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Snohomish County Interlocal Cooperation Agreement Concerning Acquisition of Property with Conservation Futures FundsINTERLOCAL COOPERATION AGREEMENT BETWEEN SNOHOMISH COUNTY AND THE CITY OF EDMONDS CONCERNING ACQUISITION OF PROPERTY WITH CONSERVATION FUTURES FUNDS THIS INTERLOCAL COOPERATION AGREEMENT BETWEEN SNOHOMISH COUNTY AND THE CITY OF EDMONDS CONCERNING ACQUISITION OF PROPERTY WITH CONSERVATION FUTURES FUNDS (this "Agreement"), is made and entered into this day of A/Og4— , 2013 by and between SNOHOMISH COUNTY, a political subdivision of the State of Washington (the "County"), and the CITY OF EDMONDS, a Washington municipal corporation (the "City") pursuant to Chapter 39.34 RCW. RrrITAI S A. The County manages a Conservation Futures funding program pursuant to RCW 84.34.200 et seq. and Chapter 4.14 Snohomish County Code. B. Cities and towns located in Snohomish County, nonprofit historic preservation corporations, and nonprofit nature conservancy corporations or associations as such are described in RCW 84.34.210 are eligible to apply to the County for resources to fund acquisition of interests or rights in real property located within Snohomish County that meet the conservation criteria described in RCW 84.34.210 et seq. C. The City applied for resources from the Snohomish County Conservation Futures Property Tax Fund to purchase unimproved real property located in the City at 260 Beach Place and more particularly described in Section 1.1 below (hereinafter referred to as the "Property"). D. The Snohomish County Conservation Futures Program Advisory Board, at their August 20, 21 and 23, 2013 meetings, reviewed all of the project sponsor requests and, after review, recommended funding the request of the City of Edmonds for Five Hundred Thousand and 00/100 Dollars ($500,000.00) from the Snohomish County Conservation Futures Property Tax Fund. E. On September 11, 2013, the Snohomish County Council, by Amended Motion No. 13-353, allocated funding in the amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) to the City of Edmonds from the Snohomish County Conservation Futures Property Tax Fund for that purpose. NOW, THEREFORE, in consideration of the mutual promises set out below and for other good and valuable consideration, the Parties agree as follows: Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 1 of 9 1. Identification of Property. The Property is located in the City of Edmonds, Washington and is generally legally described as follows: SEE ATTACHED EXHIBIT A. 2. Purpose of Property Acquisition. The Property is to be acquired for the purpose of conserving open spaces and areas as authorized by RCW 84.34.200 et seq., and for conservation and for passive, public recreation. 3. Duration. This Agreement shall become effective when executed by both parties and posted on the County's Interlocal Agreements website (the "Effective Date"). If the Property is acquired within the time frame provided in Section 5.1 below, this Agreement shall be in effect perpetually, subject to any amendments agreed to in writing by the parties. If the Property is not acquired within the time frame provided in Section 5.1 below, this Agreement shall be terminated; PROVIDED, HOWEVER, that the County and the City may mutually agree in writing, prior to termination, upon an extension of time. 4. Administrators. Each party to this Agreement shall designate an individual (an "Administrator") who may be designated by title or position, to oversee and administer such party's participation in this Agreement. The parties' initial Administrators shall be the following: County's Initial Administrator: Tom Teigen, Director Snohomish County Parks and Recreation 6705 Puget Park Drive Snohomish, WA 98296 City's Initial Administrator: City of Edmonds Office of the Mayor 700 Main Street Edmonds, WA 98020 Either party may change its Administrator at any time by delivering written notice of such party's new Administrator to the other party. shall: S. Duties of the City to Acquire, Operate, Maintain and Conserve. The City 5.1 Acquire the Property within eighteen (18) months of the Effective Date of this Agreement and upon closing maintain, operate and conserve the Property for open space and passive park purposes. The City shall undertake all reasonable efforts to acquire the Property but if the owner of is not a willing seller, the City shall not utilize the power of eminent domain to acquire the Property. Interlocai Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 2 of 9 5.2 Immediately following acquisition of the Property, execute and record an instrument conveying a Conservation Easement for the Property to the County in substantially the form of attached hereto as Exhibit B (the "Conservation Easement"). 5.3 Submit an annual report to the County on February 1 of each subsequent year detailing compliance with all on -going requirements of this Agreement. 5.4 Forward a copy of the recorded deed conveying the Property and a copy of the executed Conservation Easement for the Property to the County as soon as the same are returned from the Snohomish County Auditor. 5.5 Provide an identifying sign, the size and design of which shall be approved by the Snohomish County Department of Parks and Recreation, at the entrance to the Property which shall be in plain sight in perpetuity, listing the County as a participant in the acquisition of the Property through the Snohomish County Conservation Futures Program. 