THIRD OPERATING AGREEMENT BETWEEN THE CITY OF TACOMA AND FOSS WATERWAY DEVELOPMENT AUTHORITY

Transcription

1 THIRD OPERATING AGREEMENT BETWEEN THE CITY OF TACOMA AND FOSS WATERWAY DEVELOPMENT AUTHORITY

2 TABLE OF CONTENTS Page 1. RECITALS TERM OF OPERATING AGREEMENT; SUCCESSOR AGREEMENT GENERAL PRINCIPLES AND OBJECTIVES Commitment to Joint Plan Site Cleanup Action Plan Property Subject to Joint Plan FWDA Role Communications City and FWDA Representative Conveyances from the City and the FWDA Charter Purposes DEVELOPMENT DECISIONS General Competitive Selection Process Development Agreements Council Action City Indemnification Exceptions Compliance with Applicable Law PROPERTY MANAGEMENT General Services To Be Provided Special Services for Other City Property Association Fees City Indemnification City Insurance Mutual Services City Property SHORT TERM LEASES AND LICENSES General Permits for Construction/Clean Up Activities Lease Rates Deposit of Lease Revenues FWDA ACQUIRED PROPERTY General Limitations on Acquisition MARINA AREAS Ownership of Marina Areas Redevelopment of Marina Areas Access from Uplands Moorage Agreements Marina Facilities i- 11/16/10

3 9. FINANCIAL RELATIONSHIP General Operating Budget Capital Budget Administration of Agency Fund Deposits to Agency Fund Disbursement from Agency Fund Investment of Agency Fund Grants FWDA Annual Reports City Reports Maintenance of Records Periodic Audits Staff Support ENVIRONMENTAL RESPONSIBILITY General Cost Obligation Developer Obligations Ecology Notice Amendment of the Consent Decree/Restrictive Covenants Dock Street Environmental Remediation (Portion of Site #8 at approximately 1131 and 1123 Dock St Dock Street (Pacific Seafood Property) (Site #6) Consent Decree Termination Assignment of City Indemnification Agreements INDEMNITIES AND INSURANCE Indemnification by FWDA Indemnification by the City Insurance Limitation of Liability Funds for Political Activity COMPLIANCE WITH LAWS Certification Regarding Lobbying Interest of Members, Officers, or Employees of Grantee Members of Local Governing Body or Other Public Officials Nondiscrimination Legal Base Compliance with Air and Water Acts Conflict of Interest DEFAULT AND TERMINATION Events of Default by FWDA Cure Period; Termination for FWDA Default Effect of Termination of FWDA Events of Default by City ii- 11/16/10

4 14. MISCELLANEOUS Severability Integration and Amendment Governing Law Limitation on Third Party Rights Construction Counterparts Force Majeure DEFINITIONS iii- 11/16/10

5 THIRD OPERATING AGREEMENT BETWEEN THE CITY OF TACOMA AND FOSS WATERWAY DEVELOPMENT AUTHORITY THIS THIRD OPERATING AGREEMENT (this Agreement ) is made and entered into as of the day of, 2010, by and between THE CITY OF TACOMA (the City ), a Washington municipal corporation and first-class charter city, and the FOSS WATERWAY DEVELOPMENT AUTHORITY (the FWDA ), a Washington public corporation chartered by the City, (collectively the Parties ). In consideration of the mutual promises, benefits and covenants contained herein, the Parties agree to the terms and conditions of this Agreement. 1. RECITALS A. The Waterway is an important historical and public resource of the City. B. Because the Waterway has suffered environmental contamination and fallen into disuse, the City has taken steps to eliminate this contamination and blight, provide public access to and enjoyment of the Waterway, and redevelop the Waterway for private and public uses that will contribute to the economic, cultural, and recreational revitalization of and further enhancement of the Waterway. C. One of these steps was to create the FWDA. On July 16, 1996, the City adopted Resolution No , approving the Charter (the Charter ) and Bylaws of the FWDA, a public corporation formed by the City primarily to assist in redeveloping certain real property in and along the Waterway, by acquiring, managing, and disposing of real property, securing financing, undertaking or providing for redevelopment, and entering into agreements with developers proposing to develop projects along the Waterway. D. In chartering the FWDA, the City envisioned and expected that the FWDA would attract experienced business and civic leaders to volunteer to serve on its board and bring to the work of the FWDA their expertise and experience. Under such volunteer governance and professional management, the FWDA was expected to bring focus and a business-like approach to the redevelopment of the Waterway Properties. E. In 1997, the City and the FWDA executed the First Operating Agreement. F. On January 4, 2000, the City and the FWDA executed the Second Operating Agreement. The Second Operating Agreement was to have expired December 31, 2002 but was extended by letter agreement. The activities of the FWDA under the Second Operating Agreement, as extended, have been ratified and approved by the City in its ordinance approving this Agreement.

6 G. Since its formation and consistent with its responsibilities under both the First and the Second Operating Agreements, the FWDA has built a commendable record of success in stimulating and facilitating redevelopment along the Waterway. Its more notable accomplishments include: Private development of 225 apartments, including the restoration of the historic Albers Mill, and 208 residential condominiums; Private development also included more than 40,000 square feet of commercial/retail space; Construction of 264 public marina slips and 1,800 feet of public temporary moorage; and more than 450 slips in two private marinas; Provision of or enhancement to substantial public amenities including additional public esplanade; dedicated and improved view corridors; one developed public park and acquisition of additional property reserved for eventual park use; Preservation of the historic Balfour Dock wharf building and adaptive re-use by Foss Seaport Museum; Helped establish and sustain numerous water-oriented public events including Tall Ships; Schooner Rendezvous; Asian Dragon Boat Festival; Marine Fest and more, enriching our community as well as stimulating tourism; and Established and still managing property-owner funded maintenance of public esplanade. H. The City (1) desires to transfer additional real property to the FWDA for redevelopment purposes, (2) desires that the FWDA manage certain real property on or about the Waterway owned by the City, and (3) agrees, as set forth herein, to provide financial support to the FWDA to accomplish the objectives of the Charter. I. The City and the FWDA recognize that, during the term of this Agreement, the FWDA may facilitate redevelopment of the properties in and along the west side of the Waterway originally prioritized for redevelopment under the Foss Plan, in its Charter and under prior Operating Agreements as well as certain properties along the east side of the Waterway. Functions that may be continued or assigned to the FWDA going forward include, but are not limited to, management of certain Waterway Properties and Marina Areas that remain in public ownership, operation and maintenance of certain facilities, and provision of services and activities all in a manner that will enable the FWDA to operate on a self-sustaining basis /16/10

7 J. To ensure that the FWDA facilitates redevelopment in a manner consistent with the Foss Plan, that the FWDA manages City property in accordance with agreed standards, and that the Parties continue to work together efficiently, effectively and in close communication, the Parties desire to set forth objectives, standards and decision-making processes for accomplishing these joint goals. K. The FWDA and the City are parties to a Consent Decree with the Department of Ecology ( Ecology ), dated October 19, 1994, which was comprehensively amended April 30, 2002, and re-titled Consent Decree First Comprehensive Amendment and entered in Pierce County Superior Court under Cause No ( Consent Decree ). The Consent Decree has also been amended multiple times since 1994, to add parties who acquire individual parcels subject to the Consent Decree, and to add Site Specific Cleanup Plans which direct cleanup on specific properties subject to the Consent Decree. The properties subject to the Consent Decree are described in Amended Exhibits A and B of the Consent Decree. L. The definitions for many capitalized terms used in this Agreement are found in Section 15. M. This Agreement supersedes and replaces the Second Operating Agreement, which by the execution hereof is formally terminated. 2. TERM OF OPERATING AGREEMENT; SUCCESSOR AGREEMENT 2.1 The effective date and term of this Agreement shall be upon approval of the City council and the term shall extend for a period of four (4) years. Thereafter, this Agreement shall be automatically extended for a period of two (2) years, for a maximum possible term of six (6) years unless the City gives notice to the FWDA at least one hundred eighty (180) days prior to the expiration of the initial four (4) year period of its intention to terminate this Agreement. In the event the City gives such a termination notice, the Parties will either renegotiate the terms of this Agreement or develop and commence a transition process, concluding in the orderly dissolution of the FWDA on a date determined by the Parties consistent with requirements of TMC GENERAL PRINCIPLES AND OBJECTIVES The Parties agree to the following general principles and objectives, which shall guide and inform activities to be taken hereunder. 3.1 Commitment to Joint Plan. The Parties have previously undertaken a planning process to govern the redevelopment of the Development Uplands and other property on or about the Waterway. As a result of such joint planning process, the Parties previously approved the Foss Plan. With respect to the Waterway Properties and other real property on or about the Waterway, the Parties desire to continue to implement the Foss Plan in effect as of the date of -3-11/16/10

