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HomeMy WebLinkAboutDept. of Natural Resources - Aquatic Land Right of Entry AgreementHILARY S. FRANZ C®MMISSaOd SP1 Via,' PUBLIC LANDS AQUATIC LANDS RIGHT OF ENTRY Right of Entry No. 23-101798 THIS RIGHT OF ENTRY is made by and between the STATE OF WASHINGTON, acting through the Department of Natural Resources ("State"), and City of Yakima, a Government Entity ("Licensee"). THE Parties agree as follows: SECTION 1 GRANT OF PERMISSION 1.1 Permission. Subject to the terms and conditions set forth below, State grants Licensee a revocable, nonexclusive license to enter upon the real property described in Exhibit A (the "Property"). In this agreement, the term "Right of Entry" means this agreement and the rights granted. By issuance of this Right of Entry, State is conferring the privilege of use of the Property, and State expressly retains exclusive possession of the Property. 1.2 Other Interests and Rights. This Right of Entry is subject to all valid interests of third parties noted in the records of Yakima County, or on file in the Office of the Commissioner of Public Lands, Olympia, Washington. Licensee is responsible for obtaining approvals from other persons, if any, who have an interest in the Property. This Right of Entry is subject to the rights of the public under the Public Trust Doctrine or federal navigation servitude, and treaty rights of Indian Tribes. 1.3 Condition of Property. Licensee has inspected the Property and accepts it in its present condition. State has no obligation to make any repairs, additions, or improvements to the Property. State makes no representation regarding the condition of the Property or the suitability of the Property for Licensee's intended use. State expressly disclaims any warranty that the Property is suitable for Licensee's intended use. SECTION 2 USE 2.1 Authorized Activities. Licensee shall enter the Property only for the purpose of Aquatic Lands Right of Entry (Rev. 11r:2020) Page 1 of 33 Right of Entry No. 23-101798 conducting the activities described in Exhibit B (the "Activities") and for no other purpose. Exhibit B also includes details about the Property. Licensee shall not conduct any other activities on the Property without the prior written permission of State. 2.2 Restrictions on Activities. The following limitations and requirements apply to the Property and adjacent state-owned aquatic lands. Licensee's compliance with the following does not limit Licensee's liability under any other provision of this Right of Entry. Exhibit B also includes additional obligations and requirements on Licensee. (a) Licensee shall not cause or permit: (1) Damage to land or natural resources; (2) Waste; or (3) Deposit of material, unless approved by State in writing. This prohibition includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage, waste matter, pollutants of any type, or other matter. (b) Licensee shall immediately notify State if Licensee breaches any of the requirements of Paragraph 2.2 or Exhibit B. (c) Licensee shall, at Licensee's sole expense, be responsible for promptly remedying any damages caused by Licensee, the Activities, or Licensee's failure to comply with the requirements of Paragraph 2.2 or Exhibit B. Licensee shall remedy any damages in accordance with a plan approved by State. Nothing in this paragraph shall prevent State from taking steps to remedy any damages caused by Licensee, the Activities, or Licensee's failure to comply with the requirements of Paragraph 2.2 or Exhibit B. If State takes such remedial actions, upon demand by State, Licensee shall pay all remedial costs, restoration costs, and natural resources damages. 2.3 Conformance with Laws. Licensee shall, at all times, keep current and comply with all conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other government rules and regulations regarding its Activities on the Property. 2.4 Interference with Other Uses. (a) Licensee shall conduct the Activities authorized in this Right of Entry in a manner that minimizes or avoids interference with the rights of State, the public, or others with valid right to use or occupy the Property or surrounding lands and water. (b) Licensee and its agents, contractors, and subcontractors shall provide State with at least two (2) weeks' notice before commencing any Activities. Licensee shall promptly notify State of any modifications in the schedule. 