CITY OF MERCER ISLAND ORDINANCE NO. 03C-10

CITY OF MERCER ISLAND ORDINANCE NO. 03C-10 AN ORDINANCE OF THE CITY OF MERCER ISLAND, WASHINGTON AMENDING ORDINANCE NO. 99C-13 TITLED CITY OF MERCER ISLAND UNIFIED LAND DEVELOPMENT CODE, AND CODIFIED AT TITLE 19 OF THE MERCER ISLAND CITY CODE, AMENDING SECTION 19.01.060 TITLED GENERAL PROVISIONS, HOLD HARMLESS/INDEMNIFICATION AGREEMENT ; REPEALING SECTION MICC SECTION 19.06.070 TITLED GENERAL REGULATIONS, BONDING AND INSURANCE ; AMENDING SECTION 19.07.010 TITLED CRITICAL LANDS, PERFORMANCE STANDARDS FOR ALL DEVELOPMENT ; REPEALING SECTION 19.09.020 TITLED PROPERTY DEVELOPMENT, AMENDMENTS, ADDITIONS, AND/OR EXCEPTIONS ; AMENDING SECTION 19.04.020 TITLED COMMERCIAL OFFICES PBZ, REQUIRED CONDITIONS AND AMENDING 19.15.040 TITLED ADMINISTRATION, DESIGN COMMISSION REQUIREMENTS, POWERS OF THE COMMISSION. A. This ordinance modifies MICC Title 19, the Unified Land Development Code (ULDC), adopted on November 15, 1999 as Ordinance No. 99C-13 and thereafter amended from time to time, to simplify and clarify requirements relating to Hold Harmless/Indemnification Agreements and Covenants Not To Sue and performance guarantees that may be required prior to the issuance of land use permits. B. MICC section 19.01.060 titled General Provisions, Hold Harmless/Indemnification Agreement is being amended to reorganize and incorporate the related provisions of MICC 19.06.070 (which is being relocated by this ordinance), and to modify the circumstances when an indemnification/hold harmless agreement may be required. C. MICC section 19.06.070 titled General Regulations, Bonding and Insurance is being repealed and relocated, with some changes, to 19.01.060. D. MICC section 19.07.010 titled Critical Lands, Performance Standards for All Development is being amended to add a new section, (F) Hold Harmless/Indemnification Agreement and Covenant Not To Sue to provide a cross-reference to the provision of MICC 19.01.060 that is applicable to permits that may be issued for work in critical areas. E. MICC section 19.09.020(F), titled UAC Section 303 Amended - Damages - Financial Responsibility is being repealed and replaced with subsection 19.01.060(B)(2). F. MICC section 19.04.020(B)(3) titled Commercial offices PBZ, Required Conditions is being amended to conform with the use of the term assignment of funds instead of set-aside account in amended MICC section 19.01.060, and to update the cross-reference citation to amended MICC section 19.01.060(C). 1

G. MICC section 19.15.040(D)(2) titled Administration, Design Commission Requirements, Powers of the Commission is being amended to conform with the use of the term assignment of funds instead of set-aside account in amended MICC section 19.01.060, and to update the cross-reference citation to amended MICC section 19.01.060(C). H. The City s Responsible Official reviewed the proposed changes under the provisions of the State Environmental Policy Act, found they did not have any probable significant adverse impacts on the environment and issued a Determination of Non-Significance on. I. The City complied with all public notice requirements for the Planning Commission public meeting and the City Council public hearing. J. The Mercer Island Planning Commission held its public meeting consistent with MICC 19.15.010(E) on August 20, 2003 to consider the proposed amendments; K. After hearing public testimony and after deliberation, the Mercer Island Planning Commission issued its recommendation to the Mercer Island City Council that it adopt the proposed amendments. L. The City Council held an open record hearing consistent with MICC 19.15.010(E) on September 15, 2003 which was continued to October 13, 2003. M. After considering all public testimony and written comments, the City Council adopts the following Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MERCER ISLAND, WASHINGTON DOES HEREBY ORDAIN AS FOLLOWS: Section 1: Amendment of MICC 19.01.060 General Provisions, Hold Harmless/Indemnification Agreement. MICC 19.01.060 General Provisions, Hold Harmless/Indemnification Agreement is hereby amended as follows: 19.01.060 Hold harmless/indemnification Agreement and Covenant Not To Sue, Performance Guarantees, Liability Protection. A. Purpose. Prior to issuing any permit or approving any application the City may require an applicant to provide one or more of the following to protect the city from and against damages to property or injury to persons that may arise from the permitted activity, and to insure that the applicant performs all permit conditions. B. Hold Harmless/Indemnification Agreement and Covenant Not to Sue. 1. General. The owner of private property for which a development proposal permit application is submitted, except a public right-of-way or the 2

