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HomeMy WebLinkAboutYakima County - Stewardship and Maintenance -Wide Hollow Creekandowner Agreement Stewardship and Maintenance g 0c "";Th N���� _ ~~ �s� Shaw d Wide Hollow Creek Flood[-oon Wide Hollovv Creek This Agreement, dated and effective beginning on the day of 20 , is made and entered into by and between the Landowner and Grantee identified herein. The parties intend that all terms of this Agreement shall remain in effect for a period of ten years from the date of pject completion, and the agreement shall be binding on all successors in interest during this time. Name Landowner'-'-- Street Address: City, State, Zip Code: Project Sponsor (Grantee): Grantee Name: Street Address: City, State, Zip Code: City of Yakima - West Valley Park 129 N. 2nd Street Yakima WA, 98901 Yakima County 128 N 2nd Street, Fourth Floor Courthouse Yakima Washington 98901 1. Purpose of Landowner Agreernent The purpose of this Agreement is to identify and confirm the terms, conditions, and obligations agreed upon between the Grantee, who is undertaking a pject (Pject funded by the Washington Department of Ecology (Ecology), and the Landowner, who owns the property upon which the Project will take place. The Grantee and Landowner mutually agree to participate in conducting the water quality improvement activities described below on lands owned by Landowner in WRIA (Water Resource InventoryArea) 37, Section 29, Township 18S, S, Range 13 E, Yakima County, State of Washington, Tax Parcels No. #18132933403, #18132933005, and # 18132934009. The activities are also described in, and in accordance with, Ecology's Project Agreement No. VV{}C-20l7- YaCpPSR-0OO13dated 01/17/2U17'and the Landowner Agreement for Construction and Excavation Activities for Shaw and Wide Hollow Flood Control, into which this agreement, once signed by both parties, becomes fully incorporated herein as if part of this Agreement. Funding provided by: Ecology, Federal Emergency Management Agency, Yakima County Flood Control District. ||. The Grantee Agrees to: 1. Work directly with the Landowner to develop agreed upon Project elements and scope, e Z. Be responsible for the design and installation of all elements of the p'ect and the conduct and activities of its staff, agents, and representatives. 3. Provide the Landowner with a timeline of estimated dates of all Project activities, including start and completion dates, and keep the Landowner informed of progress. 4. Conduct the project -related activities escribed iDescription, s appended to this agreement. 5. Leave all remaining portions of the property in as near pre -project condition as reasonable, or as otherwise agreed upon in writing with the Landowner. 6. Inform Landowner of project completion and the dates for this Agreement. 7. Indemnify and hold harmless Landowner from (1) any Ilability associated from injuries or damages occurring to workers or contractors implementing the pject and (2) any claims for damages or imposition of penalties by third parties associated with Grantee's obligations or actions taken under this Agreement. The Grantee shall protect, defend, exonerate, indemnify, and hold harmless the Landowner, its elected and appointed officials, agents, officers, volunteers, and employees from and against all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits and other proceedings, causes of action, and all judgments, awards, damages, costs and expenses, including, but not limited to, attorneys' fees, disbursements and court costs, arising out of, relating to, or connected with the activities and purpose related to this Agreement. 8. Identify the specific maintenance and monitoring activities that will be provided by the Grantee in Attachment A (Include frequency and duration). 9. Acquire all necessary permits for construction, or any other permissions needed for any portion of the project located on the landowner's property. 10. Protect all landowner improvements. Construction disturbances such as equipment impacts on the owner's property created in the construction phase (see Landowner Agreement for Construction and Excavation Activities for Shaw and Wide Hollow Creek Flood Control Project) will be mitigated to the owner's satisfaction. 11. Provide training to the landowner for agreed upon stewardship and maintenance activities. 12. Maintain insurance, warrant. and indemnify as follows: 2IPage A. The County warrants and covenants that: (a) the proposed work on the Landowner's property is pursuant to an established program of flood improvement and is intended to benefit the public and the county citizens; (b) has the power and the right to enter into this agreement and that County, upon the faithful performance of all of the terms, conditions, and obligations of County contained in this Agreement, shall leave the premises in as good a condition as possible and as set forth in this Agreement throughout the Term against any adverse mechanics or material men's liens or claims or any party claiming pursuant to the work or any other damage attributable to the work performed by the County and its agents; (c) the Property Owner shall have full use and occupancy of the subject property throughout the period of construction. B. County is self-insuring and shall indemnify and defend the Property Owner against claims for personal injury or death and property damage arising out of the actions of County, its contractors, employees and agents on or around the Property. The County shall be responsible only for losses attributable to the negligence or intentional conduct of County, its elected or appointed officers, officials, employees, agents, contractors or sub -contractors. C. County shall maintain worker's compensation insurance, as required by state and federal statute, for its employees engaged in work on the Premises. If such work is contracted, County shall require that all contractors provide worker's compensation insurance for all their employees engaged in work on the Premises. If any class of employees engaged in work on the Premises