8 this Agreement or as it may be subsequently updated. In addition thereto, the FWDA developed and submitted to the City a Master Redevelopment Strategy in February 1999 to govern the FWDA s redevelopment activities. FWDA agrees that as part of its obligations under this Agreement, it will revise and update the Master Redevelopment Strategy by the later of November 30, 2011, or one (1) year after the date of this Agreement, unless the parties agree to an extension in writing. FWDA shall develop the updated Master Redevelopment Strategy in consultation with the City, specifically including the City Council, and the finalized version shall be subject to the approval of the City Council. The updated Master Redevelopment Strategy shall include, without limitation, preferred uses and environmental remediation plans for possible redevelopment sites. The Master Redevelopment Strategy shall identify a range of preferred uses within each of four districts along the Waterway: (1) Head of the Foss/South Waterway district (South of 21 st Street); (2) the Family Campus/Museum district (between 21 st and 15 th Streets); (3) the Central Waterfront (between 15 th and 11 th streets); and (4) the Historic Waterfront (north of the 11 th Street Bridge). Consistent with the range of preferred uses identified for each Waterway district, the Master Redevelopment Strategy also will articulate more specific development objectives for each property available for development. The objectives are intended to inform the FWDA s Request for Qualifications and Proposals processes. Given the nature of its work and the scope of its responsibilities, the FWDA primarily relies upon non recurring revenues derived from its redevelopment activities to support its activities and to provide funding for development-related infrastructure and other capital projects. Self-sufficiency is possible as long as development is taking place and additional funding for infrastructure and capital projects can be generated from other sources. However, with the foreseeable completion of remaining available redevelopment projects, the Master Redevelopment Strategy shall include a detailed financial plan for meeting FWDA operational requirements through the conclusion of this Agreement and beyond. Such plan shall inform the decision of the Parties with respect to the future role of the FWDA. 3.2 Site Cleanup Action Plan. Pursuant to Section VI, paragraph 6.2 of the First Operating Agreement, and Section V, paragraphs (a) and (c) of the Second Operating Agreement, the City incurred costs to conduct remedial investigations and prepare Site-Specific Cleanup Action Plans ( SCAPs ) on the majority of the properties subject to the Consent Decree. Unless otherwise agreed, the City shall ensure that SCAPs, as described in WAC , are conducted for all of the properties covered by Section 2, paragraph A of the Consent Decree, as part of the Master Redevelopment Strategy along the Waterway. The SCAPs shall be completed prior to the issuance of a Request for Qualifications or otherwise commencing the redevelopment of City Development Uplands Property or FWDA Development Uplands Property under Section 4, the FWDA. The City shall incur the costs for conducting the SCAPs. 3.3 Property Subject to Joint Plan. The Parties recognize that the Waterway Properties and other property located on or about the Waterway are currently held in different ownerships, are subject to different restraints on disposition by sale or occupancy by long term lease, and are suited to different uses or disposition consistent with the Foss Plan. Exhibit A attached hereto is a map of the current Property owned by the Parties on or about the Waterway (the Map ). Exhibit B (Property Schedule) attached hereto (the Property Schedule ) identifies in detail Property owned by the Parties on or about the Waterway that are subject to this -4-11/16/10

9 Agreement, as well as certain marina improvements, and notes the current ownership and restrictions for each parcel included in the Property Schedule. These categories of properties include: City Property. The City currently owns certain of the Property, as more particularly detailed on the Property Schedule (collectively the City Property ) FWDA Property. The FWDA currently owns certain of the Property, as more particularly detailed on the Property Schedule (collectively the FWDA Property ). To further its chartered purposes, the FWDA may acquire an interest in other real property currently owned by third parties, as further provided herein, and such real property shall become part of the FWDA Property upon its acquisition. In addition, the City contemplates transferring certain of its real property to the FWDA (as shown on the Property Schedule) and it likewise shall become part of the FWDA Property upon such transfer. Only Development Uplands Property transferred to the FWDA by the City, or managed by the FWDA on the City s behalf, shall be considered FWDA Property for purposes of this Agreement Marina Areas. The City and the FWDA each own portions of the Shoreline Area and certain marina improvements, as detailed on the Property Schedule and as identified on the map attached hereto as Exhibit B. The Aquatic Land Area is leased by the State Department of Natural Resources to the City and the FWDA as co-tenants pursuant to the DNR Master Harbor Lease. 3.4 FWDA Role. As a general rule, the FWDA s role with respect to a particular site will depend on the ownership, constraints upon and use of the site. The FWDA s roles for particular types of properties are described below City Property To Be Redeveloped. The FWDA shall serve as the City s agent with respect to the negotiation and management of City Development Uplands Property that is intended to be leased pursuant to a Long Term Lease or sold to developers proposing to develop public facilities or commercial, residential, hotel, mixed-use or other projects. As provided herein, preferred uses for available properties shall be identified by district along the Waterfront in the Master Redevelopment Strategy and proposals shall be solicited for uses for any specific property that are consistent with the Master Redevelopment Strategy, except as otherwise provided herein. Developers of City Development Uplands Property shall be selected in accordance with Section FWDA Property To Be Redeveloped. The FWDA shall facilitate, by negotiation and management, the redevelopment of FWDA Development -5-11/16/10

10 Uplands Property to be transferred by sale or Long Term Lease to developers proposing to develop public facilities or commercial, residential, hotel, mixed-use or other approved projects. As provided herein, preferred uses for available properties shall be identified by district along the Waterfront in the Master Redevelopment Strategy and proposals shall be solicited for uses for any specific property that are consistent with the Master Redevelopment Strategy, except as otherwise provided herein. Developers of FWDA Development Uplands Property shall be selected in accordance with Section 4. Development Uplands Property may be transferred by sale or Long Term Lease as the Board may reasonably determine with reference to current real estate market conditions and such other factors as the Board may take into consideration FWDA-Managed Property. The FWDA shall serve as the manager of certain City Property not intended for redevelopment or until it is redeveloped (as indicated on the Property Schedule) in accordance with Section 5.2. The FWDA shall provide janitorial and other services for the Museum of Glass Properties, as set forth in Section Communications. The City and the FWDA have established and maintained effective, regular and positive communications to achieve the objectives of the First Agreement and Second Agreement. The Parties commit to continue to communicate effectively, regularly and positively to achieve the objectives of this Agreement. The Parties recognize that the level of and type of communication should be responsive to the type of property, transaction and issues involved. At a minimum, the Parties shall communicate as follows Foss Capital Improvement Program. The FWDA shall biennially consult with the City to identify, review, and prioritize its annual Foss Capital Improvement Plan, consistent with the Foss Plan and the Master Redevelopment Strategy Prior to Redevelopment. Prior to issuing a Request for Qualifications or otherwise commencing the redevelopment of City Development Uplands Property or FWDA Development Uplands Property under Section 4, the FWDA will meet with the City Manager to review its timeframe and an outline of the Request for Qualifications, including discussion of prevailing market conditions; the development objectives for the property identified in the Master Redevelopment Strategy; and the availability of City or other public support for its redevelopment, including environmental remediation. In the process of preparing its Request for Qualifications or otherwise commencing the redevelopment of City Development Uplands Property or FWDA Development Uplands Property under Section 4, the FWDA shall review the following with respect to -6-11/16/10

11 consistency with the Master Redevelopment Strategy for the Development Uplands Property: (a) Preferred use(s) of and development objectives for the property; (b) Potential for private investment in the property and strategy for maximizing the return on the property given the short- and long-term goals for and constraints on the property; (c) Ability to require, and the timing of, private investment in offsite public improvements; (d) Environmental status of the property, the timing and cost of any remediation of the property involved, and its implications for development of the property; (e) Timing of the development relative to other public and private projects within the City; (f) Requirements for the view and access corridors; (g) Facilitation of marina access and amenities; (h) Need for public easements for utilities and pedestrian and vehicular access; (i) Opportunity to enhance development prospects through focused City or other public investment; and (j) Existence of circumstances, if any, to exempt the property from the two-stage competitive selection process set forth in Section 4. At the end of this assessment process and following consultation with the City Council, the City Manager shall determine whether the FWDA s proposed Request for Qualifications is consistent with the Master Redevelopment Strategy. If the FWDA-recommended Request for Qualifications is consistent, the FWDA may proceed with its proposal. If the proposed Request for Qualifications is determined to be inconsistent with the Master Redevelopment Strategy, the FWDA may request City Council approval in order to proceed with its process in spite of the inconsistency. Although the determination of consistency is a matter of judgment, taking into account a variety of factors, the City Manager may find -7-11/16/10

12 that a proposed Request for Qualifications is not consistent if the FWDA s recommended Request for Qualifications contemplates a preferred use other than a use identified in the Master Redevelopment Strategy. The City Manager also may find that a proposed Request for Qualifications is not consistent if a recommended Request for Qualifications represents and depends upon the availability of City support for development of a site materially in excess of existing City obligations for environmental remediation and reasonably available and identifiable resources for infrastructure or other capital improvements directly related to development of the site During Selection Process. During the process of selecting a developer(s) for a particular property, the FWDA shall regularly update the City Manager on the progress of the process. For example, if the FWDA believes that adjustments in the basic terms and conditions identified in the Request for Qualifications are required or are desirable, the FWDA shall communicate with the City Manager to discuss such adjustments. No adjustments that would contemplate a use other than a use identified in the Master Redevelopment Strategy or would implicate City support for development of the site materially in excess of existing City obligations for environmental remediation or reasonably available and identifiable resources for infrastructure or other capital improvements directly related to development of the site shall be permissible, without City approval as provided herein Prior to Final Selection. The FWDA shall confirm with the City Manager prior to the Board s final selection of a developer to ensure that the final proposal is consistent with the Master Redevelopment Strategy, and the Request for Proposals, including any approved adjustments thereto in preparation for presentation to the City Council Final City Approval. The FWDA shall coordinate with the City Manager to transmit sufficient information to the City for Council approval (including, upon request, a summary of the material terms and conditions of the transaction and how they meet the Master Redevelopment Strategy, as well as an identification of those terms and conditions of the Development Agreement(s) that may require expenditure of City funds or use of City resources) Prior to Acquisition of Property. The FWDA will consult with the City Manager prior to acquisition of any real property. 3.6 City and FWDA Representative. The Parties shall make the appropriate personnel available for communication about and efficient and effective implementation of this Agreement /16/10

