HomeMy WebLinkAboutAgenda Packet 08/14/2006
~ORTANGELES
WAS H I N G TON, U. S. A.
CITY COUNCIL SPECIAL MEETING
I.
CALL TO ORDER - SPECIAL MEETING:
II. ROLL CALL:
Members Present:
Mayor Rogers
Deputy Mayor Williams
Councilmember Braun
Councilmember Headrick
Councilmember Munro
Councilmember Petersen
Councilmember Wharton
Staff Present:
Manager Madsen
Attorney Bloor
Clerk Upton
G. Cutler
D. McKeen
T. Riepe
y. Ziomkowski
III. PLEDGE OF ALLEGIANCE:
N/A
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Led by:
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August 14_ 2006
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Other Staff Present:
FORTANGELES
WAS H I N G TON, U. S. A.
CITY COUNCIL SPECIAL MEETING
Attendance Roster
DATE OF MEETING: Au!!ust 14. 2006
LOCATION: City Council Chambers
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STATE OF WASHINGTON, CITY OF PORT ANGELES, AND
PORT OF PORT ANGELES
ECONOMIC DEVELOPMENT AGREEMENT
THIS AGREEMENT, is entered into this 14th day of August, 2006, by and between the
State of W ashington (State); the City of Port Angeles, a municipal corporation organized and
existing pursuant to RCW Title 35A (City); and the Port of Port Angeles, a special purpose
district of the State of Washington organized and existing pursuant to RCW Title 53 (port).
For and in consideration ofthe benefits to be derived herefrom and the payments to~be
made, the parties hereto recite, covenant, and agree as follows:
1. Premises of Aereement. State, Port and City are participants in a settlement of
pending and potential litigation, other components of which include a land use settlement
agreement of even date styled "Settlement Agreement Among The State Of Washington, Lower
Elwha Klallam Tribe; City Of Port Angeles, And Port Of Port Angeles" and an agreement
between the State and the Lower Elwha Klallam Tribe, a federally-recognized Indian Tribe
(Tribe) of even date. (The three agreements are collectively referred to herein as the Settlement).
Parties to the Settlement are the State, Port, City and Tribe. This agreement is made for good
and valuable consideration as a component of the Settlement and in furtherance thereof.
2. Payments to City and Port. When the legislature appropriates funds, the State
agrees to make payments to the City and to the Port as follows:
A. Benefit to the Citv. The State shall pay to the City the sum of Seven
Milljon Five Hundred Thousand D~l1ars ($7,500,000.00), to be applied by the City, in its
discretion, for the funding of public capital projects intended to enhance economic development,
such as but not limited to those projects identified in Exhibit 1.
B. Benefit to the Port. The State shall pay to the Port the sum of Seven
Million Five Hundred Thousand Dollars ($7,500,000.00), be applied by the Port, in its
discretion, for the funding of public capital projects intended to enhance economic development,
such as but not limited to those projects identified in Exhibit 2.
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C. Benefits for Business Develooment. Up .on written request .of the City .of
PQrt Angeles City Manager, the State shall alSQ cQnsider funding up tQ a tQtal .of Five Hundred
ThQusand DQllars ($500,000.00); exclusive .of the appropriatiQn prQcess, and cQnsistent-with
state law, directly tQ businesses seeking .or requiring financial incentives tQ IQcate .or remain in
Clallam CQunty, WashingtQn. PriQrity funding cQnsideratiQn will be given tQ firms wQrking with
the Clallam Business IncubatQr and/Qr th~ PQrt. Any such funding shall be disbursed .on
recQmmendatiQn .of the City Manager, subject tQ approval .of Department QfCQmmunity, Trade
and ECQnQmic DevelQpment (CTED), which apprQval shall nQt be unreasQnably withheld.
D. City Archaeolo2ist and Archaeolo2ical Analvsis Fundin2. The
GQvernQr's capital budget proPQsal fQr the 2007-09 biennium shall alsQ include the sum QfFQur
Hundred Eighty ThQusand ($480,000.00) tQ fund the develQpment .of an archaeQIQgical analysis
and the hiring .of a City archaeQIQgist, the specific details .of which are further identified in
SectiQn 8 .of the Settlement Agreement. Accordingly, if the 2007 Legislature dQes nQt
appropriate the funding, then the GQvernQr's supplemental capital budget request submitted fQr
the 2008 legislative sessiQn shall include funding fQr the archaeQIQgist and archaeQIQgical
analysis. If the 2008 Legislature dQes nQt appropriate the funding fQr SQme .or all the payments
described in this paragraph, then the State hereby cQmmits tQ include the unfunded PQrtiQns in
subsequent capital budget requests. The parties agree tQ cQQperate and actively participate in the
legislative prQcess tQ assist the State in .obtaining the necessary apprQpriatiQns.
