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HomeMy WebLinkAboutContract CAG-06-162 MEMORANDUM OF AGREEMENT SPRINGBROOK CREEK WETLAND AND HABITAT MITIGATION BANK This Memorandum of Agreement regarding the establishment, use, operation, and management of the Springbrook Creek Wetland and Habitat Mitigation Bank (hereinafter, the Bank) is made and entered into by and among Washington State Department of Transportation (hereinafter, WSDOT) and the City of Renton(hereinafter, City), hereinafter collectively identified as the Sponsors, the U.S. Army Corps of Engineers (Corps), and the Washington State Department of Ecology(Ecology),with reference to the following: I. PREAMBLE A. Purpose: The purpose of this Memorandum of Agreement (hereinafter, the Agreement) is to specify responsibilities for the establishment, use, operation, and management of the Bank. It consists of this"Basic Agreement" establishing the central obligations assumed and consideration provided by each Party, as well as a Mitigation Banking Instrument (hereinafter, the Instrument) that establishes the site-specific conditions, standards, and procedural requirements applicable to the Bank. The provisions of the Instrument are hereby inco orated into this A reement b reference. The Bank will be used for com ensator iP g Y P Y mitigation for unavoidable adverse impacts to waters of the United States, including wetlands, and to aquatic habitat including habitat for endangered and threatened species, that result from activities authorized by Federal, State, and local authorities, when use of the Bank has been specifically approved by the appropriate regulatory agencies. B. Location and Ownership of Parcel: Whereas, the City owns 129.22 acres of land located near Springbrook Creek in the City of Renton, King County, Washington. C. Proiect Description: Whereas, the Sponsors have expressed an interest to restore and/or enhance 116.86 acres of aquatic and associated habitat, and shall then maintain the Bank in accordance with the provisions of this Agreement. The Bank area will provide mitigation treatment areas that will re-establish, rehabilitate, and enhance wetlands and forested wetlands, and enhance both riparian upland and upland habitat, as detailed in Section 2.6 of the Instrument. D. Bank Oversi�ht Committee. Whereas, the Bank Oversight Committee (BOC) I consists of: 'i 1. Chair: U.S. Army Corps of Engineers, Seattle District (Corps). 2. Chair: Washington Department of Ecology(Ecology). 3. U.S. Environmental Protection Agency, Region X (EPA). 4. U.S. Fish and Wildlife Service. 1 of 13 NOW, THEREFORE, the parties agree to the following: II. AUTHORITIES The establishment, use, operation, and management of the Bank are carried out in accordance with the following authorities: A. Federal: l. Clean Water Act (33 USC §§ 1251 et seq.) 2. Rivers and Harbors Act (33 USC § 403) 3. Fish and Wildlife Coordination Act (16 USC §§ 661 et seq.) 4. Regulatory Programs of the Corps of Engineers, Final Rule(33 CFR Parts 320- 330) 5. Guidelines for Specification of Disposal Sites for Dredged and Fill Material (40 CFR Part 230) 6. Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army concerning the Determination of Mitigation Under the Clean Water Act, Section 404(b)(1) Guidelines (February 6, 1990) 7. Federal Guidance for the Establishment, Use, Operation of Mitigation Banks (60 F.R. 58605 et seq.) 8. Regulatory Guidance Letter No. 02-02, Guidance on Compensatory Mitigation Projects for Aquatic Resource Impacts under the Corps Regulatory Program pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, U.S. Army Corps of Engineers, December 26, 2002 B. State of Washington: 1. Washington State Department of Transportation, Wetland Compensation Bank Program, Memorandum of Agreement, September 15, 1994 2. Washington Water Pollution Control Act, RCW 90.48 et seq. 3. Washington State Alternative Mitigation Policy, developed by Ecology, Washington State Department of Transportation(WSDOT), Washington Department of Fish and Wildlife (WDFW), and the Office of Community Development(OCD), 2000. 4. Washington State's Pilot Rule on Wetland Mitigation Banking (WAC 173- 300, Compensatory Wetland Mitigation Banking). 