 and draft an interim zoning ordinance to implement the Council’s direction. If the Council chose to clarify the intent, the following issues need to be resolved: • How deep should the ‘retail-friendly’ street front space be? Staff suggests 60 feet to be consistent with the BD2, BD3 and BD4 standards. • What uses can go behind the commercial front of the building and what should the floor height be? He noted in the proposed building, it would be a combination of commercial and parking. He recalled the BD1 zone was intended to be primarily commercial. • Should corner lots be treated differently? He noted 555 Main was on the edge of the commercial district; therefore, its corner characteristics were different that a corner lot in the core commercial area. Mayor Haakenson referred to a minimum depth of commercial space must be at least 30 feet. Mr. Chave answered that applied only in the BD2, BD3 and BD4, which has a 60-foot commercial requirement for lots that may not have sufficient space behind the 60 feet to provide parking. The 30-foot rule was included for those lots. Mayor Haakenson observed the code did not state that there was a minimum 30-foot commercial space requirement in the BD1 zone. Mr. Chave agreed, explaining the 60-foot commercial requirement could be reduced to 30 feet if there was insufficient space. He emphasized that was a very specific exception in the BD2, BD3 and BD4 zones. Council President Plunkett recalled his intent was that the ground or first floor would be the closest to the commercial space and he was satisfied with a 12-15 foot first floor ceiling height for a depth of 45-60 feet and allowing flexibility for uses behind that space. Mr. Chave commented the difficulty with the applicant’s opinion was that the space behind the 30-foot commercial would be totally unregulated. He envisioned Council President Plunkett’s intent would be another alternative. Councilmember Wambolt commented the example Mr. Chave provided where the street slopes north to south was not representative of the topography of the land at 555 Main Street site that slopes east to west. Mr. Chave agreed it was for illustration only. Mr. Chave advised the property owners have proposed a ramp from the alley into the parking area; the bottom of floor A would be lower than the alley level. Councilmember Wambolt recalled the Council specified a 15-foot ceiling height in the BD1 zone. Councilmember Orvis recalled the drawing of a building with a ground floor, upper floor and partially submerged lower floor would be allowed in BD2 and BD3. In the BD2 zone, the ground floor could be 12 feet in height, must be 60 feet in depth with flexibility behind. In the BD1 zone, he recalled the intent was ground floor height would be 15 feet and that the ground floor extended all the way to the back. The reason was BD1 was intended to be commercial with strong commercial standards. Packet Page 20 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 18 Councilmember Dawson agreed it was the intent of the Council to have commercial all the way to the back on the ground floor in BD1. She noted the current code may not describe that well and suggested amending the code to better reflect that intent. She was not comfortable with making a change that would allow other uses behind commercial in the BD1. Mr. Chave agreed with Councilmember Orvis and Dawson that was the Council’s intent. He noted there was no specific discussion regarding the example where there were two floors at the front of the building, ground and upper, and three floors behind, A being the lowest with B and C above, where floor A was partially below ground and the ceiling floor A did not necessarily match the floor height of the ground floor in front. In this example, the ground floor in front was 15-foot high commercial and floor B behind was commercial but potentially had a lower height. Councilmember Dawson commented in that example floor B was not 15 feet in height, when the recommendation from staff has been a minimum 15-foot ceiling height and the example would be a change in the previous direction. She recalled the Council had extensive discussion regarding the ceiling height for commercial and there was never any discussion about varying the ceiling height in the back of the building. Councilmember Bernheim agreed the Council’s intent at the time was to extend the 15-foot ceiling height all the way to the back; however, the current ordinance did not address that issue at all. He said the plan as proposed by the property owner was permitted by the current code in spite of the Council’s intent not to allow it. He viewed the drafting of the code language with that omission as a huge mistake by staff, Planning Board and the Council. He recalled proposing at the time and in his recent email that one of the ways to address this would be to allow a maximum of two stories in the BD1 zone. He did not agree with adapting staff’s interpretation, finding that went beyond what the law provided. Councilmember Orvis commented he was comfortable with tightening the code. He pointed out parking was only required for residential in the BD1. Councilmember Wambolt agreed with Councilmembers Dawson and Orvis, although he did not feel the code was ambiguous, referring to 16.43.030.B.3 which states, within the BD1 zone, development on the ground floor shall consist of only commercial uses and commercial uses to a minimum building depth of 60 feet in the BD2 and BD3 zones. He was open to changing the code, noting changes had been made in the past, such as for the Gregory where residential was allowed at the back of the building due to the 120-foot depth. He recalled unsuccessfully introducing a motion to restrict buildings to two floors in the past. Council President Plunkett inquired about the City’s legal liability with regard to the three options. Mayor Haakenson pointed out an application had not yet been submitted. City Attorney Scott Snyder advised if an application had been filed, staff’s interpretation would be final. He was comfortable with defending the plain meaning as the Council has expressed with regard to the full length. He noted the problem of the carryover interpretation of ground floor which was never discussed in the recent process. Council President Plunkett summarized Alternative 3 suggested by staff was a minor tweak and not a substantial change. Mr. Chave advised Alternative 3 would be to clarify the Council’s intent and draft an interim zoning ordinance to implement the Council’s direction. Mr. Snyder explained the Council’s direction was to delete/amend the ground floor definition to clarify the holdover definition of ground floor did not apply to the BD1 definition. Councilmember Bernheim referred to his memo that explained his disagreement with Mr. Snyder’s position. He felt the drawing referred to as the applicant’s idea was lawful and any attempt to claim that idea was contrary to the terms in the code was doomed to fail because of the clause that states the ground floor shall be a minimum of 30 feet. He asked whether Mr. Snyder’s proposal was contrary, and with the principle of ambiguity in the code, deference is given to the property owner. Mr. Snyder responded there were three maxims that applied, 1) the intent of the Council, 2) the plain meaning, and 3) in the event of ambiguity X goes to the property owner. He noted zoning laws were a derogation of common law property rights. Councilmember Bernheim responded if there was nothing in the code that reflected that intent, the Council was not allowed to divine the intent from discussion and read it into a code that the language did not support. Mr. Snyder commented plain meaning was Packet Page 21 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 19 the primary. Councilmember Bernheim urged staff to consider his suggestion for a 2-story limit. Mr. Snyder recalled there was considerable discussion regarding two stories; however, a 2-story approach would require extensive revision of the code. Mayor Haakenson relayed the response by one of the property owners in the audience that the width of the building on the Main Street side was 86 feet. Mayor Haakenson advised approximately 90 feet by a 45 foot depth was approximately 4,000 square feet of retail. He recalled the primary importance of the 15-foot ceiling height was the storefront on Main Street and on 5th Avenue, not necessarily inside the store. As a former retailer he would be hesitant to have three storefronts in that location with a 90-100 foot depth. He recalled the intent of the 15-foot ceiling height was to create viable retail space and he was uncertain whether the result in this location would be good, viable retail spaces. He envisioned if the property owners reverted to their previous idea, they would be required to have parking on the street. Councilmember Dawson reiterated the only parking requirement in BD1 was for residential. Councilmember Dawson commented although she was open to the idea that it was not necessary to have 15-foot ceilings the entire depth of the building, that had not been discussed previously. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO EXTEND DISCUSSION OF THIS ITEM FOR 10 MINUTES. MOTION CARRIED UNANIMOUSLY. Mr. Snyder advised of the three options, Option 1, the staff interpretation was most in line with the plain meaning and, as Councilmember Bernheim noted, it could be tweaked to be more defensible. In Option 2, the Council’s only option was to accept the applicant’s position. If the Council wanted to make any significant, substantive change, the matter would be required to go through the full process or an interim ordinance. He noted Bauer v. City of Edmonds was a situation where the Council had made a series of incremental, logical interpretations that over time exceeded the plain meaning of the ordinance. He was comfortable with defending the sentence structure and the lack of reference to 30 feet in the BD1 zone given the intent of the Council. Councilmember Wilson asked about whether in an instance, a corner lot, there are two street sides. Mr. Chave recalled all the discussion in the development of the BD zones established where the entry had to be, which in this instance was Main Street. Once that was established, the entire floor must be at that level regardless of the other corner. He noted the property owner’s initial plan oriented the entry to 6th. The biggest issue for the property owner is locating parking behind the building and the reason they proposed access from the alley. Councilmember Wilson asked whether allowing a street entry on both Main Street and on 6th address Mayor Haakenson’s concern with the depth of the retail space. Mr. Chave explained on a corner lot the applicant could chose to have orientation on both streets, but it was not required. Councilmember Wilson suggested that may be something the Council wanted to foster, to provide entries on both streets. He suggested a minor tweak to the BD1 stating a commercial storefront must be at street level. Mr. Chave answered that would not be a minor tweak due to potentially different street levels. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER ORVIS, TO REFER THIS ITEM TO THE CITY ATTORNEY TO DRAFT AN INTERIM ORDINANCE THAT CLARIFIES THE COUNCIL’S POSITION. Councilmember Bernheim explained the interim ordinance would clarify that the Council’s intent that the entire ground floor in the BD1 zone was required to have a 15-foot ceiling height. MOTION CARRIED UNANIMOUSLY. Mr. Snyder advised there was no incentive for the property owner to appeal as the Council had affirmed their intent was parallel with staff’s interpretation. Packet Page 22 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 20 9. RECOMMENDATION ON BIDS RECEIVED FOR OLD WOODWAY ELEMENTARY SCHOOL PARK & REGIONAL INFILTRATION SYSTEM AND THE 76TH AVENUE WEST/75TH PLACE SW WALKWAY & 162ND STREET PARK PROJECTS. Parks & Recreation Director Brian McIntosh advised this was an exciting time for the Parks & Recreation Department, with the development of two neighborhood parks, the first since 1973. He reviewed the status of the Parks Improvement Fund 125 as of July 10, 2008: Current Balance: $4,505,842 Est. 2008 revenue to Dec. 31 (REET + interest) 370,000 Estimated funds available 2008: 4,875,842 2008 possible deferred projects: City Park (playground replacement) 200,000 Maplewood Park (playground replacement) 45,000 Mathay-Ballinger (playground replacement) 60,000 Civic Center 40,000 Total deferred projects $345,000 2008 Parks Projects to complete this year: Fishing Pier repairs $30,000 Willow Creek/Hatchery stream restoration 10,000 Aquatic Feasibility Study 60,000 Playground Partnership 42,500 Edmonds Marsh Environmental Plan 30,000 Dayton Street Plaza renovation 70,000 4th Avenue Cultural Corridor Plan 50,000 Yost Park & Pool 25,000 Citywide Parks Improvements/Misc. Projects 70,000 Estimated expenditures park projects remainder 2008 387,500 Available funds for Old Woodway El. Park and 75th/76th St. Walkway & 162nd St. Parks projects: $4,488,342 He advised the use of these funds did affect the CIP through 2014. Next, Mr. McIntosh reviewed bids for the Regional Infiltration System and Old Woodway Elementary Park, advising nine bids were received for this combined project ranging from $1.7 million to 2.4 million. He explained the regional stormwater infiltration and storm outlet improvements were bid separately from the park construction and public right-of-way improvements as the infiltration was funded via the Storm Utility and the park was funded from the Parks 125 Fund. Mr. McIntosh displayed the low bid results for the infiltration project totaling $210,560, engineer’s estimate of $545,425 and budget of $385,000. He reviewed the low bid results for the roadway improvements, picnic shelter and overall park development, totaling $1,577,902, engineer’s estimate of $1,420,966. The base bid for the additional cost of the pervious surface parking lot was $110,000. He advised there was $1.2 budgeted in Fund 125; an additional appropriation of $377,02 was needed or $488,382 if the pervious surface parking lot was added. He recalled due to interest in the pervious surface as well as other green measures at the open houses and public hearings for this park, a decision was made to bid the project with the pervious surface parking lot. The cost of an asphalt parking lot was approximately $50,000; the cost for a pervious parking lot was an additional $110,000. The landscape consultant and Engineering Department indicated the pervious surface was unnecessary at this site and the parking lot would drain adequately into the rain garden. Packet Page 23 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 21 Mr. McIntosh advised the contractor’s background checks have been completed and recommended Council authorize the Mayor to sign a contract with the low bidder without the pervious surface. He concluded the project was affordable and this was a very competitive bidding process. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER OLSON, TO AUTHORIZE THE MAYOR TO SIGN A CONTRACT WITH THE LOW BIDDER WITHOUT THE PERVIOUS SURFACE. Councilmember Bernheim pointed out the asphalt parking lot was designed to drain into the rain garden. Council President Plunkett suggested delaying approval, noting there may be citizens interested in commenting about this project as the agenda did not state the Council would be taking action tonight. COUNCILMEMBER BERNHEIM WITHDREW HIS MOTION WITH THE AGREEMENT OF THE SECOND. Councilmember Wilson echoed Council President Plunkett’s suggestion to delay approval to allow anyone with concerns to provide comment. It was agreed to schedule approval on next week’s Consent Agenda. Mr. McIntosh reviewed the low bid and engineer’s estimate for the 75th/76th Street Walkway and 162nd Street Park, advising four bids were received ranging from approximately $2 million to $2.7 million. He identified the four parts of this project, 1) main walkway, 2) 158th Street pullout, 3) park, and 4) timber walkway. The low bid for these four parts was approximately $2.3 million; available Parks 125 funding is approximately $1.4 million and the funding shortfall is approximately $937,000. Mr. McIntosh explained when this project went to bid, staff assumed the bids would be high. He advised the low bid for the main walkway and the park would have a shortfall of approximately $736,000. He noted the pullout and timber walkway could be deferred to a later date. Given the shortfall, deferral of the Caspers Street walkway until fall, and the receipt of only four bids, staff recommends not accepting any of the bids and rebidding the project this fall. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO AUTHORIZE STAFF TO REJECT ALL BIDS FOR THE 76TH AVENUE WEST/75TH PLACE SW WALKWAY AND 162ND STREET PARK PROJECT AND AUTHORIZE THE REBID OF THE PROJECT FOR LATE FALL OF THIS YEAR. MOTION CARRIED UNANIMOUSLY. 10. REPORT ON ESTIMATED COST OF AN APPRAISAL OF PROPERTIES COMMONLY REFERRED TO AS THE WATERFRONT ANTIQUE MALL AND SKIPPERS. APPRAISAL AND OTHER RELATED MATTERS WILL BE TAKEN UP AT THE AUGUST 5, 2008 COUNCIL MEETING Mayor Haakenson reported the cost of an appraisal was $12,000 and could be done in 4-6 weeks. Councilmember Dawson referred to City Attorney Scott Snyder’s email recommending some environmental work be conducted prior to obtaining an appraisal. Mayor Haakenson was not aware that any further information was available regarding that suggestion. He anticipated that information would be presented to the Council on August 5. Councilmember Bernheim reported he contacted two professional appraisers who estimated the cost of an appraisal between $7,000 and $10,000. Councilmember Wambolt recalled the estimate provided by Mr. Snyder of an environmental study was very high. Mayor Haakenson recalled his original estimate was $300,000. Council President Plunkett suggested environmental due diligence could be conducted for approximately $20,000. Packet Page 24 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 22 COUNCILMEMBER BERNHEIM MOVED TO DIRECT STAFF TO OBTAIN AN APPRAISAL. MOTION DIED FOR LACK OF A SECOND. Council President Plunkett advised this would be discussed on August 5. 11. ADDITIONAL DISCUSSION AND POTENTIAL ACTION REGARDING THE BETTINGER/KRETZLER HISTORIC HOME CURRENTLY LOCATED AT 555 MAIN STREET Mayor Haakenson read the following article he emailed to Council and was published in the Edmonds Beacon: “I met with staff on Wednesday to explain that the Council would like additional updates on the potential of moving the house at 555 Main Street to the southwest corner of Civic Field. After much discussion with staff, it was determined I would send you the facts as we know them. We believe that the south and west setbacks at Civic Field are 20 feet from the property lines. No one knows exactly where the property lines are located without a survey. We will, for the sake of discussion, use the east side of the sidewalk on the west side and the back of the grandstand on the south side, knowing full well that the line may be a foot or so off. I personally went out with Fire Chief Tom Tomberg as my helper, to measure the house with a tape measure. We measured the setbacks and where the house would sit using the setbacks. It extends, depending on where you place the entrance, anywhere from six to ten feet into the running track. So, if the Council wants to place the house there, they can do it. The location would simply interfere with the use the track. Or, the Council could pass an ordinance suspending the setback requirements on a temporary basis, allowing them to ignore the setbacks, and place the house against the fences where it would not protrude on the track. If willing, the Council has the ability to put the house there permanently, or temporarily, depending on how they choose to use their own codes. Staff will follow their lead and direction and make it happen. The philosophical questions that they must answer are: 1. Is that location the best one for the house? 2. What will its use be? 3. Who will own and maintain it? Speaking administratively, we don't need another building for our (the City's) future space needs. We don't believe that Civic Field is the best location long- term for the house. We would love to see it remain in the bowl-that seems to be the right fit for it; however, no one appears to be interested in acquiring it. And we don't believe we have the responsibility to save the house for a City use when the City has no need for it. The City Council can choose to place the house on Civic Field if they wish. Staff is very busy and I struggle with asking them to spend any more time on this project. We ask the Council to make a decision one way or the other. If they don't want it at Civic Field, say so and allow the private sector of real estate to do its work. City staff, the City Council and many citizens feel it is a worthy cause to save the house. But it's time to make a decision and get on with business.” Council President Plunkett recalled Fred Bell, Edmonds Museum, indicated there were private funds available to move the house. He asked where funds would come from to move the house a second time if it were moved to the Civic Field temporarily. Mr. Bell responded the Museum established a line of credit with the Bank of Washington to move the house, set it up and make it operational. He was unwilling to commit the membership’s money on a temporary move. He anticipated if they were able to move the house to the Civic Field permanently, they would initiate a capital campaign to raise funds to support and maintain the building while they own it. He inquired who would own the building. He summarized time was running out; the property owner gave them another 30 days, which expires on August 1. Council President Plunkett summarized Mr. Bell’s response that the funds were subject to a permanent location. Mr. Bell agreed. Packet Page 25 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 23 Councilmember Bernheim asked what would happen to the house if the Council did not to act to save it. Mr. Bell responded if the Museum or City does not accept the house, the owner is under obligation with the Nickel Brothers Movers and it would be moved. Mayor Haakenson advised Nickel Brothers was moving a house in Woodway at the end of July through Edmonds to another community. He anticipated the same would be done with the Bettinger/Kretzler house. Councilmember Bernheim summarized the house would not be destroyed. Mr. Bell preferred to save the house and keep it in Edmonds as part of the City’s heritage. He suggested using the City funds moving the house to a temporary location until a permanent location could be found. Councilmember Wilson expressed his appreciation for Mr. Bell’s passion with regard to preserving this house. He inquired whether Larry Paul contacted him regarding a potential site. Mr. Bell responded that if the City or the Museum did not accept the house, the owner was under obligation to Nickels Brothers Movers who were already advertising the house on their website, as well as on Craig’s List. Councilmember Wilson concluded from Mr. Bell’s comments that the house could only go to the City or the Historical Society. Mayor Haakenson commented it was his understanding the property owners would allow the house to stay in the city if a suitable location were identified within the allotted timeframe. Councilmember Wilson advised Mr. Paul’s property was on or about 198th & 88th. Council agreed to return to this item after Mayor Haakenson conferred with the property owner. 12. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF JULY 8, 2008 Community Services/Development Services Committee Councilmember Wilson reported the Committee discussed the possibility of increasing foot traffic and retail sales downtown via closing parts of the downtown core. Concern was expressed that street closures cause a drop in sales. The Committee plans to meet with the Downtown Merchants Association next month. Finance Committee Councilmember Orvis reported the Committee discussed job titles and responsibility, a topic they will continue to discuss in the future. Public Safety Committee Councilmember Dawson reported staff provided a report on Substitute House Bill 1756 Annual Compliance Report which was approved on tonight’s Consent Agenda. The Committee also discussed anti-idling signs. Councilmember Bernheim provided signs that will be referred to the Public Works Department for placement in the City, such as in the ferry holding lanes and possibly contacting the Edmonds School District regarding posting the signs in school pick-up/drop-off areas. 11. ADDITIONAL DISCUSSION AND POTENTIAL ACTION REGARDING THE BETTINGER/KRETZLER HISTORIC HOME CURRENTLY LOCATED AT 555 MAIN STREET (CONTINUED) Mayor Haakenson reported with the constraint of August 1, if someone in the bowl wanted the house, whether the City, the Museum or another owner, it could be accomplished. Councilmember Wilson asked if it could only be located in the bowl area. Mayor Haakenson commented the house belonged in the bowl area. Councilmember Wilson concluded from Mayor Haakenson’s comments that if the house could not be cited in the bowl, it should be sent out of town. Mayor Haakenson anticipated a purchaser other than the Museum or the City would be required to negotiate with the owner. Councilmember Orvis expressed his preference to move the house to the southwest corner of Civic Field as a permanent location. Recognizing there were objections to that location, he noted there were ways it could work. He pointed out the historic downtown had not only aesthetic value but also economic benefits. He liked the idea Packet Page 26 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 24 of the Museum taking over the house, commenting that it could attract visitors to downtown, and be a viable use of the Civic Field land. To those who were opposed to siting the house on the Civic Field, he pointed out its history was a park use. He was open to the Museum operating the house. He was also open to siting the house at City Park. Councilmember Dawson did not recall an offer by the Historic Society to operate the facility and would expect that to be done by the City. She noted the City was not in a position to take on property that was expensive to maintain. She asked whether the Museum was interested in operating the facility. Mr. Bell answered the current plan was to move the house to the Civic Field to preserve it and, once relocated, have it placed on the historic registry and operate it as an annex of the Museum and be available for public use, just as the Plaza Room at the library, or the third floor of City Hall. Councilmember Dawson asked whether the Historic Museum intended to provide funds to staff and operate the facility. Mr. Bell answered yes. Councilmember Dawson commented this was the first she had heard of that offer, recalling in the past the intent was for the City to fund operation and maintenance of the house. Councilmember Wilson commented that he had similar concerns, questioning whether the Historical Society was willing to take on renovation costs that could reach into the hundreds of thousands of dollars. He questioned the City’s liability for anything that might happen in and around the structure located on City property. He also questioned what would happen if the Historical Society decided they no longer wanted to maintain or operate the facility and whether there would be funds available to demolish or move the house at that time. He was reluctant to reduce active park space by placing a building in that location. In order to site the house on Civic Field, he needed assurance that there would be no City funds for operations, no future liability for the City and no financial liability if the Historical Society decided they no longer wanted to operate the facility. He was uncertain that could be accomplished by the August 1 deadline. Mr. Bell advised the Museum Board needed to know whether they would be allowed to move the building to the Civic Field. Another question was how the Museum would retain title to the building if it was relocated to Edmonds School District property leased to the City. He described plans for a capital campaign to provide funds to operate the building in perpetuity and anticipated the Museum would staff the building with one person and with docents. They are discussing liability but their primary concern was saving the building. Councilmember Wilson stated it would be difficult to save the building unless these contractual and financial questions were addressed. He concluded no one was aware of the full magnitude of the immediate costs. COUNCIL PRESIDENT PLUNKETT MOVED, SECONDED BY COUNCILMEMBER DAWSON, TO EXTEND THE MEETING FOR 10 MINUTES. MOTION CARRIED UNANIMOUSLY. With regard to Mr. Bell’s concern regarding title to the house, Councilmember Dawson advised there were many examples where someone owned a building but not the underlying property, and the building rights were easily separated from the underlying property rights. Councilmember Wambolt commented this was a difficult decision for the Council. He pointed out part of what made a traditional building look good was the setting. This house would not look natural located in the corner of Civic Field. Further, the only way it could be sited on Civic Field was to violate the City’s regulations with regard to setback, which was not a good precedent to set. With all the other issues, he found it appropriate, recognizing that as much as the Council wanted to save the building, they were not able to. Council President Plunkett concurred with Councilmember Orvis’ comments, advising he would be willing to discuss this at a future meeting if the Historical Society was willing to provide a written commitment that they would pay to move the building, and fund maintenance and operation of the building, and resolve the title issue. Packet Page 27 of 244 Edmonds City Council Draft Minutes July 15, 2008 Page 25 Councilmember Bernheim commented his primary concern was saving other historic buildings in place. He agreed with Councilmember Wambolt’s comments and preferred that Civic Field be maintained for recreational uses. He commented his vision of Edmonds’ historic future was not moving buildings on to alternate locations. He expressed interest in developing regulations so that this situation did not occur in the future. Councilmember Wambolt summarized, as much as the Council wanted to support the acquisition of the Bettinger/Kretzler home, moving it to the only identified site at Civic Field was not a viable solution. COUNCILMEMBER WAMBOLT MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO NOT AUTHORIZE MOVING THE BUILDING. UPON ROLL CALL, MOTION FAILED (3-4) COUNCILMEMBERS WAMBOLT, BERNHEIM AND WILSON IN FAVOR; COUNCIL PRESIDENT PLUNKETT AND COUNCILMEMBERS ORVIS, DAWSON AND OLSON WERE OPPOSED. Council President Plunkett concluded the Council was open to hearing additional information that addressed the specific questions that were raised. 13. MAYOR'S COMMENTS Mayor Haakenson had no report. 14. COUNCIL COMMENTS Council President Plunkett advised options with regard to a summer retreat was to schedule it on a date that not all Councilmembers could attend, or schedule the retreat in the fall. Council President Plunkett advised Mayor Haakenson requested two Councilmember participate in the budget process. Councilmember Wambolt and Councilmember Wilson had volunteered. Councilmember Wilson expressed his appreciation for the public service announcements and Adopt-a-Dog items on the agenda. He reminded them of the Summer Concerts on Sundays at 3:00 p.m. in City Park. He reported the Lake Ballinger group met today; all the cities have signed the Interlocal Agreement. He reported Councilmembers Bernheim, Wambolt and he met with several people who expressed concern with the second floor in an effort to identify an amicable solution. He announced a Stevens Hospital special meeting on July 21st will include an opportunity for public comment about the future of the hospital and discussion regarding transfer of ownership to another party. A regular meeting is scheduled on July 23rd after which a press conference will be held. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER WAMBOLT, TO EXCUSE COUNCIL PRESIDENT PLUNKETT FOR THE JUNE AND JULY COUNCIL MEETINGS. MOTION CARRIED (6-0-1), COUNCIL PRESIDENT PLUNKETT ABSTAINED. 15. ADJOURN With no further business, the Council meeting was adjourned at 12:15 a.m. Packet Page 28 of 244 AM-1680 2.C. Approval of Claim Checks and Payroll Direct Deposits and Checks Edmonds City Council Meeting Date:07/22/2008 Submitted By:Debbie Karber Submitted For:Kathleen Junglov Time:Consent Department:Administrative Services Type:Action Review Committee: Action:Approved for Consent Agenda Information Subject Title Approval of claim checks #105599 through #105681 for July 17, 2008 in the amount of $155,046.93. Approval of payroll direct deposit and checks #46835 through #46955 for the period of July 1, 2008 through July 15, 2008 in the amount of $858,652.39. Recommendation from Mayor and Staff Approval of claim checks and payroll direct deposit and checks. Previous Council Action N/A Narrative In accordance with the State statutes, City payments must be approved by the City Council. Ordinance #2896 delegates this approval to the Council President who reviews and recommends either approval or non-approval of expenditures. Fiscal Impact Fiscal Year:2008 Revenue: Expenditure:$1,013,699.32 Fiscal Impact: Claims: $155,046.93 Payroll: $858,652.39 Attachments Link: claim chks 7-17-08 Form Routing/Status Route Seq Inbox Approved By Date Status 1 Admin Services Sandy Chase 07/17/2008 03:22 PM APRV 2 City Clerk Sandy Chase 07/17/2008 03:27 PM APRV 3 Mayor Gary Haakenson 07/17/2008 03:29 PM APRV 4 Final Approval Sandy Chase 07/17/2008 03:38 PM APRV Packet Page 29 of 244 Form Started By: Debbie Karber Started On: 07/17/2008 09:26 AM Final Approval Date: 07/17/2008 Packet Page 30 of 244 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 1 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 5 9 9 7 / 1 7 / 2 0 0 8 06 8 4 4 9 3 G I S P O R T S 14 3 5 0 3 AT H L E T I C S U P P L I E S LI N E U P C A R D S A N D T E N N I S B A L L S 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 1 0 . 3 1 0 . 0 0 80.25 Sa l e s T a x 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 1 0 . 3 1 0 . 0 0 7.22 Total :87.47 10 5 6 0 0 7 / 1 7 / 2 0 0 8 06 6 4 1 7 A I R G A S N O R P A C I N C 10 1 1 5 4 2 8 1 M5 Z 3 4 CA L I B R A T I O N G A S E S 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 1 1 25.00 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 1 1 2.25 M5 Z 3 4 10 1 1 6 3 6 8 0 CY L I N D E R R E N T A L 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 5 0 . 2 1 49.48 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 5 0 . 2 1 4.45 M5 Z 3 4 10 1 1 8 1 1 8 1 CA R B O N M O N O X I D E 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 1 1 346.30 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 1 1 17.50 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 1 1 32.74 Total :477.72 10 5 6 0 1 7 / 1 7 / 2 0 0 8 06 8 3 3 0 A M E R I C A N P R I N T I N G 43 3 1 9 NO T I C E T O P E R M I T T E E - B L D G . D E P T . NO T I C E T O P E R M I T T E E - B L D G . D E P T . 00 1 . 0 0 0 . 6 2 0 . 5 2 4 . 1 0 0 . 4 9 0 . 0 0 325.00 Sa l e s T a x 00 1 . 0 0 0 . 6 2 0 . 5 2 4 . 1 0 0 . 4 9 0 . 0 0 28.93 1 Page: Pa c k e t Pa g e 31 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 2 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 0 1 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 06 8 3 3 0 A M E R I C A N P R I N T I N G JO B S I T E C A R D S - B U I L D I N G D E P T . 43 3 2 0 JO B S I T E C A R D S - B U I L D I N G D E P T . 00 1 . 0 0 0 . 6 2 0 . 5 2 4 . 1 0 0 . 4 9 0 . 0 0 1,790.00 Sa l e s T a x 00 1 . 0 0 0 . 6 2 0 . 5 2 4 . 1 0 0 . 4 9 0 . 0 0 159.31 Total :2,303.24 10 5 6 0 2 7 / 1 7 / 2 0 0 8 0 6 6 0 2 5 A N D E R S O N , A N G I E A A N D E R S O N 0 7 1 2 PL A Z A R O O M M O N I T O R PL A Z A R O O M T R A I N I N G A N D M O N I T O R I N G 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 1 0 0 . 4 1 0 . 0 0 150.00 Total :150.00 10 5 6 0 3 7 / 1 7 / 2 0 0 8 06 9 7 5 1 A R A M A R K 65 5 - 3 7 7 4 4 7 0 18 3 8 6 0 0 1 UN I F O R M S 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 2 4 0 . 0 0 98.92 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 2 4 0 . 0 0 8.80 Total :107.72 10 5 6 0 4 7 / 1 7 / 2 0 0 8 07 1 1 2 4 A S S O C I A T E D P E T R O L E U M 57 5 4 0 9 75 1 7 9 DI E S E L F U E L 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 2 0 . 0 0 1,724.96 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 2 0 . 0 0 138.00 Total :1,862.96 10 5 6 0 5 7 / 1 7 / 2 0 0 8 06 4 3 4 3 A T & T 42 5 - 7 7 6 - 5 3 1 6 PA R K S F A X M O D E M PA R K S F A X M O D E M 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 2 0 . 0 0 39.85 Total :39.85 10 5 6 0 6 7 / 1 7 / 2 0 0 8 06 4 3 4 3 A T & T 42 5 - 7 7 4 - 0 9 4 4 ST A T I O N # 2 0 F A X ST A T I O N # 2 0 F A X 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 4 2 0 . 0 0 38.34 Total :38.34 2 Page: Pa c k e t Pa g e 32 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 3 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 0 7 7 / 1 7 / 2 0 0 8 06 4 3 4 1 A T & T M O B I L I T Y X0 7 0 6 2 0 0 8 C/ A 8 2 8 6 9 8 9 2 6 42 5 . 4 1 8 . 8 7 5 5 C l o s i n g B i l l 00 1 . 0 0 0 . 3 1 0 . 5 1 4 . 1 0 0 . 4 2 0 . 0 0 19.87 Total :19.87 10 5 6 0 8 7 / 1 7 / 2 0 0 8 06 9 0 7 6 B A C K G R O U N D I N V E S T I G A T I O N S I N C C O E 0 6 0 8 Ba c k g r o u n d c h e c k s e r v i c e s Ba c k g r o u n d c h e c k s e r v i c e s 00 1 . 0 0 0 . 2 2 0 . 5 1 6 . 1 0 0 . 4 1 0 . 0 0 510.00 Total :510.00 10 5 6 0 9 7 / 1 7 / 2 0 0 8 07 2 3 1 9 B E A C H C A M P L L C BE A C H C A M P 9 8 2 9 BE A C H C A M P @ S U N S E T B A Y CA M P # 9 8 2 9 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 900.00 Total :900.00 10 5 6 1 0 7 / 1 7 / 2 0 0 8 06 0 5 0 2 B E R G , C O L I N BE R G 9 5 7 1 TA I C H I C L A S S E S TA I C H I # 9 5 7 1 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 4 0 . 4 1 0 . 0 0 378.00 Total :378.00 10 5 6 1 1 7 / 1 7 / 2 0 0 8 06 9 2 1 8 B I S H O P , P A U L 49 07 / 0 8 W E B S I T E M A I N T E N A N C E Ju l y 0 8 W e b S i t e M a i n t e n a n c e ; R e v i s e d 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 1 0 . 0 0 592.50 Total :592.50 10 5 6 1 2 7 / 1 7 / 2 0 0 8 0 0 2 8 0 5 B R A N C H E A U , N A N C Y BR A N C H E A U 9 4 9 7 CL A Y C L A S S E S CL A Y E X P L O R A T I O N # 9 4 9 7 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 309.75 CR A F T S E X P L O R A T I O N # 9 4 9 3 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 414.00 CL A Y E X P L O R A T I O N # 9 4 9 5 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 507.00 Total :1,230.75 10 5 6 1 3 7 / 1 7 / 2 0 0 8 0 6 6 5 7 8 B R O W N A N D C A L D W E L L 14 8 2 7 7 2 Re c u r r i n g S t o r m E n g S e r v i c e s t h r u J u n e 3 Page: Pa c k e t Pa g e 33 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 4 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 1 3 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 06 6 5 7 8 B R O W N A N D C A L D W E L L Re c u r r i n g S t o r m E n g S e r v i c e s t h r u J u n e 00 1 . 0 0 0 . 6 2 0 . 5 3 2 . 2 0 0 . 4 1 0 . 0 0 11,249.25 E4 F C . O l d W o o d w a y S t o r m I n f i l t r a t i o n 41 2 . 2 0 0 . 6 3 0 . 5 9 4 . 3 2 0 . 4 1 0 . 0 0 1,305.00 E4 F C . R o b b e r s R o o s t S t o r m I m p s t h r u 41 2 . 2 0 0 . 6 3 0 . 5 9 4 . 3 2 0 . 4 1 0 . 0 0 2,525.00 E2 F A . L o r i a n W o o d s S t o r m I m p t s D e s i g n 41 2 . 2 0 0 . 6 3 0 . 5 9 4 . 3 2 0 . 4 1 0 . 0 0 2,088.00 Total :17,167.25 10 5 6 1 4 7 / 1 7 / 2 0 0 8 06 9 8 1 3 C D W G O V E R N M E N T I N C KT D 9 4 2 1 Bl a c k O t t e r b o x D e f e n d e r Bl a c k O t t e r b o x D e f e n d e r 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 559.00 Fr e i g h t 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 51.71 Sa l e s T a x 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 54.36 3 Y R W E B M O N I T O R I N G KX T 5 9 6 8 Mf g # S F C - N W C O L I C 0 0 W e b C o l l e c t o r 31 0 - 0 0 0 9 8 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 8 0 . 0 0 365.00 Mf g # S F C - R W E B L S T 3 2 5 0 F i l t e r L i s t - 31 0 - 0 0 0 9 8 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 8 0 . 0 0 7,900.00 MF G # S F C - W B S N S U I T E - C o n v e r s i o n 31 0 - 0 0 0 9 8 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 8 0 . 0 0 5,000.00 Sa l e s T a x 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 8 0 . 0 0 1,180.60 Re t u r n B l a c k O t t e r b o x D e f e n d e r KX X 6 3 0 0 Re t u r n B l a c k O t t e r b o x D e f e n d e r 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 -559.00 Fr e i g h t 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 -51.71 Sa l e s T a x 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 -54.36 Total :14,445.60 4 Page: Pa c k e t Pa g e 34 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 5 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 1 5 7 / 1 7 / 2 0 0 8 06 7 4 4 6 C E M C O R P O R A T I O N 32 2 0 9 8 46 6 9 1 5 BL A D E A S S E M B L Y / C O L L A R / S T E M 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 213.00 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 51.97 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 12.28 Total :277.25 10 5 6 1 6 7 / 1 7 / 2 0 0 8 0 0 3 5 1 0 C E N T R A L W E L D I N G S U P P L Y RN 0 6 0 8 1 1 1 1 29 5 4 0 0 0 CY L I N D E R R E N T A L 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 5 0 . 2 1 32.60 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 5 0 . 2 1 2.90 Total :35.50 10 5 6 1 7 7 / 1 7 / 2 0 0 8 00 3 5 1 0 C E N T R A L W E L D I N G S U P P L Y LY 1 3 3 5 6 4 AL S S U P P L I E S me d i c a l o x y g e n 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 56.07 Fr e i g h t 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 16.00 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 6.41 AL S S U P P L I E S LY 1 3 3 5 6 5 me d i c a l o x y g e n 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 72.07 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 6.41 AL S S U P P L I E S LY 1 3 3 5 6 6 me d i c a l o x y g e n 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 11.21 Fr e i g h t 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 16.00 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 3 1 0 . 0 0 2.41 5 Page: Pa c k e t Pa g e 35 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 6 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount (C o n t i n u e d ) Total :186.58 10 5 6 1 7 7 / 1 7 / 2 0 0 8 0 0 3 5 1 0 0 0 3 5 1 0 C E N T R A L W E L D I N G S U P P L Y 10 5 6 1 8 7 / 1 7 / 2 0 0 8 0 6 4 6 9 0 C H A M P I O N B O L T & S U P P L Y I N C 4 8 7 8 1 5 ED M 0 0 0 0 1 NU T S & B O L T S 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 71.54 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 6.16 Total :77.70 10 5 6 1 9 7 / 1 7 / 2 0 0 8 06 4 8 4 0 C H A P U T , K A R E N E CH A P U T 9 4 6 7 FR I D A Y N I G H T O U T FR I D A Y N I G H T O U T # 9 4 6 7 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 79.80 Total :79.80 10 5 6 2 0 7 / 1 7 / 2 0 0 8 00 4 0 9 5 C O A S T W I D E L A B O R A T O R I E S W 1 9 4 9 8 5 8 OP S S U P P L I E S St a t i o n s ' s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 340.49 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 30.30 Total :370.79 10 5 6 2 1 7 / 1 7 / 2 0 0 8 06 9 9 8 3 C O M M E R C I A L C A R D S O L U T I O N S 5 2 7 1 Re t i r e m e n t p o s t e r s - L u c a s & C l a r k Re t i r e m e n t p o s t e r s - L u c a s & C l a r k 00 1 . 0 0 0 . 2 1 0 . 5 1 3 . 1 0 0 . 4 1 0 . 0 0 461.30 AW C c o n f e r e n c e - h o t e l r o o m c h a r g e s ( L . 00 1 . 0 0 0 . 2 1 0 . 5 1 3 . 1 0 0 . 4 3 0 . 0 0 434.85 Pi z z a f o r t h e M a y o r ' s a n n u a l m e e t i n g 00 1 . 0 0 0 . 2 1 0 . 5 1 3 . 1 0 0 . 4 9 0 . 0 0 440.28 Total :1,336.43 10 5 6 2 2 7 / 1 7 / 2 0 0 8 0 6 9 9 8 3 C O M M E R C I A L C A R D S O L U T I O N S 1 0 3 3 Of f i c e M a x - P r i n t i n g 2 0 0 7 C A F R Of f i c e M a x - P r i n t i n g 2 0 0 7 C A F R 00 1 . 0 0 0 . 3 1 0 . 5 1 4 . 1 0 0 . 4 9 0 . 0 0 207.48 6 Page: Pa c k e t Pa g e 36 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 7 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 2 2 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 06 9 9 8 3 C O M M E R C I A L C A R D S O L U T I O N S Hi l t o n - T r a v e l C N e l s o n 12 8 7 Hi l t o n - T r a v e l C N e l s o n 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 3 0 . 0 0 144.95 Ad o b e S y s t e m I n c - P r e m i e r e E l e m e n t s 4 . 0 00 1 . 0 0 0 . 1 1 0 . 5 1 1 . 1 0 0 . 3 1 0 . 0 0 108.89 Mo b i l e S t o r e - B l a c k b e r r i e s 00 1 . 0 0 0 . 4 1 0 . 5 2 1 . 2 2 0 . 4 2 0 . 0 0 724.00 Mo b i l e S t o r e - B l a c k b e r r i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 4 2 0 . 0 0 340.70 Mo b i l e S t o r e - B l a c k b e r r i e s 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 6 0 0 . 