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Cm131112EDMONDS CITY COUNCIL APPROVED MINUTES November 12, 2013 The Edmonds City Council meeting was called to order at 6:00 p.m. by Mayor Earling in the Council Chambers, 250 5t1i Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Dave Earling, Mayor Lora Petso, Council President Strom Peterson, Councilmember Frank Yamamoto, Councilmember Joan Bloom, Councilmember Kristiana Johnson, Councilmember Adrienne Fraley-Monillas, Councilmember Diane Buckshnis, Councilmember ALSO PRESENT Thea Ocfemia, Student Representative 1. ROLL CALL STAFF PRESENT Stephen Clifton, Community Services/Economic Development Director Phil Williams, Public Works Director Roger Neumaier, Finance Director Carrie Hite, Parks & Recreation Director Rob English, City Engineer Kernen Lien, Senior Planner Jeff Taraday, City Attorney Scott Passey, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder City Clerk Scott Passey called the roll. All elected officials were present. 2. APPROVAL OF AGENDA COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCIL PRESIDENT PETSO, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 3. APPROVAL OF CONSENT AGENDA ITEMS COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCIL PRESIDENT PETSO, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. APPROVAL OF CITY COUNCIL MEETING MINUTES OF NOVEMBER 4, 2013 B. APPROVAL OF CLAIM CHECKS #205251 THROUGH #205409 DATED NOVEMBER 7, 2013 FOR $486,723.53. APPROVAL OF PAYROLL DIRECT DEPOSIT AND CHECKS #60544 THROUGH #60557 AND #60570 FOR $461,124.98, BENEFIT CHECKS #60558 THROUGH #60569 AND WIRE PAYMENTS OF $230,964.54 FOR THE PERIOD OCTOBER 16, 2013 THROUGH OCTOBER 31, 2013 C. ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM AARON L. PANAGOS ($1,000,000.00) AND JOE RICE (AMOUNT UNDETERMINED) Edmonds City Council Approved Minutes November 12, 2013 Page 1 4. AUDIENCE COMMENTS Jeff Palmer, Edmonds, spoke in favor of Item 6, approval of an emergency resolution for 76th Avenue West water/sewer project. Entering the rainy season, stormwater entering adjoining properties is an issue. He and his neighbors on the west side of 76th depend on the reinstallation of a thickened edge to direct stormwater to storm drains and prevent flooding onto their property. Senior Utilities Engineer Mike DeLilla assured him that he and his neighbors will be contacted to discuss those needs once a contractor is hired and that a thickened edge will be provided as part of the emergency repairs. Safety has been compromised as a result of the destruction of large sections of curbs and sidewalk. He was told some emergency fixes would occur as part of this work; the City is required under the ADA to bring the entire pedestrian facility up to current standards including the installation of corner curb ramps concurrent with the spring 2014 final project. Communication from Lynnwood has been wholly inadequate and they have been unresponsive to the safety concerns he raised. He requested the City, 1) require and empower an Edmonds inspector or project manager to address the interests of Edmonds' residents, 2) hold a public meeting with the neighborhood to identify needs and seek input for the final spring project, 3) proceed with emergency repairs, and 4) consider placing Santana Trucking and Excavating on the City's list of contractors ineligible to bid on future City projects. Assuming the Council takes action tonight, Mayor Earling advised a press release will be issued, letters sent to neighbors and a meeting held with the neighborhood to describe the process and timeline. Donna Breske, Snohomish, owner of property in Edmonds purchased six years ago for which she has been unable to obtain a building permit, explained following submittal of a building permit application five months ago, she received comments from the Engineering Program Manager stating as a condition of building permit issuance the stormwater from City streets must be diverted onto their lot. She asserted this was a taking under the federal constitution. In response to her question about the authority for that requirement, she received a 12-page letter from the City Attorney. She displayed plat dedication language from the original 1961 plat that states, the City, its predecessors and assigns shall have the right for drainage upon the tracts of land shown on this plat in the reasonable original grading. She emphasized, reasonable original grading, pointing out the City did not have the right to have this lot as a stormwater repository. She displayed a letter from the Lighthouse Law Group that argues the plat dedication language gives the City the right but omits this sentence. She requested the Lighthouse Group reevaluate the plat dedication language in its entirety, asserting a violation of her due process. 5. CLOSED RECORD REVIEW OF THE ARCHITECTURAL DESIGN BOARD'S DESIGN APPROVAL OF POINT EDWARDS' BUILDING 10 TO BE LOCATED AT 50 PINE STREET UNDER FILE PLN20130022. APPEAL NUMBERS APL20130005 - APL20130008 Mayor Earling explained this is City Council deliberations and potential action on the closed record review held on October 15, 2013 regarding four appeals of the ADB's decision conditionally approving revisions to Building 10 of the Point Edwards development which includes a multi -family residential building with 85 units with structured and surface parking totaling 144 parking stalls located at 50 Pine Street. This is the continuation of the October 15, 2013 closed record review on the appeals of Thomas Waggener, the Town of Woodway, Clair and Bill Widing and John and Laura Fleming, and David Inadomi. Mayor Earling described the procedures. City Clerk will make a recording of the proceedings. There will be no opportunity during the closed record appeal hearing for public testimony. Oral argument has been presented by the appellants and the parties of record and that portion of the closed record hearing has been concluded. The Council may have questions of the parties. After questions, the Council will deliberate and make a decision which will be drafted by staff and presented to the Council at a later date for review and approval. Edmonds City Council Approved Minutes November 12, 2013 Page 2 Mayor Earling advised Councilmember Yamamoto was not present during the October 15, 2013 closed record hearing due to illness. He is present tonight. Mayor Earling relayed the attorney's advice that Councilmember Yamamoto may participate, citing Belcher v. Kitsap County, as long as Councilmember Yamamoto has prepared himself by reviewing the administrative record including the minutes of the October 15, 2013 hearing. The Council's attorney has a copy of the aforementioned case available for review. Mayor Earling advised one or more of the parties wish to present objections to the preparation of a Council index of appeal issues since the October 15, 2013 continued closed record hearing. Objections will be presented after the Appearance of Fairness/conflict of interest questions are concluded. This will be the only opportunity for the parties to present objections; objections related to this subject will not be allowed during Council deliberations so all objections related to the index of appeal issues must be presented during the time allotted. Mayor Earling asked who planned to present objections. Rick Gifford advised he plans to present 4-5. Tom Waggener asked to defer his objections until after Mr. Gifford speaks; he may raise approximately four issues. Mayor Earling advised City Attorney Jeff Taraday is representing staff; Attorney Carol Morris is representing the Council tonight and represented the Council at the October 15, 2013 closed record hearing. Mayor Earling explained the Appearance of Fairness Doctrine requires this hearing be fair in form, substance and appearance. The hearing must not only be fair, it must also appear to be fair. He asked whether any member of the decision -making body has engaged in communication with opponents or proponents regarding the issues in this appeal outside the public hearing