2of13 III. ESTABLISHMENT OF THE BANK A. Permits. WSDOT will obtain all appropriate environmental documentation, permits or other authorizations needed to establish and maintain the Bank, prior to the release of any mitigation credits. Compliance with this Agreement does not fulfill the requirement, or substitute, for such authorization. Prior to acquiring any mitigation credits pursuant to this Agreement, the WSDOT must obtain appropriate authorization from the Corps and Ecology in accordance with the terms of the Agreement. B. Bank Establishment. The Sponsors jointly agree to establish the Bank as described in Sections 2 and 3 of the Instrument. WSDOT shall be responsible to ensure funding and accomplishment of the collective obligations arising during the establishment phase that extends from the execution of this Agreement until it terminates as described in Article IV.K. of this Agreement. In recognition of successful establishment, credits will be released to the Sponsors ' in accordance with the procedures and schedules referenced in the Instrument, particularly in Section 4.2. In the event the Sponsors determine that modifications to the Instrument are necessary, the Sponsors shall submit a written request for such modification to the BOC, through the Chairs, for approval. Documentation of implemented modifications shall be made consistent with Article VI.B.2 of this Agreement. C. Financial Assurance Requirements: 1. The Sponsors intend to satisfy their obligations under this Agreement by obtaining sufficient funding to carry out all design, development, monitoring, and site management responsibilities. The following financial assurances are provided for the work described in this Agreement. 2. Funding for all responsibilities and obligations arising during the establishment phase of the Bank, including remedial actions as delineated in Article IV.H. of this Agreement,has been included in the budget for the Transportation 2003 (Nickel) Account, "provided solely to implement the activities and project included in the Legislative 2003 Transportation Project List—Current Law report as transmitted to LEAP (the Legislative Evaluation and Accountability Program committee) on April 27, 2003" (Engrossed Substitute House Bill 1163). To the extent, if any,that these funds are insufficient to fully and timely fund WSDOT's obligations as delineated in this Agreement, the WSDOT shall include in its budget request appropriations sufficient to cover the balance of WSDOT's obligations under this Agreement, and will use all reasonable and lawful means to fulfill its obligations hereunder. In the event the legislature of the State of Washington does not provide funds in sufficient amounts to discharge these obligations, the WSDOT shall use its best efforts to procure funding in order to satisfy its obligations under this Instrument from any other source of funds legally available for this purpose. Nothing herein shall constitute, nor be deemed to constitute, an obligation of future appropriations by the legislature. 3of13 3. Long-Term Management Endowment Fund: a. The City shall institute an endowment fund to fund long-term management actions as defined in Article N.M of this Agreement and Section 5. 2 of the Instrument following the termination of the establishment phase of the Bank. Upon termination of the establishment phase, the BOC will authorize the City to apply these funds to the long-term management of the Bank, or will direct that they be disbursed to a Long-Term Steward in the event of the City's relinquishment of responsibility for long- term management of the Bank. b. The Long-Term Management Endowment Fund shall be funded so that the Fund contains a lump sum of$25,000 as of the date the establishment phase is to terminate pursuant to Article IV.K. D. Real Estate Provisions: All real property to be included within the Bank site area, as more completely described in Appendix A to the Conservation Easement, is owned in fee simple by the City and has been pledged for use in the Bank in a manner consistent with this Agreement. The City shall burden the City's fee title to the Bank property through the grant of a conservation easement, pursuant to the provisions of Section 5.1.1 of the Instrument. The inclusion of the aforementioned property in the Bank and the granting of a conservation easement restricting future land uses for the benefit of the Bank shall not convey or establish any property interest on the part of any Party to this Agreement, nor convey or establish any interest in Bank credits. The Agreement does not authorize, nor shall it be construed to permit, the establishment of any lien, encumbrance, or other claim with respect to the property, with the sole exception of the right on the part of the Corps to require the Sponsors to implement elements of this Agreement, including recording the conservation easement, required as a condition of a permit issued under Section 404 of the Clean Water Act for discharges of dredged and fill material into waters of the United States associated with construction and operation and management of the Bank. IV. OPERATION OF THE BANK A. Service Area: The Bank is approved to provide compensatory mitigation for impacts to the Waters of the United States, including