4 2 0 . 0 0 127.76 Mo b i l e S t o r e - B l a c k b e r r i e s 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 2 0 . 0 0 85.19 As k n e t . s h o p - D a t a l P i l o t 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 2 0 . 0 0 49.90 Ic e w e b - C h a n g e s t o a c c t 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 8 0 . 0 0 64.85 Do m a i n N a m e - D o m a i n R e g i s t r a t i o n / 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 9 0 . 0 0 99.00 CD W - D e l u x F i b e r O p t i c C a b l e 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 139.12 Ex t r e m e P D A . c o m - C a s e f o r B l a c k b e r r y 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 2 0 . 0 0 36.90 Ma r q u e l . c o m - H o l s t e r f o r B l a c k b e r r y 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 2 0 . 0 0 22.95 Ic e w e b - M a i n t e n a n c e 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 4 8 0 . 0 0 29.95 Pr i n t e r t e c h s . c o m L a s e r P r i n t e r M a i n t K i t 00 1 . 0 0 0 . 3 1 0 . 5 1 8 . 8 8 0 . 3 1 0 . 0 0 183.00 Total :2,364.64 10 5 6 2 3 7 / 1 7 / 2 0 0 8 0 6 9 9 8 3 C O M M E R C I A L C A R D S O L U T I O N S 4 7 8 3 Re f r e s h m e n t s / D V D ' s C o u n c i l Re f r e s h m e n t s / D V D ' s C o u n c i l 00 1 . 0 0 0 . 1 1 0 . 5 1 1 . 1 0 0 . 3 1 0 . 0 0 67.32 7 Page: Pa c k e t Pa g e 37 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 8 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount (C o n t i n u e d ) Total :67.32 10 5 6 2 3 7 / 1 7 / 2 0 0 8 0 6 9 9 8 3 0 6 9 9 8 3 C O M M E R C I A L C A R D S O L U T I O N S 10 5 6 2 4 7 / 1 7 / 2 0 0 8 0 6 9 9 8 3 C O M M E R C I A L C A R D S O L U T I O N S 1 1 0 9 SM I T H Pr e v p u b / e d 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 3 0 0 . 3 1 0 . 0 0 465.06 W H I T E 12 3 2 Op s m e e t i n g s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 13.98 DA H L 84 7 5 Re s c u e T e c h b a g t a g s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 16.36 ST A R T Z M A N 97 5 9 Lu c a s & C l a r k c a k e s ( H R B a r s # ) 00 1 . 0 0 0 . 2 2 0 . 5 1 6 . 1 0 0 . 4 9 0 . 0 0 47.98 Ad m i n s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 1 0 0 . 3 1 0 . 0 0 165.10 CO R R E I R A 98 5 8 Op s C o m c a t n - U S B d r i v e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 32.65 Total :741.13 10 5 6 2 5 7 / 1 7 / 2 0 0 8 07 1 5 5 2 C U B B A G E , N A N C Y CU B B A G E 9 6 7 1 MO S A I C G A R D E N A R T MO S A I C G A R D E N A R T # 9 6 7 1 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 84.00 Total :84.00 10 5 6 2 6 7 / 1 7 / 2 0 0 8 00 6 6 3 5 D E P T O F L I C E N S I N G 07 1 5 0 8 UN D E R G R O U N D S T O R A G E T A N K L I C E N S E UN D E R G R O U N D S T O R A G E T A N K L I C E N S E 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 5 1 0 . 0 0 120.00 Total :120.00 10 5 6 2 7 7 / 1 7 / 2 0 0 8 02 9 9 0 0 D E P T O F R E T I R E M E N T S Y S T E M S 0 0 6 8 2 1 8 6 Ex c e s s C o m p e n s a t i o n S t u m p f , J o h n Ex c e s s C o m p e n s a t i o n S t u m p f , J o h n 41 1 . 0 0 0 . 6 5 4 . 5 3 4 . 8 0 0 . 2 3 0 . 0 0 1,056.55 Total :1,056.55 10 5 6 2 8 7 / 1 7 / 2 0 0 8 06 4 5 3 1 D I N E S , J E A N N I E 08 - 2 8 9 5 Ja n - M a y 0 8 S o C o C i t i e s A l l i a n c e M i n u t e 8 Page: Pa c k e t Pa g e 38 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 9 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 2 8 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 06 4 5 3 1 D I N E S , J E A N N I E Ja n - M a y 0 8 S o C o C i t i e s A l l i a n c e M i n u t e 00 1 . 0 0 0 . 0 0 0 . 2 3 7 . 9 1 0 . 0 0 0 . 0 0 423.00 Total :423.00 10 5 6 2 9 7 / 1 7 / 2 0 0 8 06 9 6 0 5 E A G L E E Y E C O N S U L T I N G E N G I N E E R S 2 0 0 8 0 3 8 PR O F E S S I O N A L S E R V I C E S - B L D G PR O F E S S I O N A L S E R V I C E S - B L D G 00 1 . 0 0 0 . 6 2 0 . 5 2 4 . 1 0 0 . 4 1 0 . 0 0 3,888.52 Total :3,888.52 10 5 6 3 0 7 / 1 7 / 2 0 0 8 07 2 3 4 2 E A S T M A N K O D A K C O M P A N Y I N C 2 7 5 F 0 4 3 8 4 RE P A I R O F M I C R O F I L M R E A D E R - B L D G D E P T . RE P A I R O F M I C R O F I L M R E A D E R - B L D G D E P T . 00 1 . 0 0 0 . 6 2 0 . 5 2 4 . 1 0 0 . 4 8 0 . 0 0 522.73 Total :522.73 10 5 6 3 1 7 / 1 7 / 2 0 0 8 00 7 6 7 5 E D M O N D S A U T O P A R T S 96 7 6 1 OP S S U P P L I E S st a t i o n s ' s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 50.89 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 4.53 Total :55.42 10 5 6 3 2 7 / 1 7 / 2 0 0 8 07 0 6 8 3 E D M O N D S M A I L & P A R C E L 1 4 6 5 2 UP S / D L I E N G I N E E R I N G UP S / D L I E N G I N E E R I N G 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 2 0 . 0 0 46.40 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 2 0 . 0 0 4.13 UP S / D L I E N G I N E E R I N G / R O Y C E E L E C T R O N I C S 14 6 8 0 UP S / D L I E N G I N E E R I N G / R O Y C E E L E C T R O N I C S 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 2 0 . 0 0 34.51 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 2 0 . 0 0 3.07 Total :88.11 10 5 6 3 3 7 / 1 7 / 2 0 0 8 06 7 0 4 2 F I N A L T O U C H F I N I S H I N G KI N G 9 5 0 4 ET I Q U E T T E C L A S S LO O K I N G G O O D F O R G I R L S ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 360.00 9 Page: Pa c k e t Pa g e 39 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 10 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount (C o n t i n u e d ) Total :360.00 10 5 6 3 3 7 / 1 7 / 2 0 0 8 0 6 7 0 4 2 0 6 7 0 4 2 F I N A L T O U C H F I N I S H I N G 10 5 6 3 4 7 / 1 7 / 2 0 0 8 0 1 2 1 9 9 G R A I N G E R 96 8 0 9 6 1 4 6 4 83 7 9 4 4 1 3 1 MO T O R 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 560.80 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 48.23 83 7 9 4 4 1 3 1 96 8 0 9 6 1 4 7 2 CO T T E R P I N K I T 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 24.66 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 2.12 Total :635.81 10 5 6 3 5 7 / 1 7 / 2 0 0 8 01 2 5 6 0 H A C H C O M P A N Y 57 9 4 0 1 1 11 2 8 3 0 NU T R I E N T B U F F E R 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 3 1 272.15 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 3 1 26.95 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 3 1 26.63 11 2 8 3 0 57 9 9 8 9 2 NI T R I F I C A T I O N I N H I B I T O R 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 3 1 166.31 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 3 1 15.95 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 3 1 16.22 Total :524.21 10 5 6 3 6 7 / 1 7 / 2 0 0 8 06 8 0 1 1 H A L L A M , R I C H A R D 59 LE O F F 1 R e i m b u r s e m e n t LE O F F 1 R e i m b u r s e m e n t 00 9 . 0 0 0 . 3 9 0 . 5 1 7 . 3 7 0 . 2 3 0 . 0 0 319.00 Total :319.00 10 5 6 3 7 7 / 1 7 / 2 0 0 8 07 2 3 4 7 H A M P T O N T R E E F A R M S Lo g S a l e s A g r e e m e n t LO G S A L E S A G R E E M E N T 7 / 1 1 / 0 8 10 Page: Pa c k e t Pa g e 40 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 11 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 3 7 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 07 2 3 4 7 H A M P T O N T R E E F A R M S 10 l o g s f o r W i l l o w C r e e k S t r e a m 12 5 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 3 1 0 . 0 0 936.00 Sa l e s T a x 12 5 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 3 1 0 . 0 0 83.30 Total :1,019.30 10 5 6 3 8 7 / 1 7 / 2 0 0 8 06 4 7 2 1 H A T Z E N B U H L E R , H A R O L D 57 LE O F F 1 R e i m b u r s e m e n t LE O F F 1 R e i m b u r s e m e n t 61 7 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 2 3 0 . 0 0 116.00 Total :116.00 10 5 6 3 9 7 / 1 7 / 2 0 0 8 0 0 6 0 3 0 H D R E N G I N E E R I N G I N C 31 3 4 5 - H E4 G A . S e r v i c e s t h r u 0 6 / 2 8 / 0 8 E4 G A . S e r v i c e s t h r u 0 6 / 2 8 / 0 8 41 2 . 3 0 0 . 6 3 0 . 5 9 4 . 3 2 0 . 6 5 0 . 0 0 10,464.15 Total :10,464.15 10 5 6 4 0 7 / 1 7 / 2 0 0 8 06 9 3 3 2 H E A L T H F O R C E O C C M E D 2 1 2 6 - 1 0 2 PR O F E S S I O N A L S E R V I C E S Hi l l s , S o u c y F i t f o r D u t y 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 4 1 0 . 0 0 1,298.00 Sa r c h i n 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 4 1 0 . 0 0 192.00 Total :1,490.00 10 5 6 4 1 7 / 1 7 / 2 0 0 8 07 0 0 4 2 I K O N F I N A N C I A L S E R V I C E S 7 6 7 6 7 7 4 7 C/ A 4 6 7 0 7 0 - 1 0 0 3 7 4 8 A 4 Fi n a n c e C o p i e r R e n t a l 6 / 2 2 - 7 / 2 1 / 0 8 00 1 . 0 0 0 . 3 1 0 . 5 1 4 . 2 3 0 . 4 5 0 . 0 0 454.07 Ad d i t i o n a l I m a g e s 4 / 2 8 - 5 / 2 6 / 0 8 00 1 . 0 0 0 . 3 1 0 . 5 1 4 . 2 3 0 . 4 5 0 . 0 0 426.53 Sa l e s T a x 00 1 . 0 0 0 . 3 1 0 . 5 1 4 . 2 3 0 . 4 5 0 . 0 0 78.38 Total :958.98 10 5 6 4 2 7 / 1 7 / 2 0 0 8 07 0 0 4 2 I K O N F I N A N C I A L S E R V I C E S 76 8 2 2 9 6 9 CO P I E R L E A S E Ca n n o n I m a g e R u n n e r 5 / 2 3 - 6 / 2 3 00 1 . 0 0 0 . 2 5 0 . 5 1 4 . 3 0 0 . 4 5 0 . 0 0 953.12 11 Page: Pa c k e t Pa g e 41 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 12 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount (C o n t i n u e d ) Total :953.12 10 5 6 4 2 7 / 1 7 / 2 0 0 8 0 7 0 0 4 2 0 7 0 0 4 2 I K O N F I N A N C I A L S E R V I C E S 10 5 6 4 3 7 / 1 7 / 2 0 0 8 0 1 5 2 7 0 J C I J O N E S C H E M I C A L S I N C 39 6 8 6 3 54 2 7 8 8 2 5 HY P O C H L O R I T E S O L U T I O N 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 5 3 3,692.92 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 5 3 324.98 Total :4,017.90 10 5 6 4 4 7 / 1 7 / 2 0 0 8 06 5 0 5 6 J O H N S O N , T R O Y TJ O H N S O N 0 7 1 2 PL A Z A R O O M M O N I T O R PL A Z A R O O M M O N I T O R ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 1 0 0 . 4 1 0 . 0 0 105.00 Total :105.00 10 5 6 4 5 7 / 1 7 / 2 0 0 8 07 2 1 9 9 J O N E S & S T O K E S A S S O C I A T E S I N C 0 0 5 4 3 6 0 E7 A D . S e r v i c e s t h r u 0 6 / 3 0 / 0 8 E7 A D . S e r v i c e s t h r u 0 6 / 3 0 / 0 8 11 2 . 2 0 0 . 6 3 0 . 5 9 5 . 4 4 0 . 4 1 0 . 0 0 23,687.56 Total :23,687.56 10 5 6 4 6 7 / 1 7 / 2 0 0 8 07 0 5 8 6 J O N E S , C O Y J O N E S 0 7 1 1 PO O L S T A F F T R A I N I N G YO S T P O O L S T A F F T R A I N I N G 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 2 0 . 4 1 0 . 0 0 100.00 Total :100.00 10 5 6 4 7 7 / 1 7 / 2 0 0 8 0 1 6 6 0 0 K R O E S E N S I N C 88 3 8 9 OP S P R O T E C T I V E C L O T H I N G Ni c h o l s ' c o v e r a l l s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 2 5 0 . 0 0 237.80 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 2 5 0 . 0 0 21.40 Total :259.20 10 5 6 4 8 7 / 1 7 / 2 0 0 8 06 0 1 3 2 L A B S A F E T Y S U P P L Y 10 1 1 7 8 4 5 1 2 OP S S U P P L I E S Lo c k O u t T a g O u t s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 1,231.40 Total :1,231.40 10 5 6 4 9 7 / 1 7 / 2 0 0 8 07 2 3 1 3 L A N G E N B U R G , G L E N N L. P . M I L L E R RE G I S T R A T I O N / L . P . M I L L E R - E D M O N D S P D 12 Page: Pa c k e t Pa g e 42 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 13 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 4 9 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 07 2 3 1 3 L A N G E N B U R G , G L E N N RE G I S T R A T I O N / L . P . M I L L E R ~ 00 1 . 0 0 0 . 4 1 0 . 5 2 1 . 4 0 0 . 4 9 0 . 0 0 550.00 Total :550.00 10 5 6 5 0 7 / 1 7 / 2 0 0 8 06 6 1 9 1 M A C L E O D R E C K O R D 50 0 5 E5 M C . S e r v i c e s t h r u 0 6 / 3 0 / 0 8 E5 M C . S e r v i c e s t h r u 0 6 / 3 0 / 0 8 12 5 . 0 0 0 . 6 4 0 . 5 9 4 . 7 5 0 . 4 1 0 . 0 0 20,767.29 Total :20,767.29 10 5 6 5 1 7 / 1 7 / 2 0 0 8 01 9 9 2 0 M C C A N N , M A R I A N 5 8 LE O F F 1 R e i m b u r s e m e n t LE O F F 1 R e i m b u r s e m e n t 00 9 . 0 0 0 . 3 9 0 . 5 1 7 . 3 7 0 . 2 9 0 . 0 0 5,629.50 Total :5,629.50 10 5 6 5 2 7 / 1 7 / 2 0 0 8 02 0 0 3 9 M C M A S T E R - C A R R S U P P L Y C O 9 1 5 9 7 7 1 7 12 3 1 0 6 8 0 0 PI P E F I T T I N G 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 204.30 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 7.10 12 3 1 0 6 8 0 0 91 7 2 8 0 0 9 ST E E L F L A N G E 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 296.96 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 56.30 12 3 1 0 6 8 0 0 92 5 4 2 0 7 7 ST E E L P I P E 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 230.00 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 1 14.32 Total :808.98 10 5 6 5 3 7 / 1 7 / 2 0 0 8 06 3 2 0 7 N E S S , S T E V E N 7/ 0 8 Tu i t i o n R e i m b u r s e m e n t Tu i t i o n R e i m b u r s e m e n t 00 1 . 0 0 0 . 2 2 0 . 5 1 6 . 1 0 0 . 4 9 0 . 0 0 575.00 Total :575.00 13 Page: Pa c k e t Pa g e 43 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 14 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 5 4 7 / 1 7 / 2 0 0 8 06 3 1 3 1 N I C H O L S , R O B E R T 7/ 0 8 Tu i t i o n R e i m b u r s e m e n t Tu i t i o n R e i m b u r s e m e n t 00 1 . 0 0 0 . 2 2 0 . 5 1 6 . 1 0 0 . 4 9 0 . 0 0 575.00 Total :575.00 10 5 6 5 5 7 / 1 7 / 2 0 0 8 07 2 0 3 2 N O R R , J U L I E NO R R 9 4 4 8 W I G G L E S & G I G G L E S W I G G L E S & G I G G L E S # 9 4 4 8 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 330.40 Total :330.40 10 5 6 5 6 7 / 1 7 / 2 0 0 8 06 1 0 1 3 N O R T H W E S T C A S C A D E I N C 07 6 3 6 8 6 HO N E Y B U C K E T R E N T A L HO N E Y B U C K E T R E N T A L : ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 5 0 . 0 0 98.02 HO N E Y B U C K E T R E N T A L 07 6 3 6 8 7 HO N E Y B U C K E T R E N T A L : ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 5 0 . 0 0 98.02 HO N E Y B U C K E T R E N T A L 07 6 3 6 8 8 HO N E Y B U C K E T R E N T A L : ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 5 0 . 0 0 373.57 Total :569.61 10 5 6 5 7 7 / 1 7 / 2 0 0 8 06 3 5 1 1 O F F I C E M A X I N C 53 6 6 5 4 MI S C . O F F I C E S U P P L I E S I N C L U D I N G B A N K E R S MI S C . O F F I C E S U P P L I E S I N C L U D I N G B A N K E R S 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 8 0 0 . 3 1 0 . 0 0 342.89 Ki n g C o u n t y S a l e s T a x 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 8 0 0 . 3 1 0 . 0 0 30.86 MI S C O F F I C E S U P P L I E S / E N G . V I E W B I N D E R S 53 7 1 1 9 MI S C O F F I C E S U P P L I E S / E N G . V I E W B I N D E R S 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 8 0 0 . 3 1 0 . 0 0 191.09 Ki n g C o u n t y S a l e s T a x 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 8 0 0 . 3 1 0 . 0 0 17.19 Total :582.03 10 5 6 5 8 7 / 1 7 / 2 0 0 8 06 3 5 1 1 O F F I C E M A X I N C 58 8 4 8 1 OP S S U P P L I E S 14 Page: Pa c k e t Pa g e 44 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 15 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 5 8 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 06 3 5 1 1 O F F I C E M A X I N C St a t i o n s ' o f f i c e s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 162.81 Ki n g C o u n t y S a l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 14.65 OP S S U P P L I E S 62 3 1 9 2 St a t i o n s ' o f f i c e s u p p l i e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 86.94 Ki n g C o u n t y S a l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 7.83 Total :272.23 10 5 6 5 9 7 / 1 7 / 2 0 0 8 07 2 3 4 3 O L Y M P I C 4 X 4 S U P P L Y 24 3 8 5 6 OP S E X P E N D A B L E T O O L S Hi - L i f t E x t r e m e J a c k s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 5 9 . 0 0 507.60 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 5 9 . 0 0 43.15 Total :550.75 10 5 6 6 0 7 / 1 7 / 2 0 0 8 06 6 4 1 2 P A R K S & R E C R E A T I O N D A Y C A M P C A M P C A S H 0 7 1 5 DA Y C A M P P E T T Y C A S H R E I M B U R S E M E N T DA Y C A M P S U P P L I E S 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 3 0 . 4 9 0 . 0 0 112.97 DA Y C A M P S U P P L I E S 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 3 0 . 3 1 0 . 0 0 157.37 Da y c a m p T r a v e l 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 3 0 . 4 3 0 . 0 0 26.50 Total :296.84 10 5 6 6 1 7 / 1 7 / 2 0 0 8 03 0 4 0 0 P U G E T S O U N D C L E A N A I R A G E N C Y 0 8 0 8 4 S - 3 C/ A E D M O 0 0 5 Q3 - 2 0 0 8 C l e a n A i r A s s e s s m e n t p e r R C W 00 1 . 0 0 0 . 3 9 0 . 5 3 1 . 7 0 0 . 5 1 0 . 0 0 5,711.75 Total :5,711.75 10 5 6 6 2 7 / 1 7 / 2 0 0 8 06 4 2 9 1 Q W E S T 20 6 - Z 0 2 - 0 4 7 8 3 3 2 B TE L E M E T R Y TE L E M E T R Y 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 2 0 . 0 0 137.85 15 Page: Pa c k e t Pa g e 45 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 16 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount (C o n t i n u e d ) Total :137.85 10 5 6 6 2 7 / 1 7 / 2 0 0 8 0 6 4 2 9 1 0 6 4 2 9 1 Q W E S T 10 5 6 6 3 7 / 1 7 / 2 0 0 8 0 7 1 6 9 4 R A P I D R E F I L L I N K 17 6 9 4 OP S S U P P L I E S in k c a r t r i d g e s 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 57.85 Sa l e s T a x 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 3 1 0 . 0 0 5.15 Total :63.00 10 5 6 6 4 7 / 1 7 / 2 0 0 8 06 8 4 8 3 R H 2 E N G I N E E R I N G I N C 47 8 5 8 E3 J C . S e r v i c e s t h r u 0 6 / 2 2 / 0 8 E3 J C . S e r v i c e s t h r u 0 6 / 2 2 / 0 8 41 2 . 1 0 0 . 6 3 0 . 5 9 4 . 3 2 0 . 6 5 0 . 0 0 2,979.50 Total :2,979.50 10 5 6 6 5 7 / 1 7 / 2 0 0 8 06 9 8 7 9 S A L T E R J O Y C E Z I K E R P L L C 20 6 9 6 EN V I R O N M E N T A L L E G A L F E E S - T H R U 7 / 0 7 / 0 8 81 0 W a l n u t L e g a l F e e s - 7 / 0 7 / 0 8 41 1 . 0 0 0 . 6 5 2 . 5 4 2 . 9 0 0 . 4 1 0 . 0 0 46.00 Ol d M i l l t o w n L e g a l F e e s - 7 / 0 7 / 0 8 00 1 . 0 0 0 . 6 1 0 . 5 1 9 . 7 0 0 . 4 1 0 . 0 0 782.00 Total :828.00 10 5 6 6 6 7 / 1 7 / 2 0 0 8 06 9 2 1 9 S I E M E N S W A T E R T E C H N O L O G I E S C O R SL S / 3 0 0 5 7 0 7 1 11 0 3 7 4 PR O B E / O - R I N G 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 2 608.00 Fr e i g h t 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 2 60.18 Sa l e s T a x 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 3 1 0 . 2 2 54.12 Total :722.30 10 5 6 6 7 7 / 1 7 / 2 0 0 8 0 3 7 3 7 5 S N O C O P U D N O 1 24 6 0 0 1 8 7 5 3 CI T Y P A R K R E S T R O O M S CI T Y P A R K R E S T R O O M S 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 7 0 . 0 0 40.05 CI T Y P A R K S O U T H R E S T R O O M S & C O V E R E D 50 3 0 0 1 1 7 7 8 CI T Y P A R K S O U T H R E S T R O O M S & C O V E R E D 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 7 0 . 0 0 71.79 16 Page: Pa c k e t Pa g e 46 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 17 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 6 7 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 03 7 3 7 5 S N O C O P U D N O 1 IR R I G A T I O N S Y S T E M 50 7 0 0 1 4 2 4 5 IR R I G A T I O N S Y S T E M 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 7 0 . 0 0 30.23 Total :142.07 10 5 6 6 8 7 / 1 7 / 2 0 0 8 03 8 1 0 0 S N O - K I N G S T A M P 39 2 9 2 8 S T A M P S - E N G . D E P T . ~ 8 S T A M P S - E N G . D E P T . ~ 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 8 0 0 . 3 1 0 . 0 0 204.47 Total :204.47 10 5 6 6 9 7 / 1 7 / 2 0 0 8 0 0 6 6 3 0 S N O H O M I S H C O U N T Y I0 0 0 2 0 4 1 3 0 SO W 5 1 0 1 SO L I D W A S T E D I S P O S A L 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 9 0 . 0 0 30.00 Total :30.00 10 5 6 7 0 7 / 1 7 / 2 0 0 8 06 9 9 9 7 S R I T E C H N O L O G I E S I N C 86 8 7 7 E8 C A . R o b e r t s t h r u 0 7 / 0 5 / 0 8 E8 C A . R o b e r t s t h r u 0 7 / 0 5 / 0 8 11 2 . 2 0 0 . 6 3 0 . 5 9 5 . 3 3 0 . 6 5 0 . 0 0 1,332.50 Total :1,332.50 10 5 6 7 1 7 / 1 7 / 2 0 0 8 04 6 2 0 0 S T A T E O F W A S H I N G T O N Q2 - 0 8 Q2 - 0 8 L e a s e h o l d T a x L i a b i l i t y Q2 - 0 8 L e a s e h o l d T a x L i a b i l i t y 00 1 . 0 0 0 . 0 0 0 . 2 3 7 . 2 2 0 . 0 0 0 . 0 0 3,554.98 Total :3,554.98 10 5 6 7 2 7 / 1 7 / 2 0 0 8 07 1 5 7 7 T A Y L O R , K A T H L E E N 10 3 3 CO N S U L T A N T S E R V I C E S - P L A N N I N G D E P T . CO N S U L T A N T S E R V I C E S - P L A N N I N G D E P T . 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 6 0 0 . 4 1 0 . 0 0 1,137.50 Total :1,137.50 10 5 6 7 3 7 / 1 7 / 2 0 0 8 07 1 5 9 0 T R T L C C Ju n e 0 8 - E d m o n d s HE A R I N G E X A M I N E R S E R V I C E S . HE A R I N G E X A M I N E R S E R V I C E S . 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 6 0 0 . 4 1 0 . 0 0 3,500.00 PO S T A G E / C O P I E S F O R H E A R I N G E X A M I N E R Ju n e 0 8 - E X P E N S E PO S T A G E / C O P I E S F O R H E A R I N G E X A M I N E R 00 1 . 0 0 0 . 6 2 0 . 5 5 8 . 6 0 0 . 4 1 0 . 0 0 34.37 17 Page: Pa c k e t Pa g e 47 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 18 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount (C o n t i n u e d ) Total :3,534.37 10 5 6 7 3 7 / 1 7 / 2 0 0 8 0 7 1 5 9 0 0 7 1 5 9 0 T R T L C C 10 5 6 7 4 7 / 1 7 / 2 0 0 8 0 7 2 0 9 8 U N I V E R S A L F I E L D S E R V I C E S L L C 3 4 0 4 5 E6 D A . S e r v i c e s t h r u 0 6 / 3 0 / 0 8 E6 D A . S e r v i c e s t h r u 0 6 / 3 0 / 0 8 12 5 . 0 0 0 . 6 4 0 . 5 9 4 . 7 5 0 . 4 1 0 . 0 0 78.21 Total :78.21 10 5 6 7 5 7 / 1 7 / 2 0 0 8 06 4 2 1 4 U S S S A W A S H I N G T O N S T A T E 11 2 SO F T B A L L R E G I S T R A T I O N S ME N ' S A N D M I X E D T E A M ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 2 0 . 4 9 0 . 0 0 1,015.00 Total :1,015.00 10 5 6 7 6 7 / 1 7 / 2 0 0 8 01 1 9 0 0 V E R I Z O N N O R T H W E S T 42 5 - 7 4 4 - 1 6 8 1 SE A V I E W P A R K I R R I G A T I O N M O D E M SE A V I E W P A R K I R R I G A T I O N M O D E M 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 2 0 . 0 0 45.73 SI E R R A P A R K I R R I G A T I O N M O D E M 42 5 - 7 4 4 - 1 6 9 1 SI E R R A P A R K I R R I G A T I O N M O D E M 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 2 0 . 0 0 45.08 ME A D O W D A L E P R E S C H O O L 42 5 - 7 4 5 - 5 0 5 5 ME A D O W D A L E P R E S C H O O L 00 1 . 0 0 0 . 6 4 0 . 5 7 5 . 5 6 0 . 4 2 0 . 0 0 58.08 GR O U N D S M A I N T E N A N C E F A X M O D E M 42 5 - 7 7 6 - 5 3 1 6 GR O U N D S M A I N T E N A N C E F A X M O D E M 00 1 . 0 0 0 . 6 4 0 . 5 7 6 . 8 0 0 . 4 2 0 . 0 0 108.57 Total :257.46 10 5 6 7 7 7 / 1 7 / 2 0 0 8 06 7 8 6 5 V E R I Z O N W I R E L E S S 06 7 1 5 3 6 5 8 7 OP S C O M M U N I C A T I O N S ai r c a r d 00 1 . 0 0 0 . 5 1 0 . 5 2 2 . 2 0 0 . 4 2 0 . 0 0 60.01 Total :60.01 10 5 6 7 8 7 / 1 7 / 2 0 0 8 07 0 1 8 6 W A S T F I R E F I G H T E R S T R A I N I N G & 7 2 4 4 AL S M I S C Sc h l e i c h e r H a z m a t A L S 00 1 . 0 0 0 . 5 1 0 . 5 2 6 . 1 0 0 . 4 9 0 . 0 0 300.00 Total :300.00 10 5 6 7 9 7 / 1 7 / 2 0 0 8 0 6 4 2 3 4 W I L D W A T E R R I V E R T O U R S I N C A M U N D S O N 9 3 6 2 W H I T E W A T E R R A F T I N G 18 Page: Pa c k e t Pa g e 48 of 24 4 07 / 1 7 / 2 0 0 8 Vo u c h e r L i s t Ci t y o f E d m o n d s 19 9 : 2 1 : 2 7 A M Page: vc h l i s t Ba n k c o d e : fr o n t Vo u c h e r Da t e Ve n d o r In v o i c e PO # De s c r i p t i o n /Ac c o u n t Amount 10 5 6 7 9 7 / 1 7 / 2 0 0 8 (C o n t i n u e d ) 06 4 2 3 4 W I L D W A T E R R I V E R T O U R S I N C W E N A T C H E E W H I T E W A T E R R A F T I N G ~ 00 1 . 0 0 0 . 6 4 0 . 5 7 4 . 2 0 0 . 4 1 0 . 0 0 1,214.96 Total :1,214.96 10 5 6 8 0 7 / 1 7 / 2 0 0 8 07 1 1 5 9 W O O D E N O S H A K E S P E A R E C O M P A N Y W O O D E N O 0 7 2 0 PA R K P E R F O R M A N C E PE R F O R M A N C E I N T H E P A R K ~ 11 7 . 1 0 0 . 6 4 0 . 5 7 3 . 1 0 0 . 4 1 0 . 0 0 1,500.00 Total :1,500.00 10 5 6 8 1 7 / 1 7 / 2 0 0 8 06 5 3 5 7 Z U V E L A , C U R T 1 5 5 4 ZU V E L A T R A V E L W E F C O N F . ZU V E L A T R A V E L W E F C O N F . 41 1 . 0 0 0 . 6 5 6 . 5 3 8 . 8 0 0 . 4 3 0 . 0 0 407.00 Total :407.00 Bank total : 1 5 5 , 0 4 6 . 9 3 83 V o u c h e r s f o r b a n k c o d e : fr o n t 155,046.93 Total vouchers : Vo u c h e r s i n t h i s r e p o r t 83 19 Page: Pa c k e t Pa g e 49 of 24 4 AM-1675 2.D. Claim for Damages Edmonds City Council Meeting Date:07/22/2008 Submitted By:Linda Hynd Submitted For:Sandy Chase Time:Consent Department:City Clerk's Office Type:Action Review Committee: Action: Information Subject Title Acknowledge receipt of Claims for Damages from Haines Point Homeowners' Association (amount undetermined), and William Stanton ($1,776.36). Recommendation from Mayor and Staff It is recommended that the City Council acknowledge receipt of the Claims for Damages by minute entry. Previous Council Action N/A Narrative Claims for Damages have been received from the following entities: Haines Point Homeowners' Association 7731 168th Place SW Edmonds, WA 98026 (Amount undetermined) William Stanton 19340 20th Avenue NW Shoreline, WA 98177 ($1,776.36) Fiscal Impact Attachments Link: Haines Point Claim for Damages Link: Stanton Claim for Damages Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/15/2008 10:45 AM APRV 2 Mayor Gary Haakenson 07/15/2008 01:14 PM APRV Packet Page 50 of 244 3 Final Approval Sandy Chase 07/16/2008 03:19 PM APRV Form Started By: Linda Hynd Started On: 07/15/2008 09:54 AM Final Approval Date: 07/16/2008 Packet Page 51 of 244 Packet Page 52 of 244 Packet Page 53 of 244 Packet Page 54 of 244 Packet Page 55 of 244 Packet Page 56 of 244 Packet Page 57 of 244 AM-1672 2.E. Proclamation - Masonic Lodge Edmonds City Council Meeting Date:07/22/2008 Submitted By:Linda Carl Submitted For:Gary Haakenson Time:Consent Department:Mayor's Office Type:Information Review Committee: Action: Information Subject Title Proclamation in honor of the 100th anniversary of Edmonds Masonic Lodge No. 165. Recommendation from Mayor and Staff Previous Council Action Narrative Edmonds Masonic Lodge No. 165 will celebrate its 100th anniversary and reconstitution on Saturday, July 26. Many prominent residents have been members of Masonic Lodge No. 165, including George Brackett and Daniel Yost. The Masons are active in many local causes, such as Bikes for Books and the South County Senior Center. They will have a ceremony at 10 a.m. on July 26 in honor of their 100th anniversary milestone. Fiscal Impact Attachments Link: Proclamation Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/15/2008 10:45 AM APRV 2 Mayor Gary Haakenson 07/15/2008 01:14 PM APRV 3 Final Approval Sandy Chase 07/16/2008 03:19 PM APRV Form Started By: Linda Carl Started On: 07/10/2008 03:52 PM Final Approval Date: 07/16/2008 Packet Page 58 of 244 Packet Page 59 of 244 AM-1678 2.F. Old Woodway Elem. School Park & Infiltration System Edmonds City Council Meeting Date:07/22/2008 Submitted By:Brian McIntosh Time:Consent Department:Parks and Recreation Type:Action Review Committee: Action: Information Subject Title Report on bids opened July 8, 2008 for the Old Woodway Elementary School Park and Regional Infiltration System and award of contract to Premium Construction Group, Inc. This consent agenda item was considered by the Council on July 15, 2008. Recommendation from Mayor and Staff Authorize Mayor to sign a contract with Premium Construction Group, Inc. for construction of a regional infiltration system and neighborhood park at the Old Woodway Elementary School site. Previous Council Action On May 6, 2008, City Council authorized Staff to advertise for bids on construction of the Old Woodway Elementary School Park & Regional Infiltration System. On July 15, 2008, City Council instructed Staff to place the authorization to sign a contract with Premium Construction Group, Inc., on the July 22, 2008 Consent Agenda. This contract would not include Schedule 5, the pervious parking surface. Narrative Nine bids were received for this project ranging from $1,719,267 to $2,403,460 and this indicates a competitive bidding process. The project included 6 schedules with Schedules 1 & 2 being Regional Stormwater and Storm Outlet Improvements. The total cost for these will be $210,560 (base bid $175,580) and the amount budgeted in the 412-200 Storm Utility is $385,000. Schedules 3, 4, & 6 are Park Construction and Public ROW improvements. Total cost for these, not including the $110,480 additive for Schedule 5, pervious parking lot, is $1,577,902 (base bid $1,316,017). The budgeted amount in Fund 125, Park Improvements, is $1,200,000. Staff recommends an additional appropriation of $377,902 that is available in this fund. Fiscal Impact Attachments Link: Old Woodway Park Map Link: Old Woodway Bid Review Packet Page 60 of 244 Form Routing/Status Route Seq Inbox Approved By Date Status 1 Engineering Conni Curtis 07/17/2008 11:37 AM APRV 2 City Clerk Sandy Chase 07/17/2008 11:56 AM APRV 3 Mayor Gary Haakenson 07/17/2008 02:27 PM APRV 4 Final Approval Sandy Chase 07/17/2008 03:03 PM APRV Form Started By: Brian McIntosh Started On: 07/16/2008 03:12 PM Final Approval Date: 07/17/2008 Packet Page 61 of 244 Packet Page 62 of 244 BID REVIEW: REGIONAL INFILTRATION SYSTEM & OLD WOODWAY ELEMENTARY PARK 9 bids were received for this combination project ranging from $1,719,267 to $2,403,460. (not including 1% for Art, Project Management, or Contingency) Schedules 1-2: Regional Stormwater Infiltration & Storm Outlet Improvements Low Bid Engineer’s Estimate Base bid $175,580 $454,900 WSSTax (8.9%) 15,675 40,486 1% for Art 1,745 4,549 Project Management (5%) 8,780 22,745 Contingency (5%) 8,780 22,745 Total 210,560 545,425 Funding: 412-200 Storm Utility $385,000 is budgeted Schedules 3-6: Complete Park Construction & Public ROW Improvements Base Bid $1,316,017 1,186,216 WSSTax (8.9%) 117,125 105,573 1% for art 13,160 10,557 Project Management (5%) 65,800 59,310 Contingency (5%) 65,800 59,310 Total Base Bid 1,577,902 1,420,966 Pervious surface parking lot 92,145 62,991 WSSTax (8.9%) 8,200 5,606 1% for art 921 629 Project Management (5%) 4,607 3,150 Contingency (5%) 4,607 3,150 Total add’l cost pervious: 110,480 75,526 Funding: Parks 125 Fund $1,200,000 is budgeted. Additional appropriation of $377,902 needed or $488,382 if pervious surface parking added Packet Page 63 of 244 AM-1681 2.G. Ordinance amending the Official Street Map for 203rd Street SW Edmonds City Council Meeting Date:07/22/2008 Submitted By:Conni Curtis Submitted For:Noel Miller Time:Consent Department:Engineering Type:Action Review Committee: Action: Information Subject Title Ordinance amending the Official Street Map authorizing the Development Services Director to make changes (reduce certain planned line right of way on 203rd Street SW from thirty to fifteen feet in width). This consent agenda item was considered by the Council on July 1, 2008. Recommendation from Mayor and Staff Council adopt the proposed ordinance amending the Official Street Map. Previous Council Action On July 1, 2008, a public hearing was held on the recommendation of the Hearing Examiner to amend the Official Street Map (OSM) on a portion of 203rd Street SW adjacent to 20323 81st Avenue West. Narrative On July 1, 2008, a public hearing was held on the recommendation of the Hearing Examiner to amend the Official Street Map (OSM) to reduce the required street dedication from 30 feet to 15 feet on a portion of 203rd Street SW adjacent to 20323 81st Avenue West. Council voted to uphold the Hearing Examiner decision to approve the requested OSM amendment. (See Attachment 1.) The ordinance amending the Official Street Map is shown in Attachment 2. Fiscal Impact Attachments Link: Public Hearing Minutes Link: OSM Ordinance Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/17/2008 10:59 AM APRV 2 Mayor Gary Haakenson 07/17/2008 11:27 AM APRV 3 Final Approval Sandy Chase 07/17/2008 11:28 AM APRV Form Started By: Conni Curtis Started On: 07/17/2008 09:50 AM Final Approval Date: 07/17/2008 Packet Page 64 of 244 Packet Page 65 of 244 Packet Page 66 of 244 Packet Page 67 of 244 Packet Page 68 of 244 Packet Page 69 of 244 Packet Page 70 of 244 AM-1667 4. Verizon Franchise Agreement - Public Hearing and First Reading Edmonds City Council Meeting Date:07/22/2008 Submitted By:Stephen Clifton Time:45 Minutes Department:Community Services Type:Action Review Committee: Action: Information Subject Title Public Hearing and First Reading: An ordinance of the City of Edmonds, Washington granting a nonexclusive franchise to Verizon Northwest, Inc. to construct, maintain, operate and repair a cable system to provide cable services in, across, over, along under, upon, through and below the public rights-of-way of the City of Edmonds; providing for severability and establishing an effective date. Recommendation from Mayor and Staff 1. Approve Ordinance #______ and adopt the proposed Cable Franchise Agreement between the City of Edmonds and Verizon Northwest Inc.; and 2. Authorize the Mayor to execute the proposed Franchise Agreement on behalf of the City. Previous Council Action On February 26, 2008, the City Council directed the City Attorney to continue with a schedule which outlined possible "Next Steps" regarding negotiations with Verizon. On March 25, 2008, the City Council authorized Mayor Haakenson to sign an Interlocal Agreement Consortium For Negotiation of Cable Television Franchising, in addition to preparing and executing a Consultant Agreement with River Oaks. Narrative Verizon Northwest Inc. (“Verizon”) seeks to provide cable television service, utilizing a Fiber to the Premise Telecommunications Network to City of Edmonds (“City”) residents, businesses and institutions in competition with the existing cable television operator serving the City. In order to do so, Verizon and the City must first execute a cable franchise agreement. As such, Verizon has requested, from the City, a franchise to operate and provide cable television service within incorporated areas of the City. Attached for your review and consideration, is a staff report, ordinance adopting a Cable Franchise Agreement between the City of Edmonds and Verizon Northwest Inc. (“Franchise Agreement”), and Cable Franchise Agreement between the City of Edmonds and Verizon Northwest Inc. Also attached is a presentation outline which City staff and River Oaks will follow during the July 22, 2008 City Council meeting, and a biography of River Oaks. Packet Page 71 of 244 Fiscal Impact Attachments Link: Exhibit 1 - Staff Report Link: Exhibit 2 - Ordinance Link: Exhibit 3 - Franchise Agreement Link: Exhibit 4 - Presentation Outline Link: Exhibit 5 - River Oaks' Bio Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/18/2008 08:20 AM APRV 2 Mayor Gary Haakenson 07/18/2008 10:29 AM APRV 3 Final Approval Sandy Chase 07/18/2008 10:33 AM APRV Form Started By: Stephen Clifton Started On: 07/10/2008 12:23 PM Final Approval Date: 07/18/2008 Packet Page 72 of 244 City of Edmonds Community Services Department Economic Development Department Date: July 17, 2008 To: Mayor Haakenson and City Council members From: Stephen Clifton, AICP Community Services and Acting Economic Development Director Subject: Cable Franchise Agreement between the City of Edmonds, Washington and Verizon Northwest Inc. Recommendation: Mayor Haakenson and City staff recommend that the City Council: 1. Approve Resolution #______ and adopt the proposed Cable Franchise Agreement between the City of Edmonds and Verizon Northwest Inc.; and 2. Authorize the Mayor to execute the proposed Franchise Agreement on behalf of the City. Summary: Verizon currently is in the process of upgrading its existing Telecommunications Facilities in the City by installing a state-of-the-art Fiber to the Premise Telecommunications Network (“FTTP Network”). Verizon is installing its FTTP Network as a common carrier pursuant to Title II of the Communications Act, and in accordance with Washington law. The FTTP Network will utilize fiber-optic cables and associated optical electronics instead of copper wire to connect customers to the Verizon network. The FTTP Network will use laser- generated pulses of light to transmit voice, data and video signals via the fiber at speeds and capacities far exceeding today’s copper-cable systems. In addition to providing residents with voice and high-speed data services, Verizon Northwest Inc. (“Verizon”) seeks to provide cable television service, utilizing the FTTP Network, to City (“City”) residents, businesses and institutions in competition with the existing cable television operator serving the City. In order to do so, Verizon and the City must first execute a cable franchise agreement. As such, Verizon has requested, from the City, a franchise to operate and provide cable television service within incorporated areas of the City. Attached for your review and consideration, is an ordinance granting a City of Edmonds Z Community Services and Economic Development Packet Page 73 of 244 nonexclusive Franchise to Verizon Northwest, Inc., and Cable Franchise Agreement between the City of Edmonds and Verizon Northwest Inc. (“Franchise Agreement”). The City’s franchising of additional cable providers is governed by Title VI of the Communications Act (“Act”). The Act provides that a franchising authority may award one or more franchises within its jurisdiction and may not unreasonably refuse to award an additional competitive franchise [47 U.S.C. § 541(a)(1)]. Federal law sets forth requirements with respect to granting an additional cable television franchise. Section 621(a) of the Communications Act requires that the City “assure that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides” and sets forth certain provisions which shall or may be included in a franchise [47 U.S.C. § 541(a)(3)-(4)]. The City Attorney and staff have examined each of the legal requirements for approval of the draft cable television Franchise Agreement, as well as any applicable provisions in existing franchises. These include consideration of the requirements in U.S. Code (U.S.C.) Title 47 § 541(a) and all other applicable provisions of law, including Edmonds City Code 4.68 relating to cable antenna television systems as amended by Ordinance 3668 in November of 2007. Based upon the information provided by Verizon, other evidence presented to staff and its own investigation, the proposed Franchise Agreement meets the legal requirements for approval and complies with applicable provisions in existing franchises. Currently, the City is served by one cable television operator and various satellite cable providers that are not required to operate under a franchise agreement. Negotiations between Verizon and the City have resulted in a Franchise Agreement that contains a number of provisions designed to serve the interests of the City and its residents. Awarding this Franchise Agreement to Verizon will afford the residents, businesses and institutions located within the City, a choice of more than one provider of cable service. Background: City staff and Verizon representatives first met on January 17, 2008 to discuss potential processes for issuance of a new franchise as it relates to the delivery of cable TV services. During a February 26, 2008 City Council meeting, Scott Snyder, Edmonds City Attorney, presented a February 14, 2008 memorandum addressed to the City Council which outlined possible "Next Steps" regarding negotiations with Verizon. Mr. Snyder also discussed a proposal to work collectively with other jurisdictions in order to ensure that the public receives the maximum rights and benefits from their respective franchise agreements. Following the February 26, 2008 City Council meeting, Mr. Snyder and I negotiated an interlocal agreement with Snohomish County and nine other cities, hereinafter referred to as the North Puget Sound Consortium (“Consortium”). On March 25, 2008, the City Council authorized Mayor Haakenson to sign an Interlocal Agreement Consortium For Negotiation of Cable Television Franchising in addition to preparing and executing a consultant agreement with River Oaks. The Consortium and River Oaks have since been negotiating on behalf of 2 Packet Page 74 of 244 all Consortium members in an effort to create a template that could be used by each jurisdiction, subject to refinement and further negotiation between Verizon and each entity. The refined Cable Franchise Agreement Between City of Edmonds and Verizon Northwest Inc., is the result of post Consortium discussions between City representatives and Verizon. Major Provisions of the Proposed Franchise Agreement: The Consortium, City of Edmonds Attorney and staff have negotiated the proposed Franchise Agreement with Verizon based on the City of Edmonds’ identification and prioritization of the cable-related needs and interests of Edmonds residents, businesses and institutions. Major provisions of the proposed Franchise Agreement are highlighted as follows: o Verizon must offer cable television service to a significant number of subscribers within twelve (12) months of the Service Date and to all residential areas of the City in the proposed initial service area within thirty-six (36) months of the Service Date, subject to the terms of the Franchise. Verizon’s initial service area will include the entire City (Proposed Franchise Agreement § 3.1.1 and Exhibit A). o A 15-year franchise term from the effective date of the Franchise Agreement (Proposed Franchise Agreement § 2.3). o Verizon has agreed to provide free service to public buildings and schools as listed in Exhibit B (Proposed Franchise Agreement § 3.3). o Verizon will provide one (1) dedicated Educational (E) Access Channel, one (1) dedicated government Access Channel (collectively “EG Channels”); and reserve for future use one (1) additional dedicated Channel for Educational Access and one (1) additional dedicated Channel for Government Access (the “Reserve Channels”) (Proposed Franchise Agreement § 6.1.1). o Verizon will provide to the City an initial EG Grant in the amount of TEN THOUSAND DOLLARS ($10,000) within ninety (90) days of the effect date of the Franchise Agreement for the purposes of purchasing capital equipment associated with the EG channels (Proposed Franchise Agreement § 6.2.3). o If during the Term of this Franchise, all other Cable Operator(s) begin to provide an EG Grant, Franchisee agrees to match the EG Grant in the amount of up to ONE DOLLAR ($1.00) per Subscriber, per month. Franchisee's obligation under this Section 6.2.2 is contingent upon all other Cable Operators making the same grant payment on a per Subscriber, per month (Proposed Franchise Agreement § 6.2.2). o Verizon will pay the City a franchise fee in the amount of five percent (5%) of its annual gross revenues derived from operation of the Cable System (Proposed Franchise Agreement § 7.1). 3 Packet Page 75 of 244 o Extensive customer service requirements, including requirements regarding telephone availability for customer inquiries, billing, installation and service calls, complaint procedures, and communications with subscribers (Proposed Franchise Agreement § 8 and Exhibit D). o Audit requirements (Proposed Franchise Agreement 7.8). o Liability insurance and indemnification requirements (Proposed Franchise Agreement § 10). o Verizon will provide a TWENTY-FIVE THOUSAND DOLLARS ($25,000) performance bond or other security to secure its faithful performance of all material provisions of the Agreement (Proposed Franchise Agreement § 13.1). o Verizon will pay liquidated damages within 30 days after being assessed by the City an amount of $100 - $250 per day depending on what sections of the franchise agreement are breached. If liquidated damages are not paid within the thirty (30) days after they are assessed, the City may proceed against the performance bond. Total liquidated damages shall not exceed an amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000) in any twelve (12) month period (Proposed Franchise Agreement § 13.2.2). o Verizon will provide a Franchise Grant in the amount of TEN THOUSAND DOLLARS ($10,000) to the City of Edmonds which may be used for any lawful purpose. These funds will in essence serve as an application fee and help pay a portion of the legal fees incurred by the City to negotiate the franchise agreement (Proposed Franchise Agreement § 14.1). Other pertinent provisions of the proposed Franchise Agreement include: ● Enforcement and termination provisions (Proposed Franchise Agreement § 13). ● Franchise transfer and renewal procedures (Proposed Franchise Agreement § 11 & § 12, respectively). Because the proposed Franchise Agreement is the product of negotiations, certain provisions differ from the City’s incumbent cable agreement. Additionally, because Verizon is a Title II provider of Telecommunications Services construction standards and provisions relating to the actual wire lines are absent from this agreement. The agreement as a whole is in the public interest and is reasonably comparable to the incumbent cable agreement. Analysis: 4 Packet Page 76 of 244 1. Whether the franchise applicant has the technical and financial ability to perform. 