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HomeMy WebLinkAbout04/02/97 TAPE #1452 CITY COUNCIL MEETING MINUTES APRIL 2, 1997 The regular meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4th Street, Bremerton, Washington, Wednesday, April 2, 1997, at 5:30 P.M., with Council President David Farr presiding. Council members present were Bob Winters, Carlos Montgomery, Sherril Huff-Menees, Lon Overson, John Law, Cecil McConnell, and Al Colvin. Councilman Richard Neville was absent. Also present were City Attorney Ian Sievers and Deputy City Clerk Paula Johnston. The meeting opened with the Pledge of Allegiance led by Council President Farr and Invocation given by Councilman Al Colvin. President Farr made the following announcement: (1) A City Council Study Session will be held on April 7, 1997, 5:30 P.M. to 7:15 P.M.. Topics of discussion: Manette Bridge Replacement, Executive Session on Personnel Performance, and Westsound Cable Access Television Contract. CONSENT AGENDA A. Request for Public Hearing on Water Fluoridation #AB97-065 #0037 M/S/C/U(Huff-Menees/Montgomery) to approve the Consent Agenda as presented. CLAIMS/CHECK REGI8TER8 Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090, have been recorded on a listing that had been made available to the Council. #0061 M/S/C/U(Colvin/Montgomery) on April 2, 1997, the Council does approve for payment those vouchers included and further described as follows: 207394 through 207606 in the amount of $283,361.02; and Retirees' Payroll for the period ending March 31, 1997, in the amount of $100,621.58. COUNCIL MEMBER REPORTS Mr. Winters reported the Ad Hoc Telecommunications Advisory committee held their first meeting on March 31, 1997, and he anticipates the committee meeting their objective of having a draft ordinance before Council by May 29, 1997. He named the committee members and thanked them for their involvement. He was pleased to report lots of activity was taking place at Pendergast Regional Park now that baseball season has started. He complimented the Parks Department on the appearance of that park. On behalf of the TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 2 of 16 PeeWee organization, he encouraged military or civilian personnel interested in participating and helping coach PeeWee sports to call the Central Council Office or Bremerton Parks and Recreation Department to obtain more information about the programs available. Mr. Montgomery announced the public is invited to attend a special ceremony in remembrance of the Bataan survivors and ex-prisoners of war at Bataan Park on April 5, 1997, 11:00 A.M. Mrs. Huff-Menees reported today at the Kitsap Executive Council meeting Phyllis Mann, Director Of Emergency Management, reported on damages that occurred throughout Kitsap County resulting from flooding or mud slides. And, the deadline for submitting claims/applications for financial assistance for any damages from FEMA had been extended. Mr. Law announced the District #3 Neighborhood Meeting will be held April 15, at the Senior Center, where the Washington State Department Of Transportation will host an Open House starting at 6:00 P.M., with a formal presentation at 7:00 P.M., on the preferred alternative for the Manette Bridge replacement. Representatives from Council Districts 1 and 2 will also be available at that meeting. Due to another commitment this evening, he would not be remaining for the rest of the Council meeting, but he did want to convey to his fellow Council members that he endorsee the amendments to the Sinclair Landing Memorandum Of Understanding (item 7A). Mr. MoConnell announced the District #2 Neighborhood Meeting will be held April 3, 6:30 P.M., at Fire Station #3. He encouraged members of public to bring any and all concerns to that meeting. Mr. Colvin thanked Councilman Law for inviting District 1 to the District #3 meeting. He also thanked the Admiral Theater Foundation for the tremendous job they accomplished in the refurbishment of the Admiral Theater. He believes the theater will attract state-wide participants. He anticipated someone speaking to the Council from the Kitsap Family and Child Services Center; however, it appeared they were not presented. Mr. Farr reported efforts were underway to stabilize a mud slide area in his District and he was aware that a contractor, Honey Do Limited, provided services to the owner of that property at a senior discounted cost. He expressed his "thanks" to the contractors for their civic minded deed. MAYOR'S REPORT Mayor Lynn Horton announced this evening she would be attending the TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 3 of 16 Retirement Dinner for Jim Barber, who served as one of the highest civilian employees at PSNS for many years and is now retiring. Mayor Horton reported