13 Unless otherwise specified in this Agreement or applicable law, actions to be taken or decisions to be made by the City will be the responsibility of the City Manager. Action to be taken by the Tacoma City Attorney will be the responsibility of the Tacoma City Attorney. The City hereby grants, to the extent permitted by law, such person or persons the power, authority, and right to carry out all such responsibilities. Unless otherwise specified in this Agreement or applicable law, actions to be taken or decisions to be made by the FWDA will be the responsibility of the Executive Director or his or her designee. 3.7 Conveyances from the City and the FWDA. The Parties currently intend to transfer certain of the Development Uplands Property and marina improvements among themselves and the Metropolitan Parks District of Tacoma (the Parks District ), as further provided herein City to FWDA. The properties and improvements that the City intends to convey to the FWDA are listed on the Property Schedule. At appropriate times to be determined by the Parties before the FWDA commences marketing a property in anticipation of the selection of a developer, the City shall convey such properties and improvements to the FWDA by quit claim deed (and bill of sale as to any personal property), at no cost to the FWDA. FWDA shall obtain owner s title insurance policies for such properties. Upon such conveyance, these properties will cease being City Properties and become FWDA Properties Parks District. The Parties will collaborate with the Parks District to determine and implement a mutually agreeable long term role for the Parks District with respect to Waterway properties developed or suitable for development for park purposes. The Parties acknowledge that the FWDA does not intend to serve as the long term manager of parks or park facilities. 3.8 Charter Purposes. In addition to the property related tasks described in this Section 3, the Parties intend that the FWDA undertake other activities in furtherance of the purposes set forth in the Charter. These activities include, without limitation, sponsoring, planning and coordinating events held in the Waterway neighborhood (such as a Tall Ships event, concerts and festivals); supporting the development and operation of non-profit institutions located or functioning along the Waterway such as the Foss Waterway Seaport; and undertaking projects and activities to further public information about and generally enhance the Waterway community. 4. DEVELOPMENT DECISIONS 4.1 General. The FWDA shall undertake to facilitate the redevelopment of the Waterway Properties, Marine Areas and other City-owned Property and FWDA-owned Property in, on or along the Waterway designated for redevelopment pursuant to the Foss Plan and the -9-11/16/10

14 annual Foss Capital Improvement Plan in a manner determined by the FWDA to be consistent with the Foss Plan. Ordinarily, the FWDA will facilitate this redevelopment through the sale or Long Term Lease of property to a developer(s) selected through the two-stage competitive selection process set forth in Section 4.2. When the FWDA is conducting this process with respect to City Property, the FWDA shall conduct the process on behalf of the City as the City s agent. 4.2 Competitive Selection Process. The following sets forth the two-stage competitive process that the FWDA shall follow when selecting a developer(s) of City-owned Development Uplands Property or FWDA-owned Development Uplands Property determined to be redeveloped pursuant to the Foss Plan, the Master Redevelopment Strategy, and the annual Foss Capital Improvement Plan Criteria for Evaluating Developer Qualifications. The Board shall establish criteria for evaluating the qualifications of developers submitting qualifications for development of a site. The evaluation criteria would typically include the following: experience and qualifications of all development team members/partners and key consultants, financial ability of developer to support a project of the type and scope anticipated for the development site; previous experience with similar waterfront projects; experience developing property in the context of public-private partnerships; and experience with development of environmentally contaminated properties, if applicable Request for Qualifications. The FWDA shall issue a Request for Qualifications ( RFQ ) to determine the credentials and qualifications of potential developers in accordance with the Foss Plan, the Master Redevelopment Strategy and established criteria. Prior to issuance, the City Manager and the Tacoma City Attorney must approve the terms and conditions of any RFQ, as provided herein. The FWDA shall provide a copy of the RFQ to the City Manager and the Tacoma City Attorney at least two weeks prior to issuing such RFQ. If the City Manager and/or the Tacoma City Attorney does not disapprove the RFQ within such two-week period, the RFQ shall be deemed to be approved. At the conclusion of the RFQ process, the Board will select the developer or developers to continue on to the Request for Proposals ( RFP ) process Criteria for Evaluating Redevelopment Proposals for Each Site. The Board shall establish criteria for evaluating the proposals for potential development of each site. The evaluation criteria would typically include the following: whether the proposed redevelopment is consistent with the Foss Plan, the Master Redevelopment Strategy; whether the proposed redevelopment meets minimum development thresholds established by the FWDA; the public benefit associated with the proposed redevelopment; the economic viability of the proposal; the experience of the development team; identification and location of team members; the overall return /16/10

15 (including direct and indirect benefits) that the proposed redevelopment will provide to the FWDA and/or the City; the long-term economic impacts to the Waterway and the City; the impact of the development to the environmental condition of the development site and Waterway; the ratio of public to private investment required for the development; the monetary and non-monetary public obligations arising from development obligations; whether the proposed redevelopment complements and enhances the adjacent developments; and the projected timeline for commencement and completion of the redevelopment. This list is not exclusive; the evaluation criteria may vary from site to site to reflect the Master Redevelopment Strategy and specific characteristics of or conditions on the site Request for Proposals. Qualifications and development concepts submitted in response to an RFQ shall be reviewed by the FWDA as provided herein. Based on the results of the RFQs, one or more developers/teams may be requested to submit detailed project proposal(s) in response to RFPs. Prior to issuance, the City Manager and the Tacoma City Attorney must approve the terms and conditions of any RFP, as provided herein. The FWDA shall provide a copy of the RFP to the City Manager and the Tacoma City Attorney at least two weeks prior to issuing such RFP. If either the City Manager or the Tacoma City Attorney does not disapprove the RFP within such two-week period, the RFP shall be deemed to be approved. At the conclusion of the RFP process the Board may select the preferred developer(s) with which to negotiate a Development Agreement Combined Request for Qualifications/Proposals. The FWDA may issue a combined RFQ/RFP. If it were to recommend such an approach, it shall so advise the City Manager and the City Attorney. Consultation with the City, including City Manager and City Attorney review and approval of such a combined RFP shall proceed in a manner consistent with procedures associated with consultation with the City regarding a proposed RFQ required under Sections 4.2.2; and Development Agreements. Upon selection of the developer(s), the FWDA will negotiate Development Agreements with such developer(s) that is consistent with the Foss Plan and the Master Redevelopment Strategy Legal Review. Development Agreements for any City-owned or FWDA-owned Development Uplands Property shall be submitted to the Tacoma City Attorney for review and approval as to form and legality prior to submission for approval of such Development Agreements by the City Council. The City Attorney shall complete his or her review in a timely manner without unreasonable delay /16/10

16 4.3.2 Terms. The particular terms of the Development Agreements shall reflect the FWDA s Requests for Qualifications and Proposals and remain consistent with the Master Redevelopment Strategy except as permitted herein. Development Agreement(s) will include the requirements specified in Section 10.3 of this Agreement, as well as the following specific terms: 1. Timing of Development. Any transfer of site(s) (by sale or Long Term Lease) in connection with a Development Agreement shall be contingent upon the developer initiating full or partial redevelopment within a specified time frame as provided in such Development Agreements, to ensure that implementation of the overall Foss Plan proceeds in a timely and orderly manner. 2. Consent Decree. For properties that are under the jurisdiction of the Consent Decree, the site shall be subject to any restrictive covenants and other conditions that may be recorded as required under the Consent Decree and the Developer will be required to become a party to and comply with the Consent Decree. 3. Recorded Covenant. Any Development Agreement shall contain a provision requiring recording of the Development Agreement, in order to memorialize a covenant running with the land to develop the property in accordance with such Development Agreement and shall be binding on the successors and assigns of the developer as well as successor owners of the property in question. 4. Right to Reacquire. To the extent practicable, the FWDA will seek to preserve in any Development Agreement the right to reacquire the property through right of first refusal, option or other right to be exercised in its discretion in the event a developer purchaser is unable to commence and/or subsequently complete development as required under its Development Agreement. In structuring its right to reacquire, the FWDA shall seek the ability to recover the property for the lesser of the original sale price or its fair market value when the right is to be exercised. In order to make any such right meaningful and realistic, the Parties will work to enable the FWDA to retain in reserve the proceeds of a property sale until development commences and the FWDA is reasonably confident that it will be completed as required. The Parties also will work to enable the FWDA to exercise any right to reacquire in the event that (i) the original sale price was reduced in recognition of expenditures for improvements benefiting the property required of the developer; and (ii) such improvements were undertaken, increasing the property s fair market value and the cost to reacquire. For instance, it may be necessary to advance funds to the FWDA to close any gap between the original sale price and a /16/10