47 U.S.C. § 541(a)(4). Verizon Northwest Inc. has provided telecommunications services to residential and business customers for many years. Its ultimate parent company, Verizon Communications, is a Dow 30 company, one of the world’s leading providers of telecommunications services, and generates annual consolidated revenues of approximately $90 billion. Verizon intends to bring residents a choice of cable television service providers by offering a cable service product that is intended to be competitive with the existing cable television offerings in the City. The major components of Verizon’s planned service offering will include: a basic service and other channel tiers, including access channels, pay per view events and movies, a wide variety of high definition television channels, digital music channels, digital video recorder set-top boxes, and an interactive programming guide. Verizon has a good faith basis to believe that its service offering will be attractive to consumers, and that it will be economically feasible for Verizon to provide cable television services within the City. Verizon has demonstrated the financial, technical and legal qualifications required for the grant of a franchise. 2. Assurance that access to cable service is not denied to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides. 47 U.S.C. § 541 (a)(3). The negotiated Franchise Agreement requires Verizon to offer cable service to a significant number of subscribers within twelve (12) months of the service date and to all residential areas of Verizon’s designated initial service area within thirty-six (36) months of the service date, subject to the terms of the Agreement. Verizon pledges in its Franchise Agreement that it “shall not discriminate between or among any individuals in the availability of cable service.” As previously described herein, the Communications Act requires that the City assure that Verizon does not discriminate based on income in providing cable service. City Staff was mindful of this federal requirement in negotiating the franchise, and this requirement is specifically addressed by Sections 3.1.1 and 3.2. Verizon’s service map and franchise requirements show that there appears to be no economic deficiencies in the proposed service plan. 3. Verizon has met the following minimum franchise obligations of Edmonds City Code 4.68 relating to Cable Antenna Television Systems as amended under Ordinance 3668 Section E: a. Model Franchises - The applicant has identified ownership; applicant and proposed franchisee; business structure; experience; and management structure and agreement; legal qualifications; equal employment opportunity and affirmative action; and financial qualifications. Additionally, the applicant has met the technical qualifications such as defining the proposed geographic service area (see Exhibit A of the Franchise Agreement), describing planned 5 Packet Page 77 of 244 services, and operations related to the Franchise Agreement (see Exhibit D, Customer Service Standards, of the Franchise Agreement). b. Rights-of-Way (“ROW” Regulations) – The applicant has secured a permit to construct and install a FTTP network within City ROW and is subject to ROW provisions as established by the City. c. Non-Discrimination – Verizon pledges in its Franchise Agreement that it “shall not discriminate between or among any individuals in the availability of cable service.” As previously described, the Communications Act requires that the City assure that Verizon does not discriminate based on income in providing cable service (see Sections 3.1.1 and 3.2 of the Franchise Agreement). d. Franchise Fees – As reference earlier, Verizon will pay the City a franchise fee in the amount of five percent (5%) of its annual gross revenues. Conclusion: Cable competition will bring to the City of Edmonds: o Customer choice for cable television services. o An extensive lineup of cable programming, both traditional and nontraditional, EG access programming, and pay-per-view services. o Customer service at least equal in quality to that of the incumbent franchisee. Based on the evidence presented herein, granting a nonexclusive franchise to provide cable television services to Verizon is in the public interest, and Verizon requests the City Council approve the Franchise Agreement. Negotiations between Verizon, the Consortium and the City, have resulted in an agreement that contains a number of provisions designed to protect the best interests of the City and its residents, and approval of the Franchise Agreement will provide residents, businesses and public institutions within the City of Edmonds more choice as it relates to cable television service. 6 Packet Page 78 of 244 0006.080052 ERZ 7/17/2008 ORDINANCE NO. AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON GRANTING A NONEXCLUSIVE FRANCHISE TO VERIZON NORTHWEST, INC. TO CONSTRUCT, MAINTAIN, OPERATE AND REPAIR A CABLE SYSTEM TO PROVIDE CABLE SERVICES IN, ACROSS, OVER, ALONG, UNDER, UPON, THROUGH AND BELOW THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF EDMONDS; PROVIDING FOR SEVERABILITY AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City of Edmonds (the “City”) has negotiated a Franchise Agreement with Verizon Northwest, Inc. (“Verizon”), granting Verizon a franchise, authority, right and privilege for a period of fifteen (15) years to construct, maintain, operate and repair a cable system in the City, as set forth in the Franchise Agreement attached hereto, labeled Exhibit A and hereby incorporated by reference; and WHEREAS, Verizon has requested that the City grant it a new franchise for the provision of cable television services within the City; and WHEREAS, pursuant to RCW 35A.11.030 and 47 U.S.C. § 541(a)(1), the City has the power, among other things, to grant franchises; and WHEREAS, the City has analyzed and considered the technical ability, financial condition, legal qualifications, and general character of Verizon, warrants that all other conditions resulting from the grant of this Franchise have been considered by the City, and has determined that it is in the best interest of the City and its residents to grant a cable Franchise to Verizon; and WHEREAS, Verizon and the City have agreed to be bound by the conditions hereinafter set forth; NOW, THEREFORE, {ERZ699840.DOC;2/00006.080052/} 1 Packet Page 79 of 244 THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Franchise Granted. Pursuant to RCW 35A.47.040, the City of Edmonds hereby grants a nonexclusive franchise to Verizon Northwest, Inc. according to the terms and conditions set forth on Exhibit A attached hereto and incorporated herein by this reference as if set forth in full. Subject to the provisions therein, the term of the franchise shall be for a period of fifteen (15) years from the effective date of the franchise, as defined in Exhibit A, and shall grant Verizon the right, privilege and authority to construct, maintain, operate, and repair a cable system to provide cable services in, on, across, over, along, under, upon, through and below the public rights-of-way of the City of Edmonds, all as provided in Exhibit A. Section 2. Deadline for Acceptance. The franchise granted by Section 1 of this ordinance shall be void and of no effect unless Verizon files with the City Clerk written acceptance of the franchise and all of its terms and conditions within thirty (30) days after the Effective Date of this ordinance and in a form satisfactory to the City Attorney. Section 3. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of any other section, sentence, clause or phrase of this ordinance. Section 4. Effective Date. Pursuant to RCW 35A.47.040, this ordinance has been passed at least five days after its first introduction and by a majority of the whole membership of the City Council at a regular meeting. This ordinance, being the exercise of a power specifically delegated to the City’s legislative body, is not subject to referendum, and shall take effect five (5) days after passage and publication of an approved summary consisting of the title. {ERZ699840.DOC;2/00006.080052/} 2 Packet Page 80 of 244 APPROVED: MAYOR GARY HAAKENSON ATTEST/AUTHENTICATED: CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: BY W. SCOTT SNYDER FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. {ERZ699840.DOC;2/00006.080052/} 3 Packet Page 81 of 244 SUMMARY OF ORDINANCE NO. __________ of the City of Edmonds, Washington On the ____ day of ___________, 2008, the City Council of the City of Edmonds, passed Ordinance No. _____________. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON GRANTING A NONEXCLUSIVE FRANCHISE TO VERIZON NORTHWEST, INC. TO CONSTRUCT, MAINTAIN, OPERATE AND REPAIR A CABLE SYSTEM TO PROVIDE CABLE SERVICES IN, ACROSS, OVER, ALONG, UNDER, UPON, THROUGH AND BELOW THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF EDMONDS; PROVIDING FOR SEVERABILITY AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this _____ day of ________________, 2008. CITY CLERK, SANDRA S. CHASE {ERZ699840.DOC;2/00006.080052/} 4 Packet Page 82 of 244 CABLE FRANCHISE AGREEMENT BETWEEN THE CITY OF EDMONDS, WASHINGTON AND VERIZON NORTHWEST INC. 2008 Seattle-3435598.1 0010932-00119 Packet Page 83 of 244 TABLE OF CONTENTS ARTICLE PAGE 1. DEFINITIONS...................................................................................................................2 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS.......................................8 3. PROVISION OF CABLE SERVICE..............................................................................10 4. SYSTEM OPERATION..................................................................................................11 5. SYSTEM FACILITIES ...................................................................................................11 6. EG SERVICES................................................................................................................12 7. FRANCHISE FEES.........................................................................................................14 8. CUSTOMER SERVICE..................................................................................................16 9. REPORTS AND RECORDS...........................................................................................16 10. INSURANCE AND INDEMNIFICATION....................................................................17 11. TRANSFER OF FRANCHISE........................................................................................19 12. RENEWAL OF FRANCHISE.........................................................................................20 13. ENFORCEMENT AND TERMINATION OF FRANCHISE........................................20 14. MISCELLANEOUS PROVISIONS................................................................................23 EXHIBIT A INITIAL SERVICE AREA ..................................................................................28 EXHIBIT B MUNICIPAL LOCATIONS AND SCHOOLS TO BE PROVIDED FREE CABLE SERVICE.................................................................................................29 EXHIBIT C REMITTANCE FORM.........................................................................................31 EXHIBIT D CUSTOMER SERVICE STANDARDS..............................................................32 EXHIBIT E PERFORMANCE BOND.....................................................................................42 Seattle-3435598.1 0010932-00119 ii Packet Page 84 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 THIS CABLE FRANCHISE AGREEMENT (the “Franchise” or “Agreement”) is entered into by and between the City of Edmonds, a duly organized City under the applicable laws of the State of Washington (the “City”) and Verizon Northwest Inc., a corporation duly organized under the applicable laws of the State of Washington (the “Franchisee”). WHEREAS, the City wishes to grant Franchisee a nonexclusive franchise to construct, install, maintain, extend and operate a cable communications system in the Franchise Area as designated in this Franchise; WHEREAS, the City is a “franchising authority” in accordance with Title VI of the Communications Act (see 47 U.S.C. § 522(10)) and is authorized to grant one or more nonexclusive cable franchises pursuant to Washington State law and federal law; WHEREAS, Franchisee is in the process of installing a Fiber to the Premise Telecommunications Network (the “FTTP Network”) in the Franchise Area for the transmission of Non-Cable Services pursuant to authority granted by the state of Washington; WHEREAS, Franchisee intends to construct, install, maintain, and extend the FTTP Network pursuant to Title II of the Communications Act (see 47 U.S.C. § 201 et seq.), and has requested a cable franchise from the City to operate a Cable System over, under, and along the Public Rights-of-Way within the City’s jurisdiction, in accordance with Title VI of the Communications Act (see 47 U.S.C. § 521 et seq.); WHEREAS, the FTTP Network will occupy the Public Rights-of-Way within the City, and Franchisee desires to use portions of the FTTP Network once installed to provide Cable Services (as hereinafter defined) in the Franchise Area; WHEREAS, the City has identified the future cable-related needs and interests of the City and its community, has considered the financial, technical and legal qualifications of Franchisee, and has determined that Franchisee’s plans for its Cable System are adequate, in a full public proceeding affording due process to all parties; WHEREAS, the City desires to protect and manage the Public Rights-of-Way, require high standards of customer service, receive financial compensation relating to Franchisee’s use of the Public Rights-of-Way as provided by federal law, obtain educational and governmental channels, establish certain reporting and record access requirements, and provide for the future cable-related needs of its residents; WHEREAS, the City has found Franchisee to be financially, technically, and legally qualified to operate the Cable System; WHEREAS, the City has determined that the grant of a nonexclusive franchise to Franchisee is consistent with the public interest; and Seattle-3435598.1 0010932-00119 1 Packet Page 85 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 WHEREAS, the City and Franchisee have reached agreement on the terms and conditions set forth herein and the parties have agreed to be bound by those terms and conditions. NOW, THEREFORE, in consideration of the City’s grant of a franchise to Franchisee, Franchisee’s promise to provide Cable Service to residents of the Franchise Area of the City pursuant to and consistent with the Communications Act (as hereinafter defined), pursuant to the terms and conditions set forth herein, the promises and undertakings herein, and other good and valuable consideration, the receipt and the adequacy of which are hereby acknowledged, THE PARTIES DO HEREBY AGREE AS FOLLOWS: 1. DEFINITIONS Except as otherwise provided herein, the definitions and word usages set forth in the Communications Act (as hereinafter defined) are incorporated herein and shall apply in this Agreement. In addition, the following definitions shall apply: 1.1 Access Channel: A video Channel, which Franchisee shall make available to the City without charge for non-commercial Educational or Governmental use for the transmission of video programming as directed by the City. 1.1.1 Educational Access Channel: An Access Channel available for the use solely of the local schools (schools shall include any educational institution, public or private, but excluding home schools) in the Franchise Area. 1.1.2 Government Access Channel: An Access Channel available for the use solely of the City. 1.1.3 EG: Educational and Governmental. 1.2 Additional Service Area: Shall mean any such portion of the Service Area added pursuant to Section 3.1.3 of this Agreement. 1.3 Affiliate: Any Person who, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with Franchisee. 1.4 Basic Service: Any service tier, which includes the retransmission of local television broadcast signals as well as the EG Channels required by this Franchise. 1.5 Cable Operator: Shall be defined herein as it is defined under section 602 of the Communications Act, 47 U.S.C. § 522(5), but does not include direct broadcast satellite providers. 1.6 Cable Service or Cable Services: Shall be defined herein as it is defined under section 602 of the Communications Act, 47 U.S.C. § 522(6). Seattle-3435598.1 0010932-00119 2 Packet Page 86 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 1.7 Cable System or System: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(7), meaning, “a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of title II of this Act, except that such facility shall be considered a cable system (other than for purposes of section 621(c)) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with section 653 of this title; or (E) any facilities of any electric utility used solely for operating its electric utility systems.” The Cable System shall be limited to the optical spectrum wavelength(s), bandwidth or future technological capacity that is used for the transmission of Cable Services directly to Subscribers within the Franchise/Service Area and shall not include the tangible network facilities of a common carrier subject, in whole or in part, to Title II of the Communications Act or of an Information Services provider. 1.8 Channel: Shall be defined herein as it is defined under section 602 of the Communications Act, 47 U.S.C. § 522(4). 1.9 City: The City of Edmonds or the lawful successor, transferee, or assignee thereof. 1.10 Communications Act: The Communications Act of 1934, as amended by, among other things, the Cable Communications Policy Act of 1984, the Cable Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996, as it may be further amended from time to time. 1.11 Control: The ability to exercise de facto or de jure control over day-to-day policies and operations or the management of Franchisee’s affairs. 1.12 FCC: The United States Federal Communications Commission or successor governmental entity thereto. 1.13 Fiber to the Premise Telecommunications Network (“FTTP Network”): The Franchisee’s network that transmits Non-Cable Services pursuant to the authority granted under the laws of the state of Washington and under Title II of the Communications Act (which Non- Cable Services are not subject to Title VI of the Communications Act), and that supports the Cable System. 1.14 Force Majeure: Force Majeure is an event or events reasonably beyond the ability of Franchisee to anticipate and control, such as: Seattle-3435598.1 0010932-00119 3 Packet Page 87 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 (a) severe or unusual weather conditions, fire, flood, or other acts of God, strikes, labor disturbances, lockouts, war or act of war (whether an actual declaration of war is made or not), insurrection, riots or act of a public enemy; (b) actions or inactions of any government instrumentality or public utility including condemnation, accidents for which Franchisee is not primarily responsible or work delays caused by waiting for other utility providers to service or monitor utility poles to which Franchisee’s FTTP Network is attached, and unavailability of materials and/or qualified labor to perform the work necessary; and (c) telephone network outages only when such outages are outside the control of Franchisee. 1.15 Franchise Area: The incorporated area (entire existing territorial limits) of the City and such additional areas as may be included in the corporate (territorial) limits of the City during the term of this Franchise. 1.16 Franchisee: Verizon Northwest Inc., and its lawful and permitted successors, assigns and transferees. 1.17 Gross Revenue: All revenue, as determined in accordance with generally accepted accounting principles, which is derived by Franchisee and/or its Affiliates from the operation of the Cable System to provide Cable Service in the Service Area. Gross Revenue shall include but may not be limited to the following items so long as all other Cable Operators in the Service Area include the same in Gross Revenues for purposes of calculating franchise fees: (a) fees charged for Basic Service; (b) fees charged to Subscribers for any service tier other than Basic Service; (c) fees charged for premium Channel(s), e.g. HBO, Cinemax, or Showtime; (d) fees charged to Subscribers for any optional, per-channel, or per-program services; (e) charges for installation, additional outlets, relocation, disconnection, reconnection, and change-in-service fees for video or audio programming; (f) fees for downgrading any level of Cable Service programming; (g) fees for service calls; (h) fees for leasing of Channels; (i) rental of customer equipment, including converters (e.g. set top boxes, high definition converters, and digital video recorders) and remote control devices; Seattle-3435598.1 0010932-00119 4 Packet Page 88 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 (j) advertising revenue as set forth herein; (k) revenue from the sale or lease of access Channel(s) or Channel capacity; (l) revenue from the sale or rental of Subscriber lists; (m) revenues or commissions received from the carriage of home shopping channels; (n) fees for any and all music services that are deemed to be a Cable Service over a Cable System; (o) revenue from the sale of program guides; (p) late payment fees; (q) forgone revenue that Franchisee chooses not to receive in exchange for trades, barters, services, or other items of value; (r) revenue from NSF check charges; (s) revenue received from programmers as payment for programming content cablecast on the Cable System; and (t) Franchise Fees hereunder. Advertising commissions paid to independent third parties shall not be deducted from advertising revenue included in Gross Revenue. Advertising revenue is based upon the ratio of the number of Subscribers as of the last day of the period for which Gross Revenue is being calculated to the number of Franchisee’s Subscribers within all areas covered by the particular advertising source as of the last day of such period, e.g., Franchisee sells two ads: Ad “A” is broadcast nationwide; Ad “B” is broadcast only within Washington. Franchisee has one hundred (100) Subscribers in the Franchise Area, five hundred (500) Subscribers in Washington, and one thousand (1,000) Subscribers nationwide. Gross Revenue as to the City from Ad “A” is ten percent (10%) of Franchisee’s revenue therefrom. Gross Revenue as to the City from Ad “B” is twenty percent (20%) of Franchisee’s revenue therefrom. Notwithstanding the foregoing, Gross Revenue shall not include: 1.17.1 Revenues received by any Affiliate or other Person in exchange for supplying goods or services used by Franchisee to provide Cable Service over the Cable System; 1.17.2 Bad debts written off by Franchisee in the normal course of its business, provided, however, that bad debt recoveries shall be included in Gross Revenue during the period collected; 1.17.3 Refunds, rebates or discounts made to Subscribers or other third parties; Seattle-3435598.1 0010932-00119 5 Packet Page 89 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 1.17.4 Any revenues classified, in whole or in part, as Non-Cable Services revenue under federal or state law including, without limitation, revenue received from Telecommunications Services; revenue received from Information Services, including, without limitation, Internet Access service, electronic mail service, electronic bulletin board service, or similar online computer services; and any other revenues attributed by Franchisee to Non-Cable Services in accordance with FCC or state public utility regulatory commission rules, regulations, standards or orders, provided that if any such services are Cable Services at any future time pursuant to applicable law, revenues derived from such services shall be included in Gross Revenues; 1.17.5 Payments by Subscribers for merchandise purchased from any home shopping channel offered as part of the Cable Services; provided, however, that commissions or other compensation paid to Franchisee by such home shopping channel for the promotion or exhibition of products or services shall be included in Gross Revenue; 1.17.6 Revenues from the sale of Cable Services on the Cable System to a reseller, when the reseller pays the cable Franchise fees on the resale of Cable Services; 1.17.7 Any tax of general applicability imposed upon Franchisee or upon Subscribers by a city, state, federal or any other governmental entity and required to be collected by Franchisee and remitted to the taxing entity (including, but not limited to, sales/use tax, gross receipts tax, excise tax, utility users tax, public service tax, communication taxes and non-cable franchise fees), provided however, as set forth in Section 1.17(t), Franchise Fees under this Agreement are included in Gross Revenues; 1.17.8 Any foregone revenue which Franchisee chooses not to receive in exchange for its provision of free or reduced cost cable or other communications services to any Person, including without limitation, employees of Franchisee and public institutions or other institutions designated in the Franchise; provided, however, that such foregone revenue which Franchisee chooses not to receive in exchange for trades, barters, services or other items of value shall be included in Gross Revenue; 1.17.9 Sales of capital assets or sales of surplus equipment; 1.17.10 Reimbursement by programmers of marketing costs incurred by Franchisee for the introduction of new programming pursuant to a written marketing agreements; 1.17.11 Directory or Internet advertising revenue including, but not limited to, yellow page, white page, banner advertisement and electronic publishing; 1.17.12 Any fees or charges collected from Subscribers or other third parties for EG Grant. 1.18 Information Services: Shall be defined herein as it is defined under Title I, Section 3 of the Communications Act, 47 U.S.C. §153(20). Seattle-3435598.1 0010932-00119 6 Packet Page 90 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 1.19 Initial Service Area: The portion of the Franchise Area as outlined in Exhibit A. 1.20 Internet Access: Dial-up or broadband access service that enables Subscribers to access the Internet. 1.21 Non-Cable Services: Any service that does not constitute the provision of Video Programming directly to multiple Subscribers in the Franchise Area including, but not limited to, Information Services and Telecommunications Services. 1.22 Normal Operating Conditions: Those service conditions which are within the control of the Franchisee. Those conditions which are not within the control of the Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages (to the extent such outages are on non-Verizon networks or caused by Force Majeure), and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the Franchisee include, but are not limited to, special promotions, pay-per- view events, rate increases, regular peak or seasonal demand periods, and maintenance or rebuild of the Cable System. See 47 C.F.R. § 76.309(c)(4)(ii). 1.23 Person: An individual, partnership, association, joint stock company, trust, corporation, or governmental entity. 1.24 Public Rights-of-Way: The surface and the area across, in, over, along, upon and below the surface of the public streets, roads, bridges, sidewalks, lanes, courts, ways, alleys, and boulevards, including, public utility easements and public lands and waterways (to the extent the City has authority to grant the use of such waterways) used as Public Rights-of-Way, as the same now or may thereafter exist, which are under the jurisdiction or control of the City. Public Rights-of-Way do not include the airwaves above a right-of-way with regard to cellular or other nonwire communications or broadcast services, nor do Public Rights-of-Way include real property owned in fee by the City unless such property is a public right-of-way. 1.25 Service Area: All portions of the Franchise Area where Cable Service is being offered, including the Initial Service Area and any Additional Service areas. 1.26 Service Date: The date that the Franchisee first provides Cable Service on a commercial basis directly to multiple Subscribers in the Franchise Area. The Franchisee shall memorialize the Service Date by notifying the City in writing of the same, which notification shall become a part of this Franchise. 1.27 Service Interruption: The loss of picture or sound on one or more cable channels. 1.28 Subscriber: A Person who lawfully receives Cable Service over the Cable System with Franchisee’s express permission. 1.29 Telecommunications Facilities: Franchisee’s existing Telecommunications Services and Information Services facilities and its FTTP Network facilities. Seattle-3435598.1 0010932-00119 7 Packet Page 91 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 1.30 Telecommunications Services: Shall be defined herein as it is defined under Section 3 of the Communications Act, 47 U.S.C. § 153(46). 1.31 Title II: Title II of the Communications Act. 1.32 Title VI: Title VI of the Communications Act. 1.33 Video Programming: Shall be defined herein as it is defined under Section 602 of the Communications Act, 47 U.S.C. § 522(20). 2. GRANT OF AUTHORITY; LIMITS AND RESERVATIONS 2.1 Grant of Authority: Subject to the terms and conditions of this Agreement and the Communications Act, the City hereby grants the Franchisee the right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way within the Franchise Area, in order to provide Cable Service. No privilege or power of eminent domain is bestowed by this grant; nor is such a privilege or power bestowed by this Agreement. 2.2 City’s Regulatory Authority: The parties recognize that Franchisee’s FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities for the provision of Non-Cable Services. The jurisdiction of the City over such Telecommunications Facilities is also governed by federal and state law, and the City shall not assert jurisdiction over Franchisee’s FTTP Network in contravention of those laws. Therefore, as provided in Section 621 of the Communications Act, 47 U.S.C. § 541, the City’s regulatory authority under Title VI of the Communications Act is not applicable to the construction, installation, maintenance, or operation of Franchisee’s FTTP Network to the extent the FTTP Network is constructed, installed, maintained, or operated for the purpose of upgrading and/or extending Verizon’s existing Telecommunications Facilities for the provision of Non-Cable Services. Nothing in this Agreement shall affect the City's authority, if any, to adopt and enforce lawful regulations with respect to Franchisee's Telecommunications Facilities in the Public Rights-of-Way. 2.3 Term: This Franchise shall become effective on _____, 2008 (the “Effective Date”). The Term of this Franchise shall be fifteen (15) years from the Effective Date unless the Franchise is earlier revoked as provided herein. 2.4 Grant Not Exclusive: The Franchise and the rights granted herein to use and occupy the Public Rights-of-Way to provide Cable Services shall not be exclusive, and the City reserves the right to grant other franchises for similar uses or for other uses of the Public Rights- of-Way, or any portions thereof, to any Person, or to make any such use themselves, at any time during the term of this Franchise. Any such rights which are granted shall not adversely impact the authority as granted under this Franchise. 2.5 Franchise Subject to Federal and State Law: Notwithstanding any provision to the contrary herein, this Franchise is subject to and shall be governed by all applicable provisions Seattle-3435598.1 0010932-00119 8 Packet Page 92 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 of federal law and state law as they may be amended, including but not limited to the Communications Act and any applicable rules, regulations, and orders of the FCC, as amended. 2.6 No Waiver: 2.6.1 The failure of the City on one or more occasions to exercise a right or to require compliance or performance under this Franchise, the Communications Act or any other applicable state or federal law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance by the City nor to excuse Franchisee from complying or performing, unless such right or such compliance or performance has been specifically waived in writing. 2.6.2 The failure of Franchisee on one or more occasions to exercise a right under this Franchise or applicable law, or to require performance under this Franchise, shall not be deemed to constitute a waiver of such right or of performance of this Agreement, nor shall it excuse the City from performance, unless such right or performance has been specifically waived in writing. 2.7 Construction of Agreement: 2.7.1 The provisions of this Franchise shall be liberally construed to effect their objectives. 2.7.2 Nothing herein shall be construed to limit the scope or applicability of Section 625 of the Communications Act, 47 U.S.C. § 545. 2.8 Police Powers: In executing this Franchise Agreement, the Franchisee acknowledges that its rights hereunder are subject to the lawful police powers of the City. Franchisee agrees to comply with all lawful and applicable general laws and ordinances enacted by the City pursuant to such power. Nothing in the Franchise shall be construed to prohibit the reasonable, necessary and lawful exercise of the City’s police powers. However, if the reasonable, necessary and lawful exercise of the City’s police power results in any material alteration of the terms and conditions of this Franchise, then the parties shall modify this Franchise to the mutual satisfaction of both parties to ameliorate the negative effects on the Franchisee of the material alteration. Any modifications shall be in writing and signed by both parties. If the parties cannot reach agreement on the above-referenced modification to the Franchise, the parties agree to submit the matter to mediation. The matter submitted to mediation shall be limited to what effect, if any, the City’s exercise of police powers has on the terms of the Franchise. In the event mediation does not result in an agreement, then the Franchisee may terminate this Agreement without further obligation to the City or, at Franchisee’s option, the parties agree to submit the matter to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (but not necessarily administered by the American Arbitration Association) or as otherwise mutually agreed by the parties. The matter submitted to arbitration shall be limited to what effect, if any, the City’s exercise of police powers has on the terms of the Franchise. Nothing in this provision shall require the City to pay for the relocation of Telecommunications Facilities. Such matters Seattle-3435598.1 0010932-00119 9 Packet Page 93 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 are outside the scope of this provision and both parties reserve their rights with respect to such matters. 2.9 Termination of Telecommunications Services. Notwithstanding any other provision of this Agreement, if Franchisee ceases to provide Telecommunications Services over the FTTP Network at any time during the Term and is not otherwise authorized to occupy the Public Rights-of-Way in the Franchise Area, the City may regulate the FTTP Network as a cable system to the extent permitted by Title VI. 3. PROVISION OF CABLE SERVICE 3.1 Service Area: 3.1.1 Initial Service Area: Franchisee shall offer Cable Service to significant numbers of Subscribers in residential areas of the Initial Service Area and may make Cable Service available to businesses in the Initial Service Area, within twelve (12) months of the Service Date of this Franchise, and shall offer Cable Service to all residential areas in the Initial Service Area within thirty-six (36) months of the Service Date of the Franchise, except: (A) for periods of Force Majeure; (B) for periods of delay caused by the City; (C) for periods of delay resulting from Franchisee’s inability to obtain authority to access rights-of-way in the Service Area; (D) in areas where developments or buildings are subject to claimed exclusive arrangements with other providers; (E) in areas, developments or buildings where Franchisee cannot access under reasonable terms and conditions after good faith negotiation, as determined by Franchisee; and (F) in developments or buildings that Franchisee is unable to provide Cable Service for technical reasons or which require non-standard facilities which are not available on a commercially reasonable basis; and (G) in areas where the occupied residential household density does not meet the density requirements set forth in Section 3.1.2. 3.1.2 Density Requirement: Franchisee shall make Cable Services available to residential dwelling units in all areas of the Service Area where the average density is equal to or greater than thirty (30) residential dwelling units per mile, as measured in strand footage from the nearest technically feasible point on the active FTTP Network trunk or feeder line. Should, through new construction, an area within the Initial Service Area meet the density requirements after the time stated for providing Cable Service as set forth in Sections 3.1.1 and 3.1.2 respectively, Franchisee shall provide Cable Service to such area within twelve (12) months of receiving notice from the City that the density requirements have been met. 3.1.3 Additional Service Areas: Except for the Initial Service Area Franchisee shall not be required to extend its Cable System or to provide Cable Services to any other areas within the Franchise Area during the term of this Franchise or any Renewals thereof except as set forth in this Section 3.1.3. The parties agree that if any land is annexed by the City during the term of this Agreement, such annexed areas shall become part of the Franchise Area and Franchisee shall be required to extend Cable Service within a reasonable time to such annexed area (subject to the exceptions in Section 3.1.1 above), provided that such annexed area: (a) is contiguous to the City, (b) is within Franchisee’s Title II service territory, and (c) is served by the video-enabled FTTP Network. If Franchisee intends to serve Additional Service Areas Seattle-3435598.1 0010932-00119 10 Packet Page 94 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 within the Franchise Area, Franchisee shall notify the City in writing of such Additional Service Area at least ten (10) days prior to providing Cable Services in such areas. 3.2 Availability of Cable Service: Franchisee shall make Cable Service available to all residential dwelling units and may make Cable Service available to businesses within the Service Area in conformance with Section 3.1 and Franchisee shall not discriminate between or among any individuals in the availability of Cable Service. Franchisee shall not deny access to Cable Services to any group of potential residential Subscribers because of the income of the residents of the local area in which the group resides. In the areas in which Franchisee shall provide Cable Service, Franchisee shall be required to connect, at Franchisee’s expense, other than a standard installation charge, all residential dwelling units that are within one hundred fifty (150) feet of trunk or feeder lines not otherwise already served by Franchisee’s FTTP Network. Franchisee shall be allowed to recover, from a Subscriber that requests such connection, actual costs incurred for residential dwelling unit connections that exceed one hundred fifty (150) feet and actual costs incurred to connect any non-residential Subscriber. 3.3 Complimentary Cable Service to Public Buildings: Subject to Section 3.1, Franchisee shall provide without charge within the Service Area, one service outlet (unless otherwise specified in Exhibit B) activated for Basic Service to each public school, police and fire station, public library, government offices, and other buildings used for government administration as may be designated by the City, and also required of other cable operators in the Service Area, as provided in Exhibit B; provided, however, that if it is necessary to extend Franchisee’s trunk or feeder lines more than one hundred fifty (150) feet solely to provide service to any such school or public building, the City or other appropriate entity shall have the option either of paying Franchisee’s direct costs for such extension in excess of one hundred fifty (150) feet, or of releasing Franchisee from the obligation to provide service to such building. Furthermore, Franchisee shall be permitted to recover, from any school or other public building owner entitled to free service, the direct cost of installing, when requested to do so, more than one outlet or concealed inside wiring, or a service outlet requiring more than one hundred fifty (150) feet of drop cable; provided, however, that Franchisee shall charge for the provision of Basic Service to the additional service outlets once installed. Cable Service may not be resold or otherwise used in contravention of Franchisee’s rights with third parties respecting programming. Equipment provided by Franchisee, if any, shall be replaced at retail rates if lost, stolen, or damaged due to the negligence or other wrongful acts of the City. 4. SYSTEM OPERATION As provided in Section 2.2, the parties recognize that Franchisee’s FTTP Network is being constructed and will be operated and maintained as an upgrade to and/or extension of its existing Telecommunications Facilities. The jurisdiction of the City over such Telecommunications Facilities is restricted by federal and state law, and the City does not and will not assert jurisdiction over Franchisee’s FTTP Network in contravention of those limitations. 5. SYSTEM FACILITIES Seattle-3435598.1 0010932-00119 11 Packet Page 95 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 5.1 Technical Requirement: Franchisee shall operate, maintain, construct and extend the Cable System so as to provide high quality signals and reliable delivery of Cable Services for all cable programming services. The Cable System shall meet or exceed any and all applicable technical performance standards of the FCC, the National Electrical Safety Code, the National Electrical Code and any other applicable federal law and the laws of the State of Washington to the extent not in conflict with federal law and regulations. 5.2 System Characteristics: Franchisee’s Cable System shall meet or exceed the following requirements: 5.2.1 The System shall be designed with an initial digital carrier passband between fifty (50) and eight hundred sixty (860) MHz. 5.2.2 The System shall be designed, constructed and maintained to be an active two-way plant for subscriber interaction, if any, required for selection or use of Cable Service. 5.3 Interconnection: The Franchisee shall design its Cable System so that it may be interconnected with other cable systems in the Franchise Area. Interconnection of systems may be made by direct cable connection, microwave link, satellite, or other appropriate methods. 5.4 Emergency Alert System: Franchisee shall comply with the Emergency Alert System (“EAS”) requirements of the FCC and state law in order that emergency messages may be distributed over the System in video and audio formats as required by state and federal law. 6. EG SERVICES 6.1 Access Channels: 6.1.1 In order to ensure availability of educational and government programming, Franchisee shall provide, without charge to the City, on the Basic Service Tier one (1) dedicated Educational Access Channel and one (1) dedicated Government Access Channel (collectively, “EG Channels”); and Franchisee shall reserve on its Basic Service Tier for the City’s future use one (1) additional dedicated Channel for Educational Access and one (1) additional dedicated Channel for Government Access (the “Reserve Channels”) (collectively, “Access Channels”). 6.1.2 The parties agree that Franchisee shall retain the right to utilize all such Access Channels, in its sole discretion, during the term of this Franchise until such time that Franchisee activates the City’s Access Channels pursuant to Section 6.1 and/or if the City ceases to use the Access Channels during the Term of this Agreement. The City shall comply with applicable law regarding the use of EG Channels. Franchisee shall only be required to provide the Reserve Channels so long as the other Cable Operators in the Franchise Area are also providing similar channels. 6.1.3 Upon the signing of this Agreement, the City hereby notifies Franchisee of its intent to provide programming to be carried on the Government and Educational Access Seattle-3435598.1 0010932-00119 12 Packet Page 96 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 Channels; such notification shall constitute authorization to the Franchisee to transmit such programming within and outside of the City. 6.1.4 The City may activate the Reserve Channel during the Term by providing the Franchisee with written notice of the need for additional Access Channel capacity at least one hundred eighty (180) days prior to the date it intends to activate the Reserve Channel, demonstrated by a programming schedule for EG programming on the existing Government or Educational Access Channel, as applicable, consisting of at least six (6) hours per day, which programming for purposes of this calculation shall not include repeat programming generated per day or character-generated programming. Such written notice shall authorize the Franchisee to transmit the Reserve Channel within and outside of the City. 6.1.5 The Franchisee specifically reserves the right to make or change channel assignments in its sole discretion and shall provide notice of such changes as set forth in the Customer Service Standards, Exhibit D, Sections 10.E and 10.G.4. The Access Channels shall be used for community programming related to Educational and/or Governmental activities. The City shall have complete control over the content, scheduling, and administration of the Access Channels and may delegate such functions, or a portion of such functions, to an appropriate designee upon written notice from the City to Franchisee. The Franchisee shall not exercise any editorial control over Access Channel programming. 