The City of Burien is proposing to offer the seven non-profit tenants from the Burien Annex over $234,000 total as settlement money, according to the updated Agenda Bill for Monday night’s City Council meeting.

The money would be split up amongst the seven non-profits, apparently based on requested costs/needs made to the city’s Annex Tenant Support Team.

However, in order for tenants to receive the settlement money, they would have to sign a “hold harmless” waiver for any and all claims against the city related to the Annex.

The proposal will be discussed and most likely voted on at Monday night’s Burien City Council meeting (download full agenda/packet here), which starts at 7 p.m.

As we’ve previously reported, the city decided to close the Annex based on a $44,000 report done by MENG Analysis. No testing (for lead in water or asbestos) was conducted prior to the Dec. 9, 2019 announcement to evict the following seven non-profits on Jan. 31, 2020 (although a resident conducted tests on Dec. 18, which were dismissed by the city):

- Burien Actors Theatre
- Hi-Liners Musical Theatre
- Para los Niños
- Burien Cooperative Preschool
- Transform Burien
- Meals on Wheels
- Journey Arts and Crafts

The city is under fire by most of these tenants – along with board members, supporters, activists, parents and others – for how it’s handled this hot-button issue that could affect the city’s most needy during the winter, or even cause some organizations to turn their lights off forever.

Many tenants say they were first notified of the impending eviction notice on Dec. 9, 2019 – just 55 days prior to the Jan. 31 deadline. There are rumors that at least one tenant knew about this issue months ago though.

“We met with each tenant in person on December 9, 2019 to inform them that their leases would not be renewed and that the building would need to be vacated by January 31, 2020,” City Manager Brian Wilson said in a Jan. 3 Letter to the Editor. “There were no lease renewal provisions contained in the tenant leases. Our goal is ensure the sustainability of the nonprofit tenants (during the transition and for the long term) with support and assistance.”

Burien Actors Theatre released the following strongly-worded statement to The B-Town Blog on Friday, Jan. 3, 2020:

“BAT would like to find a solution to the issues created by the City Manager’s lack of testing and his defining the word ‘possible’ to mean definite. However, the City Manager does not appear to want a dialogue.

“The City paid for testing of the buildings for lead and asbestos as part of MENG report  (there was no mold found in the building), but decided against doing the testing. Instead, the City Manager acted on a report that says those dangers are ‘possible’ without testing for them. A friend of BAT, in a heartfelt desire to know if there were actual risks associated with the buildings, had testing done by State Certified Laboratories. These tests came back, showing all samples showed nothing or were well below EPA standards.

“Nevertheless, the City Manager claims the City’s insurer says the tenants must vacate. However, the City refused to provide a copy of that letter from the insurance company. Additionally, despite being properly served with a Public Records Request on December 11, 2019, which allowed the City five days to respond, the City has refused to provide any records that are not already posted on the City website. The City is in violation of State law.

“In exchange for serious issues the rushed action of the City Manager has caused for BAT, the City wants a hold-harmless agreement where BAT accepts liability for the negligence of the City. Accepting such a one-sided offer, of course, is not in BAT’s best interest.

“While negotiating potential litigation in a public forum is never in the City’s best interest, it is safe to say that the staff’s recommendation to BAT’s Board of Trustees is to reject the City Manager’s first offer to resolve the issues he created.”

Here’s more from the Agenda Bill:

“In order to support our nonprofit tenants with their operations and transition from the Annex Building by January 31, 2020, the following level of support is recommended based on discussions and input from Annex Tenant Support Team meetings with tenants:”

NOTE: The city adds the following caveat:

“Financial support to these organizations will require a waiver and hold harmless for claims against the City.”

Which basically means that in order for tenants to accept settlement money, they won’t be able to sue the city for health or other claims from when they were housed in the Annex (i.e.: if indeed someone suffered from asbestos poisoning, they are signing away their ability to sue or make a claim against the city, etc.).

Somewhat ironically, on Oct. 7, 2019, the city council approved Ordinance 716 on Rental Housing Policy, which gives residential tenants in buildings requiring rehabilitation “at least 120 days’ written notice prior to the date set for vacating“:

“The owner seeks to do substantial rehabilitation in the building and gives the tenant at least 120 days’ written notice prior to the date set for vacating. To utilize this basis as the rationale for termination, the owner must obtain at least one permit necessary for the rehabilitation before terminating the tenancy”

In the Agenda Bill, the city gives these five options for action at Monday’s council meeting:

1. Council confirmation of January 31, 2020 date for the Annex to be vacated by tenants.
2. Allow the Co Op Preschool to keep equipment and material in the outside fenced areas currently utilized for a three (3) month temporary basis.
3. Support Annex Tenants with funding assistance for operations, moving, and storage in the amount of $234,428.00 in order to assist in the vacation of the Annex Building by January 31, 2020 and to assist in the identification of temporary and permanent sites to relocate.
4. Arrange for the placement of up to three (3) 8×20 storage boxes on the Annex property on a six (6) month temporary basis as storage options for the Annex Tenants. Estimated cost approximately $3,500.00
5. Alternative direction provided by Council.

