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HomeMy WebLinkAbout04271994 - Original - King County Department of Metropolitan Services - Project Grant Regional Shoreline Improvement Fund - 04/27/1994 AGREEMENT BETWEEN KING COUNTY DEPARTMENT OF METROPOLITAN SERVICES AND CITY OF KENT FOR PROJECT GRANT FROM SHORELINE IMPROVEMENT ACCOUNT Project Title REGIONAL SHORELINE IMPROVEMENT FUND: Riverview Project Number: A71908. THIS AGREEMENT is entered into this , day of 1994, between King County Department of Metropolitan Services andthe y of Kent, a governmental entity eligible to receive funding as described below ("Public Agency"), collectively referred to as the "parties." 1. RECITALS 1.1 The Municipality of Metropolitan Seattle ("Metro") was a municipal metropolitan corporation of the State of Washington duly created pursuant to RCW 35.58, and was authorized by public vote to perform the function of metropolitan water pollution abatement pursuant to RCW 35.58.050(1); and 1.2 Effective January 1, 1994, by operation of law Metro was consolidated into King County, a home rule charter county of the State of Washington. Thereafter, the functions formerly performed by the Municipality of Metropolitan Seattle shall be performed by King County, through the Department of Metropolitan Services ("KCDMS"); and 1.3 The Public Agency is a municipal corporation of the state of Washington; and 1.4 By Resolution No. 4780, adopted July 17, 1986, the Metro Council established a Shoreline Improvement Fund to provide alternative recreational resources as mitigation for impacts resulting from the upgrade of its Puget Sound facilities to secondary treatment; and 1.5 By Resolution No. 5449, adopted July 21, 1988, the Metro Council determined that the provision of $30 million of Shoreline Improvement Funds was reasonable to provide replacement recreation resources for sewerage facilities located within shorelines of the City of Seattle and the region that would otherwise be used for recreation and that such level of funding constitutes proportional mitigation; and 1.6 The Shoreline Improvement Fund Agreement, dated January 28, 1991 between the City of Seattle and Metro specifies that $5 million will be available for regional projects in the Metropolitan service area and that expenditures of money for the regional projects subprogram shall be made at such time and in such manner for such purposes as the Municipality shall determine; and 1.7 The Shoreline Improvement Fund Agreement incorporates the conditions set forth in items 10.A and 10.13, respectively, in the document entitled Mitigation Conditions: West Point and Alki, with respect to the plan level permits for the West Point and Alki projects, as adopted by the Seattle City Council on July 11, 1988. Item 10.A provides in part that the Shoreline Improvement Fund shall be used for projects that compensate for the impact of the West Point Plant by replacing, enhancing, or providing substitute resources or environments; and 1.8 The Metro Water Quality Committee by motion on January 28, 1993, approved a process and criteria, based on recommendations of the Technical Evaluation Committee ("TEC"), for deciding shoreline improvement project funding. Of primary importance to the TEC, projects should provide controlled public access and/or dedicated undisturbed habitat for wildlife; and 1.9 The Metro Water Quality Committee, by motion on April 8, 1993, approved a list of projects eligible to apply for regional shoreline improvement funds, based on recommendations of the TEC; and 1.10 By Resolution No. 6624, adopted on October 7, 1993 the Metro Council adopted a list of projects with specified funding levels and thereby authorized the Executive Director or his designee to negotiate contracts with project sponsors, including the Public Agency identified herein, setting out the terms and conditions under which monetary grants will be made from the Regional Shoreline Improvement Fund in aid of the identified projects. 2. GENERAL PROVISIONS 2.1 Purpose of Agreement. The purpose of this Agreement is to set out the terms and conditions under which the monetary grant described below is made from the Regional Shoreline Improvement Fund in aid of the project of the Public Agency. 2.2 Term of Agreement. This Agreement shall be effective upon execution by both parties and shall terminate only upon mutual agreement of the parties,except as may be otherwise provided elsewhere in this Agreement. 2.3 Performance by Public Agency 2.3.1 The Public Agency shall develop and complete the project as it is described in section 3 below, in the Public Agency's application, and in accordance with the Public Agency's proposed goals and objectives described in documents submitted -2- pursuant to the solicitation for project proposals process and required deliverables (collectively referred to as "Project Documents"), all as finally approved by KCDMS. The Project Documents are incorporated herein by this reference as if fully set forth for the purposes of determining the project description and project goals and objectives. 2.3.2 No expenditure made, or obligation incurred, by the Public Agency prior to the effective date of this Agreement shall be eligible for grant funds, in whole or in part, unless specifically approved by KCDMS. The amounts set out in section 4 below shall be reduced as necessary to exclude any such expenditure from participation. 2.3.3 KCDMS shall determine eligible costs, consistent with guidelines established by the TEC. KCDMS shall not be responsible for project cost increases. 2.3.4 The project, if it consists of acquisition only, shall be completed no later than December 1995. If the project includes development and/or construction in addition to acquisition, the project shall be completed no later than December 1996. KCDMS may, in its sole discretion, extend these completion dates if the acquisition and/or completion is delayed by circumstances beyond the control of the public agency and said circumstances could not, in KCDMS's judgement, have reasonably been foreseen at the time this Agreement was executed. 