RES 2005-19 TRANSFER OF THE HALL, ROCKAWAY BEACH, PETERS, & BATTLE PT TRAIL OPEN SPACEResolution 2005-19 - Open Space property transfer to BIPR
May 25, 2005
RESOLUTION NO. 2005-1
A RESOLUTION f the City of Bainbridge Island, Washington, authorizing the
Mayor to negotiate the transfer of the "Hall", "'Rockaway each", "Peters" and
"Battle Point Trail" open space properties to the Bainbridge Island Metropolitan
Park and Recreation District and to enter into appropriate agreements with the
District effectuating such transfers.
WHEREAS, in 20019 the voters of the City passed a bond measure (ordinance # 2001-36)
fanding
001-
fanding the City's purchase of 19.9 open space" properties as defined in said measure) and
establishing the criteria and process for such purchases; and
WHEREAS, in accordance with the requirements of the open space bond measure, the
Mayor' appointed an Open Space Commission to identify open space properties available for
purchase and to provide recommendations to the City Council relating to the acquisition of open
space properties that best meet the criteria established by the open space bond measure; and
WHEREAS, since the passage of the open space bond measure the City Council has
purchased several open space properties pursuant to said measure, including, but not limited to
those properties commonly called the "Hall", "Rockaway Reach", "Peters„ and "Battle Point
Trail" properties (collectively, the "Properties"); and
WHEREAS, as a result of its purchases, the City is either the fee owner of the Properties
or has an easement interest in such Properties; and
WHEREAS, the City has collaborated with the Bainbridge Island Metropolitan Park and
Recreation District (the "District") in considering and planning for the development, maintenance
and operation of the Properties pursuant to the criteria established by the open space bond measure;
WHEREAS,, the City and District staffs have opined that the District is in the best position
to develop, maintain and operate the Properties for their intended use as open space and/or passive
parks and in accordance with the criteria established by the open. space bond measure; and
WHEREAS, the City desires to transfer its respective interests i. the Properties to the
District, and the District desires to receive the City's respective interests in the Properties, so that
the District may develop and -maintain the properties as public open space and/or passive park use,
in alignment with the District's mission and the open space bond measure; and
WHEREAS, pursuant to Chapter 39.33 RC's the City has conducted a public hearing
regarding the proposed transfer of the open space properties; and;
WHEREAS, the City has determined that the Properties are surplus to the City's needs and
may be appropriately conveyed to the District; NOW, , 'T`H R OR ;
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Resolution 2005-1 - Ope4 Space property transfer to BIPR
May 2, 2005
THE CITY COUNCIL of THE CITY of BAINBRIDGE ISLANDS WASHINGTON,
DOES RESOLVE THAT:
Section 1. The City Council has determined that the recommended transfer to the District
of the City's respective interests in the "Hall", - "Rockaway Beach", "Peters"' and "Battle Point
Trail"' Properties is in the best interest of the public, and the City Council supports the conveyance
of said properties to the Ditriet.
Section. 2. The City Council declares .that the Properties are surplus to the City's needs 'and
may be appropriately transferred to the District in accordance with state law.
Section 3. The Mayor is authorized to execute an agreement in substantially similar 'form.
as that set forth in Exhibit "A", attached hereto and incorporated herein by this reference (the
"Agreement"), and any other documents necessary to convey the City's interest in the Properties to
the District as set forth in this Resolution and the Agreement, and to transfer the City's interests in
the Properties as set forth in the Agreement.
PASSED by the City Council this 25th day of May, 2005,
APPROVED by the Mayor this 26th day of May, 2005.
Darlene Iordonowy, Mayor
AT/AUTHENTICATE: 1
T
)).. kl�,
S t SAN P. KASPER, City Clerk
FILED WITH THE CITY CLERK: May 18, 2005
PASSED BY THE CITY COUNCIL: May 25, 2005
RESOLUTION No. 2005-19
H Xity Exchange\R olution \2005 Resolutions\2005-19_open Space Property transfer to IPR _o 2 0 . do
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May 25, 2005
Exhibit "A"
AFTER RECORDING RETURN To:
City of Bainbridge Island, Washington
Attn: City Administrator
280 Madison Avenue North
Bainbridge Island, Washington 98110
AGREEMENT REGARDING TRANSFER . of OPEN SPACE PROPERTIES
Grantor(s):
Grantee(s):
Short Legal Description;
Assessor's Property Tax
Parcel AccountNumber(s):
Reference Numbers of
Documents Assigned
or Released:
City -of Bainbridge Island, Washington , a municipal corporation
Bainbridge Island Metropolitan Park and Recreation' District, a
Washington municipal corporation
[Complete legal description on p. _]
THIS AGREEMENT REGARDING TRANSFER of OPEN SPACE PROPERTIES (this
"Agreement") is entered into this 25th day of May, 2005, by and between the CITY of
BA.INBRIDGE ISLAND, WASHNGTOI , a municipal corporation (the " City #,. and
BAINBRIDGE ISLAND METROPOLITIAN PARK AND RECREATION DISTRICT,, T, a
Washington municipal corporation the "District'51.
Peet q l
A. The City owns and/or has an easement interest in certain open space areal properties located
in Bainbridge Island, commonly called the Mall, Peters and Battle Point Trail Properties.,
respectively, and legally described on Exhibit "A", attached hereto and incorporated by this
preference (collectively referred to herein as the ""Properties").
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May 25, 2005
B. The City acquired said Properties pursuant to a bond measure passed by the voters in 2001 -
pursuant to Ordinance No. 2001--3 (the "Ordinance,"), which Ordinance funded the City's
purchase of open space properties and established the criteria and process for such purchases.
C. The City and the District frequently collaborate and cooperate with each other in acquiring,
maintaining and operating park and open space properties located within the City, to ensure that
adequate public parrs and open space properties are available to the public and that said properties
offer the public the variety of desirable recreational and- natural amenities that Bainbridge Island
has to offer.
D. The City and the District mutually agree that the District is in the best position to develop,
manage, maintain and operate the Properties for their intended purposes as passive public parrs
and/or open space properties, and to ensure that the criteria and standards established by - the
Ordinance are satisfied.