2.5 Licensee's Contractors. Acts or omissions of Licensee's contractors operating under this Right of Entry shall be deemed an act of the Licensee. Restrictions and/or requirements placed on the Licensee herein shall apply equally to Licensee's contractors. SECTION 3 TERM 3.1 Term Defined. This Right of Entry commences on the 1st day of April, 2021 Aquatic Lands Right of Entry (Rev. 11/2020) Page 2 of 33 Right of Entry No. 23-101798 ("Commencement Date"), and terminates on the 31 st day of March, 2026 ("Termination Date"), unless terminated sooner under the terms of this Right of Entry. 3.2 End of Term. Upon termination of this Right of Entry and except as otherwise provided in Exhibit B, Licensee shall restore the Property to a condition substantially like its natural state before Licensee's Activities. Licensee's restoration shall be in accordance with a plan approved by State. 3.3 Disposition of Personal Property. (a) "Personal Property" means items that can be removed from the Property without (I) injury to the Property, adjacent state-owned aquatic lands, or Improvements, or (2) diminishing the value or utility of the Property, adjacent state-owned aquatic lands, or Improvements. (b) Licensee retains ownership of Personal Property unless Licensee and State agree otherwise in writing. (c) Licensee shall remove Personal Property from the Property by the termination of this Right of Entry. Licensee is liable for damage to the Property and Improvements resulting from removal of Personal Property. (d) State may sell or dispose of all Personal Property left on the Property after the termination of this Right of Entry. (I) If State conducts a sale of Personal Property, State shall first apply proceeds to State's costs of removing the Personal Property, State's costs in conducting the sale, and any other payment due from Licensee to State. State shall pay the remainder, if any, to the Licensee. Licensee shall be liable for any costs of removing the Personal Property and any costs of conducting the sale that exceed the proceeds received by State. (2) If State disposes of Personal Property, Licensee shall pay for the cost of removal and disposal. SECTION 4 FEE Licensee shall pay to State a fee in the amount of Nine Hundred Dollars ($900.00), which is due and payable on or before the Commencement Date. SECTION 5 ENVIRONMENTAL LIABILITY 5.1 Definitions. (a) "Hazardous Substance" means any substance that now or in the future becomes regulated or defined under any federal, state, or local statute, ordinance, rule, regulation, or other law relating to human health, environmental protection, contamination, pollution, or cleanup, including oil and petroleum products. (b) "Release or threatened release of Hazardous Substance" means a release or threatened release as defined under any law described in Paragraph 5.1(a). Aquatic Lands Right of Entry (Rev. 1 112020) Page 3 of 33 Right of Entry No. 23-101798 (c) "Utmost care" means such a degree of care as would be exercised by a very careful, prudent, and competent person under the same or similar circumstances; the standard of care applicable under the Washington State Model Toxics Control Act ("MTCA"), Chapter 70.105D RCW. (d) "Licensee and affiliates" when used in this Section 5 means Licensee or Licensee's contractors, agents, employees, guests, invitees, licensees, affiliates, or any person on the Property with the Licensee's permission. (e) "Liabilities" as used in this Section 5 means any claims, demands, proceedings, lawsuits, damages, costs, expenses, fees (including attorneys' fees and disbursements), penalties, or judgments. 5.2 General Conditions. (a) Licensee's obligations under this Section 5 extend to the area in, on, under, or above: (1) The Property; and (2) Adjacent state-owned aquatic lands if affected by a release of Hazardous Substances that occurs as a result of the Permitted Use. (b) Standard of Care. (1) Licensee shall exercise the utmost care with respect to Ha7ardous Substances. (2) Licensee shall exercise utmost care for the foreseeable acts or omissions of third parties with respect to Ha7ardous Substances, and the foreseeable consequences of those acts or omissions, to the extent required to establish a viable, third -party defense under the law. 5.3 Current Conditions and Duty to Investigate. State makes no representation about the condition of the Property or adjacent state-owned aquatic lands. Hazardous Substances may exist in, on, under, or above the Property. 