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HomeMy WebLinkAboutCAG1994-0567 - Original - King County - Regional Conservation Futures Acquisition Program - 02/27/1994 C) a INTERLOCAL COOPERATION AGREEMENT 8 BETWEEN KING COUNTY AND THE CITY OF KENT :t 1993 REGIONAL CONSERVATION FUTURES ACQUISITION PROGRAM This Interlocal Cooperation Agreement is entered into between the City of Kent ("City") and King County ("County") . M m ARTICLE I. RECITALS On March 8, 1993 , the King County Council passed Ordinance 10750 which authorized the 1993 Regional Conservation Futures Acquisition Program and declared the Council's intent to issue bonds to finance the acquisition of public open spaces, funded through the Conservation Futures tax levy to pay the principal and interest on such bonds. Projects to be funded from bond proceeds include projects of Extraordinary Regional Significance, Local Projects in Unincorporated King County, Local Projects of The City of Seattle and Local Projects in Suburban Cities. Prior to the distribution of bond proceeds by the County to an eligible jurisdiction, Ordinance No. 10750 requires Q execution of an Interlocal Cooperation Agreement containing provisions necessary to satisfy applicable federal tax laws and regulations and to make certain other provisions. Vol On August 25, 1993, the King County Open Space Citizens Oversight OCommittee (the "Committee") approved its recommended allocation of the 1993 Regional Conservation Futures Acquisition Program funds from the Regional and Suburban City Local Projects categories pursuant to Ordinance 10750. On October 11, 1993, the King County Council, by Ordinance 11068, approved the allocation of funds to projects. In consideration of the mutual covenants contained herein, and Washington State Chapter 39. 34, the parties agree as follows: CFT INTERLOCAL - KENT 1 DECEMBER 29, 1993 ARTICLE II. DEFINITIONS. 2 .1. Administrative Costs. All negotiation, general management and indirect expenses incurred by City in implementing the Projects, including, without limitation, King County staffing costs of the Committee and costs of overseeing the Program. 2.2. Agreement. This interlocal cooperation agreement between the County and the City regarding the distribution of proceeds from the sale of bonds for open space as described and authorized by the Program Ordinances. 2.3. Bond Ordinance. King County Ordinance 11121, passed November 22, 1993 , authorized the issuance and sale of bonds to finance the projects authorizing by Ordinance No. 10750 and Ordinance 11068 or subsequently approved by the County. 2.4. Bond Proceeds. The principal proceeds received from the sale of bonds. The term shall not include accrued interest on the bonds paid by the original purchaser of the bonds or any earnings received from the investment of bond principal. 2 .5. Bond Redemption Fund. The County fund designated by ordinance for the purpose of paying the principal of and interest on any bonds issued by the County. 2.6. Bonds. Any bonds, notes or other evidence of indebtedness G sold pursuant to the Bond Ordinance and any refunding bonds issued in lieu thereof. 2.7. Capital Costs. The term "capital costs" shall be construed C> consistent with the term "capital purposes" in Article VII, § 2 (b) of 7 the Washington State Constitution. The term shall not include the replacement of equipment. The term may include payment for all costs related to acquiring real property, including, without limitation, real estate appraisals, legal and acquisition costs; making qualified reimbursements; paying necessary project administration expenses; staffing costs of the Citizens Oversight Committee; interest payments on any interim financing pending the receipt of Bond Proceeds; and paying the costs and expenses incurred in issuing the bonds, administering the planning and distribution of Bond Proceeds and other on-going administrative costs of overseeing the Program. CFT INTERLOCAL - KENT 2 DECEMBER 29, 1993 2.8. Citizens Oversight Committee or Committee. That King County Open Space Citizen Oversight Committee established following enactment of Ordinance 9071 and authorized under Ordinance 10750 to review and report to the King County Council on implementation of the 1993 Regional Conservation Futures Acquisition Program. The Committee is also responsible for recommending to the Council reallocations of Bond Proceeds when available for new or revised projects. 2.9. Chief Financial Officer. The person serving as chief financial officer of the County's Office of Financial Management. 2 .10. Code. The Internal Revenue Code of 1986, as amended, together with all applicable regulations. 