B. The City therefore desires to transfer its respective interests in the Properties to the
District. The City has determined that said Properties are surplus to the City's needs and that the
Properties may be appropriately transferred to the District for the passive public parks and/or open
space purposes and subject to the contingencies, terms and conditions set forth herein.
F. The District desires to receive the City's interests in the Properties, and accepts the
contingencies, terms and conditions of said transfer, as set forth in this Agreement. The District
recognizes the value of the City's transfer and acknowledges and agrees that, in light of the value
being conveyed to the District, the contingencies, terms and conditions set forth in this Agreement
are reasonable and shall be binding upon the District.
NOW, THEREFORE,, for and in good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Transfer of Properties: Upon mutual execution of this Agreement, the City shall
quft claim and convey to the District all of the City's rights, title and interest to the respective
Properties via standard form quit claim deeds and/or assignment documents, as appropriate. The
District shall record such deeds within ten 10 days of the City's delivery of the sane, and the
District shall be responsible for all recording fees associated therewith.
2. Conditions of Transfer: The City's transfer of its interests in the Properties is
expressly conditioned .and contingent upon the following terms:
2.1. Use for Public Passive Park and Open Space Properties and . The Properties
shall be used exclusively for passive park and open space purposes only. For purposes of this.
Agreement, the term "passive park" shall have the same definition as that set forth in the
Ordinance, i.e., a public park without sports fields or sports facilities. Permitted passive park and
open space uses shall include, but are. not necessarily limited to, hiking, bicycling, horseback
riding, swimming, boating and nature viewing. The District shall have the sole discretion of
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May 25, 2005
determining which permitted uses shall be allowed on which of the respective Properties, and shall
establish appropriate rules and regulations governing such use. open space uses shall include those
set forth in the Conservation Easement attached hereto as Exhibit "B".
2.2. Compliance with Ordinance. The District's development, maintenance and
operation of the Properties shall at all times comply with and satisfy the terms, conditions and
mandates set forth in the ordinance.
2.3. Coin fiance with Terms reed to�i it n nisitio . The District shall
further comply with and satisfy all'other conditions, restrictions or terms established or agreed to
by the City at the time of the City's purchase of the respective Properties, or otherwise of record.
2.4. Sale of Hall/Rockaway Beach Lots. The Mall Property consists of lots and the
Rockaway Beach Property consists of � lots. At the time it purchased these Properties, the City
anticipated reselling up to three 3 of the Hall lots and one 1 ' of the Rockaway Beach lots as
such lots may be reconfigured through a boundary line adjustment), , and using such funds to
acquire other open space properties in accordance with the ordinance. Although the City's open
Space Commission anticipates making a recommendation to the City to reconfigure and/or sell one
or more of the Hall/Rockaway Beach lots, it is not prepared to do so prior to the proposed transfer
of the Properties to the District. The District desires to receive the Properties as soon as possible
and, in exchange for the expedited transfer, agrees that it shall, upon request from the City,
facilitate the reconfiguration of the lots as the City deems necessary or. desirable, through one or
more boundary line adjustments, and sell on the City's behalf, up to three of the Hall lots and one
of the Rockaway Beach lots. Any BLA and/or sale requested by the City shall be pursuant to such
terms and conditions as the City, in the City's sole discretion, shall dictate.
2.4.1 Boundary Line Adjustment(s). The City shall be responsible for
preparing and paying for any and all documents, records and applications that are necessary to
obtain any requested LA s . The District agrees to execute any and all documents necessary to
facilitate the LAs and to otherwise cooperate with the City in obtaining the ILs . The City
shall have the sole discretion of determining the specific configurations of any LA s and all
details associated therewith. The City shall retain all necessary consultants and shall pay for all
normal costs and expenses associated with the requested L . s . The District shall not charge the
City any administrative fee or cost for the District's assistance with such L.s .
2. . 2 Sale of .Lots. The City shall have the sole discretion of selecting
which of the Hall/Rockaway Beach lots (as may be reconfigured) shall be sold, and the timing and
terms of such sales. The District shall list the lots for sale ander such terms as directed by the
City and shall take all Treasonable measures to facilitate the sale of the lots, including but not
limited to: making the lots available for viewing and inspection; enlisting any brokers or realtors.
selected by the City; and executing and delivering all necessary sale documents and records. The
City shall cooperate and assist the District with the sale(s), as may be reasonably necessary. The
District shall immediately notify the City of any offers or inquiries received on the offered lots,
and shall not accept any offers nor engage in any negotiations for the lot(s) except as directed b
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May 25, 2005
the City. All normal costs and expenses associated with the sale of any lot(s) shall be deducted
from the sale proceeds for such lot(s). The District shall not charge the City ' any administrative fee
or cost for the District's role in such sale(s). The District shall remit all proceeds from any sale of
any lot(s), including any accrued interest thereon, to the City within five business days of
receipt, along with a copy of all closing documents, including but not limited to, the closing
statement.
2.5. Transfer of Development Rights/Conservation Easement. The parties share
the mutual intent and desire that the Properties (excluding those that may be. sold pursuant. to
Subsection 2.4 above) be preserved in perpetuity for passive park and/or open space purposes.
The District therefore agrees that, at any time upon request from the City, the District shall cause
to be recorded against those Properties identified the City a Conservation Easement in favor of
the City, in substantially similar form as- that set forth in' Exhibit"B", attached hereto .and
incorporated by this reference. The City shall have the sole - discretion to determine which
Properties shall be subject to the Conservation Easement and when such Conservation Easement
shall- be recorded against the respective Properties; provided, however, that the City shall
coordinate and work with the District in timing such recordation to facilitate the development and
sale of lots and any grant, loan or other funding application which may be wade by the District for
the benefit of any Property, if reasonably practical. Prior to the recordation of the Conservation
Easement, the District shall hold the Development Rights appurtenant to the Properties in trust for
the City and shall not develop the Properties or otherwise compromise or reduce the number of
Development Rights appurtenant to each of the Properties. In connection with the recording of any
Conservation Easement, the Development Rights appurtenant to the subject Property or Properties
shall be severed from the Property or Properties, and said development rights shall be deposited
into the City's development rights lank, or as otherwise may be directed by the City, for the City's
sole use and disposition.
