                                                                              FILED
                           NOT FOR PUBLICATION                                APR 27 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NEWPORT YACHT CLUB, a                            No. 10-35389
Washington nonprofit corporation,
individually and on behalf of its members,       D.C. No. 2:09-cv-00589-RSL

              Plaintiff,
                                                 MEMORANDUM*
  and

WILLIAM S. WEINSTEIN and LEANNE
C. WEINSTEIN, and their marital
community,

              Plaintiffs - Appellants,

  v.

CITY OF BELLEVUE, a Washington
municipal corporation,

              Defendant - Appellee.



NEWPORT YACHT CLUB, a                            No. 10-35403
Washington nonprofit corporation,
individually and on behalf of its members,       D.C. No. 2:09-cv-00589-RSL

              Plaintiff - Appellant,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            -2-

     and

 WILLIAM S. WEINSTEIN and LEANNE
 C. WEINSTEIN, and their marital
 community,

                  Plaintiffs,

     v.

 CITY OF BELLEVUE, a Washington
 municipal corporation,

                  Defendant - Appellee.


                      Appeals from the United States District Court
                         for the Western District of Washington
                     Robert S. Lasnik, Chief District Judge, Presiding

                            Argued and Submitted April 11, 2011
                                    Seattle, Washington

Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.

           Plaintiffs-Appellants William and Leanne Weinstein and the Newport Yacht

Club appeal the district court’s grant of summary judgment in favor of the City of

Bellevue. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and

reverse in part.

I.         Source Control Budget Cap
                                         -3-

      Paragraph 4.5 of the Settlement Agreement caps the City’s expenditures for

source control projects at $3,075,000—the amount listed on Exhibit C. Paragraph

3.1 requires King County to pay $2,150,000, minus a credit for work in the Cinder

Mine area, to the City for the County’s portion of the costs for the Coal Creek

Stabilization Project. “Portion” means “a part of a whole.” Webster’s Third New

International Dictionary 1768 (2002). The County’s payment to the City

represented its share of the costs listed on Exhibit C, not some amount in addition

to those listed costs. Extrinsic evidence cannot be relied upon to read a non-

existent term into the Agreement, such as a provision placing the risk of cost

overruns on the City. See Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d

262, 267 (Wash. 2005).

      Under the only reasonable interpretation of the budget cap provision, the

City was required to spend a maximum of $3,075,000, inclusive of the County’s

payment, on source control projects. Because the Weinsteins and NYC do not

dispute that the City has spent this much, we affirm the grant of summary

judgment in favor of the City on this claim.

II.   Sediment Capture Capacity

      The Agreement obligates the City to increase sediment capture capacity by

1,500 cubic yards. Under Paragraph 4.3.1, this obligation is contingent upon
                                         -4-

receipt of all required permits and third-party approvals. The receipt of permits is

a condition precedent to the City’s obligation to increase capture capacity. See

Ross v. Harding, 391 P.2d 526, 531 (Wash. 1964). At the time the Weinsteins and

NYC filed this lawsuit, the City had not yet obtained the necessary permits;

therefore, the City’s obligation to build the sediment capture pond had not yet

arisen, and it could not be in breach. See id. (defining “condition precedent” as “a

fact which must exist or occur before a duty of immediate performance of a

promise could arise”). Moreover, the Weinsteins and NYC fail to make any

showing that the City’s pursuit of permits for an in-channel sediment capture pond,

as opposed to an off-channel pond, was not in good faith. We affirm the district

court’s grant of summary judgment in favor of the City on this claim.

III.   Salmon Habitat Enhancement Project

       The Agreement allows the Weinsteins to construct a “salmon habitat

enhancement project” on their property. Under Paragraph 7.2, the City may not

oppose the Weinsteins’ development of such a project, provided the project

complies with the Bellevue City Code. The City must also “cooperate with

Weinstein in securing” any necessary city permits for the project.

       The phrase “salmon habitat enhancement project” is not defined by the

Settlement Agreement. Relying on a dictionary definition of “habitat,” the district
                                          -5-

court concluded that the phrase refers to a project that “improve[s] the place where

salmon is ordinarily found.” But “habitat” is also defined as “the kind of site or

region with respect to physical features (as soil, weather, elevation) naturally or

normally preferred by a biological species.” Webster’s Third New International

Dictionary 1017 (2002). The phrase “salmon habitat enhancement project” is

subject to more than one reasonable meaning, and the mutual intent of the parties

remains a question of fact to be determined at trial. See Tanner Elec. Coop. v.

Puget Sound Power & Light Co., 911 P.2d 1301, 1310 (Wash. 1996). We reverse

the grant of summary judgment in favor of the City on this claim, and remand for

further proceedings.

IV.   Flood Control Berm

      The Agreement obligates the Weinsteins to build a flood control berm along

the south bank of Coal Creek. Under Paragraph 6.3, the obligation to construct the

berm is “contingent upon receipt of all third party permits and approvals for the

Berm and Salmon Channel.” The Weinsteins received all necessary permits for the

berm and the salmon channel, but they have not yet built the berm. They are in

breach of this provision of the Agreement. Their argument that they are entitled to

defer construction of the berm until they receive permits for a salmon habitat

enhancement project fails because the clear language of Paragraph 6.3 conditions
                                        -6-

their obligation only upon receipt of permits for the berm and the salmon channel,

not upon receipt of permits for a salmon habitat enhancement project. We affirm

the district court’s grant of summary judgment on the City’s counterclaim against

the Weinsteins.

      Each party shall bear its own costs on appeal.

      AFFIRMED in part; REVERSED in part and REMANDED.