5.6 Fund any improvements that are made to the Property from revenue sources other than Conservation Futures Program Funds and limit any such improvements to those that meet the requirements and intent of RCW 84.34.200 et. seq. and the Conservation Easement. 5.7 Submit to the County a long-term maintenance plan for the Property and any improvements within three (3) months of the completed Property acquisition. 5.8 Pay to the County at the end of each calendar year a pro rata share of any income the City has realized from the Property, less the City's costs of operation and maintenance of the Property. The pro rata share will be equal to the percentage of the cost of acquisition funded by the County pursuant to this Agreement. This information shall be submitted as part of the February 1 annual report to the Snohomish County Department of Parks and Recreation. 5.9 Pay to the County, upon sale of any of the City's interest in the Property, or any portion thereof, a pro rata share of any consideration received, less the costs of improvements funded by the City. The pro rata share will be equal to the percentage of the cost of acquisition funded by the County pursuant to this Agreement. 5.10 Pay on a current basis all taxes or assessments levied on Property - related activities and the Property; PROVIDED, HOWEVER, that nothing contained herein will modify the City's right to contest any such tax, and the Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 3 of 9 City will not be deemed to be in default as long as it is, in good faith, contesting the validity or amount of any such taxes. 5.11 Obtain and maintain, at its own costs and expense, all necessary permits, licenses and approvals related to the purchase, ownership, and on- going maintenance and management of the Property. 6. Payment from the County. The County shall provide financial assistance to the City in the amount of up to $500,000.00 from the Conservation Futures Fund for the acquisition of the Property. Payment shall be made within ten (10) days of County receipt of a City invoice submitted with documentation of imminent purchase of the Property and transfer of title, provided the City has complied with all of the terms of this Agreement. In no event shall the County be obligated to provide any payment to the City in excess of the actual purchase price of the Property. Any obligations of the County beyond the current fiscal year are subject to appropriation of funds for the specific purpose of funding this Agreement in accordance with its Charter and applicable law. 7. Compliance with Laws. The parties shall comply with all applicable federal, state and local laws, rules and regulations in performing this Agreement, including, but not limited to, laws against discrimination. 8. Records Inspections and Audits. The City will keep such full and detailed accounts as may be necessary for proper financial management under this Agreement. The County may, at its sole discretion, from time to time whether before or after acquisition of the Property or termination of this Agreement inspect all books and records and other materials related to any matters covered by this Agreement and not otherwise privileged, belonging to the City or any contractor or to elect to have an audit conducted to verify acquisition -related costs through the date of the acquisition, income from the Property, maintenance and operation costs, and the cost of post - acquisition improvements. Such books, records and other materials shall be made available for County inspection during regular business hours within a reasonable time of the request. If the County elects to conduct such an audit, it will give notice to the City, and such audit will be conducted as soon as is reasonably feasible thereafter, but County payments to the City (if any) will not be delayed pending the outcome of the audit. Such audit will be conducted by an auditor selected by the County, and the County will, except as provided herein, pay the cost of such audit. The City agrees to cooperate with the auditor and to make available for examination at its principal office all of its books, records, correspondence and other documents deemed necessary to conduct the audit by the auditor. If the audit reveals a variation equal to five percent (5%) or more of the cost of acquiring the Property, then the City will pay the cost of the audit, not to exceed Ten Thousand and 00/100 Dollars ($10,000.00). Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 4 of 9 The City will preserve all records for a period of seven (7) years; PROVIDED, HOWEVER, that if the City proposes to dispose of any documents materially related to the Property for a period less than seven (7) years, then the City will deliver the same to the County for disposition by the County. The County may at all times enter the Property to determine the City's compliance with the terms and conditions of this Agreement or to post notices. Any person or persons who may have an interest in the purposes of the County's visit may accompany the County. The City acknowledges and agrees that its obligations under this Section 8will survive termination of this Agreement. 9. Risk of Loss. All of the City's personal property of any kind or description whatsoever, or that of its employees, agents, contractors, and/or invitees placed on the Property shall be at the City's sole risk, and the County will not be liable for any damage done to, or loss of, such personal property. 