wetlands, within a portion of Water Resources Inventory Area 8 and 9 as shown in Figure 1-3 of the Instrument. In exceptional situations,the Bank may be used to compensate for an impact that occurs outside of the Service Area if specifically approved by the regulatory agency(ies) having jurisdiction over that impact and the BOC,pursuant to the procedures and criteria prescribed in Section 1.3 of the Instrument. If the Corps and Ecology determine that the Sponsors have sold or transferred credits at any time to provide compensatory mitigation for loss of aquatic resources outside of the Service Area without prior approval, the Corps and Ecology, in consultation with the other members of the BOC,may direct that the sale or other transfer of credits immediately cease. B. Access to the Bank Site. The Sponsors will allow, or otherwise provide for, access to the site by members of the BOC or their agents or designees, as reasonably necessary for the 4of13 purpose of inspection, compliance monitoring, and remediation consistent with the terms and conditions of this Agreement, throughout the period of Bank establishment and long-term management. Inspecting parties shall provide reasonable prior notice of a scheduled inspection, and shall not unreasonably disrupt or disturb activities on the property. During the establishment phase of the Bank, notice shall be given to WSDOT, and during the long-term management phase of the Bank, notice shall be given to the City. C. Schedule of Credit Availability: Subject to the documentation and scheduling provisions of Section 4.2 of the Instrument, the Sponsors may submit to the BOC written evidence that particular performance standards have been achieved. If the Corps and Ecology, after consulting with the other members of the BOC and the Sponsors, concur that certain performance standards have been achieved in full, it is agreed that the credits associated with those performance standards will become available for marketing or use by the Sponsors. D. Credit Deficit or Fraudulent Transactions: If the Corps andlor Ecology determine at any point that the Bank is operating without prior written approval at a deficit, or has engaged in fraudulent transactions in the sale, transfer, or use of credits, the Corps and/or Ecology will direct the Sponsors to immediately cease release and sale, use, or other transfer of credits, and will determine, in consultation with the BOC and the Sponsars, what actions are necessary to correct the situation and will direct their performance prior to the release of any additional mitigation credits. During the establishment phase, WSDOT will be directed to accomplish any action deemed necessary, and during the long-term management phase the City will be directed to accomplish any action deemed necessary. E. Provisions For Use of the Miti�ation Bank Area: The Sponsors shall not: 1. Grant additional easements, rights of way, or any other property interest in or to the project areas without the written consent of the Corps and Ecology, in consultation with the BOC. 2. Use or authorize the use of any areas within the Bank for any purpose that is contrary to the provisions of this Agreement or the conservation easement, or which interferes with the conservation purposes of the Bank. F. Site Mana�ement Provisions: During the establishment phase WSDOT agrees to perform all necessary work to achieve and maintain the Performance Standards as prescribed in Section 3.3 of the Instrument. G. Monitorin�Provisions: WSDOT agrees to perform all necessary work,pursuant to Section 4.5 of the Instrument, during the establishment phase to monitor the Bank to demonstrate compliance with the Performance Standards established in Section 3.3 of the Instrument. The City shall perform all monitoring necessary for the long-term management phase of the Bank, pursuant to Section 5.2 of the Instrument. H. Remedial Actions: During the establishment phase, in the event the Bank fails to achieve by the specified date one or more of the performance standards delineated in Section 3.3 of the Instrument, WSDOT shall develop and implement appropriate remedial and monitoring Sof13 actions for the Bank as specified in Section 3.4 of the Instrument, to attain those project objectives and performance standards. Prior to their execution, proposals for the remediation and monitoring activities must be approved by the Corps and Ecology, in consultation with the Sponsors and the BOC. In the event WSDOT fails to implement necessary remedial actions within the prescribed period, the Corps andlor Ecology, following consultation with the Sponsors and the BOC, will direct remedial, corrective, and/or sanctioning action in accordance with the procedures specified in