5.4 Use of Hazardous Substances. (a) Licensee and its affiliates shall not use, store, generate, process, transport, handle, release, or dispose of Ha7ardous Substances, except in accordance with all applicable laws. (b) Licensee shall not undertake, or allow others to undertake by Licensee's permission, acquiescence, or failure to act, activities that: (1) Result in a release or threatened release of Hazardous Substances; or (2) Cause, contribute to, or exacerbate any contamination exceeding regulatory cleanup standards whether the regulatory authority requires cleanup before, during, or after Licensee's activities on the Property. 5.5 Management of Contamination, if any. (a) Licensee and affiliates shall not undertake activities that: (1) Damage or interfere with the operation of remedial or restoration activities, if any; (2) Result in human or environmental exposure to contaminated sediments, if any; Aquatic Lands Right of Entry (Rev. 11,2020) Page 4 of 33 Right of Entry No. 23-101798 (3) Result in the mechanical or chemical disturbance of on -site habitat mitigation, if any. 5.6 In the Event of a Release or Threatened Release. (a) Licensee shall immediately notify State if the Licensee becomes aware of any release or threatened release of Hazardous Substance; any new discovery of or new information about a problem or liability related to, or derived from, the presence of Hazardous Substances; or any actual or alleged violation of any federal, state, or Iocal statute, ordinance, rule, regulation, or other law pertaining to Hazardous Substances. Licensee's duty to report under this Paragraph extends to lands described in Paragraph 5.2(a) and to any other property used by Licensee in conjunction with the Property if a release of Hazardous Substances on the other property could affect the Property. (b) If a Licensee's act or omission results in a release of Hazardous Substances, Licensee, at its sole expense, shall promptly take all actions necessary or advisable to clean up, contain, and remove the Hazardous Substances in accordance with applicable laws. (c) If Licensee submits any documents concerning environmental impacts or proposals relative to the Property to any federal, state, or local authorities, Licensee shall submit a copy of such documents to State. Documents subject to this requirement include, but are not limited to, applications, reports, studies, or audits for National Pollutant Discharge Elimination System permits; U.S. Army Corps of Engineers permits; State Hydraulic Project Approvals (HPA); State Water Quality Certifications; Shoreline Substantial Development permits; and any reporting necessary for the existence, location, and storage of Hazardous Substances on the Property. 5.7 Indemnification. (a) Licensee shall indemnify, defend, and hold harmless State from and against Liabilities that arise out of, or relate to: (1) The use, storage, generation, processing, transportation, handling, or disposal of any Hazardous Substance by Licensee and affiliates occurring during the term of this Right of Entry or whenever Licensee uses or has used the Property; (2) The release or threatened release of any Hazardous Substance resulting from any act or omission of Licensee and affiliates occurring during the term of this Right of Entry or whenever Licensee uses or has used the Property. (b) Licensee shall fully indemnify, defend, and hold harmless State for Liabilities that arise out of or relate to Licensee's breach of obligations under Paragraph 5.4. (c) If Licensee fails to exercise care as described in Paragraph 5.2, to the extent permitted by law, Licensee shall fully indemnify, defend, and hold harmless State from and against Liabilities arising from the acts or omissions of third parties in relation to the release or threatened release of Hazardous Substances. 5.8 Reservation of Rights. Aquatic Lands Right of Entry (Rev. 11 r°°2020) Page 5 of 33 Right of Entry No. 23-101798 (a) For Liabilities not covered by the indemnification provisions of Paragraph 5.7, the Parties expressly reserve and do not waive any rights, claims, immunities, causes of action, or defenses relating to Hazardous Substances that either Party may have against the other under law. (b) The Parties expressly reserve all rights, claims, immunities, and defenses that either Party may have against third parties. Nothing in this Section 5 benefits or creates rights for third parties. (c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 5 do not release either Party from or affect the liability of either Party for Hazardous Substances claims or actions by regulatory agencies. SECTION 6 NO ASSIGNMENT Licensee shall not transfer or assign this Right of Entry. SECTION 7 INDEMNITY AND