3. Method and Source ofPavment.
As and in satisfactiQn .of the payment QbligatiQns described in SectiQn 2, the State
shall include in the GQvernQr's capital budget prQPQsal fQr the 2007-09 biennium the sum .of
Fifteen MilliQn DQllars ($15,000,000.00) to fund capital prQjects fQr the benefit .of-the PQrt and
City as indicated in SectiQn 2. The parties agree that such funding shall be used by the PQrt and
City fQr projects either identified in their respective capital budgets .or directly cQntained in the
state capital budget. These projects are anticipated tQ last .over a greater than twQ year periQd and
as such may need further carryQver appropriatiQns in future budgets.
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If the 2007 Legislature does not appropriate the funding for some or all the payments
described in Section 2 above, then the State hereby commits to include the unfunded portions in
subsequent capital budget requests.
The parties agree to cooperate and actively participate in the legislative process to assist
the State in obtaining the necessary appropriations.
4. PropertY Transfer to Port. In accordance with Section 2 of the Settlement
Agreement, "[t]he State will also convey to the Port fee title to all acreage north of the sheet pile
wall known as the "5 Line" to the former Graving Dock." As consideration for this transfer of
property the Port will assume responsibility for the State's coffer dam structure located on
aquatic lands which are part of this property transfer and relieve the State of the obligation to
remove the structure as required by an existing U.S. Army Corps of Engineers (COE) permit.
The State agrees to provide all reasonable assistance and take the lead in coordinating conversion
of the permit for the coffer dam structure from a temporary to a permanent permit. Once the
temporary permit has been made permanent, the State shall have no further obligation to the Port
with regard to the coffer dam structure. If the Port and the State are unsuccessful in converting
the temporary permit for the coffer dam to a permanent permit, the ~ort and the State agree to
negotiate in good faith the fair market value of the property transfer contemplated hereby and to
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resolve appropriate consideration for that transfer by negotiation, mediation, or binding
arbitration pursuant to the arbitration statutes of the State of Washington then in effect. The
State further agre~s to provide all reasonable assistance to the Port in the Port's efforts to assume
the rights/obligations in the COE permit associated with the provisions on dredging.
5. Non Bindin2 on Le2islature. The parties agree that nothing in this Agreement is
intended to bind any future legislatures.
S.TATE OF WASHINGTON
CITY OF PORT ANGELES
By:
Christine Gregoire, Governor
By:
Karen A. Rogers, Mayor
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PORT OF PORT ANGELES
By:
W.M. "Bill" Hannan
President, Port of Port Angeles Commission
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STATE OF WASHINGTON, CITY OF PORT ANGELES, AND
PORT OF PORT ANGELES.
ECONOMIC DEVELOPMENT AGREEMENT
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Exhibit 1
Examples of City Projects for Funding
Under the terms of Section 2 of this Agreement
August 14, 2006
City
Project ill Project Title
GG02-06 "A" Frame Removal - Ediz Hook
TR03-05 8th Street Bridge Rails & Lights
TR01-01 8th Street Bridge Replacement Design
CL07 -99 Airport Industrial Park Electrical Service
WWxx-xx Airport Industrial Park Waterline
WW02-00 Airport Industrial Sewer
WT01-06 Concrete Cylinder Pipe Replacement, Phase 2
WT02-05 Concrete Cylinder Pipe Replacement, Phase 3
WW03-06 CSO Storage Tank
WW01-06 Francis St. Sewer Main
GG01-05 Harbor Master Plan
PK01-03 International Waterfront Promenade
TR42-99 Lauridson Blvd Bridge Widening
TR21-99 Lauridson Blvd Reconstruction (Truck Route - "L")
CL 78-99 Light Operations Center
TR18-99 Lincoln Blvd Rechannelization and Signal
TR48-99 Olympic Peninsula international Gateway
WW02-05 Plant De-Watering Improvements
WW03-05 Plant Headwork's Improvements
WW02-04 Pump Station No.4 Replacement
WW04-06 Railroad Ave/Lincoln St. Gravity Sewer
GG03-06 Railroad Waterfront Pile Removal
WW04-04 Treatment Plant for CSO Flows
Total
Funding
Need
$375,000
$400,000
$650,000
$800,000
$1,500,000
$1,300,000
$1,800,000
$2,000,000
$4,100,000
$2,900,000
$500,000
$1,250,000
$3,150,000
$2,870,000
$1,000,000
$450,000
$1,200,000
$1,000,000
$375,000
$10,500,000
$3,300,000
$220,000
$14,000,000
$55,640,000
Notes
Waterfront Environmental Revitalization
Above WSDOT Authorization Level
. Redesign Costs
Port of PA Economic Project
Port of PA Economic Project
Port of PA Economic Project
Major water transmission line
Major water transmission line
Part of CSO Plan
Part of CSO Plan
Interagency
Downtown Waterfront Revitalization
Replacement - Alternate HWY 101 Truck Route
Left Turn off of Truck Route onto HWY 101
Downtown Revitalization
Fix Intersection
Projected Bond
Replaces Belt Press
Improve efficiency of Plant
Part of CSO Plan
Part of CSO Plan
Waterfront Environmental Revitalization
Alternate if tank not purchased
Funds appropriated by the State as part of this agreement shall be:
"Applied by the City, in its discretion, for the funding of public capital projects intended to enhance economic development, such as
but not limited to those projects" identified herein. See Section 2.A
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EXHIBIT 2
PORT OF PORT ANGELES
ECONOMIC DEVELOPMENT PROPOSALS
The Port's 2006 Marine Facilities Master Plan (MFMP) identified key
development opportunities for Port-owned waterfront property. The MFMP also
addressed changes on the waterfront resulting from Washington State
Department of Transportation's project on State property.