process. Councilmembers Bloom, Fraley-Monillas, Buckshnis, Peterson, Yamamoto and Councilmember Johnson, Council President Petso and Mayor Earling stated they had nothing to disclose. Mayor Earling asked if any member of the Council has a conflict of interest or believes he/she cannot consider and hear the application in a fair and objective manner. Council President Petso and Councilmembers Johnson, Yamamoto, Peterson, Buckshnis, Fraley-Monillas and Bloom and Mayor Earling stated they had no conflicts. Mayor Earling asked whether any audience member objected to his or any Councilmembers' participation. Wayne Tanaka, representing the Town of Woodway, said the Town did not object to Mayor Earling chairing the meeting but he was uncertain that Mayor Earling was a decision -maker because he did not have a vote. Mayor Earling acknowledged he was not a decision maker. There were no other objections voiced. Mayor Earling invited the parties to present objections to the preparation of an index for the Council since the October 15, 2013 continued hearing. He advised each parry will have seven minutes to present their objections. Rick Gifford, 23901 Edmonds Way, attorney representing Edmonds Pine Street LLC, introduced John Goodman, Principal, Edmonds Pine Street LLC; Joe Kolmer and Myer Harrell, Weber Thomas; and Ian Morrison, attorney, McCullough Hill Leary. Mr. Gifford expressed the applicant's concerns and objections to the annotated findings and conclusions and the associated materials provided to the City, Council and Mayor Earling for the Council's review and decision in the pending matter by special counsel Carol Morris. The applicant did not receive a complete copy of the materials submitted to the City by Ms. Morris last week when they were provided to the Council; they received a partial set of materials, the annotated findings and conclusions. They requested a complete package of materials to be Edmonds City Council Approved Minutes November 12, 2013 Page 3 provided. Mr. Lien posted a link to the materials and they were able to access electronic copies of the balance of the materials. They received the full packet of materials by mail today. It appears to be no harm, no foul, but they were disappointed the materials were submitted to the Council with no opportunity for review, comment, consideration by the parties as had been agreed. They were disappointed the materials were not complete and that a more expedited means was not used to provide the applicant a complete set of materials until the day of the hearing. Mr. Gifford advised what the Council received is a second set of materials. The idea of an outline/index of the appeal arguments originated with Ms. Morris at the last hearing. At the end of the discussions, she offered to prepare an index or worksheet. He referred to the bottom of page 20 and top of page 21 of the final approved minutes of the October 15, 2013 hearing, where Ms. Morris addresses this issue. At that time Mr. Tanaka asked for opportunity to see and comment on whatever Ms. Morris prepared for submittal to the Council and she agreed. They also felt that was appropriate and necessary under the circumstances. They did not expect a substantial document; they anticipated a bulleted skeletal summary, a quick roadmap for the Council to follow. What they original received from Ms. Morris on October 28 was a 27 page outline. Ms. Morris interrupted and asked that objections be in regard to materials that were provided to the Council and that Mayor Earling rule that the discussion about materials that were not provided to the Council was irrelevant to avoid wasting time discussing materials that the Council never saw. Mayor Earling requested Mr. Gifford's objections refer to the final product the Council received. Mr. Gifford advised a tremendous amount of time, several days, was devoted to responding to the materials during which they conveyed their objections and asked that the materials be withdrawn. Ms. Morris requested Mr. Gifford cease talking about materials that were not provided to the Council. Mr. Gifford relayed his objection to the materials was the tremendous amount of time and cost that was wasted reviewing materials that were abruptly withdrawn when Mr. Tanaka expressed concern last Wednesday. Those materials were replaced by the current materials which have many of the same problems. The materials identify issues never specifically identified by the appellants. They attribute to the appellants specification of findings and conclusions and criteria that the appellants themselves did not apply to their arguments. The materials are a modified, less cumbersome version of the first attempt but are still a modified version of the arguments that were presented. They have no problem with the arguments and have responded as required; however, they have now been altered in sequence and attributions in ways they do not believe accurately reflect the arguments that were presented. Mr. Gifford objected to the fact that these are extra record materials that do not correspond to the arguments presented in the materials, to the delays and incomplete delivery of the materials and to the time and cost expended to respond to materials that were summarily withdrawn. He requested the Council discard and ignore the materials because they are improper, extra record materials that cannot in any manner materially affect the Council's review or consideration of the materials. Although the Council may believe they can ignore the materials, he did not feel it was worth the effort. Thomas Waggener, representing Waggener et al. appellants, introduced co -appellant Christy Cufley. He shared many of the concerns Mr. Gifford raised about the cumbersome process, delays, inaccuracies, etc. He questioned the Council's attorney's responsibility in drafting a document that they were asked to rewrite or add to at the last minute with little notice. He disagreed the documents provided were an index. They were assured the request was an index to the appeal items based on the record; the document provided is a strange mixture of selected quotations or items drawn from the record that are not documented as to source or location, blanks to be filled in by various parties including the applicants and appellants. He assumed an index would be a pointer to direct the reader to relevant information. He recalled Mr. Lien's indication this document would not be a summary; not a Readers Digest edition of the Edmonds City Council Approved Minutes November 12, 2013 Page 4 record but a guide to the appeal issues. He used the analogy of looking for a cookie recipe in a cookbook, looking in the index for page number; it doesn't list the pros and cons of the cookie's contents. The materials are a de facto, incomplete, undocumented extract from various pieces of the record, without any guidance to whether they are complete or their original source. He also objected to the very curious process of documenting the appeals, not from the appeals, but a fabricated listing of final facts, conclusions and decision. In their view, it was a wholly erroneous document, not backed up by the record, a misleading listing of wishful thinking of what perhaps someone thought they would like the ADB to have done and what they should have said. From the approximately 800 pages of input to the ADB, what they actually did in contained in a scant 21/2 pages. Ms. Morris interjected that Mr. Waggener was again speaking about the original index that was never presented to the Council. She explained emails were sent to everyone instructing them that that index was abandoned. Mr. Waggener pointed out the final document reflects the findings of fact document; it does not reflect the items enumerated by the appellants as the basis of their appeals which was what they were led to believe the purpose of this exercise to be. He was concerned with the backward process of going to a finding and then trying to find a relevant citation. Their appeal was a one page summary, two page cover letter, five page appeal and five page written