INSURANCE 7.1 Indemnity. (a) Licensee shall indemnify, defend, and hold harmless State, its employees, officials, officers, and agents from any Claim arising out of the Activities, out of activities related to the Activities, or out of the use of the Property by Licensee, its contractors, agents, invitees, guests, employees, or affiliates to the fullest extent permitted by law and subject to the limitations provided below. (b) "Claim" as used in this Paragraph 7.1 means any financial loss, claim, suit, action, damages, expenses, costs, fees (including attorneys' fees), fines, penalties, or judgments attributable to bodily injury, sickness, disease, death, and damages to tangible property, including, but not limited to, land, aquatic life, and other natural resources. "Damages to tangible property" includes, but is not limited to, physical injury to the Property, diminution of value, and/or damages resulting from loss of use of the Property. (c) State shall not require Licensee to indemnify, defend, and hold harmless State its employees, officials, officers, or agents for a Claim caused solely by or resulting solely from the negligence or willful act of State or State's employees, officials, officers, or agents. (d) Licensee specifically and expressly waives any immunity that may be granted under the Washington State Industrial Insurance Act, Title 51 RCW in connection with its obligation to indemnify, defend, and hold harmless State and its employees, officials, officers, or agents. Further, Licensee's obligation under this Right of Entry to indemnify, defend, and hold harmless State, its employees, officials, officers, and agents shall not be limited in any way by any limitation on amount or type of damages, compensation, or benefits payable to or for any third party under the worker's compensation acts. (e) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a Claim is caused by or results from the concurrent negligence of (a) State or Aquatic Lands Right of Entry (Rev. 1112020) Page 6 of 33 Right of Entry No. 23-101798 State's employees, officials, officers, or agents, and (b) the Licensee or Licensee's contractors, agents, invitees, guests, employees or affiliates, these indemnity provisions shall be valid and enforceable only to the extent of the negligence of the Licensee and those acting on its behalf. (f) Section 5, Environmental Liability, shall exclusively govern Licensee's liability to State for Hazardous Substances and its obligation to indemnify, defend, and hold harmless State for Hazardous Substances. 7.2 Insurance Terms. (a) Insurance Required. (1) At its own expense, Licensee shall procure and maintain during the Term of this Right of Entry, the insurance coverages and limits described in this Paragraph 7.2 and in Paragraph 7.3, Insurance Types and Limits. State may terminate this Right of Entry if Licensee fails to maintain required insurance. (2) Unless State agrees to an exception, Licensee shall provide insurance issued by an insurance company or companies admitted to do business in the State of Washington and have a rating of A- or better by the most recently published edition of A.M. Best's Insurance Reports. Licensee may submit a request to the risk manager for the Department of Natural Resources to approve an exception, in writing, to this requirement. If an insurer is not admitted, the insurance policies and procedures for issuing the insurance policies shall comply with Chapter 48.15 RCW and 284-15 WAC. (3) All general liability, excess, and umbrella liability insurance policies must name the State of Washington, the Department of Natural Resources, its elected and appointed officials, officers, agents, and employees as an additional insured by way of endorsement. (4) All insurance provided in compliance with this Right of Entry must be primary as to any other insurance or self-insurance programs afforded to or maintained by State. (b) Waiver. (1) Licensee waives all rights against State for recovery of damages to the extent insurance maintained pursuant to this Right of Entry covers these damages. (2) Except as prohibited by law, Licensee waives all rights of subrogation against State for recovery of damages to the extent that they are covered by insurance maintained pursuant to this Right of Entry. (c) Proof of Insurance. (1) Licensee shall provide State with a certificate(s) and endorsement(s) of insurance executed by a duly authorized representative of each insurer, showing compliance with insurance requirements specified in this Right of Entry; and, if