is not covered under workers' compensation insurance, County shall cause each contractor to maintain, employer's liability insurance for limits of at least $1,000'0OOfor each employee for disease oraccident. D. County hereby indemnifies and holds the Landowner and its tenants and those with legal right to enter upon the premises harmless and will defend against any andaUdernands,dairns,suits,hsks|iabi|itiesandob|igati'nsofanynatureand any and all costs or expenses of any nature including, but not limited to, all losses, damages, judgments and reasonable attorney's fees arising from injuryto or death of any and all persons and/or all property damage of any kind, whether tangible or intangible, including oss of use, in connection with or related to the construction or excavation performed under this agreement, except only those losses resulting solely from the negligence or willful misconduct of the Property Owner, its employees or tenants or guests and agents. County's obligation hereunder is without prejudice to County's rights to assert all defenses County may have against any claimant and the right to seek contribution from any other person or entity, which may be responsible for all or any portion of the alleged claim. E. The Property Owner shall notify County of any claim as to which County has the obligation to indemnify the Property Owner under this Agreement and County shall, at its sole cost and expense, defend the Property Owner against such claim. County's defense shall include, but not be Iimited to, appearing and defending against any lawsuit and paying any amounts required to be paid pursuant to any judgment or settlement. County hereby further indemnifies and holds the Property Owner and its agents and gueststenants and visitors harmiess from and against any and all demands, claims, suits, risks, liabilities, and obligations of any nature and any and all costs or expenses of any nature, including but not limited to, all losses, damages, judgmentsand attorney's fees arising from any breach or default in the performance of any obligation to be performed by ---County or any assiCounty er the terms of this Agreement. F. Notwithstanding the above, if a court determines that this Agreement 15 subject to the terms of RCW 424.1 15, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of County and its agents and subcontractors, its commissioners, officers, employees or agents, County's liability under this Paragraph shall be limited to the extent of County's negligence and that of its agents, empioyees, contractors, and assignees, including their proportionai share of costs, reasonable attorney's fees, and expenses incurred in connection with any claim, action, or proceeding brought with respect to such injury or damage. ||[ General Terms� A. Attorneys' Fees: In the event that either party shail be required to bring any action to enforce any of the provisions of this Agreement, or shaH be required to defend any action brought by the other party with respect to this Agreement, and in the further event that one party shall prevail in such action, the losing party shall, in addition to all other payments required therein, pay all of the prevailing party's actual costs in connection with such action, including such sums as the court or courts may adjudge reasonable as attorneys' fees in the trial court and in any appellate courts. B. Notices: Any notice required by this Agreement, or by lawshall be given by registered or certified mail, expresses or overnight mail or other comparable service, or delivered by hand. If notice is given by registered or certified mali, such notice shall be deemed to have been given when deposited in the United States mail, properly addressed, with postage prepaid. Notices shall be given as 4|Pa�e If to Landowner: CitvmfYahirna-VVestVaUeyPod« 129 N. 2nd Street Yakima, WA. 98901 It to County:. Yakima County PubIic Services Water Resources Division 128 North Second Street Fourth Floor Courthouse Yakima, Washington 98901 C. Modification: This Agreement may only be modified in writing and such modification shall take effect only after such modification being duly executed by both parties. D. Non -Waiver: No failure by either party to insist upon the strict performance of any provisionof this Agreement or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial fee payment or other performance by either party during the continuance of such breach shall constitute a waiver of any such breach of such provision. E. To comply with Executive Order 05-05, Archaeological and Cultural Resources. Grantee has completed a cultural resources survey for the pject area and has developed an Inadvertent Discovery Plan (IDP) that will be kept on the project site at all times during ground disturbing activities. If there are cultural resources discovered during project implementation, activities must stop and the procedures in the IDP must be followed. Grantee will notify the landowner ifa consultation is required. If required, consultations must be completed before construction continues. F. This agreement may be terminated by the Grantee, if in its discretion, it determines that circumstances have rendered the Purpose of this agreement impractical to achieve. Termination also may be sought by either party by providing written notice to the other party. Such termination shall be effective only after authorized representatives of both parties have agreed in writing to such termination and Ecology has been provided a thirty (30) day advance written notice of such termination. If, in the event the project is intentionally removed, destroyed, or otherwise compromised in function or if successor Landowners do not agree to the terms of this Agreement, Ecology reserves the right to seek reimbursement for the project costs incurred by, and paid to the Grantee with funding under the aforementioned Ecology Project Agreement. G. This Agreement does not authorize the Grantee or Ecology to assume jurisdiction over, or any ownership interest in, the premises. The Landowner retains sole responsibility for