Assistant Fire Chief Al Duke has been very involved with issues resulting from the December storm damage and compiling the cost recovery information for FEMA for the City's recovery. She was pleased to report the City has already received financial assistant from FEMA as a result of that effort. Most of the City's costs listed will be covered by FEMA, including approximately $65,000 in personnel cost, $8,600 in conjunction with the closing of the Warren Avenue Bridge, and additional funds will be coming for several City roads issues. In regard to emergency management, a State-wide Earthquake Drill will be conducted on April 24, 1997, 9:56 A.M.. City buildings will be evacuated as part of that exercise. Also, a seminar "Slip Sliding Away" will be held May 10, 1997, 8:30 A.M. to 1:30 P.M., at the Naval Undersea Museum Auditorium/Keyport. This event is a slope management seminar for people living along a shoreline that will provide a geological look at this area, erosion control structure information, i.e. bulkheads, riprap, stairways, vegetation on slopes, management-removal-replacement, critical area ordinances and what that means to property owners and insurance and risk relief. The City's 1997 Spring Clean Up event will take place April 14 - 19, for yard waste only. The free yard waste collection location has been moved to an area behind the Chevron Station at Kitsap Way and Oyster Bay Avenue. The hours of operations are: April 14-18 10:00 AM to 6:00 PM; April 19 8:00 AM to 5:30 PM. The Olympic Landfill hours are 8:00AMto 4:30 PM. Proof of City residency will be required. On April 5, 1997, free adult CPR Classes will be held at the President's Hall Kitsap County Fairgrounds, beginning every half hour from 9:00 AM to 3:00 PM. Childlren 10 years and up are eligible to participate. This event is sponsored by the Westsound Chapter of the American Red Cross, American Hearth Association, Kitsap County Department Of Emergency Management and Kitsap Fire Districts and city Fire Departments. Mayor Horton and Fire chief Mick McKinley made a special presentation to Rodney Johnson, Pat Swenka and Dannielle Gann for their life saving efforts performed on Albert Love when he suffered a heart attack at the YMCA on March 21, 1997. Special recognition was also given to Fire Department Paramedics Jim Hardy and Joel Wulf, who responded to that emergency call. PUBLIC RECOGNITION TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 4 of 16 The following individuals spoke in opposition to the City Council taking into consideration implementing fluoridation in the City's water system due to the adverse affects it would have on people's health: Paul Drnjevic, Gloria Drnjevic and Ramona Hopkins. Debbie Peavler-Stewart, Department Of community Development, invited everyone to attend an event entitled "Finding Your Way Home" at the Kitsap Mall on April 5. The exhibit will be located in the center of the Mall and will provide information concerning affordable fair housing programs and Community Development activities. This event is sponsored by the City of Bremerton, Kitsap County, KCAP and Kitsap County Consolidated Housing Authority. Councilman John Law left the Council Chambers at 6:00 P.M. Gary Blais, International Entertainment, commented on future plans for events at the Best Western Bayview Inn Dome. Joel Dears announced he was opening a new business - Edward Jones in Bremerton. 7A - AMENDMENT8 TO SINCLAIR LANDING MEMORANDUM OF UNDERSTANDING, #AB97-066 The City, along with Kitsap Transit, Port of Bremerton, and Kitsap County selected the Sinclair Landing Proposal of Fletcher Wright for the City's downtown waterfront development, and executed a Memorandum of Understanding in February 1996. The developer's reorganization as Howard S. Wright Construction Company was approved by the City August 7, 1996. The proposed amendment extends the original 180-day period for negotiating a development agreement to April 15, 1997, defines responsibility between members of the private development team, and adds additional financial support from the private development team for pre-development activities of Sinclair Landing Association, as more fully detailed in the attached memorandum. President Farr announced Councilman Winters, who owns a business in the affected area, and Councilman Huff-Menees, who serves on the SLA Board of Directors, will step down from voting on this issue. Mary McClure, Executive Director Sinclair Landing Association (SLA) reviewed the timing of events over the next 45 days. SLA is currently engaged in the process of negotiating an agreement in principle with Howard S. Wright, for the design built contract, and with Commercial Group for the over all development agreement on the rest of the project. She anticipates bringing both of those TAPE #1452 City Council Reg: Mtg. Minutes April 2, 1997 Page 5 of 16 agreements (in principle) to the City Council and Kitsap Transit Board by April 15, with the final draft of those agreements back to all of the partnering agencies before June 1, 1997. It is her understanding the Memorandum Of Understanding is being extended to June 1, recognizing that by April 15 the outlines of the two agreements would be available. she believes this is a risk free strategy for the City and the Agency partners and something of a housekeeping item. Public comment - none. #1506 M/S/C/U(Montgomery/Colvin) to approve the proposed amendment to Sinclair Landing Memorandum of Understanding. 