argument. It should have been possible to review that information and determine the four substantive appeal issues. Mr. Waggener concluded in representing 42 appellants, over 100 concerned citizens in the community and over 700 petitioners, they expected the input from those citizens to be the basis of the Council's decision, not the wishful thinking of third parties. Ms. Morris explained over 22 issues were presented in the 4 appeals. She asked the Council at the October 15, 2013 hearing whether they wanted her to index those issues for their convenience. She worked on a document that the appellants objected to and at one point decided to abandon work on that index. She instead provided the Council a copy of the ADB's decision, writing in the margin who appealed what issues to allow the Council to easily reference the documents in the record. She color coded the appellants and copied their appeals and the applicant's responses to those appeals in the attachments. She did not summarize anything or prepare a listing of appeal issues. With regard to the objections voiced, Ms. Morris pointed out no one has stated there were any errors; Mr. Gifford said he did not receive the document in paper form until today but he did receive an electronic copy last week. She relayed Mr. Gifford's comment that there was no harm, no foul and that he was disappointed. She recommended the objections be overruled and the Council continue with the hearing. Mayor Earling overruled the objections. He explained the Council's jurisdiction in the closed record hearing is to determine whether the ADB's decision is clearly erroneous given the evidence in the record. The City Council shall affirm, modify or reverse the decision of the ADB accordingly. He advised all oral argument has concluded. The Council may ask clarifying questions on disputed issues to appellants, parties of record or applicants with an opportunity for rebuttal by staff and remaining parties. The City Council shall not request information outside the administrative record. Council President Petso commented sometimes in court cases when there is a major, reversible error, the court will rule on that major reversible error and then say the rest is unnecessary because that is dispositive. If the Council were to find that the standards of the zoning ordinance are not met, she asked whether the Council could end at that point without reviewing all the appeal issues. Ms. Morris answered yes, the Council could if they chose. She recommended the Council consider more than one issue because if there is an appeal and the court finds the Council was wrong on that one issue, it could be sent back to the Council. She summarized the process could be shortened by the Council addressing as many issues as possible. Edmonds City Council Approved Minutes November 12, 2013 Page 5 Council President Petso relayed the zoning ordinance indicates there is a minimum of 2,400 square feet needed per dwelling unit. The square footage of this parcel is a little over 90,000 square feet which divided by 2,400 is a maximum of 38 dwelling units permitted on this parcel under the zoning ordinance. The proposal is for significantly more units. She concluded the proposed number of units could not be approved if the zoning ordinance allowed only 38. She noted there are also issues with regard to parking, lights and how the City measures height. Those issues seem irrelevant if the zoning code allows only 38 units. Councilmember Bloom asked for a reference in the zoning code. Council President Petso referred to the right hand column of the table on page 126 of the Bates Stamped record (minimum area per dwelling units — 2,400). The size of the parcel where Building 10 is located according to page 4 is 91,688; a slightly different size is indicated elsewhere in the record. Using either, the maximum number of units is 38. Councilmember Buckshnis suggested the Council identify the major items. She asked whether the Council should vote on each issue. Ms. Morris answered it was up to the Council. Councilmember Buckshnis referred to C.8.c, retain a connection with the scale and character of the City of Edmonds through the use of similar materials, proportions, forms, masses or building elements, commenting that was clearly not the case in Building 10 due to the bulk and height and it is totally out of scale with the rest of the complex. Councilmember Peterson referred to Council President Petso's reference to the minimum area per dwelling units and asked whether that was an appeal issue. Council President Petso advised in the Gifford [sic] appeal there was considerable discussion regarding the concentration/density of units on this parcel. The applicant's response was it shouldn't be measured in terms of the concentration of units but rather developable area. Councilmember Peterson asked whether it was referenced in the ADB Findings, Conclusions and Decision. Council President Petso referred to Item 10 on page 24, the ADB finds the proposed development is consistent with bulk standards, use requirements, parking and other applicable regulations of the zoning ordinance. Councilmember Peterson asked if that was a point on appeal on which the Council could rule. Ms. Morris answered the question that has been raised is whether the minimum square feet per dwelling unit, whether the zoning code has been satisfied, and whether that fits into bulk standards, use requirements, parking and other applicable regulations of the zoning ordinance. Council President Petso referred to Item d on page 2 of the Waggener appeal letter that challenges Conclusions 5, 6, 8, 9, 10 and 12. Councilmember Johnson asked whether staff would like to respond. Mr. Tanaka objected to a response from staff, stating it would open up testimony and opinion after the record has been closed. In his opinion the Council can ask staff where an item is located in the record but not opinions. Councilmember Johnson referred to Council President Petso's reference on page 126 to the minimum lot area per dwelling unit based on the MP1 zone. She asked whether that is for the entire MP zone or the Building 10 parcel. Mr. Tanaka raised the same objection. He suggested an appropriate question may be to ask staff whether there was any place in the record where the zoning of this property is discussed in relation to the density. Mr. Taraday advised this raises a bit a conundrum; from his vantage point of defending the decision on behalf of the ADB, if the Council sustains the objection raised by Mr. Tanaka, it is impossible to answer the question if it was not discussed when the hearing was open. Ms. Morris suggested Councilmember Johnson reframe her question so that staff could indicate whether there was any evidence in the record related to the issue Council President Petso has raised. Edmonds City Council Approved Minutes November 12, 2013 Page 6 Councilmember Johnson asked whether there was any reference in the record to address the issue raised by Council President Petso. Mr. Lien referred to page 4 of the record, under Substantive and Zoning, a paragraph that describes the zoning of the subject property. The site is zoned MP1 pursuant to a contract rezone as described in Ordinance No. 3411. Among the conditions of the contract rezone is the project must comply with the restrictions of the Point Edwards Master Plan and subject to and consistent with the zoning and the provisions of the Site Master Plan for Point Edwards as presented to the City Council. He referred to paragraph 11 on the same page that also address the site description for the site — the subject site is part of the Point Edwards Master Plan and contract rezone which originally included ten multifamily structures. He referred to the Point Edwards Master Plan (page 290), the paragraph under Multi -Family Residential, that describes the MP1 zone, the upper yard. He quoted from the text, At a permitted density of 2,400 square feet per dwelling unit, the maximum number of dwelling units that would be allowed on this 24.06-acre site would be 419. He noted the 