2.3.5 No expenditure made, or obligation incurred, following the applicable completion date shall be eligible, in whole or in part, for grant funds hereunder unless specifically approved by KCDMS. In addition to any remedy KCDMS may have under this Agreement, the amounts set out in section 4 below shall be reduced to exclude any such expenditure from participation. 2.3.6 Time of project performance by the Public Agency is of the essence of this Agreement. Failure to timely complete the project as set out in subsection 2.3.4 above is a material breach of the Agreement. The Public Agency shall submit proper billing documentation to KCDMS within ninety (90) days of the applicable date stated in subsection 2.3.4, or any extension thereof approved by KCDMS. 2.4 Performance Necessary to Receiving Payment. The Public Agency shall accomplish the following in order to receive payment, which will be made on a reimbursable basis. The Public Agency proceeds with incurring project costs at its own risk. KCDMS will reimburse for no expenditures until: 2.4.1 The Agency has complied with all information required, including those in the "Project Documents." These include, but are not limited to: title reports, hazardous substances certification, and documentation of type of ownership interest. (See Exhibit A). 2.4.2 This Agreement is signed by both parties; and 2.4.3 A written notice to proceed has been given by KCDMS; and -- -3- 2.4.4 With respect to acquisition projects, KCDMS has received an executed Purchase and Sale Agreement and has approved the title policy, boundary map, and appraisals. 2.5 With respect to restoration and improvement projects, the Agency has demonstrated that plans, specification and construction are completed in a manner that meets the project's goals and objectives. 2.6 Final payment may be retained until all contract requirements are met. KCDMS may conduct inspections of the project site to confirm compliance. 2.7 Installment Payments. Financial assistance provided by this Agreement for development may be remitted to the Public Agency in installments, after receipt of billings, and upon satisfactory evidence of completion of each stage of construction, development, or acquisition. Installment payments shall in no event be made more frequently than monthly. 3. DESCRIPTION OF PROJECT The project of the Public Agency which is the subject of this Agreement is described in summary as follows: Acquisition of 11.62 acres, located in Kent, as described in Exhibits B and C attached hereto. The project provides riparian habitat along the Green River, buffers from development and passive public uses, including viewing wildlife, the Green River and Mount Rainier. 4. PROJECT FUNDING 4.1 The total cost of the project for the purposes of this Agreement is Four Hundred Forty-Six Thousand and no/100 Dollars ($446,000.000); PROVIDED, that if the total cost of the project when completed, or when this Agreement is terminated, is actually different, that actual cost shall be substituted herein. The Public Agency shall provide written documentation of such actual total cost within ninety (90) days of project completion or Agreement termination. 4.2 The Public Agency shall provide matching funds in the amount of Two Hundred Thirty-Six Thousand and no/100 Dollars ($236,000.00). The total amount of the KCDMS grant shall in no event exceed Two Hundred Ten Thousand and no/100 project when completed,jro Dollars ($210,000.00), PROVIDED that if the total cost of the p or when this Agreement is terminated, is actually different, that actual cost shall be substituted herein. The Public Agency shall provide written documentation of such actual total cost within ninety (90) days of project completion or Agreement termination. 4.3 KCDMS shall not be obligated to pay any amount beyond the grant amount set out in subsection 4.2. -4- B 4.4 Disbursement of grant monies by KCDMS to the Public Agency under this Agreement shall be made in accordance with all conditions upon proof of compliance with the terms of this Agreement by the Public Agency. KCDMS reserves the right to withhold the disbursement of the final ten percent (10%) of the total amount of the grant to the Public Agency until the project has been timely completed and approved by the Executive Director. 4.5 The obligation of KCDMS to pay any amount(s) under this Agreement is expressly conditioned upon strict compliance with the terms of this Agreement by the Public Agency. 5. TERMINATION AND OTHER REMEDIES 5.1 KCDMS may require strict compliance by the Public Agency with the terms of this Agreement including, but not limited to, the requirements of applicable statutes, regulations, rules, KCDMS policies, or .other applicable governing documents, incorporated in this Agreement, and with the representations of the Public Agency in its application for a grant as finally approved by KCDMS. 5.2 KCDMS may suspend, or may terminate, its obligation to provide funding to the Public Agency under this Agreement: 5.2.1 In the event of any breach by the Public Agency of any of the Public Agency's obligations under this Agreement; or 5.2.2 If the Public Agency fails to make progress satisfactory to KCDMS toward completion of the project by the completion date set out in subsection 2.3.4 above. 5.3 In the event this Agreement is terminated by KCDMS, under this section or any other section after any portion of the grant amount has been paid to the Public Agency under this Agreement, KCDMS may require that any amount paid be repaid to KCDMS for redeposit into the Regional Shoreline Improvement Account. 5.4 The Public Agency understands and agrees that KCDMS may enforce this Agreement by the remedy of specific performance, which usually will mean completion of the project as described in section 3 above. However, the remedy of specific performance shall not be the sole or exclusive remedy available to KCDMS. No remedy available to KCDMS shall be deemed exclusive. KCDMS may elect to exercise any combination, or all of the remedies available to it under this Agreement, or under any provision of law, common law, or equity. 