7B - CONTRACT FOR JAIL SERVICES BETWEEN CITY OF BREMERTON AND KITSAP COUNTY, #AB97-067 The ten-year old contract has expired, and this five year contract will replace it. Police Chief Paul DuFresne reported his department has been working on the proposed contract for quite some time and that the prior agreement expired early 1997. The operating costs used to pro-rate the costs for the City's misdemeanor incarcerations have been reviewed. An agreement has been reached that although past data has been reviewed to make a determination about the per-day cost during this calendar year, at the end of each calendar year of this contract a review will be made of the real cost of Jail operations to determine if the price established is consistent with their costs. Hopefully, if cost savings are affected by the Jail, the City will realize some cost savings, but if there are cost over runs, then the City would have to participate in the additional costs. Public comment - none. Mr. Colvin questioned the increase of the proposed contract over the past contract? Chief Du Fresne stated approximately $5.00 per day increase. He noted a cost increase was not included in the 1996 contract. Mr. Colvin asked if those incarcerated pay for the Jail cost? Chief Du Fresne stated yes, the Courts are able to assess that cost. Currently, a Bill is in the Legislature that would place those costs first in line in collections on convicted misdemeanants. If that is successful, then the City would collect those charges first before fines and other Court costs. Mr. Winters asked the annual cost to the taxpayers for these services? Chief Du Fresne explained the 1996 budget approached $.5 million, and steps were taken throughout the year to keep that cost TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 6 of 16 as low as possible. The 1997 Budget reflects just over $400,000 for those services. Control of those costs is outside of actions taken by the Executive or Legislative branch of City government; and he is looking at alternatives to incarceration in hopes to save the City some expenses. Mr. Winters asked if there has been an increase in length of incarcerated time? Chief Du Fresne stated in 1996 there were fewer actual arrests, but the convictions after the arrest resulted in longer terms for misdemeanor prisoners. Mr. Winters asked who is addressing the Home Detention method? Chief Du Fresne explained that service is offered to the City by the County Jail. The Jail Administrator provides that service through the Washington Association Of Sheriffs and Police Chiefs, which has a program that has been approved by all Counties within the State. This program is encouraged for City prisoners when appropriate because it is a less costly program. Mr. Overson questioned if using the County's Jail was a better option for the taxpayers then to built and operated its own jail? Chief Du Fresne stated yes, considering the cost of construction and operation and providing per capita expense for incarceration any less than what is proposed. Mr. Overson asked if further negotiations were required? Chief Du Fresne stated following Council's action it would then be reviewed by the County and County Sheriff's office. #1801 M/S/C/U(Montgomery/Colvin) to approve the contract for jail services between the City of Bremerton and Kitsap County for five years, commencing January 1, 1997 and ending December 31, 2001; and authorize the Mayor to execute the same. 7C - PROFESSIONAL SERVICE8 AGREEMENT FOR ARCHAEOLOGICAL MONITORING FOR CALLOW AVEN~E CEO PROJECT, #AB97-068 Qualifications of five consultants from the list of qualified archaeologists provided by the Washington Office of Archaeology and Historic Preservation were reviewed and evaluated for this project. Northwest Archaeological Associates, Inc. was identified as the best qualified to provide archaeological services required by the Corps of Engineers perLit for the Callow Avenue Basin Priority 1, Phase 2 Storm Drainage Separation project. The permit requires the City to comply with Section 106 of the National Historic Preservation Act, Native American Graves Protection and Repatriation