6.1.6 The City shall provide and ensure suitable video and audio signals for the Access Channels to Franchisee at City Hall (121 5th Avenue North, Edmonds, WA 98020) or an alternative location mutually agreeable to the City and Franchisee (the “EG Channel Origination Site”). The Franchisee’s obligations under this Section 6.1, including its obligation to provide upstream equipment, lines and facilities necessary to transmit those video and audio signals, shall be subject to the provision by the City, to the extent applicable and without charge to the Franchisee, of: (1) access to the EG Channel Origination Site facility; (2) access to any required EG equipment within the EG Channel Origination Site facility and suitable required space, environmental conditions, electrical power supply, access, and pathways within the EG Channel Origination Site facility; (3) video and audio signals in a mutually agreed upon format suitable for EG Access Channel programming; (4) any third-party consent that may be necessary to transmit EG signals (including, without limitation, any consent that may be required with respect to third- party facilities, including the facilities of the incumbent cable provider, used to transmit EG content to the EG Channel Origination Site from auxiliary locations); and (5) any other cooperation and access to facilities as are reasonably necessary for the Franchisee to fulfill the obligations stated herein. Seattle-3435598.1 0010932-00119 13 Packet Page 97 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 To the extent suitable video and audio signals are provided to Franchisee and the foregoing conditions in Section 6.1 are met, Franchisee shall, within one hundred eighty (180) days of written notice or provision of suitable video and audio signals, whichever is later, provide, install, and maintain in good working order the equipment necessary for transmitting the EG signal to Subscribers. 6.2 EG Grant: 6.2.1 Franchisee shall provide a grant to the City, or its designee (as evidenced by appropriate notice by the City), to be used in support of the production of local EG programming (the “EG Grant”). Such grant shall be used by the City for EG access equipment, including, but not limited to, studio and portable production equipment, editing equipment and program playback equipment, or for renovation or construction of EG access facilities. 6.2.2 If during the Term of this Franchise, all other Cable Operator(s) in the Franchise Area begin to provide an EG Grant on a per subscriber per month basis, Franchisee agrees to match the EG Grant in the amount of up to $0.35 per Subscriber, per month. Subsequently, such amount can be modified as determined by the City Council no more than once each year and the EG Grant shall be no greater than $1.00, per Subscriber, per month, and shall be the same amount required of all other Cable Operators in the Franchise Area. Franchisee’s obligation under this Section 6.2.2. is contingent upon all other Cable Operators making the same grant payment on a per Subscriber, per month basis. The City shall give Franchisee sixty (60) days prior written notice before changing the amount of the EG Grant under this Section. The EG Grant payment, shall be delivered to the City concurrent with the Franchise Fee payment. 6.2.3 The Franchisee shall provide to the City an initial EG Grant in the amount of Ten Thousand Dollars ($10,000) within ninety (90) days of the Effective Date. Such amount is competitively equitable to the grant made by the incumbent Cable Operator to the City. [Subject to Approval by Verizon] 6.2.4 The City shall provide Franchisee with a complete accounting annually of the distribution of funds granted pursuant to this Section 6.2. 6.3 The City shall require all local producers and users of any of the EG facilities or Channels to agree in writing to authorize Franchisee to transmit programming consistent with this Agreement and to defend and hold harmless Franchisee and the City, from and against any and all liability or other injury, including the reasonable cost of defending claims or litigation, arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owed to third parties by the producer or user; and for any other injury or damage in law or equity, which result from the use of a EG facility or Channel. The City shall establish rules and regulations for use of EG facilities, consistent with, and as required by, 47 U.S.C. § 531. Seattle-3435598.1 0010932-00119 14 Packet Page 98 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 6.4 To the extent permitted by federal law, the Franchisee shall be allowed to recover the costs of an EG Grant or any other costs arising from the provision of EG services from Subscribers and to include such costs as a separately billed line item on each Subscriber’s bill. 7. FRANCHISE FEES 7.1 Payment to City: Franchisee shall pay to the City a Franchise fee of five percent (5%) of annual Gross Revenue (“Franchise Fee”). In accordance with Title VI of the Communications Act, the twelve-month (12) period applicable under the Franchise for the computation of the Franchise Fee shall be a calendar year. Such payments shall be made no later than forty-five (45) days following the end of each calendar quarter. Franchisee shall be allowed to submit or correct any payments that were inadvertently omitted, and shall be refunded any payments that were incorrectly submitted, in connection with the quarterly Franchise Fee remittances within ninety (90) days following the close of the calendar year for which such payments were applicable. 7.2 Supporting Information: Each Franchise Fee payment shall be accompanied by a brief report that is verified by a financial manager of Franchisee showing the basis for the computation, substantially similar to that set forth in Exhibit D. No later than forty-five (45) days after the end of each calendar year, Franchisee shall furnish to the City an annual summary of Franchise Fee calculations. 7.3 Limitation on Franchise Fee Actions: The parties agree that the period of limitation for recovery of any Franchise Fee payable hereunder shall be four (4) years from the date on which payment by Franchisee is due. 7.4 Interest Charge on Late Payments: Late payments for any (i) Franchise Fees due pursuant to Section 7, (ii) EG Grant due pursuant to Section 6, (iii) Franchise Grant due pursuant to Section 14, and (iv) liquidated damages due pursuant to Section 13 shall be subject to the interest at the then-current rate set forth in RCW 19.52.020, which as of the date of execution of this Agreement is twelve percent (12%) per annum from the due date to the date that such payment is made. 7.5 No Release: The City’s acceptance of payment shall not be construed as an agreement that the amount paid was correct, nor shall acceptance be construed as a release of any claim which the City may have for additional sums due under provisions of this Section 7. 7.6 No Limitation on Taxing Authority: Nothing in this Franchise shall be construed to limit any authority of the City to impose any tax, fee, or assessment of general applicability. Nothing in this Franchise is intended to preclude Franchisee from exercising any right it may have to challenge the lawfulness of any tax, fee, or assessment imposed by the City or any state or federal agency or authority, or intended to waive any rights the Franchisee may have under 47 U.S.C. § 542. 7.7 EG Grant and Franchise Grant Not Franchise Fees: Franchisee agrees that the EG Grant and Franchise Grant set forth in Sections 6 and 14 respectively, shall in no way modify Seattle-3435598.1 0010932-00119 15 Packet Page 99 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 or otherwise affect Franchisee’s obligation to pay Franchise Fees to the City. Franchisee agrees that although the sum of Franchise Fees and the EG Grant and Franchise Grant may total more than five percent (5%) of Franchisee’s Gross Revenues in any twelve-month (12) period, the additional commitments are not to be offset or otherwise credited in any way against any Franchise Fee payments under this Franchise. 7.8 Audits: 7.8.1 The parties shall make every effort to informally consult and resolve any questions or issues regarding Franchise Fee or EG Grant payments and nothing herein shall be construed to preclude such informal consultations or review of Franchisee’s books. The City may audit or conduct a Franchise Fee review of Franchisee's books and records no more than once every three (3) years during the Term, provided that the City shall require all other Cable Operators in the Franchise Area to be subject to competitively equitable audit requirements in any renewal or initial granting of such franchises after the Effective Date. 7.8.2 All records reasonably necessary for any such audit shall be made available by Franchisee to the City within thirty (30) days of the City’s request. 7.8.3 Each party shall bear its own costs of an audit; provided, however, that if the results of any audit indicate that Franchisee underpaid the Franchise Fees by five percent (5%) or more, then Franchisee shall pay the reasonable, documented, out-of-pocket costs of the audit up to Fifteen Thousand Dollars ($15,000). 7.8.4 If the results of an audit indicate an overpayment of Franchise Fees, the parties agree that any undisputed overpayment shall be offset against future payments if applicable, within forty-five (45) days. If the results of an audit indicate an underpayment of Franchise Fees, the parties agree that any undisputed underpayment shall be paid within forty- five (45) days along with interest as set forth in Section 7.4. 7.8.5 Any audit shall be conducted by an independent third party. Any entity employed by the City that performs the audit or Franchise Fee review shall not be permitted to be compensated on a success based formula, e.g. payment based on an underpayment of fees, if any. 7.9 Bundled Services: If Cable Services subject to the Franchise Fee required under this Article 7 are provided to Subscribers in conjunction with Non-Cable Services, the Franchise Fee shall be applied only to the value of the Cable Services, as reflected on the books and records of Franchisee in accordance with applicable federal or state laws, rules, and regulations, or Washington Utilities and Trade Commission regulations, standards or orders. Franchisee shall not allocate revenue between Cable Services and Non-Cable Services with the purpose of evading or substantially reducing the Franchisee’s Franchise Fee obligations to the City. 7.10 Alternative Fees: In the event that Franchise Fees are prohibited by any law or regulation, Franchisee agrees to pay any substitute fee or amount allowed by law up to a maximum amount of five percent (5%) of Gross Revenues, so long as the substitute fee is Seattle-3435598.1 0010932-00119 16 Packet Page 100 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 imposed on all other Cable Operators in the Franchise Area and Franchisee is given thirty (30) days notice of the substitute fee by the City. 8. CUSTOMER SERVICE Customer Service Requirements are set forth in Exhibit D, which shall be binding unless amended by written consent of the parties. 9. REPORTS AND RECORDS 9.1 Open Books and Records: Upon reasonable written notice to the Franchisee and with no less than thirty (30) business days written notice to the Franchisee, the City shall have the right to inspect Franchisee’s books and records pertaining to Franchisee’s provision of Cable Service in the Franchise Area at any time during normal business hours (those hours during which most similar businesses in the community are open to serve customers) and on a nondisruptive basis, at a mutually agreed upon location in the Franchisee’s Title II territory in Washington, as are reasonably necessary to ensure compliance with the terms of this Franchise. Such notice shall specifically reference the section of the Franchise which is under review, so that Franchisee may organize the necessary books and records for appropriate access by the City. Franchisee shall not be required to maintain any books and records for Franchise compliance purposes longer than six (6) years, provided that if, as a result of reviewing Franchisee’s records, the City identifies specific records and requests that such records be retained beyond the six-year (6) period, Franchisee shall retain those records for an additional twelve (12) months. Notwithstanding anything to the contrary set forth herein, Franchisee shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature, nor disclose any of its or an Affiliate’s books and records not relating to the provision of Cable Service in the Service Area. The City shall treat any information disclosed by Franchisee as confidential and only disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof, unless otherwise required by law whereupon the City will notify Franchisee pursuant to Section 9.2. Franchisee shall not be required to provide Subscriber information in violation of section 631 of the Communications Act, 47 U.S.C. § 551. 9.2 Public Disclosure: If, in the course of enforcing this Franchise or for any other reason, the City believes it must disclose any Franchisee confidential information pursuant to Washington law, the City shall provide reasonable advance notice of such disclosure so that Franchisee can take appropriate steps to protect its interests. 9.3 Records Required: Franchisee shall at all times maintain: 9.3.1 Records of all written complaints for a period of three (3) years after receipt by Franchisee. The term “complaint” as used herein refers to complaints about any aspect of the Cable System or Franchisee’s cable operations, including, without limitation, complaints about employee courtesy. Complaints recorded will not be limited to complaints requiring an employee service call; Seattle-3435598.1 0010932-00119 17 Packet Page 101 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 9.3.2 Records of outages for a period of three (3) years after occurrence, indicating date, duration, area, and the number of Subscribers affected, type of outage, and cause; 9.3.3 Records of service calls for repair and maintenance for a period of three (3) years after resolution by Franchisee, indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was resolved; 9.3.4 Records of installation/reconnection and requests for service extension for a period of three (3) years after the request was fulfilled by Franchisee, indicating the date of request, date of acknowledgment, and the date and time service was extended; and 9.3.5 A map showing the area of coverage for the provisioning of Cable Services and estimated timetable to commence providing Cable Service. 10. INSURANCE AND INDEMNIFICATION 10.1 Insurance: 10.1.1 Franchisee shall maintain in full force and effect, at its own cost and expense, during the Franchise Term, the following insurance coverage: 10.1.1.1 Commercial General Liability Insurance in the amount of two million dollars ($2,000,000) combined single limit for property damage and bodily injury. Such insurance shall cover the construction, operation and maintenance of the Cable System and the conduct of Franchisee’s Cable Service business in the City. 10.1.1.2 Automobile Liability Insurance in the amount of two million dollars ($2,000,000) combined single limit for bodily injury and property damage. 10.1.1.3 Workers’ Compensation Insurance meeting all legal requirements of the state of Washington. 10.1.1.4 Employers’ Liability Insurance in the following amounts: (A) Bodily Injury by Accident: $100,000; and (B) Bodily Injury by Disease: $100,000 employee limit; and (C) Bodily Injury by Disease: $2,000,000 policy limit. 10.1.1.5 Umbrella or excess liability insurance in the amount of three million dollars ($3,000,000). 10.1.2 The City shall be included as an additional insured under each of the insurance policies required in this Article 10 except Worker’s Compensation and Employer’s Liability Insurance. Franchisee shall provide to the City a copy of the blanket additional insured endorsements for General and Auto liability, or similar documentation demonstrating Seattle-3435598.1 0010932-00119 18 Packet Page 102 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 compliance. Receipt by an the City of any certificate showing less coverage than required is not a waiver of Franchisee’s obligations to fulfill the requirements. 10.1.3 Each of the required insurance policies shall be with insurers qualified to do business in the State of Washington with an A.M. Best Financial Strength rating of A- or better. 10.1.4 Franchisee shall not cancel any required insurance policy without obtaining alternative insurance in conformance with this Agreement. In the event that the insurance company cancels the policy, Franchisee will work diligently to obtain replacement insurance so there is no gap in coverage. 10.1.5 Franchisee shall deliver to the City Certificates of Insurance showing evidence of the required coverage within thirty (30) days following the Effective Date of this Agreement. 10.1.6 The limits required above may be satisfied with a combination of primary and excess coverage. 10.2 Indemnification: 10.2.1 Franchisee agrees to indemnify, save and hold harmless, and defend the LFA, its elected officials, officers, agents, boards and employees, from and against any liability, damages or claims, settlements approved by Franchisee pursuant to Section 10.2.2 or judgments, arising out of, or resulting from, the Franchisee’s activities pursuant to this Franchise, provided that the LFA shall give Franchisee written notice of its obligation to indemnify the LFA within ten (10) days of receipt of a claim or action pursuant to this Section, (or up to thirty (30) days as long as such notice causes no prejudice to the Franchisee). Notwithstanding the foregoing, Franchisee shall not indemnify the LFA, for any damages, liability or claims resulting from the willful misconduct, negligence, or breach of obligation of the LFA, its officers, agents, employees, attorneys, consultants, or independent contractors, for which the LFA is legally responsible, or for any activity or function conducted by any Person other than Franchisee in connection with EG Access or EAS. 10.2.2 With respect to Franchisee’s indemnity obligations set forth in Section 10.2.1, Franchisee shall provide the defense of any claims or actions brought against the City by selecting counsel of Franchisee’s choice to defend the claim, subject to the consent of the City, which shall not unreasonably be withheld. Nothing herein shall be deemed to prevent the City from cooperating with the Franchisee and participating in the defense of any litigation by its own counsel at its own cost and expense, provided however, that after consultation with the City, Franchisee shall have the right to defend, settle or compromise any claim or action arising hereunder, and Franchisee shall have the authority to decide the appropriateness and the amount of any such settlement. In the event that the terms of any such proposed settlement includes the release of the City, and the third party is willing to accept the settlement, but the City does not consent to the terms of any such settlement or compromise, Franchisee shall not settle the claim Seattle-3435598.1 0010932-00119 19 Packet Page 103 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 or action but its obligation to indemnify the City shall in no event exceed the amount of such settlement. 11. TRANSFER OF FRANCHISE 11.1 Transfer of the Franchise means: 11.1.1 Any transaction in which: 11.1.1.1 an ownership or other interest in Franchisee, the Franchise or the Cable System is transferred, directly or indirectly, from one Person or group of Persons to another Person or group of Persons, so that Control of Franchisee is transferred; or 11.1.1.2 the rights held by Franchisee under the Franchise are transferred or assigned to another Person or group of Persons. 11.1.2 However, notwithstanding Sections 11.1.1.1 and 11.11.1.2 above, a Transfer of the Franchise shall not include transfer of an ownership or other interest in Franchisee to the parent of Franchisee or to another Affiliate of Franchisee; transfer of an interest in the Franchise or the rights held by the Franchisee under the Franchise to the parent of Franchisee or to another Affiliate of Franchisee; any action which is the result of a merger of the parent of the Franchisee; or any action which is the result of a merger of another Affiliate of the Franchisee. 11.2 Subject to section 617 of the Communications Act, 47 U.S.C. § 537, no Transfer of the Franchise shall occur without the prior written consent of the City, provided that such consent shall not be unreasonably withheld, delayed or conditioned so long as the transferee assumes the obligations of the Franchisee hereunder. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, by assignment of any rights, title, or interest of the Franchisee in the Franchise or Cable System in order to secure indebtedness, or otherwise for transactions otherwise excluded under Section 11.1.2 above. 12. RENEWAL OF FRANCHISE 12.1 The City and Franchisee agree that any proceedings undertaken by the City that relate to the renewal of this Franchise shall be governed by and comply with the provisions of section 626 of the Communications Act, 47 U.S.C. § 546. 12.2 In addition to the procedures set forth in said section 626 of the Communications Act, the City shall notify Franchisee of all of its assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of Franchisee under the then-current Franchise term. The City further agrees that such assessments shall be provided to Franchisee promptly so that Franchisee has adequate time to submit a proposal under 47 U.S.C. § 546 and pursue renewal of the Franchise prior to expiration of its term. 12.3 Notwithstanding anything to the contrary set forth herein, Franchisee and the City agree that at any time during the term of the then current Franchise, while affording the public Seattle-3435598.1 0010932-00119 20 Packet Page 104 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 appropriate notice and opportunity to comment, the City and Franchisee may agree to undertake and finalize informal negotiations regarding renewal of the then current Franchise and the City may grant a renewal thereof. 12.4 Franchisee and the City consider the terms set forth in this Article 12 to be consistent with the express provisions of 47 U.S.C. § 546. 13. ENFORCEMENT AND TERMINATION OF FRANCHISE 13.1 Security: Within thirty (30) days following the Effective Date of this Agreement, Franchisee shall provide to the City security for the faithful performance by Franchisee of all material provisions of this Agreement, provided that the City shall require all other Cable Operators in the Franchise Area to provide competitively equitable security in any renewal or initial granting of such franchises after the Effective Date. Franchisee shall maintain the Security at Twenty-Five Thousand Dollars ($25,000) throughout the term of this Agreement. The form of the security may, at Franchisee’s option, be a performance bond, letter of credit, cash deposit, cashier’s check or any other security acceptable to the City (the “Security”). Nothing in this security provision is intended to impair or alter any Title II security fund rights. 13.1.1 If the Franchisee posts a performance bond, it shall be substantially in the form of Exhibit E. 13.1.2 In the event the Security provided pursuant to the Agreement is not renewed, is cancelled, is terminated or is otherwise impaired, Franchisee shall provide new security pursuant to this Article within sixty (60) days of notice. 13.1.3 Neither cancellation, nor termination nor refusal by surety to extend the bond, nor inability of Franchisee to file a replacement bond or replacement security for its obligations, shall constitute a loss to the City recoverable under the bond. 13.2 Liquidated Damages: 13.2.1 In the event the City determines that Franchisee has breached this Agreement, after following the procedures in Sections 13.3 and 13.4, the City may assess the following as liquidated damages, provided that the City shall require all other Cable Operators in the Franchise Area to be subject to competitively equitable liquidated damages in any renewal or initial granting of such franchises after the Effective Date: 13.2.1.1 Two hundred fifty dollars ($250) per day for failure to provide EG Access Channels as set forth herein; 13.2.1.2 One hundred fifty dollars ($150) per day for material breach of the customer service standards set forth in Exhibit D; 13.2.1.3 One hundred dollars ($100) per day for failure to provide reports as required by the Franchise; or Seattle-3435598.1 0010932-00119 21 Packet Page 105 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 13.2.1.4 Up to two hundred fifty dollars ($250) per day for any other material breaches or defaults of this Agreement. 13.2.2 Franchisee shall pay any liquidated damages assessed by the City within thirty (30) days after they are assessed. Liquidated damages shall accrue starting on the first date of the occurrence of the noncompliance. If liquidated damages are not paid within the thirty (30) day period, the City may proceed against the Security. Total liquidated damages shall not exceed Twenty-Five Thousand Dollars ($25,000) in any twelve-month (12) period. 13.2.3 Assessment of liquidated damages shall not constitute a waiver by the City of any other right or remedy it may have under this Franchise or applicable law except as set forth in this Agreement, including without limitation its right to recover from Franchisee such additional damages, losses, costs and expenses, as may have been suffered or incurred by the City by reason of or arising out of such breach of this Franchise. Notwithstanding the foregoing, if the City elects to assess liquidated damages pursuant to this Section, such election shall constitute the City’s exclusive remedy for the violation for which the liquidated damages were assessed for a period of sixty (60) days. Thereafter, the remedies provided for in this Agreement are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another remedy, or the exercise of any rights of the City at law or equity, provided that the cumulative remedies may not be disproportionate to the magnitude and severity of the breach for which they are imposed. 13.2.4 Subject to Sections 13.3 and 13.4, and subject to the assessment of any liquidated damages pursuant to Section 13.2, the City may elect to pursue other legal and equitable remedies at any time during the term of this Franchise. 13.3 Notice of Violation: In the event the City believes that Franchisee has not complied with the terms of the Franchise, failed to perform any obligation under this Agreement or has failed to perform in a timely manner, the City shall informally discuss the matter with Franchisee. If these discussions do not lead to resolution of the problem within twenty (20) days, the City shall notify Franchisee in writing, stating with reasonable specificity the nature of the alleged violation (the “Noncompliance Notice”). 13.4 Franchisee’s Right to Cure or Respond: Franchisee shall have thirty (30) days from receipt of the Noncompliance Notice to: (i) respond to the City, if Franchisee contests (in whole or in part) the assertion of noncompliance; (ii) cure such noncompliance; or (iii) in the event that, by its nature, such noncompliance cannot be cured within such thirty (30) day period, initiate reasonable steps to remedy such noncompliance and notify the City of the steps being taken and the date by which cure is projected to be completed. Upon cure of any noncompliance, the City shall provide written confirmation that such cure has been effected. 13.5 Remedies: Subject to applicable federal and state law, in the event the City, after the procedures set forth in Sections 13.3 and 13.4, determines that Franchisee is in default of any material provision of this Franchise, the City may take the following actions: Seattle-3435598.1 0010932-00119 22 Packet Page 106 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 13.5.1 Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; 13.5.2 Seek liquidated damages as set forth herein; 13.5.3 Commence an action at law for monetary damages or seek other equitable relief; 13.5.4 In the case of a substantial material default of the Franchise, seek to revoke the Franchise in accordance with Section 13.6. 13.6 Revocation: 13.6.1 As set forth in this Section 13.6, the City may seek to revoke this Franchise in the event of a substantial material default of this Franchise. Should the City seek to revoke this Franchise after following the procedures set forth in Sections 13.3 and 13.4, the City shall give written notice to Franchisee of such intent to revoke this Franchise. This notice of intent to revoke is in addition to the Notice of Noncompliance pursuant to Section 13.3. The notice shall set forth with reasonable specificity the reasons for revocation. The Franchisee shall have thirty (30) days to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from Franchisee, it may then seek termination of the Franchise at a public hearing. The City shall notify the Franchisee in writing of the time and place of the public hearing at least thirty (30) days prior to the public hearing. 13.6.2 At the revocation hearing, Franchisee shall be provided a fair opportunity for full participation, including the right to be represented by legal counsel, to introduce relevant evidence, to compel the testimony of persons as permitted by law, and to question and/or cross examine witnesses. The revocation hearing shall be a public hearing at which members of the public may testify under oath. A complete verbatim record shall be made of the revocation hearing by a court reporter. The costs of such court reporter shall be shared equally by the parties. 13.6.3 Following the public hearing, Franchisee may submit its proposed written findings and conclusions within twenty (20) days of the close of the public hearing. Thereafter, the City shall determine: (i) whether an event of default has occurred; (ii) whether such event of default should be excused; and (iii) whether such event of default has been cured or will be cured by the Franchisee; and (iv) whether to revoke the Franchise based on the information presented, or, where applicable, grant additional time to the Franchisee to effect any cure. If the City determines that the Franchise shall be revoked, the City shall promptly provide Franchisee with a written decision setting forth its reasoning. Franchisee may appeal such determination of the City to an appropriate court within thirty (30) days of notice of the City’s decision. 13.6.4 The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City’s rights under the Franchise in lieu of revocation of the Franchise. Seattle-3435598.1 0010932-00119 23 Packet Page 107 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 13.7 Franchisee Termination: Franchisee shall have the right to terminate this Franchise and all obligations hereunder within ninety (90) days after the third anniversary of the Service Date of this Franchise, if at the end of such three (3) year period Franchisee does not then in good faith believe it has achieved a commercially reasonable level of Subscriber penetration on its Cable System. Franchisee may consider subscriber penetration levels outside the Franchise Area but within the Puget Sound metropolitan area in this determination. Notice to terminate under this Section 13.7 shall be given to the City in writing, with such termination to take effect no sooner than one hundred and twenty (120) days after giving such notice. Franchisee shall also be required to give its then current Subscribers not less than ninety (90) days prior written notice of its intent to cease Cable Service operations. 13.8 The City specifically does not by any provision of this Franchise, waive any immunity or limitation of liability under state or federal law, including but not limited to, section 635 A of the Communications Act. 14. MISCELLANEOUS PROVISIONS 14.1 Franchise Grant: Franchisee shall pay the City Ten Thousand Dollars ($10,000.00) (the “Franchise Grant”). The Franchise Grant shall be payable thirty (30) days from the Effective Date, which may be used for any lawful purpose. The City agrees to require competitively similar obligations from other Cable Operators upon the future grant or renewal of a franchise agreement for the provision of Cable Service. To the extent permitted by federal law, Franchisee shall be allowed to recover this amount from Subscribers and may line-item or otherwise pass-through this amount to Subscribers. The reference to the line item shall accurately describe its purpose. 14.2 Equal Employment Opportunity: Franchisee shall comply with all applicable federal and state laws affording nondiscrimination in employment to all individuals regardless of their race, color, religion, age, sex, national origin, sexual orientation or physical disability. 14.3 Actions of Parties: In any action by the City or Franchisee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld, delayed or conditioned. 14.4 Binding Acceptance: This Agreement shall bind and benefit the parties hereto and their respective successors and assigns, and the promises and obligations herein shall survive the expiration date hereof. 14.5 Preemption: In the event that federal or state law, rules, or regulations preempt a provision or limit the enforceability of a provision of this Agreement, the provision shall be read to be preempted to the extent, and for the time, but only to the extent and for the time, required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall Seattle-3435598.1 0010932-00119 24 Packet Page 108 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 thereafter be binding on the parties hereto, without the requirement of further action on the part of the City or Franchisee. 14.6 Force Majeure: Franchisee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or liquidated damages relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by a Force Majeure. 14.7 Good Faith Error: Furthermore, the parties hereby agree that it is not the City’s intention to subject Franchisee to liquidated damages, forfeitures or revocation of the Franchise for violations of the Franchise where the violation was a good faith error that resulted in no or minimal negative impact on Subscribers. 14.8 Notices: Unless otherwise expressly stated herein, notices required under the Franchise shall be deemed effective three (3) days after having been deposited by first class, postage prepaid, registered or certified mail, return receipt requested or one (1) day after having been deposited with any nationally recognized overnight courier for next day delivery, and addressed to the addressees below. Each party may change its designee by providing written notice to the other party. 14.8.1 Notices to Franchisee shall be mailed to: Verizon Northwest Inc. Attn: Tim McCallion, President 112 Lakeview Canyon Road, CA501GA Thousand Oaks, CA 91362 with a copy to: Mr. Jack H. White Senior Vice President & General Counsel - Verizon Telecom One Verizon Way Room VC43E010 Basking Ridge, NJ 07920-1097 Notices to the City shall be mailed to: City of Edmonds Attn: Mayor 121 5th Avenue North Edmonds, WA 98020 14.9 Entire Agreement: This Franchise and the Exhibits hereto constitute the entire agreement between Franchisee and the City, and supersede all prior or contemporaneous agreements, representations or understandings (whether written or oral) of the parties regarding Seattle-3435598.1 0010932-00119 25 Packet Page 109 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 the subject matter hereof. Any ordinances or parts of ordinances relating to cable service that conflict with the provisions of this Agreement are superseded by this Agreement. 14.10 Amendments: Amendments to this Franchise shall be mutually agreed to in writing by the parties. No amendment will take effect if it will impair the security set forth in Section 13, unless otherwise agreed by the parties. 14.11 Captions: The captions and headings of articles and sections throughout this Agreement are intended solely to facilitate reading and reference to the sections and provisions of this Agreement. Such captions shall not affect the meaning or interpretation of this Agreement. 14.12 Severability: If any section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise. 14.13 Recitals: The recitals set forth in this Agreement are incorporated into the body of this Agreement as if they had been originally set forth herein. 14.14 FTTP Network Transfer Prohibition: Under no circumstance including, without limitation, upon expiration, revocation, termination, denial of renewal of the Franchise or any other action to forbid or disallow Franchisee from providing Cable Services, shall Franchisee or its assignees be required to sell any right, title, interest, use or control of any portion of Franchisee’s FTTP Network including, without limitation, the Cable System and any capacity used for Cable Service or otherwise, to the City or any third party. Franchisee shall not be required to remove the FTTP Network or to relocate the FTTP Network or any portion thereof as a result of revocation, expiration, termination, denial of renewal or any other action to forbid or disallow Franchisee from providing Cable Services. 14.15 No Joint Venture: Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. 14.16 Independent Review: The City and Franchisee each acknowledge that they have received independent legal advice in entering into this Agreement. In the event that a dispute arises over the meaning or application of any term(s) of this Agreement, such term(s) shall not be construed by the reference to any doctrine calling for ambiguities to be construed against the drafter of the Agreement. 14.17 Venue: The venue for any dispute related to this Franchise shall be in the United States District Court for the Western District of Washington in Seattle, provided it has subject matter jurisdiction; if no jurisdiction exists, then venue shall be in the Superior Court for King County. Seattle-3435598.1 0010932-00119 26 Packet Page 110 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 14.18 Attorneys’ Fees: If any action or suit arises between Franchisee and the City for breach of this Franchise, the prevailing party, either the City or Franchisee, as the case may be, shall be entitled to recover all of its reasonable attorneys’ fees, costs and expenses in connection therewith along with such other relief as the court deems proper. 14.19 Acceptance: By signing this Agreement, Franchisee accepts and agrees to abide by the Franchise and, to the extent consistent with the Franchise, the terms and conditions of Edmonds Municipal Code Chapter 4.68. Franchisee will timely provide to the City the security specified in Section 13.1 and the insurance certificates specified in Section 10.1. 14.20 Singular and Plural: Except where the context indicates otherwise, words used herein, regardless of the number specifically used, shall be deemed and construed to include any other number, singular or plural as is reasonable in the context. SIGNATURE PAGE FOLLOWS Seattle-3435598.1 0010932-00119 27 Packet Page 111 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 AGREED TO THIS _____ DAY OF _____________, 2008. CITY OF EDMONDS By: _______________________________ [Name, Title] Verizon Northwest Inc. By: _______________________________ Tim McCallion, President EXHIBITS Exhibit A: Initial Service Area Exhibit B: Municipal Locations and Schools to be Provided Free Cable Service Exhibit C: Remittance Form Exhibit D: Customer Service Standards Exhibit E: Performance Bond Seattle-3435598.1 0010932-00119 28 Packet Page 112 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 EXHIBIT A INITIAL SERVICE AREA Seattle-3435598.1 0010932-00119 29 Packet Page 113 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 EXHIBIT B MUNICIPAL LOCATIONS AND SCHOOLS TO BE PROVIDED FREE CABLE SERVICE Existing Buildings: City Hall-Mayor 121 5th Avenue N, Edmonds, WA City Administration 121 5th Avenue N, Edmonds, WA City Meeting Room 121 5th Avenue N, Edmonds, WA Fire Department 121 5th Avenue N, Edmonds, WA New Governmental Channel [showcase] Chamber of Commerce 121 5th Avenue N, Edmonds, WA [To be discussed] City Park Maintenance Building 600 3rd Ave, Edmonds, WA Edmonds Historical Museum 118 5th Avenue N, Edmonds, WA Edmonds Library 650 Main Street, Edmonds, WA Fire Station #16 8429 196th Street SW, Edmonds, WA Fire Station #17 275 6th Avenue N, Edmonds, WA Fire Station #20 23009 88th Avenue W, Edmonds, WA Frances Anderson Center 700 Main Street, Edmonds, WA Seattle-3435598.1 0010932-00119 30 Packet Page 114 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 Meadowdale Clubhouse 6801 Meadowdale Road, Edmonds WA Old Public Works 200 Dayton Street, Edmonds, WA Handicapped Access Area – City Council Chamber 250 5th Avenue N, Edmonds, WA City Council Chambers 250 5th Avenue N, Edmonds, WA Police Department 250 5th Avenue N, Edmonds, WA Organization/EG Origination Site 250 5th Avenue N, Edmonds, WA Public Works 7110 210th Street SW, Edmonds, WA Senior Center 220 Railroad Avenue, Edmonds, WA Wade James Theatre 950 Main Street, Edmonds, WA Edmonds Performing Arts Center 410 Fourth Avenue N, Edmonds, WA Yost Pool 9535 Bowdoin Way, Edmonds, WA Scriber Lake High School 23200 100th Avenue W, Edmonds, WA Sherwood Elementary School 22901 106th Avenue W, Edmonds, WA Edmonds Elementary School 1215 Olympic Avenue, Edmonds, WA Chase Lake Community School 21603 84th Avenue W, Edmonds, WA Seattle-3435598.1 0010932-00119 31 Packet Page 115 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 Boys & Girls Club 310 6th Avenue N, Edmonds, WA Edmonds-Woodway High School 7600 212th Street SW, Edmonds, WA Seaview Elementary School 8426 188th Street SW, Edmonds, WA Maplewood K-8 8500 200th Street SW, Edmonds, WA Woodway Elementary School 9521 240th Street SW, Edmonds, WA Westgate Elementary 9601 220th Street SW, Edmonds, WA Olympic View Water & Sewer District 23725 Edmonds Way, Edmonds, WA Port of Edmonds Administration Offices 336 Admiral Way, Edmonds, WA Edmonds Library Plaza Room 650 Mail Street, Edmonds, WA [need Verizon approval] Edmonds Memorial Cemetery 820 15th SW, Edmonds, WA [need Verizon approval] Edmonds School District 15619 56th Avenue W, Edmonds, WA [need Verizon approval] Edmonds School District #15 (Meadowdale) 6505 168th Street SW, Edmonds, WA [need Verizon approval] Edmonds School District #15 6th Avenue N, Edmonds, WA [need Verizon approval] Madrona School 9300 236th Street, Edmonds, WA [need Verizon approval] In the event that an existing building listed above is demolished and rebuilt in the same or different location in the Service Area, Franchisee will provide, subject to the terms and Seattle-3435598.1 0010932-00119 32 Packet Page 116 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 conditions set forth in Section 3.3, one service outlet activated for Basic Service so long as all other Cable Operators in the Franchise Area provide service at such location. Future Buildings: Franchisee will provide, subject to the terms and conditions set forth in Section 3.3 of this Franchise, one service outlet active for Basic Service at up to five (5) future public buildings in the Service Area so long as all other Cable Operators in the Franchise Area provide service to at least the same number of future locations. Seattle-3435598.1 0010932-00119 33 Packet Page 117 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 EXHIBIT C REMITTANCE FORM Franchise Fee Schedule/Report (Quarter and Year) City of Edmonds Verizon - fGTE Washington Franchise Fee Rate: 5.00% Month 1 Month 2 Month 3 Quarter Total Monthly Recurring Cable Service Charges (e.g. Basic, Enhanced Basic, Premium and Equipment Rental) $0.00 $0.00 $0.00 $0.00 Usage Based Charges (e.g. PayPer View, Installation) $0.00 $0.00 $0.00 $0.00 Advertising $0.00 $0.00 $0.00 $0.00 Home Shopping $0.00 $0.00 $0.00 $0.00 Late Payment $0.00 $0.00 $0.00 $0.00 Other Misc. (Leased Access & Other Misc.) $0.00 $0.00 $0.00 $0.00 Franchise Fee Billed $0.00 $0.00 $0.00 $0.00 PEG Fee Billed $0.00 $0.00 $0.00 $0.00 Less: Bad Debt Total Receipts Subject to Franchise Fee Calculation $0.00 $0.00 $0.00 $0.00 Franchise Fee Due $0.00 $0.00 $0.00 $0.00 Verizon Northwest Inc. is hereby requesting that this information be treated as confidential and proprietary commercial trade secret information and financial statements and not disclosed in accordance with section XXXX and the Cable Television Franchise Agreement granted to Verizon Northwest Inc. This information is not otherwise readily ascertainable or publicly available by proper means by other persons from another source in the same configuration as provided herein, would cause substantial harm to competitive position of Verizon in the highly competitive video marketplace if disclosed, is intended to be proprietary confidential business information and is treated by Verizon as such. Seattle-3435598.1 0010932-00119 34 Packet Page 118 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 EXHIBIT D CUSTOMER SERVICE STANDARDS These standards shall, starting six (6) months after the Service Date, apply to Franchisee to the extent it is providing Cable Services over the Cable System in the Franchise area. For the first six (6) months after the Service Date, Franchisee shall use best efforts to comply with the Customer Service Standards provided herein; it being agreed, however, that the City will not impose liquidated damages during this first six (6) month period if Franchisee using best efforts fails to meet the Customer Service Standards. SECTION 1: DEFINITIONS A. Normal Operating Conditions: Those service conditions which are within the control of Franchisee, as defined under 47 C.F.R. § 76.309(c)(4)(ii). Those conditions which are not within the control of Franchisee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages that are not within the control of the Franchisee, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of Franchisee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or rebuild of the Cable System. B. Respond: The start of Franchisee’s investigation of a Service Interruption by receiving a Subscriber call, and opening a trouble ticket, and begin working, if required. C. Service Call: The action taken by Franchisee to correct a Service Interruption the effect of which is limited to an individual Subscriber. D. Service Interruption: The loss of picture or sound on one or more cable channels. E. Significant Outage: A significant outage of the Cable Service shall mean any Service Interruption lasting at least four (4) continuous hours that affects at least ten percent (10%) of the Subscribers in the Service Area. F. Standard Installation: Installations where the Subscriber is within one hundred fifty (150) feet of trunk or feeder lines. SECTION 2: TELEPHONE AVAILABILITY A. Franchisee shall maintain a toll-free number to receive all calls and inquiries from Subscribers in the Franchise Area and/or residents regarding Cable Service. Franchisee representatives trained and qualified to answer questions related to Cable Service in the Service Area must be available to receive reports of Service Interruptions twenty-four (24) hours a day, seven (7) days a week, all other inquiries at least forty-five (45) hours per week. Franchisee representatives shall identify themselves by name when answering this number. Seattle-3435598.1 0010932-00119 35 Packet Page 119 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 B. Franchisee’s telephone numbers shall be listed, with appropriate description (e.g. administration, customer service, billing, repair, etc.), in the directory published by the local telephone company or companies serving the Service Area, beginning with the next publication cycle after acceptance of this Franchise by Franchisee. C. Franchisee may use an Automated Response Unit (“ARU”) or a Voice Response Unit (“VRU”) to distribute calls. If a foreign language routing option is provided, and the Subscriber does not enter an option, the menu will default to the first tier menu of English options. After the first tier menu (not including a foreign language rollout) has run through three times, if customers do not select any option, the ARU or VRU will forward the call to a queue for a live representative. Franchisee may reasonably substitute this requirement with another method of handling calls from customers who do not have touch-tone telephones. D. Under Normal Operating Conditions, calls received by the Franchisee shall be answered within thirty (30) seconds. The Franchisee shall meet this standard for ninety percent (90%) of the calls it receives at call centers receiving calls from Subscribers, as measured on a cumulative quarterly calendar basis. Measurement of this standard shall include all calls received by the Franchisee at all call centers receiving calls from Subscribers, whether they are answered by a live representative, by an automated attendant, or abandoned after thirty (30) seconds of call waiting. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. E. Under Normal Operating Conditions, callers to the Franchisee shall receive a busy signal no more than three (3%) percent of the time during any calendar quarter. F. Upon request from the City, but in no event more than once a quarter, forty-five (45) days following the end of each quarter, the Franchisee shall report to the City the following for all call centers receiving calls from Subscribers except for temporary telephone numbers set up for national promotions: (1) Percentage of calls answered within thirty (30) seconds as set forth in Section 2.D; and (2) Percentage of time customers received a busy signal when calling the Franchisee’s service center as set forth in Section 2.E. Subject to consumer privacy requirements, underlying activity will be made available to the City for review upon reasonable request. G. At the Franchisee’s option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Franchisee shall notify the City of such a change not less than thirty (30) days in advance. Seattle-3435598.1 0010932-00119 36 Packet Page 120 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 SECTION 3: INSTALLATIONS AND SERVICE APPOINTMENTS A. All installations will be in accordance with FCC rules, including but not limited to, appropriate grounding, connection of equipment to ensure reception of Cable Service, and the provision of required consumer information and literature to adequately inform the Subscriber in the utilization of Franchisee-supplied equipment and Cable Service. B. The Standard Installation shall be performed within seven (7) business days after an order is placed if the Optical Network Terminal (“ONT”) is already installed on the customer’s premises. The Standard Installation shall be performed within fourteen (14) business days where there is no ONT at the time of service order. Franchisee shall meet this standard for ninety-five percent (95%) of the Standard Installations it performs, as measured on a calendar quarter basis, excluding those requested by the customer outside of these time periods. C. The Franchisee shall provide the City with a report upon request from the City, but in no event more than once a quarter, noting the percentage of Standard Installations completed within the time periods provided in Section 3.B. Subject to consumer privacy requirements, underlying activity will be made available to the City for review upon reasonable request. D. At Franchisee’s option, the measurements and reporting above may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Franchisee shall notify the City of such a change not less than thirty (30) days in advance. E. Franchisee will offer Subscribers “appointment window” alternatives for arrival to perform installations, Service Calls and other activities of a maximum four (4) hours scheduled time block during appropriate daylight available hours, usually beginning at 8:00 AM unless it is deemed appropriate to begin earlier by location exception. At Franchisee’s discretion, Franchisee may offer Subscribers appointment arrival times other than these four (4) hour time blocks, if agreeable to the Subscriber. These hour restrictions do not apply to weekends. (1) Franchisee may not cancel an appointment window with a customer after the close of business on the business day prior to the scheduled appointment. (2) If Franchisee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer. F. Franchisee must provide for the pick up or drop off of equipment free of charge in one of the following manners: (i) by having a Franchisee representative going to the Subscriber’s residence, (ii) by using a mailer, or (iii) by establishing a local business office within the Franchise Area. If requested by a mobility-limited customer, the Franchisee shall arrange for Seattle-3435598.1 0010932-00119 37 Packet Page 121 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 pickup and/or replacement of converters or other Franchisee equipment at Subscriber’s address or by a satisfactory equivalent. SECTION 4: SERVICE INTERRUPTIONS AND OUTAGES A. Franchisee shall promptly notify the City of any Significant Outage of the Cable Service. B. Franchisee shall exercise commercially reasonable efforts to limit any Significant Outage for the purpose of maintaining, repairing, or constructing the Cable System. Except in an emergency or other situation necessitating a more expedited or alternative notification procedure, Franchisee may schedule a Significant Outage for a period of more than four (4) hours during any twenty-four (24) hour period only after the City and each affected Subscriber in the Service Area have been given fifteen (15) days prior notice of the proposed Significant Outage. Notwithstanding the foregoing, Franchisee may perform modifications, repairs and upgrades to the System between 12:01 a.m. and 6 a.m. which may interrupt service, and this Section’s notice obligations respecting such possible interruptions will be satisfied by notice provided to Subscribers upon installation and in the annual Subscriber notice. C. Franchisee representatives who are capable of responding to Service Interruptions must be available to Respond twenty-four (24) hours a day, seven (7) days a week. D. Under Normal Operating Conditions, Franchisee must Respond to a call from a Subscriber regarding a Service Interruption or other service problems within the following time frames: (1) Within twenty-four (24) hours, including weekends, of receiving Subscriber calls about Service Interruptions in the Service Area. (2) Franchisee must begin actions to correct all other Cable Service problems the next business day after notification by the Subscriber or the City of a Cable Service problem. E. Under Normal Operating Conditions, Franchisee shall complete Service Calls within seventy-two (72) hours of the time Franchisee commences to Respond to the Service Interruption, not including weekends and situations where the Subscriber is not reasonably available for a Service Call to correct the Service Interruption within the seventy-two (72) hour period. F. Franchisee shall meet the standard in Section E of this Section for ninety percent (90%) of the Service Calls it completes, as measured on a quarterly basis. G. Franchisee shall provide the City with a report upon request from the City, but in no event more than once a quarter, forty-five (45) days following the end of each calendar quarter, noting the percentage of Service Calls completed within the seventy-two (72) hour period not including Service Calls where the Subscriber was reasonably unavailable for a Service Call within the seventy-two (72) hour period as set forth in this Section. Subject to consumer Seattle-3435598.1 0010932-00119 38 Packet Page 122 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 privacy requirements, underlying activity will be made available to the City for review upon reasonable request. At the Franchisee’s option, the above measurements and reporting may be changed from calendar quarters to billing or accounting quarters one time during the term of this Agreement. Franchisee shall notify the City of such a change at least thirty (30) days in advance of any implementation. H. Under Normal Operating Conditions, Franchisee shall provide a credit upon Subscriber request when all Channels received by that Subscriber are out of service for a period of four (4) consecutive hours or more. The credit shall equal, at a minimum, a proportionate amount of the affected Subscriber(s) current monthly bill. In order to qualify for the credit, the Subscriber must promptly report the problem and allow Franchisee to verify the problem if requested by Franchisee. If Subscriber availability is required for repair, a credit will not be provided for such time, if any, that the Subscriber is not reasonably available. I. Under Normal Operating Conditions, if a Significant Outage affects all Video Programming Cable Services for more than twenty-four (24) consecutive hours, Franchisee shall issue an automatic credit to the affected Subscribers in the amount equal to their monthly recurring charges for the proportionate time the Cable Service was out, or a credit to the affected Subscribers in the amount equal to the charge for the basic plus enhanced basic level of service for the proportionate time the Cable Service was out, whichever is technically feasible or, if both are technically feasible, as determined by Franchisee provided such determination is non- discriminatory. Such credit shall be reflected on Subscriber billing statements within the next available billing cycle following the outage. J. With respect to service issues concerning Cable Services provided to the City facilities, Franchisee shall Respond to all inquiries from the City within four (4) hours and shall commence necessary repairs within twenty-four (24) hours under Normal Operating Conditions and shall diligently pursue to completion. If such repairs cannot be completed within twenty- four (24) hours, Franchisee shall notify the City in writing as to the reason(s) for the delay and provide an estimated time of repair. SECTION 5: CUSTOMER COMPLAINTS REFERRED BY THE CITY Under Normal Operating Conditions, Franchisee shall begin investigating Subscriber complaints referred by the City within seventy-two (72) hours. Franchisee shall notify the City of those matters that necessitate an excess of five (5) business days to resolve, but Franchisee must make all necessary efforts to resolve those complaints within ten (10) business days of the initial complaint. The City may require Franchisee to provide reasonable documentation to substantiate the request for additional time to resolve the problem. Franchisee shall inform the City in writing, which may be by an electronic mail message, of how and when referred complaints have been resolved within a reasonable time after resolution. For purposes of this Section, “resolve” means that Franchisee shall perform those actions, which, in the normal course of business, are necessary to (a) investigate the Customer’s complaint; (b) advise the Customer of the results of that investigation; and (c) implement and complete steps to bring resolution to the matter in question. Seattle-3435598.1 0010932-00119 39 Packet Page 123 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 SECTION 6: BILLING A. Subscriber bills must be itemized to describe Cable Services purchased by Subscribers and related equipment charges. Bills will comply with applicable federal and state laws, and shall clearly delineate activity during the billing period, including optional charges, rebates, credits, and aggregate late charges. Franchisee shall, without limitation as to additional line items, be allowed to itemize as separate line items, Franchise fees, taxes and/or other governmental-imposed fees. Franchisee shall maintain records of the date and place of mailing of bills. B. Every Subscriber with a current account balance sending payment directly to Franchisee shall be given at least twenty (20) days from the date statements are mailed to the Subscriber until the payment due date. C. A specific due date shall be listed on the bill of every Subscriber whose account is current. Delinquent accounts may receive a bill which lists the due date as upon receipt; however, the current portion of that bill shall not be considered past due except in accordance with Section 6.B. above. D. Any Subscriber who, in good faith, disputes all or part of any bill shall have the option of withholding the disputed amount without disconnect or late fee being assessed until the dispute is resolved, provided that: (1) The Subscriber pays all undisputed charges; (2) The Subscriber provides notification of the dispute to Franchisee within five (5) days prior to the due date; and (3) The Subscriber cooperates in determining the accuracy and/or appropriateness of the charges in dispute. (4) It shall be within Franchisee's sole discretion to determine when the dispute has been resolved. E. Under Normal Operating Conditions, Franchisee shall initiate investigation and resolution of all billing complaints received from Subscribers within five (5) business days of receipt of the complaint. Final resolution shall not be unreasonably delayed. F. Franchisee shall provide a telephone number and address clearly and prominently on the bill for Subscribers to contact Franchisee. G. Franchisee shall forward a copy of any rate-related or customer service-related billing inserts or other mailings related to Cable Service, but not promotional materials, sent to Subscribers, to the City. H. Franchisee shall provide all Subscribers with the option of paying for Cable Service by check or an automatic payment option where the amount of the bill is automatically Seattle-3435598.1 0010932-00119 40 Packet Page 124 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 deducted from a checking account designated by the Subscriber. Franchisee may in the future, at its discretion, permit payment by using a major credit card on a preauthorized basis. Based on credit history, at the option of Franchisee, the payment alternative may be limited. SECTION 7: DEPOSITS, REFUNDS AND CREDITS A. Franchisee may require refundable deposits from Subscribers 1) with a poor credit or poor payment history, 2) who refuse to provide credit history information to Franchisee, or 3) who rent Subscriber equipment from Franchisee, so long as such deposits are applied on a non- discriminatory basis. The deposit Franchisee may charge Subscribers with poor credit or poor payment history or who refuse to provide credit information may not exceed an amount equal to an average Subscriber's monthly charge multiplied by six (6). The maximum deposit Franchisee may charge for Subscriber equipment is the cost of the equipment which Franchisee would need to purchase to replace the equipment rented to the Subscriber. B. Franchisee shall refund or credit the Subscriber for the amount of the deposit collected for equipment, which is unrelated to poor credit or poor payment history, after one year and provided the Subscriber has demonstrated good payment history during this period. Franchisee shall pay interest on deposits if required by law. C. Under Normal Operating Conditions, refund checks will be issued within the next available billing cycle following the resolution of the event giving rise to the refund, (e.g. equipment return and final bill payment). D. Credits for Cable Service will be issued no later than the Subscriber's next available billing cycle, following the determination that a credit is warranted, and the credit is approved and processed. Such approval and processing shall not be unreasonably delayed. E. Bills shall be considered paid when appropriate payment is received by Franchisee or its authorized agent. Appropriate time considerations shall be included in Franchisee's collection procedures to assure that payments due have been received before late notices or termination notices are sent. SECTION 8: RATES, FEES AND CHARGES A. Franchisee shall not, except to the extent expressly permitted by law, impose any fee or charge for Service Calls to a Subscriber's premises to perform any repair or maintenance work related to Franchisee equipment necessary to receive Cable Service, except where such problem is caused by a negligent or wrongful act of the Subscriber (including, but not limited to a situation in which the Subscriber reconnects Franchisee equipment incorrectly) or by the failure of the Subscriber to take reasonable precautions to protect Franchisee's equipment (for example, a dog chew). B. Franchisee shall provide reasonable notice to Subscribers of the possible assessment of a late fee on bills or by separate notice. Seattle-3435598.1 0010932-00119 41 Packet Page 125 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 C. All of Franchisee’s rates and charges shall comply with applicable federal and state law. Franchisee shall maintain a complete current schedule of rates and charges for Cable Services on file with the City throughout the term of this Franchise. SECTION 9: DISCONNECTION /DENIAL OF SERVICE A. Franchisee shall not terminate Cable Service for nonpayment of a delinquent account unless Franchisee mails a notice of the delinquency and impending termination prior to the proposed final termination. The notice shall be mailed to the Subscriber to whom the Cable Service is billed. The notice of delinquency and impending termination may be part of a billing statement. B. Cable Service terminated in error must be restored without charge within twenty- four (24) hours of notice. If a Subscriber was billed for the period during which Cable Service was terminated in error, a credit shall be issued to the Subscriber if the Service Interruption was reported by the Subscriber. C. Nothing in these standards shall limit the right of Franchisee to deny Cable Service for non-payment of previously provided Cable Services, refusal to pay any required deposit, theft of Cable Service, damage to Franchisee's equipment, abusive and/or threatening behavior toward Franchisee's employees or representatives, or refusal to provide credit history information or refusal to allow Franchisee to validate the identity, credit history and credit worthiness via an external credit agency. D. Charges for cable service will be discontinued at the time of the requested termination of service by the Subscriber, except equipment charges may by applied until equipment has been returned. No period of notice prior to requested termination of service can be required of Subscribers by Franchisee. No charge shall be imposed upon the Subscriber for or related to total disconnection of Cable Service or for any Cable Service delivered after the effective date of the disconnect request, unless there is a delay in returning Franchisee equipment or early termination charges apply pursuant to the Subscriber’s service contract. If the Subscriber fails to specify an effective date for disconnection, the Subscriber shall not be responsible for Cable Services received after the day following the date the disconnect request is received by Franchisee. For purposes of this Section, the term “disconnect” shall include Subscribers who elect to cease receiving Cable Service from Franchisee. SECTION 10: COMMUNICATIONS WITH SUBSCRIBERS A. Each employee of the Franchisee who routinely comes into contact with members of the public at their places of residence must wear a picture identification card clearly indicating his or her employment with the Franchisee. The photograph on the identification card shall prominently show the employee’s name and/or identification number. Such employee shall prominently display such identification card and shall show it to all such members of the public. Each employee of any contractor or subcontractor of the Franchisee who routinely comes into contact with members of the public at their places of residence must wear a picture identification Seattle-3435598.1 0010932-00119 42 Packet Page 126 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 card clearly indicating his or her name, the name of such contractor or subcontractor and the name of the Franchisee. B. All contact with a Subscriber or potential Subscriber by a Person representing Franchisee shall be conducted in a courteous manner. C. Franchisee shall send annual notices to all Subscribers informing them that any complaints or inquiries not satisfactorily handled by Franchisee may be referred to the City. A copy of the annual notice required under this Section 10.C will be given to the City at least fifteen (15) days prior to distribution to Subscribers. D. All notices identified in this Section shall be by either: (1) A separate document included with a billing statement or included on the portion of the monthly bill that is to be retained by the Subscriber; or (2) A separate electronic notification. E. Franchisee shall provide reasonable notice to Subscribers and the City of any pricing changes or additional changes (excluding sales discounts, new products or offers) and, subject to the forgoing, any changes in Cable Services, including channel line-ups. Such notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if within the control of Franchisee. Franchisee shall provide a copy of the notice to the City including how and where the notice was given to Subscribers. F. Upon request by any Subscriber, Franchisee shall make available a parental control or lockout device to enable a Subscriber to control access to both the audio and video portions of any or all Channels. Franchisee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter. G. Franchisee shall provide information to all Subscribers about each of the following items at the time of installation of Cable Services, annually to all Subscribers, at any time upon request, and, subject to Section 10.E., at least thirty (30) days prior to making significant changes in the information required by this Section if within the control of Franchisee: (1) Products and Cable Service offered; (2) Prices and options for Cable Services and condition of subscription to Cable Services. Prices shall include those for Cable Service options, equipment rentals, program guides, installation, downgrades, late fees and other fees charged by Franchisee related to Cable Service; (3) Installation and maintenance policies including, when applicable, information regarding the Subscriber’s in-home wiring rights during the period Cable Service is being provided; Seattle-3435598.1 0010932-00119 43 Packet Page 127 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 (4) Channel positions of Cable Services offered on the Cable System; (5) Complaint procedures, including the name, address, and telephone number of the City, but with a notice advising the Subscriber to initially contact Franchisee about all complaints and questions; (6) Procedures for requesting Cable Service credit; (7) The availability of a parental control device; (8) Franchisee practices and procedures for protecting against invasion of privacy; and (9) The address and telephone number of Franchisee’s office to which complaints may be reported. A copy of notices required in this Section 10.G. will be given to the City at least fifteen (15) days prior to distribution to Subscribers if the reason for notice is due to a change that is within the control of Franchisee and as soon as possible if not within the control of Franchisee. H. Notices of changes in rates shall indicate the Cable Service new rates and old rates, if applicable. I. Notices of changes of Cable Services and/or Channel locations shall include a description of the new Cable Service, the specific channel location, and the hours of operation of the Cable Service if the Cable Service is only offered on a part-time basis. In addition, should the Channel location, hours of operation, or existence of other Cable Services be affected by the introduction of a new Cable Service, such information must be included in the notice. J. Every notice of termination of Cable Service shall include the following information: (1) The name and address of the Subscriber whose account is delinquent; (2) The amount of the delinquency for all services billed; (3) The date by which payment is required in order to avoid termination of Cable Service; and (4) The telephone number for Franchisee where the Subscriber can receive additional information about their account and discuss the pending termination. K. Franchisee will comply with privacy rights of Subscribers in accordance with applicable federal and state law, including 47 U.S.C. §551. Seattle-3435598.1 0010932-00119 44 Packet Page 128 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 EXHIBIT E PERFORMANCE BOND Bond No. __________ KNOW ALL MEN BY THESE PRESENTS: That (name & address) (hereinafter called the Principal), and (name and address) (hereinafter called the Surety), a corporation duly organized under the laws of the State of (state), are held and firmly bound unto (name & address) (hereinafter called the Obligee), in the full and just sum of _____________ Dollars ($__________), the payment of which sum, well and truly to be made, the said Principal and Surety bind themselves, their heirs, administrators, executors, and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal and Obligee have entered into a Franchise Agreement dated________ which is hereby referred to and made a part hereof. WHEREAS, said Principal is required to perform certain obligations under said Agreement. WHEREAS, the Obligee has agreed to accept this bond as security against default by Principal of performance of its obligations under said Agreement during the time period this bond is in effect. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal shall perform its obligations under said Agreement, then this obligation shall be void, otherwise to remain in full force and effect, unless otherwise terminated, cancelled or expired as hereinafter provided. PROVIDED HOWEVER, that this bond is executed subject to the following express provisions and conditions: In the event of default by the Principal, Obligee shall deliver to Surety a written statement of the details of such default within 30 days after the Obligee shall learn of the same, such notice to be delivered by certified mail to address of said Surety as stated herein. This Bond shall be effective ____________, 20___, and shall remain in full force and effect thereafter for a period of one year and will automatically extend for additional one year periods from the expiry date hereof, or any future expiration date, unless the Surety provides to the Obligee not less than sixty (60) days advance written notice of its intent not to renew this Bond or unless the Bond is earlier canceled pursuant to the following. This Bond may be canceled at any time upon sixty (60) days advance written notice from the Surety to the Obligee. Bond No. __________ Seattle-3435598.1 0010932-00119 45 Packet Page 129 of 244 VERIZON CONFIDENTIAL AND PROPRIETARY CITY OF EDMONDS FRANCHISE AGREEMENT DRAFT JULY 17, 2008 Neither cancellation, termination nor refusal by Surety to extend this bond, nor inability of Principal to file a replacement bond or replacement security for its obligations under said Agreement, shall constitute a loss to the Obligee recoverable under this bond. No claim, action, suit or proceeding shall be instituted against this bond unless same be brought or instituted and process served within one year after termination or cancellation of this bond. No right of action shall accrue on this bond for the use of any person, corporation or entity other than the Obligee named herein or the heirs, executors, administrators or successors of the Obligee. The aggregate liability of the surety is limited to the penal sum stated herein regardless of the number of years this bond remains in force or the amount or number of claims brought against this bond. This bond is and shall be construed to be strictly one of suretyship only. If any conflict or inconsistency exists between the Surety’s obligations as described in this bond and as may be described in any underlying agreement, permit, document or contract to which this bond is related, then the terms of this bond shall supersede and prevail in all respects. This bond shall not bind the Surety unless it is accepted by the Obligee by signing below. IN WITNESS WHEREOF, the above bounded Principal and Surety have hereunto signed and sealed this bond effective this _____ day of _______, 2008. Principal Surety By: ___________________________ By: ___________________________________ , Attorney-in-Fact Accepted by Obligee: ___________________________________ (Signature & date above - Print Name, Title below) Seattle-3435598.1 0010932-00119 46 Packet Page 130 of 244 CABLE FRANCHISE AGREEMENT BETWEEN CITY OF EDMONDS AND VERIZON NORTHWEST INC. July 22, 2008 City Council Meeting Presentation Outline I. Overview / Background II. Introduction of Bob Duchen – Vice President – River Oaks Communications Corporation (Consulting Firm) III. Franchise Negotiation Process with Verizon A. Development of Franchise Template for North Puget Sound Consortium (including Edmonds) B. Negotiation of Franchise Items Specific to Edmonds (Ogden Murphy Wallace) IV. Overview of the Verizon Franchise as Compared with the Comcast Franchise A. Some Similarities B. Some Differences C. Overall Comparability and Competitive Neutrality V. Questions from the City Council. VI. Recommendation for First Reading Packet Page 131 of 244 River Oaks Communications Corporation Denver Office: 6860 South Yosemite Court, Suite 2000 Centennial, Colorado 80112 Telephone: (303) 721-0653 Fax: (303) 721-1746 E-Mail: bduchen@rivoaks.com Colorado Springs Office: 8 South Nevada Avenue, Suite 515 Colorado Springs, Colorado 80903 Telephone: (719) 477-6850 Fax: (719) 477-0818 E-Mail: tduchen@rivoaks.com River Oaks’ Bio River Oaks Communications Corporation, based in Denver and Colorado Springs, has provided consulting services on cable television or other telecommunications matters in 25 states. The company provides consulting services that involve a variety of cable television, Wi- Fi and telecommunications projects. River Oaks has successfully worked with over 30 communities in the Seattle/Tacoma area either individually or in Consortiums. The principals of River Oaks have had their work published and have spoken at national, regional or local conferences on a variety of cable television issues. Bob Duchen, Vice President of River Oaks, is a graduate of the University of Virginia School of Law. He has successfully negotiated cable franchise agreements on behalf of numerous communities in the Edmonds area, such as Everett, Kirkland, Marysville, Mukilteo and Snohomish with Comcast or its predecessor. Bob was a member of the negotiating team that took the lead in drafting the Franchise Template with Verizon. Additionally, because consulting on cable and telecommunications matters is the core of River Oaks' business, the principals are very knowledgeable about and stay current on federal governmental issues and regulatory matters. Packet Page 132 of 244 AM-1674 5. Underhill Comprehensive Plan Amendment (AMD-2007-14) Edmonds City Council Meeting Date:07/22/2008 Submitted By:Gina Coccia Time:60 Minutes Department:Planning Type:Action Review Committee: Action:Recommend Review by Full Council Information Subject Title Public Hearing on the Planning Board recommendation to deny the request by James Underhill to amend the Comprehensive Plan designation for properties along a portion of 215th Street SW and east of 76th Avenue West from “Mixed Use Commercial” to “Single Family Urban 1” (File AMD-2007-14). Recommendation from Mayor and Staff Adopt the recommendation of the Planning Board to deny the requested comprehensive plan map amendment. Previous Council Action None. Narrative The applicant, James Underhill, has requested to amend the Comprehensive Plan map designation for properties along a portion of 215th Street SW and east of 76th Avenue West from “Mixed Use Commercial” to “Single Family Urban 1." In order to approve a Comprehensive Plan amendment, four criteria must be met: (1) The proposed amendment is consistent with the Comprehensive Plan and is in the public interest. (2) The proposed amendment would not be detrimental to the public interest, health, safety or welfare of the city. (3) The proposed amendment would maintain the appropriate balance of land uses within the city. (4) The subject parcels are physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provision of utilities, compatibility with adjoining land uses and absence of physical contraints. The Planning Board held a public hearing on the request on June 11, 2008 and, after considering public testimony and after deliberations, they recommended that the City Council deny the requested amendment (the vote was 5-2 to deny the request). Packet Page 133 of 244 The minutes of the Planning Board public hearing and their reasoning is contained in Exhibit 1. The staff report and attachments 1-17 are contained in Exhibit 2. The attachments that were submitted into the record at and after the hearing are contained in Exhibit 3. Fiscal Impact Attachments Link: Exhibit 1: Planning Board Minutes Link: Exhibit 2: Staff Report & Attachments 1-17 Link: Exhibit 3: Attachments 18-20 Link: City Attorney Memo Form Routing/Status Route Seq Inbox Approved By Date Status 1 Planning Department Rob Chave 07/14/2008 03:18 PM APRV 2 Development Services Duane Bowman 07/17/2008 03:14 PM APRV 3 City Clerk Sandy Chase 07/17/2008 03:18 PM APRV 4 Mayor Gary Haakenson 07/17/2008 03:29 PM APRV 5 Final Approval Sandy Chase 07/17/2008 03:38 PM APRV Form Started By: Gina Coccia Started On: 07/14/2008 10:53 AM Final Approval Date: 07/17/2008 Packet Page 134 of 244 DRAFT Subject to June 18th Approval CITY OF EDMONDS PLANNING BOARD MINUTES June 11, 2008 Chair Guenther called the meeting of the Edmonds Planning Board to order at 7:01 p.m. in the Council Chambers, Public Safety Complex, 250 – 5th Avenue North. BOARD MEMBERS PRESENT Cary Guenther, Chair Michael Bowman, Vice Chair John Dewhirst Don Henderson John Reed Judith Works Jim Young Philip Lovell STAFF PRESENT Rob Chave, Planning Division Manager Gina Coccia, Associate Planner Mike Clugston, Associate Planner Karin Noyes, Recorder READING/APPROVAL OF MINUTES BOARD MEMBER WORKS MOVED THAT THE MINUTES OF MAY 14, 2008 BE APPROVED AS CORRECTED. BOARD MEMBER YOUNG SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY, WITH CHAIR GUENTHER AND BOARD MEMBER DEWHIRST ABSTAINING. ANNOUNCEMENT OF AGENDA Chair Guenther announced that Michael and Candace Dedonker withdrew their application to change the Comprehensive Plan designation from Single family – Urban 1 to Multi family – High Density on property located at 615 – 6th Avenue North (File Number AMD-07-18). Therefore, the public hearing regarding the file was removed from the agenda. The remainder of the agenda was accepted as presented. AUDIENCE COMMENTS Roger Hertrich, Edmonds, announced that at a recent meeting, the City Council considered draft language for Chapter 6 of the Municipal Code related to nuisances. He recalled that the Board spent a great deal of time discussing various nuisance issues as part of their review of Chapter 17 of the Edmonds Community Development Code. Upon the advice of the City Attorney and the Development Services Director, the Board agreed to move these items to Chapter 6 of the Municipal Code, which moved the items directly to the City Council for review and approval. He pointed out that after the language was reviewed by the Board, staff made significant changes to include a number of new items. He noted that because the proposed language would be incorporated into the Municipal Code, the City Council would not even be required to hold a public hearing before adopting the proposal. He suggested the Board review a copy of the minutes from the City Council’s discussion to see how much the language has been changed. He advised that the City Council would discuss the proposed language again on July 15th, and the first of two public hearings would be conducted at that time. He encouraged the Board Members to share their opinions about the grandiose list of nuisances the staff is trying to impose on the City residents. Packet Page 135 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 2 PUBLIC HEARING ON APPLICATION BY JAMES UNDERHILL TO AMEND THE COMPREHENSIVE PLAN DESIGNATION FOR PROPERTIES ALONG A PORTION OF 215TH STREET SOUTHWEST AND EAST OF 76TH AVENUE WEST FROM “MIXED-USE COMMERCIAL” TO “SINGLE FAMILY – URBAN 1.” (FILE NUMBER AMD-07-14) Gina Coccia, Associate Planner, presented the staff report. She explained that the proposed application is to amend the Comprehensive Plan designation for properties along a portion of 215th Street Southwest and east of 76th Avenue West from “Mixed-Use Commercial” to “Single family Urban 1.” She advised that prior to the hearing, packets of information related to the proposal were given to members of the Planning Board, the applicant, and parties of record. She reviewed the attachments to the staff report as follows: • Attachment 1 is the land use application that was submitted by the applicant. • Attachment 2 is the applicant’s narrative and contains his arguments for submitting the request. • Attachment 3 is the SEPA Determination of Non-Significance. No appeals were received regarding this document. • Attachment 4 is the public hearing notice describing the proposal to the neighborhood. • Attachment 5 is the Comprehensive Plan Map, which identifies the site as “Mixed-Use Commercial.” It is located in the middle of the “Highway 99 Activity Center” and not near other “Single Family Urban 1” areas. • Attachment 6 is the zoning map, which shows that the neighborhood is zoned for multiple residential uses, which includes single family. The multi-family residential zones also allow for commercial uses with an approved conditional use permit. It was noted that the site is not near any single-family zoned property. • Attachment 7 is the Aerial Photo Map, which shows the property’s proximity to the hospital to the south and more intense development to the east near Highway 99. • Attachment 8 is the Topography Map, which shows the site as being relatively flat, sloping down from 76th Avenue West to the east. • Attachment 9 is a simple neighborhood address map that was created by staff to keep track of the properties involved because the land use application simply lists addresses. It was noted that the applicant’s narrative (Attachment 2) was composed in 2004 and includes a page with the signatures of some neighbors. Since 2004, a few of the people have moved. • Attachment 10 is the 1963 Dwelling Unit Distribution Map, which makes it clear the City was aware that the block was developed with single-family residential homes at the time. • Attachment 11 is the 1963 Land Use Map, which points out that even though the City was aware that the block was developed with single-family residential homes, the intended land use was identified as multi family. • Attachment 12 is the 1963 Zoning Map, which shows how the site has always been zoned for multi-family use. • Attachments 13 through 16 are excerpts from the Comprehensive Plan to aid the Board in their review. • Attachment 17 includes all the public comment letters received regarding the application. Ms. Coccia referred to Attachments 5 through 12, which were provided by staff as evidence that the request before them is not in compliance with the Comprehensive Plan. She displayed the neighborhood address map (Attachment 9) and pointed out that the area under review is along 215th Street Southwest. It is comprised of 19 parcels, and is approximately 4.6 acres in total size. She noted that the owners of the two most western properties that border 76th Avenue West have requested to be removed from the proposal (See Attachment 17). Ms. Coccia reminded the Commission that pursuant to Edmonds Community Development Code (ECDC) 20.00.020, amendments to the Comprehensive Plan may only be adopted if they meet four specific findings. She reviewed the staff findings for each one as follows: 1. Is the proposed amendment consistent with the Comprehensive Plan and in the public interest? Ms. Coccia referred to the Comprehensive Plan Map (Attachment 5) and said staff argues that the proposal is neither consistent with the Comprehensive Plan nor in the public interest. She explained that the Comprehensive Plan does not indicate the intent to change this neighborhood, and the neighborhood has remained essentially the same since 1963. Further, she Packet Page 136 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 3 suggested that a more intense use of the area, as planned since 1963, would expand the economic tax base of the City, which would be in the general public interest. A Comprehensive Plan Goal states: “expand the economic tax base of the City of Edmonds by providing incentives for business and commercial redevelopment in a planned activity center.” She summarized that the request would create future conflicts with the surrounding more intense designations as they ultimately redevelop. This would create an underutilized island in the middle of a more intense neighborhood. 2. Is the proposed amendment detrimental to the public interest, health, safety and welfare of the City? Ms. Coccia argued that the request is not in the public interest because, if changed to a less intense designation, it would undermine the Comprehensive Plan’s goals and policies to provide future opportunity for more intensive uses. 3. Does the proposed amendment maintain the appropriate balance of land uses within the City? Ms. Coccia argued that approving the proposed Comprehensive Plan amendment would, in effect, create a single-family island in the middle of the intensive “Medical/Highway 99 Activity Center,” which would throw off the balance within the activity center. 