Section 3.4 of the Instrument. I. Force Maieure: In the event of substantial damage caused by a natural or human- caused catastrophic event or a deliberate and unlawful act, that the Corps and Ecology, in consultation with the Sponsors and the BOC, determine has had a significant adverse impact on the quality of the aquatic functions, native vegetation, soils or wildlife of the Bank and is beyond the control of the Sponsors, their agents, contractors, or consultants to prevent or mitigate: the Sponsors may request, pursuant to Article III.B. of this Agreement, and the Corps and Ecology, in consultation with the BOC,may approve changes to the construction, operation, project objectives, performance standards, or crediting formula of the Bank, pursuant to the standards and procedures specified in Section 3.4 of the Instrument. A natural catastrophic event includes,but is not limited to, a flood equal to or greater in magnitude than the 100-year flood event, an earthquake of a force projected from an earthquake with a return period of 475 years, drought that is significantly longer than the periodic multi-year drought cycles that are typical of weather patterns in the Pacific Northwest, as well as debilitating disease, wildfire, depredation, regional pest infestation, ar fluvioigeomorphic change. A human-caused catastrophic event includes,but is not limited to,war, insurrection, riot or other civil disorders, spill of a hazardous or toxic substance, or fire. A deliberate and unlawful act includes,but is not limited to, the dumping of a hazardous or toxic substance, as well as significant acts of vandalism or arson. If any such act occurs the BOC , in consultation with the Sponsors, will determine what changes to the Bank and/or this Agreement or the Instrument will be in the best interest of the Bank and the aquatic environment. The consequences of any events of force majeure recogmzed as such by the Corps and Ecology shall not affect the status of previously released credits, whether or not they have yet been sold, used or transferred. J. Default: Should the Corps and/or Ecology, in consultation with the BOC, determine that (1)the Sponsors are in material default of any provision of this Agreement, (2) the failure to comply adversely affects the ability of the Bank to achieve its goals and obj ectives, and(3) the Sponsors have not made a reasonable effort to bring the Bank into compliance with this Agreement, the Corps and/or Ecology may notify the Sponsors that the debiting, sale,use, and/or transfer of mitigation credits are suspended until the delineated deficiencies are rectified. Upon written notification of suspension, regardless of the phase of the Bank implementation, each Sponsor agrees to immediately cease any use, debiting, sale, or transfer transactions not yet finally completed, until informed by the Corps and/or Ecology that use, debiting, sale, or transfer of credits may be resumed. Regardless of the phase of Bank implementation, should either Sponsor remain in default for a period of 90 days, the Corps and/or Ecology, following consultation with the BOC, may terminate this Agreement, the Instrument, and any subsequent banking operations. In the event such termination action is commenced, the Sponsors agree to fulfill their pre-existing obligations to perform all establishment, monitoring,maintenance, 6of13 management, and remediation responsibilities relating to credits that were released, sold, used, or transferred prior to termination. K. Termination of the Establishment Phase of the Bank: Prior to termination of the establishment phase of the Bank, the BOC will perform a final compliance inspection to evaluate whether all performance standards have been achieved. Upon the Corps and Ecology determining, in consultation with the other members of the BOC and the Sponsors, that the following terms have been met, the establishment phase of the Bank will terminate and the period of Long-Term Management will commence: 1. all applicable performance standards prescribed in the Instrument have been achieved; 2. all available credits have been released or the Sponsors have permanently ceased banking activities; 3. the City has prepared a Long-Term Management Plan that reflects the Long- Term Management Requirements identified in Section 5.2 of the Instrument, that has ' been approved by the Corps and Ecology; 4. the City has either: (i) assumed responsibilities for accomplishing the Long- Term Management Plan, in which case the City will fulfill the role of Long-Term Steward, or(ii)has assigned those responsibilities to another Long-Term Steward pursuant to Article N.M of this Agreement; 5. the Long-Term Management Endowment Fund has been fully funded; 6. the contents of the