Act, and State Law. The scope of work includes daily monitoring during construction and preparing a data recovery plan should a discovery by made. Consultant's fees for this work are $25,880. The action before the City Council is approval of an agreement for Professional Services with Northwest Archaeological Associates, Inc. TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 7 of 16 Gene Sampley, Public Works and Utilities Director, explained the contract was developed in two phases where the first phase is the actual on-site investigation, monitoring daily logs and reports, which would be a greater cost, and task two would only be exercised in the event some matter of archeological significance was discovered or suspected to be discovered ($4,500). The cost of actual recovery is not included, put the cost of a plan to recover is included. He is confident the amount negotiated is the extent to which the City would be obligated and it was his hope to have the project utilize $20,000 (maximum) in costs because it is not anticipated there will be any discovery, but it is a requirement. Public comment - none. Mr. Winters asked if the City, in the past, had discovered anything that provided data to estimate this amount? Mr. Sampley explained it was based on the amount of excavation required for this project. The City will also have control of the time the archeologist is on site. Mr. Colvin asked if a discovery is made, would the cost escalate? Mr. Sampler stated yes, if a discovery is made, the archeologist will develop a plan, which is included in the project cost; however the cost of recovery is not included and would require further Council action. President Farr asked Mr. Sampley if he had caused to explore or explored the possibility of grants to cover this kind of expense? Mr. SamDley stated no, but the project is being funded through low- interest loans through the Public Works Trust Fund and the Centennial Clean Water Program through the Department Of Ecology. There is approximately $6-700,000 of remaining loan capabilities based on the contract amount of this project. Mr. Overson asked if Mr. Sampley had researched the proposed firm's background experience that would demonstrate that they are reasonable? Mr. Sampley noted the firm is certified by the Corps of Engineers to perform the work He assumed they would be fairly aggressive in pursuit of archeological finds, but believes they are professionals and would know what is significant and what is not. Mr. Overson asked if this was a bid contract? Mr. Sampley stated no, it was negotiated out of a list of five firms provided by the Corps of Engineers and the selection was made based on qualifications. An hourly rate was negotiated and the City will only pay the expenses incurred. #2121 M/S/C/U(Winters/Montgomery) to approve the Professional Services Agreement for archaeological services with Northwest Archaeological TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 8 of 16 Associates, Inc. in the amount of $25,880, and authorize the Mayor to execute the same. 7D - INTERLOCAL AGREEMENT WITH THE PORT OF BREMERTON FOR RESERVOIR REHABILITATION, #AB97-069 The Port of Bremerton contacted the City and requested that the Port's reservoir at Olympic View Industrial Park be included in the City's "1997 Reservoir Rehabilitation" project. The City's Reservoir 10, located adjacent to the Port's reservoir, will be included in the project. The Port will be responsible for the actual construction costs for the Port's reservoir and a portion of the design, inspection and administrative costs for the project. The Port Commission approved the Interlocal Agreement on March 11, 1997. The action before the City Council is approval of an Interlocal Agreement with the Port of Bremerton for reservoir rehabilitation. Gene Sampley, Public Works and Utilities Director, stated the City jointly shares a site with the Port of Bremerton with two reservoirs: (1) Port of Bremerton has a 800,000 gallon capacity reservoir; (2) the City has a 400,000 gallons capacity reservoir. The City felt it was prudent to approach the Port and see if they were interested in a similar refurbishment project and an agreement was negotiated. The agreement is for a maximum of $37,000, the actual bid amount is estimated at $26,000 with $5,000 contingency plus approximately $6,000 for inspection and Administrative services, which the Port would pay the full cost or their proportionate share of the over all project. Public comment - none. #2250 M/S/C/U(McConnell/Montgomery) to approve the Interlocal Agreement with the Port of Bremerton for reservoir rehabilitation and authorize the Mayor to execute the same. 7E - INCREASE ADMINISTRATIVE CHANGE ORDER AUTHORITY FOR CALLOW AVENUE BASIN PRIORITY 1, PHASE 2 STORM DRAINAGE SEPARATION, #AB97- 