24.06 acres is the entire MP1 zone. The Master Plan envisioned residential density of 419. The ADB has approved 350 units and the current application for 85 units would be a total of 346 [sic] total units, consistent with the ADB approval, zoning and Master Plan. Council President Petso commented 419 is the maximum but language on page 238 indicates it is not a realistic maximum, the maximum for the entire site would be 419; however, after setting aside land for roads and open space, accounting for site limitations related to steep slopes, density at build -out will be lower than the maximum permitted density. She also found this a clear error because the zoning ordinance does not say the entire site, it states per lot. Councilmember Yamamoto asked whether the ADB's conclusions are consistent with the City code, zoning, Comprehensive Plan, and Point Edwards Master Plan. Ms. Morris answered if Councilmember Yamamoto's question was whether the ADB's decision met those criteria, that was for the Council to decide. Councilmember Yamamoto stated the ADB's decision was consistent with the Master Plan, the Comprehensive Plan and the City's code. Ms. Morris explained the process tonight was to review the appeal issues to determine whether the ADB's decision was clearly erroneous with regard to the appeal issues. Mayor Earling suggested the Council review each page of the annotated ADB Findings, Conclusions and Decision to identify issues. Councilmember Bloom referred to the issue raised by Council President Petso, commenting the ECDC states the minimum lot area per dwelling unit is 2,400 square feet which this project does not reflect. She questioned how the Council could address other issues until that was clarified. Based on his experience serving on the Growth Management Hearings Board, Mayor Earling suggested along with the issue Council President Petso has identified, the Council raise other issues of concern to be included in the Council's Findings of Fact. Councilmembers referred to the annotated ADB Findings, Conclusions and Decision dated August 7, 2013 (page 0001 of the Bates Stamped record) and identified the following: Pie 4 Council President Petso referred to the following: • Item 13 regarding building height, the code allows the roof to extend 5 feet; the documents in the record indicate there is 9 inches in the top 5 feet that are living space not roof which did not seem entirely code compliant. • The Gregory Building was used as a reference for how height was calculated; she did not find this relevant to this parcel. Edmonds City Council Approved Minutes November 12, 2013 Page 7 On page 292, the Master Plan states building heights would be calculated separately for each separation portion of a building which does not appear to have been done. Whether the roof design is sufficiently modulated to justify an extra five feet was to be decided by the ADB. She could not find any discussion by the ADB related to that issue. Rather than showing the height calculation, Condition 4 on page 25 states height calculations are required with the building permit application in order to demonstrate that the project complies with the height requirements of the MP1 zone. She recalled that issue arose in a recent appeal where the threshold decision was not made by the decision -maker; this appears to be a repeat of that decision. She preferred to determine whether the project complied with the MP1 zone tonight, not defer that decision to a later date. Ms. Morris referred to Item 13 on page 4 that states the height is 40 feet above the average grade. Council President Petso asked the purpose of Condition 4. Ms. Morris answered she was uncertain; the project must comply with the height limitation in the Findings, Conclusions and Decision. Councilmember Buckshnis referred to Item 12 regarding parking. The total proposed parking is 144 but the ordinance does not state whether it should be all covered parking like the original plans. The proposal is for some structured parking and some surface parking. The original plan, 3 stories with parking undercover, has transformed to 4-5 stories with parking inside and outside. Condition 1 states on -street parking is required to be added at the location of the existing north driveway approach which is no longer being used by Building 10. Pie 5 Council President Petso referred to Item 22, recalling Ms. Morris stated the December 19, 2012 process was irrelevant to this discussion. The appellants state that decision prohibited discussion of certain items in May. To the extent that is true, there is an error in the process. Pages 6, 7, 8 and 9 No issues raised Pie 10 Council President Petso advised she had an issue but was not ready to address it. [Note: Council President Petso declined to identify an issue on this page later in the meeting.] Pie 1 I Council President Petso referred to C.8.a, stating the massiveness of the building was an issue appealed by everyone. She found evidence in the record that even the ADB found the building to be massive. Councilmember Buckshnis concurred with Council President Petso, stating the building was long and massive, and there was plenty of support in the record for that. Pie 12 Councilmember Buckshnis referred to C.8.c, stating the building is not consistent with the downtown area or the bowl area. It is a large 4-5 story massive building with parking outside that is out of character with the surrounding homes and the surrounding area. Councilmember Fraley-Monillas agreed with Councilmember Buckshnis. Council President Petso said somewhere in the record there is an indication that the initial buildings on the site had attempted to modulate the buildings in a style that mimics a residential area or house, 2-3 stories and modulation in house -size chunks. Edmonds City Council Approved Minutes November 12, 2013 Page 8 Pie 13 Council President Petso referred to C.10.b which states the proposal should minimize the potential for light to reflect or spill offsite. That was done in the initial buildings by use of lower reflective material and different, lower lights that are not the full height industrial standard lights. If a proposal deliberately does not minimize the light spill of the site via use of lower lights, it does not meet the criteria of minimizing. Councilmember Bloom noted lighting is also related to outdoor surface parking which will require 24- hour lighting. Councilmember Buckshnis commented on the cobra lights and the similarity of the 74-space surface parking to a grocery store parking lot. That was not the original intent which included underground parking. Pie 14 Council President Petso referred to C.13.c, buffering incompatible uses, and said extending the parking lot nearly to the property line leaves little opportunity for buffering. Councilmember Fraley-Monillas asked whether buffering was incompatible. Council President Petso responded single family use may not be considered incompatible with multi -family, but it is a separate and distinct use. If the requirement is to buffer different uses, there is little space to provide a buffer. That same issue is true on two items on page 15. Pie 15 Council President Petso referred to C.13.d, integrate buildings into their site by stepping the building along steep slopes, and said the proposal has come up short on that item. Councilmember Bloom echoed Council President Petso's comment. Councilmember Buckshnis commented the surface parking lot is also a major detraction. Pie 16 No issues raised Pie 17 Council President Petso referred to D. Lb, maintain the smaller scale and character of historic Edmonds, stating the building sizes in the bowl area have been limited; this building would be a departure from that. Councilmember Peterson responded Point Edwards has never been referred to as part of the bowl area. He agreed with limiting building size in the bowl but did not agree with equating a building at Point Edwards with buildings at 5th & Main. Councilmember Buckshnis referred to D. Lb, commenting the original 3-story, underground parking mimicked