The MFMP recommended several key projects, including the following: .
I. COFFER DAM
The Coffer dam, on the north side of the former State site, is incomplete. The
Port proposes that the Coffer dam stay in its current location and the area north
of the dam be dredged per the existing Corps of Engineers permit to -20 feet
MLLW and that dredged materials be used on site.
II. BRIDGE CONSTRUCTION ACROSS TUMWATER CREEK
A key aspect of future efficient waterfront activity is for the Port to consolidate its
cargo handling activities in one location. The area currently used for log storage
and staging could become an area for future marine trades related activities
and/or other marine transportation uses. The existing bridge which connects this
area to other marine terminal properties must be replaced to tie the properties
together and accommodate heavy load capacities.
III. TERMINAL 1 FENDERING SYSTEM
A core activity of the Port's marine terminals is the repair and maintenance of
large oil tankers. This project will provide a new fendering system for the main
Terminal #1 berth.
IV. MULTI PURPOSE CARGO PIER and HANDLING EQUIPMENT
With the consolidation of log handling activities, a replacement cargo handling
facility is needed. This facility may handle inbound and outbound commodities,
and be serviced with cargo handling equipment.
V. EXPANSION OF SHIP REPAIR FACILITIES
The Port could expand Terminal # 3 to accommodate additional large tankers
and other vessels in order to grow this aspect of Port activity.
VI. PUBLIC ACCESS AMENITIES
The Port issued bonds to fund Port Angeles Boat Haven improvements, but cost
escalations may require additional funding.
EXHIBIT, 2-
SETTLEMENT AGREEMENT AMONG THE
STATE OF WASHINGTON,
LOWER ELWHA KLALLAM TRIBE,
CITY OF PORT ANGELES, AND
PORT OF PORT ANGELES
THIS SETTLEMENT AGREEMENT ("Agreement") is entered into effective
as of August 14,2006, by and among the State of Washington ("State"); the Lower
Elwha Klallam Tribe, a federally-recognized sovereign Indian tribe ("Tribe"); the City of
Port Angeles ("City"); and the Port of Port Angeles, a special purpose district of the State
of Washington organized and existing pursuant to RCW Title 53 ("Port") - hereinafter
singularly referred to as a "Party" or collectively referred to as the "Parties."
In consideration of the real property transactions described herein and the mutual
benefit to the Parties arising from the agreements and undertakings hereinafter set forth,
the Parties hereby recite, covenant, and agree as follows:
Section 1. Recital of Principles.
1.1. This Agreement is not intended to create new or supersede existing law; provide
any new causes of action under existing law; or imply that the Tribe's interests are
not protected under or derived from federal, state, local, tribal and/or common
law.
1.2. The Parties acknowledge, reference and intend to abide by existing and future
applicable law. See ~ 7 below.
1.3. That portion ofTse whit zen that sits astride the former Graving Dock site and is
delineated in Section 2 below should be protected and promoted in perpetuity as a
cemetery and place for cultural and historic preservation.
1.4. The circumstances and the consequences of the discovery ofTse whit zen are
unique and the events at the former Graving Dock site do not represent the normal
process, and do not set precedent for any other situation. The decisions and
actions of the State with regard to the Graving Dock and Tse whit zen are not
precedent, and do not represent desirable, required or appropriate procedure or
outcome.
1.5. The Parties agree that the property delineated at Section 3 below will be buffered
from uses on adjoining property. Buffering will be the responsibility of the Tribe
and will be inside the boundaries of that property.
1.6. The Parties intend that appropriate commercial and industrial use and
development will continue on property adjacent to the property delineated at
Sections 2 and 3 below, and all other property within the City limits, including
designated Urban Growth Areas.
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1.7.
1.8.
1.9.
1.10
Development, commercial activities or industrial operations on property within
the City limits that may possibly contain archaeological resources shall be
allowed so long as those archaeological resources are not displaced or disturbed
as a result of such activities or operations.
The Parties intend that if any phenomena of possible archaeological interest are
uncovered during any excavation subject to the City's Shoreline Master Program,
work shall immediately stop and the developer shall immediately notify the City
and Tribe, and the City shall notify the State Department of Archaeology and
Historic Preservation (DAHP). See ~ 10.7 below.
The Parties pledge to institute and maintain active communication with each other
for the purposes of assuring cooperation, coordination and collaboration with
regard to issues of archaeological, cultural and historic significance.
For all purposes of this Agreement, "archaeologist" means a trained, professional
archaeologist meeting federal qualifications.
1.11. These recitals are a substantive manifestation of the Parties' collective intent.
Section 2. Transfer to Port.