10. Public Records Act. This Agreement and all public records associated with this Agreement shall be available from the County for inspection and copying by the public where required by the Public Records Act, Chapter 42.56 RCW (the "Act"). To the extent that public records then in the custody of the City are needed for the County to respond to a request under the Act, as determined by the County, the City agrees to make them promptly available to the County. If the City considers any portion of any record provided to the County under this Agreement, whether in electronic or hard copy form, to be protected from disclosure under law, the City shall clearly identify any specific information that it claims to be confidential or proprietary. If the County receives a request under the Act to inspect or copy the information so identified by the City and the County determines that release of the information is required by the Act or otherwise appropriate, the County's sole obligations shall be to notify the City (a) of the request and (b) of the date that such information will be released to the requester unless the City obtains a court order to enjoin that disclosure pursuant to RCW 42.56.540. If the City fails to timely obtain a court order enjoining disclosure, the County will release the requested information on the date specified. The County has, and by this section assumes, no obligation on behalf of the City to claim any exemption from disclosure under the Act. The County shall not be liable to the City for releasing records not clearly identified by the City as confidential or proprietary. The County shall not be liable to the City for any records that the County releases in compliance with this Section or in compliance with an order of a court of competent jurisdiction. 11. Hold Harmless and Indemnification. The City shall assume the risk of, be liable for, and pay all damage, loss, costs and expense of any party arising out of the Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 5 of 9 activities under this Agreement and all use of any improvements it may place on the Property. The City shall hold harmless, indemnify and defend the County, its officers, elected and appointed officials, employees and agents from and against all claims, losses, lawsuits, actions, counsel fees, litigation costs, expenses, damages, judgments, or decrees by reason of damage to any property or business and/or any death, injury or disability to or of any person or party, including but not limited to any employee, arising out of or suffered, directly or indirectly, by reason of or in connection with the acquisition or use of the Properties and this Agreement; PROVIDED, that the above indemnification does not apply to those damages caused by the sole negligence or willful misconduct of the County, its elected and appointed officials, officers, employees or agents. 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, policies, 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, policy, 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 reasonable attorney's fees. 12. Dispute Resolution. The Parties agree to use their best efforts to resolve disputes and other matters arising out of this Agreement or the ongoing administration of this Agreement. If a dispute arises, then (i) within ten (10) business days of a written request by either Party, the City's designated representative and County's designated representative shall meet and resolve the issue; if these parties cannot resolve the issue within ten (10) business days of the meeting, then (ii) the issue shall be submitted to the City's Mayor and to the Director of the Snohomish County Department of Parks and Recreation; if these parties cannot resolve the issue within fifteen (15) business days of submission to them, then (iii) the issue shall be submitted for mediation; if mediation does not successfully resolve the dispute, then (iv) either Party may file suit in a court of competent jurisdiction. The prevailing party in any legal action shall be entitled to a reasonable attorneys' fee and court costs. 13. Notice. All notices required to be given by any party to the other party under this Agreement shall be in writing and shall be delivered either in person, by United States mail, or by electronic mail (email) to the applicable Administrator or Administrator's designee. Notice delivered in person shall be deemed given when accepted by the recipient. Notice by United States mail shall be deemed given as of the date the same is deposited in the United States mail, postage prepaid, and addressed to the Administrator or Administrator's designee at the addresses set forth in Section 1.4 above. Notice delivered by email shall be deemed given as of the date and time received by the recipient. Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 6 of 9 14. Miscellaneous. 14.1. Entire Agreement; Amendments. This Agreement shall constitute the full and complete Agreement of the parties regarding the subject matter hereof, and supersedes any and all prior oral or written agreements between the parties regarding the subject matter contained herein. This Agreement may be amended only by written agreement of the parties, executed in the same manner as provided by the Interlocal Cooperation Act, Chapter 39.34 RCW, governing the execution of this Agreement. 