17 fair market value reflecting such improvements if the Parties concur that a subsequent resale of the property would result in recovery of substantially all of fair market value including the value of the improvements. 5. Transfer to Be Subject to Satisfaction of Reasonable Contingencies. Actual transfer of the property shall not occur prior to the satisfaction of reasonable contingencies to be identified by the FWDA. 4.4 Council Action. The City Council shall accept or reject the FWDA s recommended Development by an affirmative vote of a majority of a quorum. In presenting a recommended Development to the Council, the FWDA shall confirm that it believes such proposal is consistent with the Foss Plan and the Master Redevelopment Strategy, and that all consideration received, including monetary and nonmonetary consideration, reflects at least fair market value or higher as determined by MAI appraisal or other appropriate valuation technique Council Acceptance. If the City Council accepts the FWDA s recommendation, it shall do so by adopting a motion approving the scope and nature of the recommended Development. If the City is made a party to any Development Agreement with respect to the recommended Development, such resolution or ordinance shall also approve the Development Agreement and authorize the appropriate City officials to execute the Development Agreement. The City Council must also approve the execution of any Purchase and Sale Agreements dealing with City Owned Property Council Rejection. If the Council rejects the FWDA s recommendation, the FWDA will either: 1. Initiate a new RFQ/RFP process; or 2. Submit a new recommended Development with the same developer; or 3. Negotiate a new Development Agreement with the next highest ranked developer and submit such recommended Development for Council approval; or 4. Delay the Development, if appropriate, given market and other considerations. 4.5 City Indemnification. For any property identified and covered by Section 2.A. of the Consent Decree, the City shall provide an appropriate indemnification to the FWDA, its directors, officers, and employees and its successors, owners, developers, or lessees and their successors and assigns (the FWDA Parties ), to hold them harmless with respect to the existence and migration of hazardous substances present on or beneath a property at the time such property is first conveyed by the FWDA to a developer for Development; including the /16/10

18 continued migration of such hazardous substances, to the extent such migration is caused by conditions that exist at the time the property is first conveyed by the FWDA to a developer for Development, and actions taken or omissions by the City pursuant to the Consent Decree, but not for hazardous substances released through the acts of a person undertaking a Development on a property, or other third party, following conveyance of the property by the City or the FWDA to a developer for Development. The granting of any such coverage will be subject to strict compliance by the FWDA Parties with any specific remedial action already taken by the City at the site and any site-specific use or access restrictions attending completed remediation and compliance with the Consent Decree. 4.6 Exceptions. As noted above, the FWDA will ordinarily follow the two-stage competitive process for selecting a developer of Waterway Properties. The FWDA may elect to issue a combined RFQ/RFP in those circumstances in which the Board determines it is not practicable or in the best interests of the FWDA and/or the City to use the two-stage competitive solicitation process. In addition, the requirement for competitive solicitation may be waived altogether by the City Manager with respect to City Property and the Aquatic Lands Area or, in the case of FWDA Property, the Board in the event that an immediate and important public need for development of the property arises. 4.7 Compliance with Applicable Law. Notwithstanding any other provisions herein, FWDA property disposition procedures shall comply with all applicable federal and state laws, rules or regulations, as well as all City ordinances, including public works bidding requirements if applicable. 5. PROPERTY MANAGEMENT 5.1 General. The FWDA shall serve as the manager of certain City Property, as agreed between the Parties. The property initially to be managed by the FWDA is the Esplanade, the Aquatic Lands Area, the Municipal Dock property (until it is redeveloped), the right of way beneath the SR 509 bridge on both sides of the Waterway, and, until conveyed to the FWDA, site 6, a portion of site 7, site 8 and site 9 (the FWDA-Managed Property ). 5.2 Services To Be Provided. Generally, the FWDA will provide those services to the FWDA-Managed Property typically provided by a property manager of similar properties and improvements. Services to be provided with respect to the FWDA-Managed Property include the following: Administrative. The FWDA shall collect all rents under leases (for deposit into the Agency Fund); prepare and submit a biennial operating budget for property management services (as part of the annual FWDA operating budget submitted under Section 9); instruct the City billing department with respect to the billings to be made on FWDA-Managed Property; follow up on accounts receivable; administer leases and service contracts; accept and dispatch calls for maintenance; and follow any applicable emergency response plan /16/10

19 5.2.2 Cleaning, Garbage and Security. The FWDA will provide routine cleaning, maintenance, garbage collection and security services for the FWDA-Managed Property, except for circumstances where other persons are expressly responsible for such service. For example, under the CC&Rs, the Foss Waterway Owners Association is responsible for these services for the Esplanade although the FWDA may contract with the Association to have the FWDA perform certain services, if desired by the Association. The Parties agree to work cooperatively to identify and implement measures to secure funding for such routine cleaning, garbage collection and security services Capital Improvements. The FWDA shall not be required to make any capital improvements, repairs or other construction on the FWDA-Managed Property except to the extent that the City provides funding therefor through the appropriation and funding process under Sections 9.2 and Special Services for Other City Property. The FWDA will provide routine cleaning, garbage collection and security services for the Museum of Glass Public Areas as hereinafter provided and identified on the map attached hereto as Exhibit C. The areas to be cleaned at the Museum of Glass Public Areas are the pedestrian bridge surface, and the glass that faces the bridge walkway. Security services to be provided at the Museum of Glass Public Areas shall be of the type and level provided by the Foss Waterway Owners Association at the Esplanade. The FWDA shall not be responsible for any capital improvements, repairs or other construction on the Museum of Glass Public Areas. The FWDA is not responsible for the cleaning of any art on the bridge or maintenance and cleaning of the Water Forest or other art that may be placed now or in the future on Museum of Glass Public Areas. The City will work cooperatively with the FWDA to identify funding sources for services to be provided by the FWDA to the Museum of Glass Public Areas. The City shall retain responsibility for the maintenance of and ensuring compliance with the Consent Decree for habitat and other properties identified on the map attached hereto as Exhibit D. Neither the FWDA nor the Owners Association shall have any responsibility for such maintenance or compliance without specifically agreeing to accept such responsibility. 5.4 Association Fees. The FWDA shall be responsible for budgeting and paying all fees, assessments, and common expenses pursuant the CC&Rs required to be paid by the City with respect to FWDA-Managed Property. 5.5 City Indemnification. The City hereby agrees to indemnify and hold harmless the FWDA, its officers, Board members, agents and employees from any and all claims, actions, causes of action, judgments, or liens occasioned by or arising out of the FWDA s management activities of FWDA-Managed Properties and FWDA s services to the Museum of Glass Public Areas, except for willful misconduct of the FWDA or the FWDA s continuing negligence (after notice to the FWDA and reasonable opportunity to perform following such notice), and to defend for and on behalf of the FWDA, its officers, Board members, agents and employees, at its own /16/10

20 expense, any such claim or cause of action, and, in the event of recovery thereon, to pay any judgment or lien arising therefrom, including any and all costs as a part thereof. 5.6 City Insurance. The City shall maintain liability, property and other insurance with respect to the FWDA-Managed Property and the Museum of Glass Public Areas (or shall self insure therefor) and the FWDA shall not be responsible for such insurance. The FWDA shall be named as an additional insured with respect to such liability insurance. In the event of a casualty damaging any of the FWDA-Managed Property, the Parties shall consult about whether to rebuild or restore such property. 5.7 Mutual Services. The City and the FWDA may each provide such additional services, including but not limited to project management services, to each other on mutually agreeable terms as may be determined by the Parties. 5.8 City Property. The City agrees that the use and development of all property owned by the City located on either side of the Waterway, including but not limited to City Property as described in subsection 3.3.1, shall be subject to the guidelines contained in the Foss Plan and the Master Redevelopment Strategy. 6. SHORT TERM LEASES AND LICENSES 6.1 General. The FWDA is authorized under its Charter to enter into Short Term leases, licenses and use agreements consistent with its purposes. The FWDA may enter into Short Term Leases, licenses and use agreements with respect to FWDA Property and Aquatic Lands Area with the approval of the Board. In the case of City Property (including FWDA-Managed Property except for the Aquatic Lands Area), the FWDA shall present Short Term Leases, licenses and use agreements for a period of one (1) year or less for review by the City Attorney and approval by the City Manager, who shall thereafter execute such leases, licenses and agreements. 6.2 Permits for Construction/Clean Up Activities. The FWDA is authorized to enter into Short Term Leases, temporary easements, license or use agreements with respect to the Waterway Properties, Marine Areas or other portions of the Property adjacent or near to property to be Developed pursuant to Section 4 for such period of time as is necessary for a Developer and/or its contractor to use such property for construction related activities. If any such lease, license or use agreement is for City Property, it shall be reviewed in advance by the Tacoma City Attorney. 6.3 Lease Rates. The FWDA may establish such rents or fees for Short Term Leases in its sole discretion. The objective of FWDA shall generally be to set lease rates at then current market rates, with a target of obtaining at least a 10% annual rate of return on the current market value of land, and at least a 12% annual rate of return on the current market value of improvements, acknowledging that variations will occur from time to time based on market conditions, local economy, job generation, and industry demands. Appraisals and rent surveys will be used as guidelines to establish then current market rates /16/10

