AG 04-140 - KING CO.,TRIBES, WA ST & US GOVT
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King County
Department Of Natural Resources And Parks
Water And Land Resources Division
Open Space Acquisitions Unit
Attention: Pat Ross
MS - KSC-NR-600
201 SOUTH JACKSON, SUITE 600
Seattle, WA 98104-1614
(206) 296-8337
(206) 296-0192 FAX
CONFORMED COpy
20040615002159
KC DEPT OF NAT AG 0.00
PAGE001 OF 018
06/15/2004 13:53
KING COUNTY, UA
Cooperative Agreement Among Parties Regarding
The West Hvlebos Acquisition Property Project
June 15, 2004
Department:
DNRPIWLRD Capital Projects & Open Space Acquisitions
Section
Parties
City of Federal Way,
King County
Puyallup Tribe of Indians,
Muckleshoot Indian Tribe,
Washington Department of Ecology,
Washington Department of Natural Resources,
National Oceanic and Atmospheric Administration,
Department of the Interior,
U.S. Fish and Wildlife Service, and
Bureau of Indian Affairs
Project:
West Hylebos Acquisition Property Project
COOPERATIVE AGREEMENT
AMONG CITY OF FEDERAL WAY, KING COUNTY, PUYALLUP TRIBE OF
INDIANS, MUCKLESHOOT INDIAN TRIBE, WASHINGTON DEPARTMENT OF
ECOLOGY, WASHINGTON DEPARTMENT OF FISH AND WILDLIFE,
WASHINGTON DEPARTMENT OF NATURAL RESOURCES, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF THE INTERIOR, U.S.
FISH AND WILDLIFE SERVICE AND BUREAU OF. INDIAN AFFAIRS REGARDING
THE WEST HYLEBOS ACQUISITION PROPERTY PROJECT
I. PARTIES
This Agreement is entered into among King County, the City of Federal Way, and the
Commencement Bay Natural Resource Trustees (Trustees) consisting of: The Puyallup Tribe of
Indians (Puyallup Tribe); The Muckleshoot Indian Tribe (Muckleshoot Tribe); the Washington
Department of Ecology (Ecology) as lead state natural resource trustee; the Washington
Department of Natural Resources (WDNR); the Washington Department of Fish and Wildlife
(WDFW); the National Oceanic and Atmospheric Administration (NOAA) of the U.S.
Department of Commerce; and the U.S. Department of the Interior (DOl) including the U.S. Fish
and Wildlife Service (USFWS) and the Bureau ofIndian Affairs (BIA). King County, the City of
Federal Way and the Trustees collectively shall hereafter be identified as the Parties. This
Cooperative Agreement concerns the management and use of property provided to the City of
Federal Way. The property has been acquired with funds provided by King County and the
Trustees.
ll. RECITALS
A. The Trustees, acting under applicable state, federal and tribal law, enter into this
Cooperative Agreement in furtherance of their general responsibilities to restore, replace and
acquire the equivalent of natural resources of the Commencement Bay environment injured by
releases of hazardous substances.
B. The Trustees are also parties to a Memorandum of Agreement Regarding Natural
Resource Damage Assessment in the Commencement Bay, Washington Environment (MOA),
including its First Supplement concerning Coordination in the Use of Natural Resource Damage
Assessment and Restoration Planning Contributions and Application of Natural Resource
Damage Recoveries (MOA Supplement). The MOA Supplement provides that the Trustees may
enter into separate agreements or memoranda of understanding to derIDe their respective roles
and responsibilities regarding habitat restoration projects undertaken by or on behalf of the
Trustees. As between and among the Trustees, the terms of this Cooperative Agreement are
intended to apply in addition to those of the MOA and the MOA Supplement, the terms of which
are hereby incorporated by reference solely for purposes of defining the rights and relationships
among the Trustees.
C. As a consequence of settlements of natural resource damage claims against several
parties, the Trustees have obtained funds, real property and commitments of in-kind services to
be used for natural resource restoration purposes. The Trustees have adopted the
Commencement Bay Natural Resource Damage Assessment Restoration Plan (Commencement
Bay NRDA Restoration Plan) to guide use of the funds, property and services, and have begun
implementing the Commencement Bay NRDA Restoration Plan by identifying potential
restoration projects and suitable project sites.
D. Among the proposed restoration project sites identified by the Trustees is a property
along Hylebos Creek, a tributary to Commencement Bay, known informally as the West Hylebos
Acquisition Property. The property is located at First Avenue South at 366th Street in King
County, Washington, and consists of a single tax parcel (King County Assessor's Office Tax
Account # 2921049023). Throùgh a resolution of the Trustee Council (Resolution 2003-04,
adopted March 11, 2003), the Trustees have agreed to partner with the King County
Conservation Futures Program and the City of Federal Way in the acquisition of the West
Hylebos Acquisition Property by contributing natural resource damage funds toward the
purchase price.
E. Vnderthe authority ofRCW 84.34.200-84.34.250, and King County Code Chapter 26.12,
King County has established a Conservation Futures Fund Program, through which King County
uses earmarked property tax receipts to acquire rights and interests in open space, wetlands,
habitat areas, farm, agricultural and timber lands. Per King County Code 26.12.010, property or
rights acquired under the Conservation Futures Fund Program are to be subject to covenants and
property restrictions to run with the land in perpetuity and in fulfillment of requirements
necessary to protect, preserve, maintain, improve, restore, limit the future use of, or otherwise
conserve the property for public use or enjoyment. King County is authorized to transfer
property or rights acquired under the Conservation Futures Fund Program, subject to such
covenants and property restrictions, to a city, state or local governmental agency empowered to
hold fee simple or other interests in land on behalf of the public.