6. NO WAIVER BY KCDMS/REMEDIES Waiver by KCDMS of any default or breach shall not be deemed to be a waiver of any other or subsequent default or breach and should not be construed to be a --- -5- modification of the terms of the Agreement unless stated to be such in writing by the Executive Director of KCDMS, or his or her designee. KCDMS does not waive any of its rights or remedies under this Agreement should it: (a) fail to insist on strict performance of any of the terms of this Agreement, or (b) fail to exercise any right based upon a breach of this Agreement. 7. PUBLIC AGENCY REPRESENTATIONS -- MISREPRESENTATION OR INACCURACY A BREACH KCDMS relies upon the Public Agency's Project Documents in making its determinations as to eligibility for, selection for, and scope of, funding grants. Any misrepresentation, error or inaccuracy in any part of the Project Documents shall be deemed a breach of this Agreement. 8. COMPLIANCE WITH APPLICABLE STATUTES, RULES AND KCDMS POLICIES 8.1 The subject grant shall be governed by, and the Public Agency shall comply with, KCDMS policies and guidelines, which are incorporated herein by this reference as if fully set forth. It is the responsibility of the Public Agency to comply with, and KCDMS is not responsible for determining compliance with, all applicable laws, regulations, and policies, including, but not limited to: SEPA (under which the Public Agency shall serve as lead agency); Americans with Disabilities Act; Architectural Barriers Act (Restoration and Improvement projects only); Uniform Relocation Assistance and Real Property Acquisition Policies Act (PL91-646, RCW 8.26.010); Uniform Standards of Professional Appraisal Practices; permits (shoreline, HPA, demolition); land use regulations (comprehensive plans, zoning, sensitive areas ordinances); and federal and state safety and health regulations (OSHA/WISHA). 9. USE AND MAINTENANCE OF ASSISTED PROJECTS The Public Agency shall operate and maintain, or cause to be operated and maintained, the property or facilities which are the subject matter of this Agreement as follows: 9.1 The property or facilities shall be maintained so as to appear attractive and inviting to the public. 9.2 All facilities shall be built and maintained in accordance with applicable state and local public health standards and building codes. 9.3 The property or facilities shall be kept reasonably safe for public use. --- -6- 9.4 Buildings, roads, trails, and other structures and improvements shall be kept in reasonable repair throughout their estimated lifetime, so as to prevent undue deterioration that would discourage or prevent public use. 9.5 The facility shall be kept open for public use at reasonable hours and times of the year, according to the type of area or facility. 9.6 The property or facility shall be open to everyone without restriction because of race, creed, color, sex, religion, national origin, handicap or residence of the user. 9.7 The Public Agency agrees to operate and maintain the facility in accordance with all applicable federal, state, and local laws and regulations. 9.8 The Public Agency agrees to take all reasonable measures to maintain the natural character of the project site for passive public use and habitat protection, consistent with criteria established by-the TEC, and project use and stewardship plans as described in the Project Documents. 10. RESTRICTION ON CONVERSION OF LAND AND FACILITIES TO OTHER USES Any project acquired, developed, constructed, or improved by the Public Agency in whole or in part from disbursements made pursuant to this Agreement shall not be transferred or conveyed except by agreement providing that such lands and facilities shall continue to be used for the purposes contemplated by this Agreement. Said project shall not be converted to a different use unless other lands and facilities, of as nearly as feasible equivalent usefulness and location, shall be received in exchange therefor. The proceeds of any award in condemnation applicable to such project shall be used for the acquisition or provision of other equivalent lands and facilities. However, nothing in this Agreement shall prevent the grant of easements or franchises or the making of joint use agreements not incompatible with the use of the project for the purposes of this Agreement. The Public Agency agrees to execute and record prior to receipt of reimbursement from KCDMS pursuant to section 4 above, a restrictive covenant on the property acquired under this Agreement in the form attached hereto as Exhibit.D and incorporated herein restricting the conversion of use of the lands and facilities in the manner provided above. The restrictive covenant must be executed and recorded prior to reimbursement and a copy of the recorded document shall be forwarded to KCDMS by the Public Agency 'prior to receipt of reimbursement from KCDMS pursuant to section 4 above. 11. NONDISCRIMINATION CLAUSE As a condition of receipt of funds from KCDMS, the Public Agency shall award and administer any contracts for work on the project under this Agreement consistent with the provisions of King County Ordinance No. 11032, Section 19, or with the Public Agency's Minority/Women Business Enterprise programs, if such programs will achieve substantially the same participation as would have been achieved under Section 19 of Ordinance No. 11032. If this project includes construction, the Public Agency shall insert the following nondiscrimination clause in each contract for construction: During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sexual orientation, sex, nationality or the presence of any sensory, mental, or physical disability (provided that such disability does not hinder the performance of the job). The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated fairly during employment, without regard to their race, creed, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to put in a conspicuous place, available to employees and applicants for employment, notices to be provided by the contracting officer, setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sexual orientation, sex, nationality or the presence of any sensory, mental, or physical disability (provided that such disability does not hinder the performance of the job). (3) The contractor will send to each labor union or representative or workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the said labor union or workers' representative of the contractor's commitments under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will include the provisions of the foregoing paragraphs in every subcontract exceeding $10,000, so that such provisions will be binding upon each such subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as KCDMS may direct as a means of enforcing such provisions, including sanctions for noncompliance; PROVIDED, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the State of Washington to enter into such litigation to protect its interests. 