070 Chapter 2.76 of the Bremerton Municipal Code sets forth purchasing and change order procedures on City contracts. The administrative change order authority of the Mayor is "20% of the contract price, or $30,000, whichever is less" BMC 2.76.500(a)(4). The contract amount of the recently approved construction contract for Callow Avenue Basin Priority 1, Phase 2 Storm Drainage Project is $4,814,505. The $30,000 limit of administrative change order authority is inadequate to assure timely responses to the Contractor's and City's needs which arise during construction. TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 9 of 16 To address situations such as this, BMC 2.76.500(b)(2) allows the City Council to adjust the administrative change order authority of the Mayor. Staff requests that the Mayor's change order authority for this project be increased to $200,000, which is approximately 4% of the contract amount. The construction contingency amount for this project included in the budget is $300,000. The City Council will be kept informed of the project status, including change orders, as part of the monthly project reports. The action before the City Council is approval of increasing the Mayor's change order authority to $200,000 for the Callow Avenue Basin Priority 1, Phase 2 Storm Drainage Separation Project. Gene Sampley, Public Works and Utilities Director, stated it was felt this project had less opportunity for significant contingencies absent the archeological situation, so the amount has been reduced to 4% or approximately $200,000. Monthly reports on change orders will be provided to Council to address concerns for on going information relative to expenditures. Public comment - none. Mr. McConnell asked if the $200,000 was aggregate change orders, not authorizing $200,000 per change order? Mr. Sampley stated Mr. McConnell was correct. #2441 M/S/C/U(Montgomery/McConnell) to approve increasing the administrative change order authority of the Mayor on only the Callow Avenue Basin Priority 1, Phase 2 Storm Drainage Separation Project to $200,000. 8A - ORDINANCE (FIRST READING) TO RE-ADOPT THE BREHERTON ZONING ORDINANCE, INCLUDING BOTH THE TEXT AND MAPS, TO ENSURE GMA COMPLIANCE, #AB97-071 In 1995, Bremerton adopted its GMA Comprehensive Plan and determined that the existing zoning regulations remained consistent with the new Plan, and therefore, a new Zoning Ordinance was not necessary. Instead, our existing Zoning regulations were revised periodically to keep them current. Since we weren't adopting new regulations, we weren't required to submit anything to the State for review and approval. Unfortunately, our name was included on a Department of CTED check- off list for new regulations, but couldn't be checked off. This caused major confusion within agencies who needed to confirm our GMAcompliance status for funding purposes. To clarify our status, the Department of CTED recommended that we re-adopt our Zoning Ordinance, which we are now doing, ASAP. TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 10 of 16 Ron Hough, Planning Manager, talked about the GMA having a flaw and the City being caught in the middle. Jurisdictions that were required to plan under GMA were required to adopt a Growth Management Comprehensive Plan as well as regulations that implement that plan. The GMA did not foresee the possibility that some jurisdictions may already have Zoning Ordinances that were adequate to implement their Comprehensive Plan, which was the City's case. The City's Comprehensive Plan was adopted in 1986 and followed that with a new Zoning Ordinance in 1988, which was two years before GMA. When GMA came along, the City adjusted the Comprehensive Plan to meet the requirements and carried the City's Zoning Ordinance along because it was still consistent with the Comprehensive Plan. Minor amendments were made to the Comprehensive Plan, which were sent to the State, but never really adopted a brand new set of regulations. The State monitoring agency, Department of Community Trade and Economic Development, put together a table that listed all counties and cities planning under GMA, which had three columns: (1) Comprehensive Plan Adopted (City-1995); (2) Critical Areas Ordinance (City-1993); (3) Development Regulations (no listing for City of Bremerton), which caused some concern on the part of the Department of Ecology and possibly some other agencies that may have had some loans or grants targeted for the City. Based on the fact the City was not listed in the third column of the table, it was suggested the City adopt an emergency ordinance to readopt the regulations. Public comment - None. #2685 M/S/C(Montgomery/Colvin) to approve the emergency ordinance on first reading, re-adopting Bremerton Municipal Code Chapter 21.02, Zoning