F. The City of Federal Way has adopted goals and policies in its Comprehensive Plan,
adopted pursuant 'to the Growth Management Act, that encourage the acquisition and
development of parks within the City, and acquiring the West Hylebos Acquisition Property
would further the goals and policies of that Plan.
G. The purpose of this Cooperative Agreement is to identify the rights and responsibilities
of the Parties regarding the West Hylebos Acquisition Property and the restoration project
potentially to be developed on it.
llI. AUTHORITY
This Cooperative Agreement is entered into pursuant to the Natural Resource Trustee
provisions of section 107(f) of the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), as amended, 42 V.S.C. §9607(f), Section 311 of the Clean Water Act
(CWA), as amended, 33 V.S.C. §1321, the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), Subpart G, 40 c.F.R. §§300.600 - 300.615, Interlocal Cooperation
Act, RCW 39.34, RCW 84.34.200-84.34.250, and other applicable federal state and tribal law.
The following officials or their designees act on behalf of the public as state, federal and tribal
Trustees for natural resources under this Cooperative Agreement:
The Tribal Council, or its designee, for the Puyallup Tribe oflndians;
The Tribal Council, or its designee, for the Muckleshoot Indian Tribe;
The Secretary of the Interior;
The Undersecretary for Oceans and Atmosphere, Administrator of the National Oceanic and
Atmospheric Administration, acting on behalf of the Secretary of Commerce;
The Director of the Department of Ecology for the State of Washington, as lead state Trustee,
the Commissioner of Public Lands of the State of Washington, and the Director of the
Washington Department ofFish and Wildlife.
IV. TERMS AND CONDITIONS
A.
West Hylebos Acquisition Property Project.
The West Hylebos Acquisition Property Project (West Hylebos Project) consists of: (1)
acquisition of the West Hylebos Acquisition Property by King County using Conservation
Futures Fund monies and natural resource damage funds provided by the Trustees, (2) transfer of
the West Hylebos Acquisition Property to the City of Federal Way subject to a restrictive
covenant, attached hereto as Exhibit 1, to ensure the property will be preserved and used
consistently with the purpose of this Cooperative Agreement, (3) preservation of existing habitat
values, and (4) potential alterations and improvements by the Trustees of existing upland and
aquatic habitat on the West Hylebos Acquisition Property, as described below in Section IV.C.,
to benefit fish and wildlife species that utilize the Commencement Bay environment. The
overall purpose of the Restoration Project is to restore natural resources injured by releases of
hazardous substances. This purpose will. be accomplished by taking actions to protect and
enhance fish and wildlife habitat at the site and by precluding inconsistent uses of the property,
thereby increasing the ecosystem complexity and habitat value of Commencement Bay and its
tributaries for birds, wildlife, fish and other aquatic organisms.
B.
Property Ownership. Use and Maintenance.
L West Hylebos AcQuisition Property Ownership. King County shall acquire
ownership of the West Hylebos Acquisition Property, and shall transfer ownership to the City of
Federal Way subject to a restrictive covenant on the deed in the form attached hereto as
Exhibit 1 ("Restrictive Covenant"). King County and the City of Federal Way shall cause the
Restrictive Covenant with a copy of this Cooperative Agreement attached to be filed in the real
property records for King County. It is the purpose of this Restrictive Covenant to assure that
the West Hylebos Acquisition Property will remain available for habitat restoration in perpetuity.
The City of Federal Way shall take such action as is necessary to preclude use of the property
inconsistent with the purposes of this Cooperative Agreement.
2. West Hylebos Acquisition Property Use. Activities may be conducted on the
West Hylebos Acquisition Property that are consistent with the purpose provided in Section
IV.A. above. Use of, or activity on, the West Hylebos Acquisition Property inconsistent with
this purpose is prohibited and the Parties acknowledge and agree that they will not conduct,
engage in, or permit such use or activity.
The Parties agree that activities conducted in accordance with the terms and
conditions of ~pplicable laws, regulations and permit requirements and any restoration project
plan (Restoration Project Plan) developed by the Trustees in consultation with the City of
Federal Way and King County for the site would be consistent with the purposes of providing
habitat value in the Commencement Bay environment, including but not limited to:
.
construction, maintenance and adaptive management activities in accordance with
the Restoration Project Plan, such as land grading, excavation, and recontouring,
vegetation removal, substrate enhancement and planting native vegetation
ecological surveys and research
low impact recreation (wildlife viewing/observation)
construction and maintenance of informational and educational signs or kiosks
activities to control non-native, invasive or noxious plants and animals
construction of a path or trail with construction, design, location, and of materials
intended to minimize disturbance of sensitive habitat areas
emergency activities to protect public health and safety
designation of a parking area as needed to provide public access to the West
Hylebos Acquisition Property and/or contiguous publicly owned property
dedicated to similar use, provided that the size, configuration, design and
elements of any such parking area shall be subject to the agreement of the Parties.
.
The Parties agree that activities that would not be consistent with the purposes of
providing habitat value in the Commencement Bay environment include but are not limited to:
.
alteration of hydrology, including dredging, diking, draining or filling, except
pursuant to the Restoration Project Plan
constructing buildings or structures not permitted above
storage of vehicles, vessels, containers, equipment or other items except
temporary storage of equipment or materials in use for restoration project
development, monitoring and maintenance and routine site maintenance
any activities causing significant water pollution, erosion or sedimentation
removal or disturbance of native vegetation, except in connection with
transplanting activities for further habitat restoration projects as specifically
agreed among the Parties
aquaculture of non-native species
waste disposal or storage including sewage, manure, garbage, pesticides or
hazardous waste
application of fertilizers or pesticides, except pursuant to restoration project plans
as specifically agreed among the Parties
mining
intentional disruption of wildlife
planting of invasive non-native vegetation
erection of commercial billboards and signs
.