2.11. Conservation Futures. The term "conservation futures" means the fee simple or any lesser interest, development right, easement, covenant, or other contractual right necessary in order to protect, preserve, maintain, improve, restore, limit future use of, or otherwise conserve open space land which may be acquired by purchase, gift, grant, bequest, devise, lease or otherwise, except by eminent domain, all in accordance with the provisions of RCW 84 .34 and King County Ordinances 10750 and 11068. 2. 12. Open Space. The term "open space" or "open space land" C� shall have the same meaning as set forth in RCW 84 . 34 .20 as now or hereafter amended. This statute currently defines these terms as (a) any land area so designated by official comprehensive land use plan and Oadopted by a city or county and zoned accordingly, or (b) any land area, the preservation of which in its present use would (i) conserve and enhance natural or scenic resources, (ii) protect streams or water supply, (iii) promote conservation of soils, wetlands, beaches or tidal marshes, (iv) enhance the value to the public of abutting and neighbor- ing parks, forests, wildlife reserves, natural reservations or sanctu- aries or other open space, (v) enhance recreational activities, (vi) preserve historic sites, or (vii) retain in its natural state, tracts of land not less than five acres situated in an urban area and open to public use on such conditions as may be reasonably required by the legislative body granting the open space classification. 2. 13. Program. The 1993 Regional Conservation Futures Acquisition Program as authorized by the Program Ordinances. CFT INTERLOCAL - KENT 3 DECEMBER 29, 1993 2 .14. Program Ordinances. The term "Program Ordinances" means King County Ordinances 10750 and 11068 and the Bond Ordinance. 2.15. Pro ect. The term "Project" means a specific project for acquisition of open space to which any Bond Proceeds are allocated which meet open space criteria as described in Ordinance 10750, Attachments A, B and C, and RCW 84. 34. 020. 2.16. Project Categories. As set forth in Ordinance No. 10750, Project Categories are the Regional Projects, King County Local Projects, Suburban City Local Projects or Seattle Local Projects. 2.17. Qualified Reimbursements. Reimbursements of advances for Project costs made after the enactment of Ordinance 10750 from other funds in anticipation of the receipt of Bond Proceeds as evidenced by written records made contemporaneously with such advances and in a form acceptable to the Chief Financial Officer. This includes interest charges paid to acquire interim financing. 2 .18. scope Change. The terms "scope change" means a deviation or change in a project's description that results in a more than 10%, "4 but less than 50%, increase, decrease or difference in a project"s C) total acreage or budget. If a deviation or change in a project's description results in an increase, decrease or difference in a project's acreage or budget of greater than 50%, it shall be considered a new project. For Seattle, such a change that results solely from application of funds from its "Unprogrammed Project Funding" Project 7' shall not be considered a "scope change" or a "new project" . 2.19. Taxable Bonds. Bonds on which the interest is included in the gross income of recipients thereof by reason of the failure to comply with applicable requirements of the Code. 2.20. Tax Exempt Bonds. Bonds on which the interest is not included in the gross income of the recipients thereof by reason of section 103 (a) of the Code of 1986 as amended. ARTICLE III. TERM OF AGREEMENT. This Agreement shall continue in full force and effect and bind the parties hereto upon execution of the Agreement by both parties. The term of the Agreement shall be indefinite. The Agreement will terminate only if the City (i) is unable or unwilling to expend the CFT INTERLOCAL - KENT 4 DECEMBER 29, 1993 funds provided through this Agreement, (ii) satisfies the matching requirements, if any, contained in this Agreement, and (iii) upon reimbursement by the City to the County of all unexpended funds provided by the County pursuant to this Agreement in the manner and amounts described below. The terms of Sections 4 . 3, 4 .4 , 4 . 5, 4 . 6, 7 . 1, 7.2 and 9. 1 shall survive termination of this Agreement. ARTICLE IV. CONDITIONS OF AGREEMENT. 4.1. Project DescriRtion. Those Projects currently approved by the County are listed in Attachment A, which is incorporated herein by reference. All Projects must meet open space criteria as described in King County Ordinance 10750, Attachment B, and RCW 84 . 34 . City may propose a scope change to a project's description by providing a written request to the Office of Open Space and to the Committee and by submitting with such request a revised implementation schedule reflecting such proposed scope change. The Committee shall have forty- five (45) days to review and recommend approval or disapproval to the W4 Council of the City's proposed scope change. The King County Executive 0 shall submit the City proposal and the Committee recommendation to the C)'? King County Council which shall determine by established procedures for King County Capital Improvement Projects whether or not to make such e±� scope change. 