If you have an opinion on this issue that you’d like to share with the city, we recommend emailing it to council@burienwa.gov (NOTE: your email will become public record as “Correspondence to the Council”).

Below is full text of the Agenda Bill:

Summary
Following notification on December 2, 2019 of the condition of the Annex Building through a report from MENG Analysis, the City has moved forward with the following priorities:

- - Safety for tenants, children, staff, and visitors of the Annex Building, now and into the future.
  - Managing the overall risk and liability to the City based on the current condition of the building.
  - Through the Annex Tenant Support Team, ensure the sustainability of the nonprofit tenants (during the transition and for the long term) with support and assistance.

The Annex Building was originally constructed as the Chelsea Park Elementary School in the late 1940s. Chelsea Park School closed in 1976. With funding from the 1968 Forward Thrust Parks and Recreation Bond, the former school building was converted to the Highline Community Center and was managed by the King County Parks Department. Once the City of Burien incorporated in 1993, ownership of the buildings and grounds were transferred to the City and it became the Burien Community Center. For many years, it served as the offices of the Burien Parks, Recreation, and Cultural Services Department (PaRCS). In 2010, the City relocated the PaRCS Department to the former Burien Library Building at 14700 6th Avenue SW, which the City acquired several years earlier. The former library became the new Burien Community Center. This left the former building with the name of the Community Center Annex or “Annex”. Nonprofit organizations have leased space in the Annex since that time. Nonprofit tenants have been on one-year leases based on the condition of the building and its systems since approximately 2016.

Various studies and plans regarding the Annex Building have been conducted by the City since 2005. Planning for a new Community Center took place in 2008 but did not move forward based on costs and concerns regarding the recession. The 2018 PaRCS Pros Plan summarized the condition of the Annex Building and the potential for a new recreation center in the following manner (page 57 of the report):

Condition Assessment:
The wood frame facility has deteriorated significantly; lacks fire sprinklers; does not meet ADA requirements; does not meet seismic requirements; has inefficient central boiler heat; contains asbestos; has decaying septic system and collapsing clay pipes, has outmoded youth bathrooms; and does not meet current standards.

While buildings have been maintained to allow nonprofit agencies space, the facility has outlived its physical and economic life and needs to be replaced.

Potential Recreation Center
The acquisition and retrofitting of the former King County library across SW 146th Street from the site for a Community Center provided a complex of multipurpose meeting rooms, rental, and administrative offices.

There is a potential need for a Community Recreation Center. A conceptual design may or may not include any of the following options for administrative and meeting space, rental areas, venue space, theater, commercial kitchen, café, youth play, gymnasium, walking/jogging track, aquatics, or other recreational activities.

This will move forward with a needs assessment, feasibility study, and a master plan process.

As part of the 2019-20 City budget process, a long range financial plan was established for the City to ensure the sustainability of services and to identify potential funding options for the City to enhance investments in public safety and the financial capability of the City to potentially bond for a new community center. Council provided direction for funding to hire a consultant to initiate community engagement for a Community Center.

Council approved an assessment in October of 2019 of the Annex Building as an initial step prior to community engagement for a new Community Center. The City contracted with MENG Analysis and a verbal report was delivered on December 2, 2019. A final written report was received on December 16, 2019. Given the content of the MENG Analysis report and the safety, legal, and insurance issues communicated to the City, the January 31, 2020 vacation date was relayed to tenants on December 9, 2019. All tenant leases within the Annex Building expire on or before December 31, 2019. The leases contain no terms for automatic renewals.

The content of the MENG Analysis report and consultations with the City’s insurance provider necessitated the need for the City to take immediate action towards the vacation of the building by January 31, 2020. In the interim time period prior to January 31, 2020, the following steps were taken to enable occupancy through January 31, 2020:

- - Removed debris from ingress and egress of the building
  - Ensured that fire suppression system, alarms, fire extinguishers are present and working
  - Installed carbon monoxide alarms in all the rooms where tenants and patrons are present
  - Posted signage regarding potential lead in the drinking water

In the month of December 2019, the City’s building inspector and the Burien/Normandy Park Fire Marshall conducted an inspection of the building to ensure compliance of the above and identify any building code violations present within the Annex Building.

Council direction on December 16, 2019 included identifying the costs associated for the testing of drinking water and for asbestos in the Annex Building as well as to do everything possible to assist tenants in relocation and/or extend the January 31, 2020 date to vacate the building.

Estimates for water testing are as follows:

- - Testing includes drinking water sampling and analysis including the following scope of work:
  - 15 drinking water samples on a regular sample turn-around time (5 days). Samples will be submitted for analysis using EPA Method 200.9 for lead (Pb), copper (CU), and arsenic (As).
  - One full day on site for an industrial hygienist to collect the samples and deliver them to the analytical laboratory.
  - Reporting including a summary of results and conclusions.
  - Estimated fee: $4,630.00*

Estimates for asbestos testing are as follows:

- - Approximately 40 asbestos samples on a regular sample turn-around time (5-days):
  - One full day on site for an experience asbestos building inspector
  - Provide abatement cost estimate
  - Provide summary of results and conclusions
  - Estimated fee: $3,200.00*

*Costs associated with this testing are incorporated into the existing contract with MENG Analysis. No additional funds are needed for this testing to occur.