The State will assign its lease of or relinquish its interest in 2.5 acres connecting the
harborfront with the former Graving Dock site (the so-called "DNR leased land"), to the
Port, which will make contiguous Port-owned property to the "north" and "east" of the
site. The State will also convey to the Port fee title to all acreage north of the sheet pile
wall known as the "5 Line" to the former Graving Dock. The Tribe will dedicate about
50 feet of the property identified in Section 3 below as a buffer between the Port's
property and the historic shoreline. The State, Port and Tribe will cooperate with regard
to the preservation and use of the stormwater treatment ponds along the west boundary of
the property identified in Section 3 below, which could include the buffers conteinplated
by Section 4.1 below. See the area depicted in Exhibit A hereto. An easement allowing
ingress and egress to and from the harbor shall be granted by the State and/or the Port to
the Tribe for ceremonial use (see ~ 5 below). Said easement shall be on and across the
area depicted in Exhibit B hereto. The Tribe shall be entitled to use the easement four
times per year for up to a total of 12 days per year. The Tribe shall give at least two
weeks notice, whenever practicable, and no less than 48 hours notice, to the Port
Executive Director of intended use to facilitate rescheduling of Port uses in the easement
area depicted in Exhibit B. In special circumstances, the Tribe may request, on at least
two weeks written notice, use of the easement in excess of these limits, and the Port shall
consider such requests in good faith but may decline additional use if such use shall
significantly disrupt Port Terminal activities in the easement area.
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Section 3. Transfer to Tribe.
The State will convey to the Tribe fee title, subject to reversion, to property "south" of
the "5 Line," to a line 200 feet "north" of the "north" right of way line of Marine Drive,
with an easement allowing ingress and egress to and from Marine Drive and restrictions
that such property be used exclusively for cultural and historic preservation purposes.
See the area depicted in Exhibit A hereto. That State conveyance will be premised upon
findings from the Federal Highway Administration (FHW A) under 23 CFR part 710.403
and Section 106 of the National Historic Preservation Act that Tribal ownership and such
restricted Tribal use is reasonable mitigation for that portion ofTse whit zen that sits
astride the former Graving Dock site, and a reasonable expenditure of public funds for
that purpose. The Tribe, with written support from the State, City and Port, will seek to
accomplish the following, in decreasing order of priority: (1) conversion of all or part of
that property described in this Section from fee to trust under federal law, subject to the
same land use restrictions; (2) designation as a National Historic Site under the Historic
Sites Act of 1935 and other applicable federal laws; and (3) inclusion on the National
Register of Historic Places.
Section 4. Land Retained by State & Leased to Tribe.
The State will retain fee title to the property south of that line 200 feet "north" of the
"north" right of way line of Marine Drive, and lease that acreage to the Tribe subject to
cultural and historic preservation use restrictions that are effectuated through a consultative
process with the Tribe, City and Port. See the area depicted in Exhibit A hereto. That
State lease would also be premised on FHW A mitigation and permissible public
expenditure findings, as set forth in Section 3 to this Agreement.
Section 5. Land Use Restrictions.
The State and Tribe will expressly restrict use of the land to be owned or leased by the
Tribe as described in Sections 3 and 4 for cultural and historic preservation; which for
purposes of this Agreement means: site restoration; reburial of Klallam ancestors;
maintaining ancestral burial grounds; ceremonial uses; and developing a facility to
promote cultural heritage and create significant local economic benefit related to the uses
(so long as archaeology supports development); to be effectuated through a collaborative
process with the Tribe, City and Port. The Parties agree that the Tribe's use of the land
described in Sections 3 and 4 shall specifically preclude gaming activities, whether such
activities are subject to compacting requirements or not. The State, City and Port do not
foresee any public purpose reason for exercising public condemnation authority on the
property described in Section 3 (to the extent not acquired by the federal government in
trust for the Tribe) and Section 4. The State, City or Port will cooperate with the Tribe's
reasonable efforts to minimize any taxation of that property, including but not limited to
seeking tax exemptions and structuring of an entity or entities that will own and/or lease
the land. The City will provide utility services to and on that land, and the Tribe will pay
all necessary utility fees and assessments.
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5.1 The Tribe shall determine and install appropriate buffers for its cultural and
historic preservation uses, and those buffers shall be within the property described
in Section 3 to insulate the Tribe's uses from surrounding uses; provided that the
Tribe will not be required to remove any archaeological resources to create such
buffers.
5.2 The Tribe acknowledges that the property surrounding the property that will
be conveyed or leased to the Tribe under Sections 3 and 4 to this Agreement, will
be utilized for heavy industrial and maritime use creating noise, dust, vibration
and other similar impacts typical of such uses. The Tribe accepts the property
delineated in those Sections 3 and 4 with knowledge of that surrounding land use
activity and agrees to not take any action opposing such use as long as such use
complies with existing and future applicable law and this Agreement.