.
.
.
.
.
The listing of specific activities herein as being consistent with or not consistent
with the purposes of this Cooperative Agreement is not intended to be exhaustive. The
conducting by any person of the listed activities considered consistent with the purposes of this.
Cooperative Agreement shall be subject to the access restrictions of Section IV.B.3. of this
Cooperative Agreement.
3.
West Hylebos Acquisition Property Access.
a. At all reasonable times the Parties (or other parties specifically designated by any
of the Parties) may enter and freely move about the West Hylebos Acquisition Property for the
purposes of site inspection and forWest HyIebos Project implementation, the process for which
is described in Section IV.c. below, perfonning project monitoring or adaptive management, or
carrying out the tenns of this Cooperative Agreement.
b. Access by the general public to any part of the West Hylebos Acquisition
Property shall be in accordance with applicable laws, regulations or ordinances and such
reasonable use restrictions as the Parties detennine necessary to further the purposes of the West
Hylebos Project.
4. West Hvlebos Acquisition Property Maintenance. The City of Federal Way shall
perform ordinary upkeep and maintenance of the West Hylebos Acquisition Property. The term
"ordinary upkeep and maintenance" means tasks that a prudent land manager would perform in
the normal course of managing similar property. Maintenance of the Restoration Project other
than ordinary upkeep and maintenance shall be dealt with under Section IV.C.1. of this
Cooperative Agreement.
C.
Restoration Project Development. Administration and Implementation.
1. The Trustees intend to develop an as-yet undesigned habitat restoration project on
the West Hylebos Acquisition Property potentially involving alterations and improvements of
existing upland and aquatic habitat features. In designing any such habitat restoration project, the
Trustees shall consult with King County and the City of Federal Way, and may consult with non-
governmental entities including without limitation the Friends of the Hylebos Wetlands. Prior to
the development of any such habitat restoration project, the Parties will enter into a Restoration
Project Memorandum of Understanding, which shall include and incorporate an agreed project
design and shall address details of project administration and implementation. As between the
Parties, the Trustees shall be responsible for designing, developing, implementing and
constructing any such habitat restoration project for the West Hylebos Acquisition Property.
2. The Trustees shall also be responsible for any project maintenance and adaptive
management activities for any such project. For purposes of this Cooperative Agreement,
"adaptive management activities" means additional actions that need to be taken on the West
Hylebos Acquisition Property to maintain the constructed habitat or change the habitat in some
manner to meet the West Hylebos Project purpose provided in Section IV.A. above. Anticipated
changes or developments that may require adaptive management include, among others, the
failure of vegetation to establish or spread, substantial erosion or sedimentation that adversely
alters habitat characteristics, or adverse impacts :trom off site development or access to the
property. Provided, however, that adaptive management to address adverse impacts that result
mainly from access to and/or use of the property by employees, agents or contractors of King
County or the City of Federal Way shall be the responsibility of the party responsible for causing
the adverse impacts. Adaptive management to address adverse impacts that result mainly from
the public's access to and or use of the property shall be the responsibility of the City of Federal
Way.
D.
Dispute Resolution.
1. Avoidance of Disputes. The Parties agree to work cooperatively, to consult
infonnally and to use best efforts to avoid disputes concerning the implementation of this
Cooperative Agreement.
2. Notice of Dispute. If a dispute arises between the Parties concerning the
implementation of this Cooperative Agreement, any party may initiate dispute resolution by
giving written notice thereof to the other parties. In the case of an actual or threatened violation
of the Cooperative Agreement, the notice shall identify corrective action sufficient to cure the
violation and to restore any portion of the West Hylebos Acquisition Property injured as a result
of the violation.
3. Infonnal Negotiations. Following receipt of a notice of dispute, the Parties shall
attempt to resolve the dispute expeditiously and informally. If the dispute is resolved by informal
negotiations, the Parties shall memorialize the resolution of the dispute by an exchange of letters.
4. Fonnal Negotiations - Preparation of Joint Statement of Position. If the Parties are
unable to reach a resolution of a dispute through infonnal negotiations, after fourteen (14)
calendar days following delivery of the notice of dispute described above in subparagraph 2 any
party may initiate formal negotiations by providing written notice to the other parties of the
notifying party's intent to develop a Joint Statement of Position. The Joint Statement of Position
shall consist of a concise written statement of the issues in dispute, including the relevant facts
upon which the dispute is based and the data, analysis or opinion supporting each position, and
any supporting documentation on which each party relies. The Parties shall complete the Joint
Statement of Position within fourteen calendar (14) days following receipt of the' fonnal
negotiations notice, or by such later date as the Parties shall agree. Upon completion of the Joint
Statement of Position, the dispute shall be referred to authorized officials of each Party for
resolution. Each Party shall advise the other Parties in writing of the identity of the authorized
official designated to participate in the dispute resolution process. The resolution agreed to by
such authorized officials shall be binding upon the Parties. The Joint Statement of Position shall
constitute the exclusive factual record of the dispute in the event that the Parties are unable to
resolve the dispute and any party seeks judicial resolution.
E.
Removal of the Restrictive Covenant and Termination of the Cooperative Agreement.
The Restrictive Covenant may be tenninated or extinguished, whether in whole or in
part, only under one or more of the following circumstances:
I. The Parties jointly agree to extinguish the restriction or release a portion of the
West Hylebos Project from the tenns of restriction, upon a detennination by Trustees in their
discretion in consultation with King County and the City of Federal Way that circumstances
have rendered the purpose of the West Hylebos Project, as provided in Paragraph IV.A. above,
impractical to achieve.