21 6.4 Deposit of Lease Revenues. The FWDA shall deposit any revenues derived from its leasing activities in the FWDA Agency Fund. 7. FWDA ACQUIRED PROPERTY 7.1 General. The FWDA is authorized under its Charter to acquire real property to support the redevelopment, development, improvement and/or maintenance of property, facilities and public spaces within and along the Waterway in a manner consistent with the Foss Plan. The redevelopment of the Waterway, specifically including the acquisition of such properties, is identified in the Charter as an essential governmental function to be carried out on behalf of the City pursuant to a contractual agreement between the City and the FWDA. 7.2 Limitations on Acquisition. The FWDA shall not acquire property for redevelopment of the Waterway except in accordance with its Charter and the Foss Plan. 8. MARINA AREAS 8.1 Ownership of Marina Areas. As described in Section 3.2.3, the City and the FWDA each own portions of the Shoreline Area and certain marina improvements. The Parties intend that, with the exception of the Esplanade and parts of the Shoreline that must remain in City ownership due to City Charter restrictions, the Shoreline Area between 15 th and 21 st Streets and extending from the shore to the Aquatic Lands Area and all marina improvements owned by the City be transferred to the FWDA at no cost pursuant to Section The FWDA shall facilitate the development of the Marina Areas in accordance with Section 9. Until conveyed, such property shall be managed by the FWDA as FWDA-Managed Property. The City and the FWDA are tenants in common of the Aquatic Lands Area under the DNR Lease; such property shall be managed by the FWDA as if it were FWDA Property and the FWDA shall be responsible for the performance under the DNR Lease required by the tenants. FWDA shall be the party that communicates with the landlord, DNR, but FWDA agrees to provide copies of all notices (except routine monthly rent statements) given pursuant to the DNR Lease to the City. The City shall provide the insurance required to be provided by the tenants under the DNR Lease. The City also shall be responsible for payment of rent due to the DNR for the property occupied by the Fire Station float at 11 th Street. 8.2 Redevelopment of Marina Areas. The FWDA may undertake to facilitate the redevelopment of sites within the Marina Areas pursuant to the Foss Plan and the annual Foss Capital Improvement Plan. The FWDA may facilitate this redevelopment through the sale or Long Term Lease of property to a developer(s) selected through the two-stage competitive selection process set forth in Section Access from Uplands. The Parties agree to reserve and/or grant easements as appropriate to insure the provision of access and utilities to the Marina Area from the Development Uplands /16/10

22 8.4 Moorage Agreements. The FWDA may enter into moorage/boat slip and berthing agreements and licenses, as well as Short Term leases and subleases for property within the Marina Area (without the consent of the City). Moorage/boat slip fees shall be in accordance with fee schedules as provided in applicable leases, subleases or management agreements or as otherwise established by the FWDA. 8.5 Marina Facilities. The FWDA will utilize best management practices for marina management as required pursuant to the DNR Lease and will further require any subtenant or manager of the marina facilities to use such best management practices as well. The FWDA may operate marine facilities through a sublease or contract for marina management services, or may obtain a developer(s) pursuant to the procedures in Section FINANCIAL RELATIONSHIP 9.1 General. Subject to the following terms and conditions, the City agrees to fund the FWDA s operating and capital costs hereunder. 9.2 Operating Budget. The City will timely notify the FWDA of the City s budgeting schedule and submittal requirements. The FWDA will, in accordance with the City budgeting schedule and budget requirements, timely prepare and submit to the City for review by the City Manager, or his or her designee, a proposed FWDA biennial budget in a form acceptable to the City. The proposed budget will describe the FWDA s program of work for the biennium and will in detail relate the budget to expenditures by category, including but not limited to, personal services, maintenance and operations, pre-development services and capital improvements. The City will review the proposed FWDA budget for approval. In reviewing the proposed biennial budget, the City will consider the availability of City resources, including but not limited to recoveries or reimbursements obtained by the City as reimbursement for remediation activities, and will also take into account the amount of FWDA revenues. In the event of disagreement over the submitted budget due to availability of funds or other issues, the City may request revisions to the FWDA budget and corresponding revisions to the scope of the FWDA s activities and responsibilities. Upon review and approval of the FWDA biennial budget, the City will appropriate agreed upon funding therefor as part of the Citywide biennial budget process. The City acknowledges that the FWDA remains reliant on non-recurring revenue generated from its development activities and that if real estate market conditions limit development activities or as development proceeds and property available for development diminishes, the FWDA s progress toward self-sustainability may be delayed or compromised. The Parties anticipate that this issue will be addressed in the Master Redevelopment Strategy as required under Section 3.1 or resolved in the context of terminating this Agreement and dissolving the FWDA as provided in Section Capital Budget. No later than September 15 of each year, FWDA shall submit the annual Foss Capital Improvement Plan to the Board and the Council for review and approval. The Foss Capital Improvement Plan shall conform to the City s six-year Capital Improvements Plan and shall, upon approval, be included therein. City support for the annual Foss Capital Improvement Plan is specifically subject to available City resources to be determined through its /16/10

23 regular budget process. In budgeting City resources for the approved Foss Capital Improvement Plan, the City will take into account FWDA Proceeds available for this purpose. 9.4 Administration of Agency Fund. The City will establish and shall administer on behalf of the FWDA an Agency Fund. The City shall act as treasurer for the FWDA with respect to the Agency Fund performing billing, accounts receivable, investment and other treasury functions. 9.5 Deposits to Agency Fund. Pursuant to Section 9.2, the City will appropriate funds for the FWDA operating budget ( City Appropriated Funds ). City Appropriated Funds shall be deposited to the FWDA Agency Fund. The FWDA will deposit appropriated sources of revenue to the FWDA Agency Fund. 9.6 Disbursement from Agency Fund. Funds from the FWDA Agency Fund shall be disbursed only and solely for the purposes of performing services and activities described in this Agreement. Such funds shall not be used to make advances to any individuals or organizations, nor shall said funds be diverted for any other activity, program, or service, other than for the purposes described in this Agreement. So long as funds are available, and in the case of City Appropriations appropriated for the purpose for which FWDA is requesting such funds, the FWDA may receive disbursements of funds without further City approval. No disbursement from the FWDA Agency Fund may be made, no charge may be made against the FWDA Agency Fund and no obligation of the Agency Fund may be incurred by any other person, including the City, without the FWDA s prior consent and written approval. 9.7 Investment of Agency Fund. Amounts on deposit in the FWDA Agency Fund shall be invested by the City in lawful investments and the earnings thereon shall be retained therein and disbursed pursuant to Section Grants. The City and the FWDA agree to continue to identify, evaluate and pursue grant funding (and other resources) to accomplish the Foss Capital Improvement Plan and other objectives of this Agreement, including, without limitation, environmental contamination cleanup funding through the State Model Toxics Control Act and other such sources City Grants or City Matching Funds. The City has been successful in securing grant funding to accomplish the objectives of the First Agreement and the Second Agreement. Grants received by the City for these purposes shall be appropriated as part of the City s budget process, or as may otherwise be periodically necessary and appropriate. With the prior consent of the FWDA, the City may apply for grants requiring a FWDA matching contribution. Grants received for projects to be undertaken by the FWDA shall be appropriated by the City and be deposited to the FWDA Agency Fund FWDA Grants and FWDA Matching Funds. The FWDA may, without City consent or sponsorship, apply for any grants it is eligible to receive /16/10

24 on its own. With prior consent of the City, the FWDA may apply for grants requiring a City matching contribution. 9.9 FWDA Annual Reports. The FWDA will provide to the City an annual report, including financial statements, describing its activities for the prior year and its plans for the current year, with particular emphasis on the status of its responsibilities under this Agreement City Reports. On or before the 12 th of each month during the term of this Agreement, the City shall provide to the FWDA the following financial reports: Monthly Financial Statements for the Agency Fund; status reports reflecting comparative information on revenues and expenses (budgeted versus actual); and monthly accounts receivable aging reports. Any non-system generated reports should reconcile to the general ledger activity to be provided. The FWDA may inspect the City s records with respect to the Agency Fund upon reasonable notice Maintenance of Records. The Parties shall establish and maintain current, throughout the term of this Agreement, records required by the City or under applicable laws and regulations. Except where otherwise specifically provided, all records shall be kept on accessible file for three (3) years after the Agreement completion date and be available for inspection by the City, the FWDA, the State of Washington or federal officials, auditors or other authorized agents Periodic Audits. Representatives of the City are hereby authorized to perform periodic performance and financial audits of the FWDA at such reasonable times as they may deem necessary and proper, and all in accordance with applicable rules and regulations or at the discretion of the City. The FWDA agrees to comply with the provisions of OMB Circular A-28 governing the audit of State and local government and Indian Tribe Federal Assistance recipients for fiscal years that begin after December 31, The FWDA agrees to cooperate in such audits Staff Support. To the extent authorized by the City Manager from time to time, the City will make available its employees to provide oversight and assistance in working with the FWDA to achieve the mutual goals and objectives of the City and the FWDA under this Agreement at no cost to the FWDA. 10. ENVIRONMENTAL RESPONSIBILITY 10.1 General. The City prepared the Thea Foss Redevelopment Area-Wide Cleanup Action Plan in 1994 to guide soil remediation of certain upland parcels, or sites along much of the west side of the Thea Foss Waterway in accordance with the Model Toxics Control Act, Chapter D RCW. This plan, which is attached as Exhibit C to the Consent Decree, sets forth the general environmental based standards and guidelines that will be applied to the remediation of each site in accordance with the Consent Decree. Such remediation may be accomplished prior to redevelopment or as a mandated feature of such redevelopment, as may be determined by the Parties in the interest of expediting such remediation. The City has, and will /16/10