requested, copies of policies to State. (2) The certificate(s) of insurance must reference additional insureds and the Right of Entry number. Aquatic Lands Right of Entry (Rev. 11:.''2020) Page 7 of 33 Right of Entry No. 23-101798 (3) Receipt of such certificates, endorsements, or policies by State does not constitute approval by State of the terms of such policies. (d) State must receive written notice before cancellation or non -renewal of any insurance required by this Right of Entry, as follows: (1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance Commissioner): If cancellation is due to non-payment of premium, provide State ten (10) days' advance notice of cancellation; otherwise, provide State forty-five (45) days' advance notice of cancellation or non - renewal. (2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to non-payment of premium, provide State ten (10) days' advance notice of cancellation; otherwise, provide State twenty (20) days' advance notice of cancellation or non -renewal. (e) Adjustments in Insurance Coverage. (1) State may impose changes in the limits of liability for all types of insurance as State deems necessary. (2) Licensee shall secure new or modified insurance coverage within thirty (30) days after State requires changes in the limits of liability. (f) General Terms. (1) State does not represent that coverage and limits required under this Right of Entry are adequate to protect Licensee. (2) Coverage and limits do not limit Licensee's liability for indemnification and reimbursements granted to State under this Right of Entry. (3) The Parties shall use any insurance proceeds payable by reason of damage or destruction to property first to restore the real property covered by this Right of Entry, then to pay the cost of the reconstruction, then to pay State any sums in arrears, and then to Licensee. 7.3 Insurance Types and Limits. (a) General Liability Insurance. (1) Licensee shall maintain commercial general liability insurance (CGL) or marine general liability (MGL) covering claims for bodily injury, personal injury, or property damage arising on the Property and/or arising out of Licensee's use, occupation, or control of the Property and, if necessary, commercial umbrella insurance with a limit of not less than One Million Dollars ($1,000,000) per each occurrence. If such CGL or MGL insurance contains aggregate limits, the general aggregate limit must be at least twice the "each occurrence" limit. CGL or MGL insurance must have products -completed operations aggregate limit of at least two times the "each occurrence" limit. (2) CGL insurance must be written on Insurance Services Office (ISO) Occurrence Form CG 00 01 (or a substitute form providing equivalent coverage). All insurance must cover liability arising out of premises, operations, independent contractors, products completed operations, personal injury and advertising injury, and liability assumed under an insured contract (including the tort liability of another party assumed in a Aquatic Lands Right of Entry (Rev. 11/2020) Page 8 of 33 Right of Entry No. 23-101798 business contract) and contain separation of insured (cross -liability) condition. (3) MGL insurance must have no exclusions for non -owned watercraft, (b) Workers' Compensation. (1) State of Washington Workers' Compensation. (i) Licensee shall comply with all State of Washington workers' compensation statutes and regulations. Licensee shall provide workers' compensation coverage for all employees of Licensee. Coverage must include bodily injury (including death) by accident or disease, which arises out of or in connection with Licensee's use, occupation, and control of the Property. (ii) If Licensee fails to comply with all State of Washington workers' compensation statutes and regulations, and State incurs fines or is required by law to provide benefits to or obtain coverage for such employees, Licensee shall indemnify State. Indemnity shall include all fines; payment of benefits to Licensee, employees, or their heirs or legal representatives; and the cost of effecting coverage on behalf of such employees. (2) Longshore and Harbor Worker's Act. The Longshore and Harbor Worker's Compensation Act (33 U.S.C. Section 901 et seq.) may require Licensee to provide insurance coverage for longshore and harbor workers other than seaman. Licensee shall ascertain if such insurance is required and, if required, shall maintain insurance in compliance with this Act. Licensee is responsible for all civil and criminal liability arising from failure