other Point Edwards buildings. The mass and bulk of the proposed building does not mimic the look of Point Edwards. There is nothing of this size on the waterfront, only on Highway 99 and SR104. Council President Petso referred to D. La, preserve views to mountains and Puget Sound to the west, and said depending on property orientation, views are to the north. She asked whether the Council was limited by that language to considering only views to the west. Ms. Morris answered that was a difficult criterion to enforce without a reference point from which the view needs to be preserved. At some point the view preserved may be a private view; cities do not spend public funds to preserve private views. Mr. Tanaka objected, stating this is a criterion in the code that is presumed valid until proven otherwise. For an attorney representing the Council to suggest it is somehow not enforceable did not fit with his Edmonds City Council Approved Minutes November 12, 2013 Page 9 understanding of her responsibilities. Ms. Morris explained her role was to provide the Council her legal opinion and that was her legal opinion. Council President Petso asked whose views the City was entitled to protect because in this case it may not be a resident of Edmonds whose view was protected. Ms. Morris reiterated this criterion was very difficult to enforce because of the question of whose view was being protected, private views were being protected, and whether public funds were being used to protect private views. Councilmember Buckshnis found the applicant had not satisfied this criterion because they had not indicated how it would be met. The finding ignores how the building is oriented and what views will be protected or not protected. Ms. Morris explained the Council's role tonight was to determine whether the ADB's decision in part or in totality was clearly erroneous. Councilmember Buckshnis retracted her comment. Pie 18 Council President Petso referred to D.2.a. and D.2.b which refer to bulk issues that have been previously addressed. Pie 19 Council President Petso referred to D.3.b that relates to bulk issues. Pie 20 Council President Petso referred to D.4.b related to bulk. She referred to DA.e, to become compatible with the surrounding built environment, stating this criteria references wall modulation but the other Point Edwards buildings created house -sized portions via wall modulation. Councilmember Buckshnis referred to mass and bulk, pointing out the largest Point Edwards building has only 41 units. The proposed building does not mimic the existing Point Edwards development. Page 21 & 22 No issues raised Pie 23 Council President Petso referred to Items 5, 6 and 8 that reference bulk, height and non-compliance with the zoning requirements. Pie 24 Council President Petso identified the parking issue, Conclusion 10 which was addressed early in the discussion, and Condition 12 in which the ADB found the proposal conforms to the Site Master Plan; she did not believe it did. Councilmember Buckshnis identified Conclusions 9, 10 and 12. Pie 25 No issues raised Council President Petso explained the Master Plan states fit the development into the hillside; she agreed with staff that the proposal was not harmonious with the topography. The Master Plan also states height will be calculated separately for each portion; she did not find that was done. Mayor Earling declared a 10 minute recess. Edmonds City Council Approved Minutes November 12, 2013 Page 10 Ms. Morris identified the following issues related to Findings of Fact and invited the Council to provide additional information and/or references to the record: Minimum square footage per dwelling units and Council President Petso's conclusion that 38 units was the maximum allowed on this site Councilmember Peterson disagreed with Council President Petso's conclusion. He recalled a reference to the record that that did not pertain to individual buildings but a broader calculation. Council President Petso referred to page 238 and the language in the zoning ordinance which states lot, not site. Councilmember Bloom agreed with Council President Petso that the record states a minimum of 2,400 square feet as the minimum allowed in the MP zone. Councilmember Buckshnis referred to page 290 that states after setting aside land for roads, open space, etc., the maximum density would be lower. Councilmember Fraley-Monillas asked whether Councilmember Buckshnis believed the language was vague. Councilmember Buckshnis agreed the language was very vague. Ms. Morris referred to Section 20.11.020.B regarding the ADB's findings on zoning ordinance matters which states the finding of the staff that a proposal meets the bulk and use requirements of the zoning ordinance shall be given substantial deference and may be overcome only by clear and convincing evidence. She asked Councilmember Buckshnis if her conclusion was that was not clear. Councilmember Buckshnis answered it was not clear or convincing. Council President Petso said it was very clear that the finding was incorrect and the zoning code specifically states lot not entire site. Councilmember Peterson asked whether the Council had to give deference to the ADB's decision if the record is vague. He used the analogy of tie goes to the runner. Ms. Morris answered the Council is reviewing the appeal issue to determine whether the ADB is clearly erroneous given the record. The clear and convincing evidence standard is in regard to the ADB's standard when they consider the Planning Director's decision on the zoning ordinance. Councilmembers are indicating that standard was not met because the issue is unclear. Councilmember Johnson disagreed with the reference to minimum lot area per dwelling unit in the MP1, stating that was for the entire zone, not for a specific lot. Ms. Morris suggested the Council vote on each issue. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL DETERMINE THAT THE CONCLUSION REGARDING DENSITY DEMONSTRATES CLEAR ERROR BECAUSE THE ZONING CODE SPECIFIES LOT, NOT SITE. UPON ROLL CALL, MOTION CARRIED (4-3), COUNCILMEMBERS BLOOM, BUCKSHNIS AND FRALEY-MONILLAS AND COUNCIL PRESIDENT PETSO VOTING YES; COUNCILMEMBERS JOHNSON, YAMAMOTO AND PETERSON VOTING NO. Building Height Ms. Morris referred to Section 20.11.020, general design review, explaining the ADB is supposed to make findings on the criteria and Comprehensive Plan. The criterion in building design does not list any zoning code standards. She clarified the distinction she was making was whether the Council can overturn the ADB's decision whether the building meets the height limit in the zoning ordinance if the building Edmonds City Council Approved Minutes November 12, 2013 Page 11 actually meets the zoning code standards. She understood the Council had issues related to bulk and mass but with regard to height, the height of a structure is not a design standard. Council President Petso relayed her understanding that the proposal must meet the zoning code and the Master Plan, both of which specify building height and the Master Plan speaks to the method used to calculate height. Ms. Morris clarified she was trying to distinguish whether the application met the zoning code standards for height. Based on the facts in the record, she had not heard anyone say the building does not meet the zoning code standard for height. Councilmember Buckshnis commented because the roof modulation has not been provided, it is unknown whether the modulation was done correctly to allow the 5-foot incentive. Ms. Morris clarified the issue was the modulation standard in the Comprehensive Plan, not the zoning code standard for height. She advised height is not a criteria, it is a zoning standard. The ADB looks at building design, there are a number of things under building design but it does not include zoning code standards. She summarized the building may meet the height requirement but there is an issue with height modulation. Council President Petso said from her review of the record, there has been no determination that the building is