taxes, assessments, damage claims, and controlling trespass. The Landowner also retains all benefits and enjoyment of the rights of ownership except as are provided in this agreement. IV.The Landowner Agrees to: Pa A. Provide reasonable property access to the Grantee to plan, implement, and complete the pject and to conduct the Iong-term maintenance and monitoring activities, as described in Attachment A of this agreement. B. Provide the Granteestaif, agents, representatives,contractors, ar assignees, the right to enter the land, at reasonable times, and upon reasonable notice. Entry is solely for project implementation and management purposes, to inspect completed work, and to monitor long-term success of the completed project. Except in case of emergency, reasonable notice shall be given at least 48 hours prior to entry. C. Not intentionally compromise thof project; D. ject; D. |nform Grantee of all known safety hazards on the property; E. Identify the specific maintenance and/or monitoring activities that will be provided by landowner in Attachment A (Include frequency and duration). Landowner has no obligation to provide access to parties other than the Grantee, staff, agents, representatives, contractors, or assignees. For the purposes of viewng the Project for information or educational purposes, Landowner and Grantee must mutually agree before such thirdpartvaccessisoffered.Hovvever,itisacknovv|edgedthatthepropertvmnvvhich this Pjectis|mcotedisapub|icpark, and that the grounds of that park are open to the public during park hours, which may result in people viewing the Project without mutual agreement between the parties. Grantee does not object to public use of the park or public viewing during park hours for portions of the Project situated in a public park. This agreement shall be transferable and binding on any subsequent jurisdiction that obtains responsibility for the property through annexation or purchase to the same degree and in the same way as it is binding on the Grantee. 6 I P e IN WITNESS WHEREOF, the parties have executed this Agreement. DONE this day of 2018 BOARD OF YAKIMA COUNTY COMMISSIONERS Ron Anderson, Chairman Michael D. Leita, Commissioner Attest: Rachel Michael Clerk of the Board Approved as to form: Deputy Prosecuting Attoquey Attest: J. RaTd Elliott, Commissioner Constituting the Board of County Commissioners for Yakima County, Washington CITY OF YAKIMA SonyaWar-Tee, City Clerk CIW CONTRACT NO: cpq RESOLUTION NO: 7 Page BOCC332-2018 December 18, 2018 Attachment A. Project Description and Maintenance Responsibilities for Restoration Activities related to the Project Written description of the project -related activities that will occur on the Landowner's Property (consistent with project cost elements) 8nd the anticipated water quality benefits: (Include restoration/enhancement activities and any Iong-term maintenance needs and effectiveness monitoring activities that will occur in future years.) The overall objective of the pjectistheestoradonofWideHOUmw[reekhy: a. Removing the introduced species that include reed canary grass, yellow flag iris, and crack willow. b. Implementing site-specific engineered stream channel designs approved by the landowner c. Developing with the landowner a restoration plan using native plant species. The plan will be developed with input from the Iandowner and will include a variety of native species, schedule of implementation, maintenance plan (to ensure survival and weed management), and individual site access. The restoration activities will include a planting plan that identifies appropriate tree and shrub species. The plan will include implementation and maintenance activities necessary to ensure Best Management Practice specifications and goals are met. Describe the maintenance and monitoring responsibilities of both the Landowner and Grantee for the term of this agreement. Include the activities, frequency and duration of work to be performed. Note that any native vegetation planted in conjunction with this project must be maintained for a minimum of 3 years. Plant maintenance shall include watering, weeding, and other strategies that are necessary to improve plant survival. Grantee: The grantee will be responsible for all formal maintenance and monitoring responsibilities of native vegetation for the project, and for the overall health of the native species planted. The grantee will implement survival examinations at least twice a year, and for executing all maintenance activities including planting, re -planting, watering, weeding, and any other stewardship activities defined in the planting and stewardship plan for the project. All watering of plants for stewardship activities will utilize legally available water Landowner: The landowner may be responsible for maintenance and monitoring activities of the site if the landowner'offersIt is to the benefit to the Iandowner to provide these activities and be a contributing partner of the p'ect Monitoring is defined as inspections of planted and competing vegetation within the agreed upon areas and notification to the grantee when significant mortality or damage is observed. The landowner may act as an informal "eyes on the ground" to monitor health and well- being of the planted native species, and for watering if so agreed. Minimum inspection periods will be at Ieast once in the spring and once in the fall, Describe the semi-annual proof of performance documentation required for all monitoring and maintenance activities that are the responsibility of the Landowner, including the date this documentation must be provided to Grantee each year. All formal survivalexan7ina[oms and maintenance activities ofplantednativewillbe+h� species ~ (Yakima County Yakima Conservation District) Voluntary Landowner Performance Report may be submitted semi-annually,by April 30, and September 30 of each year The landowner may Of agreed to by both parties) complete Attachment —The landowner will present and review with the Grantee the survival of all of the native plants, provide survival surveys. Wane '_^-