With public notice of the safety, legal, and insurance issues informing the decision to have tenants vacate the Annex building by January 31, 2020, a citizen came forward and communicated to Council and the public that the Annex Building was insurable and that he would pay for the coverage necessary to enable the tenants to remain in the Annex Building for a six (6) month period. The City was referred to Mr. Ted R. Hentschell, Vice President, Hentschell & Associates, Inc. in Tacoma. Mr. Hentschell also communicated to the Council that the building was insurable, that the citizen was a long time trusted client, that his client was correct, and that a policy could be ready for the Annex Building within 15 days.

The City has been in communication with Mr. Hentschell regarding obtaining insurance and the associated costs and has relayed the following:

- - The City has insurance for the Annex Building through WCIA (Washington Cities Insurance Authority)
  - WCIA insurance covers damage to property and physical injury to tenants and third parties.
  - The policy does not cover losses arising from exposure to asbestos, lead, or mold that may be present in the building
  - Given the content of the MENG & Associates report and the fact the City is on notice as of December 2, 2019 regarding these risks, WCIA has recommended that leases for tenants not be renewed (expired on 12/31/2019) and that the building be vacated.

The City has asked Hentschell & Associates to provide a quote for insurance at the Annex Building that would address the “pollution exclusion” for the presence of lead, asbestos, and mold within the Annex Building and the costs of coverage to address the risks and liability to the City from tenants, the general public, and children being present and remaining within the Annex Building. To date, the City has not received a response. This City’s insurance carrier, WCIA, will not provide pollution coverage given the significant safety and liability risks by allowing tenants to stay in the building after January 31, 2020.

The City also consulted with the Insurance for Nonprofits Organization, a national nonprofit insurance provider and their chief underwriter from the Nonprofits insurance Alliance. They were not aware of options to provide pollution coverage other than potential off-shore (out of country) insurance where premiums would be exorbitantly high.

The Annex Tenant Support Team was established by the City on December 3, 2019. This team is dedicated to assisting Annex tenants with relocation assistance and support through this transition. The team consists of City staff, Andrea Reay, Chamber of Commerce, Debra George, Discover Burien, Rich Shockley, Small Business Development Center and other individuals, businesses, and faith based organizations in the community. The team has been meeting weekly with ongoing efforts focused in the following areas:

- - Ongoing communication with tenants.
  - Site location assessment and assistance (temporary and permanent).
  - Networking and identification of resources.
  - Identification of relocation expenses, remodeling costs, storage opportunities & costs, moving costs.
  - City support for permit processing, fee adjustments, etc., testing, insurance and liability waivers, volunteer management, truck donation, dumpster support.
  - Location exploration, investigation, and support.

This team is evaluating other city facilities, seeking alternate sites in Burien, and working with external partners to support relocation efforts. The City has been listening to tenants regarding their needs and what support is needed during this transition and for relocation assistance. Following discussions with tenants, the City will be waiving rent at the Annex for the month of January 2020 for all the organizations. Information and assistance opportunities are available through contact with City staff at annexsupport@burienwa.gov.

In order to support our nonprofit tenants with their operations and transition from the Annex Building by January 31, 2020, the following level of support is recommended based on discussions and input from Annex Tenant Support Team meetings with tenants:

Options
Financial support to these organizations will require a waiver and hold harmless for claims against the City.

At the request of tenants, the City has identified the opportunity for 8×20 storage boxes to be placed on the Annex property on a temporary (6 month) basis. Storage boxes 8×20 are allowed by code with certain conditions. These boxes could be utilized by tenants for temporary storage until permanent storage is arranged. A six (6) month cost is approximately $1,100.00 per box. This includes delivery, rent, and pickup. Additional costs may be incurred to meet code requirements such as shielding the containers from single family residences.

1. 1. Council confirmation of January 31, 2020 date for the Annex to be vacated by tenants.
  2. Allow the Co Op Preschool to keep equipment and material in the outside fenced areas currently utilized for a three (3) month temporary basis.
  3. Support Annex Tenants with funding assistance for operations, moving, and storage in the amount of $234,428.00 in order to assist in the vacation of the Annex Building by January 31, 2020 and to assist in the identification of temporary and permanent sites to relocate.
  4. Arrange for the placement of up to three (3) 8×20 storage boxes on the Annex property on a six (6) month temporary basis as storage options for the Annex Tenants. Estimated cost approximately $3,500.00
  5. Alternative direction provided by Council.

Administrative Recommendation
City Manager recommends options #1, #2, # 3, and #4 above.

Suggested Motion

“I move to direct the City Manager to implement Annex tenant support options #2, #3 and #4 above at an amount not to exceed $238,000.00, to continue with the efforts of the Annex Tenant Support Team, and to ensure the vacation of the Annex building by January 31, 2019 (Option #1 above).”