Long-Term Management Endowment Fund have been transferred to the Long-Term Steward; and 7. the Bank has complied with the terms of this Agreement. L. Termination of the Onerational Life of the Bank: Following the termination of the establishment phase of the Bank, and upon(1) sale, use, or transfer of all credits, or(2)upon acceptance by the BOC of a written declaration by the Sponsors that they have permanently ceased banking activities, the operational life of the Bank will terminate. M. LonQ-Term Mana�ement: The City shall develop a Long-Term Management Plan reflecting the guidelines and objectives specified in Section 5.2 of the Instrument, and submit the Plan for approval of the Corps and Ecology, in consultation with the other members of the BOC and following consultation with the WSDOT. The City is responsible for execution of the approved Long-Term Management Plan. The City may only deviate from the approved Plan upon written approval of the Corps and Ecology, following consultation with the WSDOT and the BOC. The City may assign its long-term management responsibilities to a third party assignee, which will then serve as Long-Term Steward in place of the City. The identity of the assignee and the terms of the long-term management agreement between the City and the assignee must be approved by the Corps and Ecology, following consultation with the BOC and the WSDOT, in advance of assignment. Upon execution of a long-term management assignment agreement and the transfer of the contents of the Endowment Fund, and upon satisfaction of the 7of13 remaining requirements for termination of the establishment phase of the Bank under Article IV.K. of this Agreement, the Sponsors shall be relieved of all further long-term management responsibilities under this Agreement. N. Transfer of Ownership of the Bank Site: The Sponsors shall remain responsible for complying with the provisions of this Agreement throughout the operational life of the Bank regardless of the ownership status of the underlying real property, unless those responsibilities have been assigned pursuant to the provisions of Article VI.C. of this Agreement. The City may transfer ownership of all or a portion of the Bank to another party provided the Corps and Ecology, following consultation with the other members of the BOC and the WSDOT, expressly approve the transfer in writing. V. RESPONSIBILITIES OF THE CORPS AND ECOLOGY A. The Corps and Ecology agree to provide appropriate oversight in carrying out provisions of this Agreement. B. The Corps and Ecology agree to review and provide comments on project plans, monitoring reports, and remediation proposals, and similar submittals from the Sponsors in a timely manner. As Chairs, the Corps and Ecology will coordinate their review with the other members of the BOC. C. The Corps and Ecology agree to review requests to modify the terms of this Agreement, transfer title or interest in the Bank, determine achievement of performance standards in order to evaluate the release of credits for each phase of the Bank, and approve the Long-Term Management Plan. As Chairs, the Corps and Ecology will coordinate review with the members of the BOC so that a decision is rendered or comments detailing deficiencies are provided in a timely manner. The Corps and Ecology agree to not unreasonably withhold or delay decisions on such requests. D. The Corps and Ecology agree to act in good faith when rendering decisions about acceptability of financial assurances, requiring remedial actions, requiring long-term management actions, and releasing credits. Corps and Ecology approval of the identity of any assignee responsible for executing the Long-Term Management Plan, and approval of the terms of any Long-Term Management assignment agreement, will not be unreasonably withheld. E. The Corps and Ecology will periodically inspect the Bank site as necessary to evaluate, in consultation with the other members of the BOC, the achievement of performance standards, to assess the results of any remedial actions taken, to monitor implementation of the Long-Term Management Plan, and, in general, to verify the Sponsors' compliance with the provisions of this Agreement. F. Upon satisfaction of the requirements of Article IV.K. of this Agreement, the Corps and Ecology will certify, following consultation with the Sponsors and the BOC, that the establishment phase of the Bank has terminated, and that the period of long-term management has commenced. Upon satisfaction of the requirements of Article IV.L. of this Agreement, the 8of13 Corps and Ecology, following consultation with the other members of the BOC, will jointly issue a letter certifying that the operational life of the Bank has terminated. VI. GENERAL