Code, to demonstrate compliance with the Growth Management Act and RCW 36.70A and consistency with the City's Comprehensive Plan; repealing Ordinance No. 4172 and No. 4555; and declaring an emergency. Mr. Overson asked if this action would make the City "late" in terms of the GMA? Mr. Hough stated no. Mr. Overson questioned the need for an "emergency ordinance" and understood that such an ordinance required only one reading? Ian Sievers, City Attorney, stated it circumvents the effective day after passage and a true emergency, according to the City's Charter, is a life and property threatened condition. The proposed ordinance would require two readings, but would go into effect immediately upon passage. Mr. McConnell asked if he understood correctly that the Zoning Ordinance being re-approved is already in effect? Mr. Hough stated yes. Mr. McConne11 stated at this point he did not believe this issue qualified as an emergency? Mr. Sievers stated it is up to TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 11 of 16 the City Council to declare the emergency, which is stated in Paragraph 5 of the ordinance, or set a 10-day effective date without any statement of emergency. Mr. Hough explained the emergency was threat of agencies withholding funds that were coming to the City, primarily related to Engineering projects. The Department of Ecology questioned whether or not the City had the ordinance and expected compliance with CETD, preferably by the end of April. Vote on motion: In Favor: Montgomery, Huff-Menees, Farr, Overson, McConnell, Colvin Abstain: Winters Motion carried. 9A - PUBLIC HEARING ON SURPLUS/SALE OF PROPERTIES AROUND THE WASTEWATER TREATMENT PLANT, #AB97-040 Commencing in February 1994, the City initiated odor mitigation efforts, including purchase of properties around the Wastewater Treatment Plant (WWTP). Currently, the City owns several properties west of Oyster Bay Avenue and the Treatment Plant. These properties are determined to be surplus to the City's needs. City Council action is requested to authorize surplusing and sale of those properties in the general area shown in Exhibit (1) and specifically identified in Exhibit (2). BMC Chapter 2, Section 78 dictates policy and steps to be taken to sell property owned by the City. Each property surplused will be subject to annexation into the City of Bremerton and closing documents will include an odor easement which will remain with the property. President Farr asked the "Appearance Of Fairness/Conflict Of Interest" question with all remaining Council members seated. Paula Johnston, Deputy City Clerk, announced the first two properties on the list of parcels (903 Oyster Bay Avenue and 911 Oyster Bay Avenue) were deleted. Mr. Winters stated he was not totally supportive of the proposal as presented. He asked if the requested action is a legal position that has to be taken by the City, i.e., having a commercial broker market the properties once they are surplused? Ian Sievers, City Attorney, stated no, it is an option available to the City Council, which was recently added to the ordinance. The presumption is that most marketable sized parcels will be sold through a public bid process, but Council does have the option of using a broker in those circumstances where the property may be large or difficult to sell with simple advertisement or staff effort. Mr. Winters stated he believed the City should retain the property for leasing out in order to generate future revenues and to protect the City in the TAPE #1452 City Council Reg. Mtg. Minutes April 2, 1997 Page 12 of 16 event of odor that may reoccur or cause litigation in the future. During the Fiscal and Budget committee meeting he asked the City Attorney if there was a test case in the State of Washington involving a surplus property sold to a private entity wherein an odor easement was attached to the sale? At that time, Mr. Sievers's response was no, not to his knowledge. Mr. Winters was concerned that there was no proven case that someone could not come back again and say the odor easement is beatable in court. He asked Mr. Sievers if his last statement was correct. Mr. Sievers stated yes, in discussing this issue throughout the past few months with the City's legal counsel Steve DiJuilo, there isn't a Washington State case that has ruled on a challenge of an odor easement. There may be odor easements imposed on property titles that have not been challenged. Mr. Winters questioned if it was Council's right to not surplus the proposed properties? Mr. Sievers stated yes. TAPE #1453 Ellzabeth Buell, Bremerton resident, supported Councilman Winters' position to take no action as added protection against future lawsuits related to odor issues. John Ross asked if the property was surplused, why wasn't it disposed of