Resolution 949RESOLUTION NO. 949
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF EDMONDS, WASHINGTON, APPROVING
DEVELOPMENT AGREEMENT RELATING TO
BOO HAN PLAZA AND AUTHORIZING MAYOR
TO EXECUTE THE SAME
WHEREAS, the City of Edmonds and the representatives of a development
project commonly known as "Boo Han Plaza" wish to enter into a development
agreement pursuant to RCW Chapter 36.70B.170; and
WHEREAS, the City and Boo Han representatives have negotiated a
Development Agreement attached to this Resolution as Exhibit "A "; and
WHEREAS, a public hearing was held before the City Council on March 16,
1999 to consider the approval of the Developer Agreement; and
WHEREAS, the City Council finds that the approval and entry of the
Development Agreement will provide mutual assurances regarding the development
standards and mitigation conditions that will be required for the proposed development
and the timely completion of such; now, therefore,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON,
HEREBY RESOLVES AS FOLLOWS:
Section 1. Legislative Findings. The City Council adopts by reference those
findings as set forth in Section I of the attached Development Agreement as designated
(A) — (R) (U), and incorporates the same into this Resolution.
Page 1
Section 2. Approval of Development Agreement. The Council approves the terms
and conditions of that Development Agreement attached to this Resolution as Exhibit
"A ".
Section 3. Authorization of Mayor to Execute. The Council authorizes the Mayor.
to execute that Development Agreement attached to this Resolution as Exhibit "A ".
RESOLVED this 20th day of April, 1999.
APPROVED:
BARBARA S. FAHEY
'I- R MXY-
ATTEST /AUTHENTICATED:
CITY CLERK, SANDRA S. CHASE
FILED WITH THE CITY CLERK: 04/16/99
PASSED BY THE CITY COUNCIL: 04/20/99
RESOLUTION NO. 949
Page 2
After Recording
Return To:
City Clerk
City of Edmonds
Space Above for Recor mg ormation Only
DEVELOPMENT AGREEMENT
This is a Development Agreement authorized by RCW 36.70B.170 between the parties
City of Edmonds, a noncharter code city of the state of Washington (hereafter "City ")
and Boo Han, a natural person and the sole owner of the property described in this
Agreement (hereafter "Boo Han ")
I. RECITALS
WITNESSTH:
A) Boo Han is owner of a commercial site located within the boundaries of the City,
legally described in Attachment "A ", and intends to develop a retail grocery and
general retail shopping center upon such site; and
B) Boo Han sought review and approval of the proposed commercial site
development and submitted a site plan for approval by the City's Architectural
Design Board (ADB) in July 1997; and
C) The City issued a Mitigated Determination of Non - Significance (MDNS) under
the provisions of the State Environmental Policy Act (SEPA, RCW Chapter
43.21C)) on December 23, 1997, which determination contained specific
mitigation conditions based upon the site conditions as reported in an
environmental checklist submitted by Boo Han on June 30, 1997; and
D) The ADB granted approval of the proposed site plan on January 21, 1998, subject
to certain conditions and requirements (Attachment `B "), which approval will
expire in July, 1999; and
E) Boo Han applied for building permit issuance in March, 1998, which application
proposed certain alterations to the landscaping plan requirements imposed by the
ADB and which building permit required the re- issuance of a SEPA threshold
determination because of additional grading; and
DEVELOPMENT AGREEMENT - 1
F) A Determination of Non - Significance (DNS) was issued under the provisions of
SEPA for the additional grading in connection with the building permit
application; and
G) In September, 1998, City Planning Staff became aware of certain factual
inaccuracies or misrepresentations contained in the original environmental
checklist pertaining to the existence of a significant stand of mature evergreen
trees located upon the western perimeter of the site; and
H) Boo Han proceeded to engage in land clearing and grading activities to remove
the stand of mature evergreen trees without obtaining the proper City permits for
such vegetation removal and without adequate environmental review of the
impacts of such vegetation removal; and
1) Based upon the authority of WAC 197- 11- 350(3)(a)(iii), City Staff withdrew the
MDNS issued on December 23, 1997, based upon the misrepresentation or lack of
material disclosure contained in the original environmental checklist submitted to
the City; and
J) City Staff has assumed the authority to conduct environmental review for the site