2. Upon petition by one or all of the Parties, a court having jurisdiction over this
restriction detennines by judicial proceedings that circumstances have rendered the purpose of
the West Hylebos Project as provided in Paragraph IV.A. above impossible to achieve.
3. All or any of the West Hylebos Acquisition Property is taken by exercise of the
power of eminent domain or acquired in lieu of condemnation, whether by public, corporate, or
other authority. The Parties shall act jointly to recover the full value of the interest in the West
Hylebos Acquisition Property subject to the taking or in-lieu purchase and all direct or incidental
damages resulting from the taking or in-lieu purchase.
4. The Parties agree that the proceeds to which the City of Federal Way shall be
entitled after the satisfaction of prior claims, from any sale, exchange, or involuntary conversiòn
of all or any portion of the West Hylebos Acquisition Property, subsequent to such termination
or extinguishment, shall be determined, unless otherwise provided, by Washington law. The
City of Federal Way shall use such proceeds only to obtain similar substitute property acceptable
to all the Parties within Commencement Bay or within the Puyallup-Carbon- White Rivers
watershed closest to Commencement Bay if one within Commencement Bay is unavailable. The
City of Federal Way shall impose upon such substitute property a restrictive covenant on the
deed in the form attached hereto as Exhibit 1.
F.
Subsequent Transfer.
The City of Federal Way shall:
1. Not sell, transfer or otherwise divest itself of all or any portion of the West
Hylebos Acquisition Property, including, without limitation, a leasehold interest, without
prior written approval of the Trustees and King County.
2. Incorporate the terms of the Restrictive Covenant by reference in any deed or
other legal instrument by which it divests itself of any interest in all or a portion of the
West Hylebos Acquisition Property, including, without limitation, a leasehold interest.
3. Describe the Restrictive Covenant in and append it to any executory contract for
the transfer of any interest in the West Hylebos Acquisition Property.
4. Give written notice to Trustees and King County of the transfer of any interest in
all or a portion of the West Hylebos Acquisition Property no later than one hundred
twenty (120) days prior to the date of such transfer. Such notice to Trustees and King
County shall include the name, address, and telephone number of the prospective
transferee or the prospective transferee's representative.
The failure of the City of Federal Way to perform any act required by this Paragraph
IV.G. shall not impair the validity of the Restrictive Covenant or limits its enforceability in any
way.
G.
Notices.
All notices required or permitted to be given hereunder shall be in writing and shall be
deemed given upon personal service or receipt after deposit in the United States first class mail
addressed as follows:
To Trustees:
National Ocean and Atmospheric Administration
Office of General Counsel- Natural Resources/NW
7600 Sand Point Way NE
Seattle, W A 98115-0070
ATTN: Robert A. Taylor
To City of Federal Way:
Jennifer Schroeder
Director, Parks, Recreation & Cultural Services
City of Federal Way
33530 - 151 Way South
P.O. Box 9718
Federal Way WA 98063=9718
253-661-4040
To King County:
Pam Bissonnette
Director, King County Department of
Natural Resources and Parks
20 I South Jackson Street, Suite 700
Seattle, VVA 98104
(206) 296-6500
V. GENERAL PROVISIONS
A. Funds Availability. The fiscal obligations of the Trustees hereunder shall be fulfilled
solely from and are limited by the funds made available for such activities as a result of the
resolution of natural resource damage claims for the Commencement Bay environment. Nothing
in this Cooperative Agreement shall be construed to require any Party to spend funds in excess
of available appropriations.
B. Severability. The clauses of this Cooperative Agreement are severable, and should any
part of this Cooperative Agreement be declared by a court of competent jurisdiction to be
invalid, the other parts of this Cooperative Agreement shall remain in full force and effect.
C. Entire Agreement. This Cooperative Agreement constitutes the entire understanding of
the Parties with respect to its subject matter.
D. Amendment and Termination. This Cooperative Agreement may not be amended except
by written agreement of all. parties to this agreement. This Cooperative Agreement shall
continue.in effect until it is terminated by agreement of all of the Parties. Any amendment to
this agreement shall be consistent with the original purpose of the Restrictive Covenant and shall
be recorded in the real property records for King County.
E. Execution. Effective Date. This Cooperative Agreement may be executed in
counterparts. A copy with all original executed signature pages affixed shall constitute the
original and shall be retained by the Trustees. The date of execution shall be the date of the final
signature of the Parties to this Cooperative Agreement.
F. Default. In the event that any party defaults in the perfonnance of any of that party's
obligations under this Agreement, the non-defaulting party or parties shall have all remedies
available in law or equity, but no party shall be liable for consequential damage.
G. Parties Bound. The provisions of this Cooperative Agreement shall apply to and be
binding upon the Parties to this Cooperative Agreement, their agents, successors and assigns.
The undersigned representative of each party certifies that he or she is fully authorized by thc
party or parties whom he or she represents to enter into this Cooperative Agreement and to bind
that party to it.
IN WITNESS WHEREOF the Parties have executed this Cooperative Agreement on the date and
year opposite their signature.
A
Dag {ó f
BY:
KING COUNTY
7iut~A
Ron Sims I
King County Executive
1M !oCt
Dat /
BY:
APPROVED AS TO FORM:
~~UÂb.
aleng ¿;
mg County Prosecuting Attorney
THE PUY ALLUP TRIBE OF INDIANS
BY:
Date
Chair
Puyallup Tribal Council
THE MUCKLESHOOT INDIAN TRIBE
BY:
Date
Chair
Muckleshoot Tribal Council
CITY OF FEDERAL WAY
BY:
David Moseley, City Manager
ATTEST:
City Clerk, N. Christine Green, CMC
APPROVED AS TO FORM:
Patricia A. Richardson, City Attorney
KING COUNTY
BY:
Ron Sims
King County Executive
APPROVED AS TO FORM:
~vLJ~.&
N ~aleng j!
