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HomeMy WebLinkAboutR-1992-D6118 Columbia Asphalt / Gravel / ShorelineRESOLUTION NO. I 6 1 18 A RESOLUTION adopting and approving the Findings, Conclusions, and Decision with Conditions in the matter of the application by Columbia Asphalt & Gravel, Inc. for shoreline permits and zoning ordinance ap- provals to conduct gravel mining operations and to construct concrete and asphalt plants. WHEREAS, Columbia Asphalt & Gravel, Inc., (hereinafter "Columbia Asphalt") has applied jointly with the City of Yakima and the County of Yakima for a Shoreline Substantial Development Permit, a Shoreline Conditional Use Permit, and a zoning approval for expansion of a nonconforming use for gravel mining operations and the construction of concrete and asphalt plants; and WHEREAS, after three public hearings, the City Council and the County Commissioners made a decision on May 4, 1992 to approve the gravel mining operations and to deny construction of the concrete and asphalt plants, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Mayor and the City Clerk are hereby authorized and directed to execute the attached Findings, Conclusions, and Decision with Conditions concerning the application by Colum- bia Asphalt. The City of Yakima Shoreline Administrator is hereby authorized and directed to issue the permits and ap- provals in accordance with this decision and to forward the Conditional Use Permit and other necessary documents to the Department of Ecology. ADOPTED BY THE CITY COUNCIL this ZI day of May, 1992. ATTEST: XJ, City Clerk fres/columbia.rp) C;),at Mayor CITY COUNCIL OF THE CITY OF YAKIMA, WASHINGTON In the matter of the application ) by Columbia Asphalt & Gravel, Inc. for a Shoreline ) FILE NO.: SH 91-9 Substantial Development Permit, ) a Shoreline Conditional Use ) FINDINGS, CONCLUSIONS, AND Permit, and a Zoning Approval ) DECISION WITH CONDITIONS for expansion of a Nonconforming ) Use for Gravel Mining and a Concrete and Asphalt Plant This matter having come on regularly for joint public hear- ing by the City Council of the City of Yakima and the Board of Yakima County Commissioners on April 21, 1992, and continued to April 28, 1992, and further continued until May 4, 1992, upon the request of Columbia Asphalt & Gravel Inc. for a Shoreline Sub- stantial Development Permit to construct a dike across Willow Lake and conduct gravel mining operations, and for a Shoreline Conditional Use Permit for gravel mining and concrete and asphalt plants, and for approval under the Yakima Urban Area Zoning Ordinance for expansion of a nonconforming gravel mining opera- tion in the B-1 Zone; the legislative bodies having heard testi- mony from numerous private citizens and their attorneys both for and against the application; and the legislative bodies having considered all the files, records, testimony, and exhibits sub- mitted herein; now, therefore, the City Council of the City of Yakima hereby makes the following Findings of Fact, Conclusions of Law, and Decision with Conditions. FINDINGS OF FACT 1. Richard Wachsmith and Constance Wachsmith, husband and wife, own certain real property located at the west end of Willow Lake and bordering the south side of State Highway Route 12, and within Section 10, 11, and 15, Township 13 North, Range 18 East, W.M. within the City of Yakima and Yakima County (hereafter "parcel"). Page -1 (sc/columbia.rp) 2. Columbia Asphalt & Gravel, Inc. a Washington corporation (hereinafter "Columbia Asphalt") operates and uses the parcel and has a leasehold interest therein. Further, Columbia Asphalt has entered into a conditional sales contract with Richard Wachsmith and Constance Wachsmith, husband and wife, to purchase the par- cel. 3. On or about June 1, 1991, a portion of the parcel was an- nexed into the City of Yakima. 4. A portion of the parcel is located within a Shoreline area, as designated by the Shoreline Management Act, RCW Chapter 90.58, and the Yakima County Shoreline Master Program. The portion of the parcel which falls within the designated Shoreline area has a Master Program environment designation of "Urban." 5. In August 1991, City of Yakima and Yakima County staff inspected the parcel and observed that a dike had been con- structed across Willow Lake. 6. On or about September 1991, City of Yakima staff observed that the dike across Willow Lake was still intact and further observed dewatering of Willow Lake behind the dike. 7. In November 1991, City of Yakima staff observed surface mining occurring in the dewatered portion of Willow Lake behind the dike. 8. On or about January 30, 1992, the Washington State Depart- ment of Ecology, City of Yakima, and Yakima County issued a joint Enforcement Order and Notice of Penalty Incurred to Columbia Asphalt and to Mr. and Mrs. Wachsmith under Docket No. 92 -SH -02. 9. Columbia Asphalt filed an application jointly with the City of Yakima and Yakima County for Shoreline Management Substantial Development Permits, Shoreline Management Conditional Use Per- mits, and a Class 3 Zoning approval. Columbia Asphalt's applica- tion for a Shoreline Substantial Development Permit involved the construction of a dike across Willow Lake, the conducting of gravel mining operations, and the operation of concrete and asphalt plants on the parcel. Columbia Asphalt's application for a Shoreline Conditional Use Permit involved surface mining and the operation of a concrete plant and asphalt plant on the par- cel. Columbia Asphalt's application for Class 3 approval was to expand a nonconforming surface mining operation within the B-1 Zone on the parcel. 10. Columbia Asphalt proposed to operate the concrete plant and asphalt plants only within the jurisdiction of Yakima County. The operations for which City of Yakima approval was sought Page -2 (sc/columbia.rp) involved surface mining and the construction of a dike across Willow Lake. 11. The application describes an increase in mineral extraction from 100,000 cubic yards at 20,000 cubic yards annually to 500,000 cubic yards at 50,000 cubic yards annually. 