2.6 Right of First Refusal. The parties acknowledge and agree that the City is
transferring the Properties and the City's interests therein to the District in consideration of the
parties' relationship and the District's unique position to best manage and operate the Properties.
The District therefore agrees that, prior to offering, on any teras, any portion of the Properties, or
any interest therein, . to any third party, the District shall first notify the -City in writing of the
District's intent to transfer any portion of the Properties and shall offer to re -convey the property to
the City,without monetary remuneration or additional consideration. The City shall have twenty
(20)clays from its receipt of the District's offer to accept said offer. If the City fails to accept' the
District's offer within such time, the District's offer shall be deemed rejected and the District may
proceed with the proposed transfer under such terms and conditions as the District determines.
3. Pr pert "AS -IS". The District accepts the Properties, and the City's interests
therein, in their present condition AS IS WHERE. IS, without warranty or representation.
. Indemnity., The District shall hold harmless, indemnify, and defend the City and
its officers, employees, agents, and contractors and the heirs, personal representatives, successors
and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities,,
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May 25, 2005
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgements,
including, without limi ation, reasonable attorneys' fees, arising from or in any way connected
with: I injury to or the death of any person, or physical damage to any property, resulting from
any act, omission, condition, or other matter related to or occurring on or about the Properties,
regardless of cause, unless due solely to the gross negligence or intentional misconduct of any of
the Indemnified Parties; 2 the District's or the District's officers' ; employees.', agents'. or
contractors' violation of any covenant or restriction touching or concerning any of the Properties;
and 3 the District"s Iistrictship, operation and maintenance of the Properties or any interest
therein.
. Covenants to Survive Transfer. The covenants, conditions and contingencies set
forth herein shall survive the City's transfer of the Properties and its interests therein, and shall be
binding upon the District subsequent to the recording of the deeds.
. Miscellaneous.
.1.. Attorge s Fees. In the event of any dispute, including mediation,
arbitration or litigation concerning this Agreement or if this Agreement is otherwise placed with an
attorney for action, then the prevailing party shall be awarded all reasonable litigation costs and
expenses, and Treasonable attorney fees. In the event of trial, the amount of the attorney fees shall
be fixed by the court. The venue of any such suit shall be Kitsap County, Washington.
.2 Binding Effect. This Agreement applies to, inures to the benefit of, and is
binding on not only the parties hereto, but on heir heirs, devisees, legatees, administrators,
executors and assigns.
6.3 Computation of Time. Any time limit in or applicable to a notice shall
commerce on the day following receipt of the notice and shall expire at midnight of the last
calendar day of the specified period of time, unless the last day is Saturday, Sunday or legal
holiday as defined in RCW 1.16.050, in which event the time limit shall expire at midnight of the
next business day. Any specified period of five days or less shall include business days only.
Time is of the essence on this Agreement.
.4 Notices. All notices, demands, consents, approvals and other
communications. which are required or desired to be given by either party to the other hereunder
shall be in writing and shall be hand delivered or sent by United States regular~ mail, postage
prepaid, return receipt requested, addressed to the appropriate pr.y at its address set forth below,
or at such other address as such - party shall have last designated by notice to the other. Notices,
demands, consents, approvals, and other coxnunications shall be deemed given 'when delivered or
three days after mailing to the following addresses.:
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Resolution 2005-19 - open Space property transfer to BIPRD
May 25, 2005
To the City: Attn: City Administrator
280 Madison Avenue North
Bainbridge Island, Washington 98110
(206) 842-2545
(206) 780-8600 facsimile
To the District: Attn: Director
P.- o. Box 10010
Bainbridge Island, Washington 98110-
(206) 842-2306
(206) 842-0207 facsimile
.5 Assignment. The District may assign this Agreement to its successor -in -
interest, the Metropolitan Park District, without the consent of the City. The District shall : not
assign this Agreement or any rights hereunder to any third party other than. its except with the
express written consent of the City, which consent may be withheld for any reason.
Whereas the parties have caused this Agreement to be executed the day and year indicated
above.
THE CITY:
City of Bainbridge Island, Washington, a
Municipal Corporation:
arle a Kordonowy, Mayor
THE IISTMICT;
Bainbridge Island Metropolitan Park and
Recreation District, a Washington
Municipal Corporation:
By:_
Its
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May 25, 2005
STATE OF WASHINGTON )
} ss
COUNTY OF KITSAP }
I certify that I know or have satisfactory evidence that is. the
person who appeared before me, and said person acknowledged that she signed this instrument, on
oath stated that she was authorized toexecute the instrument, and, acknowledged it as the
of City of Bainbridge Island, Washington to be the free and
voluntary act of such entity for the, uses and purposes mentioned in the instrument.
DAT D.
NAME:
{Print warn
Notary Public in and for the Mate of Washington
Commission Expires: .�
STATE OF WASHINGTON )
ss
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that . is the
person who appeared before me, and said person acknowledged that he signed this instnunent, on oath
stated that he was authorized to execute the instrument, and acknowledged it as the
of Bainbridge Island Municipal Park -and Recreation District to be the
free and voluntary act of such entity for the uses and purposes mentioned in the instrument.
DATED:
NAME:
(Print Name)
Notary Public in and for the Mate of Washington
Commission Expires:
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May 2, 2005
Exhibit "A39
T
Agreement Regarding Transfer of Open Space Properties
Legal Description of Properties
oca Beach
Lots 4, 471) 4 -and 49, Blakely Beach Addition '. 1, According to Plat recorded in Volume 7 of
Plats, Page 51, in Kitsap County, Washington;
Together with "tidelands as conveyed by the Mate of Washington, situate in front of, adjacent. t
and abutting thereon.
Hail
Parcel A
Lots 1, 2, 3 and 4 of Short Plat No. 2331, Recorded under Auditor's File No. 8010010130, being
a portion of Government Lot 1, Section 26, Township 25 Horth, Range 2 East, W, M . , in Kitsa
County, Washington;
Together with Second Class Tidelands as conveyed by the State of Washington situate in front of,
adjacent to and abutting thereon.