and has prepared a revised environmental checklist with the assistance of
professional consultants; and
K) City Staff has issued a revised Mitigated Determination of Non - Significance for
the site on February 23, 1999 (Attachment "C "), which MDNS contains
additional mitigation conditions to address the sound and aesthetic impacts caused
or reasonably attributed to the removal of the mature evergreen trees previously
located upon the site; and
L) The building permit application submitted by Boo Han will expire on or before
the approval of this Agreement, due to delay caused by the additional time
necessary to adequately complete environmental review; and
M) Boo Han agrees to perform and complete all mitigation measures contained in the
MDNS issued on February 23, 1999, and further to comply with all conditions
and requirements as contained in the site plan approval by the ADB; and
N) The City and Boo Han seek to provide for mutual assurances pertaining to the
development standards and mitigation conditions that will be required for the
proposed development and the timely completion of such; and
O) In the absence of this development agreement, the prior approval of the ADB is
subject to revocation and additional review would be necessary; and
P) There is valuable consideration in the assurance to a development project
applicant that upon governmental approval, the project may proceed in
DEVELOPMENT AGREEMENT - 2
accordance with existing policies and regulations, and subject to conditions of
approval, all as set forth in a development agreement; and
Q) The City and Boo Han are authorized by RCW 36.70B 170 to enter into
development agreements to accomplish the purposes set forth above; and
R) The City Council has duly conducted a public hearing on the approval of this
Agreement and has adopted a Resolution authorizing the Mayor to execute this
agreement on March 16, 1999; and
S) Whereas, upon public hearing, the Council finds that the removal of the existing
stand of evergreen trees along the western perimeter of the site would be likely to
cause or result in adverse sound and aesthetic impacts to neighboring residential
properties; and
T) Whereas, the Council finds that the adverse impacts caused or resulting from the
removal of the vegetation may be adequately mitigated by certain landscape
requirements in addition to those provided in the MDNS dated February 23, 1999;
and
U) Whereas, such additional mitigation measures have been incorporated into this
Agreement and accepted by Boo Han;
II. AGREEMENT
NOW THEREFORE, in mutual consideration for the assurances and certainty contained
herein, the parties hereby agree as follows:
Approval of Proposed Development. The City shall expeditiously issue the permits
and approvals necessary for the completion of the proposed development, in
conformance with the development standards as contained in the Edmonds
Community Development Code as existing upon the date of execution of this
agreement, except as provided herein, and in conformance with the conditions of
approval as set forth in the site plan approval granted by the Architectural Design
Board on January 21, 1998 (see attachment B). The issuance of a revised building
permit shall not require the payment of additional fees, except to the extent that
review of the specific plans for the mitigation conditions incorporated in Section 2
require new or additional review by City Plans Examiners.
2. Incorporation of MDNS Conditions. In addition to those development standards and
conditions of approval provided for in Section 1, those mitigation conditions
contained in the MDNS issued on February 23, 1999 (see Attachment C) shall be
incorporated as conditions of approval, except as specifically provided below:
a) A minimum of 26 Leyland Cypress trees shall be planted in accordance with
the revised Landscape Plan attached to this agreement as Attachment "D ". Such
DEVELOPMENT AGREEMENT - 3
landscape trees shall be planted at a minimum of sixteen (16) on center and shall
be a minimum height of fourteen (14) feet in height when planted. The landscape
trees shall be maintained at a height no less than fourteen (14) feet throughout the
duration of this Agreement.
3. Application of 1994 Uniform Building Code. The proposed development shall be
reviewed and a building permit issued under the standards and requirements of the
1994 Uniform Building Code, except to the extent such standards and requirements
vary or are different from those standards and conditions specifically set forth in the
ADB approval and MDNS (attachments B -C).