site of a permanent public facility, shall may be required to provide file an a hold harmless/indemnification aagreement and covenant not to sue approved by the city and recorded with the King County Recorder s Office, records and elections division prior to the issuance of any the development permit. Said agreements shall be negotiated and in a form approved by the City Attorney, shall hold harmless and indemnify the city and its employees from and against any liability for damages to persons or property as the result of construction or other action undertaken by the applicant on the subject property and shall run with the land for a period of at least three years from completion of the work and be binding on the applicant and his/her successors, heirs and assigns for such period of time as shall be determined appropriate by the city official charged with issuing the permit or approving the application. 2. Permitted Activity Not in a Critical Area. A hold harmless/indemnification agreement and covenant not to sue may be required in, but not limited to, the following circumstances: adjacency of the permitted activity to roadways or structures; previous poor performance on the part of the applicant or his or her agent; overall construction costs; or when materials, methods of design or methods of construction other than those specifically prescribed by the Uniform Building Code may be used. Generally, in such circumstances, said agreements may be required to run with the land for a period of three years from completion of the work; provided, the City may extend such period of time to insure that such agreements are effective until the final resolution of any pending or potential claims. 3. Permitted Activity in Critical Areas. A hold harmless/indemnification agreement and covenant not to sue may be required in, but not limited to, the following circumstances: the permitted activity will take place on or may impact a watercourse, wetland, shoreline, steep slope or landslide prone slope, or poor soil conditions or other geologic hazards may exist. Generally, in such circumstances, said agreements shall be required to run with the land without limitation as to a period of years. C. Performance Guarantees and Liability Protection. 1. Bonding or Assignment of Funds. a. The city may require an applicant to guarantee that activities allowed through the issuance of a permit or through approval of an application will be undertaken and completed to the city s satisfaction. This includes, but is not limited to, guarantees that improvements will be constructed; that they shall remain free from defects of materials, workmanship, and installation for a set period of time; and that landscaping shall survive for a set period of time. b. Guarantees may be required for: significant construction in streets; work on public property not performed by the city; non-residential landscaping; critical areas stabilization and restoration; permanent site restoration on non-residential projects; and other activities if the City Engineer or City Attorney determines there is sufficient potential risk of 3

property damage or injury to persons or the environment in the event the applicant fails to complete the permitted work. c. The amount of such guarantees and the length of time for which it shall be required, shall be determined by the city official charged with issuing the permit or approving the application for which the guarantee is made. d. The city may choose to accept such guarantees in the form of either a bond posted with the city, or through an assignment of funds in lieu of bond. e. If the responsible city official determines that the guaranteed action or improvement fails to meet the criteria under which it was allowed, the city shall give written notice to the applicant. If the condition is not corrected in the time set by the city official, all rights to the bond or to the funds are forfeited and any cash plus interest accrued shall remain the sole property of the city. Otherwise, at the expiration of the specified period, the responsible city official shall release the applicant from the assignment of funds or bond and the applicant may request that said bond or said funds and any interest accrued be returned to the applicant. f. Any rights granted to the city by this section are in addition to any other rights granted by law. 2. Insurance. Prior to issuing a permit or approving an application, the city may require the applicant to provide a certificate of general liability insurance, with limits of liability in an amount acceptable to the City Attorney, from an insurance company authorized to do business in Washington, insuring against injury to persons and damage to property, and may require that the city be named as an additional insured. Section 2: Amendment of MICC 19.06.070 General Regulations, Bonding and Insurance. MICC 19.06.070 titled General Regulations, Bonding and Insurance is hereby repealed as follows: 19.06.070 Bonding and insurance. A. Bonding and Set-Aside Accounts. 1. The city may require an applicant to guarantee that actions allowed through the issuance of a permit or through approval of an application will be undertaken and completed to the city s satisfaction. This includes, but is not limited to, guarantees that improvements will be constructed; that they shall remain free from defects of materials, workmanship, and installation for a set period of time; and that landscaping shall survive for a set period of time. 2. The city may also require an applicant to indemnify the city against potential damage or injury to public property caused by an action allowed by the issuance of a permit or approval of an application. 3. The amount of such guarantees or indemnifications, and the length of time for which they shall be required, shall be determined by the city official 4