Parcel
That portion of Government Lot 1, Section 26, Township 25 North, Range 2 East, W.M., in
Kitsap County, Washington, described as follows
Beginning at a point on the Government Meander Line where the Last line of the Nest 15 acres of
said Government Lot 1 intersects said Meander Line; thence Forth, along the East Linc of said
West 15 acres, 350 feet to the true point of beginning; thence North along the East line of said
West 15 acres to the North line of said West 15 acres; thence West along said North line 15 feet;
thence South to a point opposite the true point of beginning; thence East 15 feet, to the true point of
beginning.
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Pe.tem
That portion of the Southwest quarter of Section 33, Township 25 North, Range 2 East, w.M.,
City of Bainbridge Island, Ki
Resolution 2005-1 - open Space property transfer to BIPR
May 25, 2005
tale Paint
Carlson Property
The land being conveyed to the Metropolitan Park ]district from the City of Bainbridge Island,
Washington is a piece 10 feet by 187.56 feet. It is due west of Kitsp County Tax Loot #172502-1-042-
2004. It is the West 10 feet of the South Half of the South Half of the Southeast Quarter of the
Northeast Quarter of Section 17, Township 25 North, Range 2 East, except the North 577 feet thereof,
Kits p County, Washington.
ostrand Property
The South Half of the South Half of the following described property:
The Southeast Quarter of the Northeast Quarter, Section 17, Township 25 Nord, Range 2 East, W.1 I. ,
in Kitsap County, Washington; except the West 10 feet thereof; and except the North 577 feet thereof.
Ruch Property
Parcel C of survey recorded in Volume 22, Page 134 under Auditor's File No. 8502200102, being a
portion of the Southwest Quarter of the Northeast Quarter, Section 17, Township 25 North, Range 2
East, W.M. , in I itsap County, Washington.
Swingle Property
A non-exclusive easement to construct and maintain a trail up to six feet in 'width, for non-motori ed
trail use across the real property described as follows:
The north ten 10 feet of the following described property:
Resultant Parcel A of Boundary Line Adjustment recorded under Auditor's File No. 3009699, being a
portion of the Northwest Quarter of the Southeast Quarter, Section 17, Township 25 North, Range 2
East, W. M. , in I itsap County, Washington, and being comprised of the following described Parcels I
and 11:
PARCEL I
That portion of the East Half of the West Half of the West Half of the Northwest Quarter of the
Southeast Quarter of Section 17, Township 25 North, Range 2 East, W.M. , in Kitsap County,
Washington, described as follows:
Beginning at the center of said Section 17; thence South 891 34'59" East along the forth line of said
Southeast Quarter of Section 17, 165.32 feet to the true point of beginning;. thence South 00 29'54"
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West along the west line of said subdivision 322.78 feet; thence South 890 40'46"' East 165.32 feet,
more or less, to the East line of said subdivision; thence North 00 29'51 " East along the East line of said
subdivision 322.50 feet to- the North line of said subdivision; thence Nrth 890 34'37" 'west along. the
North line of'aid subdivision to the true point of beginning;
(Also known as Lot 4 of Short Plat No. 853, recorded under Auditor's File No. 7706070097).
PARCEL II
That portion of the west one-half of the East one-half of the west one-half of the Northwe t Quarter of
the Southeast Quarter. of Section 17, Township 25 North, Range 2 East, w.M. , City of Bainbridge
Island, Kitsap County, Washington, described as follows;
Beginning at the Northeast corner of Lot 4, Short Plat No. 853, reorded under .Auditor's File No.
7706070097; thence along the East line of said Lot 4, South 010 21'31" west 322.50 feet to the
Southeast Corner thereof-, thence East on the extension of the South line of said Parcel 4, South
° 49'24" East 165.33 Feet to a point on the East line of said West one-half of the East one-half of the
West one --half of the Northwest Quarter of the Southeast Quarter of Section 17; theme along said East
line, North 0111 21'2'7" East 322.22 feet to the Northeast corner of said subdivision; thence along the
Forth line thereof, North 881 43'35" west 165.32 feet to the point of begimmg.
Said trail may meander within the 'grail Easement area as i . necessary to address trail construction needs
and topographic constraints of the Trail Easement area such as gullies, ravines and water courses.
oeschen Property
non-exclusive easement to construct and maintain a grail up to six 6 feet in width, for non -motorized
trail use across the property described as follows.
The South twenty (20) feet of the West twenty (20) feet of the following described Parcel:
Lot 3, Plat of Islandwood Estates, according to the Plat recorded in Volume 26 of Mats, Pages 110 and
111, Records of Kitsap County, Washington.
Said trail may meander within the Frail Easement area as is necessary to address trail construction needs
and topographic constraints of the Trail Easement area such as gullies, ravines and water courses.
Nothing herein shall prevent Grantors from maintaining their property within the Trail Easement in any
manner which is consistent with Grantee's easement rights, as herein defined, including but not limited
to the removal or thinning of trees to create or maintain view corridors, or the creation of trails for the
exclusive use of Grantors.
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Akita Property
non-exclusive easement to construct and maintain a trail up to six feet in width, for non-
motorized
on-
mot ri ed trail use across the real property described as follows:
The forth ten 1 feet - of he following described parcel
The West half of the west half of the West half of the Northwest Quarter of the Southeast Quarter,
Sectio. 17, Township- 25 North, Range 2 East, v.M., in Kitsap County, Washington; except that
portion of the South, if any, for I.E. Nolo Road.
Wiest ori e Property
A non-exclusive trail easement across the North.ten l feet of the following -described parcel:
The West half of the West Half of the East Half of the Northwest Quarter of the Southeast Quarter,
Section 17, Township 25 Forth, Range 2 East, W.M. , in Kitsap County, Washington; except the
South 997.48 feet hereof;
Together with the East Half of the East Half of the West Half of the Northwest Quarter of the
Southeast Quarter of Said Section 17;
Except the South 997.48 feet thereof;
(Also known as Parcel "" of Short Plat No. 1598 recorded August 28, 1978 under Auditor's File
No. 7808280115)
tach Property
A non-exclusive easement to construct and maintain a trail up to six feet in width, for non -
motorized trail .use across the real property described as follows:
The South ten 1 feet of the East sixty feet of the following described parcel
Parcel B of Survey recorded in Volume 22, Page 134 under Auditor's File No. 8502200102, being
a portion of the Southwest Quarter of the Northeast Quarter, Section 1.7, Township 25 North,
Range 2 East, W. M., in Kitsap County, Washington.