14.2. Interpretation. This Agreement and each of the terms and provisions of it are deemed to have been explicitly negotiated by the parties, and the language in all parts of this Agreement shall, in all cases, be construed according to its fair meaning and not strictly for or against either of the parties hereto. The captions and headings in this Agreement are used only for convenience and are not intended to affect the interpretation of the provisions of this Agreement. This Agreement shall be construed so that wherever applicable the use of the singular number shall include the plural number, and vice versa, and the use of any gender shall be applicable to all genders. 14.3. Governing Law and Stipulation of Venue. This Agreement shall be governed by the laws of the State of Washington and the parties stipulate that any lawsuit regarding this Agreement must be brought in Snohomish County, Washington. In the event that a lawsuit is instituted to enforce any provision of this Agreement, the prevailing party shall be entitled to recover all costs of such a lawsuit, including reasonable attorney's fees. 14.4. Rights and Remedies. The rights and remedies of the Parties to this Agreement are in addition to any other rights and remedies provided by law except as otherwise provided in this Agreement. 14.5. No Third Party Rights. It is understood and agreed that this Agreement is solely for the benefit of the Parties hereto and gives no right to any other party. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under, or by reason of, this Agreement on any persons other than the Parties. 14.6. Binding on Successors. All of the terms, provisions and conditions of this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors, permitted assigns and legal representatives. 14.7. No Waiver. Payment by the County under this Agreement shall not constitute a waiver by the County of any claims it may have against the City for any breach of this Agreement or for failure of City to perform the work or actions, as specified in this Agreement. Forbearance of the rights of the parties under this Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 7 of 9 Agreement will not constitute waiver of entitlement to exercise their respective rights as to any future acts or omissions by the offending party. 14.8. No Employee Relationship. In performing work and services pursuant to this Agreement, the City, its, employees, consultants, agents, and representatives shall be acting as agents of the City and shall not be deemed or construed to be employees or agents of the County in any manner whatsoever. The City shall not hold itself out as, nor claim to be, an officer or employee of the County and will not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of County. The City shall be solely responsible for any claims for wages or compensation by the City's employees, consultants, agents, and representatives, including sub -consultants, or any agency, and shall defend, indemnify and hold County harmless therefrom. 14.9 Conflicts between Attachments and Text. Should any conflicts exist between any attached exhibit or schedule and the text or main body of this Agreement, the text or main body of this Agreement shall prevail. 14.10 Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall constitute one and the same Agreement. 14.11 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be found invalid or unenforceable, the remainder of this Agreement and the application of that provision to other persons or circumstances shall not be affected thereby, but shall instead continue in full force and effect, to the extent permitted by law. 14.12 No Assignment. This Agreement shall not be assigned, either in whole or in part, by either party without the express written consent of the other party, which may be granted or withheld in such party's sole discretion. Any attempt to assign this Agreement in violation of the preceding sentence shall be null and void and shall constitute a Default under this Agreement. 14.13 Warranty of Authority. Each of the signatories hereto warrants and represents that he or she is competent and authorized to enter into this Agreement on behalf of the party for whom he or she purports to sign this Agreement. 14.14 No Joint Venture. Nothing contained in this Agreement shall be construed as creating any type or manner of partnership, joint venture or other joint enterprise between the parties. 14.15 No Separate Entity Necessary. The parties agree that no separate legal or administrative entities are necessary to carry out this Agreement. Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 8 of 9 14.16 Ownership of Property. Except as expressly provided to the contrary in this Agreement, any real or personal property used or acquired by either party in connection with its performance under this Agreement will remain the sole property of such party, and the other party shall have no interest therein. EXECUTED this SNOHOMISH COUNTY: John Lovick Snohomish County Executive APPROVED AS TO FORM: day of Date Deputy Prosecuting Attorney Date 201 CITY OF EDMONDS: By: David 0. Earling City Mayor Attest: 41Pr- 9 ,City Clerk APPROVED AS TO FORM: l ty Attorney — Date Interlocal Cooperation Agreement between Snohomish County and the City of Edmonds Concerning Acquisition of Property with Conservation Futures Funds Page 9 of 9 EXHIBIT A Legal Description For APN/Parcel ID(s): 27032300400400 SEC 23 TWP 27 RGE 03RT-38 BEG INT S LN GOVT LOT 2 & WLY LN GN RY TH S89*47 OOW 191.16FT TH N51* 39 OOE 28FT TPB TH N48*28 OOW 57.5FT TH N51* 39 OOE 25FT TH S48*28 OOE 57.5FT TH S51*39 OOW 25FT TO TPD Situate in the County of Snohomish, State of Washington Subject to easements and reservations of record. B-1 EXHIBIT B Conservation Easement B-2