5.3 Within sixty (60) days of execution of this Agreement, the State, at its own
. expense, shall prepare legal descriptions of the property and easement described
above in Sections 2, 3 and 4, and depicted in Exhibits A and B. The S_tate shall
deliver the legal descriptions to the Port and Tribe for review. Any review costs
shall be borne by the Port and Tribe. Thereafter, under the terms of separate but
related agreements between the State, City and Port, and the State and Tribe,
respectively (see S 15 below), the State shall convey title or lease that property to
the Port and Tribe, respectively, as contemplated by Sections 2, 3 and 4.
Section 6. Land Use Regulations.
The State, City and Port will initiate the process to modify, as needed, their respective
current land use designations, policies and regulations that presently apply to the acreage
that will be conveyed and leased to the Tribe for cultural and historic preservation to
remove any conflicts with the intended uses of these properties, as envisioned in Section
12 below; and agree to support proposed changes that effectuate this Section and Section
12.
Section 7. Applicable Law.
The Parties shall abide by and do Aot intend to alter existing and future applicable law
relating to discovery and treatment of historic properties, including artifacts, features and
human remains, as applied by the terms of this Agreement to property within the
jurisdiction ofthe City. See S 1.2 above. The Parties acknowledge the existence of tribal
law, and that certain property and other rights derived from tribal law are recognized and'
enforced by state and federal courts. This Agreement does not intend to alter existing
law. The State, City and Port reserve the right to assert that tribal law does not apply.
Section 8. Archaeological Analysis.
8.1 The City shall hire as its employee an archaeologist for a five year period.
The State shall bear all the costs for employing the City Archaeologist, as well .
as appropriate consultants, and the cost of the archaeological analysis
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contemplated by this Section, subject to the provisions of subsection 8.1.1
below.
8.1.1 The Parties acknowledge that the State, through this Agreement,
cannot budget at one time five years of funding for the City Archaeologist,
consultants, and analysis contemplated in this Section. Therefore, the Parties
agree that the City will develop budgets for the City Archaeologist, )
consultants, and analysis, in coordination with the State's biennial budget
cycle. The City will develop each budget and submit it to the State in
adequate time for the State to include the funding in the regular or
supplemental budget cycle, as appropriate. The State covenants that it will
initiate and take all reasonable means to support and include in the State's
budget authorization to pay to the City sufficient funds for the archaeologist,
consultants, and analysis contemplated in this Section.
8.1.2 The Tribe, State, and Port shall be consulted during the City's
interview process for the City Archaeologist position and their representatives
shall be allowed to participate in candidate interviews, but the final decision
about whom should fill that position shall rest solely with the City.
8.2 On land identified in Section 8.9 below, the City Archaeologist, in
consultation with the Tribe, State, Port and other interested parties, will
conduct, administer and manage an archaeological analysis designed to
determine the potential locations of archaeological resources. Subject to
available state funding, the predictive analysis will include one or more of the
following methods: ethnographic studies, statistically-based archaeological
predictive modeling, geomorphological studies, remote sensing methods,
forensic canines, and/or other scientifically appropriate methods. Based on
these methods, the City Archaeologist, in consultation with the Parties, will
establish the appropriate archaeological fielding testing methods, which will
include pedestrian surveys, subsurface test units, backhoe trenching, augering,
coring, geoslicing, and/or other scientifically appropriate methods appropriate
to the environmental conditions of the field inventory area and probability
designation.
8.3 The analysis shall be conducted expeditiously and in good faith and
completed as soon as possible, but not later than two years after State funding
or City hiring of the City Archaeologist, whichever is later. Permitting
processes will proceed in the normal course of business and under existing
and future applicable law while the analysis is conducted. Mitigation plans
will be subject to the protocols set forth in Sections 9 and 10. Completion of
the analysis is not a prerequisite to permit processing.
8.4 As part of the analysis, the Tribe agrees to cooperate with the State, City
and Port for purposes of allowing them access to the Tribal repository of
history and information, which would aid in the thoroughness and accuracy of
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the analysis. The State, City and Port agree to consult with the Tribe
regarding the design, implementation and results of the analysis, including
data quality and data analysis.
8.5 The analysis is intended to help reduce uncertainty, which will promote
predictable development by informing governmental permitting personnel
how to devise appropriate mitigation in accordance with this Agreement.
8.6 The end product of the archaeological analysis will be detailed maps
designating areas as having high, medium or low probability for the presence
of archaeological resources. Buffers and other protections for identified
archaeological resources will be determined by the City Archaeologist, in
consultation with all the Parties, based on the nature and size of the resource,
the environmental conditions, nature and extent of the proposed development
project,\confidence in the delineation of the site boundaries, and any other
factors the City Archaeologist deems necessary to provide reasonable
protection to the archaeological resources. Section 11 below discusses the
confidential treatment of these reports, maps and other documents.
8.7 These maps will also depict recorded archaeological sites, districts,
traditional cultural properties and isolated features, as well as sacred areas, to
aid in predictability and appropriate mitigation as development occurs. This
information will be considered confidential and exempt from public disclosure
by state and local government under RCW 27.53.070 and RCW 42.56, except
as necessary to carry out government activities to manage, mitigate, or protect
these archaeological resources, and consistent with Section 11 below.