Said hail may meander within the 'frail Easement area as is necessary to address trail construction
needs and topographic constraints of the Trail Easement area such a gullies, ravines and gator
courses.
Nothing herein shall prevent Grantors from maintaining heir property within the Trail Easement i
any manner which is consistent with Grantee's easement rights, as herein defined, including, but
not limited to the removal or thinning of trees to create or maintain view corridors, or the creation
of trails for the exclusive use of Grantors.
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Exhibit "B"
T
Agreement Regarding Transfer of opera Space Properties
AFTER RECORDING RETURN T.
City of Bainbridge Island
Attn. City Administrator
280 Madison Avenue North
Bainbridge Island, Washington 98110
DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS RELATING To
CONSERVATION of PROPERTY
Grantor: Bainbridge Island Park District, a Washington municipal corporation
Grantee: .City of Bainbridge Island, Washington, a municipal corporation
Abbreviated Legal Description:
Assessor's Tax Parcel I##:
Property #: NA
Reference Numbers of Documents Released or .Assigned: IIIA
THIS DECLARATION of COVENANTS, CONDITIONS AND RESTRICTIONS
RELATING T CONSERVATION OF PROPERTY (this "Declaration") is made this � day of
, 2005 by the B.INBRIE ISLAND MUNICIPAL PARD AND RECREATION
DISTRICT, a Washington municipal corporation (the "District") in favor of, and for the benefit
of, the CITY of BAINBRIY GE ISLAND, WASHINGTON, a municipal corporation (the "city").
I. Background and Intention
A. The District is the sole owner in fee simple of certain real property in Iitsap
County, Washington, more particularly described in Exhibit A (the "Property").
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B. The Property has certain scenic area, natural, educational, forestland, wetlands,
wildlife habitat, recreational, and agricultural values (collectively, "Conservation 'value's ") of great
importance to the City and the people of Bainbridge Island, Kitsap County and - the State of
Washington.
C. The specific Conservation Values are more particularly described and documented
in Exhibit B ("Baseline Documentation"), which documentation provides, collectively, an accurate
representation of the Property and description of the Conservation Values at the time of this
Declaration and ' which is intended to serve as an objective information baseline for monitoring
compliance with the terms of this Declaration.
D. The District desires to ensure that the Conservation Values shall be preserved and
maintained in perpetuity by prohibiting uses of or activities on the Property that will i it or
interfere with those values, in addition, and pursuant to BIMC 18.37.070, the District wishes to
sever and transfer to the City development rights of the Property by executing this
Declaration.
E. The City is a municipal corporation, qualified to receive the rights conveyed herein
for the purpose of conserving and preserving the waters, wetlands, wildlife habitat, timberlands,
undeveloped land, scenic areas, open spaces, and recreational and agricultural lands on Bainbridge
Island and in Iitsap County.
II. - Terms of Declaration
1, Declaration of Covenants and Conditions. For the reasons stated above, the
District hereby declares that all of the Property is held and shall be Meld, conveyed, encumbered,
leased, rented, occupied and improved subject to the provisions of this Declaration. The rights,
restrictions and covenants contained herein shall be perpetual and shall run with the lana,
2. Purpose and Intent. The purpose of this Declaration is to assure that the Property
will be retained forever in its current condition and to prevent any use of the Property that will.
substantially impair or interfere with the Conservation Values. The District intends that this
Declaration will restrict the use of the Property by the District and its successors and assigns to
such activities as are consistent with the purpose of this Declaration.
3. Rights of the District. To accomplish the purpose of this Declaration the District
hereby conveys to the City the following rights with respect to the Property:
.1. To preserve and protect the Conservation Values;
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Resolution 2005-1 - open Space property transfer to B1PRD
May 25, 2005
3 :2. To enter upon the Property at Treasonable times, in 'the City's disretion, t
monitor the Distriet's compliance with and to otherwise enforce the terms of this Declaration;
provided that the City shall provide reasonable notice to the District before entering upon the
Property, and the City shall not unreasonably interfere with the District's use and quiet enjoyment
of the Property;
3-3. To prevent any activity on or use of the Property that is inconsistent with
the purpose of this Declaration and to require the restoration of such areas or features of the
Property that may be damaged b. any such inconsistent activity or use, pursuant to Section ; and
3.4. To place a sign no larger than six shore feet at the edge of the Property
and/or a series of boundary markers along the boundary of the Property, declaring that the
Property is being preserved pursuant to this Declaration in favor of the City of Bainbridge Island
and stating other information about the City's conservation efforts.
4. Prohibited Activities and Uses. Any activity on or use of the Property inconsistent
with the purpose of this. Declaration is prohibited, without limiting the generality of the foregoing,
except to the extent such activities are expressly permitted in Section 5, the following activities on
and uses of the Property are inconsistent with the purpose of this Declaration and are expressly
prohibited:
4.1. Subdivision. The legal or de facto subdivision of the Property for any.
purpose;
.2. Surface Alteration. Any alteration of the surface of the land, including,
without limitation, grading and the excavation or removal of soil, sand, gravel, rock, peat, or sod,
except as such alteration specifically relates to and facilitates the . passive parr anchor open space
activities permitted upon the Property;
4.3 Construction of Structures. The construction, installation or erection of
any temporary or permanent structures, except to the extent that such structures are directly related
to, consistent with, and facilitate the passive. parr and/or open space activities permitted herein.