PROVISIONS A. Decision Makin�bv Consensus: The Corps and Ecology will strive to achieve consensus regarding issues that arise pertaining to the establishment, operation, maintenance, and management of the Bank. As Chairs, the Corps and Ecology will coordinate the review and oversight activities of the BOC so as to best facilitate opportunity to reach the desired consensus. Review and oversight decisions will take into account the views of the Sponsors to the maximum extent practicable. Where consensus cannot otherwise be reached within a reasonable timeframe, following full consideration of the comments of the members of the BOC and following consultation with the Sponsors, the Corps holds the responsibility and authority under Section 404 of the Clean Water Act, and Ecology holds independent responsibility and authority under Section 401 of the Clean Water Act and RCW ch. 90.48, to make final decisions regarding the application of the terms of this Agreement. B. Entrv into Effect, Modification or Amendment, and Tertnination of this A�reement: 1. This Agreement will enter into effect on the date of signature by the authorized representative of each of the Corps, Ecology, WSDOT, and the City, as of the date of the last of these four signatures. 2. This `Basic A eement" ortion of this Memorandum of A reement ma be �' P g Y amended or modified only with the written approval of each of the Sponsors, the Program Manager for Shorelands and Environmental Assistance on behalf of Ecology, and the Seattle District Engineer on behalf of the Corps, or their designees. Any such modifications or amendments will take effect following consultation with the other members of the BOC. Amendment of the provisions of the Instrument may be effectuated through an exchange of letters signed by each of the Sponsors, the Mitigation Banking Specialist serving as Co-Chair on behalf of the Corps, and the Mitigation Banking Specialist serving as Co-Chair on behalf of Ecology, following consultation with the other members of the BOC, provided the exchange of letters expresses mutual agreement as to the exact language to be deleted or modified, and the exact language to be inserted. 3. This Agreement may be terminated by the mutual agreement of the Sponsors, Corps, and Ecology, following consultation with the BOC, or under the terms of Article IV.J. of this Agreement in the case of default by the Sponsors. In the event any such termination action is commenced, each of the Sponsors agrees to fulfill its pre-existing obligations to perform all establishment, monitoring, maintenance, management, and remediation responsibilities relating to credits that were debited, sold, used, or transferred prior to termination. , 4. Upon termination of the operational life of the Bank pursuant to Article IV.L., �',I and certification to that effect pursuant to Article V.F., this Agreement shall terminate � 9 of 13 without further action by any Party. Thereafter, the Long-Term Management Plan developed, approved, and instituted in accordance with Article IV.M. shall govern the continuing obligations of the City, or its assignee as applicable. C. Assi�nment of Obli�ations under this Instrument: Either Sponsor may be permitted to assign its obligations, responsibilities, and entitlements under this Agreement to a third party. The Corps and Ecology, following consultation with the BOC and the other Sponsor, must approve the identity of the assignee in order for any assignment to effectively relieve a Sponsor of those obligations. In evaluating a prospective assignee, the Corps and Ecology may consider characteristics such as environmental mitigation expertise, wetlands mitigation project or analogous experience, and financial strength and stability. Approval of the identity of the assignee will not be unreasonably withheld. The assignee must execute a mitigation banking agreement with the Corps and Ecology under terms identical, to the extent practicable, to the present Agreement. Any applicable financial assurances established pursuant to Articles III.C.3. of this Agreement must be initiated, as well as any additional financial assurances deemed necessary in light of the status of the assignee. The obligations,responsibilities, and entitlements under this Agreement may not be severed or transferred piecemeal. However, the physical ownership of the Bank site real property and the obligations, responsibilities, and entitlements under this Agreement are separate and distinct; thus, ownership may be transferred independently of assignment of this Agreement. Once assignment has been properly accomplished, the applicable Sponsor will be relieved of all its obligations and responsibilities under this Instrument. Specific additional