7) 4.2. Project Implementation. Project Implementation shall proceed upon the schedule as set forth in Attachment B, which is incorporated herein by reference, or as set forth in approved modifications to the implementation schedule set forth in Attachment B. The parties recognize that delay in implementation of Projects may jeopardize the financial viability of the Projects as currently approved and the tax exempt status of interest on the Bonds. The City, therefore, certifies that, as to its Projects, it has reviewed its real property acquisition procedures, commits to all reasonable action and will proceed with due diligence to ensure that its Projects are expeditiously completed in accordance with the Project implementation schedule, and that it will give highest priority to those properties where there is a particular threat of conversion to a more intensive use or increases in acquisition costs. If City has not demonstrated CFT INTERLOCAL - KENT 5 DECEMBER 29, 1993 through its October 1994 semi-annual reporting pursuant to Article VI of this Agreement that it has made substantial progress in implementing a project, the Council may, after receipt of the Executive's acquisition progress report as provided in Ordinance 11068, reallocate project funds or extend project completion deadline. • Any project funds not expended by October 20, 1995 shall be reprogrammed to other projects. 4.3. Use of Funds. Funds in the form of Bond Proceeds made available to the City pursuant to this Agreement, as well as matching funds provided by the City pursuant to this Agreement, may be used to defray capital costs of projects pursuant to the Program Ordinances, RCW 84 .34 and this Agreement. Funds utilized pursuant to this Agreement may not be used to purchase Conservation Futures obtained through the exercise of eminent domain. Seattle may apply funds from its "Unprogrammed Program Funding" Project to any other Project in its sole discretion. e� 4.4. Project Administration and Maintenance in Perpetuity. The City shall perform and bear all of the cost of all necessary administration and maintenance for its Projects. C`2 The City, or any successor in interest, agrees to maintain � properties acquired with funds provided pursuant to this Agreement as If the City wishes to change the status or open space in perpetuity. use of properties acquired with funds provided pursuant to this Agreement to any other purpose, the City shall, at the County's discretion, pay the County an amount in cash equal to the property's fair market value or substitute other property of equal or better market and open value acceptable to the County. In either case, the value of property shall be established at the time of the change in status or use, based on the best and highest use and not necessarily based on its value as open space. At its own cost, the City will provide the County an independent M.A.I. appraisal of such Property's fair market value in accordance with this section. The value established by the appraisal will not be binding on the County. The City shall provide the County with written notice of its desire to the change of use of the Property and shall submit such M.A.I. appraisal and proposed substitute properties with CFT INTERLOCAL - KENT 6 DECEMBER 29, 1993 such notice. The County shall within ninety (90) days respond by (i) accepting such appraised value; (ii) requesting additional information regarding such proposed substitute land; or (iii) rejecting both the appraised value and proposed substitutes. The County shall not unreasonably exercise its discretion and shall work with the City to expeditiously resolve issues relating to an acceptable valuation or substitution. If and when the County has agreed upon an acceptable valuation or substitution, the City shall either pay the County the full amount of the valuation or record appropriate declarations of restrictive covenants upon the substitute property. The City shall not change the use of the Property until the County has agreed in writing to an acceptable substitution or valuation and made such payment or recorded such declarations. Nothing herein shall prevent the City from granting easements, franchises or concessions or from making joint use agreements or other operational agreements which are compatible with the use of a Project for the purposes authorized in this Agreement and the Program e4 Ordinances and do not materially diminish the open space value of the O Property. The City shall notify the County of all such proposed C franchises, concessions or agreements not less than thirty (30) days GD prior to their effect. d' 4.5. Special Conditions. As set forth in the Ordinances, the OAgreement between the County and the City may contain special Md conditions. If applicable, such special conditions are described on Attachments A, B and C and are incorporated herein by reference. 