4.4 Wetlands. The draining, filling, dredging or diking of any wetland areas;
4.5 Waste Disposal. The dumping or other disposal of any waste, refuse or
debris of any description, including toxic or hazardous substances as defined in any applicable
federal, state or local laws, regulations or ordinances;
.4.6 Utility Sterns. The installation of new utility systems or extensions of
existing utility systems, including, without limitation, water, sewer, septic, power, fuel, and
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May 2, 2005
communication lines and related facilities, except to the extent reasonably necessary to support the
passive park and/or open space activities upon the Property;
4.7 Mineral Development. The exploration for minerals, including sand and
gravel, or hydrocarbons, or development or extraction thereof by any, method;
4.8 Hunting and Fishing. Hunting, trapping, or otherwise -catching or Millin
animals or fish except for the purpose of controlling feral domestic animals;
4.8 Sports Fields and Facilities. The construction, installation or maintenance
of temporary or permanent sports fields and facilities.
. Permitted Uses. Notwithstanding the activities and uses expressly prohibited in
Section 4, the , following activities are consistent with the purpose of this Declaration and such
activities and uses on the Property are permitted:
.1. Passive park activities, such as hiking, bicycling, horseback riding, boating,
kayaking, s inr ming, picnicking and nature viewing. The use. of motorized vehicles and
equipment shall - e permitted only to the extent that such use is necessary to maintain the Property
for, and to facilitate, the passive part and/or open space activities permitted herein.
5.2 The placement of signs or billboards may be displayed i to state the name
and address of the Property,(ii) to state the preserved nature of the property; (iii) to advertise the
passive park and/or open space activities and operations conducted upon the Property; and v to
post the Property to control unauthorized entry or use; and
5.3 All activities incidental and/or necessary to the use of the -Property for
passive parkand/or open space activities, in accordance with generally accepted industry standards
and practices,
. Development Rights. Pursuant to BIMC 18.37.080, concurrently herewith, the
District is transferring to the City, via a Warranty Deed of Development Rights, unused
development rights appurtenant to the Property. Upon such transfer, such rights shall be
permanently severed, terminated and extinguished from the Property, and may not be used on or
transferred to any portion of the Property as it now or hereafter may be bounded or described, or
to any other property adjacent, or used for the purpose of calculating permissible lot yield or.
density of the Property. The District shall take such further action, including execution and
delivery of such further papers or documents, as may be now or hereafter necessary to carry out
the purpose and 'intent of this section in accordance with applicable law.
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Resolution 2005-1 - open Space property transfer to BIPRD
May 2., 2005
7. Notice of Permitted Actions; Request for Approval of Actions; The City's
Approval; Me iatiom Arbitration.
7.1. . Request for Approval of Actions. If the District is unsure whether a
proposed use or action is permitted or prohibited hereby, the District may request approval by the
City describing the nature, scope, design, location, timetable, and any other- material aspect of the
proposed use or activity in sufficient detail to permit the City to make an informed judgment as to.
whether it is inconsistent with the purpose and intent of -this Declaration or within the meaning of
an express prohibition or is consistent with the purpose and intent of -this Declaration or within the
meaning of an express permitted use.
7.2. The City's Approval. where notice to the City of a proposed use or
activity is required hereunder or where the City's approval of any use or activity is requested
hereunder, the City shall in either case notify the District of its disapproval of such use or activity
within sixty days after receipt of the District's notice thereof or request therefor. The City's
approval may be withheld if the proposed action is expressly prohibited or upon a- reasonable
determination by the City that the action as proposed would be inconsistent with the purpose and
intent of this Declaration, in which case the District shall not undertake the proposed use or
activity. If the City does not notify the District of its disapproval of the proposed use or activity
within such 60 day period, the City shall be deemed to have approved thereof.
. The City's Remedies. If the City determines that the District is in violation of the
terms of this Declaration or that a violation is threatened, the City may give written notice to the
District of such violation and demand corrective action sufficient to cure the violation and, where
the violation involves injurer to the Property resulting from any prohibited uses or activity or any
use or activity inconsistent with the purpose of this Declaration, to restore of the portion of the
Property so injured. If the District fails to cure the violation within 30 days after receipt of the
notice from the City, or under circumstances where the violation cannot reasonably be cured within
a 30 clay period, fails to .begin curing such violation within the 30 day period, or fails to continue
diligently to cure such violation until finally cured, the City may bring an action at law or in equity
in a court of competent jurisdiction to enforce the terms of this Declaration, to enjoin the violation,
ex parte as necessary, by temporary or permanent injunction, to recover any damages to which it
may be entitled for violation of the terms of this Declaration or injury to any Conservation values
protected by this Declaration, including damages for the loss of any Conservation Values, and to
require the restoration of the Property to the condition that existed before the injury.
The City's rights under this section apply equally in the event of either actual or threatened
violations of the terms of this Declaration. The City's remedies at law for any violation of the
terms of this Declaration are inadequate and the City shall be entitled to the injunctive relief
described in this section, both prohibitive and mandatory, in addition to such other relief to which
the City may be entitled, including specific performance of the terms of this Declaration, without
the necessity of proving either actual damages or the inadequacy of otherwise available legal
remedies. The City's remedies described in this section shall be cumulative and shall be in
addition to all remedies now or later existing hereunder, or at law or in equity.
Pg. 19 of 27
e olution 2005-19 - Open Space property transfer to BIPRD
May 2, 2005
.1. Costs of Enforcement. Any reasonable costs incurred by the City in
enforcing the terms of this Declaration against the District, including, without limitation, costs of
suit and attorneys fees, and any -costs of restoration or other corr.ective action necessitated by the
District's violation of the terms of this Declaration' shall be borne by the District. If the District
prevails in any action to enforce the terns of this Declaration, the District's costs of suit,
including, without limitation, attorneys' fees, shall be borne by the City.
.2. The City's Discretion. Enforcement of the terms of this Declaration shall
be at the discretion of the City, and any forbearance, delay or omission by the 'City in the exercise
of its rights or remedies under this Declaration in the event of any breach of any term. of this
Declaration by the District shall not be deemed or construed to be a waiver by the City of such
term or of any subsequent breach of the sane or any other terra of .this Declaration nor impair or
be deemed a waiver of any of the City's rights or remedies under this Declaration.
.8. 3. Waiver of Certain Defenses. The District hereby waives any defense of
laches, estoppel or prescription.