25 continue to discharge its obligations under the Consent Decree expeditiously, as available staff and financial resources permit Cost Obligation. The City has incurred costs to conduct remedial investigations, prepare SCAPs, and excavate, manage and dispose of contaminated soils at certain properties subject to the Consent Decree. In the event the Department of Ecology ( Ecology ) requires, in response to a Developer s site-specific development proposal that: (i) additional remedial investigations be undertaken to supplement or revise an existing remedial investigation report for the property; or (ii) an existing SCAP be modified, or a new SCAP prepared, then such activities shall be performed and paid for by the Developer. Unless otherwise agreed to in writing by the City, FWDA and a Developer, or third party, the City shall remain primarily responsible, at its cost, for conducting a MTCA compliant remedial investigation, and for preparing an Ecology-approved SCAP at any property covered by Section 2, paragraph A of the Consent Decree where a remedial investigation has not been conducted, or a SCAP has not been prepared. The terms remedial investigation and remediation used in this Article 10, shall have the same meaning as remedial action under RCW D.020(26). In the process of allocating any ongoing responsibilities under the Consent Decree, the City will identify monitoring wells the City has installed, or which otherwise appear on the City s GovMe website located on properties subject to the Consent Decree and indicate ownership responsibility for each, if known Developer Obligations. The FWDA shall, unless otherwise agreed to by the City, include terms and conditions in any Development Agreement for property subject to the Consent Decree holding the Developer responsible for conducting any remaining remedial actions at the site, including, but not limited to: (i) conducting additional remedial investigations to supplement or revise an existing remedial investigation report as required by Ecology in response to the Developer s site specific development proposal, as set forth in Section 10.2 above, or revising a SCAP if either activity is required by Ecology in response to a Developer s site-specific development proposal, as set forth in Section 10.2 above; (ii) isolating contaminated soil that will remain on the property after it is developed; (iii) remediating the property in accordance with MTCA and the Consent Decree Cleanup Action Plan (where applicable); (iv) constructing, maintaining and preserving the integrity of the Cap System (as later defined); (v) monitoring any remedial actions completed by the Developer in accordance with MTCA; and (vi) recording and complying with any restrictive covenants required under the Consent Decree (when applicable) Ecology Notice. After remediation is completed for property subject to the Consent Decree, the City and the FWDA will work together with the Developer to obtain a written notice from Ecology stating that the remediation required for the site under the Consent Decree is satisfactorily completed Amendment of the Consent Decree/Restrictive Covenants. The City remains responsible under the Consent Decree for implementing, operating, and maintaining all institutional controls required by Ecology on properties where a Restrictive Covenant has been recorded that identifies the City as the Grantor, until such obligation has been transferred to a Developer. For those properties that are sold (rather than leased) to a developer or other private /16/10

26 party, the FWDA will require, as a condition of the transaction, that the buyer agree to be bound by the terms and conditions of the Consent Decree by signing a copy of the Agreement of Successors in Interest and Assigns in Exhibit G of the Consent Decree. The developer shall also be required to complete any remedial actions on the property they acquire as set forth in Sections 10.2 and 10.3 above, and the Consent Decree which are required by Ecology, and will consent to and comply with all limitations, restrictions, and uses to which the property may be put pursuant to these restrictive covenants, including requirements to allow periodic access to the property at reasonable times for the purposes described in the Restrictive Covenants Dock Street Environmental Remediation (Portion of Site #8 at approximately 1131 and 1123 Dock St.). The City, through Tacoma Power, will provide environmental remediation for the property at 1131/1123 Dock Street, the former location of Tacoma Steam Plant No. 1. The City (General Government) shall consult with Tacoma Power to establish a timeline for completing the remediation to facilitate redevelopment of the property as staff and financial resources permit. The timeline and remediation plan established by the City shall be subject to review and comment by the FWDA and is a precondition to FWDA marketing of the site for development Dock Street (Pacific Seafood Property) (Site #6). The City and the FWDA recognize that the Consent Decree applies to properties for which the Department of Ecology has received a Notice of Intent to Proceed with remedial investigation work within five years from the effective date of the Consent Decree First Comprehensive Amendment. (See, Section 27.B. of the Consent Decree.) The Parties acknowledge that a Notice of Intent to Proceed with cleanup of the 1199 Dock Street property has not been filed with Ecology. The Parties agree to work in a cooperative manner to address cleanup issues on the 1199 Dock Street property site in accordance with the City s property redevelopment priorities, and as staff and financial resources permit Consent Decree Termination. The City and the FWDA will work together, with other Consent Decree Defendants to obtain, under Section 27 of the Consent Decree, written confirmation from the Department of Ecology that active remedial actions have been satisfactorily completed as warranted. In addition, when remediation on all sites subject to the Consent Decree has been completed, the City and the FWDA and other Defendants will work together to terminate the Consent Decree under the provisions of Section Assignment of City Indemnification Agreements. The City Manager or his designee shall execute on behalf of the City all necessary and appropriate instruments to effectuate assignment of a hazardous substances indemnification agreement (indemnification agreement) by and between the City, the Foss Waterway Development Authority (the FWDA) and a developer (developer indemnitee) to developer indemnitee s successor in interest and assignee or subsequent successors in interest and assignees (assignee) of all or a portion of the property subject to the indemnification if: (a) the assignee demonstrates to the satisfaction of the City Manager or his/her designee and FWDA that they have the financial capacity to assume and perform /16/10

27 each and every one of the developer indemnitee s responsibilities and obligations under such indemnification agreement; and (b) the assignee executes a written contract acceptable to the City Manager and the FWDA and to which they are signatories that includes, among other things, the following terms and conditions: (i) the assignee agrees to assume each and every one of the developer indemnitee s responsibilities and obligations under the indemnification agreement for the property; (ii) an assignment shall be permitted only upon the transfer of an assignor s ownership interest in a property and only to the transferee of such ownership interest; (iii) only with respect to property for which development under an applicable development agreement has not been completed, the assignee shall agree in a written assumption agreement to comply with and be bound by either: (a) all of the applicable terms and conditions of such development agreement for the property; or (b) the terms and conditions of a restated development agreement for an alternate development approved by the FWDA and the City Manager for a development consistent with the Master Redevelopment Strategy. Any assumption agreement involving a restated development agreement for any other alternate development that would represent a material departure from either the Foss Plan or the Master Redevelopment Strategy must be approved by the FWDA, the City Manager and the City Council; (iv) the assignee shall agree in writing to comply with any restrictive covenant imposed on the property in connection with any environmental remediation of such property, as well as any applicable conditions of the indemnification agreement; and (v) no assignment shall be allowed to any party who owned or operated the property before the time it was purchased by the City or the Metropolitan Park District unless the City Manager reasonably determines such assignment would not obviate any outstanding potential liability or responsibilities such party may have for prior contamination of the property. (c) the property that is the subject of such hazardous substances indemnification agreement has been redeveloped consistent with a development agreement between the FWDA and developer indemnitee; or, in the case of property that has yet to be redeveloped or fully redeveloped, assignee has executed a binding development agreement with the FWDA, that has been approved by the Tacoma City Council for the redevelopment of the property or the portion thereof acquired by assignee for a project determined by the FWDA to be substantially similar to the project for which the indemnification agreement was originally provided /16/10

28 11. INDEMNITIES AND INSURANCE 11.1 Indemnification by FWDA. The FWDA hereby agrees to indemnify and hold harmless the City, its officers, and employees from any and all claims, actions, causes of action, judgments, or liens occasioned by or arising out of the FWDA s negligence or the FWDA s failure to comply with applicable laws in the FWDA s performance of this Agreement (except for any willful misconduct or negligence of the City and except for matters for which the City has agreed to indemnify the FWDA hereunder), and to defend for and on behalf of the City, its officers, and employees, at its own expense, any such claim or cause of action, and, in the event of recovery thereon, to pay any judgment or lien arising therefrom, including any and all costs as a part thereof Indemnification by the City. The City hereby agrees to indemnify and hold harmless the FWDA, its officers, and employees from any and all claims, actions, causes of action, judgments, or liens occasioned by or arising out of the City s negligence or the City s failure to comply with applicable laws in the City s performance of this Agreement (except for any willful misconduct or negligence of the City and except for matters for which the FWDA has agreed to indemnify the City hereunder), and to defend for and on behalf of the FWDA, its officers, and employees, at its own expense, any such claim or cause of action, and, in the event of recovery thereon, to pay any judgment or lien arising therefrom, including any and all costs as a part thereof Insurance. The FWDA will maintain public liability insurance, as required by Tacoma Municipal Code (E), in an amount as specified by the City Manager and approved by the City Attorney sufficient to cover potential claims for bodily injury, death or disability, and for property damage that may arise from or be related to the FWDA s projects or activities in connection with a federal or public program. The City shall be named as an additional insured on such insurance policies Limitation of Liability. The Parties expressly understand and agree that any obligation or liability arising out of and/or incurred by the FWDA by reason of this Agreement, or the carrying out of any activity in connection therewith, shall be satisfied exclusively from the assets and credit of the FWDA, and no creditor or any other person or entity shall have any recourse to any of the assets, credit, or services of the City on account of any debts, obligations, or liabilities of the FWDA. No member of the Board of the FWDA and no other officer, employee or agent of the FWDA shall be individually and personally liable on any obligation assumed by the FWDA by this Agreement, nor shall any Board member or other officer, employee or agent be individually and personally liable on any obligation assumed by the City by this Agreement Funds for Political Activity. None of the funds, materials, property, or services provided directly or indirectly in this Agreement shall be used in the performance of this Agreement for any partisan political activity or to further the election or defeat of any candidate for public office. None of the funds provided under this Agreement shall be used for publicity or propaganda purposes designed to support or defeat legislation pending before the Congress /16/10