provisions pertaining to the assignment of Long-Term Management obligations are described at Article IV.M. D. Specific Lan�ua�e of this A�reement Shall Be Controlling: To the extent that specific provisions of this "Basic Agreement" are inconsistent with any terms and conditions contained in the Instrument, or inconsistent with other documents that are incorporated into this Agreement by reference and that are not legally binding, the specific language within this Basic Agreement shall be controlling. E. Notice: Any notice required or permitted hereunder shall be deemed to have been given either(i)when delivered by hand, or(ii) three (3)days following the date deposited in the United States mail,postage prepaid,by registered or certified mail, return receipt requested, or (iii) sent by Federal Express or similar next day nationwide delivery system, addressed as follows (or addressed in such other manner as the party being notified shall have requested by written notice to the other party): Washington State Department of Transportation Mitigation Banking Specialist Environmental Services Office Biology Branch P.O. Box 47331 � Olympia, WA 98504-7331 360-705-7406 10 of 13 I U.S. Army Corps of Engineers, Seattle District Mitigation Banking Specialist/Co-chair of the BOC Regulatory Branch Seattle District, Corps of Engineers 4735 E. Marginal Way South P.O. Box 3755 Seattle, WA 98124-3755 206-764-3495 Washington State Department of Ecology Mitigation Banking Specialist/Co-chair of the BOC Shorelands and Environmental Assistance Program PO Box 47600 300 Desmond Drive Olympia, WA 98504-7600 360-407-7045 City of Renton Office of the Mayor 1055 S. Grady Way Renton, WA 98055 425-430-6500 ' F. Entire A�reement: This Agreement, incorporating the provisions of the Instrument as indicated, constitutes the entire agreement between the Parties concerning the subject matter , hereof. G. Invalid Provisions: In the event any one or more of the provisions contained in this Agreement are held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. I H. Effect of AQreement: This Agreement does not in any manner affect statutory authorities and responsibilities of the signatory Parties. This Agreement is not intended,nor may it be relied upon,to create any rights in third parties enforceable in litigation with the United States or the State of Washington. This Agreement does not authorize, nor shall it be construed to permit, the establishment of any lien, encumbrance, or other claim with respect to the property, with the sole exception of the right on the part of the Corps and Ecology to require the Sponsors to implement the provisions of this Agreement, including recording the conservation easement, required as a condition of the issuance of permits for discharges of dredged and fill material into waters of the United States associated with construction and operation and management of the Bank. 11 of 13 I. Attornevs' Fees: If any action at law or equity, including any action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each party to the litigation shall bear its own attorneys' fees and costs of litigation. J. Availabilitv of Funds: Implementation of this Agreement is subject to the requirements of the Anti-Deficiency Act, 32 U.S.C. § 1341, and the availability of appropriated funds. Nothing in this Agreement may be construed to require the obligation, appropriation, or expenditure of any money from the United States Treasury, in advance of an appropriation for that purpose. K. Headin�s and Captions: Any paragraph heading or caption contained in this Agreement shall be for convenience of reference only and shall not affect the construction or interpretation of any provision of this Agreement. L. Counterparts: This Agreement may be executed by the Parties in any combination, in one or more counterparts, all of which together shall constitute one and the same instrument. M. Bindin�: This Agreement shall be immediately, automatically, and irrevocably binding upon each of WSDOT and the City, and their heirs, successors, assigns and legal representatives, upon execution by the Sponsars, Ecology, and the Corps. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date herein below last written. SPONSORS 2��,t,� � � ' Megan rte, P.E. Date Directo�nvironmental Services Washington State Department of Transportation �r�� S//�/o 6 � Kathy K�olker Date ' Mayor City of Renton Attest: � WGZ(� Bonnie I. Walton, City Clerk 12 of 13 �I � �I � BANK OVERSIGHT COMMITTEE By the BOC Chairs: ' �R �Z�'0` Michael McCormick Date Colonel, Corps of Engineers District Engineer i��� �"—��C c`�lz�/�c� Gordon White Date Program Manager far Shorelands and Environmental Assistance Program Washington State Department of Ecology 13 of 13