4. Timely Performance of Mitigation Conditions. In consideration for the approval and
assurances contained in this development agreement, Boo Han agrees to timely
perform the conditions of mitigation as incorporated by Section 2 of this Agreement.
Such mitigation conditions shall be substantially complete in a manner reasonably
acceptable to the Planning Manager of the City of Edmonds within ninety (90) days
following issuance of a revised building permit pursuant to this Agreement.
Reservation of City. Anything in this Agreement to the contrary notwithstanding, the
City of Edmonds, shall have the authority to impose new or different regulations to
the extent required by a serious threat to public health and safety as required by RCW
36.70B.170(4), to the extent such threat is proximately caused, or proximately
aggravated by, the impacts of the proposed development of the site or any portion
thereof. Provided, however, that such action shall only be taken by legislative act of
the City Council after appropriate public process. Boo Han reserves all rights to
contest and or appeal the implementation of such new or different regulation, and
further reserve the right to seek any damages they may be lawfully entitled to, to the
extent such new or different regulation impacts the property rights conveyed under
this Agreement.
6. Term of Agreement. The terms of this Development Agreement shall remain in
effect and enforceable for a period of ten (10) years following execution of this
Agreement, unless the agreement is terminated by the mutual written recission of the
parties. The authority to agree to such recission on behalf of the City shall be vested
solely in the legislative authority of the City Council.
7. Enforcement. This agreement shall be specifically enforceable by either party in a
competent court of law. In the event any controversy or claim arises regarding the
performance of the terms of this Agreement, the substantially prevailing party shall
be entitled to its reasonable costs, disbursements and attorney fees, together with all
expenses which it may reasonably incur in taking such action.
8. Non - Waiver. Failure by either party at any time to require performance by the other
party of any of the provisions hereof shall in no way affect the parties' rights
hereunder to enforce the same, nor shall any waiver by the party of the breach hereof
be held to be a waiver of any succeeding breach or a waiver of this nonwaiver clause.
DEVELOPMENT AGREEMENT - 4
9. Governing Law. This Agreement shall be construed with and governed by the laws of
the State of Washington. The parties agree to venue in Snohomish County, State of
Washington.
10. Severability. If any portion of this Agreement shall be invalid or unenforceable to any
extent, the validity of the remaining provisions shall not be affected thereby.
11. Amendment. This Agreement may only be amended by mutual agreement of the
parties except as provided for in Section 5.
12. Binding Effect. This Agreement shall be binding upon the City and Boo Han for the
full extent of its term, and shall further be binding upon all successors and assigns of
the parties. This Agreement shall be recorded with the Snohomish County Auditor.
DATED THIS -23 DAY OF '1999
CITY OF EDMONDS:
By:
Mayor
Attest:
mac: % ��� � • ��- //l�,a�.e/
City Clerk
STATE OF WASHINGTON )
) ss.
County of Snohomish )
BOO HAN PLAZA
By:
I certify that I know or have satisfactory evidence that Barbara Fahey is the
person who appeared before me and said person acknowledged that she signed this
instrument, on oath stated that she was authorized to execute the instrument and
acknowledged it as the Mayor of the City of Edmonds, to be the free and voluntary act of
DEVELOPMENT AGREEMENT - 5
such party for the uses and purposes mentioned in the instrument.
DATED: �3 , 1999
S.
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`� ;'o NOTARY I,
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PUBLIC
OPP
STATE OF WASHINGTON
ss.
County of Snohomish
w
Notary Public in and for the
State of Washington, residing
At Snohomish County.
My appointment expires:
I certify that I know or have satisfactory evidence that 0600.' 1-14d
is the person who appeared before me and said person acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument and
acknowledged it as the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
DATED: /C� " f� + , 19999
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DEVELOPMENT AGREEMENT - 6
Notary Public in and for the
State of Washington, residing
At Snohomish County.