12. RESPONSIBILITY FOR PROJECT 12.1 While KCDMS undertakes to assist the Public Agency with the project by providing a grant pursuant to this Agreement, the project itself remains the sole responsibility of the Public Agency. KCDMS undertakes no responsibilities to the Public Agency, or to any third party, other than as is expressly set out in this Agreement. The responsibility for the design, development, construction, implementation, operation and maintenance of the project, as those phases are applicable to this project, is solely that of the Public Agency, as is responsibility for any claim or suit of any nature by any third party related in any way to the project.. 12.2 The Public Agency shall defend at its own cost any and all claims or suits at law or in equity which may be brought against the Public Agency in connection with the project. The Public Agency shall not look to KCDMS, or to any of KCDMS's employees or agents, for any performance, assistance, or any payment or indemnity, including but not limited to cost of defense and/or attorneys' fees, in connection with any claim or lawsuit brought by any third party related in any way to the project, including but not limited to, its design, development, construction, implementation, operation and/or maintenance. 13. HAZARDOUS SUBSTANCES 13.1 The Public Agency shall conduct, or retain an environmental consulting firm to conduct, a thorough environmental assessment of the property to be acquired prior to its acquisition and provide to KCDMS a copy of the resulting environmental assessment report(s). The environmental assessment shall involve the systematic review of the environmental conditions at the property, including the presence on-site of any hazardous substances, and shall be conducted in accordance with prevailing industry standards for such assessments. 13.2 No disbursements made pursuant to this Agreement may be used for the remediation or cleanup of any hazardous substances that may be present on the property acquired under this Agreement. The Public Agency agrees that by signing this Agreement it certifes that: (1) it has fully disclosed to KCDMS the results of its environmental assessment and all other knowledge the Public Agency has to the presence of any hazardous substances on the property being acquired; (2) it will use no disbursement made pursuant to this Agreement for the remediation or cleanup of any hazardous substances that may be present on the property being acquired; and.(3) it will defend, protect and hold harmless KCDMS and any and all of its employees and/or agents, from and against any and all liability, cost (including but not limited to all costs of defense and attorneys' fees) and any and all loss of any nature from any and all claims or suits resulting from the presence of, or the release or threatened release of, hazardous substances on the property being acquired. 13.3 "Hazardous Substances" shall be interpreted broadly to include, but not be limited to, any hazardous, toxic or dangerous waste, substance, material, pollutant or contaminant, as defined in or regulated now or in the future by the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seg., the Resource Conservation Recovery Act ("RCR"), 42 U.S.C. §§ 6901 et seq., the Clean Water Act, 33 U.S.C. §§ 1252 et sec.,., the Safe Drinking Water Act, 42 U.S.C. §§ 300(f) et seg., the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et sec ., the Washington State Model Toxics Control Act, RCW Ch. 70.105D, the Washington State Hazardous Waste Management Act, RCW Ch. 70.105, any so-called "superfund" or "superlien" law, and any other federal, state, or local law, regulation, ordinance, or order or common law decision, including without limitation, asbestos, polycholorinated biphenyls (PCB's), petroleum and petroleum-based derivatives, and urea formaldehyde. 14. INDEMNITY The Public Agency agrees to, and shall defend, protect and hold harmless KCDMS and any and all of its employees and/or agents, from and against any and all liability, cost (including but not limited to all cost of defense and attorneys' fees) and any and all loss of any nature from any and all claims or demands or suits at law or equity, arising from the project, including but not limited to, those arising from the Public Agency's acts, or failures to act, which result in any loss of any kind to any third party. Such claims or suits include, but are not limited to: 14.1 Claims or suits by any person or firm furnishing services in connection with the Public Agency's performance under this Agreement; or 14.2 Claims or suits by any person or firm who or which may allege injury by the Public Agency or its agents arising from the Public Agency's performance of this Agreement or arising from or related to the project to which a grant is furnished hereunder; or 14.3 Any claim or suit resulting from the failure of the Public Agency to comply with any applicable law, regulation, or policy; or 14.4 Any claim or suit resulting from the use of any facilities and/or programs assisted by a grant under this Agreement; or 14.5 Any claim or suit resulting from the presence of, or the release or threatened release of Hazardous Substances brought by any federal, state or local agency or any individual. -io- 15. RECORDS AND REPORTS 15.1 The Public Agency agrees to maintain all books, records, documents, receipts, invoices and all other electronic or written records necessary to sufficiently and properly reflect the Public Agency's contracts, contract administration, and payments, including all direct and indirect charges, and expenditures in the development and implementation of the project. 