8.. Acts Beyond the District's Control. Nothing contained in this Declaration
shall be construed to entitle the City to bring any action against the District for any injury to or
change in the Property resulting from causes beyond the District's control, including, without
limitation, fire, flood, storm, and earth movement, or from any prudent action taken by the District
under emergency conditions to prevent, abate or mitigate significant injury to the Property
resulting from such causes.
8.5. Third Party Claims. 1n the event of any breach hereof resulting in injury
r damages to the Conservation values protected hereby, caused by any person or entity not within
the control of the District, if the District does not promptly and diligently pursue any and all rights
and remedies available to the District to prevent, abate, or mitigate such injury , r damages.,
including restoration of the Conservation values, thea the District shall, at the City's request,
assign all such rights and remedies to the City so as to permit the City to enforce such rights and
remedies in its own name or the name of the District, and cooperate with the City in any action
undertaken by the City to enforce such rights and remedies; provided, however, that the City shall
be under no obligation to enforce such rights and remedies.
9. Costs and Liabilities; Taxes. The District shall be solely responsible for and shall
bear all costs and liabilities of any kind related to the ownership, operation and maintenance of the
Property, including the cost of adequate comprehensive general liability insurance coverage. The
District shall pay before delinquent all taxes, assessments, fees and charges of any kind levied on
or assessed against the . Property by competent authority (collectively "taxes"). The City is
authorized but in no event obligated to make or advance any payment of taxes, after three days
prior written notice to the District, in accordance with any bill, statement, or estimate procured
from the appropriate authority, without inquiry into the validity of the taxes or the accuracy of the
bill, statement or estimate. If the City does make any such payment of taxes, the District shall
reimburse the City with interest until paid at a rate of twelve percent (12%) per annum, on
Pg. 20 of 27
Resolution 2005-1 - open Space property transfer to BIPR
May 2, 2005
demand, The District hereby grants and conveys to the City a mortgage lien on the property to
secure such reimbursement. The City may record a notice of any such advance.
10. Indemnity. The District shall hold harmless, inden `fy, and defend the City and
its officers, employees, agents, and contractors and the heirs, persoial representatives, successors
and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities,
penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments,,
including, - without limitation, reasonable attorneys' fees, arising from or in any way connected
with; 1 injury to or the death of any person, or physical damage to any property, resulting from
any act, omission, condition, or other matter related to or occurring on or about the property,
regardless of cause, unless due solely to the negligence of any of the Indemnified parties; 2 the
breach of any covenant herein by the District including without -limitation the reasonable cost of
any corrective action taken hereunder by the City; and the existence or administration of this
Declaration.
11. Extinguishment. This declaration constitutes a read property interest immediately
vested in the City. if circumstances arise in the future that render the purpose of this Declaration
impossible to accomplish, this Declaration can be terminated or extinguished, whether in whole or
in part, only with the City's consent, which. consent may be withheld for any reason, or by judicial
proceedings in a court of competent jurisdiction.
12. Assignment; Executory Limitation. The City may assign its rights and obligations
under this Declaration only to a municipality or other organization that is a qualified organization
at the time of transfer under Section 170(h) of the Internal Revenue Code, as amended (oar any
successor provision they applicable) , and the applicable regulations promulgated under that section,
and that is authorized to acquire and hold conservation casements under ICW 84.34.250, a
amended. As a condition of such transfer, the City shall require assurances that the transferee will
enforce the terms hereof in furtherance of its conservation purposes,
12.1. Notices. Any notice, demand, request, consent, approval or communication
that either party desires or is required to give to the other shall be in writing and either served
personally or sent by ceftified mail, postage prepaid, to the last -known nown physical address of each
party or to such other address as either party from time to time shall designate by written notice to
the other. Notices. shall be effective on receipt. Any subsequent owner of the property shall
promptly deliver to the City the District's physical address for service of any notices required
herein. If the owner fails to notify the City of the owner's physical address, the City may serve
notice upon the owner by posting said notice in a conspicuous place upon the property. As of the
slate of this Declaration, the City's address is:
City of Bainbridge Island
Attn. City Administrator
20 Madison Avenue North
Bainbridge Island, Washington 98110
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May 25, 2005
13. General Provisions.
13. 1. , Controlling Law. The interpretation and construction of this Declaration
shall be governed by the laws of the State of Washington.
13.2. Liberal Construction. Any general ' rule of construction to the contrary
notwithstanding, this Declaration shall be liberally construed in favor of the grant to effect the
purpose of this Declaration, the policy and purpose of RCW 84.34.200-240 and RCW 64.04.130,
as amended. If any p'rovision in this instrument is found' to be .ambiguous, an interpretation
consistent with the purpose of this Declaration, that would reader the provision valid shall -be
favored over any interpretation that would render it invalid.
13.3. Severability, The invalidity or unenforceability of any terms, or provision
hereof shall not affect the validity or enforceability of any' other term or provision hereof.
13.4. Entire Agreement. This instrument sets. forth the entire agreement of 'the
parties with respect to the Declaration and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Declaration, all of which are merged into this
instrument.
13.5. Joint and Several obligation. If the District includes more than one
person or entity, the obligations imposed by this Declaration upon the District and each of then,
shall be joint and several:
1.3.6 Successors. This Declaration shall be binding upon, and inure to the
benefit of, the City and the District, and their respective heirs, personal representatives, successors
and assigns.
13.7 Termination of Rights and Obligations. A party's rights and obligations
under this Declaration shall terminate upon transfer of the party's interest in the Declaration or
Property, except that liability for acts or omissions occurring before transfer shall survive transfer.
13.8 Captions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
13.9 Recordation. This Declaration shall be recorded, along with the
Certificate(s) of Development Rights attached hereto as Exhibit C and incorporated by this
reference, in the official records of Kitsap County, Washington and the City may re --record it at
any time as may be required to preserve its rights in this Declaration.
13. 10 Amendment. This Declaration may be amended only in writing signed by
the District and the City or their successors and assigns, provided, however, that no amendment
may adversely affect the qualification of this Declaration or the status of the City under any
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Resolution 2005-1 - Open Space property transfer to BIPRD
May 25, 2005
applicable laws, nor affect the Declaration's perpetual duration. Any amendment shall be recorded
In -the official records of I itsap County, Vashington.