4. Is the subject parcel physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints? Ms. Coccia argued that the proposed amendment is not compatible geographically with adjacent land uses. She pointed out that memorializing a single-family neighborhood within the intense “Medical/Highway 99 Activity Center” through the proposed request would not be physically appropriate and would not result in an appropriate boundary. Based on staff’s analysis of the above mentioned criteria, Ms. Coccia recommended the Planning Board forward a recommendation to the City Council to deny the request to change the Comprehensive Plan designation from “Mixed-Use Commercial to “Single Family Urban 1” for properties along a portion of 215th Street Southwest and east of 76th Avenue West. She expressed her belief that the applicant has failed to demonstrate that the proposal would be consistent with the Comprehensive Plan or in the public’s interest. Jim Underhill, Applicant, provided a brief history of the neighborhood by noting that the Luschen family developed the neighborhood in 1958 when it was part of the county, and their vision was for single-family residential homes. All the homes were built with this in mind, and their character and use has remained unchanged for a half century of time. Characteristics of the street include families, school children, stability, infrequent turnover, and an active neighborhood that has always contributed to the economic well being of Edmonds. In no way does it detract from City goals of any kind. The homes were built at the same time as the high school and six years before the hospital. When they were built, there was marginal development along Highway 99 and throughout this part of Edmonds, and the neighborhood has been an active participant in the subsequent growth and mixed-use development of the area. Mr. Underhill expressed his belief that the neighborhood has worked hard to make their street and the surrounding community safer for all, and they have received strong support from City departments including engineering and police. He advised that the neighborhood petitioned the City and met with the City’s Traffic Engineer to get a speed bump to slow traffic and protect children walking to school and residents moving about. The neighborhood also coordinated with City Police and Edmonds Woodway High School leadership to stop out of control behavior by students parking along 215th Street Southwest. The City put up signs, students were educated, and the police patrolled the area. As a result most of the problem has been removed. He noted that, most recently, the neighborhood identified the need for a new street light for improved safety at the intersection of 215th Street Southwest and 76th Avenue West, and the City provided the light. Mr. Underhill pointed out that while the neighborhood is older, a number of homes have been improved in the last 10 years. Now there are 13 homes that have had various measures of improvement and 3 more are under way at this time. He emphasized that the neighborhood is well cared for, and the neighbors assist each other in this effort. This adds value to those living in and coming through the neighborhood. He noted that the neighborhood is located within an activity center that includes two master plans to the south and west of 215th Street Southwest. In order to conduct due diligence, Mr. Underhill said he contacted the Edmonds School District and Stevens Hospital to solicit feedback about whether or not the proposed Comprehensive Plan change would cause them problems. He reported that Packet Page 137 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 4 Marla Miller from the Edmonds School District indicated the District had no problem with the proposed amendment. He never received a response from the hospital’s public affairs person, and this suggests there would be no problem for them, either. He pointed out that Page 6 of the hospital’s 1994 draft master plan shows 215th Street Southwest as a residential street in relation to the hospital, itself. Mr. Underhill reported that numerous neighborhood meetings have been conducted regarding the proposal, and they have been open to everyone. In addition, he has met with the Planning Board on two occasions to discuss the plan in open forum. He pointed out that the effort would have died at any time without the agreement of a clear majority of residents. He suggested that the proposed application sends a strong message from 17 of the 19 owners. The neighborhood’s desire for change is further underscored by the fact that 10 property owners contributed $260 each to pay for the cost of the amendment application. Mr. Underhill briefly reviewed the wide variety of residents who live in the subject neighborhood, as well as the various neighborhood characteristics that exist. Mr. Underhill pointed out that the report prepared by City staff includes no data or analysis to support their conclusions. The report makes statements and reaches conclusions that are neither embedded in the Comprehensive Plan itself nor by reference to any other City documents that supports its recommendation. Staff uses important words that are not even found in the Comprehensive Plan and if so, in different contexts. He suggested that in pursuing the City’s goal of commercial and mixed- use development on 215th Street Southwest, the Planning Staff has only one goal in mind—devaluing and then uprooting the residential neighborhood and pushing out its residents. This is clear in the report and has been stated in public meetings. The City has allowed two individuals to be on the record as opposed to the amendment. However, it is important to note that these parties are truly the minority, and their financial concerns have not been proven and are baseless when compared to real estate data. Mr. Underhill concluded that the City’s findings recycle unproven concepts and conclusions. Even when staff notes the applicant’s compliance with Findings 3 and 4, they still try to overturn their own conclusions. Mr. Underhill referred to the staff’s contention that the proposed amendment would inhibit dense mixed-use development in the area. He noted that the City has targeted the demise of the neighborhood for 45 years by intentionally encouraging the introduction of businesses and apartment/condo development. However, they have not been able to accomplish this goal during the last half century. During this time, successful mixed-use development has occurred all around the neighborhood, bringing housing options, successful commerce, and many public transportation options to this part of Edmonds. Increasing amounts of property tax revenues have come from the neighborhood properties. He emphasized that the staff report does not identify a single tangible measure to show that the subject neighborhood has stunted economic development, a mature public transportation system, education, health care, a good mix of housing options and more. The City staff has failed to prove that the neighborhood is a deterrent to the any goal set by the State, County or City officials, especially that of access to affordable housing in safe neighborhoods. If they are a deterrent, then why are there four national companies (Burger King, Dairy Queen, 7-11, and Grease Monkey) located just a block away from the neighborhood? In addition, Top Foods is located three blocks away and Stevens Hospital has expanded, as well. Mr. Underhill referred to the City’s goal to increase dense development in the subject neighborhood and reminded the Commission about its recent unanimous rejection of the City’s BR/BR2 plan that would have done so. This was an effort to greatly increase dense development in and around Holmes Corner. The staff presented the plan, the residents of the community voiced opposition, and the Board recommended denial. He pointed out that, at this time, there are no other similar plans on the table. He pointed out that the City of Edmonds has had 45 years to achieve their goal of removing the residential development from 215th Street Southwest, and it has failed. This suggests that the open market of opportunity to respond to the City’s current zoning for the street has failed. Mr. Underhill summarized his belief that the City staff has failed to provide data, analysis and proof to demonstrate that the neighborhood has and would hinder the City’s goals of economic development and success. Therefore, he asked that this argument be rejected. Mr. Underhill provided a map of the Medical/Highway 99 Activity Center. He also provided a copy of the Comprehensive Plan to illustrate the location of the subject property, as well as other single-family properties within the activity center. He said the staff report identifies a concern that the neighborhood would become an island of single-family development if the amendment were approved. He noted that the word “island” has been an oft mentioned comment from staff in public meetings. He suggested the word is first mentioned in the third paragraph of Page 3 of the staff report as a distraction from dealing with facts and the aforementioned policy failure. He suggested that staff wants the Board to believe the Packet Page 138 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 5 neighborhood is a problem, and they have assigned a ‘tag’ to the neighborhood to underscore their point. However, he said it is important to understand that the neighborhood is not an isolated, physical space. Instead, the street is and has always been part of a vibrant neighborhood that is locally known as Holmes Corner. The neighborhood is a single-family residential component of the Medical/Highway 99 Activity Center, similar in character and use to the other six single-family residential neighborhoods scattered around the activity center. He expressed his belief that the character and use of 215th Street Southwest is comparable with the other neighborhoods, and what is good zoning for one should be good for all. Mr. Underhill emphasized that 215th Street Southwest is not the only single-family street or island in the activity center, yet the other streets have gone unmentioned. He suggested that because the City lacks a precise definition for the term “island,” the staff has not provided the Board and public a workable context for this novel idea. He noted, in fact, that the word “island” is not even found in the City’s Comprehensive Plan. He summarized that this type of wordsmithing does not exist as a policy or requirement in the City’s Comprehensive Plan. Because staff failed to show the definition behind the word as it fits this discussion, their argument is without meaning and arbitrary in its application. Mr. Underhill referred to the first paragraph on Page 4 of the staff report, where staff again goes through a great effort to find a reason to deny the amendment request. While the staff report recognizes there are other residential nodes in the activity center, it points out that 215th Street Southwest is in the middle of the activity center, while others are on the outskirts or periphery. He suggested that staff would have the Board believe that something bad is happening due to the neighborhood’s placement in the activity center. However, it is important for the Board to understand that whenever a boundary is drawn around anything, it creates a center and an edge but does not assign value. While the words “middle” and “periphery” are woven into the staff’s argument, he said it is important to note that “middle” is only used one time in the Comprehensive Plan but in an entirely different context. “Periphery” is not even found in the Comprehensive Plan document. Therefore, he questioned how these terms could be used as criteria to bolster the City’s discussion, findings and recommendation. He summarized that since this point in the report is based on an arbitrary use of words and concepts not founded in the Comprehensive Plan, the idea is applied in an arbitrary and capricious manner. Therefore he asked that the Board reject the argument. Mr. Underhill referred to the staff’s argument related to exemptions and fair market value. He noted that only two individuals who live on the street have asked to be excluded from the request. He said it is important to understand that this is a minority opinion since 17 other residents support the proposed Comprehensive Plan amendment and eventual zoning change request. Mr. Underhill reported that he reviewed a number of reliable real estate databases to gauge a possible profit on the two properties, and there is agreement among the data that both parties would achieve a good profit in today’s market, especially if the mortgage is paid up. He further reported that data for homes in the area zoned Single Family Urban 1 shows there is little if no difference in estimated value among comparable homes. Mr. Underhill pointed out that Mr. Peppel’s property has the character of a single-family residence, and it fits well in the neighborhood. Again, he noted that real estate data makes it clear that in today’s market, Mr. Peppel would achieve a good profit. While Mr. Peppel frames his case about possible “harm” as an investor/landlord, it is important to note that there are two other properties on the street that are rentals and neither of these parties are claiming harm. He suggested that Mr. Peppel is in the minority as is Ms. Martinez. He advised that Ms. Martinez has repeatedly told him that she would sell her property to someone who would build apartments or condos to make as much money as she can. He summarized that this viewpoint is the tipping point that threatens their neighborhood. He emphasized that neither Mr. Peppel nor Ms. Martinez have provided data, analysis or proof to support their claim of possible harm, as well as their statement that the street is different from others. He concluded, therefore, that their request for an exemption is a misplaced and unsubstantiated concern that should be denied. Mr. Underhill reviewed the four criteria that must be considered by the Board when reviewing a Comprehensive Plan amendment as follows: 1. Is the proposed amendment consistent with the Comprehensive Plan and in the public interest? Mr. Underhill suggested the Board pay particular attention to the phrase “public interest.” Since the term is not found in the Comprehensive Plan, it is not clear what definition is used that must be satisfied. However, in order to be consistent with his presentation, Mr. Underhill said he would offer facts that satisfy the finding. He noted that 215th Street Southwest is a residential, single-family street that is affordable, safe, next to health care/shopping/public transportation, and within Packet Page 139 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 6 walking distance of public schools. In addition, it is being improved and provides a proper blend of residential development within a well-established mixed-use activity center. It allows biking and walking throughout the area and more. He suggested that the neighbors have the public’s best interest in mind as they make the neighborhood safe, accessible, and affordable and bring added value to the City. He emphasized that these facts are embedded in the Comprehensive Plan as goals for the City and the activity center. 2. Is the proposed amendment detrimental to the public interest, health, safety and welfare of the City? Mr. Underhill pointed out that the staff selected only “public interest” as their focus. However, he countered that the proposed amendment would satisfy more than one factor. As he noted earlier, they have improved the safety along this street which has high value for many. If the City’s plan to inject intense development onto 215th Street Southwest succeeds, students who must walk this street to reach the high school or middle school would face increased risks as traffic volumes are increased. Even if sidewalks are in place, students often walk from 73rd Place West and beyond where no sidewalks exist. Having more traffic on 215th Street Southwest and these other streets would place both young people and drivers at risk. This concern includes those driving into and out from the high school on 76th Avenue West. On the other hand, the current, less-intense development dramatically lowers this risk for all, and this is both a safety and general welfare issue for the neighborhood. As stated earlier, Mr. Underhill pointed out that residents of 215th Street Southwest have not deterred development for 50 years; and they do not do so now. Single Family Urban 1 zoning is present throughout the activity center today with no negative impact, and the City has not proven that it would have an impact. In addition to this reason, Mr. Underhill suggested it is definitely in the public’s interest to have an inventory of quality affordable housing in this part of Edmonds. The subject neighborhood provides affordable housing; and at a time of skyrocketing land and construction prices, such a neighborhood adds much value to the City. 3. Does the proposed amendment maintain the appropriate balance of land uses within the City? Mr. Underhill emphasized that the staff report makes it clear that the proposed amendment would not significantly alter the balance of land uses in Edmonds. However, it suggests the application does not meet this criteria by using the faulty “island theory,” which was shown to be baseless and not associated with the Comprehensive Plan, itself. He concluded that this additional point does not trump the City’s own statement that the proposal would satisfy the requirement. 4. Is the subject parcel physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints? Mr. Underhill recalled that the staff report suggests that the application would meet this criterion. However, they reverse this position by hauling out the tired “island theory” topped with some mention of a “boundary” which is also neither explained nor embedded in the Comprehensive Plan or by reference to any other City document. In conclusion, Mr. Underhill expressed his belief that the proposed amendment request meets all required findings. Further, he said that reading and responding to the staff report was both an eye-opener and a frustration. Their Findings of Fact and Conclusions are littered with statements, words, concepts and conclusions that are not found in the Comprehensive Plan. These items were not placed in context, were applied arbitrarily, and were not supported by data, analysis and/or other proof. He noted that this faulty approach is especially important in Section II.E. of the staff report where findings must be satisfied. He summarized that the City staff failed repeatedly to marshal any measure of an accurate and reasoned argument supporting their recommendation. He asked that the Board deny the staff’s recommendation and allow the amendment to go forward with a recommendation of approval. Board Member Henderson invited Mr. Underhill to provide more information about the covenant he discussed in his presentation. Mr. Underhill advised that a neighbor found an original covenant that was created by the Lucien Family when the single-family neighborhood was developed. It was filed with the Snohomish County Auditor in 1958, but it has not been active in any way. The covenant is important to the issue because it illustrates the original builder/owner’s vision, why single-family homes were constructed, and why they have remained as such. The neighborhood’s character and use was established by the covenant. The covenant restricted development to single-family homes only. He offered to provide the Packet Page 140 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 7 Board with a copy of the covenant at a later date. He noted that nothing has changed in the neighborhood over the past half century. Board Member Henderson asked if a covenant established in the 1960’s would bind future property owners on 215th Street Southwest. Mr. Underhill pointed out that there is no neighborhood association to manage the covenant. Mr. Chave said the purpose of referencing the covenant was to acknowledge the developer’s original intent. He noted the City does not have a copy of the covenant to make a determination about whether it is a legal document or not. However, he reminded the Board that the City does not enforce covenants, and covenants do not override the City’s land use policies and goals. Therefore, the covenant would have no bearing on the present application. Board Member Henderson inquired if the neighborhood would have the ability to enforce the covenants and limit redevelopment in the neighborhood to single-family residential, only. Mr. Chave again stated that without having a copy of the covenant, he has no idea whether it would have any standing today. Mr. Chave suggested that there may have been more properties than just the 19 that were owned by the developer and part of the original development. If that is true, it is important to note that many of these properties have already redeveloped into uses other than single family. Board Member Dewhirst inquired if 73rd Place West was developed at the same time as 215th Street Southwest. Mr. Underwood said that 73rd Place West was developed in the same time frame as 215th Street Southwest. However, he doesn’t know if it was developed by the same land owner. Norman Knaack, Edmonds, indicated that he agreed with and supported Mr. Underhill’s comments. Susana Martinez, Edmonds, voiced opposition to the proposed Comprehensive Plan amendment. She indicted that her house is located at the corner of 76th Avenue West and 215th Street Southwest. She said that her home, and the home across the street from her are in a location than is different that the other homes on 215th Street Southwest. She said she purchased her current home in 1986 because it was close to the schools her children would attend and close to the hospital and other medical services. When she purchased her home, she knew that the neighborhood would change, and she supported the Comprehensive Plan and zoning designations that were in place at that time. She said she is an architect and urbanist. She suggested that if a person wants to live in a quiet neighborhood without interference of public buildings, they need to find a cul-de-sac or another quiet place. Again, she said she knew when she purchased her home in 1986 that the area would change, and it has. If she doesn’t like the way change occurs in the future, she would sell her home and move away. Alden Peppel, Edmonds, said he purchased his home at the corner of 76th Avenue West and 215th Street Southwest in 1972. At that time, he had a clear understanding of what the zoning was, and he felt it was appropriate for his property. He agreed with Ms. Martinez, and he would like the Board to recommend denial of the application. He summarized he sees no public advantage associated with the application. Roger Hertrich, Edmonds, noted that the City of Edmonds has determined that buildings over 40 years old are considered historic. He urged the Board to approve the amendment in order to protect this isolated residential historic neighborhood. He reminded the Commission that the City has taken steps in recent years to protect the existing historic structures and not force them out, specifically in the downtown BC zones. Provisions are being considered that would allow an owner of non- conforming property to rebuild if a structure is destroyed. He suggested that one way to protect this neighborhood is to consider it historic. Even though the Comprehensive Plan indicates that change should occur in the neighborhood, he urged the Board to take steps to protect this isolated area of historic development. He noted that Lake Ballinger is another area that is always under pressure to allow commercial and multi-family development to encroach into the single-family residential areas. There are similar enclaves throughout the City where existing development represents the history of the City. These areas should be preserved. The neighborhood people have worked hard to maintain their identity and the Board and City Council should respect and support their efforts. He summarized that it is not appropriate to wipe out these historic neighborhoods for the sake of progress. He suggested it adds character to have irregular areas throughout the City. When an area is ready to change, the City will know it; but this neighborhood is not ready for change now. He encouraged the Board to recommend approval of the application. Mark Schrock, Edmonds, said he moved to the subject neighborhood 14 years ago. He was looking for a place to raise a family where the neighborhood would be preserved. When he purchased his property, he reviewed a covenant that protected Packet Page 141 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 8 the single-family neighborhood from other types of development. It was his understanding that the covenant would remain intact in perpetuity. He noted that there are numerous covenants on file with the State and County, and he would like to see the wishes of the majority of the neighbors and their existing covenant enforced. They would like the neighborhood to remain as single-family residential. He expressed concern that if the neighborhood is allowed to redevelop like other properties in the area have done, the end result could eventually become “ghetto” type development. Mr. Chave complimented Mr. Underhill on his presentation and said he stated his case very clearly. However, he clarified that words such as “island” and “periphery” are terms used in planning documents to help describe a situation. He explained that there is a fundamental difference between this single-family residential area that is completely surrounded by other more intense uses and other single-family residential areas that are located around the periphery of the Medical/Highway 99 Activity Center. These other neighborhoods extend out from the activity center and into surrounding residential zones. He emphasized that the proposed amendment would change the land use designation that has been in place since at least 1963, which calls for more intense development. Mr. Chave suggested that perhaps the neighbors have a misunderstanding of what the current Comprehensive Plan designation and zoning allow. Single-family residential homes are permitted uses within the existing zone, and these would continue to be allowed. There is nothing in the City’s Comprehensive Plan or zoning code that would require the existing residential homes to be replaced with other more intense development. However, the current Comprehensive Plan designation and zoning does make it clear that it would not make sense to maintain the single-family residential uses for the long-term planning of the area. He reminded the Board of comments provided by Ms. Martinez and Mr. Peppel related to the significant changes that have already occurred elsewhere in the area. What has been identified in the Comprehensive Plan since the 1960’s is essentially the goal for the area, but that doesn’t mean the residential uses in this neighborhood would have to change in the near future. However, at some point in the future, the Comprehensive Plan anticipates this change would occur. Mr. Chave emphasized that staff is not opposed to allowing the existing residential homes to remain, but changing the Comprehensive Plan and zoning to limit future uses to single-family residential would not be appropriate. It would result in an island surrounded by other more intense uses. He referred to the goals identified in the Comprehensive Plan for the Medical/Highway 99 Activity Center and said the City has long felt that the activity center is an economic driver for future development, which means more intensive uses would occur in the area in the long term. He said one of the main points in the Comprehensive Plan is to channel future growth in areas where it is appropriate so that the growth doesn’t intrude into other parts of the City where single-family residential uses should continue to be the predominant use. THE PUBLIC PORTION OF THE HEARING WAS CLOSED, AND THE ITEM WAS REMANDED TO THE BOARD FOR DELIBERATION. Board Member Young said he plans to support the proposed application. As he reviewed the extensive staff report, he came to a different conclusion than staff regarding the application. He suggested that, contrary to the spirit and intent of the existing Comprehensive Plan designation, the proposed amendment is supportive of what the City is trying to do along Highway 99 and the community in general. He noted that this neighborhood is one of the last islands of affordable housing in the entire City, and he agrees with Comprehensive Plan policies that support affordable housing that is not in town houses or condos. He emphasized that the subject properties represent an established residential neighborhood that can provide affordable housing that is close to the hospital and other medical facilities, public transit, and other commercial development that may occur on Highway 99. He expressed his belief that the proposal is very supportive of overall development within the City limits and meets the four criteria for approving a Comprehensive Plan. He summarized that the City needs to have more single-family neighborhoods that are accessible to business centers. Board Member Dewhirst said he has difficulty understanding why the applicant is proposing the amendment. The current zoning has worked well for numerous years. He agreed that this neighborhood is an important part of the activity center and supplies affordable housing to the City, but this could continue without changing the current land use designation and zoning. He pointed out that the area has changed and would continue to change, and he doesn’t see that 215th Street Southwest would change one way or another, irrespective of the zoning, until the current residents want it to change. He said he does not believe a case has been made to justify the request. He agreed with the findings and conclusions provided in the staff report. He particularly agreed that this island or pocket of land is different than other single-family residential developments that are Packet Page 142 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 9 part of the activity center. He recalled that when the Board deliberated on the establishment of the Medical/Highway 99 Activity Center, they talked about this neighborhood at length and how it was different from other residential areas. When the Medical/Highway 99 Activity Center was updated a few years later, the Board reviewed this neighborhood again and determined that no changes should be made. He said he does not believe the circumstances have changed to justify the amendment. Therefore, he would recommend denial of the application. Vice Chair Bowman agreed with Board Member Dewhirst. As he reviewed the staff report, he said he couldn’t understand why the neighborhood is so adamant about change. The existing land use designation and zoning has been in place for a number of years. He said he reviewed the application carefully to identify the impacts. The existing neighbors have a strong sense of community. As long as this strong sense of community is maintained, no change would occur in the neighborhood. He said he does not want to support a Comprehensive Plan amendment that would create an island of different zoning. He pointed out that a lot of thought went into the creation of the existing land use designation and zoning, and he would be opposed to the proposed change at this time. Chair Guenther said he would not recommend approval of the proposed amendment, either. He said he agrees with the findings and conclusions in the staff report. While a wonderful sense of neighborhood exists and would likely continue for some time, he anticipates that change would occur in the long term. He said he would like to maintain the current provisions that allow this change to take place. He also noted that just because the homes are more than 40 years old doesn’t mean they are historic, and there are a lot of older neighborhoods in the City at this time. He reminded the Board that the City has a process for ensuring historic structures are preserved, and none of these property owners have submitted an application to have their home listed on the Edmonds Register of Historic Properties. Board Member Henderson said he sees merit to the arguments provided by both sides. He doesn’t like the idea of creating an island of isolated zoning in the Comprehensive Plan; but at the same time, there is a strong neighborhood commitment to preserve the stricter designation. Commissioner Works agreed with the staff’s analysis of the proposal. The neighborhood is a small area of isolated single- family residential development, and the current zoning and Comprehensive Plan designation have been in place for more than 40 years. Apparently, it has worked for a long time, and the houses have remained with a strong sense of community. She recalled that two of the property owners want to retain the existing land use designation and zoning that was in place at the time they purchased their properties. While she can understand why the majority of the neighborhood wants their properties to stay the same, the existing designation and zoning would not require that the houses be removed. She said she would vote against the proposal, as well. Commissioner Reid said he would recommend denial of the proposal, too. While he heard good comments from those present about the history of the neighborhood and the need to preserve its residential aspect, it is important to keep in mind that this neighborhood is located in the middle of an area that the Comprehensive Plan defines as an intense use area of the Medical/Highway 99 Activity Center. The property has maintained the current land use designation and zoning for a number of years, and he is surprised that it has retained its residential character for this long. Upon reviewing the Comprehensive Plan, he said he doesn’t not see any other single-family residential neighborhoods located in the center of the activity center. The proposed change would not be consistent with the Comprehensive Plan and would not be in the public interest. The proposal would also be inconsistent with adjoining properties. BOARD MEMBER DEWHIRST MOVED THAT THE BOARD RECOMMEND THE CITY COUNCIL DENY THE APPLICATION BY JAMES UNDERHILL TO AMEND THE COMPREHENSIVE PLAN DESIGNATION FOR PROPERTIES ALONG A PORTION OF 215TH STREET SOUTHWEST AND EAST OF 76TH AVENUE WEST FROM “MIXED USE COMMERCIAL” TO “SINGLE FAMILY URBAN 1” (FILE NUMBER AMD-2007-14). VICE CHAIR BOWMAN SECONDED THE MOTION. Board Member Dewhirst clarified his motion by reviewing the Comprehensive Plan amendment criteria as follows: 1. Is the proposed amendment consistent with the Comprehensive Plan and in the public interest? Board Member Dewhirst said he believes the application is inconsistent with the Comprehensive Plan and inconsistent with the goals and Packet Page 143 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 10 objectives of the Medical/Highway 99 Activity Center. The application would not be in the best interest of the public, either. The current Comprehensive Plan designation and zoning have been in place for a number of years, and they seem to work well. The single-family residential nature of the neighborhood along 215th Street Southwest has remained in tact and has not changed for a long time. 2. Is the proposed amendment detrimental to the public interest, health, safety and welfare of the City? Board Member Dewhirst concluded that the proposed amendment is counter to the intent of the Comprehensive Plan and not in the best interest of the public. 3. Does the proposed amendment maintain the appropriate balance of land uses within the City? Board Member Dewhirst said he did not feel the balance of land uses would be impacted either way. However, the Comprehensive Plan’s intent is clear that the area should be mixed use, and this neighborhood would add to that goal. The applicant’s argument that the neighborhood is close to shopping, medical, education opportunities and public transit is good, but these amenities really support a more intense use of the properties. 4. Is the subject parcel physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints? Board Member Dewhirst expressed his belief that the applicant did not make an adequate case that the subject parcel would be physically suitable for the requested land use designation. THE MOTION CARRIED 5-2-1, WITH CHAIR GUENTHER, VICE CHAIR BOWMAN, BOARD MEMBER DEWHIRST, BOARD MEMBER WORKS, AND BOARD MEMBER REED VOTING IN FAVOR AND BOARD MEMBER YOUNG AND BOARD MEMBER HENDERSON VOTING IN OPPOSITION. BOARD MEMBER LOVELL DID NOT VOTE. THE BOARD TOOK A BREAK AT 8:17 P.M. THE MEETING RESUMED AT 8:30 P.M. PUBLIC HEARING ON APPLICATION BY ZAMMIT/HDA DESIGN GROUP TO AMEND THE COMPREHENSIVE PLAN FOR PROPERTY LOCATED AT 1030 GRANDVIEW FROM “SINGLE FAMILY – RESOURCE” TO “MULTI FAMILY – HIGH DENSITY.” (FILE NUMBER AMD-07-19) Mike Clugston, Associated Planner, presented the staff report. He referred the Commission to the list of attachments that were provided as part of the staff report. He also reported that the following letters were received after the staff report was completed: • Attachment 18 is a letter from Garrett Goldsmith expressing opposition to the proposed amendment. • Attachment 19 is a letter from Darin and Leslie Wall expressing opposition to the proposed amendment. • Attachment 20 is a letter from Anny Spivey expressing opposition to the proposed amendment. • Attachment 21 is a letter from Ellen Sherlock expressing opposition to the proposed amendment. Mr. Clugston advised that the proposal is an application by Michael and Lisa Zammit (represented by John Bissell, HBA Design Group) for a Comprehensive Plan change from “Single Family – Resource” to “Multi Family – High Density” at 1030 Grandview Street. The applicant’s intent is to develop elderly housing on the subject site. Mr. Clugston displayed the current Comprehensive Plan Land Use Map and noted that the property is currently designated as “Single Family – Resource,” and the proposed amendment would result in a density change for the parcel from less than 4 units per acre to a density ranging from 18 to 30 units per acre. Given the size of the subject parcel, 7 to 11 units would be possible when employing the compatible zoning classifications of RM-1.5 and RM-2.4. The applicant has speculated that 10 units would be considered for the future development. He explained that the site is located just north of the intersection of Puget Drive and Olympic View Drive, and there is a one-story single-family residence currently located on the site. The site is currently zoned single-family residential (RS-12), which is compatible with its current Comprehensive Plan designation. There is a row of trees along the eastern property line, and sparse trees along the southwest property line. Packet Page 144 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 11 Mr. Clugston displayed an aerial map of the area and pointed out that nearly all of the surrounding parcels are designated as “Single Family – Resource.” Most are zoned RS-12 and are developed with single-family residences. There is a small strip of parcels along the north side of Puget Drive that are designated “Neighborhood Commercial,” and these are currently zoned “Neighborhood Business” (BN). They have been developed accordingly, with small neighborhood retail and service uses. He noted that several multi-family dwellings are also present along Puget Drive, which are existing non-conforming uses within the BN zone. The Edmonds Elementary School complex is located across Puget Drive to the south. Mr. Clugston further explained that the area surrounding the intersection at Puget Drive and Olympic View Drive was annexed into the City between 1957 and 1961, and the 1963 Generalized Land Use Plan Map shows the majority of the area designated as “Low- Density Residential” with the “Neighborhood Business” designation at the intersection. The 1963 Zoning Map shows the parcels in the vicinity to be zoned in accordance with the Comprehensive Plan, predominately single-family residential with a cluster of restricted commercial uses at the intersection of Puget Drive and Olympic View Drive. Mr. Clugston said two previous proposals have been submitted to the City for properties in close proximity to the subject site. In 1963 the City considered a proposal to rezone property at 1047 Puget Drive from Single Family Residential – 12,000 to Restricted Commercial. Despite the fact that the access portion of the parcel adjacent to Puget Drive was already zoned Restricted Commercial, the proposal was denied. An application was submitted in 1987 to rezone a portion of the property at 1233 Olympic View Drive from Single Family Residential – 12,000 to Neighborhood Business. This proposal was also denied. Mr. Clugston reviewed the Comprehensive Plan amendment criteria and provided the following analysis: 1. Is the proposed amendment consistent with the Comprehensive Plan and in the public interest? Mr. Clugston pointed out that the proposed amendment is potentially consistent with portions of the Housing Element of the Comprehensive Plan, which describe the need to create additional affordable housing opportunities, particularly for the low-income elderly. This section cites upzoning as an option to provide such housing in Edmonds. However, the Comprehensive Plan states that such changes must occur in “designated corridor areas.” He explained that the Puget Drive and Olympic View Drive area has not been identified as a designated corridor where such parcel re-designation is anticipated. Since the plan is silent on the idea of re-designating an existing single-family parcel to “Multi-Family – High Density” in a non-designated area, it can be concluded that it is not desired. As a result, the process would effectively be spot re-designation (akin to spot zoning), which is not in the public interest. Mr. Clugston further explained that the plan does not indicate intent to change parcel designations near “Neighborhood Commercial” areas to create transitions between existing disparate designations such as “Commercial” and “Residential.” For example, while the Five Corners and Firdale Village areas have specific goals and policies particular to their locations, providing transitional areas or buffers between existing commercial and residential areas is not discussed. He noted that the plan does describe using design review along the Westgate Corridor and Edmonds Way Corridor to ensure that development provides a transition to adjacent residential neighborhoods, but it does not suggest re-designating parcels to provide that transition. He said a number of residents on Grandview Street described how the existing commercial parcels act as a buffer to Puget Drive and how the existing development and trees on the subject parcel provide additional buffering. 2. Is the proposed amendment detrimental to the public interest, health, safety and welfare of the City? Mr. Clugston expressed his belief that the proposed plan change would be counter to the 2004/2005 Comprehensive Plan update, which specifically reviewed the large-lot, single-family residential areas in this northern part of the City and concluded that large-lot, single-family development was the most appropriate land use pattern. Incremental changes to this established pattern are not in the public interest because, if continued and expanded, they would result in a land use pattern that would undermine the plan policies intended to preserve and protect sensitive environmental features and avoid impacts on the limited public facilities serving the area. He said the analysis performed as part of the 2004/2005 plan update confirmed this approach and supported the City’s policy of using large-lot, single-family development patterns to help protect critical areas and natural features from incremental development that would ultimately have a negative impact on the public. Mr. Clugston further advised that in terms of public facilities and services, there is only one minor arterial (Puget Drive) serving the entire area. This is indicative of a significant problem with encouraging more intensive development in this Packet Page 145 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 12 area. There is no network of interconnected streets and high-capacity roadways similar to other areas of the City where higher intensity development is planned such as downtown or along Highway 99 and SR-104. He concluded that this is one of the reasons that multi-family development has not been envisioned in the area. 3. Does the proposed amendment maintain the appropriate balance of land uses within the City? Mr. Clugston explained that the proposed amendment would maintain the appropriate balance of land uses within the City. Changing the designation of one parcel from single-family to multi-family does not significantly affect the overall balance of land use in the City. He said that although the site-specific proposal would not, in and of itself, materially change the overall balance of land uses, if it is considered to set a precedent for additional multi-family uses in the area surrounding the small neighborhood commercial center, approving the proposal could significantly change the character of the area and begin to affect the overall land-use pattern. 