through an auction? Admiral Ross asked who will determine whether or not the property is commercial or residential? Paul Lucas, Administrative Analyst, explained the property will remain residentially zoned. Mr. Ross asked what about the property that is already zoned Commercial? Mr. Lucas pointed out none of the properties within the subject area had a Commercial zoning designation. Mr. Ross stated he has operated a restaurant in that area for 17-18 years. Mr. Lucas noted Mr. Ross's restaurant and property were not included the areas to be surplused. John Ross stated there are residential and commercial properties intermixed in that area. President Farr asked Mr. Ross if he had reviewed the documentation showing the addresses of the subject properties? Mr. Ross stated no, but he is familiar with the area. Mr. McConnell stated he also was concerned about the odor easements and doubted odor limits could be described sufficient to satisfy a Court. He recalled when the properties were acquired some of the people agreed to sign an odor easement, but didn't. He agreed with Mr. Winters that instead of raising taxes periodically the properties should be retained, developed and leased out as a perpetual source of income for here on after. TAPE #1453 City Council Reg. Mtg. Minutes April 2, 1997 Page 13 of 16 Mr. Colvin expressed concern that there is no guarantee that the City would be protected from future lawsuits having to do with odor problems in the subject area. He emphasized just because something is zoned one designation does not mean it will retain that designation forever. Mr. Winters asked the City Attorney if the City could write in an odor easement in a lease agreement? Mr. Sievers stated in regard to Mr. Winter's and Mr. McConnell's comment on his observation that there are no appellant cases, he didn't mean to say that he thought odor easements were a risky business simply because there were no cases. In fact, the lack of cases may mean, if introduced, that they were a perfectly acceptable way to restrain use of property. He assumed they would be allowable and the only public policy argument he could see about striking the enforceability of such a covenant would be, while they are certainly not discriminatory or unconstitutional, is a public policy against restraint and alienation of property. There have also been cases upheld where covenants virtually reduced the usefulness of lots, such as in a plat, to a recreational use. He assumed there would be appropriate residential uses on the subject property and that covenant would be upheld, if challenged. If the City imposes an odor easement on a tenant and they are stricken because of the level of odor that was included within that easement was actually threatening to public health and safety, it wouldn't save the City from a suit anymore than if a property owner was a resident full time on those properties. Mr. Winters made the comment the City should retain the properties as an investment and develop it as a future source of revenue. The subject area is under the County Comprehensive Plan and zoning for residential and are designed in the City's Comprehensive Plan to continue as residential use. There is no future utility use or perhaps controlled tenant or other user that could be controlled by purchasing the property other than residential because that is the use. We can't convert it or develop it as commercial because, at this point, it will be zoned for residential use in the future. It is felt the City is getting the maximum risk reduction with the odor easement. Trying to recoup the investment of the Utility through retention of these properties is not a worthwhile return for residential rent, especially given the large investment in plant improvements, which was the first self-help measure taken to reduce risk in this area associated with the wastewater treatment plant. Mr. Montgomery supported surplusing the properties and pointed out the area is hilly and less conducive to commercial development than residential use. He emphasized the property is no longer needed by the City and it is the Council's responsibility to get the most money out of the area. He doubted a public auction of the properties would bring about the greater financial return. TAPE #1453 City Council Reg. Mtg. Minutes April 2, 1997 Page 14 of 16 #0307 M/S/C(Montgomery/Huff-Menees) to authorize surplus and sale of those properties identified in Exhibit (1) and (2), and include an odor easement which will remain with each parcel through perpetuity; and that the sales be made through a real estate broker pursuant to BMC 2.78,030; and that each parcel be subject to annexation into the City. Mr. MoConnell asked what would the City do with the properties that do not sell? Mr. Lucas stated efforts to sell would continue