The URL can be used to link to this page

Home My WebLink About11-039 Directing Staff to Defend against Port Lawsuit - Kah Tai Resolution 11-039 Page 1 of 5 RESOLUTION NO. 11-039 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND, WASHINGTON DIRECTING THE CITY MANAGER AND CITY ATTORNEY TO DEFEND THE CITY IN THE LAWSUIT FILED BY THE PORT AGAINST THE CITY, AND SUPPORT THE DETERMINATIONS MADE BY THE NATIONAL PARK SERVICE AND THE STATE RECREATION AND CONSERVATION OFFICE THAT ESTABLISH A 6(F) BOUNDARY FOR 78.5 ACRES AT KAH TAI, AND VIGOROUSLY RESIST ANY CLAIM BY THE PORT TO REQUIRE THE CITY TO PAY THE PORT DAMAGES. RECITALS: Lawsuit A. The Port filed a lawsuit in federal court (Case 3:11-cv-05848-RBL, Western District of Washington) on October 12, 2011 against the National Park Service (NPS), the state Recreation and Conservation Office (RCO) (successor to the Interagency Committee on Outdoor Recreation ("IAC")), and the City. This Resolution directs City Manager and City Attorney to respond to and defend the lawsuit by: (1) supporting the determinations made by the NPS and RCO that establish a 6(f)boundary for 78.5 acres at Kah Tai, and (2) resisting any claim by the Port to require the City to pay the Port damages. B. The Port's lawsuit asserts that 20 acres of property owned by the Port between Sims and Kah Tai lagoon is not subject to any restrictions from a"Project Contract"the City and Port signed in 1981 with the state (and related documents) in connection with a federal grant (administered by the state) to acquire property and develop a park at Kah Tai. C. The Port's lawsuit also asserts that the City is liable in damages to the Port because of a hold harmless and indemnification provision in a 1982 lease between the City and the Port that turned over the Port's 20 acres to the City for 30 years for City park use for rent of a$1/year, and the Port received the use of City rights of way in Boat Haven for the terin of the lease. The Port asserts that if its property is subject to any state or federal 6(0 restrictions, the restrictions arise out of the lease and park use, triggering a hold harmless and indemnification clause of the lease. According to the Port, this requires the City to pay for any damages incurred by the Port (namely, the loss of value of the property from the restrictions). Project Contract and US Land and Water Conservation Fund Act (LWCF) D. The 1981 "Project Contract" (Project No. 81-043A) signed by the Port and the City with the state set forth the terms for use of federal funds under the US Land and Water Conservation Fund Act (LWCF Act) to acquire (with matching funds provided by the state and contributions by the project sponsors) certain parcels in private ownership in the Kah Tai vicinity in order to develop a municipal park of 78.5 acres. Resolution 11-039 Page 2 of 5 E. The LWCF was established in 1965 to assist "in preserving, developing and assuring to all citizens of the United States of present and future generations such quality and quantity of outdoor recreation resources as may be available and are necessary and desirable for individual active participation. The program provides matching grants to States and through States to local units of government, for the acquisition and development of public outdoor recreation sites and facilities." US Dept. of Interior, Land and Water Conservation Fund State Assistance Program, Federal Financial Assistance Manual (2008, Preface, at 2) ("Manual") (italics added). F. "The State shall be responsible for insuring all projects receiving financial assistance pursuant to the Act are carried through to stages of completion acceptable to the NPS with reasonable promptness." Manual, at 7-1. G. Minimum requirements for grant close out include completion of a boundary map indicating the location of Fund-assisted facilities. Manual, at 7-12. H. "Property acquired or developed with LWCF assistance shall be retained and used for public outdoor recreation. Any property so acquired and/or developed shall not be wholly or partly converted to other than public outdoor recreation uses without the approval of the NPS pursuant to [the Act]. [T]hese guidelines apply to each area or facility for which LWCF assistance is obtained, regardless of the extent of participation of the program in the assisted area or facility and consistent with the contractual agreement between the NPS and the State." Manual, at 8-3. I. "Responsibility for compliance and enforcement of these provisions [of the LWCF Act] rests with the State for both the state and locally sponsored projects. The responsibilities cited herein are applicable to the area depicted or otherwise described on the 6(f) boundary snap and/or as described in other project documentation approved by the Department of the Interior. This mutually agreed to area normally exceeds that actually receiving LWCF assistance so to assure protection of a viable recreation entity. " Manual at 8-3. Project Documents. J. The state viewed the project as one which would meet two of Washington's Statewide Comprehensive Outdoor Recreation Plan (SCORP) goals: providing public access to shoreland and tidelands and retaining"wetlands as wildlife habitat areas." (Letter from state to Secretary of US Dept. of Interior dated December 5, 1980.) Documents the state submitted to the federal government reiterate SCORP goals, stating that the purpose of the grant funding would be to promote both public access and conservation, enabling the City to "plan and develop a municipal passive park around the lagoon." Federal Assistance.Application dated June 30, 1980. K. Consistent with the above, the LWCF project agreement between the state and the NPS describes the "project of approximately 78.5 acres... to plan and develop a municipal Resolution 11-039 Page 3 of 5 passive park around the Lagoon." LWCF Agreement between the state and NPS dated January 30, 1981. L. The 1981 Project Contract between the project sponsors (City and