4.6. Signs. The City shall install, within three months of acquisition, and maintain signs identifying the property purchased under the Program as having been acquired under King County's 1993 Regional Conservation Futures Acquisition Program. Such signs shall be clearly visible to the public entering upon the Property or, where public access is inappropriate, clearly visible from the public right- of-way to the extent practicable. Such signs shall be of an appropri- ate size (generally not smaller than two feet by three feet) and such identification shall be as prominent as any other identifications of the Property. The City also shall install within three months of the date of this Agreement or within three months of the date of DECEMBER 29, 1993 CFT INTERLOCAL - KENT acquisition and maintain similar signs on all property acquired with funds under the 1989 King County Open Space Bond Program identifying the property as having been acquired under such Program. 4.7 Recording of this Agreement. As part of the closing of escrow of the acquisition of any Conservation Future upon any parcel within a Project, City shall record with King county's Department of Records and Elections either this Agreement or a memorandum of this Agreement in a form approved in writing by the County. ARTICLE V. BOND PROCEEDS. 5.1. Distribution of Principal Proceeds. The Principal Proceeds of the Bonds shall be deposited in a fund or funds to be designated by the County for the purpose of administering, disbursing and accounting for Bond Proceeds. Within said fund or funds, Bond principal will be distributed to the City as set forth in Section 5.4 of this Agreement. 5.2. Investment of Bond Proceeds. The County, through its Office of Financial Management, shall be responsible for placing investments of cash balances. The County will be responsible for Carbitrage calculations and related actions required by the Code to ensure compliance with arbitrage regulations. 5.3. Interest Earnings. Interest earnings on the Principal Bond O Proceeds will be collected and deposited in the Bond Redemption Fund to pay a portion of the principal of and interest on the bond de 5.4. Bond Proceeds Disbursement. Bond Proceeds will be disbursed to the City upon receipt and verification of properly completed requests for payment of Bond Proceeds by the King County Office of Open Space or its successor. The disbursements will be made in one of two ways: (1) by wire transfer up to five (5) days prior to the closing date upon receipt by the County of a completed request form, a copy of the signed purchase document, an estimated settlement statement, and electronic wiring instructions to the closing agent or City if so requested; or (2) by Automated Clearinghouse transmittal to the City for Qualified Reimbursement for expenditures for Capital Costs. The City shall provide a list of authorized individuals to certify the requests submitted to the County. The City will be CFT INTERLOCAL - KENT 8 DECEMBER 29, 1993 responsible for the accuracy of the payment requests and the propriety and timeliness of its disbursements of the Bond Proceeds. 5.5. Disposition of Remaining Bond Proceeds. a. Bond Proceeds Reallocation - Project Completion. If, upon completion of a Project, Bond Proceeds exist in excess of the amount necessary to reimburse the appropriate Capital Cost of a Project, then the City may propose to reallocate such excess Bond Proceeds to other existing Projects by providing a written request to the Office of Open Space and to the Committee and by submitting with such request a revised implementation schedule reflecting such proposed reallocation. The Committee shall have forty-five (45) days to review and recommend approval or disapproval to the Council of the City's proposed reallocation. The King County Executive shall submit the City proposal and the Committee recommendation to the King County Council which shall determine by ordinance whether or not to make such reallocation. b. Bond Proceeds Reallocation - Project Abandonment. v04 The City may abandon a Project only upon a determination and finding of O C fact through its normal legislative process that changes in conditions or new information developed after approval of funding of Projects C� prevent the practical accomplishment of the Project or clearly indicate © that the Project would no longer best serve its intended purpose. I the City abandons a Project, and excess Bond Proceeds remain, the City may propose to reallocate such excess Bond Proceeds to other existing approved City Projects