sufficiently modulated to obtain the additional 5-feet in height, the 5-feet in additional height is not used entirely for roof like it should be, there is a question whether the Gregory building provides the correct method of calculating height, and there is a question whether the separate building method was used to calculate height as required by the Master Plan. She was also concerned that height had not been demonstrated but rather was conditioned in Condition 4 of the ADB's approval. Mr. Tanaka referred to the last sentence in Conclusion 8b on page 23 where the ADB concluded the building is compliant with the maximum height. He questioned why that statement was included in the ADB's conclusions if that was not within their authority. Ms. Morris clarified she did not say it was not within the ADB's authority. She stated according to the code staff s finding that a proposal meets the bulk and use requirements of the zoning ordinance must be given substantial deference and may be overcome only by clear and convincing evidence. The ADB made a finding that the building complies with the code which is a zoning standard. Mr. Tanaka asked if the majority of the Council finds clear and convincing evidence that the ADB was clearly erroneous, could they make a finding that the ADB was clearly erroneous with regard to the last sentence in Conclusion 8b on page 23. Ms. Morris answered yes, if there is evidence to support that it is clearly erroneous. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL DETERMINE THAT THE ARCHITECTURAL DESIGN BOARD'S FINDINGS REGARDING HEIGHT ARE CLEARLY ERRONEOUS. Councilmember Peterson said he will vote against the motion. The record shows the height of 40 feet was met via modulation as allowed by code. Councilmember Buckshnis referred to drawings on pages 467, 468, 469, 070 and 071 that show the modulation of the roof does not meet the 5-foot incentive standard. UPON ROLL CALL, MOTION CARRIED (4-3), COUNCILMEMBERS BUCKSHNIS, FRALEY- MONILLAS AND BLOOM AND COUNCIL PRESIDENT PETSO VOTING YES; COUNCILMEMBERS PETERSON, JOHNSON AND YAMAMOTO VOTING NO. Whether parking complies with code, covered and uncovered Councilmember Buckshnis referred to the initial drawings on page 466 that showed underground parking, now the parking has changed to half underground and half in a parking lot. The code does not state whether covered or uncovered parking is required and therefore it has not been addressed. Edmonds City Council Approved Minutes November 12, 2013 Page 12 Councilmember Peterson commented if the original drawings showed all the parking underground and ten spaces above ground, it could be denied on that basis. The code does not state parking needs to be underground or surface. They meet the code requirements for parking; whether it is esthetic or not is not the Council's job to determine. He concluded the parking standards have been met, regardless of whether he like the way they looked. Council President Petso disagreed with Councilmember Peterson, pointing out on page 200 the original proposal indicated the parking is proposed to be provided in garages, guest and overflow parking will be on the street. She concluded the original proposal and likely most of the existing building on the site use primarily under -building parking for residents. To the extent the guidelines require consistency with existing development or screened parking, it would be correct to require it for this project. Councilmember Buckshnis referred to Condition 1 that states on -street parking is required to be added at the location of the existing northern driveway approach which is no longer being used by Building 10. Councilmember Bloom referred to page 200 and the statement that most of the required parking is proposed to be provided in parking garages. She recalled somewhere in the materials that staff used the parking requirements in the general code because there were no specific parking requirements for the site other than the statement that most of the required parking is proposed to be provided in parking garages. Referencing other code is inconsistent with Point Edwards. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL FIND THE PARKING IS NOT COMPLIANT WITH THE ORIGINAL MASTER PLAN, THE EXISTING BUILDINGS ON SITE OR THE NEED TO BUFFER NEARBY RESIDENCES. Councilmember Johnson asked for references. Council President Petso referred to page 200 where it states the original intent of the project is to provide most of the required parking in parking garages. The design guidelines address the need to buffer the existing residential neighborhood; constructing the parking lot nearly to the property line reduces the opportunity to provide a buffer. Councilmember Buckshnis referred to page 178 where it states 70 parking spaces will be in a garage and 74 spaces will be in a surface lot. Ms. Morris advised these were zoning code requirements. She referred to C.14.c on page 15 of the ADB's decision, reduces harsh visual impact of parking lots and cars, and suggested Council President Petso rephrase the motion to state it is clearly erroneous. Council President Petso restated the motion as follows: THAT THE COUNCIL FIND C.14.c IS CLEARLY ERRONEOUS. UPON ROLL CALL, MOTION CARRIED (5-2), COUNCIL PRESIDENT PETSO AND COUNCILMEMBERS FRALEY-MONILLAS, BUCKSHNIS, BLOOM, AND JOHNSON VOTING YES; COUNCILMEMBERS YAMAMOTO AND PETERSON VOTING NO. Process used by the ADB in its decision making Ms. Morris recommended this not be included and the Council instead focus on the application of the ADB criteria to this application. Whether the building is massive (page 11) Ms. Morris relayed what she heard Councilmembers say was the building is not consistent with downtown Edmonds or the surrounding area, it is not consistent with the smaller scale and character of Edmonds, it does not mimic the remainder of Point Edwards, and mass and bulk are in excess of existing Edmonds City Council Approved Minutes November 12, 2013 Page 13 development at Point Edwards. There was also a question raised regarding whether Point Edwards was part of the bowl. Council President Petso referred to 4.a.D.2, reduce bulk and massive buildings, advising there were other references in the materials that she was unable to locate at this time. Councilmember Johnson commented a key issue that has not been discussed is the point -of -view. There is a different perspective looking downhill than looking uphill. Building 10 is the only building uphill and needs to be looked at from all perspective of Point Edwards. Councilmember Peterson reiterated none of Buildings 1-9 would fit the scale of downtown Edmonds such as at 5th & Main. While he agreed Building 10 was a big building compared to downtown Edmonds, using that comparison Building 1 was a massive building. He suggested perspective of the building mass needed to be understood; comparing it to the rest of Point Edwards, not downtown Edmonds or adjacent residential areas that are outside Edmonds. Ms. Morris asked how it compared to other Point Edwards buildings. Councilmember Peterson acknowledged it was a much bigger building but that the size had been taken into account somewhat via architectural design. He did not find anything in the code that said this building had to be the same size as the other Point Edwards buildings. Councilmember Fraley-Monillas felt the bulk and mass of Building 10 was far different than the bulk and mass of the other buildings in Point Edwards and comparing it with the other Point Edwards buildings, it appears to be very massive. Councilmember Buckshnis referred to pages 468 and 469 that illustrate a long, massive, unbroken, monotonous building that is out of character with the waterfront area and Point Edwards. Ms. Morris clarified those pages were attachments in a letter from Rick Gifford to Kernen Lien dated October 4, 2013. Councilmember Bloom quoted from the May 9 staff, The overall scale of the building is out of character with the Point Edwards development and is not harmonious with the site's topography. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL FINDS CLEAR ERROR IN THE DETERMINATION BY THE ADB THAT THE BUILDING IS NOT EXCESSIVE MASSIVE WITH PARTICULAR REFERENCE TO 4.a.C.8 AND 4.a.D.2. Council President Petso clarified the intent of the motion was not to limit the finding to only those two standards. MOTION CARRIED (4-2-1), COUNCILMEMBERS YAMAMOTO AND PETERSON VOTING NO; COUNCILMEMBER JOHNSON ABSTAINING. Light Ms. Morris relayed issues were raised with regard to light, lighting of the parking lot and whether the application met the requirements related to lighting. She suggested the Council review C.10.b. Councilmember Bloom relayed the 74 surface parking spaces create a necessity for 24-hour lighting which will result in a great deal of reflection and spill off -site. Council President Petso expressed concern with the type of lights used; the requirement is to minimize the potential for light to reflect or spill off -site. Given there is already lower impact lighting in that area, it is clearly not minimized if that form of lighting is not used. Edmonds City Council Approved Minutes November 12, 2013 Page 14 COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL FIND THE ARCHITECTURAL DESIGN BOARD'S DECISION TO BE CLEARLY ERRONEOUS IN THEIR APPROVAL OF THE LIGHTING FOR THE REASONS JUST STATED. Councilmember Peterson did not support the motion as he found the ADB did take into account landscaping and ways to minimize illumination spill off -site. With regard to the reference to 24-hour light, he pointed out it is not dark 24 hours a day and lights will only be on at night. He found the ADB had made efforts to minimize illumination while taking public safety and pedestrian and vehicle safety into account. Councilmember Johnson requested a reference to the lighting plan in the application. Mr. Lien referred to the lighting plan on page 186. Councilmember Yamamoto pointed out it is difficult to surmise the brightness and amount of lighting from the drawing. He agreed a certain amount of lighting was necessary for safety. The applicant has done lighting elsewhere and he assumed the intent was not supermarket lighting. Councilmember Buckshnis referred to C.10.b and C.10.c that reference lighting requirements. She recalled reference to a cobra head light fixture which provides extra illumination. MOTION CARRIED (4-2-1), COUNCILMEMBERS PETERSON AND YAMAMOTO VOTING NO; COUNCILMEMBER JOHNSON ABSTAINING. Landscaping Ms. Morris relayed she heard the Council say landscaping was not adequate to buffer incompatible uses. She referenced page 14 of the ADB's decision. Council President Petso referred to 4.a.C.13.c, buffer incompatible uses, 4.a.C.14.b, maintain privacy of single family residential areas, and 4.a.C.14.c, reduce harsh visual impact of parking lots and cars. Ms. Morris asked why the ADB's decision was clearly erroneous with regard to those standards. Council President Petso responded permitting the parking lot to extend virtually to a rockery near the property line minimizes the opportunity to provide any buffering. Councilmember Buckshnis referred to the condition regarding off-street parking, questioning how that would be accomplished when there is a massive parking lot. Councilmember Johnson referred to the statement on page 15 that landscaping is provided along the southern property line to buffer the development from the single family property to the south of the site which seems to contradict the comments that have been made. Council President Petso recalled a schematic showing the parking lot extends virtually to the property line on the south side, the side adjacent to single family residential. Mr. Lien referred to the landscape plan on page 171. Councilmember Peterson did not find any erroneous finding by the ADB especially related to buffering incompatible uses. As the ADB points out, Building 10 is located within the Point Edwards development, a multi -family development that abuts other areas of multi -family. Landscaping has been provided to minimize impacts. He particularly did not find C.13.c erroneous. Edmonds City Council Approved Minutes November 12, 2013 Page 15 Councilmember Fraley-Monillas referred to I Lc on page 24 of the ADB's Finding, Conclusions and Decision. Council President Petso recalled a photograph, a schematic or artist rendering of the view of the parking lot from the southwest corner that illustrated a fairly exposed parking lot due to the lack of space available for buffering. Councilmember Bloom suggested what Council President Petso was referring to was on page 170 and 171 which illustrates no buffer at all on the west and a narrow rockery. Page 171 illustrates substantial landscaping on the north side but little on the south side adjacent to Woodway. Councilmember Buckshnis referred to an aerial photograph on page 148 the illustrates the size and bulk of the other Point Edwards building and the meandering road compared to Building 10, the parking lot and small areas of landscaping. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL FIND THE ARCHITECTURAL DESIGN BOARD WAS CLEARLY ERRONEOUS IN DETERMINING THAT THIS PROPOSAL MET THE LANDSCAPING CRITERIA. MOTION CARRIED (5-2), COUNCILMEMBERS YAMAMOTO AND PETERSON VOTING NO. Stepping the building into the steep slope (C.13.b on page 15) Council President Petso recalled this was also relevant to compliance with the Master Plan. Councilmember Buckshnis referred to pages 148 and 149 and issues related to bulk and mass, noting the building was not stepped or integrated into the steep slope. Councilmember Yamamoto referred to page 160 that illustrates how the building is integrated into the slope. Council President Petso referred to a reference Councilmember Bloom provided related to the height that the building was not harmonious with the topography. Councilmember Peterson commented whether or not he appreciated the overall design, within the guidelines the ADB was working with, the building is stepped into the hillside. Whether he liked the look of the building was irrelevant because the Council's role was to determine whether the ADB made a proper conclusion using the codes and guidelines and it was his belief they had. Councilmember Bloom commented the Master Plan states the building will be designed to fit into the terraced hilltop and hillside. She did not have anything specific; it just did not look as if it were stepped into the hillside. None of the drawings illustrate that it is stepped into the hillside. Council President Petso commented excerpts from the Downtown Waterfront Plan outline what is not desired for this site; a graphic showing one building extending above is labeled as not acceptable. Councilmember Bloom commented the parking lot on the south end of the building that is between the building and the hillside prevents the building being stepped into the hillside. Councilmember Peterson pointed out the front of the building is four stories and the back or hillside side of the building has two visible stories; by definition the bottom stories have been worked into the hillside. Whether he liked the design was irrelevant, it was built into the hillside. He acknowledged it would have been more to his liking if it had been built into the hillside more but his role tonight was not to inform the applicant what he would like to see. Edmonds City Council Approved Minutes November 12, 2013 Page 16 COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, THAT THE COUNCIL FIND THE DETERMINATION BY THE ADB TO BE CLEARLY ERRONEOUS WITH REGARD TO THE REQUIREMENTS THAT THE BUILDING BE STEPPED INTO THE HILLSIDE AND HARMONIOUS WITH THE TOPOGRAPHY. Councilmember Johnson concurred with Councilmember Peterson that it depends on one's perspective, whether looking uphill or downhill. If one level is two stories and other four stories, it would seem it has been integrated into the hillside. She recognized the design was not to everyone's liking but it clearly met this requirement. UPON ROLL CALL, MOTION CARRIED 4-3, COUNCILMEMBERS BUCKSHNIS, FRALEY- MONILLAS AND BLOOM AND COUNCIL PRESIDENT