8.8 The City and Tribe will continually update these maps as new information
is discovered, and will provide this information to the Tribe and DAHP.
8.9 The archaeological analysis contemplated herein shall encompass the
following areas and the uplands contiguous to those areas: all ofEdiz Hook,
and along the shoreline from the base ofEdiz Hook to the Rayonier mill site
from the toe of the bluffline as it currently exists to the existing shoreline.
8.10 The Parties recognize that the site of the former Rayonier pulp mill is
subject to a Superfund deferral agreement and a clean-up process under
authority of the State's Model Toxics Control Act. For that reason, operations
and activities on that property are already subject to strict review and
regulation and are subject to different laws and considerations than other
properties on the Port Angeles waterfront. For these reasons, theParties agree
that no term or condition of this Agreement shall apply to the Rayonier
property. If the federal Environmental Protection Agency ever (1) removes
that site from the Comprehensive Environmental Response, Compensation,
and Liability Information System (CERCLIS), or (2) revokes deferral of the
National Priorities List (NPL) listing process or otherwise reasserts authority
over the investigation and/or cleanup of the Rayonier site, then Rayonier (or
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its successor), the Tribe and any other party with a legally recognizable
interest in that site may elect by written agreement to apply the terms and
conditions of this Agreement to the site. Additionally, those parties may elect
by written agreement to apply the terms and conditions of this Agreement to
that site at any time of their choosing. However, nothing in this Agreement
shall be read to compel those parties to effect such an agreement. The
exclusion of Rayonier property, provided above, is not intended to restrict or
abridge the jurisdiction of the City as permitting authority over that property.
Section 9. Project Permitting
9.1 The Port and City will prepare and implement permitting and planning
procedures consistent with this Agreement.
9.2 The Port and City will provide training on these procedures to all City and
Port personnel who are involved with approving or conducting ground-
disturbing work, and the State, City, Port and Tribe will collaborate to
produce educational materials for the public, landowners, and developers
about the sensitive nature and protection of archaeological resources.
9.3 The City, Port and State permitting staff will promptly consult the
analysis maps described in Section 8 when they are contacted by landowners
or devel~pers with potential ground-disturbing projects, whether within or
outside of Shoreline Management Act jurisdiction, and will use the maps to
devise appropriate mitigation.
9.3 .1. For purposes of this Agreement, "ground-disturbing" means
operations, such as digging, trenching, boring, excavating, and drilling, that
cause physical penetration of the surface of the ground by tools or equipment.
9.4 The State, City, Port and Tribe will identify or establish inter-
govemmenta1liaison positions for purposes of providing the verbal and
written notice envisioned in this Agreement.
9.5 The Tribe will designate a person to serve as the agent for the Tribe in all
matters relating to discoveries of archaeological resources. The City, Port and
State permitting staff will provide oral and written notification to Tribal and
DAHP contact persons as early in the process as possible, to inform the Tribe
and DAHP when ground-disturbing projects are proposed within or near .
culturally sensitive areas. The names and phone numbers of the Tribal, City,
Port and DAHP contact persons contemplated by this Section and Section
10.6 below are set forth in Exhibit C hereto, which shall be annually updated
by the Parties' inter-governmental liaisons upon the anniversary of the
effective date of this Agreement.
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9.6 Mitigation.
9.6.1 As allowed by law and as provided herein, the Parties will
mitigate development-related impacts to archaeological resources
consistent with this Agreement and the order of preference for
mitigation measures set forth in the State Environmental Policy Act
(SEP A) and Shoreline Management Act (SMA), including those
statutes' respective regulations, and other applicable law.
9.6.2 Under appropriate circumstances, the local government may
deny a pennit or other approval. .
9.6.3 If ground-disturbing work is to occur in a culturally sensitive
area of interest to the Tribe, to be determined through the
archaeological"linalysis contemplated by Section 8 (see ~ 8.4), the
Tribe shall be consulted with regard to a proposed mitigation plan
before work commences, with the goal being development of a
mitigation plan acceptable to all parties. By way of example, the
agreed-upon mitigation plan could dictate that an on-site
archaeologist and/or Tribal members or staff persons may monitor
the work, and that the City, Port or State will take all reasonable
means to ensure the Tribal representatives access to the site.
Section 10. Disposition of Discovered Artifacts and Human Remains
10.1 UnderRCW 27.53 and subject to Section 10.3 below, archaeological
resources may not be disturbed without a permit from DAHP. The City and
Port will work with the Tribe and DAHP to ensure that cultural artifacts
removed from government-owned lands are provided to the Tribe for
appropriate curation or use. In addition, the City and Port will work with the
Tribe, DAHP and landowners to encourage the transfer of cultural artifacts
removed from private lands to the Tribe.
10.2 Based upon the Tribe's interests in human remains and funerary objects
that are affiliated with the Tribe, if testing reveals human remains of five or
less associated individuals (defined in Section 10.4 below) and if a different
arrangement is not agreed to by the landowner, the human remains and
associated funerary objects will be reinterred on the property described in
Section 3 under the Tribe's supervision. Development may proceed within
the area from which the remains and funerary objects were discovered.