following the same procedure as set forth in 5.5.a. above and shall submit to the Committee a certified copy of its legislative action by which it made such determination of fact. C. Bond Proceeds Reallocation - New Projects. The City may request to reallocate excess Bond Proceeds to a new Project if it makes a determination through its normal legislative processes that the proposed new Project is consistent with the purpose of the Bonds. If the City requests to reallocate excess Bond Proceeds to a new Project, the City shall forward its proposal to the Committee for its review and recommendation to the Council in the same manner as 5.5.a. above, and shall submit a certified copy of its legislative action by which it made such determination. CfT INTERLOCAL - KENT 9 DECEMBER 29, 1993 5.6. Interim Financing. Following the County's adoption of Ordinance 11068, the City may have issued short-term obligations in anticipation of reimbursement from Bond Proceeds to defray the same Capital Costs for which Bond Proceeds may be utilized. The payment of principal and interest upon such short-term obligations shall be a proper object of expenditure of Bond Proceeds to the extent that the rate of such interest is reasonable. ARTICLE VI. REPORTING REQUIREMENTS. 6. 1. Reporting Schedule. During implementation of the Projects, the City shall provide the County and the Committee semi-annual reports describing Project Implementation status. Such reports shall cover six-month periods of April 1 through September 30 and October 1 through March 31 and shall be submitted no later than the twentieth working day following the end of the reporting period. All such reports shall be submitted to the County's Department of Parks, Planning and Resources Office of Open Space, or its successors. W4 6.2. Report Information. The reports shall contain the Cfollowing information: ona. An accounting of cash expenditures and encumbrances in N support of the project, including a separate accounting for Rt 0 Administrative Costs; Ir!" b. A work plan for each project showing the anticipated date by which City expects to achieve the following milestones in the acquisition process: (1) title report reviewed; (2) survey completed (if necessary) ; (3) environmental assessment completed (if necessary) (4) appraisal completed and reviewed; (5) first offer made; (6) purchase agreement executed; and (7) property acquired; C. The progress of City in accomplishing milestones for each Project and any changes to the time line; and d. Other relevant information requested by the County for the purpose of determining compliance with this Agreement. ARTICLE VII. TAX COVENANTS 7.1. Preservation of Tax Exempt Status. So long as such Bonds are outstanding or for twenty years after the first disbursement of CFT INTERLOCAL - KENT 10 DECEMBER 29, 1993 Bond Proceeds, whichever is longer: a. The City will not use or permit to be used any of the Bond Proceeds or the property or facilities acquired, constructed, developed or improved as part of the Projects in such manner and shall not take or omit to take any other action as to cause the interest on the Bonds to be included in the gross income of the recipients thereof for purposes of federal income taxation. b. The City will provide certificates when and as required by the County's bond counsel, the Code or the Internal Revenue Service in order to establish or maintain the tax exempt status of interest on the Bonds. C. The City will comply with any requirements imposed by the Code in order to preserve the tax exempt status of interest on the Bonds. The City will cooperate in any audit by the Internal Revenue Service, including disclosure of any records, contracts and other materials required by the Internal Revenue Service in order to r{ establish or preserve the Bonds' tax exempt status or as may be Orequired by the Code. OJ 7.2 . Indemnification. If the Bonds become Taxable Bonds as a Q� result of the acts or omissions of the City not approved in writing by 0 the County, the City shall indemnify and hold the County, its officers, employees and agents, including bond counsel, harmless with respect to bond holders' claims and any costs attendant thereto, including any penalties and the County's attorneys' fees and costs in defending such claims. ARTICLE VIII. RESPONSIBILITIES OF COUNTY. 8. 1. Issuance of Bonds. Subject to the terms of this Agreement and the Program Ordinances, the County will issue Bonds for the purposes set forth herein and in the Program Ordinances. 8.2. Distribution of Bond Proceeds. Distribution to the City of any Bond Proceeds is specifically conditioned upon execution by the City and the County of this Agreement. 8.3. Future Support. The County assumes no obligation for the future support of the Projects described herein, or any other projects, except as expressly set forth in this Agreement. CFT INTERLDCAL - KENT 11 DECEMBER 29, 1993 ARTICLE IX. GENERAL PROVISIONS 9. 