K g County Prosecuting Attorney
TH~E OF ~lANS
BY: , CÇ)~tfl2..4-,
Chair
Puyallup Tribal Council
THE MUCKLESHOOT INDIAN TRIBE
BY:
Chair
Muckleshoot Tribal Council
Date
Date
rrlCtV'd', 4,2001
Date
Date
CITY OF FEDERAL WAY
BY:
David Moseley, City Manager
ATTEST:
City Clerk, N. Christine Green, CMC
APPROVED AS TO FORM:
Patricia A. Richardson, City Attorney
KING COUNTY
BY:
Ron Sims
King County Executive
APPROVED AS TO FORM:
Norm Maleng
King County Prosecuting Attorney
THE PUY ALLUP TRIBE OF INDIANS
BY:
Chair
Puyallup Tribal Council
BY:
hair
Muckleshoot Tribal Counc 1
Date
Date
Date
J~ ¡ {;J--Ò VI
Date f
BY:
_(-/,-~I
Dae
WASHINGTON DEPARTMENT OF ECOLOGY
Lead State Trustee
BY:
Date
Approved as to Fonn for the Washington Department of Ecology.
BY:
Date
u.s. DEPARTMENT OF THE INTERIOR
BY:
Date
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
BY:
CRAIG R. O'CONNOR
Special Counsel for Natural Resorurces
Date
WASHINGTON DEP AR TMENT OF ECOLOGY
Lead State Trustee
BY:
~~
2.(2-/ Ot1
Date f
Approved as to Fonn for the Washington Department of Ecology.
BY:
Date
u.s. DEPARTMENT OF THE INTERIOR
BY:
Date
NA nONAL OCEANIC AND ATMOSPHERIC ADMINISTRA nON
BY:
CRAIG R. O'CONNOR
Special Counsel for Natural Resorurces
Date
WASHINGTON DEPARTMENT OF ECOLOGY
Lead State Trustee
BY:
Date
Approved as to Form for the Washington Department of Ecology.
BY: g~~ 1'\..11010)
Date
U.S. DEPARTMENT OF THE INTERIOR
BY:
Date
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRA nON
BY:
Date
CRAIG R. O'CONNOR
Special Counsel for Natural Resorurces
WASHINGTON DEPARTMENT OF ECOLOGY
Lead State Trustee
BY:
Date
Approved as to Form for the Washington Department of Ecology .
BY:
Date
U.S. DEPARTMENT OF THE INTERIOR
BY: ~t_~~
Date
3 2004
'T
I
Exhibit 1
Restrictive Covenant
Notice is hereby given that the property legally described in exhibit A hereto (the West Hylebos
Acquisition Property) is subject to use restrictions and other obligations enforceable by the
Natural Resource Trustees for Commencement bay (enumerated in the Cooperative Agreement
described below and attached hereto) and King County. The purpose of these restrictions and
obligations is to ensure that the West Hylebos Acquisition Property provides habitat value to the
public in perpetuity in the Commencement Bay environment.
These restrictions and obligations are described in Section IV of the Cooperative Agreement for
the West Hylebos Acquisition Property Restoration Project (Cooperative Agreement), attached
hereto and incorPorated herein.
Potential purchasers and lessees are further notified that, pursuant to the Cooperative Agreement,
the West Hylebos Acquisition Property may not be disturbed in any manner that would impair or
interfere with the integrity of the habitat restoration, except as provided in paragraph IV B.2.
The restrictions and obligations described above are intended to run with the land and are
intended to be binding on any and all persons who acquire an interest in the West Hylebos
Acquisition Property. This restrictive covenant may be removed from the West Hylebos
Acquisition Property only in the manner provided for in the Cooperative Agreement.
DATED this _day of ,2004.
West Hylebos Acquisition Property Owner
By:
Its:
STATE OF WASHINGTON)
COUNTY OF
)ss
)
On this _day of ,2004, before me, the undersigned, a Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared
~~~~~~ cl
the [corporation] that executed the within and foregoing
instrument, and ac~owledged the said instrument to be the free and voluntary act and deed of
said [corporation], 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 corporate seal of
said corporation.
Witness my hand and official seal affixed the day and year in this certificate above written.
NOTARY PUBLIC in and for the State of Washington, residing at
My commission expires
CONFORMED COpy
C@[få>W
20040615002158
KC DEPT OF NAT AG 0.00
PAGE001 OF 011
06/15/2004 13:53
KING COUNTY, UA
Recording Requested By And
When Recorded Mail To:
King County
Water and Lands Resources Division
Open Space Acquisitions Unit
201 South Jackson Street, Suite 600
MIS KSC-NR-O600
Seattle, W A 98104
RECORDING COVER SHEET
Intereovernmental Land Transfer Aereement Between
Kine County and the City of Federal Way
Parties: King County, a political subdivision of the State of Washington and
City of Federal Way, a municipal corporation of the State of Washington
Legal Description (abbreviated): Ptn SW-l/4 ofNE-l/4 of section 29. township 21 north.
range 4 east. W.M.. in King County. Washington
Additionallegal(s) on: Exhibit A
Assessor's Tax Parcel ID#: 292104-9075.292104-9023.292104-9006
Project Area: Hvlebos
Intergovernmental Land Transfer Agreement Between
King County and the City of Federal Way
Relating to the Ownership, Operation and Maintenance of Parks,
Open Space, Recreation Facilities and Programs
This Agreement is made and entered into this day by and between the City of Federal Way,
hereinafter called "City," and King County, hereinafter called "County."