4. Is the subject parcel physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints? Mr. Clugston pointed out that the subject parcel, itself, is physically suitable for the requested land use designation and potential development. It is essentially flat, and there are no identified water features on the site. However, North Stream does run east/west approximately 200 feet north of the parcel. He noted that all development on the site would have to meet the applicable zoning criteria for setbacks, coverage, parking and stormwater treatment. He advised that the parcel takes access from Grandview Street. He said that in addition to comments received from neighbors who find the current traffic on the street challenging, the Comprehensive Plan states that multi-family development should take direct access from arterial and collector streets rather than a minor street such as Grandview. As discussed previously, Mr. Clugston expressed his belief that the proposal is incompatible with adjoining land uses. While there is a strip of more intense development near the intersection of Puget and Olympic View Drives, several of the parcels are developed with multi-family residential uses. These uses can continue on the BN-zoned parcels, but the multi-family buildings are non-conforming with respect to use. The parcels have not been designated in the Comprehensive Plan for future high-intensity development. He concluded that an additional multi-family structure in an overwhelmingly single-family residential area that is near a small and underdeveloped neighborhood commercial area does not make sense at this time. Based on the Statements of Fact, Analysis, Conclusions and Attachments in the Staff Report, Mr. Clugston recommended the Planning Board make a recommendation to the City Council to deny the request to change the Comprehensive Plan designation from “Single Family – Resource” to “Multiple Family – High Density” for property at 1030 Grandview Street. He concluded that the applicant has not demonstrated that the proposed amendment is consistent with the provisions of the Comprehensive Plan nor in the public interest. Board Member Reed inquired where “designated corridors” could be found in the Comprehensive Plan. Mr. Clugston answered that the designated corridor areas are identified on Page 105 of the Comprehensive Plan. They include the Five Corners and Firdale Village areas, as well as 212th Street, SR-104 and Highway 99. These areas are envisioned for increased intensity of use, but this subject area has not been examined as a possible designated corridor. Mr. Chave explained that one distinctive feature of a designated corridor is direct access to high-capacity transportation routes. John Bissell, HDA Design Group, Everett, indicated he was present to represent the applicants, Lisa and Michael Zammit. He displayed the current zoning map, which identifies the subject property as Single Family Residential – 12,000 (RS-12). He agreed with staff that the topography of the site is relatively flat, with no critical areas on site. He further agreed with staff’s statement that the site is directly adjacent to BN zoning, which is characterized as a minor commercial zone. However, it is important to keep in mind that the BN zone does allow some higher intensity uses such as restaurants. The adjacent BN zone is currently developed as a restaurant, and there is no buffer between the BN zone and the subject site. He explained that it is fairly standard planning practice to have some type of buffer between single-family residential zones and commercial zones. He said the primary reason the applicant’s are interested in the proposed amendment is that the current BN zoning decreases their property values, and their property becomes a buffer for the neighborhood. He said he understands why the Packet Page 146 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 13 neighbors are opposed to the change because the applicants are now paying for the buffer they enjoy between their residential properties and the commercial property. Mr. Bissell provided an aerial photograph of the property and pointed out the location of the subject site, as well as the more intensely developed commercial zone to the southeast. He noted that the commercial development is located fairly close to the subject property line and is a fairly intense use directly next to the subject property. He referred to the buffer of trees that was noted by staff, but he pointed out that the trees are located on the applicants’ property and not on the commercially zoned property. He noted that the City’s landscape code would require a landscape buffer that is substantially greater than the existing trees between commercial and single-family residential development. He emphasized that the BN zoned property does not provide an adequate buffer, so the neighborhood relies on the trees that are located on the applicants’ property to provide the buffer. Mr. Bissell provided pictures he took from various locations near and on the subject site. While the adjacent neighbors describe the area as a large lot, tree-lined street without a lot of traffic, in reality there is commercial property located on the other side of the trees. Although staff characterized Puget Drive as a minor arterial, he suggested that perhaps the City’s street map is inaccurate because traffic volumes on the street are higher than what is typical for a minor arterial. In reality, he suggested that Puget Drive functions as a major arterial and is used as a direct connection between Interstate 5 and the ferry terminal. He noted that the signal at the intersection of Puget Drive and Olympic View Drive was installed recently as a result of abundant traffic on the street. He concluded that Olympic View Drive also functions as an arterial; it does not fit the character of a minor collector street. He summarized that the site gains access from two major arterials. Mr. Bissell said that contrary to staff’s interpretation of what the Comprehensive Plan says about the Five Corners area, it is very similar to the area surrounding the subject property. The BN zone at Five Corners has been developed to accommodate a variety of commercial uses, and there is also a non-conforming multi-family residential development. There is no buffer between the commercial and single-family residential zones. He questioned the City’s decision to treat the subject property differently than properties at Five Corners. He pointed out that at Five Corners, the residential property owners have to provide the buffers themselves, which is the same circumstance that exists in the area of the subject site. Mr. Bissell suggested that the current Comprehensive Plan’s “Single-Family – Resource” land use designation is not appropriate for the subject parcel. He explained that the designation is allowed by the Growth Management Hearings Board for applications in areas where it is necessary to protect significant critical areas. However, he emphasized that there are no Category 1 Streams in the City, and the Category 1 Wetlands located in Pine Ridge Park and the Marsh are no where near the subject property. While North Stream does run near the subject property, it is important to keep in mind that this stream has been classified as a lower-quality, non-fish stream that is protected adequately by the City’s Critical Areas Ordinance. It would not rate as a stream that is protected under the Growth Management Act laws. Mr. Bissell said there is an area on the east side of Olympic View Drive where steep slopes and seepage into the hillside exists. This area may not be protected efficiently by the Critical Areas Ordinance and the “Single Family – Resource” land use designation may be appropriate in this case. However, the Comprehensive Plan identifies the entire area as “Single Family – Resource” even though there is not another critical area until Perrinville Creek, which is also protected effectively by the City’s Critical Areas Ordinance. He noted that the Meadowdale Landslide Hazard Area is another place where the “Single Family – Resource” zone may be appropriately applied. However, using this designation for the subject site and surrounding properties would not really be protecting anything. Again, he agreed that the Growth Management Hearings Board has indicated that the designation may be appropriately applied to areas where there are significant critical areas to establish a greater amount of protection than would be afforded by the Critical Areas Ordinance. Mr. Bissell reviewed the four Comprehensive Plan amendment review criteria as follows: 5. Is the proposed amendment consistent with the Comprehensive Plan and in the public interest. Mr. Bissell referred to staff’s contention that the application is not in compliance with the Comprehensive Plan. He noted that the Comprehensive Plan is quite clear about the allowance of four dwelling units per acre or greater. It emphasizes that the resource zone, which allows less than four units per acre, was intended to be applied only to specific areas where critical areas are being protected. He clarified that the land use element of the Comprehensive Plan includes a clear statement Packet Page 147 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 14 about why the “Resource” land use designation would be required in certain cases, and the subject property would not meet this criteria. He noted that Page 51 of the Comprehensive Plan land use element talks about compatibility. While staff suggested the proposal is not compatible with the surrounding parcels, he noted that the existing development is not compatible with the commercial zoning that neighbors the subject site. The proposed action would create something that is compatible with what exists to the south and east. Because the new zone would be a residential type use, it would be compatible with the single-family residential neighborhood, too. 6. Is the proposed amendment detrimental to the public interest, health, safety and welfare of the City? Mr. Bissell suggested that the proposed development would not reduce property values of the existing neighborhood. Rather, the single-family neighborhood actually reduces the property value of the subject property to the benefit of the rest of the neighborhood. He concluded that, contrary to the staff’s interpretation, the Comprehensive Plan supports the proposed amendment. 7. Does the proposed amendment maintain the appropriate balance of land uses within the City? Mr. Bissell referred to staff’s statement that the proposed amendment would create a “spot zone.” He referred to the case, Citizens versus Mount Vernon, which concluded that there is no such thing as spot zoning. Cities must plan and zone according to their Comprehensive Plan. Therefore, the proposed amendment could not be considered spot zoning. Instead, it would be considered as an opportunity to provide a buffer where no appropriate zone is in place today. That makes the proposed amendment consistent with the Comprehensive Plan and consistent with the case Citizens versus Mount Vernon. Mr. Bissell disagreed with staff’s argument that the proposal is inconsistent with the Comprehensive Plan. He noted that it is difficult to apply logic to this criterion. Since the applicants’ are proposing a Comprehensive Plan amendment, it is obvious that they want to change the existing land use designation. Therefore, it could always be argued that the change is inconsistent with what already exists in the Comprehensive Plan. He suggested it may be impossible to meet this criterion, so the Comprehensive Plan could never be changed. Mr. Bissell pointed out that on Page 5 of the Staff Report, staff argues that approval of the proposed amendment could set a precedent for additional multi-family uses in the area and could begin to affect the overall land use pattern. He suggested that this argument is a “smoke screen” staff is using because they are not really sure what to do. He reminded the Board that the City allows any property owner to submit an application for a Comprehensive Plan land use change. If the City were to approve something that they later wished they hadn’t, this could be considered setting a precedent because it may require them to approve the same type of application again. However, the subject application meets the criteria the Board must consider when reviewing Comprehensive Plan amendments. Therefore, the Board should not be concerned about setting a bad precedent. Regarding the concern expressed by staff that other property owners would apply for the same type of change, Mr. Bissell referred to the Five Corners area and noted that no one is applying for more commercial zoning in this area because they already have the appropriate buffer between commercial and single-family uses. He concluded that approving the proposed application would not result in a precedent for something bad to occur in the future. 4. Is the subject parcel physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provisions of utilities, compatibility with adjoining land uses and absence of physical constraints? Mr. Bissell recalled the previous public hearing in which the staff planner noted that geography and land uses are also important issues to consider. He expressed his belief that providing a buffer directly adjacent to the commercial use would be appropriate. In fact, it is the existing commercial use that makes the proposed amendment appropriate. Mr. Bissell said he was not prepared to discuss details about the Westgate area, but he particularly noted the southwest side of the Westgate area, where there is a substantial topography change. Where the residential neighborhoods are not buffered from commercial properties by zoning, there is an adjacent cliff that removes any impact created by the commercial properties. The same is true for residential and commercial zoning in the Perrinville neighborhood. While it makes sense for these areas to be zoned with commercial abutting single-family residential, it is not appropriate for the Packet Page 148 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 15 subject property. A multi-family residential zone should be added to provide a buffer between the residential and commercial zones, and the proposed amendment would accomplish this. Mr. Bissell recalled staff’s statement that the City should not allow corridor development to occur in this area, and he assured the Board that is not what the applicants are proposing. He explained that corridor development is typically proposed in areas where traffic patterns and high traffic volumes warrant the change. In these areas, multi-family residential zoning is typically used as a buffer between the commercial and single-family uses. However, he emphasized that the applicants never intended to infer that their property was an example of corridor development. Mr. Bissell summarized that via his presentation, he has shown that the application meets the Comprehensive Plan amendment criteria. He explained that when he agreed to represent the applicant, he knew there would be neighborhood hostility. He pointed out that Mr. Hertrich has attended numerous public hearings in the City to voice his concerns and opinions. Since Mr. Hertrich lives in the neighborhood, he anticipated that he would organize the neighbors to oppose the application. However, he cautioned that although a very active citizen in the community happens to live adjacent to the subject site, the Board should make their recommendation based on its merits and whether or not it is a good idea for the City. Mr. Bissell suggested it is unfair for the subject property owners to have responsibility for providing a buffer between the commercial and single-family uses. The current situation provides a significant benefit to the adjacent property owners, and they are opposed to the application because it would negatively impact them. Mr. Bissell emphasized that the applicants are not proposing the RM-1.5 zone so they can build apartment units. They are proposing to construct an elderly care facility, which would tend to be quieter than a residential development. He noted that multi-family development results in one or two cars per unit, and the average trips per day would be between 5 and 10 per unit. An elderly care facility would likely generate two trips per day per unit. A single-family residential development would generate about 10 trips per unit, as well. Therefore, a 10-unit elderly care facility would generate less traffic per day than a single-family development on the same site. He concluded that the impact to the neighborhood would be less than if the current land use and zoning were to remain. Mr. Bissell said that while an RM-1.5 zone sounds horrible to the neighbors, it is important to understand that is not what the applicants are proposing. He indicated the applicants are willing to have approval of the amendment conditioned so that they would be limited to the elderly care facility they are proposing. He said he understands the neighborhood’s legitimate concerns about the zoning change because they have made the assumption that the property would be developed as apartment units. If the Board feels it is appropriate, the applicants would be willing to condition approval so that appropriate development could occur with the least amount of impact to the adjacent property owners. Board Member Works asked Mr. Bissell to explain the type of elderly housing the applicant is proposing. Mr. Bissell answered that there is a wide variety of elderly housing types. The applicant is not proposing to construct a large elderly housing facility, but something closer to what would be called “assisted living.” With this type of facility, an elderly resident would be able to live independently in separate units, but care would be available and meals would be provided. Board Member Works inquired if staff would be on site to care for the residents. If so, she noted that this would result in additional traffic. Mr. Bissell agreed there would be some traffic associated with caregivers, and the residents would also have visitors come to the site. Again, he explained that, based on engineering data, a typical residential development would generate approximately 9.7 average daily trips, and a typical elderly facility would generate less than two trips per unit. He reminded the Board that the applicant would be willing to condition approval of the amendment to a specific type of development. However, he can only speak of the proposed project in general terms at this time. Darin Wall, Edmonds, said he lives directly across the street from the subject property, and he doesn’t know who Roger Hertrich is. He said he didn’t hear the applicant mention impacts to Grandview Street in his presentation; only to Puget Drive and Olympic View Drive. He noted that Grandview Street is already overloaded from the commercial zoning that currently exists in the area. Already, cars park along the street and sidewalk. He said that, regardless of what engineering data may suggest, he does not believe that a 10-unit development would result in less traffic than a single-family residence. Mr. Wall recalled Mr. Bissell’s argument that it is not fair for the subject property owner to have to provide the buffer for the residential neighborhood. He said it is important to note that applicants purchased the property a year ago, and they knew Packet Page 149 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 16 exactly what the zoning and adjacent uses were. They tried to flip the property and couldn’t sell it; now they are trying to make the land more valuable. When considering what is and isn’t fair, the Board should recognize the situation for what it is. Mike Herb, Edmonds, provided pictures to illustrate the location of the existing trees on the subject site. He noted that the trees currently provide a buffer between the single-family residential uses and the commercial uses. He suggested the impact of the proposed amendment would be focused on Grandview Street and not on Olympic View Drive and Puget Drive. He noted all the trees that currently exist behind the building, which is the beginning of the one block long street known as Grandview Street. Mr. Herb pointed out that there has not been any significant change to the neighborhood for generations. It has remained a quite, one-block street of single-family homes, and the adjacent neighborhoods have remained the same, too. He expressed his belief that the proposed amendment would be a detriment to all the single-family property owners because of the mammoth structure that could be constructed on the subject property. A large building in this area would be totally out of character. He provided pictures to illustrate what a 10-unit complex could look like. Again, he said a building of this size would be out of character with the neighborhood and the proposed amendment has no merit. Mr. Herb said it is also alarming to consider the significant impact the proposed amendment could have on traffic, which is already a problem. Grandview Street is so narrow that it is impossible or very difficult for garbage trucks and emergency vehicles to get through when cars are parked on either side of the street. He noted that when the pizza parlor is open on weekends, cars park along both sides of the street. Mr. Herb suggested the property could be considered critical area because North Stream is a continuous, year-round flowing stream, which starts on one side of the property and goes through the neighborhood. He suggested that if the City does not require the applicant to complete an environmental impact statement, the application could be considered in violation of the Environmental Policy Act and the Growth Management Act. Mr. Herb referred to the June 5th deadline that was identified in the staff report. He suggested that this deadline could constitute a denial of due process since the deadline occurred before the public hearing was conducted. He cautioned that the proposed application is not a minor proposal. If the Comprehensive Plan is changed, the next step would be for the applicant to request a rezone. The City would have to approve the rezone application because the Comprehensive Plan would support it. The City would be required to issue a permit for the construction of up to a 10-unit complex because that is what the Comprehensive Plan and zoning code would allow. He expressed his belief that the proposal is lacking in merit, and there are no land use arguments that could be made to support putting a large structure on the tiny street. If the application is approved based on arbitrary and capricious information, the City would open itself up not only to appeal but possible claims for damages. Mr. Herb concluded his remarks by pointing out that four new homes have been constructed recently on Grandview Street, and their market value is between $800,000 and $1 million. These people purchased their homes relying on the residential character of the street. The proposed application would have a detrimental affect on the homes in the neighborhood. He asked the Board to deny the application. William Hood, Edmonds, said he lives directly across the street from the subject property. He purchased his home three years ago because he liked the residential character of the street, where only nine homes existed. The property met all of his qualifications for a nice, quiet neighborhood, with the exception of Portofino’s Restaurant at the corner. He pointed out that during the evening hours, people who visit the restaurant park their cars on the narrow 18-foot wide Grandview Street, since there is no other place for them to park. If a new 35-foot high development is constructed as proposed, it would block the neighborhood’s view of the pine trees and evergreens that are 50 to 60 feet tall. These trees would be replaced with a large building, instead. He suggested this would be like “putting an elephant in your front yard so you couldn’t see the cars going by.” He expressed his belief that placing a large structure on a small lot that is located on a small street would be ridiculous. Mr. Hood said he has had a lot to do with seniors in the community; they take a lot of care and they have numerous visitors, including emergency and other medical assistance. Grandview Street is not wide enough to accommodate emergency vehicles when cars are parked along the side. He noted that Grandview is a dead end street with no outlet. Traffic is already a Packet Page 150 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 17 problem, and adding ten more units on the subject property would only make the problem worse. He suggested that the theoretical data provided by the applicant does not represent what would happen to the subject property. He said he supports the staff’s recommendation to deny the application. The staff report was very comprehensive and objective. He summarized that it is very disturbing to think that someone could purchase property in a neighborhood, hire an attorney and architect, and then argue that it is not fair to maintain the existing single-family zoning designation. Placing a large structure on the subject in incomprehensible to him. Pat Murphy, Edmonds, concurred with everything that has been said by the neighbors who live on Grandview Street. He expressed his belief that the photographs provided by Mr. Bissell were very selective and do not clearly depict the existing character of Grandview, which is a dead end street with expensive homes. He noted the heavy traffic that already exists as a result of the two schools that are located in the area. Adding additional traffic by approving the proposed amendment would make the situation even worse. Tim Raetzloff, Edmonds, referred to the applicant’s comments about the light that was installed at the intersection of Olympic View and Puget Drives. He emphasized that this light was not provided because of the traffic demand; it was added when the school was reopened. At this time, the light is only triggered by the traffic turning left onto Olympic View Drive; traffic turning right doesn’t trigger the light. Regarding earlier statements by the applicant that these two streets are used to provide access to Interstate 5, Mr. Raetzloff pointed out that people who know the area do not use Olympic View Drive to get to Interstate 5. He disagreed with the applicant’s assessment that Olympic View Drive is a major arterial street. Mr. Raetzloff expressed concern about the potentially large building that could be constructed on the subject property if the application is approved. While he doesn’t believe the building would be as large as the one shown in the picture provided by Mr. Herb, there is already a drainage problem in the area. The City checks the condition of the drainage system on a regular basis. He recalled Vice Chair Bowman’s comment that he is against spot zoning, and he suggested the proposed amendment would result in a type of spot zoning. Donna Herb, Edmonds, said she lives at the end of Grandview Street. She referred to the pictures that were submitted earlier by her husband. One shows the lack of space along Grandview Street when cars are parked on each side of the narrow road. Garbage trucks and emergency vehicles would not be able to access the properties during these times. She noted there are no sidewalks along the street, except in front of the newer homes. The rest of the street is basically a country lane. Ms. Herb expressed her concern that drainage is already a real problem in the area. She referred to a picture of the lot next to her property. There is currently a pond in the hole that remained when the house was removed last year. There are ducks swimming in this pond on a regular basis, and a bald eagle visits the property, as well. There is no place for the water to drain except into the yard. Building a large structure and its associated parking on the subject site would result in additional runoff on the properties further down Grandview Street. She said that, currently, birds, possums, raccoons, and other animals use the forested area on the subject property for their habitat. She provided a picture of the stream that runs through their yard. While the applicant had indicated that North Stream runs north of the subject property, he failed to mention that it takes a curve at the bottom of Grandview. The proposal would basically be upstream from the creek and all the wildlife that exists. Michael Grove, Edmonds, said he is also concerned about how the proposed change would impact drainage in the neighborhood. However, he said his biggest concern is that the proposed amendment could significantly change the demographics of Grandview Street. He said he lives 400 feet to the west of the subject site, and he feels the proposal would change the entire neighborhood, not just this one street. The proposal would also require a change in the services provided by the City such as ambulance, fire, police, etc. The people providing care in the new facility would be coming and going at all hours of the day and night, as would emergency vehicles. While he doesn’t have anything against elderly people, the proposal represents a substantial change to their neighborhood. He suggested that the applicants’ argument that the proposal would provide a buffer between the residential and commercial uses is fallacious in that the proposal would actually increase the traffic and noise. A buffer should decrease these impacts. He concurred with the staff’s recommendation to deny the application, and he urged the Board to support it. Kristi Urguhart, Edmonds, said she and her husband built their new home on Grandview Street in 2005. A big attraction was the large lot size of the single-family neighborhood. She said she supports the comments provided by her neighbors. She Packet Page 151 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 18 invited the Board Members to visit Grandview Street. It would become obvious to them that approval of the amendment would be a mistake. She said that even if she were to put on her best business hat and objectively review the proposal, it would not make sense. The only benefit would be to the landowner’s pocket. She urged the Board to support the staff’s recommendation to deny the proposal. Roger Hertrich, Edmonds, said he lives 310 feet from the subject property, so he didn’t receive a notice of the hearing. He said he lives across Puget Drive on the school side, directly across from the deli and gas station developments. He noted that he has no buffer between his home and the commercial development, except the street. However, as per the code requirements, a buffer was provided for the property that is directly behind the buildings. He said he would much rather live adjacent to the back side of a large structure. While the wall would not necessarily be attractive, it provides a much better buffer than a multi-family development would supply. A multi-family development could include balconies, etc. that would allow residents to look down onto the adjacent single-family residential properties. There would also be more traffic coming and going from the subject site. He said the subject property already provides an adequate buffer for the residential properties. The trees that were planted by the original property owner have provided a buffer, and they would remain if the property is not rezoned. If the property is rezoned, the trees would be removed and the neighborhood would lose their natural buffer. Mr. Hertrich said he is not opposed to multi-family development if it is located in the right place. However, the subject proposal is not necessarily just about elderly people living in the units. If the rezone is approved as proposed, the property could be redeveloped into any type of multi-family residential development. Mr. Hertrich referred to Mr. Bissell’s comments comparing the subject property to Five Corners. He suggested the Board stick with the real issue of whether or not the proposal fits the neighborhood. He expressed his belief that approving the application would be a case of spot zoning, which would not be appropriate. When Comprehensive Plan land use changes are approved, they usually apply to more than just one property. Typically, areas are considered for change, not single properties. That is not the case in this situation, so the proposal would qualify as spot zoning. Mr. Hertrich said he does not believe there have been sufficient changes in the neighborhood to allow the Board to consider a change in the Comprehensive Plan for this one property. In fact, the single-family residential neighborhood has become more and more stable. The single-family uses are increasing even further out towards Olympic View Drive. He summarized his belief that staff did a good job of preparing the staff report and addressing all of the issues of concern. He urged the Board to support the staff’s recommendation. Finis Tupper, Edmonds, said he supports the staff report and their recommendation to deny the application. He expressed his belief that the staff’s analysis was based on the City’s existing Comprehensive Plan Map, which was approved previously by the City Council. He suggested the applicant is “standing on a platform and the train has already left the station.” It is too late to argue that the Comprehensive Plan map is not accurate and appropriate. He said he is in favor of multi-family residential development, and he has supported numerous multi-family projects on Daley Street where he currently lives. He suggested the applicant has mischaracterized the Citizens versus Mount Vernon case. This case dealt with the fact that the City of Mount Vernon approved a proposed grocery story development with multi-family housing after the Comprehensive Plan map had been adopted. The applicant in this situation is asking the City to change the Comprehensive Plan map so he can subsequently ask for a rezone of the property. He urged the Board to support the staff’s recommendation of denial. Lisa Zammit, Applicant, Edmonds, suggested that many of the neighbors’ comments are based on a fear of the unknown. She explained that she and her husband purchased the subject property for the specific purpose of building an elderly residential facility. She noted that her father, William R. Wood was a prominent single-family home developer in the 1960’s, when the Farmers Home Administration stepped in to provide permanent financing for low-income and rural housing. In the 1970’s he was the largest home builder in the country, and that is where she obtained her knowledge about building for people who need it. She pointed out that even the residents of the neighborhood will have a need for elderly housing at some point in the future. Ms. Zammit explained that the development she has in mind is not what Mr. Bissell described. Instead, the units would be constructed with private money from people who want to help provide places for the elderly to live within walking distance to Packet Page 152 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 19 businesses, parks, etc. She said she does not anticipate she and her husband would make any money from the project. Their interest is to give back to the community. They hope to find investors so the rent can be lower for the elderly. She said she does not anticipate there would be people on site to care for the residents of the development. Instead, the units would be occupied by people who have limited income but can take care of themselves. She noted there is currently a three-year waiting list for homes of this type in Edmonds. She suggested the new development would actually become an asset to the neighborhood, and the elderly residents would become part of the community. She said she was hoping the people of Edmonds would support the project, and she was very surprised by the neighborhood reaction to the proposal. Ms. Zammit said her insurance company recently notified her that she would be unable to insure the home on the subject property because of the dangerous trees that exist on the lot. She emphasized that some of the large trees would be removed from the property regardless of whether the amendment is approved or not. Ms. Zammit clarified that it was not their intention to make money by purchasing the property. Their goal was to help the community by providing for the needs of the elderly. She said she doesn’t want to push the elderly people out of the City. Instead, she wants to provide a nice, lovely place for them to live in. This would ensure their dignity remains intact. Darin Wall, Edmonds, said that while Ms. Zammit provided some very heartfelt comments, her explanation was not consistent with what actually happened. He said he had a conversation with the Zammits when they purchased the property, and the Zammits indicated their desire to sell. The property was placed on the market, but it did not sell. He said he has a hard time believing that the Zammits did not intend to rezone their property all along to make it more valuable. John Bissell, HAD Design Group, said that Ms. Zammit was mystified by the neighborhood comments because she and her husband have never put the property on the market. While he is not implying that those who testified to the contrary are liars, he said he doesn’t appreciate that the neighbors have leveled these accusations against his client. He said he does not have any doubt that the neighbors saw a real estate sign on the property, but perhaps it was posted by the previous owner. He said he is fairly certain his client was telling the truth. Mr. Bissell acknowledged that the neighbors have very strong opinions that will not likely change. Several speakers talked about the trees on the subject site that act as a buffer for the neighborhood. He pointed out that the trees are actually located on the applicant’s property, and not on the neighbors’ properties. The applicant would not be required to retain the trees regardless of the zoning. Mr. Bissell referred to Mr. Hertrich’s comment that the trees would be removed if the property were rezoned. However, that is not a fair statement because Mr. Hertrich doesn’t have any knowledge of what would occur on the site in the future. Regarding concerns about the narrow street, Mr. Bissell pointed out that while the existing street is narrow, the right-of-way is not, at least to the point where it ends opposite of Olympic View Drive. If the proposal were approved, the City would require the applicant to widen the Grandview Street as per City Code before development could move forward. Mr. Bissell agreed with Mr. Hertrich that the Board is not charged with reviewing potential development for the site at this time. However, many of the questions and concerns were related to future development impacts. He recalled that one speaker testified about the poor drainage that already exists in the area. He agreed and noted that the soil in the area is known as Decomposed Vashon Till, which doesn’t drain well. That means that holes will fill up with water if a structure is removed from a site. However, he emphasized that the City has a stormwater management ordinance to address drainage issues associated with future development. Several older homes in the neighborhood have been demolished and replaced with larger homes. When these properties were redeveloped, the property owners were required to meet all of the City’s stormwater requirements. He suggested that stormwater is not really relative to the issue at hand. Mr. Bissell referred to Mr. Hertrich’s comment that the Board is not really dealing with a development issue, and he generally agreed. However, the Planning Board has the difficult task of considering the worst case scenario that could take place on the subject property if the amendment is approved. He emphasized that the worst case scenario is not what the applicant intends for the property, and the applicant would be willing to consider a contract rezone to condition approval on a specific use. Mr. Bissell recalled that Mr. Tupper testified that the Comprehensive Plan Map cannot be changed. If that were the case, the only time the City would be allowed to modify the plan would be when it is updated every ten years. He concluded that is not Packet Page 153 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 20 a correct statement. Mr. Bissell summarized that the applicant has shown how the proposal complies with all four of the Comprehensive Plan review criteria. He urged the Board to recommend approval of the application as presented. Mr. Chave suggested that Mr. Bissell mischaracterized the City’s Critical Areas Ordinance and their large lot, single-family residential land use and zoning designations. Mr. Chave explained that when the Comprehensive Plan was updated in 2004 and 2005, the City conducted a careful analysis of their critical areas, particularly looking at the large lot zoning patterns. The important point made at that time was not to identify a lot of individual large lot critical areas. Instead, they identified patterns of critical areas. He explained that because there are large areas of critical areas in the City, the large lot zoning pattern was justified. This was summarized in the Comprehensive Plan to support the large lot zoning pattern and that is one reason staff is recommending against the application. Vice Chair Bowman asked if there was already a commercial building on the Portofino property when it was annexed into the City. Mr. Clugston answered affirmatively. Board Member Dewhirst emphasized that the Board must review the application as a request for high-density residential zoning. All of the talk about a potential senior development means nothing. If the property were sold, the proposed use for the site could change overnight to anything allowed within the multi-family residential zone. He agreed there is a need for more senior housing in the City, but that has no bearing on the proposal before the Board. The Board must consider whether or not multi-family development of any type would be the appropriate density for the site. Any use allowed within this type of zone must be part of the consideration. Board Member Young agreed with Board Member Dewhirst. He noted that at no time in his presentation did Mr. Bissell discuss how multi-family residential would be a better Comprehensive Plan designation for the parcel than its current designation. The applicant did not present any data to show there was a need for another multi-family residential zone in the area, regardless of its purpose. He expressed his belief that the application is without merit because it has no basis in fact. He said he would support the staff’s recommendation. BASED ON THE FINDINGS OF FACT AND CONCLUSIONS FOUND IN THE STAFF REPORT, BOARD MEMBER YOUNG MOVED THAT THE BOARD RECOMMEND THE CITY COUNCIL DENY THE APPLICATION BY MICHAEL AND LISA ZAMMIT (REPRESENTED BY JOHN BISSELL, HDA DESIGN GROUP) FOR A COMPREHENSIVE PLAN CHANGE FOR PROPERTY AT 1030 GRANDVIEW STREET FROM “SINGLE FAMILY – RESOURCE” TO “MULTI FAMILY – HIGH DENSITY” (FILE NUMBER AMD-2007-19). BOARD MEMBER DEWHIRST SECONDED THE MOTION Board Member Works agreed with the staff report. She pointed out that the applicants purchased the property knowing what the existing zoning was. While she understands that the trees might be removed anyway and that the Comprehensive Plan Map can be changed if appropriate, she felt the applicant failed to demonstrate that a change was warranted. She said she does not believe that Puget Drive could accurately be classified as an arterial street. She noted the speed limit on the street is 25 miles per hour, and she doesn’t know anyone who uses the street to access Interstate 5 and Highway 99. Board Member Dewhirst said it is fairly common practice in land use planning that one of the best places to change land use is in a block so that the back of proposed use face the back of existing uses. This kind of lot configuration is very typical. While it is not the best situation, it works most of the time. He summarized that it is better to have uses backing into each other rather than fronting each other. THE MOTION CARRIED UNANIMOUSLY, WITH BOARD MEMBER LOVELL ABSTAINING. THE BOARD TOOK A BREAK AT 10:21 P.M. THEY RESUMED THE MEETING AT 10:25 P.M. REVIEW OF EXTENDED AGENDA Mr. Chave reminded the Board that their next meeting is scheduled for June 18, 2008. The June 25th meeting was cancelled. Packet Page 154 of 244 DRAFT Planning Board Minutes June 11, 2008 Page 21 PLANNING BOARD CHAIR COMMENTS Chair Guenther did not have any additional comments to provide during this portion of the meeting. PLANNING BOARD MEMBER COMMENTS None of the Commissioners provided comments during this portion of the meeting. ADJOURNMENT The Commission meeting was adjourned at 10:27 p.m. Packet Page 155 of 244 City of Edmonds Z Planning Board CITY OF EDMONDS 121 - 5TH AVENUE NORTH, EDMONDS, WA 98020 PLANNING DIVISION ADVISORY REPORT FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS To: EDMONDS PLANNING BOARD From: ____________________________ Gina Coccia Associate Planner Date: June 5, 2008 File: AMD-2007-14 Application by James Underhill to amend the Comprehensive Plan designation for properties along a portion of 215th Street SW and east of 76th Avenue West from “Mixed Use Commercial” to “Single Family Urban 1.” Hearing Date, Time, and Place: June 11, 2008, at 7:00 PM, Edmonds City Council Chambers Public Safety Complex 250 - 5th Avenue North TABLE OF CONTENTS Section Page I. INTRODUCTION..........................................................................................................................2 A. APPLICATION ...........................................................................................................................2 B. RECOMMENDATION .................................................................................................................2 II. FINDINGS OF FACT AND CONCLUSIONS............................................................................2 A.SETTING ...................................................................................................................................2 B.STATE ENVIRONMENTAL POLICY ACT (SEPA).......................................................................4 C. TECHNICAL COMMITTEE..........................................................................................................4 D. PUBLIC COMMENTS .................................................................................................................4 E. COMPREHENSIVE PLAN AND ZONING CODE COMPLIANCE .....................................................5 III. ATTACHMENTS..........................................................................................................................7 IV. PARTIES OF RECORD ...............................................................................................................7 Packet Page 156 of 244 Underhill Comprehensive Plan Amendment AMD-2007-14 Page 2 of 7 I. INTRODUCTION A. APPLICATION 1. Applicant: James Underhill (Attachment 1). 