Port) and the state sets forth requirements and, among other things, requires the contracting party(the City and the Port) "to provide the [state] with necessary reports and/or documents as may be required by the [state] to meet the requirements to the Project Contract or [the LWCF Grant Manual]." Project Contract at 8. The grant manual requires property subject to the grant remain in public outdoor recreation in perpetuity(unless converted with NPS approval). M. The intent of the parties that the public property(including the Port's 20 acres) would be included in the project and accordingly be subject to grant restrictions is reflected in a number of documents, including a project boundary map (Sept. 20, 1980). As noted by Heather Ramsey, Program Manager of the NPS: "[T]his project is most definitely not an expired lease situation. The acquisition was accomplished through donation and transfer as a match to the acquisition dollar amount. It is all LWCF. I have attached a copy of our project file with what I believe to be the correct 6(f) map. Note in the lower right corner the `Project Boundary Sept. 20, 1980' mark with the initials RA after them." Ramsey email to RCO dated Sept. 28, 2009. (The snap is substantially similar to the map attached to this Resolution.) N. The intent of the parties that the public property(including the Port's 20 acres) would be included in the project and accordingly be subject to grant restrictions is reflected in statements of George Yount, the Port Manager of the Port of Port Townsend in 1980, in a February 8, 2011 letter to the RCO. "The Port Commissioners were a party to the [state] IAC grant. Mr. Glenn Abraham, the Port's attorney, advised Mr. Thompson [President of the Port Commission, who signed the 1981 Project Contract on behalf of the Port] on the appropriate documents the Port needed to co-sign. 1, too, had read the documents, particularly the assurances, and advised Mr. Thompson as well as the other commissioners." Mr. Yount's letter included a"map showing the full extent of[the] park from the 1981 NPS/IAC acquisition grant." The map is the same one referred to in the Heather Ramsey(Program Manager of the NPS) email in the preceding paragraph. Yount Letter dated February 8, 2011 to RCO. RCO Recommendation of 6(f) Protection for 78.5 Acres. O. By letter dated September 7, 2011, the state RCO determined "to recommend [to the NPS] 6(f) protection for approximately 78.5 acres" at Kah Tai. The 78.5 acres include the Port's 20 acres. A map of the 78.5 acres, which map is attached to the RCO letter, is attached to this Resolution. P. The RCO letter notes that the LWCF 6(f)boundaries are "based upon the entire project described in the grant agreement rather than merely the land acquired with LWCF monies." Resolution 11-039 Page 4 of 5 Q. The letter further notes that the "grant agreement describes the project as follows: This acquisition project of approximately 78.5 acres through donation, land transfer and purchase, is designed to consolidate under the ownership of the City the contiguous land along the perimeters of Kah Tai Lagoon, thereby enabling the City to plan and develop a municipal, passive park around the lagoon." R. The RCO letter states the RCO had thoroughly investigated the record to confirm the 78.5 acre area. S. The RCO Director's letter concludes: "In summary, it is my recommendation that the National Park Service establish a 6(f) boundary that encompasses approximately 78.5 acres for Kah Tai Park, as shown outlined on attachment A. ....This includes the property currently leased by the Port to the City." Attachment A—the boundary map - is attached to this Resolution. NPS Concurrence with RCO of 6(f) Protection for 78.5 Acres. T. In response to the RCO recommendation, the NPS by letter dated September 27, 2011 notes that "[I]t's evident that you and your staff[RCO director and staff] have carefully reviewed the materials at hand." U. The NPS letter further states: "The National Part Service concurs with your boundary determination [of the 78.5 acres] with one small exception" (and recommends that a small area north of 19th/Blaine not be included in the 6(f) area). Port Lawsuit in Response to RCO and NPS Determinations of 6(f) Protection for 78.5 Acres. V. In response to the RCO and NPS detenninations, the Port filed its suit in federal court on October 12, 2011. City Council Determination. W. The City Council determines that the City should strongly support the RCO and NPS detenninations of 6(f) protection for 78.5 acres, based on the "Project Contract"the City and Port signed in 1981 with the state (and related documents) in connection with the LWCF grant to acquire property and develop a park at Kah Tai of 78.5 acres, as reflected in the RCO September 7, 2011 letter and the NPS September 27, 2011 letter. X. The City Council further determines the City should vigorously defend against any claim by the Port to require the City to pay the Port damages. Resolution 11-039 Page 5 of 5 Y. This Resolution is timely because the City is required by mid-December to file an Answer to the Port lawsuit. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Port Townsend as follows: The City Manager and City Attorney are directed to: 1. Participate in the Port lawsuit by strongly supporting the determinations made by the NPS and RCO (reflected in the September 7, 2011 RCO letter and the September 27, 2011 NPS letter) that establish a 6(f) boundary for 78.5 acres at Kah Tai, and 2. Vigorously resist and defend any claim by the Port to require the City to pay the Port damages. ADOPTED by the City Council of the City of Port Townsend at a regular meeting thereof, held this day of (��a_er) 2011. Michelle Sandoval, Mayor Attest: Approved as to form: Pamela Kolacy, MMC John P. Watts City Clerk City Attorney v ,LIB alvHjvllV _ o 00 �L N X4 C � �+ g. LU 00 U ir a a � � o oaao PR .mv usnr uqg is is sue+ e� y O CN 00 G � O p O M V7 is UpLffi b0 R LL I fl I I 1 8 0� I _j