15.2 The Public Agency's records related to this Agreement and the project receiving grant funds hereunder may be inspected by KCDMS or by designees of the State Auditor or by federal officials authorized by law, for the purposes of determining compliance by the Public Agency with the terms of this Agreement, and to determine the appropriate level of funding to be paid under the subject gant. 15.3 The records shall be made available by the Public Agency together with suitable space for such inspection at any and all times during the Public Agency's normal working day. 15.4 The Public Agency shall retain all records related to this Agreement and the project funded hereunder for a period of at least six (6) years following completion of payment of the grant-in-aid under this Agreement. 15.5 The Public Agency shall promptly submit to the Executive Director any report or reports required by the Executive Director, including, but not limited to progress reports where required by KCDMS. 15.6 The Public Agency shall submit progress reports and a final report when the project is completed, prematurely terminated, or project assistance is terminated. The report shall include a final accounting of all expenditures and a description of the work accomplished. If the project is not completed, the report shall contain an estimate of the percentage of completion, and shall indicate the degree of usefulness of the completed project. The report shall account for all expenditures not previously reported and shall include a summary for the entire project. 16. ACKNOWLEDGEMENT The Public Agency shall include language which acknowledges the funding contribution of KCDMS to this project in any release or other publication developed or modified for, or referring to, the project. The Public Agency also shall post signs or other appropriate media at project entrances and other locations on the project which acknowledge KCDMS's funding contribution. The Public Agency shall consult with KCDMS as to the form, content, and location of such signs or other appropriate media. 17. INDEPENDENT CONTRACTOR STATUS OF PUBLIC AGENCY The Public Agency and the Public Agency's officers, employees and agents shall perform all obligations under this Agreement as an independent contractor and not in any manner as officers or employees or agents of KCDMS. Herein all references to the Public Agency shall include its officers, employees and agents. KCDMS shall not withhold or pay taxes or insurance deductions of any kind. 18. RESTRICTION ON ASSIGNMENT The Public Agency shall not assign this Agreement, or the performance of any obligations to KCDMS under this Agreement, or any claim against KCDMS it may have under this Agreement, without the express written consent of the Executive Director of KCDMS. 19. CONFLICT OF INTEREST 19.1 The Public Agency shall not participate in the performance of any duty in whole or in part pursuant to this Agreement to the extent participation is prohibited by chapter 42.18 RCW, the Executive Conflict of Interest Act, or any other federal, state or local similar conflict act which may apply to the Public Agency. KCDMS may, by written notice to the Public Agency, terminate this Agreement if it is found after due notice and examination by KCDMS that there is a violation of the Executive Conflict of Interest Act, chapter 42.18 RCW; Code of Ethics for Public Officers and Employees, chapter 42.22 RCW; or any similar statute or ordinance involving the Public Agency in the procurement of, or performance under, this Agreement. 19.2 The existence of facts upon which KCDMS or the Executive Director of KCDMS, makes any determination under this section may be an issue under, and may be reviewed as is provided in, the disputes section of this Agreement, section 20 below, upon agreement of the parties. 20. DISPUTES 20.1 When a bona fide dispute arises between KCDMS and the Public Agency which cannot be resolved between those parties, the parties may agree that the disputes process set out in this section shall be used prior to any action being brought in court. Either party may request a disputes hearing hereunder. The request for a disputes hearing must be in writing and clearly state: (a) the disputed issues; (b) the relative positions of the parties regarding those issues as then understood by the requesting party; (c) the Public Agency's name, address, project title, and KCDMS's project number. In order for this section to apply to the resolution of any specific dispute or disputes, the other party must agree in writing that the procedure under this section shall be used to resolve those specific issues. 20.2 The dispute shall. be heard by a panel of three persons consisting of one person chosen by the Public Agency, one person chosen by the Executive Director of KCDMS (WPCD) and a third person chosen by the two persons initially appointed. 20.3 Any hearing under this section shall be informal, with the specific processes to be determined by the disputes panel according to the nature and complexity of the issues involved: The process may be solely based upon written material if the parties so agree. The disputes panel shall be governed by the provisions of this Agreement in deciding the disputes. 20.4 The parties shall be bound by the decision of the disputes panel, unless the remedy directed by the panel shall be without the authority of either or both parties to perform, as necessary, or is otherwise unlawful. 20.5 Request for a disputes hearing under this section by either party shall be delivered or mailed to the other party at the address set out in section 24 below. The request shall be delivered or mailed within thirty (30) days of the date the requesting party has received notice of the action or position of the other party which it wishes to dispute. The written agreement to use the process under this section for resolution of those issues shall be delivered or mailed by the receiving party to the requesting party within thirty (30) days of receipt by the receiving party of the request. 20.6 All costs associated with the implementation of this process shall be shared equally by the parties. 