to maintain such coverage. (3) Jones Act. The Jones Act (46 U.S.C, Section 688) may require Licensee to provide insurance coverage for seamen injured during employment resulting from negligence of the owner, master, or fellow crew members. Licensee shall ascertain if such insurance is required and, if required, shall maintain insurance in compliance with this Act. Licensee is responsible for all civil and criminal liability arising from failure to maintain such coverage. (c) Employer's Liability Insurance. Licensee shall procure employer's liability insurance, and, if necessary, commercial umbrella liability insurance with limits not less than One Million Dollars ($1,000,000) per each accident for bodily injury by accident or One Million Dollars ($I,000,000) per each employee for bodily injury by disease. SECTION 8 TERMINATION 8.1 Termination by Revocation. State may terminate this Right of Entry at any time upon thirty (30) days' notice to the Licensee. Aquatic Lands Right of Entry (Rev. 1112020) Page 9 of 33 Right of Entry No. 23-101798 8.2 Termination by Completion of Activities. If Licensee completes Activities and restoration of the Property prior to the Termination Date, this Right of Entry terminates upon Licensee's completion of all Activities and the restoration of the Property under Paragraph 3.2. 8.3 Termination Resulting from Breach. If Licensee breaches any terms of this Right of Entry, State may terminate this Right of Entry immediately upon notice to Licensee. SECTION 9 NOTICE Following are the locations for delivery of notice and the Contact Person. Any Party may change the location of notice and/or the Contact Persn upon reasonable notice to the other. State: DEPARTMENT OF NATURAL RESOURCES Aquatic Resources Division, Rivers District Cindy Preston, Aquatic Land Manager PO Box 280 Castle Rock, WA 98611 Fax: (360) 748-2387 AquaticLeasing.Rivers@dnr.wa.gov dnr.wa.gov Licensee: City of Yakima David Brown Assistant Director of Public Works Public Works —Water/Irrigation 2301 Fruitvale Blvd Yakima, WA 98902 (509) 575-6204 david.brownt'�3a,yakimawa.gov SECTION 10 MISCELLANEOUS 10.1 Headings. The headings used in this Right of Entry are for convenience only and in no way define, limit, or extend the scope of this Right of Entry or the intent of any provision. 10.2 Invalidity. The invalidity, voidness, or illegality of any provision of this Right of Entry does not affect, impair, or invalidate any other provision of this Right of Entry. 10.3 Applicable Law and Venue. This Right of Entry is to be interpreted and construed in accordance with the laws of State of Washington. Venue for any action arising out of or in connection with this Right of Entry is in the Superior Court for Thurston County, Washington. 10.4 Statutory Reference. Any reference to a statute or rule means that statute or rule as presently enacted or hereafter amended or superseded. Aquatic Lands Right of Entry (Rev. 1 I112020) Page 10 of 33 Right of Entry No. 23-101798 10.5 Modification. No modification of this Right of Entry is effective unless in writing and signed by the Parties. Oral representations or statements do not bind either Party. 10.6 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of this Right of Entry. 10.7 Survival. Any obligations of Licensee not fully performed upon termination of this Right of Entry do not cease, but continue as obligations of the Licensee until fully performed. 10.8 Exhibits and Attachments. All referenced exhibits and attachments are incorporated in this Right of Entry unless expressly identified as unincorporated. THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last signature below. Dated: Dated: CITY CONTRACT NO: (9410).13 RESOLUTION NO: , 20 Aquatic Lands Right of Entry Template approved as to form this 3rd day of November, 2020 Jennifer Clements, Assistant Attorney General Aquatic Lands Right of Entry (Rev. 11.'2020) CI" YAMA By: Title: Address: Phone: ROBERT HARRISON City Manager 129 N 2nd St Yakima, WA 98901 (509) 575-6040 desk STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES By: 7 KATRINA LASSITER Title: Aquatic Resources Division Manager Address: 1111 Washington St., SE Olympia, WA 98504 Page 11 of 33 Right of Entry No. 23-101798 EXHIBIT A PROPERTY DESCRIPTION Agreement Number 23-101798 1. PROPERTY DESCRIPTION: This aquatic lands right of entry agreement is for portions of 2nd class shorelands and beds of the Naches River located in front SE 1 /4 N W 1 /4, Section 9, Township 13 North, Range 18 East, W.M., Yakima County. The "Site Location" on the site map below shows the general location of the Property. 