PETSO VOTING YES; COUNCILMEMBERS PETERSON, JOHNSON AND YAMAMOTO VOTING NO. Mayor Earling advised Ms. Morris will draft Findings of Fact for the Council's consideration and discussion at a future meeting. Mr. Tanaka asked whether a motion would be made with regard to the appeals. Mayor Earling answered that could be done tonight or when the Council considers the Findings of Fact. Ms. Morris agreed. COUNCIL PRESIDENT PETSO MOVED, SECONDED BY COUNCILMEMBER BLOOM, TO REVERSE THE DECISION OF THE ADB. Councilmember Buckshnis asked whether the Council would revote after reviewing the draft Findings of Fact. Ms. Morris answered yes, she will draft findings based on the Council's input tonight, the record and the citations the Council provided and the ones she finds to support the Council's decision. Once the Council reviewed the findings, it could even reverse its decision. Councilmember Peterson did not support the motion. He explained the Council is sitting as a quasi- judicial body, not a legislative body making design decisions that are good for the community or changing height limits or building massing. The Council is required to interpret the law as written. He believed the ADB fulfilled their duty although he did not especially like the design and size of Building 10 or even some of the existing buildings. A quasi-judicial process is not a time to pick and choose laws the Council likes or doesn't like. He was uncomfortable being in a quasi judicial, a role the Council has chosen to be in, and preferred it be handled by a professional. He believed the ADB meticulously reviewed and applied relevant city code and design guidelines. He looked forward to the Council making changes to the code during code rewrite but said that cannot be done retroactively. Councilmember Johnson explained the Council is not in its usual legislative role tonight. She preferred to see the findings Ms. Morris prepared before taking a final vote. Councilmember Buckshnis spoke in favor of Title 20 which allows citizens to speak before the Council. Although the Council is usually in a legislative role, they can also act in a quasi-judicial role. She felt it was important for citizens to know they could come to the Council. The Council provides checks and balances to the ADB volunteers who are appointed by the Mayor and make very important decisions. Councilmember Fraley-Monillas believed the ADB made some mistakes. The Council takes this role very seriously and has spent hours reviewing the materials. UPON ROLL CALL, MOTION CARRIED (4-3), COUNCIL PRESIDENT PETSO AND COUNCILMEMBERS FRALEY-MONILLAS, BUCKSHNIS, AND BLOOM VOTING YES; COUNCILMEMBERS YAMAMOTO, PETERSON AND JOHNSON VOTING NO. Edmonds City Council Approved Minutes November 12, 2013 Page 17 Council President Petso asked whether that restriction on Councilmembers talking to proponents or opponents remained until the Findings of Fact were adopted. Ms. Morris answered that restriction remains until 21 days after the Findings of Fact and Conclusions are approved and entered. If there is an appeal, the restriction remains in effect throughout the appeal. The Council should not discuss the project with newspaper reporters, opponents or proponents. December 3, 2013 was established as the date when Ms. Morris will present Findings of Fact and Conclusions to the Council. 6. RESOLUTION DECLARING AN EMERGENCY AND WAIVING PUBLIC BIDDING REQUIREMENTS; AUTHORIZE THE MAYOR TO SIGN CONTRACTS WITH EARTHWORKS ENTERPRISES, INC. AND LAKESIDE INDUSTRIES, INC. TO COMPLETE CONSTRUCTION OF THE WATERMAIN REPLACEMENT AND TEMPORARY ASPHALT OVERLAY ON 76TH AVENUE W BETWEEN 18223 76TH AVE W AND 17410 76TH AVE W; AND APPROPRIATE ADDITIONAL FUNDS FROM THE ENDING FUND BALANCE OF THE 421 WATER UTILITY FUND FOR THE TEMPORARY ASPHALT OVERLAY CONTINGENT UPON CITY OF LYNNWOOD'S COMMITMENT TO REIMBURSE THE CITY OF EDMONDS Public Works Director Phil Williams explained the emergency is the upcoming winter weather, the condition of the road and getting the road into a condition where it can be over -wintered safely without hazards, identifying an area for pedestrians to walk, and providing a smoother the surface. He explained this is Lynnwood's project to add a new sewer line in 76`h Avenue to improve capacity and eliminate overflows during heavy rainfall. Installation of the sewer line is complete. Edmonds partnered with Lynnwood to install a new waterline in 76"' by Lynnwood's contractor. The contractor has done a small portion of the work, 465 feet of approximately 2,000 feet, and has purchased some materials. Lynnwood issued a letter of default to the contractor, waited the appropriate period, and received a response stating it was not their fault. Lynnwood has approached the surety that represents the contractor but that discussion has not resulted in the surety's immediate assumption of the project. The proposal is to declare an emergency, allow the normal public bidding requirements to be waived and negotiate a contract with Earthworks who did a terrific job on 220"'. He reviewed the following: 761h Avenue Waterline 761h Avenue Budget $765,786.15 Lynnwood Cost to Date 275,940.98 Lynnwood Cost Pending Allowance 30,000.00 Constr. Admin. Expended to Date (approx.) 21,000.00 Emergency Work Earthworks Enterprises, Inc. 362,320.17 HWA 15,587.00 Construction Inspection/Admin 30,000.00 Unexpected Conditions 30,920.00 Total $765,768.15 Mr. Williams explained the resolution also authorizes the Mayor to sign a contract with Lakeside Industries to do temporary paving after the waterline is installed to get the street through the winter. The price of repairs and 1 %2 inch asphalt is $100,400. The Mayor would only sign the contract with written agreement from Lynnwood to pay for it. Edmonds City Council Approved Minutes November 12, 2013 Page 18 Councilmember Bloom inquired about the cost of the waterline. Mr. Williams answered $765,768.15 was the bid amount from the contractor for the waterline; Lynnwood's sewer project has a separate scope. He explained the contractor installed approximately 460 feet of the total 2,000 feet, leaving approximately 1,500 feet to be installed. Earthworks calculation of materials, labor and equipment totals $362,320.17. Councilmember Bloom asked whether Lynnwood would reimburse the City for that cost. Mr. Williams answered Lynnwood would not reimburse the cost to complete the waterline; Lynnwood needs to commit to the interim fix on the road. Final paving will be done next spring by Lynnwood. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO APPROVE RESOLUTION 1301, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, AUTHORIZING THE MAYOR AND STAFF TO WAIVE COMPETITIVE BIDDING REQUIREMENTS IN ORDER TO ENTER INTO CONTRACTS WITH EARTHWORK ENTERPRISES , INC. AND LAKESIDE INDUSTRIES, INC. TO COMPLETE CONSTRUCTION OF THE WATERMAIN REPLACEMENT AND TEMPORARY ASPHALT OVERLAY ON 76TH AVE W BETWEEN 18223 76TH AVE W AND 17410 76TH AVE W. MOTION CARRIED UNANIMOUSLY. 7. MAYOR'S COMMENTS — None 8. COUNCIL COMMENTS - None 9. CONVENE IN EXECUTIVE SESSION REGARDING POTENTIAL LITIGATION PER RCW 42.30.110(1)(i) At 8:51 p.m., Mayor Earling announced that the City Council would meet in executive session regarding pending litigation per RCW 42.30.110(1)(i). He stated that the executive session was scheduled to last approximately 15 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. Action may occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Earling, and Councilmembers Yamamoto, Johnson, Fraley-Monillas, Buckshnis, Peterson, Petso and Bloom. Others present were Public Works Director Phil Williams, City Engineer Rob English, City Attorney Jeff Taraday, and City Clerk Scott Passey. The executive session concluded at 9:08 p.m. Mayor Earling reconvened the regular City Council meeting at 9:09 p.m. No action was taken as a result of meeting in executive session. 10. ADJOURN TO CITY COUNCIL COMMITTEE MEETINGS With no further business, the Council meeting was adjourned to committee meetings at 9:10 p.m. Edmonds City Council Approved Minutes November 12, 2013 Page 19