21. GOVERNING LAWIVENUE This Agreement shall be governed by the laws of the state of Washington. In the event of a lawsuit involving this Agreement, venue shall be proper only in the Superior Court in and for King County. 22. SEVERABILITY If any provision of this Agreement or any provision of any law, rule or document incorporated by reference into this Agreement, shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which legally can be given effect without I the invalid provision. To this end the provisions of this Agreement are declared to be severable. 23. HEADINGS NOT CONTROLLING Headings used in this Agreement are for reference purposes only and shall not be considered a substantive part of this Agreement. --- -13- 24. NOTICES 24.1 All written communications which are to be given to the Public Agency under this Agreement will be addressed and delivered to: Name: Helen Wickstrom Title: Superintendent of Parks Administration Mailing Address: 220 4th Ave. S. Kent, WA 98032 24.2 All written communications which are to be given to KCDMS under this Agreement will be address and delivered to Judy Bevington, or her designated successor, King County Department of Metropolitan Services, 821 Second Avenue, MS 81, Seattle, Washington 98104-1598. 24.3 The above shall be effective until receipt by one party from the other of a written notice of any change. 24.4 The date of notice shall be the date notice is delivered in person or by facsimile copy or three days after notice is mailed, whichever is earlier. 25. AMENDMENT This Agreement may not be amended except by written agreement signed by the parties. 26. STATUS OF THE PARTIES Nothing in this agreement is intended to create a partnership or constitute a joint venture between the Public Agency or KCDMS. 27. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the respective successors, permitted assignees, administrators, and trustees of KCDMS and the Public Agency. 28. EXECUTION OF DOCUMENTS This Agreement shall be executed in any number of duplicate originals, any of which shall be regarded for all purposes as an original and all of which shall constitute but one and the same instrument. --- -14- 29. NO THIRD PARTY BENEFICIARIES In promising performance to one another under this Agreement the parties intend to create binding legal obligations to and rights of enforcement in (a) one another; and (b) one another's permitted assignees or successors in interest. The parties expressly do not intend to create any obligation or liability, or promise any performance to, any third party. The parties have not created for any third party any right to enforce this Agreement. 30. ENTIRE AGREEMENT This Agreement sets forth the. entire agreement between the parties with respect to the subject matter hereof. Commitments, warranties, representations and understandings or agreements not contained, or referred to, in this Agreement or written amendment hereto shall not be binding on either party. Except as may be expressly provided herein, no alteration of any of the terms or conditions of this Agreement will be effective without the written consent of both parties. KING COUNTY DEPARTMENT APPROVED AS TO FORM: OF METROPOLITAN SERVICES By: / , J17� Date: Date: g�9� NORM MALENG, -�VneMTMq Attorney CITY O KENT. APPROVED AS TO FORM: By: Date: 2 S Mayor I' Date: a City Attorney -15- EXHIBIT A PROJECT DOCUMENTS (Due Before Reimbursement) All Projects • Invoice Voucher • Progress reports • Final report, including Documentation of signage Amount of matching funds used to complete the project Total Project Cost • Phase I Hazardous Substance Information Hazardous Substance Certification (See Section 13.2) • Documentation that special conditions are met • Recorded Restrictive Covenant for Public Recreation and Habitat Conservation Acquisition Projects . • Appraisal with appraiser certification (review appraisal desirable) or substitite report with market data and comparable sale documentation • Boundary map that accurately shows boundary, acreage, easements, exclusion, structures, adjoining ownership (boundary survey desirable) • Title policy/legal description • Escrow closing statement • Purchase and Sales Agreement • Statement of Difference (if appraisal is substantially different than sale price) • Relocation eligibility information (if relocation is required) • Recorded Statutory Warranty Deed EXHIBIT B PROJECT DESCRIPTION Riverview Park project is for the acquisition of 11.62acres of open space lving between the Green River and State Route 167. It .will save 1,700 feet of river shoreline from the threat of private development and will enhance existing habitat area. The park, when developed, will provide controlled public access to the river, and serve as a rest area for the 25 mile regional Green River Trail system and the 11 mile Interurban Trail. The project will add to an existing waterfront park by connecting the 2.63 acre River-walk Park and the 4 acre Foster Park for a total riverfront park of 18.25acres with 4,420 lineal feet of continuous public owned shoreline. Future development will include picnic shelter, playground equipment, handicap public access and tra'Is,. fishing, parking, small hand carried boat launch ramp, river and mountain views, education signage and habitat preservation and enhancement. The site contains several distinct habitat types which in turn serve a variety of wildlife. Three distinct habitats occur on this parcel: grassy field, deciduous forest, and riparian riverbank and shoreline. Grassv Fields. This habitat was partially cleared by the owner and now has a variety of grasses and weedy species invading the area. Patches of blackberry bushes are evident and beginning to recolonize the site. Herbaceous plant species, in addition to a variety of grasses, include brass buttons, common thistle, purple pea, vetch, clover; dandelion, and foxglove. Several trees such an pin cherry, honev locust, redosier dogwood, and willow are sparsely scattered over the field. Although primariiy an upland habitat. because of microtopographv, small patches of wetland could exist in this area. The dense vegetation provides habitat for primarily small rodents. Raptors and coyotes, in turn, utilize this