WHEREAS the City desires to own, operate, and maintain parks, open space, recreation facilities
and programs and other municipal programs, facilities and property inside its boundaries; and
WHEREAS the County, under the authority ofRCW 36.89.050, King County Resolution 34571
and other federal, state and county laws, has acquired a substantial park, recreation and open
space system that depends on the continued operation of individual properties and facilities in
order to fully serve the needs of the residents of King County and the cities within it; and
WHEREAS the County desires to divest itself of ownership, management, and financial
responsibility for parks, open space, recreational facilities and programs insid,e and near the City
boundaries; and
WHEREAS the County does not have a suffic'ient, stable source of revenue to continue to
manage and maintain its parks, open space, recreational facilities and programs at current levels;
and'
WHEREAS the County is legally restricted from converting many of these parks, open space,
and recreational facilities from their current uses without expending funds to replace the
converted facilities; and
WHEREAS given the legal restriction regarding conversion of the properties, the marketability
of the properties is limited and, as a result, the cost of operating the facility is approximately
equal to the value of the property to the County; and
WHEREAS it is in the best interest ofthe public that the City and the County take those actions
necessary to meet those desires and to cooperate in any transition to insure a smooth transition
and avoid service disruption; and
WHEREAS the County wishes to divest its interests in three open space properties along the
Hylebos Creek and the City wishes to obtain these three properties for open space purposes,
including the protection and restoration of riparian habitat along the Hylebos Creek;
1
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City
and the County agree as follows:
1. Conveyance of Title
I.I.Within sixty (60) days of execution of this Agreement or within the time otherwise
specified in this Agreement, King County shall convey to the City by deed all its
ownership interest, and/or, when possible, by assignment, any leasehold interest or shared
use responsibility, in the following listed park/recreation site(s), which are described
more fully in Exhibit A (the "Property"):
South 359th Street Parcel
Pacific Highway Parcel
School District # 210 Parcel
1.2 AH deeds shaH also contain the foHowing specific covenants pertaining to use, which
covenants shaH run with the land for the benefit of the County and the County land that
makes up its public park, recreation and open space system. The County and the City
agree that the County shall have standing to enforce these covenants, which shaH be set
forth as follows:
"The City, as required by RCW 36.89.050, covenants that the Property shaH be continued
to be used for open space, park, or reqeation facility purposes or that other equivalent
facilities within the County shall be conveyed to the county in exchange therefore."
"The City acknowledges that the Property was purchased for open space purposes with
funds from the Conservation Futures Program. The City covenants to abide by and
enforce aH terms, conditions and restrictions in King County Ordinances 9071, 10750 and
13717, including that the City covenants that the Property will continue to be used for the
purposes contemplated by these Ordinances, wJ:l~ch prohibit both active recreation and
motorized recreation such as off-road recreational vehicles but aHow passive recreation,
and in strict conformance with the uses authorized under RCW 84.34.230, that the
Property shall not be transfeITed or conveyed except by agreement providing that the
Property shall continue to be used for the purposes contemplated by these Ordinances and
in strict conformance with the uses authorized under RCW 84.34.230, and that the
Property shall not be converted to a different use unless other equivalent lands and
facilities within the County or the City shall be received in exchange therefore."
"The City covenants that it will not limit or restrict access to and use of the Property by
non-City residents in any way that does not also apply to City residents. The City
covenants that any and all user fees charged for the Property, including charges imposed
by any lessees, concessionaires, service providers, and/or other assignees shall be at the
same rate for non-City residents as for the residents of the City."
2
"Tlte City covenants that it shall not use the Property in a manner that would cause the
interest on County bonds related to the Property to no longer be exempt from federal
income taxation."
"The City covenants that it shall place the preceding covenants in any deed transferring
the Property or a portion of the Property for public park, recreation or open space uses."
1.3 The deed for the School District # 210 Parcel shall also contain the following additional,
specific covenants pertaining to use, which covenant shall run with the land for the
benefit of the Natural Resource Trustees for Commencement Bay and for the benefit of
the County and the County land that makes up its public park, recreation and open space
system. The County and the City agree that the Natural Resource Trustees for
Commencement Bay and the County shall have standing to enforce this covenant, which
shall be set forth as follows:
"Notice is hereby given that the School District # 210 Parcel is subject to use restrictions
and other obligations enforceable by the Natural Resource Trustees for Commencement
Bay (enumerated in the Cooperative Agreement described below and attached hereto) and
King County. The purpose of these restrictions and obligations is to ensure that the
School District # 210 Parcel provides habitat value to the public in perpetuity in the
Commencement Bay environment.
These restrictions and obligations are described in Section IV of the Cooperative
Agreement for the School District # nO.Parcel Restoration Project (Cooperative
Agreement), attached hereto and incorporated herein.
Potential purchasers and lessees are further notified that, pursuant to the Cooperative
Agreement, the School District # 210 Parcel may not be disturbed in any manner that
would impair or interfere with the integrity ofthe habitat restoration, except as provided
in paragraph IV E.
The restrictions and obligations described above are intended to run with the land and are
intended to be binding on any and all persons who acquire an interest in the School
District # 210 Parcel. This restrictive covenant may be removed from the School District
# 210 Property only in the manner provided for in the Cooperative Agreement."
1.4 The conveyance of the South 359th Street Parcel is contingent on King County obtaining
title to this Parcel by deed pursuant to a King County Local Improvement Assessment
Certificate of Purchase dated November 15,2002. The conveyance of this Parcel as
provided for in Section 1.1 of this Agreement shall occur within thirty (30) days after the
deed conveying this Parcel to King County is duly executed and recorded.
3
2. Existing Restrictions, Agreements, Contracts or Permits
2.1 The City shall abide by and enforce all tenns, conditions, reservations, restrictions, and
covenants of title at the time of conveyance and/or in the deed of conveyance.