2. Site Location: 7528-7328 215th Street SW and 7527-7321 215th Street SW (Attachments 1-2 and 4-9). 3. Request: Application for a Comprehensive Plan Amendment from “Mixed Use Commercial” to “Single Family Urban 1” (Attachments 1-2). 4. Review Process: Comprehensive Plan Amendment – The Planning Board conducts a public hearing and issues a recommendation to the City Council for the final decision. 5. Major Issues: a. Compliance with Edmonds Community Development Code (ECDC) Chapter 20.00 (CHANGES TO THE COMPREHENSIVE PLAN). b. Compliance with Edmonds Community Development Code (ECDC) Section 20.100 (HEARING EXAMINER, PLANNING ADVISORY BOARD AND CITY COUNCIL REVIEW). B. RECOMMENDATION Based on Statements of Fact, Analysis, Conclusions, and Attachments in this report, staff recommends that the Planning Board make a recommendation to the City Council to DENY the request to change the Comprehensive Plan Designation from “Mixed Use Commercial” to “Single Family Urban 1” for properties along a portion of 215th Street SW and east of 76th Avenue West. The applicant has not demonstrated that the proposed amendment is consistent with the provisions of the Comprehensive Plan nor is it in the public interest. II. FINDINGS OF FACT AND CONCLUSIONS A. SETTING 1. Proposed Designation and Development of the Site The proposal would change the existing “Mixed Use Commercial” Comprehensive Plan Designation of the subject properties to “Single Family Urban 1.” The amendment would result in a density and land use change from a mix of potential commercial (office) and residential uses to solely single family residential uses with a maximum density of 5-8 dwelling units/acre. This would make the properties most compatible with a Single-Family Residential (RS-8) zoning designation (although there is no proposal to change the zoning of the neighborhood at this time). Currently, the zoning designation is Multiple Residential (RM 2.4) which allows a density of up to 18 dwelling units/acre, whereas the RS-8 designation would only allow up to 5.5 dwelling units/acre. Packet Page 157 of 244 Underhill Comprehensive Plan Amendment AMD-2007-14 Page 3 of 7 2. Current Designation and Development of the Site The site is comprised of 19 parcels along 215th Street SW, each at roughly 0.24 acres (approximately 4.6 acres total). The properties are developed with single family homes from the 1960s, according to the Snohomish County Assessor’s Office. The site is currently zoned Multiple Residential (RM-2.4), which is compatible with the current Comprehensive Plan designation. The Zoning Map from 1963 (Attachment 12) shows that this area has always been zoned for multiple-residential use. The applicant argues that “throughout the almost 50 years of existence, this neighborhood has only been a single family neighborhood” (see Attachment 2). The applicant goes on to argue that, “the current and proposed zoning designations are incorrect and must change to conform to our history and future as a single-family, residential neighborhood.” The applicant’s argument is based on the current (and past) use of the properties. However, the properties have been planned and zoned for multi-family use since 1963 (see 1963 comprehensive plan and zoning maps, Attachments 11 and 12). The 1963 Dwelling Unit Distribution Map confirms that at that time the City was aware that there were single-family dwelling units here, but that the vision for this area situated between Highway 99 and 76th Avenue West was for more intensive uses. The 1963 plan clearly intended that this area be part of a larger, more intense development area; it made no sense to create an island of single family uses within a larger area of multi family and commercial development. Over the years, development has occurred consistent with the plan, including properties at the eastern end of the street. The aerial photograph (Attachment 7) also indicates that this is a developing area, and approving such a request would take away the opportunity for this specific neighborhood to eventually redevelop if they so wished. 3. Designation and Development in the Vicinity These properties lie entirely within the Medical/Highway 99 Activity Center (Attachment 5). The site is surrounded by more intense multi family, commercial, medical and public uses. Steven’s Hospital is adjacent to the south, and Edmonds Woodway High School is across 76th Avenue West to the West. Another Multiple Residential (RM-1.5) zone is to the east near Highway 99, and the General Commercial (CG2) zone lies to the north and east along the Highway 99 Corridor. The site is situated in the middle of an area that can be expected to continue its intensification into the future. 215th Street is runs east of 76th Avenue West – a “minor arterial” that provides access to many medical and office uses – and Highway 99, a principal arterial running through a high-intensity development corridor connecting Everett to Seattle. The site is north of 220th Street SW and south of 212th Street SW, both of which are also designated “minor arterials” that provide access to Highway 99. The entire neighborhood was part of a large annexation in 1959, and most of the houses in this neighborhood were constructed between 1958 and 1961. The 1963 Generalized Land Use Plan Map (Attachment 11) shows this site designated “Multi Family.” The 1963 Zoning Map (Attachment 12) shows this site zoned “Multi-Family 6000 Sq. Ft.” The 1963 Dwelling Unit Distribution Map shows single family dwelling units situated along 215th Street SW in this location. Although the names of these zones and designations have evolved over the last 45 years, the neighborhood along 215th Street SW as it exists today is virtually unchanged from the neighborhood along 215th Street SW that is shown on the 1963 maps. The site has always been planned and zoned for more intensive multi-family development, and the current Comprehensive Plan and zoning designations continue this direction. Packet Page 158 of 244 Underhill Comprehensive Plan Amendment AMD-2007-14 Page 4 of 7 The applicant argues that there are several single family neighborhoods within the Medical/Highway 99 Activity Center. This is true. However, it should be noted that these neighborhoods are at the periphery of the Activity Center and form a transition from the more intensive uses within the Activity Center and the large, uniformly single family areas lying outside the Activity Center. If approved, this requested change would take place towards the middle of the Activity Center, affording no “transition” to other low intensity uses. Instead, making this change would create and memorialize a small island of low intensity single family uses that could be expected to experience further pressures and impacts (noise, traffic, height encroachments) from nearby uses (see Attachment 5 for nearby planned uses). Referring again to the Comprehensive Plan Map (Attachment 5), it is clear that the nearest Single Family Urban 1 designated areas are located on the western outskirts of the “Highway 99 Activity Center” and are not located near this proposal. The applicant’s arguments about how single family neighborhoods are required to be protected are taken out of context – this neighborhood is not on the periphery of the Activity Center, as are the neighborhoods he is comparing it to. 4. Previous Proposals in the Vicinity Staff is not aware of any previous requests in the vicinity. B. STATE ENVIRONMENTAL POLICY ACT (SEPA) A Determination of Nonsignificance (DNS) was issued for the proposed Comprehensive Plan Amendment on May 8, 2008 (Attachment 3). The appeal period expires on June 6, 2008, and to date no appeals or comments have been received. An Environmental Impact Statement (EIS) was not required for the proposal, because the impacts likely to occur due to the specific request were not determined to be so significant and adverse that they could not be adequately mitigated by the application of existing development regulations. Although environmental impacts from the request may be adequately mitigated, this does not imply that the proposal is consistent with the policy direction in the Comprehensive Plan (see discussion in Section E of this report). It should also be noted that the DNS issued for this proposal is a “non-project” determination, meaning that additional SEPA review could be required if the Comprehensive Plan Amendment were to be approved and a specific project proposed. Both the applicant and the City have complied with the requirements of ECDC 20.15.A. C. TECHNICAL COMMITTEE The application has been reviewed by the Engineering Division as well as the Fire, Public Works, and Parks and Recreation Departments. No comments were made. D. PUBLIC COMMENTS One public comment letter has been received to date (Attachment 17). It is a joint letter composed by neighbors Alden R. Peppel (7528 215th Street SW) and Susana Martinez (7527 215th Street SW), whose properties are included in the proposal. They are generally opposed to the proposal. They indicate that the properties along 215th Street SW are not like other single- family properties in Edmonds and that there have always been a mix of uses in the neighborhood. They feel their financial investments in their properties will be harmed if this proposal is approved, and they do not wish to be part of this proposal – they have requested that their properties (the two properties that border 76th Avenue West) be excluded from the proposal. Staff generally agrees with the above statements. Staff agrees that this neighborhood is not like other single-family neighborhoods in Edmonds – this neighborhood is located in the middle of Packet Page 159 of 244 Underhill Comprehensive Plan Amendment AMD-2007-14 Page 5 of 7 the Highway 99 Activity Center and is intended for a more intense future use – a consistent with the original direction for the area established in 1963. The fact that these individuals (on the western edge of the site proposed to be changed) have requested to be removed from this application suggests another problem with the proposal – it could be expected to result in a loss in future economic value and tax revenue because the future use of the neighborhood would no longer have the potential for a variety of more intense uses. If these two properties were removed from the study area, it would also further exacerbate and illustrate the island effect that approval of the proposed amendment would have on the vicinity. E. COMPREHENSIVE PLAN AND ZONING CODE COMPLIANCE The Comprehensive Plan is the City’s long range vision. The following discussion reviews pertinent Comprehensive Plan goals and policies related to the proposed amendment in the context of the requirements of the zoning code (ECDC 20.00 – Changes to the Comprehensive Plan). The full text of the Residential, Commercial, and Highway 99 Activity Center sections of the Plan, as well as the Housing Element, are included in Attachments 13-16. The applicant submitted a narrative, composed in 2004, which discusses the proposed request (Attachment 2). The Edmonds Community Development Code requires that amendments to the Comprehensive Plan be adopted only if the following findings area made: 1. Is the proposed amendment consistent with the Comprehensive Plan and in the public interest? This site is located within the “Medical/Highway 99 Activity Center” (see Attachment 16). The proposed amendment is not consistent with the Comprehensive Plan, nor is it in the general public interest, as expressed in the comprehensive plan direction for the Medical/Highway 99 Activity Center. The Comprehensive Plan states that, “the overall character of the mixed use activity center is intended to be an intensively developed mixed use, pedestrian-friendly environment…” The Plan does not indicate the intent to change this neighborhood – it has remained essentially the same since 1963 (constructed with single- family houses, zoned for multi-family development, and planned for a future mix of commercial and residential uses). A more intense use of this area, as planned since 1963, would expand the economic tax base, which would be in the general public interest. This is most clearly stated in the goals for the Medical/Highway 99 Activity Center to “expand the economic and tax base of the City of Edmonds by providing incentives for business and commercial redevelopment in a planned activity center.” The proposal would in effect institutionalize the existing single-family homes and would prohibit the opportunity for more intensive future use of these properties. Perhaps more importantly, changing this area to a “Single Family Urban 1” designation, as requested, would create future conflicts with the surrounding more intense designations as they ultimately redevelop, which would create an underutilized island in the middle of a more intense neighborhood. Single family areas can be expected to have a lower expectation and tolerance for traffic, noise, and other types of impacts that are part of a more intensive use environment. For the reasons cited above, the proposal does not appear to have a logical boundary; it is not in the public interest, nor is it consistent with the existing (and previous) comprehensive plan direction. 2. Is the proposed amendment detrimental to the public interest, health, safety or welfare of the city? The proposed Plan change would be counter to consistent Comprehensive Plan direction consistently established over the last 45 years. Changes to this established designation are Packet Page 160 of 244 Underhill Comprehensive Plan Amendment AMD-2007-14 Page 6 of 7 not in the public interest because, if changed to a less intense designation as requested, it would undermine the Plan’s goals and policies to provide a future opportunity for more intensive uses. 3. Does the proposed amendment maintain the appropriate balance of land uses within the city? Changing the designation of a portion of one street from “Mixed Use Commercial” to “Single Family Urban 1” does not significantly affect the overall balance of land use in the City. However, permitting such a request would in effect create a single-family island in the middle of the intensive “Medical/Highway 99 Activity Center,” which would throw off the balance within this activity center. The applicant has argued that the current designation is, “a long- standing error in the City’s zoning code,” however, the 1963 maps point out that this area has always been intended for a more intense use than single-family development. For at least the last 45 years this area has been slated for a more intensive use consistent with the area’s significance as a primary economic development engine for the city. The existing single- family uses are permitted uses within Multiple-Residential zones, and are certainly entitled to continue as long as they desired; however, the goals for this area have always been for more intense development. 4. Is the subject parcel physically suitable for the requested land use designation(s) and the anticipated land use development(s), including, but not limited to, access, provision of utilities, compatibility with adjoining land uses and absence of physical constraints? The subject area itself is physically suitable for the requested land use designation, as it is for the existing land use designation and potential development. The site and surrounding neighborhood are relatively flat (Attachment 8), and there are no identified streams or wetlands in the vicinity. All future development would have to meet the applicable zoning criteria for height, setbacks, lot coverage, parking, etc. However, as noted elsewhere in this report, the proposal is not compatible geographically with adjacent land uses. Memorializing a single-family neighborhood within the intensive Medical/Highway 99 Activity Center through the proposed request is not physically appropriate; it does not result in an appropriate boundary. Packet Page 161 of 244 Underhill Comprehensive Plan Amendment AMD-2007-14 Page 7 of 7 III. ATTACHMENTS 1.Land Use Application. 2.Applicant’s Narrative. 3.SEPA DNS. 4.Neighborhood Notice. 5.Comprehensive Plan Vicinity Map. 6.Zoning Vicinity Map. 7.Aerial Photo Vicinity Map. 8.LiDAR Vicinity Map. 9.Neighborhood Map. 10.1963 Dwelling Unit Distribution Map. 11.1963 Generalized Land Use Plan Map. 12.1963 Zoning Map. 13.Edmonds Comprehensive Plan – Residential Development, pages 50-55. 14.Edmonds Comprehensive Plan – Commercial Land Use, pages 55-59. 15.Edmonds Comprehensive Plan – Housing Element, pages 99-110. 16.Edmonds Comprehensive Plan – Medical/Highway 99 Activity Center, pages 43-49. 17.Letter from Alden R. Peppel and Susana Martinez, dated 05.30.08. IV. PARTIES OF RECORD Jim Underhill 7410 215th Street SW Edmonds WA 98026 Alden R. Peppel 7528 215th Street SW Edmonds WA 98026 Planning Division Susana Martinez 7527 215th Street SW Edmonds WA 98026 Packet Page 162 of 244 Packet Page 163 of 244 Packet Page 164 of 244 Packet Page 165 of 244 Packet Page 166 of 244 Packet Page 167 of 244 Packet Page 168 of 244 213T 7 3 R D P L W 215TH ST SW 7 6 T H A V E W e Comprehensive Plan Amendment Application by James Underhill Proposal to change the Comprehensive Plan designation from "Mixed Use Commercial" to "Single-Family Urban 1" File Number AMD20070014 Steven's Hospital Edmonds Woodway High School Packet Page 169 of 244 212TH ST SW 210TH ST SW 7 7 T H P L W 213TH PL SW 7 3 R D P L W 211TH PL 8 0 T H A V E W 7 6 T H A V E W 7 7 T H A 208TH ST SW 72 N D A V EW 212TH ST SW H W Y 9 9 N W T R A C T I O N R /W 216TH ST SW 209 T H S T S W ST SW 220TH ST SW 70 T H A V E W 215TH ST SW W 8 0 T H A V E W 7 6 T H A V E W 7 7 T H P L W 7 8 T H A V E W 219TH ST SW 7 8 218TH ST SW 7 8 T H A V E W 209TH ST SW P L W SW 7 8 T H A V E W P L W 207TH PL 74 T H A V E W 7 6 T H P L W W 7 9 T H A V E W W 7 2 N D A V E W 216TH ST SW ]James Underhill Comprehensive Plan Amendment File Number AMD-2007-14 215th Street SW (RM-2.4 Zone) Highway 99 Activity Center 0500250 Feet Attachment 5 Comprehensive Plan Map Medical Public Single Family Urban 1 Corridor Development Mixed Use Commercial Hi-Rise Node Corridor Development Packet Page 170 of 244 !!! !! !! !! !! !! !! !! !! !! !! !! ! ! ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! !!! 213TH PL 7 3 R D P L W 215TH ST SW 7 6 T H A V E W ]James Underhill Comprehensive Plan Amendment File Number AMD-2007-14 215th Street SW (RM-2.4 Zone) 0200100 Feet Si t e Attachment 6 Zoning Map CG2 Zone BN Zone RM-1.5 Zone RM-2.4 Zone P Zone MU Zone Packet Page 171 of 244 12TH ST SW 210TH ST SW 213TH PL SW 7 3 R D P L W 72 N D A V E W 212TH ST SW H W Y 9 9 N 216T 220TH ST SW 215TH ST SW 7 6 T H A V E W 7 7 T H P L W 7 8 T H A V E W 219TH ST SW 218TH ST SW 7 8 T H A V E W 209TH ST SW 74 T H A V EW 7 6 T H P L W 7 9 T H A V E W 7 2 N D A V E W SW ]James Underhill Comprehensive Plan Amendment File Number AMD-2007-14 215th Street SW (RM-2.4 Zone) Highway 99 Activity Center 0400200 Feet Attachment 7 Aerial Photo Vicinity Map Packet Page 172 of 244 213TH PL 7 3 R D P L W 215TH ST SW 7 6 T H A V E W ]James Underhill Comprehensive Plan Amendment File Number AMD-2007-14 215th Street SW (RM-2.4 Zone) 0200100 Feet Si t e Attachment 8 LiDAR Vicinity Map: 10' Contours Packet Page 173 of 244 7 3 R D P L W 215TH ST SW W DWAY HOOL VE N S F A M I L Y E AL T H C A R E PLANT STEVENS HOSPITAL E.R. STEVENS PAVILION STEVE COUR STEVE MANO 2152 7320 21600 1 21227 21225 2130721307 21307 21311 2 1 3 1 3 2131521317 21329 2 1 3 2 5 73 2 8 21 5 1 0 21516 21520 21524 7315 2152 73 2 1 73 2 9 75 2 8 75 2 0 75 1 4 75 0 6 74 3 0 74 2 0 74 1 0 74 0 2 74 0 3 74 1 1 74 2 1 74 2 9 75 0 5 75 1 5 75 1 9 75 2 7 215 730 21229 21327 21 21 21 7300Pool Office 73 0 5 " 4 73 0 6 " 7 " 7303 "3" 7302 "2" 7304 "1" 7309 " 6" ]James Underhill Comprehensive Plan Amendment File Number AMD-2007-14 215th Street SW (RM-2.4 Zone) 015075 Feet Attachment 9 Neighborhood Map Packet Page 174 of 244 Packet Page 175 of 244 Packet Page 176 of 244 Packet Page 177 of 244 Packet Page 178 of 244 Packet Page 179 of 244 Packet Page 180 of 244 Packet Page 181 of 244 Packet Page 182 of 244 Packet Page 183 of 244 Packet Page 184 of 244 Packet Page 185 of 244 Packet Page 186 of 244 Packet Page 187 of 244 Packet Page 188 of 244 Packet Page 189 of 244 Packet Page 190 of 244 Packet Page 191 of 244 Packet Page 192 of 244 Packet Page 193 of 244 Packet Page 194 of 244 Packet Page 195 of 244 Packet Page 196 of 244 Packet Page 197 of 244 Packet Page 198 of 244 Packet Page 199 of 244 Packet Page 200 of 244 Packet Page 201 of 244 Packet Page 202 of 244 Packet Page 203 of 244 Packet Page 204 of 244 Packet Page 205 of 244 Packet Page 206 of 244 Packet Page 207 of 244 Packet Page 208 of 244 Packet Page 209 of 244 Packet Page 210 of 244 Packet Page 211 of 244 Packet Page 212 of 244 Packet Page 213 of 244 Packet Page 214 of 244 Packet Page 215 of 244 Packet Page 216 of 244 A Member of the International Lawyers Network with independent member law firms worldwide 1601 Fifth Avenue, Suite 2100 • Seattle, WA 98101-1686 • 206.447.7000 • Fax: 206.447.0215 Web: www.omwlaw.com {BFP700807.DOC;1/00006.900150/} MEMORANDUM DATE: July 14, 2008 TO: Gina Coccia, Planner City of Edmonds FROM: Bio F. Park, Office of the City Attorney RE: Zoning Ordinances and Private Restrictive Covenant Zoning ordinances adopted by local jurisdictions do not have to accommodate for private restrictive covenants. Martel v. City of Vancouver Bd. of Adjustment, 35 Wn. App. 250, 666 P.2d 916 (1983); see also McDonald v. Emporia-Lyon County Joint Bd. of Zoning Appeals, 10 Kan.App.2d 235, 697 P.2d 69, 70-72 (1985). Zoning ordinances regulate the use of land through exercise of the police power in accordance with the comprehensive plan for the area. As an exercise of the state power to promote the general health, safety and welfare, zoning is entirely divorced in concept, creation, enforcement and administration from restrictive covenants (which are restrictions arising out of agreements between private parties who, in the exercise of their rights as real property owners, decide freely to contract and impose whatever lawful restrictions upon the use of their lands that they deem advantageous or desirable). Id. Restrictive covenants imposed by private parties are independent controls upon the use of land for private benefit. Id. Zoning ordinances and private restrictive covenants are held by courts to legally operate independently of one another. Viking Properties, Inc. v. Holm, 155 Wn.2d 112, 118 P.3d 322 (2005); Martel v. City of Vancouver Bd. of Adjustment, 35 Wn. App. at 257; McDonald v. Emporia-Lyon County Joint Bd. of Zoning Appeals, 10 Kan.App.2d 237. Whether both type of restriction is valid and enforceable presents two separate and distinct legal issues. A zoning ordinance is valid if it is adopted as a legal exercise of a local government’s police powers. Private covenant restriction is subject to common law and real property rules which vary from state to state. In most cases, zoning ordinances and restrictive covenants operate independently from each another. Id. “The independent operation” is uniformly held by courts that a zoning ordinance does not terminate, supersede or in any way affect a valid private restriction on the use of real property. Packet Page 217 of 244 Gina Coccia, Planner July 14, 2008 Page 2 {BFP700807.DOC;1/00006.900150/} Id. The fact that it may be permitted by a zoning ordinance does not relieve an owner of the obligation to comply with a more restrictive private covenant. Id. (Likewise, a less restrictive private covenant does not authorize the private landowner to use his property in violation of a more restrictive zoning ordinance.) When a zoning ordinance and a private covenant are in conflict, the more restrictive of the two prevails. See id. A zoning ordinance which permits less restrictive uses than those limited by a private covenant does not impair enforcement of the private restriction. In other words, a zoning ordinance does not override a restrictive covenant. A zoning ordinance does not defeat rights that are privately created and legally enforceable, but neither is a zoning ordinance controlled in its workings or affects by such rights. Id. A restrictive covenant is often viewed by courts as a self-imposed restriction for property owners mutual benefit. As a result, even when joint operation of restrictive covenant and zoning ordinance degrades all reasonable use of the property, courts have been reluctant to find a takings. Zoning ordinances notwithstanding, the enforcement of a disputed restrictive covenant is a private dispute between restricted and benefited parties, which courts of equity have jurisdiction to decide in light of attendant circumstances. Because a restrictive covenant is legally a self-imposed restriction, when all reasonable uses are foreclosed, the burden falls upon the property owner to seek all available means of relief from enforcement before seeking invalidation of zoning ordinances. Martel v. City of Vancouver Bd. of Adjustment, 35 Wn. App. at 257; McDonald v. Emporia-Lyon County Joint Bd. of Zoning Appeals, 10 Kan.App.2d 237. Local jurisdictions are under no obligation to adopt or change zoning ordinances to accommodate for private self-imposed property restrictions. Id. BFP:gjz Packet Page 218 of 244 AM-1679 6. Public Hearing: Alley Vacation Between 8th / 9th Ave N, North of Daley St. Edmonds City Council Meeting Date:07/22/2008 Submitted By:Duane Bowman Time:30 Minutes Department:Development Services Type:Action Review Committee: Action: Information Subject Title Public Hearing on the proposed vacation of the unopened alley right-of-way located between 8th Avenue North and 9th Avenue North, north of Daley Street. Recommendation from Mayor and Staff After taking public testimony, direct staff and the City Attorney to prepare the necessary ordinance to vacate the unopened alley right-of-way. Previous Council Action On June 24, 2008, the City Council passed Resolution No. 1178 (Exhibit 1) initiating the vacation of the unopened alley right-of-way between 8th Avenue North and 9th Avenue North, north of Daley Street. July 22, 2008 was the date set for the public hearing. Narrative There is a 7.5 foot unopened alley right-of-way located north of Daley Street, between 8th Avenue North and 9th Avenue North, which was originally dedicated as part of the original Plat of the City of Edmonds in 1890. Normally alleyways are 16 feet in width. It was most likely anticipated that the properties north of the alley right-of-way would dedicate the additional 7.5 feet but that never happened. The City has no improvements within the alley right-of-way. Pursuant to ECDC 20.70.050, the City Council may initiate a vacation of right-of-way with the passage of a resolution. A public hearing must be held on the proposed right-of-way vacation between 20 to 60 days after passage of the resolution. It is recommended that July 22, 2008 be set as the date to conduct the public hearing on the right-of-way vacation. ECDC 20.70.020 outlines the criteria to consider when contemplating a right-of-way vacation. The City Council may vacate a street, alley, or easement only if it finds that: A. The vacation is in the public interest; and B. No property will be denied direct access as a result of the vacation. Public Interest Packet Page 219 of 244 The city has no planned or existing improvements within the alley way. It would be in the public interest to vacate the right-of-way and return it to the tax rolls. Access Exhibit 3 is an illustration that shows the current alley configuration and use. The properties at 503 9th Ave. N. and 841 Daley Street both utilize the eastern portion of the alley for vehicle access to 9th Ave. N. The property at 509 9th Ave. N. has a garage that backs up to the alley but has its vehicle access out to 9th Ave. N. by way of an easement on the north side of 503 9th Ave. N. The remainder of the alley way is steep and not used. Compensation Staff does not recommend requiring compensation for the vacated right-of-way. It has been unused essentially since it was dedicated and it reduces city liability for the unused condition. Fiscal Impact Attachments Link: Exhibit 1 - Resolution 1178 Link: Exhibit 2 - CC Minutes 062408 Link: Exhibit 3 - Alley Illustration Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/17/2008 04:37 PM APRV 2 Mayor Gary Haakenson 07/17/2008 04:54 PM APRV 3 Final Approval Sandy Chase 07/18/2008 08:20 AM APRV Form Started By: Duane Bowman Started On: 07/17/2008 09:26 AM Final Approval Date: 07/18/2008 Packet Page 220 of 244 Packet Page 221 of 244 Packet Page 222 of 244 Packet Page 223 of 244 Packet Page 224 of 244 Packet Page 225 of 244 Packet Page 226 of 244 Packet Page 227 of 244 AM-1684 8. Interim Zoning Ordinance Re: Chapter 16.43 BD (Downtown Business) Zones Edmonds City Council Meeting Date:07/22/2008 Submitted By:Rob Chave Time:5 Minutes Department:Planning Type:Action Review Committee: Action: Information Subject Title Proposed interim zoning ordinance amending the provisions of Chapter 16.43 BD (Downtown Business) zones. Recommendation from Mayor and Staff Approve one of the two draft interim zoning ordinances: (1) Exhibit 1 is an interim zoning ordinance which takes effect five (5) days after publication. --OR-- (2) Exhibit 2 is an emergency interim zoning ordinance which takes effect immediately. Previous Council Action The City Council discussed a staff interpretation of the regulations governing the ground floor of developments within the BD1 zone at its meeting of July 15, 2008. The Council agreed with the staff interpretation and asked that an appropriate ordinance be brought back to clarify the Council's intent. Narrative The City Council discussed a staff interpretation of the regulations governing the ground floor of developments within the BD1 zone at its meeting of July 15, 2008. The Council agreed with the staff interpretation but asked that an appropriate ordinance be brought back to clarify the Council's intent. The City Attorney has drafted two alternative ordinances to implement the Council's direction. The ordinance in Exhibit 1 is an interim zoning ordinance which takes effect five (5) days after publication. The ordinance in Exhibit 2 is an emergency ordinance which takes effect immediately. The whereas clauses explain the logic for the different effective dates of each ordinance; the clarifying code amendments made by each ordinance are otherwise the same. Fiscal Impact Attachments Link: Exhibit 1: Interim zoning ordinance 701064 Link: Exhibit 2: Emergency interim zoning ordinance 701070 Packet Page 228 of 244 Link: Exhibit 2: Emergency interim zoning ordinance 701070 Link: Exhibit 3: Staff interpretation Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 07/18/2008 08:20 AM APRV 2 Mayor Gary Haakenson 07/18/2008 10:29 AM APRV 3 Final Approval Sandy Chase 07/18/2008 10:33 AM APRV Form Started By: Rob Chave Started On: 07/17/2008 04:11 PM Final Approval Date: 07/18/2008 Packet Page 229 of 244 0006.90000 WSS/gjz 7/17/08 ORDINANCE NO. _______ AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING AN INTERIM ZONING ORDINANCE AMENDING THE PROVISIONS OF CHAPTER 16.43 BD (DOWNTOWN BUSINESS) BY ADDING A SECTION 16.43.035 TO CLARIFY AND SUPPLEMENT THE PROCEDURES APPLICABLE TO THE GROUND FLOOR REQUIREMENTS IN THE BD-1 ZONE, SETTING A PUBLIC HEARING DATE, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, Chapter 16.43 BD (Downtown Business) establishes requirements for the BD zones including BD-1; and WHEREAS, the intent of the Council as expressed in its legislative record and the plain wording of the chapter is to require that the ground floor of all developments in the BD-1 be devoted entirely to commercial uses and be no less than fifteen feet in height; and WHEREAS, a potential applicant for development in the BD-1 zone has requested clarification from the staff in the form of a code interpretation, and staff has affirmed the Council's intent and understanding; and WHEREAS, the City Council recognizes that substantial monies may be invested by property owners in reliance on their understanding of code provisions and wishes to provide clear guidance in line with its past intent, and what the City Council believes to be the clear, current language of the code as it relates to the BD-1 zone; and WHEREAS, the Growth Management Act, RCW 36.70A.390 authorizes the uses of an interim zoning ordinance where the City Council finds that the health, safety and welfare so require; and {WSS701064.DOC;1/00006.900000/} - 1 - Packet Page 230 of 244 WHEREAS, the City Council wishes to refer this matter to the Planning Board and encourages the Planning Board to work with property owners and citizens in the downtown area to review the existing code provisions and this interpretation, in order to make recommendations that would permit property owners to make profitable and efficient use of their properties while meeting the purposes and intent of the City’s Comprehensive Plan and the BD-1 zone; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The Edmonds Community Development Code Chapter 16.43 is hereby amended by the addition of a new subsection 16.43.035 Application of Requirements to the BD-1 Zone, as an interim zoning ordinance: 16.43.035 Application of requirements to the BD-1 zone. The application and interpretation of Chapter 16.43 BD Downtown Business to any development permit or application within the BD- 1 zone shall conform to the requirements of this section. These requirements are enacted in order to clarify the intent of the City Council and the application of existing language of the Code. In the event of conflict or ambiguity with any provision of this chapter, or the definition sections of the Community Development Code, these provisions shall control. The ground floor of the development in the BD-1 zone shall be devoted entirely to commercial uses as provided by the first sentence of ECDC 16.43.030(B)(3). The ground floor shall be no less than fifteen feet in height measured in accordance with ECDC 16.43.030. Except to the minimum extent necessary to exercise the rights granted pursuant to ECDC 16.43.030(B)(2)(b), the ground floor shall be in one plane, extending the entire width and breadth of the building. Section 2. In accordance with the requirements of RCW 36.70A.390, a public hearing shall be held on this matter on _____________, 2008 at 7:00 PM or as soon thereafter as the public may be heard. Such date is within sixty days of the adoption of this ordinance. {WSS701064.DOC;1/00006.900000/} - 2 - Packet Page 231 of 244 Section 3. The City Council refers this matter to the Planning Board for its review and recommendation. In addition to recommendations regarding the changes necessary to address this interim ordinance, the Planning Board is encouraged to work with property owners and citizens to make recommendations regarding how the purposes of the BD-1 zone and the Comprehensive Plan can be met while providing for the efficient and economically viable use of property in the BD-1 zone. The Planning Board is encouraged to consider and make recommendations regarding any change which would improve the economic viability of businesses which utilize the commercial space established and constructed pursuant to these provisions. Section 4. Effective Date. This ordinance, being an exercise of a power specifi- cally delegated to the City legislative body, is not subject to referendum, and shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. This interim ordinance shall expire on its own terms six months after the effective date unless extended or repealed by action of the City Council. APPROVED: MAYOR GARY HAAKENSON ATTEST/AUTHENTICATED: CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: BY W. SCOTT SNYDER {WSS701064.DOC;1/00006.900000/} - 3 - Packet Page 232 of 244 FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. {WSS701064.DOC;1/00006.900000/} - 4 - Packet Page 233 of 244 SUMMARY OF ORDINANCE NO. __________ of the City of Edmonds, Washington On the ____ day of ___________, 2008, the City Council of the City of Edmonds, passed Ordinance No. _____________. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING AN INTERIM ZONING ORDINANCE AMENDING THE PROVISIONS OF CHAPTER 16.43 BD (DOWNTOWN BUSINESS) BY ADDING A SECTION 16.43.035 TO CLARIFY AND SUPPLEMENT THE PROCEDURES APPLICABLE TO THE GROUND FLOOR REQUIREMENTS IN THE BD-1 ZONE, SETTING A PUBLIC HEARING DATE, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this _____ day of ________________, 2008. CITY CLERK, SANDRA S. CHASE {WSS701064.DOC;1/00006.900000/}- 5 - Packet Page 234 of 244 {WSS701070.DOC;1/00006.900000/} - 1 - 0006.90000 WSS/gjz 7/17/08 ORDINANCE NO. _______ AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING AN INTERIM ZONING ORDINANCE TO CLARIFY THE PROVISIONS OF CHAPTER 16.43 BD (DOWNTOWN BUSINESS) TO CLARIFY AND SUPPLEMENT THE PROCEDURES APPLICABLE TO THE GROUND FLOOR REQUIREMENTS IN THE BD-1 ZONE, SETTING A PUBLIC HEARING DATE, AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. WHEREAS, Chapter 16.43 BD (Downtown Business) establishes requirements for the BD zones including BD-1; and WHEREAS, the clear intent of the Council as expressed in its legislative record and the plain wording of the chapter is to require that the ground floor of all developments in the BD-1 be devoted entirely to commercial uses and be no less than fifteen feet in height; and WHEREAS, a potential applicant for development in the BD-1 zone has requested clarification from the staff in the form of a code interpretation, and staff interpretation has affirmed the Council's intent and understanding; and WHEREAS, the City Council recognizes that substantial monies may be invested by property owners in reliance on their understanding of code provisions and wishes to provide clear guidance in line with its past intent, and what the City Council believes to be the clear, current language of the code as it relates to the BD-1 zone; and WHEREAS, the Growth Management Act, RCW 36.70A.390 authorizes the uses of an interim zoning ordinance where the City Council finds that the health, safety and welfare so require; and Packet Page 235 of 244 {WSS701070.DOC;1/00006.900000/} - 2 - WHEREAS, the City Council wishes to refer this matter to the Planning Board and encourages the Planning Board to work with property owners and citizens in the downtown area to review the existing code provisions and this interpretation, in order to make recommendations that would permit property owners to make profitable and efficient use of their properties while meeting the purposes and intent of the City’s Comprehensive Plan and the BD-1 zone; and WHEREAS, ordinances may become effective immediately upon a declaration of emergency and vote of a super majority of the City Council; and WHEREAS, the City Council finds that it is necessary to enact this clarification as an emergency ordinance in order to spare property owners unnecessary expense which may be incurred through expenditures on architects, appeal processes and other matters related to development and which are based upon their misinterpretation of the City Code or any failure of the Code to adequately reflect the clear intent of the City Council; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The Edmonds Community Development Code Chapter 16.43 is hereby amended by the addition of a new subsection 16.43.035 Application of Requirements to the BD-1 Zone, as an interim zoning ordinance: 16.43.035 Application of requirements to the BD-1 zone. The application and interpretation of Chapter 16.43 BD Downtown Business to any development permit or application within the BD- 1 zone shall conform to the requirements of this section. These requirements are enacted in order to clarify the intent of the City Council and the application of existing language of the Code. In the event of conflict or ambiguity with any provision of this chapter, or the definition sections of the Community Development Code, these provisions shall control. Packet Page 236 of 244 {WSS701070.DOC;1/00006.900000/} - 3 - The ground floor of the development in the BD-1 zone shall be devoted entirely to commercial uses as provided by the first sentence of ECDC 16.43.030(B)(3). The ground floor shall be no less than fifteen feet in height measured in accordance with ECDC 16.43.030. Except to the minimum extent necessary to exercise the rights granted pursuant to ECDC 16.43.030(B)(2)(b), the ground floor shall be in one plane, extending the entire width and breadth of the building. Section 2. In accordance with the requirements of RCW 36.70A.390, a public hearing shall be held on this matter on _____________, 2008 at 7:00 PM or as soon thereafter as the public may be heard. Such date is within sixty days of the adoption of this ordinance. Section 3. The City Council refers this matter to the Planning Board for its review and recommendation. In addition to recommendations regarding the changes necessary to address this interim ordinance, the Planning Board is encouraged to work with property owners and citizens to make recommendations regarding how the purposes of the BD-1 zone and the Comprehensive Plan can be met while providing for the efficient and economically viable use of property in the BD-1 zone. The Planning Board is encouraged to consider and make recommendations regarding any change which would improve the economic viability of businesses which utilize the commercial space established and constructed pursuant to these provisions. Section 4. Effective Date. This ordinance shall be immediately effective from and after its passage by a super majority of the Edmonds City Council. This interim ordinance shall expire on its own terms six months after the effective date unless extended or repealed by action of the City Council. APPROVED: MAYOR GARY HAAKENSON Packet Page 237 of 244 {WSS701070.DOC;1/00006.900000/} - 4 - ATTEST/AUTHENTICATED: CITY CLERK, SANDRA S. CHASE APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: BY W. SCOTT SNYDER FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. Packet Page 238 of 244 {WSS701070.DOC;1/00006.900000/}- 5 - SUMMARY OF ORDINANCE NO. __________ of the City of Edmonds, Washington On the ____ day of ___________, 2008, the City Council of the City of Edmonds, passed Ordinance No. _____________. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, ADOPTING AN INTERIM ZONING ORDINANCE TO CLARIFY THE PROVISIONS OF CHAPTER 16.43 BD (DOWNTOWN BUSINESS) TO CLARIFY AND SUPPLEMENT THE PROCEDURES APPLICABLE TO THE GROUND FLOOR REQUIREMENTS IN THE BD-1 ZONE, SETTING A PUBLIC HEARING DATE, AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this _____ day of ________________, 2008. CITY CLERK, SANDRA S. CHASE Packet Page 239 of 244 Packet Page 240 of 244 Packet Page 241 of 244 Packet Page 242 of 244 Packet Page 243 of 244 Packet Page 244 of 244