habitat for feeding on rodents. Deciduous Forest. Deciduous forest occupies approximately three acres of the site, primarily along the upper bank of the Green River. This strip is heavily forested with mature trees. Large black cottonwoods and alders dominate the upper story, providing shade for red elderberry, willow, snowberry and salmonberry. Although technically probably not a forested wetland, this habitat type provides many of the same benefits to wildlife. The tall trees provide perches for raptors such as merlins and ospreys and red- tailed Coopers, and sharp-shinned hawks, all of which probably frequent the area. The trees also _ provide shade, refuge, and/or feeding areas for fox. coyote, raccoon. mountain beaver, squirrels, and a variety of small mammals. In addition. the cottonwoods provide valuable shading of the Green River,which serves as spawning and rearing habitat for steeihead and cutthroat trout, and fang, coho and chum salmon in addition to other fish. Rivarian Riverbank and Shoreline. . The Green River flows along 1,700 feet of this parcel. The banks are thickly covered with blackberry bushes; willow trees are scattered along the shoreline. Although inhibiting shoreline access and relatively unsightly,the bushes do provide refuge and nesting habitat for the mallards,widgeons, and other ducks which frequent the river. The river and shoreline are frequently used by migratory waterfowl. There are several riffle areas which could serve as spawning ground for salmon and trout and feeding sites for great blue herons which inhabit the area. The shaded banks also provide habitat for mountain beaver who burrow into the banks. The riparian areas along the Green River serve.as movement corridors for birds and mammals in an ever increasing urban environment in a similar manner as the river serves fish. This type of riverfront property in King County is commonly being developed for office parks and other commercial facilities, which fragments corridors and valuable riparian habitat. Forested riparian areas are especially becoming a scarce habitat type. In addition, this site is adjacent to the Green River regional bike trail, which provides recreation for residents of Kent and King County. The long-term viability of habitat on this site will be maintained by the following measures: - Retain the riparian forest along the river. - Plant trees along the western boundary to buffer site from highway and also along river to extend riparian forest to south. - Locate picnic tables outside this forested area to cause less disturbance to wildlife-. - Remove blackberry bushes along the riverbank and plant native riparian vegetation. - Access the river from defined trails to lessen the potential of trampling banks and causing erosion. - Remove blackberry bushes and rubbish from grassy Field and establish habitat islands with native vegetation plantings. Green River. The project will.provide public access to the shoreline of the Green River which is the eighth largest river entering Puget Sound. These waters support a lucrative fishery: catches of salmon and steelhead from the Green River are valued at over S19.000,000 a year. In addition, the Green River provides rearing,spawning,nesting and transportation for a multitude offish and wildlife species. The river is a feeding ground for heron, osprey and endangered bald eagles: river otter, weasel and muskrat can also be found. Birds migrating along the Pacific Flyway rely on the seasonal and permanent wetlands of the lower Green River for shelter and sustenance. The Green River is an excellent recreation resource inclose proximity to the largest metropolitan region in the state and it has been nominated for inclusion in the State Scenic River System. Site Liabilities. To our knowledge, the site has not had a prior use which would indicate any legal or environmental liabilities. We do not foresee any permit, land use or regulation liabilities. Permits are not required for land purchase. Known permits for development include: SEPA (Kent as lead agency) Shoreline Permit, variance for improvements within the shoreline area, building permit for the restroomishelter, and possible Corps of Engineers and Fisheries permit for development of the boat launch. We do not foresee any problem in obtaining these permits. The project meets the public access element and the recreation element of the Shoreline Master Program. These elements assess the need for providing public access to the shoreline areas and for maximizing public recreation opportunities. Several similar park projects have been developed along the Green River, with all receiving the necessary permits. LONG TERM STEWARDSHIP PLAN Project Goals The 1980 Green River Corridor Plan and the 1988 Comprehensive Park and Recreation Plan both identify acquisition of this property as a top priority. The project also meets the goals of the City of Kent's Shoreline Master Program and the Valley Floor Comprehensive Plan to provide public access and recreational opportunities along the entire length of the Green River as it runs through Kent. Kent's residents rated preservation of a greenbelt/natural area along the Green River and water related activities as their highest priority. Resolution No. 1357, authorizing application for Shoreline Improvement Funds, further commits the City of Kent to acquiring the property and providing long term stewardship of the site. The project goal is to acquire the site now so as to preserve it from development by the owner and to develop a passive park on the site as soon as possible. The goal is to provide improved public access to the river edge, maximize recreational opportunities along the shoreline, provide a regional riverfront park system, provide a trailhead along a regional bicycle trail. and protect and enhance an existing wildlife habitat area. The Riverview Park site is located between two other City owned park sites. The subject site. together with the other two sites, will provide 4,420 lineal feet of public shoreline ownership and habitat area. The City of Kent Wetlands Preservation Program states that "preservation of our wetlands, streams and area habitats is essential for ours and following