2.2 The City acknowledges and agrees that a billboard is located on the South 359th Street
Parcel and that it takes the parcel subject to this encroachment, and the rights, if any, of
the owner of the billboard to locate it on this Parcel.
3. Condition of Premises and Responsibility for Operations, Maintenance, Repairs,
Improvements, and Recreation Services
3.1 The City has inspected and knows the condition of the Property and agrees to accept the
Property in AS IS condition, and to assume full and complete responsibility for all
operations, maintenance, repairs, improvements of, and provision of recreational
services at, the Property.
3.2 King County does not make and specifically disclaims any warranties, express or
implied, including any warranty of merchantability or fitness for a particular purpose,
with respect to the Property, and no official, employee, representative or agent of King
County is authorized otherwise.
3.3 The City acknowledges and agrees th¡;itexcept as indicated in paragraph 4.2, the County
shall have no liability for, and that the City shall release and have no recourse against the
County for, any defect or deficiency of any kind whatsoever in the Property without
regard to whether such defect or deficiency was known or discoverable by the City or the
County.
4. Environmental Liability
4.1 "Hazardous Materials" as used herein shall mean any hazardous, dangerous or toxic
wastes, materials, or substances as defined in state or federal statutes or regulations as
currently adopted or hereafter amended.
4.2 Nothing in this agreement shall be deemed to waive any statutory claim for contribution
that the City might have against the County under federal or state environmental statutes
that arises from hazardous materials deposited or released on the Property by the County
during the County's period of ownership. The City may not, however, assert such a
claim to the extent that the City creates the need for or exacerbates the cost of
remediation upon which a statutory claim for contribution is based as a result of the City
perfonning construction activities on the Property, changing the configuration of the
Property, or changing the use of the Property.
4
4.3
I f the City discovers the presence of hazardous materials at levels that could give rise to
a statutory claim for contribution against the County it shall immediately notify the
County in writing. Such notice shall in no event be provided more than 30 days after
discovery. The parties shall make their best efforts to reach agreement as to which party
is responsible for remediation under the tenns of this Agreement prior to undertaking
any remediation. The parties acknowledge that if hazardous materials on the Property
pose an imminent threat to human health or the environment emergency response may be
required before the parties can agree on the responsibility for remediation.
4.4
In no event shall the County be responsible for any costs of remediation that exceed the
minimum necessary to satisfy the state or federal agency with jurisdiction over the
remediation.
5. Indemnification and Hold Harmless
5.1 King County shall indemnify and hold harmless the City and its elected officials,
officers, agents or employees, or any of them, from and against any and all claims,
actions, suits, liability, loss, costs, expenses and damages of any nature whatsoever, (i)
which are caused by or result from a negligent action or omission of King County, its
officers, agents and employees in perfonning its obligations pursuant to this Agreement,
and/or (ii) arising from those occurrences related to the Property that occurred prior to
the effective date of conveyance of the Property to the City, except to the extent that
indemnifying or holding the City hannless would be limited by Section 4 of this
Agreement. In the event that any sui( based upon such a claim, action, loss or damage is
brought against the City or the City and King County, King County shall defend the
same at its sole cost and expense and, if final judgment be rendered against the City and
its elected officials, officers, agents and employees or jointly against the City and King
County and their respective elected officials, officers, agents and employees, King
County shall satisfy the same.
5.2 In executing this Agreement, the County does not assume liability or responsibility for or
, ,
in any way release the City from any liability or responsibility which arises in whole or
in part from the existence or effect of City ordinances, rules or regulations. If any cause,
claim, suit, action or administrative proceeding is commenced in which the
enforceability and/or validity of any such City ordinance, rule or regulation is at. issue,
the City shall defend the same at its sole expense and if judgment is entered or damages
are awarded against the City, the County or both, the City shall satisfy the same,
including all chargeable costs and attorney's fees.
5.3 The City shall indemnify and hold hannless King County and its elected officials,
officers, agents and employees, or any of them, from and against any and all claims,
actions, suits, liability, loss, costs, expenses and damages of any nature whatsoever, (i)
which are caused by or result from a negligent act or omission of the City, its officers,
agents and employees in perfonning obligations pursuant to this Agreement, and/or (ii)
arising from those occurrences related to the Property that occurred on or after the
5
effective date of conveyance of the Property to the City, except to the extent that
inLkmnifying or holding the County hannless would be limited by Section 4 of this
Agreement. In the event that any suit based upon such a claim, action, loss or damage is
brought against King County or King County and the City, the City shall defend the
same at its sole cost and expense and, if final judgment be rendered against King County
and its officers, agents and employees or jointly against King County and the City and
their respective officers, agents and employees, the City shall satisfy the same.
5.4 Each party to this Agreement shall immediately notify the other of any and all claims,
actions, losses or damages that arise or are brought against that Party relating to or
pertaining to the Property.
5.5 Each party agrees that its obligations under this paragraph extend to any claim, demand,
and/or cause of action brought by or on behalf of any employees, or agents. For this
purpose, each party, by mutual negotiation, hereby waives, with respect to the other party
only, any immunity that would otherwise be available against such claims under the
Industrial Insurance provisions of Title 51 RCW, but only to the extent necessary to
indemnify the other party.
6. Audits and Inspections
6.1 Until December 31, 2009, any of either party's records related to any matters covered by
this Intergovernmental Agreement not otherwise privileged shall be subject to
inspection, review, and/or audit by eit.her party at the requesting party's sole expense.
Such records shall be made available for inspection during regular business hours within
a reasonable time of the request. '
7.
