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
'_^-