charged with issuing the permit or approving the application for which the guarantee or indemnification is made. 4. The city may choose to accept such guarantees or indemnifications in the form of either a bond posted with the city, or through money deposited with the city to be held in an interest bearing set-aside account. 5. If the event against which the city had been indemnified occurs, or the responsible city official determines that the guaranteed action or improvement fails to meet the criteria under which it was allowed, the city shall give written notice to the applicant. If the condition is not corrected in the time set by the city official, all rights to the bond or to the funds are forfeited and any cash plus interest accrued shall remain the sole property of the city. Otherwise, at the expiration of the specified period, the responsible city official shall release the applicant from the set-aside agreement or bond and the applicant may request that said bond or said funds and any interest accrued be returned to the applicant. 6. Any rights granted to the city by this section are in addition to any other rights granted by law. B. Insurance. Prior to issuing a permit or approving an application, the city may require the applicant to obtain liability insurance in a reasonable amount from an insurance company authorized to do business in Washington insuring against injury to persons and property. Such insurance policy shall hold the city harmless from all claims arising from the applicant s actions. (Ord. 99C-13 1). Section 3: Amendment of MICC 19.07.010 Critical Lands, Performance Standards For All Development. MICC 19.07.010 titled Critical Lands, Performance Standards For All Development is hereby amended to add a new section as follows: F. Hold Harmless/Indemnification Agreement and Covenant Not To Sue, Performance Guarantees, Insurance. An applicant for a permit for activity which may take place on or affect any critical area shall comply with the requirements of MICC 19.01.060 deemed applicable by the responsible official. Section 4: Amendment of MICC 19.09.020(F) UAC Section 303 Amended - Damages - Financial Responsibility. MICC 19.09.020(F), titled UAC Section 303 Amended - Damages - Financial Responsibility is hereby repealed as follows: 19.09.020 Amendments, additions and/or exceptions. F. UAC Section 303 Amended Damages Financial Responsibility. Section 303 of the Uniform Administrative Code is hereby amended by adding a new subsection 7 entitled Damages, which shall read as follows: 5

Section 303.7. Damages. Prior to issuance of any Building Permit the City may require the applicant to provide assurance that recourse will be available to the City of Mercer Island and/or any person who may be damaged by the construction activity of the applicant or his agents. Such assurance shall be in an amount and form acceptable to the City Attorney and Code Official, and may be a bond, letter of credit or insurance. Such assurance may be required for, but not limited to, the following reasons: critical slope lot, poor soil conditions, adjacency of a watercourse, a roadway, other houses, or on the basis of previous poor performance on the part of the applicant or his agents. Further, any person, firm or corporation making application for a Building Permit for construction activity on any property located in an area designated as being a geologic hazard area, as defined in MICC 19.07.020, or as being potentially hazardous according to engineering standards and existing historical records, documents or studies on file with the Development Services Group shall, as a condition for approval of said permit provide the City with an executed Waiver and Covenant Not to Sue, on a form provided by the City, which form is hereby adopted by reference, thereby evidencing the applicant s examination and study of such historical documents or engineering studies for the purpose of determining whether the proposed construction site is suitable for residential, multi-residential, or commercial construction, together with the applicant s covenant with the City of Mercer Island to: (1) thereafter initiate no litigation against the City or its employees concerning any defect of the construction activity due to steep slopes or slide prone soils; (2) bind successors in title, and (3) record such documents with the County Auditor as a covenant running with the land. Section 5: Amendment of MICC 19.04.020(B) Commercial Offices - PBZ, Required Conditions. MICC 19.04.020(B)(3) titled Commercial Offices PBZ, Required Conditions is hereby amended as follows: 19.04.020 Commercial offices. B. Required Conditions. 3. A strip of land adjacent to all external boundaries of the site, including any frontage on public rights-of-way, shall be devoted exclusively to the planting, cultivation, growing and maintenance of sight-obscuring trees, shrubs and plant life. If required by the design commission, the maintenance of such protective strips and landscaping shall be guaranteed through a bond or set-aside account assignment of funds as set out in MICC 19.06.070(A) 19.01.060(C). In lieu of such protective strips, under appropriate circumstances, there may be substituted a use classification of the outer margin of this zone consistent with the use classification of the surrounding area. 6

Section 6: Amendment of MICC 19.15.040(D) Administration, Design Commission Requirements, Powers of the Commission. MICC 19.15.040(D)(2) titled Administration, Design Commission Requirements, Powers of the Commission is hereby amended as follows: D. Powers of the Commission. 2. The design commission may require a bond or set-aside account assignment of funds as set out in MICC 19.06.070 19.01.060(C) to secure the installation and maintenance of landscaping, screens, parking lots, exterior lighting, walkways and other similar site improvements. Section 7: Severability/Validity. The provisions of this ordinance are declared separate and severable. If any section, paragraph, subsection, clause or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that they would have passed this ordinance and each section, paragraph, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, paragraphs, subsections, clauses or phrases were unconstitutional or invalid. Section 8: Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 9: Effective Date. This Ordinance shall take effect and be in force thirty (30) days following passage and publication. PASSED by the City Council of the City of Mercer Island, Washington at its regular meeting on the 13th day of October, 2003, and signed in authentication of its passage. ATTEST: Alan R. Merkle, Mayor Christine L. Eggers, City Clerk Approved as to form: Londi K. Lindell, City Attorney Date of Publication: 7