My appointment expires: 4f
ATTACHMENT A
LEGAL DESCRIPTION
PARCEL 1:
THAT PORTION OF THE SOUTH 2 ACRES OF THE NORTH HALF OF THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF SECTION 30, TOWNSHIP 27 NORTH, RANGE 4 EAST, W.M.,
LYING WEST OF STATE ROAD NO. I AS CONVEYED TO THE STATE OF
WASHINGTON BY DEED RECORDED UNDER AUDITOR'S FILE NUMBER
350560; .
ALSO THE NORTH 75 FEET OF THAT PORTION OF THE SOUTH HALF OF THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF SAID SECTION 30 LYING WEST OF STATE ROAD NO. 1 AS
CONVEYED TO THE STATE OF WASHINGTON BY DEED RECORDED UNDER
AUDITOR'S FILE NUMBER 350560, RECORDS OF SNOHOMISH COUNTY,
WASHINGTON.
PARCEL 2:
THAT PORTION OF THE FOLLOWING DESCRIBED PROPERTY AS CONVEYED
THROUGH SNOHOMISH COUNTY SUPERIOR COURT CAUSE NO. 146007,
LYING WESTERLY OF STATE ROAD NO. 1 (U.S. HIGHWAY 99),
THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF SECTION 30, TOWNSHIP 27
NORTH, RANGE 4 EAST, W.M., EXCEPT THE NORTH 3.0 ACRES AND EXCEPT
THE SOUTH 2.0 ACRES.
SITUATE IN THE COUNTY OF SNOHOMISH, STATE OF WASHINGTON.
ATTACHMENT B
EXCERPT FROM JANUARY 21,1998 ADB MINUTES
ADB -97 -90 REQUEST FOR FINAL APPROVAL OF A NEW GROCERY STORE
AND SHOPPING CENTER
Boo -Nam Han
Yun's Construction
22618 Highway 99
Ted Litzenberger and Keith Nam, Architects, 1600 Graham St., Seattle, the applicant's
representatives, were present.
BOARDMEMBER RUBENKONIG MOVED, SECONDED BY BOARDMEMBER
SULLIVAN, TO APPROVE ADD-97-90 AS SUBMITTED, WITH THE
FOLLOWING CONDITIONS: THAT THE TRASH COLLECTION FACILITY
BE MOVED FURTHER TO THE SOUTH TO BE IN LINE WITH THE DRIVE
AISLE AND THAT THE INTERIOR DIMENSION OF THE TRASH
ENCLOSURE BE INCREASED TO 10 FEET BY 24 FEET, AS OUTLINED IN
RECOMMENDATIONS BY THE CITY'S PUBLIC WORKS DEPARTMENT;
AND, THE PLAN FOR THE INTERIOR PARKING LOT INCLUDE A
MINIMUM OF SEVEN PERCENT LANDSCAPE COVERAGE AT THE TIME
THE APPLICATION FOR BUILDING PERMIT IS MADE, BECAUSE IT HAS
BEEN FOUND TO BE IN COMPLIANCE WITH THE COMPREHENSIVE PLAN
AND OTHER ADOPTED CITY POLICIES, IT MEETS THE REQUIREMENTS
OF THE ZONING ORDINANCE AND SATISFIES THE CRITERIA AND
PURPOSES OF THE EDMONDS COMMUNITY DEVELOPMENT CODE
SECTIONS PERTAINING TO THIS APPLICATION. MOTION CARRIED,
WITH BOARDMEMBER OAKLIEF VOTING NO, BECAUSE HE STATED THE
BOARD'S REQUEST FOR THE APPLICANT TO INCLUDE FENCING
AROUND THE PROPERTY LINE ON THREE SIDES OF THE DEVELOPMENT
IS NOT NECESSARY.