generations to live in a healthy and ecologically productive environment. At present rates of growth and change, the next few years will see our final chance to preserve undeveloped areas that provide natural. habitat. Should these ecosystems disappear or be reduced to even more minute amounts. their isolated functions would cease to affect our larger surroundings, and our living environment would be irreversibly altered." This site is one of the few remaining undeveloped parcels along the Green River in the city limits of Kent. It is zoned for light industrial with an application on file with the Kent Planning Department requesting a conditional use to develop this property as an office complex. Operation and Maintenance Tasks. Staff. BudiZet. Schedule The City of Kent Parks and Recreation Maintenance Division will provide the long term stewardship of Riverview Park. That Division has a maintenance staff totaling 17 full time employees, one regular part time employee, and 12 seasonal employees. Their 1993 budget is S1,285,391. All park and recreation facilities are placed on a regular maintenance schedule. The frequency of maintenance visits depends upon the type of facility and amount of development, e.g. restroom facilities receive daily maintenance. Kent Parks and Recreation Department has received the National Gold Medal OLD - -,.PUBLIC EXHIBIT C * TITLE, LTD. _ fill* * Order No. l!J. r/�'�—r 1201 Third Avenue, Suite I410 J Seattle, WA 98101-3095 PIat Val Page 206-625-1952 e ♦I I \ \ \ r 1 lz•�a / I 4Q J _ 1 :•;Iz / h� i it � •'' 'r�l e Dimensions of subject premiss are ed for not urbort to shotiv a�I highways, roads. or easements a5!--tins said properry. No liability is assum does roperty, described in this order. It is furnished 's sketch P ev of the P for This a sury ' 'itty variations in dimensions and locnuon, and is not based upon remises. The Company assumes no liaoi . without charge, solely for the purpose of assisting in locating the described p inaccuracies therein. e Jy EXHIBIT C — TITLE REPORT 68005 That portion of Government Lot 3 in Section 25. Township 22 North, Ranae 4 East. W.M., in King County, Washington, and of Government Lot 2 in Section 24, Township 22 North, Range 4 East. W.M., in King County, Washington, described as follows: Beginning at the Southwest corner of the S. W. RUSSEL L. DONATION CLAIM NO. 41 in Section 25, Township 22 North, Range 4 East, W.M., in King County, Washington, THENCE North 0045'00"West along the West line of said Donation Claim No. 41, a distance of 525.5 feet to an iron pipe set on the West line of said Donation Claim; t corner of a certain tract of land quit claimed to James A. THENCE North 89'15'00" West 525 feet to the Northwes Cavanaugh on April 17, 1894, by Margaret J. Hayes and P. C. Hayes, her husband; THENCE South 8100'00" East 376 feet to a point of the North bank of Green River (formerly White River), which point is the True Point of Beginning for this description; THENCE North 8000'00"West 1,030 feet, more or less, to the South line of the lands of Florence E. and Frances Mullen; THENCE North 89°15'00"West to the East bank of Green River (formerly White River); THENCE Southwesterly, Southerly, and Southeasterly along and following the meanders of the said Green River 1,800 feet, more or less, to the True Point of Beginning; LESS that portion conveyed to the State of Washington for Primary State Highway No. 5 by Deed recorded under Auditor's File No. 5958419, EXCEPT Russell Road; AND EXCEPT that portion thereof lying within Section 25. said Township and Range. SITUATE in the County of King, State of Washington. END OF EXHIBIT "C" 68005 EXHIBIT D AFTER RECORDING, RETURN TO: City of Kent Parks and Recreation Department 220 Fourth Avenue South Kent, Washington 98032 Attn: Helen Wickstrom RESTRICTIVE COVENANT Notice is hereby given that the property legally described in Exhibit A hereto (the Property) is subject to use restrictions and other obligations. These use restrictions and other obligations are described in the Project Contract entered into between the King County Department of Metropolitan Services (KCDMS) and the City of Kent - Parks and Recreation Department (the Public Agency) entitled Riverview Project Number A71908 signed by the Public Agency on the 27th day of April 1994 and by KCDMS on the 18th day of April 1994 and the application and supporting materials which are on file with the Public Agency and KCDMS in connection with the Project Contract. Pursuant to the Project Contract, the owner of the Property shall not make or permit to be made any use of the Property, or any part of it, which is inconsistent with the shoreline public use and recreation purposes and habitat conservation as described in the Project Contract, unless KCDMS, or its successor, consents to the inconsistent use, which consent shall be granted only upon conditions which will ensure that other lands and facilities of at least equal fair market value at the time of change of use and of as nearly as feasible equivalent usefulness and location for the shoreline public use and recreation purposes for which KCDMS assistance from the Shoreline Improvement Fund was originally granted will be substituted in the manner provided for in the Project Contract. The restrictions and obligations described above shall run with the land and shall be binding on any and all persons who acquire an interest in the Property. DATED this 27th day of April 1994 The City of Kent , Public Agency By: Its: Mayor ,/� STATE OF WASHINGTON ) ss. COUNTY OF ) On this _)-Z` day of 199 before me, the undersigned, a Notary Public;in'and fbr the State of Washington, duly commissioned and sworn, perso ally appeared " �� , to me known to be the of he 0 the public agency that exec ted the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said Public Agency, for the uses and purposes therein mentioned, and on oath stated that is authorized to execute the said instrument and that the seal affixed (if any) is the seal of said Public Agency. WITNESS my hand and official seal hereto affixed the day and year in this certificate above written NOVARY PUBLIC in and for the State- of Washington, residing any=� z-- My commission expires