29 12. COMPLIANCE WITH LAWS 12.1 Certification Regarding Lobbying. This is a certification for contracts, grants, loans, and cooperative agreements. The FWDA, through its undersigned authority certifies, to the best of his or her knowledge and belief, that no federal appropriated funds have been paid, or will be paid, by or on behalf of the FWDA, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any federal contract, grant, loan, or cooperative agreement, the FWDA shall complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying, in accordance with its instructions. The FWDA shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into any transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure Interest of Members, Officers, or Employees of Grantee Members of Local Governing Body or Other Public Officials. No member, officer, or employee of the City, or its designees or agents, no member of the governing body of the locality in which the program is situated, and no other public official of such locality, or localities, including the Board, who exercises any functions or responsibilities with respect to the program during his or her tenure or for one year thereafter, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the program assisted under this Agreement, either for themselves or those with whom they have family or business ties Nondiscrimination. In all hiring or employment made possible by or resulting from this Agreement there will not be any discrimination against any employee or applicant for employment because of race, religion, color, national origin or ancestry, sex, gender identity, sexual orientation, age, marital status, familial status, or the presence of any sensory, mental or physical handicap. This requirement shall apply to, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. There shall be posted in conspicuous places available to employees and applicants for employment, notices to be provided by HUD setting forth provisions of this clause. All solicitations or advertisements for employees shall state that all qualified applicants will receive consideration for employment without regard to race, religion, color, national origin /16/10

30 or ancestry, sex, gender identity, sexual orientation, age, marital status, familial status, or the presence of any sensory, mental or physical handicap. Each participant in this Agreement will comply with all requirements imposed by or pursuant to regulations of HUD Title VI of the Civil Rights Act of 1964 and any subsequent acts Legal Base. The Parties, in carrying out and conducting the activities required hereunder and furnishing the necessary services, shall at all times carry out such services, and perform such activities in accordance with and pursuant to any and all laws of the United States of America, the State of Washington, and ordinances of the City, and any rules, regulations, or instructions of any agency or department thereof having or asserting authority or jurisdiction with reference to any service or activity carried on under and pursuant to this Agreement Compliance with Air and Water Acts. The Parties stipulate that any facility to be utilized in the performance of this Agreement, unless such Agreement is exempt under the Clean Air Act, as amended (42 U.S.C et seq., as amended by Pub. L ) Executive Order 11738, and regulations in implementation thereof (40 CFR, Par. 15), is not listed, on the date of Agreement execution, on the United States Environmental Protection Agency (EPA) list of Violating Facilities Pursuant to 40 CFR, The Parties agree to comply with all the requirements of Section 114 of the Clean Air Act, as amended, (42 U.S.C. 1857(c)-8) and Section 308 of the Federal Water Pollution Control Act, as amended, (33 U.S.C. 1318) (and any applicable Washington State statutes or regulations) relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in said Section 114 and Section 308, and all regulations and guidelines issued thereunder Conflict of Interest. Except for the use of funds to pay salaries and other related administration or personnel costs, no officer, employee, agent, or consultant of the Parties who exercises or has exercised any function or responsibility with respect to the programs or projects funded with funds under this Agreement, or who is in a position to participate in a decision-making process or gain inside information with regard to such activity, may obtain a financial interest or benefit from such activity either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. Any such beneficial or financial interest of any of the persons herein mentioned shall be immediately disclosed to the other Party. The Parties, its officers, employees, agents, and consultants shall be obligated to comply with all federal, state, and City conflict of interest laws and regulations, and they shall apply to all parties and beneficiaries under this Agreement. 13. DEFAULT AND TERMINATION 13.1 Events of Default by FWDA. The following shall be events of default by the FWDA hereunder; provided, that the FWDA shall not be responsible for and to the extent of any default arising from the City s failure to perform its obligation hereunder: (a) If, through any cause, the FWDA fails to fulfill in timely and proper manner its obligations under this Agreement, or /16/10

31 (b) If the FWDA materially violates any of the covenants, agreements or stipulations of this Agreement to be performed by the FWDA Cure Period; Termination for FWDA Default. Upon written notice by the City to the FWDA of the occurrence of an event of default, any and all of the City s obligations arising under and pursuant to this Agreement shall cease and terminate. Provided, however, that the FWDA shall be granted a reasonable period of time, not to exceed sixty (60) days, to remedy or correct any event of default. If such default cannot reasonably be cured in such 60-day period, then the FWDA shall have such additional time as is necessary to complete such cure so long as the FWDA is diligently pursuing such cure. If the FWDA does not cure an event of default prior to the expiration of the applicable cure period, the City may terminate the existence of the FWDA pursuant to RCW et seq. and the FWDA Charter Effect of Termination of FWDA. During the continuance of an event of default, the City may withhold any payments to the FWDA for the purpose of setoff until such time as the exact amount of damages due the City from the FWDA is determined. Upon termination of the FWDA, any property, including real property, owned by the FWDA shall be transferred without cost to the City, or to another entity designated by the City Events of Default by City. The following shall be events of default by the City hereunder: (a) (b) If, through any cause, the City fails to fulfill in timely and proper manner its obligations under this Agreement, or If the City materially violates any of the covenants, agreements or stipulations of this Agreement to be performed by the City. Upon written notice by the FWDA to the City of the occurrence of an event of default, to the extent that the funds available to the FWDA in the Agency Fund are insufficient for the performance of a particular obligation hereunder, the FWDA may suspend its performance of such obligation unless and until such default is cured by the City. The City Manager and the FWDA Executive Director shall meet to resolve any default in a mutually agreeable manner. Failing agreement between the City Manager and the FWDA Executive Director, they shall identify, and the Parties shall participate in good faith in, a binding alternative dispute resolution process to do so. 14. MISCELLANEOUS 14.1 Severability. If any provision of this Agreement is determined to be invalid or unenforceable, then that provision and the remainder of this Agreement shall continue in effect and be enforceable to the fullest extent permitted by law. It is the intention of the Parties that if any provision of this Agreement is capable of two constructions, one of which would render the provision void, and the other of which would render the provision valid, then the provision shall have the meaning that renders it valid /16/10

32 14.2 Integration and Amendment. This Agreement contains the entire integrated agreement between the Parties as to the matters covered herein, and supersedes any oral statements or representations or prior written matter not contained in this instrument as to the matters set forth herein. This Agreement shall not be modified except by a written document signed by both Parties Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Washington Limitation on Third Party Rights. Nothing in this Agreement expressed or implied is intended or shall be construed to give to any person other than the City and the FWDA any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provision herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the City and the FWDA Construction. Captions are solely for the convenience of the Parties and are not a part of this Agreement. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared it Counterparts. This Agreement may be executed in counterparts for the convenience of the Parties, and such counterparts shall together constitute one Agreement Force Majeure. Time periods for either party s performance under any provisions of this Agreement shall be extended for periods of time during which such performance is prevented due to circumstances beyond such party s reasonable control, including without limitations, strikes, embargoes, shortages of labor or materials, governmental regulations, acts of God, war or other strife. 15. DEFINITIONS As used herein, the following capitalized terms shall have the following meanings: Aquatic Lands Area means the area between the inner harbor line and the outer harbor line leased by the FWDA and the City under the DNR Lease. Agency Fund is the account maintained by the City for the benefit of the FWDA as provided in Section 9. Agreement means this Third Operating Agreement by and between the City and the FWDA dated as of, Board means the Board of Directors of the FWDA. CC&Rs means those certain covenants, conditions and restrictions recorded on November 15, 2001 under recording no , records of Pierce County, Washington, as the same may be amended from time to time /16/10

33 City Manager means the City Manager or his or her designee. City Property has the meaning given in Section Consent Decree has the meaning given in Section 1(K). Council means the City Council of the City. Development means the development or redevelopment of property by a developer selected pursuant to Section 4. Development Agreement means any purchase/sale, development or Long Term Lease agreement or agreements between FWDA and a developer specifying terms for conveyance and development of one or more specific sites. Development Uplands means the upland portions of City Property and FWDA Property on both the west and east sides of the Waterway owned in fee by the City or the FWDA, with said uplands portions lying landwards of the Esplanade. Properties on the east side of the Waterway are included only insofar as the Foss Plan guidelines apply to their development. Their inclusion herein is not intended to expand or alter the scope of any City environmental responsibility or other financial obligation with respect to the east side properties. DNR Lease means that certain Aquatic Lands Lease No between the State of Washington Department of Natural Resources as lessor and the FWDA and the City as co-tenants, as the same may be amended from time to time, as well as any future lease of Aquatic Lands with the FWDA and/or the City as tenant that may be entered into hereafter. Ecology means the Washington Department of Ecology. Esplanade means the public walkway and Waterway access along the west side of the Waterway between the Development Uplands and the Waterway, as the same may be extended, reconfigured or constructed from time to time. First Agreement means the First Operating Agreement (Predevelopment Activities) by and between the City and FWDA. Foss Plan means the Thea Foss Waterway Design and Development Plan, the City s framework for redeveloping the Waterway. The Foss Plan includes components that create a public access system, establish design and development guidelines, manage the shoreline, and address environmental quality, including, without limitation, the City s Master Program for Shoreline Development as currently enacted and as may be amended from time to time. The Foss Plan was last adopted and revised in FWDA-Managed Property shall have the meaning given in Section /16/10