Architectural Design Board Minutes — Excerpt January 21, 1998
ATTACHMENT C
0( ED
CITY OF EDMONDS
RSA g90 1215TH AVENUE NORTH, EDMONDS, WA 98020 (425) 771 -0220
RCW 197 -11 -970 Determination of Nonsignificance (DNS)
REVISED MITIGATED DETERMINATION OF NONSIGNIFICANCE
Description of proposal: Development of a currently vacant site into a 34,200 square foot grocery and retail
complex with 111 parking stalls (City of Edmonds File NO. ADB- 97 -90).
Proponent: Arch/Tech International — Yun's Construction
P.O. Box 1114
Gig Harbor, WA 98335
Location of proposal, including street address if any: 22618 Hwy 99, Edmonds
Lead agency: CITY OF EDMONDS
The lead agency for this proposal has determined that it does not have a probable significant adverse impact on the.
environment. An environmental impact statement is not required under RCW 43.21.030(2)(c). This decision was
made after review of a completed environmental checklist and other information on file with the lead agency. This
information is available to the public on request.
There is no comment period for this DNS.
XX This DNS is issued under 197 -11- 340(2); the lead agency will not act on this proposal for 14 days from
the date below. Comments must be submitted
Responsible Official: Jeffrey S. Wilson
PositiowTitle: Planning Supervisor, Department of Development Services - Planning Division
Phone: (425) 771 -0220
Address: City of Edmonds, 121 5th Avenue North, Edmonds, WA 98020
Date: Ie{ I
XX You may appeal this determination to Robert Chave,.Planning Manager, at 121 5th Avenue North,
Edmonds, WA 98020, no later than ' _ KA, rC h 10 , 1999, by filing a written appeal citing the
reasons.
You should be prepared to make specific factual objections. Contact Jeffrey S. Wilson to read or ask about the
procedures for SEPA appeals. '
XX Posted on Fe b rua v' 23 1999, at the Edmonds Public Library, Edmonds Community Services
Building, and the Edmcr4ds Post Office.
XX Distribute to "Checked" Agencies on the reverse side of this form, along with a copy of the Checklist.
Mailed to the following along with the Environmental Checklist:
XX Environmental Review Section
Department of Ecology
P.O. Box 47703
Olympia, WA 98504 -7703
XX Ted Litzenberger
P.O. Box 1114
Gig Harbor, WA 98335
XX Yun's Construction Attn: Nick Yun
1600 Graham St
Seattle, WA 98108
XX Washington State Dept. of Transportation
TSM &P/Land Developer
15700 Dayton Avenue North
Seattle, WA 98133
XX Boo Han
9122 S. Tacoma Way
Tacoma, WA 98499
XX Community Transit
Attn.: Brent Russell
7100 Hardeson Rd
Everett, WA 98203
XX MITIGATION MEASURES INCORPORATED INTO THE PROPOSAL:
Prior to issuance of the building permit
.1. TRAFFIC MITIGATION IN THE AMOUNT OF $15,643 IS TO BE PAID PRIOR TO BUILDING PERMIT
ISSUANCE.
Prior to receiving Certificate of Occupancy
2. A LANDSCAPE BUFFER ALONG THE WEST PROPERTY LINE IS TO BE INCREASED FROM 10 FEET
TO 15 FEET IN WIDTH PER EDMONDS COMMUNITY CODE CHAPTER 16.60:020.A (FOOTNOTE
No. 1) AND 16.60.020.C.
3. THE DEVELOPER IS TO INSTALL A 6 -FOOT HIGH SOLID WOOD FENCE ALONG THE ENTIRE
WESTERN PROPERTY LINE.
4. A MINIMUM OF 21 LEYLAND CYPRESS TREES SHALL BE PLANTED ACCORDING TO THE
LANDSCAPE PLAN RECEIVED BY THE CITY OF EDMONDS ON JANUARY 26,1999 ' EACH TREE IS
TO BE A MINIMUM OF 12 FEET IN HEIGHT AT THE TIME OF INSTALLATION. SPACING
REQUIREMENT TO BE DETERMINED BY LANDSCAPE PROFESSIONAL AT THE TIME OF
PLANTING TO ATTAIN EQUAL SCREENING ALONG THE ENTIRE AREA IDENTIFIED BY THE
LANDSCAPE CONSULTANT. ALL GROUND COVER AND SHRUBS IDENTIFIED ON THE ABOVE
NOTED LANDSCAPE PLAN ARE ALSO REQUIRED TO BE INSTALLED.