1. Hold Harmless and Indemnification. a. The County assumes no responsibility for the payment of any compensation, fees, wages, benefits or taxes to or on behalf of the City, its employees, contractors or others by reason of this Agreement. The City shall protect, indemnify and save harmless the County, its officers, agents and employees from any and all claims, costs and losses whatsoever occurring or resulting from (1) the City's failure to pay any compensation, wage, fee, benefit or tax, and (2) the supplying to the City of work, services, materials or supplies by City employees or agents or other contractors or suppliers in connection with or in support of performance of this Agreement. b. The City further agrees that it is financially responsible for and will repay the County all indicated amounts following an audit exception which occurs due to the negligent or intentional acts or failure for any reason to comply with the terms of Qthis Agreement by the City, its officers, employees, agents or representatives. C. The City shall protect, defend, indemnify and save harmless the County from any and all costs, claims, judgments or awards of damages, including attorneys' fees, arising out of or in any way resulting from the Projects, including but not limited to the negligent acts or omissions of the City, its officers, employees or agents, but not including the solely negligent acts or omissions of the County, its officers, employees or agents. For purposes of this Agreement only, the City agrees to waive the immunity granted for industrial insurance claims pursuant to Washington statute chapter 52 to the extent necessary to extend its obligation under this subparagraph to any claim, demand, or cause of action brought by or on behalf of any employees, including judgments, awards and costs arising therefrom including attorneys' fees. 9.2. Amendments or Modifications. The parties reserve the right to amend or modify this Agreement. Such amendments or modifications must be by written instrument, signed by the parties and approved by the respective City and County Councils. CFT 1NTERLOCAL - KENT 12 DECEMBER 29, 1993 9.3. contract Waiver. No waiver by either party of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition, nor shall a waiver of any breach, be deemed to constitute a waiver of any subsequent breach whether of the same or a different provision of this Agreement. No waiver shall be effective unless made in writing. 9.4. Notices. Any notice, consent, demand or other communica- tion hereunder shall be in writing and shall be deemed to have been given if delivered in person or deposited in any United States Postal Service mail box, first class postage prepaid, or sent by registered or certified mail, return receipt requested, addressed to the party for whom it is intended as follows: (1) To the City: City of Kent Ms. Helen Wickstrom Superintendent of Parks Administration 220 Fourth Avenue South Kent, WA 98032 (2) To the County: King County Office of Open Space 1621 Smith Tower 506 Second Avenue C Seattle, Washington 98104 G� with a copy to: Chief Financial Officer 400 King County Courthouse Seattle, Washington 98104 These titles and addresses may be changed by written notice to the other party pursuant to this provision. 9.5. Interpretation. This Agreement shall be interpreted according to and enforced under the laws of the State of Washington. The section and subsection captions of this Agreement are for convenience only and shall not control or affect the meaning or construction of any provision in this Agreement. 9.6. separability. Each provision of this Agreement is separable from all other provisions. In the event any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable for any reason, all remaining provisions will remain in full force and effect. CFT INTERLOCAL - KENT 13 DECEMBER 29, 1993 9.7. Entirety. This Agreement is a complete expression of the terms hereto and any oral representations or understandings not incorporated are excluded. This Agreement merges and supersedes all prior negotiations, representations, and agreements between the parties relating to the Bonds, Bond Proceeds or Projects and constitutes the entire Agreement between the parties. The parties recognize time is of the essence in the performance of the provisions of this Agreement. IN WITNESS WHEREOF, authorized representatives of the parties hereto have signed their names in the spaces set forth below. KING COUNTY CITY OF KENT By KING COUNTY EX TIVE Its /J — DATE: 7����� DATE: ACTING UNDER AUTHORITY OF ACTING UNDER AUTHORITY OF MOTION #92-02 No. O 0 Approved as to form: Approved as to form: Ctit NORM MALENG King County Prosecu ing Attu City Attorney, ,k1W1- CFT 1NTERLOCAL - KENT 14 DECEMBER 29, 1993