Waiver and Amendments
7.1 Waiver of any breach of any tenn or condition of this Agreement shall not be deemed a
waiver of any prior or subsequent breach. No tenn or condition shall be waived,
'" ,
modified, or deleted except by an instrument, in writing, signed by the parties hereto.
8.
Entire Agreement and Modifications
8.1 This Intergovernmental Agreement and its Exhibits sets forth the entire agreement
between the parties with respect to the subject matter hereof. It may be supplemented by
addenda or amendments, which have been agreed upon by both parties in writing.
Copies of such addenda and amendments shall be attached hereto and by this reference
made part of this contract as though fully set forth herein.
6
9. Duration and Authority
9.1 This agreement shall be effective upon signature and authorization by both parties. The
terms, covenants, representations and warranties contained herein shall not merge in the
deed of conveyance, but shall survive the conveyance and shall continue in force unless
both parties mutually consent in writing to termination.
10. Notice
10.1 Any notice provided for herein shall be sent to the respective parties at:
King County
City of Federal Way
King County Office of Open Space
201 South Jackson Street, Suite # 600
Seattle,WA 98104-3855
City of Federal Way
Attn: Jennifer Schroder, Parks Dept
33530 First Way South
PO Box 9718
Federal Way, W A 98063
IN WITNESS WHEREOF, the parties have executed this Agreement.
King County
City of Federal Way
-¡¿11M ~ Aft."
King County Executive (I
Date
~ /3 Þ1
. ,
r;¡( '1/1) t
Dáte f
(3°ved as to Fonn: .
~ ;(~~~)
Kmg County
Deputy Prosecuting Attorney
Approved as to Form:
f~(( ~<~
City Attorney
$~
Date
5/1 9lD!:J
Date
7
STATE OF WASHINGTON, }
}SS.
County of King }
I hereby certify that I know or have satisfactory evidence that Pam Bissonnette is the person who
appeared before me, and said person acknowledged that she signed this instrument, on oath
stated that she is authorized to execute the instrument and acknowledged it as the Director,
Department of Natural Resources and Parks of King County, to be the free and voluntary act of
such party for the uses and purposes mentioned in this instrument.
Dated: June 3, 2004
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Printed signature
Notary Public in and for the State of Washington,
residing at
r4:~7 ù Ai
My appointment expires (;;, ! ~ J ! Db
.
STATE OF WASHINGTON, }
}SS.
County of King }
I hereby certify that I know or have satisfactory evidence that
is/are the person(s) who appeared before
me, and said person(s) acknowledged that _he- signed this instrument, on oath stated that
_he- is/are authorized to execute the instrument and acknowledged it as the
. of the City of Federal Way, to be the free and voluntary act of such party for
the uses and purposes mentioned in this instrument.
Dated: CeO) - I (j - n1-
-
Prin~s:rw;ù~
Ja:~.. NSON
STATE ToN
NO PUBLIC
Notary Public in and for the State of Washington,
residing at p t4~c..-~- ~~
MY COMMISSIOW eXPIRES 08-27.e1
My appointment expires
0(., -')-. l- 07
8
EXHIBIT A
Legal Descriptions
1. South 359th Street Parcel (14.23 Acres]:
That portion of the Southwest quarter of the Northeast quarter of Section 29, Township 21
North, Range 4 East, W.M., in King County, Washington, lying Southeasterly of State
Highway (Pacific Highway South) and Northeasterly ofM.E. Neal County Road (South
3591h Street);
EXCEPT that portion thereof described as follows:
Beginning at the point of intersection of the Easterly line of State Highway and the Northerly line
of said subdivision, which point is North 21 °1 0'00" East 1,427.00 feet and North 89°43 '00" East
53.62 feet from the center of said Section 29;
Thence North 89°43 '00" East along said Northerly line of said subdivision a distance of
375.43 feet;
Thence South 21 °10'00" West parallel with the Easterly line of said Highway, 470.65 feet;
Thence North 65"20'00" West 350 feet to said Easterly line of State Highway;
Thence North 21 °1 0'00" East along said Easterly line of State Highway, 312 feet to the
point of beginning.
2. Pacific Hiehwav Parcel [112 Acre]:
The Southwesterly 65 feet of the following described property:
Beginning at the point of intersection of the Easterly line of State Highway and the Northerly line of
said subdivision, which point is North 21°10'00" East 1,427.00 feet and North 89°43'00" East
53.62 feet ITom the center of said Section 29;
Thence North 89°43 '00" East along said Northerly line of said subdivision a distance of 375.43
feet;
Thence South 21 °1 0'00" West parallel with the Easterly line of said Highway, 470.65 feet;
Thence North 65"20'00" West 350 feet to said Easterly line of State Highway;
Thence North 21 °10'00" East along said Easterly line of State Highway, 312 feet to the point of
beginning.
3. School District # 210 Parcel [32.81 Acresl:
That portion of the Southwest quarter of the Northeast quarter of Section 29, Township 21 North,
Range 4 East, W.M., in King County, Washington, lying Southeasterly of State Highway (Pacific
Highway South) and Northeasterly ofM.E. Neal County Road (South 359th Street);
9
EXHIBIT A
EXCEPT that portion thereof described as follows:
Beginning at the point of intersection of the Easterly line of State Highway and the Northerly line of
said subdivision, which point is North 21 °1 0'00" East 1,427.00 feet and North 89°43 '00" East
53.62 iCet horn the center of said Section 29;
Thence North 89°43'00" East along said Northerly line of said subdivision a distance of375.43
feet;
Thence South 21°10'00" West parallel with the Easterly line of said Highway, 470.65 feet;
Thence North 65<>20'00" West 350 feet to said Easterly line of State Highway;
Thence North 21 °10'00" East along said Easterly line of State Highway, 312 feet to the point of
beginning.
10