Attachments
pc: File No. ADB -97 -90
SEPA Notebook
Building Permit File Plan Review No. 98 -76
BOO HAN.AIDNS3.DOC
2/23/99.SEPA
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ATTACHMENT D
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Document Page 1 of 5
Revised Code of Washington
TITLE 36 RCW COUNTIES
CHAPTER 36.708 RCW LOCAL PROJECT REVIEW
RCW 36.706.170 Development agreements--Auf
RCW 36.70B.170 Development agreements -- Authorized.
(1) A local government may enter into a development agreement with a person having
ownership or control of real property within its jurisdiction. A city may enter into a development
agreement for real property outside its boundaries as part of a proposed annexation or a service
agreement. A development agreement must set forth the development standards and other
provisions that shall apply to and govern and vest the development, use, and mitigation of the
development of the real property for the duration specified in the agreement. A development
agreement shall be consistent with applicable development regulations adopted by a local
government planning under chapter 36.70A RCW.
(2) RCW 36.70B.170 through 36.70B.1.90 and section 501, chapter 347, Laws of 1995 do not
affect the validity of a contract rezone, concomitant agreement, annexation agreement, or other
agreement in existence on July 23, 1995, or adopted under separate authority, that includes some or
all of the development standards provided in subsection (3) of this section.
(3) For the purposes of this section, "development standards" includes, but is not limited to:
(a) Project elements such as permitted uses, residential densities, and nonresidential densities
and intensities or building sizes;
(b) The amount and payment of impact fees imposed or agreed to in accordance with any
applicable provisions of state law, any reimbursement provisions, other financial contributions by
the property owner, inspection fees, or dedications;
(c) Mitigation measures, development conditions, and other requirements under chapter 43.21 C
RCW;
(d) Design standards such as maximum heights, setbacks, drainage and water quality
requirements, landscaping, and other development features;
(e) Affordable housing;
(f) Parks and open space preservation;
(g) Phasing;
(h) Review procedures and standards for implementing decisions;
(1) A build -out or vesting period for applicable standards; and
0) Any other appropriate development requirement or procedure.
(4) The execution of a development agreement is a proper exercise of county and city police
power and contract authority. A development agreement may obligate a party to fund or provide
services, infrastructure, or other facilities. A development agreement shall reserve authority to
impose new or different regulations to the extent required by a serious threat to public health and
safety. [1995 c 347 § 502.]
NOTES:
Findings -- Intent - -1995 a 347 §§ 502 -506: "The legislature finds that the lack of certainty in the approval of
development projects can result in a waste of public and private resources, escalate housing costs for consumers and
discourage the commitment to comprehensive planning which would make maximum efficient use of resources at the
least economic cost to the public. Assurance to a development project applicant that upon government approval the
project may proceed in accordance with existing policies and regulations, and subject to conditions of approval, all as
set forth in a development agreement, will strengthen the public planning process, encourage private participation and
comprehensive planning, and reduce the economic costs of development. Further, the lack of public facilities and
services is a serious impediment to development of new housing and commercial uses. Project applicants and local
governments may include provisions and agreements whereby applicants are reimbursed over time for financing public
facilities. It is the intent of the legislature by RCW 36.70B.170 through 36.7013.210 to allow local governments and
owners and developers of real property to enter into development agreements." [ 1995 c 347 § 501.]
RCW 36.70B.180 Development agreements -- Effect.
Unless amended or terminated, a development agreement is enforceable. durinc, ;tc tarm 1,w a_
party to the agreement. A development agreement and the developmen
govern during the term of the agreement, or for all or that part of the bu Adopted by Reference c'
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EXHIBIT 1