2. COORDINATES OF THE RIGHT OF ENTRY: Side Channel Work Areas Northwest Corner Southwest Corner Northeast Comer Southeast Corner 46.63378 W 46. 63381W 46.63313 W 46.63316 W -120.59353 N -120.59348 N -120.59231 N -120.59223 N Dam Removal & Roughened Channel Construction Work Area Northwest Comer 46.63196 W-120.5886 N Southwest Corner 46.63141 W-120.58864 N Northeast Corner 46.63213 W-120.5871 N Southeast Corner 46.63157 W-120.58649 N 3. APPROXIMATE SQUARE FOOTAGE OF RIGHT OF ENTRY: Side channel area square feet 4,964 Dam removal & roughened channel construction area square feet 100.666 Total Square Feet 105,640 Aquatic Lands Right of Entry (Rev. 1112020) Page 12 of 33 Right of Entry No. 23-101798 Attachment 1 to Exhibit A Site Map City of Yakima Authorization No. 23-101798 Authorized Use: Side Channel & Fish Passage Construction Location: Naches RiverrYakima County Site Map Aquatic Lands Right of Entry (Rev. 1 1/2020) Side channel ingress Side channel 2 ingress RtSOURCES Ileac Nelson Dam Project Area SE1/4 NWIM. 59- T13N-1318E, Whi Prepared By CLP Date 2-16-2021 Page 13 of 33 Right of Entry No. 23-101798 EXHIBIT B DESCRIPTION OF ACTIVITIES A. Existing Conditions. Concrete, grout, and rebar was placed in the river in the late 1920s to construct the original Nelson Dam. The dam was replaced with a new concrete structure in 1985 and a concrete fish ladder was constructed on the north bank. The south bank was filled with concrete for the City and Naches Cowiche Canal Association intake structures. Attachment 1 to this Exhibit B shows existing and construction site plan. B. Activities. Removal of Nelson Dam and construct a new water intake structure, along with fish passage and riverine process improvements. These Activities are shown in Attachment 1 to this Exhibit B. Subject to the conditions in this Right of Entry, State grants its consent to these Activities, C. Permits. Licensee has secured the following permits for the Activities: • SEPA DNS & Shoreline Exemption - WET2020-0003/SEP2020-00010, issued by the City of Yakima, dated June 4, 2020 • HPA Extension Letter App ID -23056, issued by WDFW dated November 19, 2020 to October 26, 2025 • HPA 2020-3-69+02, issued by WDFW, dated November 24, 2020 to October 26, 2025 • ESA Section 7 (a) (2) Biological Opinion NMFS Consultation No: WCRO-2020- 02799v & WCRO-2020-2714, isued by NMFS dated December 17, 2020 • Nationwide Permits (NWP 53, 27, 33, 39, 13, & 12) NWS-2020-200, issued by USACE dated February 2, 2021 • Consultation ESA Section 7 - Ol EWFW00-2020-F-0857 issued by USFW ADDITIONAL OBLIGATIONS AND REQUIREMENTS A. Licensee shall only conduct in -water activities during time periods authorized for such activities under WAG 220-660-110, Authorized Work Times in Freshwater Areas, or as otherwise directed by the Washington Department of Fish and Wildlife (WDFW), United States Fish and Wildlife Service (USFWS) or National Marine Fisheries Service (NMFS). Aquatic Lands Right of Entry Template approved as to form this 3rd day of November 2020 Jennifer Clements, Assistant Attorney General Aquatic Lands Right of Entry (Rev. 11,2020) Page 14 of 33 Right of Entry No. 23-101798 ATTACHMENT 1 TO EXHIBIT B for 23-101798 APPLICANT Cy of Yakima DATUM Nash American Datum 199 ADJACENT PROPERTY OWNERS; See .MRPA *neonate C for Nil 1M of property axiom pa oniEr 1:&,AT,":p11 Project Location Nihon Darn Remover Water Supply, RHema Poem, and Flah Pampa ircgrwrnria {Phase 11: Ik REFERENCE LAT1LONG: Nehon Dam Shea Plash ahT- l�a 18a5{7ii1T Unpaid.. W l.somaa �a.R2�L4ti_kiP$ II Longitude:-120.5795222 W Aquatic Lands Right of Entry (Rev. 11,2020) Page 15 of 33 PROJECT NCIIIITY PROJECT VICINITY OPOSED PROJECT: provammes IN; T13WR I9EISes 9, 9, 10, 15 NEAR/AT City ofYitlme COUNTY' Yakima SHEET; 1' or23 DATE 1123/2020 STATE WA Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 11112020) Page 16 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 11 `2020) Page 17 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 11.,12020) Page 18 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 11/2020) Page 19 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 1 1/2020) Page 20 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 11e2020) Page 21 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 1 1/"2020) Page 22 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 11/2020) Page 23 of 33 Right of Entry No. 23-101798 Aquatic Lands Right of Entry (Rev. 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