10.3 Based upon the Tribe's interests in human remains and funerary objects
that are affiliated with the Tribe, if testing reveals human remains of six or
more associated individuals (defin~d in Section 10.4 below), the Parties will
follow existing and future applicable law to determine, on a case-by-case basis
and subject to such law, the disposition of the remains and associated funerary
- 8-
objects. This Section is not intended to create any new or additional right of
action for any party. See ~ 7 above.
10.4 For purposes of Sections 10.2 and 10.3, "associated individuals" shall be
determined collectively by the Parties' archaeologists or designees, applying
generally accepted archaeological methods, with the goal being a
determination that is acceptable to all parties. In the event the archaeologists
or designees collectively cannot agree within fourteen (14) days of their and
the Parties' inspection of the site under Section 10.6 below, the City
Archaeologist shall make the determination and the Parties shall defer to that
determination unless inconsistent with generally accepted archaeological
methods.
10.5 To the extent allowed by law, the applicable terms of this Agreement
will be incorporated into federal, State and local permits and other approvals.
10.6 As a local permit condition, the permittee will immediately notify the
Tribal Chair and specified Tribal staff by both letter and telephone (work and
cellular), as well as the City, when new artifacts, features or human remains
are discovered. In turn, the City will immediately notify DAHP, as required
in RCW 27.44 and 27.53.
10.7 If archaeological resources are discovered, no further ground-disturbing
activity will occur and no materials will be removed in an area around the
discovery to be determined collectively by the Parties' archaeologists or
designees, applying generally accepted archaeological methods with the goal
being a determination that is acceptable to all parties, until such time as the
requirements of subsections (1) through (5) below are satisfied; provided that
in the event those archaeologists or designees cannot collectively agree on that
initial "stop work" area within fourteen (14) days of the discovery, the City
Archaeologist shall make the determination, and the Parties shall defer to that
determination unless inconsistent with generally accepted archaeological
methods.'
(1) The notices contemplated by Section 10.6 are given;
(2) They and the Parties inspect the site along with the affected landowner;
(3) They determine the full extent ofthe culturally sensitive area affected
by the project;
(4) An acceptable mitigation plan is developed and implemented in
accordance with Section 10 and consistent with Sections 10.1 above regarding
disposition of artifacts, and 10.2 and 10.3 regarding treatment of human
remains, and applicable law; and
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1--
(5) A pennit is obtained from DAHP, as required in RCW 27.44 and
RCW 27.53, which may impose additional or different conditions on ground-
disturbing activities.
If the Parties' archaeologists or designees collectively cannot agree on the
matters in subsections (3) and/or (4), within fourteen (14) days of their and
Parties' inspection of the site under subsection (2), detenninations on such
matters shall be made by. the City Archaeologist applying generally accepted
archaeological methods. The Parties shall defer to such determinations unless
inconsistent with generally accepted archaeological methods.
With regard to subsection (5), any disturbance, excavation, or removal of
archaeological resources or sites must comply with the conditions imposed in
such permit. Alternatively, if ground-disturbing activities occur as part of a
federal undertaking, as that term is defined in Section 301(7) of the National
Historic Preservation Act (NHPA), 16 U.S.C. ~ 470w(7), any disturbance,
excavation, or removal of archaeological resources or sites must comply with
the requirements of Section 106 of the NHPA, 16 V.S.C. ~ 470f.
The provisions of Section 9 and 10 of this Agreement shall be applied in those
areas which are subject to archaeological analysis pursuant to Section 8.9
hereof, and shall also be utilized as guidelines for permitting and construction
activity in other areas of the City of Port Angeles and its Urban Growth Areas
as now established or hereafter defined.
Section 11. Confidentiality
11.1 To the extent authorized by law, those portions of all reports, maps, or
other information identifying the location of archaeological.sites, objects, or
human remains will be treated as confidential and exempt from public
disclosure, to discourage looting and depradation.
11.2 To the extent authorized by law, those portions of the reports, maps, or
other information identifying the location of archaeological sites or objects or
human remains will be shared with state and local governmental permitting
personnel. These portions of the reports, maps, or other information will be
shared with landowners and their consultants only as absolutely necessary and
with confidentiality procedures firmly in place, including, but not limited to:
(1) maintaining a registry of names, addresses, and telephone numbers of
those who view the information; (2) restricting copying; (3) notifying the
Tribe if copies are requested or released; and (4) requiring that all copies are
eventually returned or destroyed. These restrictions will be incorporated into
all federal, State, and local permits and other approvals. Information
identifying the location of archaeological sites or objects or human remains
located on a particular parcel may be shared with the owner of that parcel
during permitting activities or as otherwise required under law.