13.11. Counterparts. This Declaration may be executed in any number of
counterparts for the convenience of the parties, all of which, when taken together and after
execution by all parties hereto, shall constitute one and the same in tru hent.
13.12 Exhibits. Exhibits A through C attached hereto aro incorporated herein..
THE DISTRICT:
BAINBRIDGE ISLAND METROPOLITIAN PARK
AND RECREATION DISTRICT, a Washington
municipal e rportaio :
B
Its
THE CITE:
CITY OF BAINBRIDGE ISLAND,
WASHINGTON, a municipal corporation:
B
Darlene I ord now , Mayor
Pg. 23 of 27
Resolution 2005-19 - Open Space property transfer t BIPRD
2
May ; 2005
STATE OF WASHINGTQN )
} ss
COUNTY OF )
I certify that I know or have satisfactory evidence that _ is the
person who appeared before nye, and said person acknowledged that he. signed this instrument, on
oath stated that he was authorized to execute the instrument, and acknowledged it as the
f Bainbridge Island Municipal Park and Recreation District to ' e
the free and voluntary act of such entity for the uses and .purposes mentioned in the instrument,
DATED:
AME:
(Print Nae,
Notary Public in and for the Mate of Washington
Commission Expires
STATE OF WASHINGTON )
ss
COUNTY OF KITSAP )
I certify that I know or have satisfactory evidence that is the
person who appeared before me, and said person' cknowled ed that she signed this instrument, on
oathtatd that she was authorized to execute the instrument, and acknowledged it as the
of City of Bainbridge Island, Washington to be the free and
voluntary act of such entity for the uses and purposes mentioned in the instrument.
DATED:
NAME.
(Print Naim
Notary Public in and for the Mate of Washington.
Commission Expires:
Pg. 24 of 27
Resolution 2005-1 - Open Space property transfer to BIPR
May 2, 2005
EXHIBIT ,
To
Conservation Easement
Legal Description of Property
Pg. 25 of 2
Resolution 2005-19 - Open Space property transfer to BIPRD
May 25, 2005
XIIIT
To
Conservation Easement
Conservation Values
P. 26 of 27
Resolution 2005-19 - Open Space property transfer to BIPR
May 25, 2005
EXHIBIT C
To
Conservation Easement
Certificate of. Development Rights
Pg. 27 of 27
SPECIAL/REGULAR COUNCIL MEETING
MAY 25, 2005
males; that on June 1, from 7: 00 PSI — 9:00 PM at the Silverdale Community Center a forum will be held to discuss current and future
plans. He responded to a question asked by Councilrnember To to a stating 5% of Kits p County homeless have made sleeping
arrangements, that 5% still sleep under bridges and in parks and that homeless people are found in all parts of Iitsap County.
Mayor I ordon wy asked whether Mr. Schremser has communicated with the Bainbridge Island Health, Housing & Human Services
Council HHH& to which he stated the forum will concentrate on developing relationships with agencies in the future.
Couneilmernber To loee requested that data pertaining to Bainbridge Island homeless be shared with Helpline House and HHHc S.
10. RECESS.,
The regular City Council meeting ofl May 25, 2005, adjoin ed for a -minutes recess. The meeting resumed immediately following
the recess with the aforementioned Mayor and City Councllrnembers Present.
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��'"�'rv:ir l_
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Director Witt stated the proposed resolution supports the transfer/surplus of 4 Open Space properties to the Bainbridge Island
Metropolitan Park District (Hall, Rockaway Beach, Peters & Battle Point Trail properties), authorizes the Mayor to' execute the
documents Agreement & Conservation Easements) and establishes a mechanism for possible future subdivision or sale of properties.
He explained the full title of the Park District including "Metropolitan"' should be included in the documents and has not been and that
the Park District is considering a similar resolution at its Board meeting Thursday night.
Connie Waddington, Open Space Commission., explained the commission always planned that some Open Space properties would be
transferred to the Park District and thanked those who have been helpful in bringing the transfer to f-uition.
Richard LaBotz stated the transfer of the Peters and Battle Point Trail properties make sense clue to their location adjacent to Battle
Point Park and raised concern regarding maintenance of other Park District properties. He suggested that the Hall and Rockaway
Beach properties remain in City ownership and become a park of waterfront Park. He requested that parking spaces be installed at the
Hall property and that privacy measures be installed on Rockaway Beach. He proposed that wagon rides be initiated from the Johnson
property to Yeomalt Cabin.
Mayor Iordonowy closed the public hearing.
Coun ilmemb r o s moved to approve sol i n No. 200.5-1 , Open Space Property Transfer o Bainbridge Island Metropolitan
Park District, with the following amendment to Exhibit A, to remove all reference t "'Rockaway aLots "'from p t [section 2.4,
precluding the City fern subdividing the Rockaway Beach property in perpetuity. Coun ilrnemb r mann seconded the motion that
was unanimously approved.
Bainbridge Island Metropolitan Park District Executive Director Lande, thanked the City Council, City Administrator Briggs and
Assistant City Attorney weber for completion of the documents, acknowledged the foresight shown by the community, the City
Council and the Open Space Commission. He stated he anticipates that the Park Board will approve its resolution.
12. UNFINISHED BUSINESS: A. AB 0901 CAPITAL FACILITIES PLANNING, 2006 AMENDMENT PROCESS
Director Frazier explained the Growth Management Act requires the annual update of the Capital Improvement Plan as part of the
budget and planning process. He stated his hope that the plan can be ready in August for City Council approval.
Coumcilmembers discussed the following: Start the process earlier with more community involvement, Planning Commission
involvement will make for a more efficient process and that 2 Planning Commissioners attend all Capital Facilities Committee
meetings.
On motion by Coun ilrnernber Scales, second by Councilmember Tool e, the proposed Capital Facilities Planning Process was
unanimously approved.
13, MEETING EXTENSION
On inotion by Coun ilrnernber po erg, [second by Co n ilmemb r Scales, the speciallregular City Council meeting of May 25, 2005,
was unanimously extended to complete the remaining business on the agenda,