and the city would continue to lease them out. Mr. Overson asked if the properties would be sold subject to annexation? Mr. Sievers stated the properties are outside of City limits, but were purchased with City funds for a Utility purpose, which was an appropriate use of City funds. Mr. Overson asked why not annex the area and then sell the properties? Mr. Sievers stated Council could choose that direction. He anticipates bringing an annexation proposal to Council within the next two weeks. President Farr stated he believed Mr. Sievers' opinion was this proposal would leave the City with the least exposure and that the city is not leaving itself open for lawsuits. He is not an attorney and would rely on the City Attorney's guidance; however, he has been a landlord and looking at the assessed values of the subject properties he would guess holding them as rentals has the good possibility of not being very profitable even without any repairs or bad tenants. He does not support the idea of the City being a landlord and will support the motion. Mrs. Huff-Menees stated there have been public discussion at Study Sessions and public hearings on this issue and she will support staff's recommendation. She was not eager to see the City become a landlord of rental properties than is necessary, and the recommendation has always been to surplus these properties and that it will help reduce risk for the City. Mr. Winters asked if the City is currently renting the subject properties? Mr. Lucas stated not all of them. Mr. Winters asked if those tenants have an odor easement included in their lease agreements? Mr. Lucas states yes, in the Property Management agreement. Mr. Winters stated what he was hearing during this discussion was there was no way this area could be rezoned to commercial. He disagreed with that assumption since it could be done through annexation and that it was highly likely it would be done in that manner; therefore he would not support the motion. Mr. Overson stated he agreed that surplusing and selling the properties was the wisest decision even though he was previously TAPE #1453 City Council Reg. Mtg. Minutes April 2, 1997 Page 15 of 16 opposed to the idea. One of the functions of the City is definitely not running a rental institution; however, he was concerned at testing the law, but hoped the odor controls installed at significant cost will work. Mr. Colvin stated he could not see the hurry to proceed with this action until a later date when more data is available on the odor control project. Mr. Sievers stated he doubted more information would be forthcoming; however, Mr. Mcconnell did raise a valid consideration on the enforceability of the easements and that is the degree, which can remove ambiguity from the scope of the easement and define that easement, and if two people can't agree it can be stricken. He was confident in having gone through the discussions with the outside legal counsel on different standards for measuring odors and defining specifically parts per million or billion and period of duration. Mr. Colvin pointed out there is no guaranty? Mr. Sievers stated he did not think there was significant risk of someone wanting to sue the City, if it was within that easement. It would not be defined as something that is health threatening, it will be defined as something that is with PSAPCA's definitions of nuisance, such as those used at SeaTac to acquire or incumber property or certain elements of property rights. Mr. Winters stated years ago the City was not in the business of managing sewer treatment sites, yet we are today. And years ago the City was not in the business of owning, operating and managing golf courses, yet we are doing a good job of it. For the City to be landlord over rental property, in his opinion, is very simple compared to those two projects. Mr. Lucas stated he works closely with the City's Property Manager and the majority of the properties in that area are fairly old, some are in need of lots of repair and a couple are in very good condition. The cost of maintenance could significantly reduce the amount of rental income. The amount of time and effort it would take to manage the properties on a permanent basis would not be cost effective. He is basing his opinion on the 2 1/2 years experience dealing with these properties. Vote on motion: In Favor: Huff-Menees, 0verson, Montgomery, Farr Opposed: McConnell, Colvin, Winters Motion carried. President Farr thanked the TV camera crew for their services: Rob Rupe, Jamie Campbell and Patricia Mathis. TAPE #1453 City Council Reg. Mtg. Minutes April 2, 1997 Page 16 of 16 With no further business meeting adjourned at 7:18 P.M. KATHT2EN L. McCLUS~Y, City Clerk DAVID D. FARR, C~residen~t~A~ City of Bremerton KLM/DDF/me cc: Normal Distribution File/Vault