-10-
11.3 The State, City and Port may share with the public the non-confidential
and non-exempt portions of the reports, maps, or other information for
purposes of: (1) educating the public as to the sensitive nature of the cultural
resources and the Tribe's cultural affiliation with the cultural resources; (2)
encouraging repatriation (as described in Section to); and (3) avoiding similar
damage to cultural resources in the future; so long as the sharing of such
information does not reveal the specific location of artifacts, human remains,
features and sites, consistent with RCW 42.56.
~
Section 12.. Future Planning
As necessary, the City will initiate and take all reasonable means to support
the process to amend the Shoreline Master Program, and the City, Port and
State will amend any plans or authorities, to reflect and implement this
Agreement, and to provide notification to the public, landowners, and
developers.
Section 13. State and Federal Designations
Under Sections 10.1 and 10.3 but not 10.2, the Tribe may seek the listing of
historic properties under federal and state law for all qualifying properties, and
take other action necessary to protect such properties.
Section 14. Dispute Resolution
14.1 The Parties agree that they shall attempt to resolve any dispute arising
under this Agreement according to the following sequence of dispute
resolution measures, until the dispute is finally resolved: (1) government-to-
government consultation between the State, City, Port and Tribe through their
inter-governmental liaisons designated pursuant to Section 9.4 above; (2)
government-to-government consultation between the City Mayor, President of
the Port Commission, Tribal Council Chair and designated representative of
the State; and (3) mediation between the State, City, Port and Tribe facilitated
by John Bickerman or some other mediator to be mutually agreed upon by the
Parties.
14.2 If the measures in Section 14.1 do not result in final resolution of the
dispute, any party may take such legal action as they deem appropriate. The
Thurston County Superior Court will retain jurisdiction to enforce the terms of
this Agreement. In the event any Party is required by the Thurston County
Superior Court to file a new cause of action to enforce the terms of this
Agreement, the Parties hereby waive sovereign immunity and consent to be
sued to the extent necessary for such an action to proceed in the Thurston
County Superior Court.
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d
I
Section 15. Other Agreements
The agreement reached betweeg the State and Tribe, and agreement reached
between the State, City and Port, are each incorporated by reference as if fully
set forth herein.
STATE OF WASHINGTON
By:
Christine O. Gregoire
Its Governor
LOWER EL WHA KLALLAM TRIBE
By:
Frances G. Charles
Its Tribal Chairperson
CITY OF PORT ANGELES
By:
Karen A. Rogers
Its Mayor
PORT OF PORT ANGELES.
By:
W.M. "Bill" Hannan
President, Port of Port Angeles Commission
-12-
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BEARINGS AND DISTANCES ARE INFORMAnONAl
ONLY. SEE THE PORT ANGELES CRAYING DOCK
SITE SUNDRY SITE PLAN FOR MORE
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EXHIBIT C
CONTACT PERSONS
LOWER EL WHA KLALLAM TRlBE
Frances Charles
Chairperson
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone: (360) 452-8471
Cellular: (360) 460-2808
Fax: (360) 452-3428
Email: fgcharles@elwhansn.us
Arlene Wheeler
Cultural Resources Liaison
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone (360) 452-8471 Ext. 102
Cellular: (360) 460-5842
Fax: (360) 452-3428
Email: arlenew@elwha.nsn.us
Carmen Charles-Watson
Assistant to Cultural Resources Liaison
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone: (360) 452-8471
Fax: (360) 452-3428
Email: carmenc@elwha.nsn.us
CITY OF PORT ANGELES
City Manager
Mark Madsen
321 E. 5th
Port Angeles, W A 98362
Phone: (360) 417-4500
Email: mmadsen@citvofpa.us
City Archaeologist
(position yet to be filled)
321 E. 5th
Port Angeles, W A 98362
Phone: (360) 417-4500
PORT OF PORT ANGELES
W. M. "Bill" Hannan
Commission President
Port of Port Angeles
338 - West First Street
P.O. Box 1350
Port Angeles, W A 98362
Phone: (360) 457-8527
Fax: (360) 417-3427
Email: billh@TlOrtofoa.com
Robert E. McChesney
Executive Director
Port of Port Angeles
338 - West First Street
P;O. Box 1350
Port Angeles, W A 98362
Phone: (360) 457-8527
Fax: (360) 417-3427
Email: bobm@portofpacom
WASHINGTON STATE
Allyson Brooks, Ph.D.
State Historic Preservation Officer
Department of Archaeology and Historic Preservation
1063 S. Capitol Way, Suite 106
P.O. Box 48343
Olympia, W A 98502
Phone (360) 586-3065
Fax (360) 586-3067
Email: Allyson.Brooks@DAHP.WA.GOV
Rob Whitlam
State Archaeologist
Departnient of Archaeology and Historic Preservation
1063 S. Capitol Way, Suite 106
P".O. Box 48343
Olympia, W A 98502
Phone (360) 586-3080
Fax (360) 586-3067
Email: Rob.Wbitlam@DAHP.WA.GOV
Randy Hain
Regional Administrator
Washington State Department of Transportation
5720 Capitol Boulevard South
Twnwater, W A 98501
Phone: 360-357-2605
Fax: 360-357-2601
Email: HainR@wsdot.wa.gov