34 FWDA Proceeds means gross revenues and gross proceeds derived by the FWDA from the sale, lease, or management of property, including option or development fees. FWDA Property shall have the meaning given in Section Long Term Lease means a lease or sublease for real property with a term of one (1) year or more that is not a Short Term Lease. Long Term Leases may not be for a term exceeding seventy-five (75) years, including renewal periods. Any Long Term Lease with term in excess of five (5) years must contain a provision for the adjustment of rent at no less than five (5) year intervals. Marina Areas means the property identified as Marina Areas on the Property Schedule. Master Redevelopment Strategy means the strategy prepared by the FWDA to govern its redevelopment activities and submitted to the City in February 1999, together with the any updates thereto as required hereunder. Museum of Glass Public Areas means the property identified on Exhibit C and consisting of the pedestrian bridge of glass; Water Forest; the view corridors on the Museum of Glass site and exterior stairs surrounding the cone of the Museum of Glass. The City has an easement from the Museum of Glass for purposes of providing public access to and maintenance of the Museum of Glass Public Areas. The Museum of Glass Public Areas do not include the Museum of Glass parking garage or associated ramps, improvements or equipment, which are owned by the City but not included in the City Property subject to this Agreement. Property means the real property owned by the FWDA or the City on or about the Waterway, including the Waterway Properties and certain parcels owned by the FWDA on the east side of the Waterway, as more particularly detailed on the Property Schedule. Property Schedule means the schedule of details concerning the property of the Parties attached hereto as Exhibit B. Second Agreement means the Second Operating Agreement Between the City of Tacoma and Foss Waterway Development Authority (Redevelopment Activities) by and between the City and FWDA. Shoreline Area means the area between the shore of the Waterway and the inner harbor line. Short Term Lease means (a) a lease or sublease with a term of one (1) year or less in duration (including month to month terms); or (b) any lease or sublease of or license or use agreement for space in a building, dock, pier or other improvements (including without limitation moorage, marina slips and berths) or for individual parking spaces, or lease for a portion of real property not intended to facilitate development or redevelopment thereof. Tacoma City Attorney means the City Attorney or his or her designee /16/10

35 Waterway means the Thea Foss Waterway, which consists of approximately 3.5 miles of continuous shoreline located adjacent to Commencement Bay and to the City s Central Business District ( CBD ). The western edge of the Waterway is an approximately 3.0 mile long waterfront area located along the eastern side of the Tacoma CBD. Waterway Properties means the Development Uplands and the Esplanade. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, all as of the day and year first above mentioned. CITY OF TACOMA, WASHINGTON By Eric A. Anderson, City Manager FOSS WATERWAY DEVELOPMENT AUTHORITY By Susan M. Dowie, Interim Executive Director Countersigned: Robert K. Biles, Director Finance Department Approved as to form and legality: Deputy City Attorney Attest: Doris Sorum, City Clerk Ryan Petty, Director Community and Economic Development Department /16/10

36 Debbie Dahlstrom, Risk Manager /16/10

37 EXHIBIT A (Map of FWDA Property, City Property and Marine Areas ) A-1 11/16/10

38 EXHIBIT B PROPERTY SCHEDULE Site name Head of Waterway Location on Foss Project Common Name/s of Property Westside Park South end triangle DOE Consent Decree Parcel Number (ownership) Yes (City) Project Partners Investment Level (Millions) Ownership of improvements Physical Status City TBD City Needs minor improvements & removal of over water structure. Procedural Status Developed; restrictive covenants with EPA & Private Utilities. Parcel 4 Westside Blue trailer site Yes (FWDA) City Metro Parks FWDA TBD City Park completed. IAC deed restrictions; Preparing for planning; Funding dependent. Waterway Properties Site Westside Foster Property Yes (FWDA) City Metro Parks FWDA $.5 on purchase N/A Park completed. Deed restrictions; Preparing for planning; Funding dependent. Site 1 Westside Mixed Use Dock Street Marina Westside Marina & support facility Site 1 Yes (FWDA) Dock Street Marina Site 6 Westside TBD Johnny s Seafood (DNR under Consent Decree with EPA) Available for redevelopment N/A $2.7 FWDA Yes (City) Pacific Seafood N/A Remediation & excavation for garage complete. Current parking use can be terminated with 90 days notice. FWDA Completed. Under 30 yr lease with FW Management LLC expires Dec 31, City Concrete block building & surface parking. Under lease. Expires Nov 30, Remediation with redevelopment. B-1 11/16/10

39 Site name 15 th Street float & 16 th Street pier Portion of site 7 Location on Foss Project Common Name/s of Property Westside Float at Johnny s Westside Mixeduse Site 8 Westside Mixeduse Site 9 Westside Mixeduse South of sidewalk on the Southside of Sea Scout bldg, Tacoma Steam Plant Sea Scouts, Tacoma Steam Plant Marina parking on site 9 DOE Consent Decree (DNR under Consent Decree with EPA) Parcel Number (ownership) Project Partners Investment Level (Millions) Ownership of improvements Physical TBD City 15 th needs refurbishing 16 th new construction. Yes (City) Yes (City) Yes (City) Available for redevelopment following remediation by TPU/City. Available for redevelopment following remediation by TPU/City. Available for redevelopment. TBD City Vacant land requiring remediation by TPU. City Sea Scouts occupy building under caretaker agreement Requires remediation by TPU. Surface parking. Procedural Under 30 yr lease with FW Management LLC - expires Dec 31, SCAP s to be completed prior to marketing. Required notice to DOE 30 days prior to property transfer. SCAP s to be completed prior to marketing. Required notice to DOE 30 days prior to property transfer. SCAP s to be completed prior to marketing. Lease w/fw Marine; can terminate with 180 days notice for redevelopment. Required notice to DOE 30 days prior to property transfer. B-2 11/16/10

40 Site name Municipal Dock Location on Foss Westside Project Mixeduse Site 10 Westside Mixeduse Site 11 Westside Mixeduse Balfour Dock Common Name/s of Property Muni Dock DOE Consent Decree Yes. No further action letter from DOE. Parcel Number (ownership) (City) Site 10 Yes (FWDA) Site 11 esplanade Westside Cultural Foss Seaport, Balfour Dock Building, Puget Sound Freight Building; Maritime Center Yes (FWDA) Yes (FWDA) Project Partners Available for redevelopment. Investment Level (Millions) Ownership of improvements Physical TBD TBD Concrete building slab on upland. Very substantial wharf failure. Foss Harbor TBD Foss Waterway Marine LLC Surface parking & marina storage sheds. Foss Harbor $3.0 FWDA Surface parking & marina storage sheds, office and boat lift. Foss Waterway Seaport $21.5 FWDA Wharf replacement, building stabilization & roof replacement completed. Procedural Under month-tomonth lease w/30 day termination. Future site for passenger ferry. Under month-tomonth lease to Foss Harbor. Under Development Agreement with site 11 for redevelopment by Foss Harbor. City has PSRC grant for phase II esplanade construction. Foss Harbor providing Army Corps permit & design/specifications for sites 10 & 11 esplanade. Phase I wharf in 2007 by FWDA; Other phases by Maritime Museum based on fund raising plan in MOU. Building receiving Federal historic designation. B-3 11/16/10

41 Site name Location on Foss Project Common Name/s of Property Pier A Westside Moorage Pier A; Pier at south end of Balfour Dock Bldg. Site 12 Westside Events; Parking, Mixeduse North Moorage 535 Dock Street Wharf Westside Events; Parking, Mixeduse Site 12 parking North Moorage Westside N/A Dock Bldg. Wharf DOE Consent Decree (DNR under Consent Decree with EPA) Parcel Number (ownership) N/A State Aquatic Lands Yes (FWDA) (DNR under Consent Decree with EPA) Yes (City) Project Partners Foss Waterway Seaport Available for redevelopment. Non-profit partner is Seaport. Private partner - TBD Seaport, Tall Ships & Port of Tacoma Investment Level (Millions) Ownership of improvements Physical $.15 FWDA 185 l.f. Pier installed. $3.0 FWDA Surface parking $3.5 FWDA 1,200 l.f. moorage N/A N/A City Decking needs minor repair. Significant numbers of pilings need replacement to improve & preserve structural integrity of wharf. Procedural Future phase for utility installation funding dependent. MOU linkage subject to review; highest and best use, mixed-use development required; project to be designed to work with functional needs of Foss Seaport. Planning process required for last 65 feet of float and potential seaplane moorage. B-4 11/16/10

42 Site name 535 Dock Street parcel Waterway Park Delin Docks Location on Foss Project Common Name/s of Property DOE Consent Decree Parcel Number (ownership) Westside Driveway Driveway Yes (FWDA) Eastside Park Jones; Berg; American Plating Eastside Marina & support facility City Marina or Delin Docks Yes. Under a PPA Yes DOE (DNR under Consent Decree with EPA) & 1761 (FWDA) (FWDA) & (DNR for state aquatic lands) Project Partners Investment Level (Millions) Ownership of improvements N/A N/A FWDA N/A Metro Parks City FWDA Foss Waterway Management LLC Physical $3.5 FWDA Site remediation of dangerous waste/soils required on a portion of the site. Conservation Futures deed restrictions. $2.3 FWDA & FW Mgnt. Under 30 year lease Procedural Month to month lease with Berg Scaffolding. Planning & funding needed for park development. Complete Note: Marinas under DNR Master Harbor Lease which requires compliance with EPA Consent Decree on State aquatic lands. B-5 11/16/10

43 EXHIBIT C MUSEUM OF GLASS PUBLIC AREAS C-1 11/16/10

44 C-2 11/16/10

45 C-3 11/16/10

46 C-4 11/16/10

47 C-5 11/16/10

48 EXHIBIT D HABITAT AND COMPLIANCE PROPERTIES D-1 11/16/10