12. The entire portion of the parcel which lies within the City of Yakima is currently zoned B-1, Professional Office. 13. Property surrounding the parcel have the following charac- teristics: Zoning Land Use North SR SR -12 South M-1 Fruit Warehouse East M-1 Warehouse West B-1 Myron Lake The Willow Lake condominiums are located at the opposite end of the lake about one-half mile east of the parcel. The Aspen Village Single Family Residential Subdivision and Aspen Lake Planned Development are located east of Willow Lake on Aspen Lake. Willow Lake and Aspen Lake are reclaimed gravel pits. 14. A portion of the parcel has been mined intermittently since the 1960's or earlier. The parcel was leased by Triangle Sand & Gravel Company from 1965 to March 1987, at which time it was leased by Columbia Asphalt. 15. On October 27, 1989, the Yakima County Planning Department determined that the mining of sand and gravel, stockpiling of top soil and overburden, rock crushing, sorting, screening of mining materials, and the stockpiling of sand and gravel are legal non- conforming uses on the parcel. However, none of these activities have occurred within the lake itself in recent years. 16. On March 20, 1989, Columbia Asphalt received a revised surface mining permit from the Washington Department of Natural Resources. 17. Construction of the dike across Willow Lake and the subse- quent mining of the dewatered portion of Willow Lake were con- ducted without the necessary Shoreline Management Act permits and Urban Area Zoning Ordinance approval. These operations ceased upon issuance of the joint Shoreline Management Act Enforcement Order in January 1992. Page -3 (sc/columbia.rp) 18. The proposed concrete and asphalt plants would emit smoke, particulates, and other air pollutants. 19. The surface mining activities and vehicular traffic would result in dust emissions into the ambient air. 20. Operation of the concrete and asphalt plants would cause audible noise pollution that could be detected in surrounding residential areas. 21. Mining operations and rock crushing would create audible noise pollution that could be detected in surrounding residential areas. 22. Operation of the concrete and asphalt plants would have a high probability of causing pollutants to enter the groundwater and nearby surface waters, including Willow Lake, through pollut- ant discharges and surface water runoff. Such water pollutants would have a high probability of affecting water quality and habitat. 23. The subsurface aquifer under the parcel is a source of domestic drinking water for nearby residential properties, and therefore, public health requires that water quality not be diminished in this area. 24. Gravel mining and processing have the potential of dis- charging pollutants into surface waters and groundwater. 25. The construction and maintenance of the dike across Willow Lake, together with the dewatering of that portion of Willow Lake to the west of the dike, have the potential to affect the water level of Willow Lake. 26. The operation of vehicles and other machinery on the parcel has the potential to release hazardous substances onto the land and into surface and groundwaters. Such hazardous substance releases could degrade water quality. 27. Vehicular traffic generated by the mining and processing operations would negatively impact residential areas adjacent to River Road. 28. Alternative sites for the concrete and asphalt plants are potentially available both within and without the Yakima Urban Area. 29. The property values in nearby residential areas would be significantly depressed by operation of the concrete and asphalt plants. Page -4 (sc/columbia.rp) 30. The property values in nearby residential areas would not be significantly depressed by the gravel mining operation if proper- ly conditioned. 31. There is no existing lawful public use of the Shoreline areas within the parcel. 32. There is an aesthetic requirement to provide vegetative site screening of the gravel extraction/processing operations from State Highway Route 12 and nearby residential areas. 33. There are a substantial number of single family and multi- family dwelling units within one mile of the parcel that would be affected by air, water, and noise pollution and other project impacts. 34. The parcel has been identified as a good source of gravel for concrete by the inventory of mineral resource areas conducted by Yakima County as required under the 1990 Growth Management Act. Other areas identified in the upper Yakima Valley share many of the characteristics of this parcel, but most of the other sites are also within dedicated 100 year flood plains, a charac- teristic that this parcel does not have. Also, this is the only site not currently being mined for concrete production that is within an urban shoreline designation, the most suitable of the environment designations for this type of activity. 35. A Mitigated Determination of Non -Significance (MDNS) was issued by the lead agency SEPA responsible official on December 11, 1991 and reissued on March 12, 1992. The 15 day SEPA comment period ended March 27, 1992, and no appeal was filed. 36. Pursuant to RCW 42.36.060, the substance of all ex parte communications was placed on the record at the commencement of this quasi-judicial hearing, and no objections were made to the participation of any member of the decision-making body. 37. City Councilman Lynn Buchanan did not participate in any aspect of these proceedings. Based upon the foregoing Findings of Fact, the City Council of the City of Yakima makes the following: CONCLUSIONS OF LAW 1. The City Council of the City of Yakima has jurisdiction. 2. The existing gravel mining operation is a nonconforming use within the B-1 Zone under the Yakima Urban Area Zoning Ordi- nance. Page -5 (sc/columbia.rp) 3. Gravel mining operations within the dewatered portion of Willow Lake constitute an expansion of the nonconforming use. 4. Expansion of this nonconforming use would not be contrary to the public health, safety, or welfare. 5. Expansion of this nonconforming use is compatible with the character of the neighborhood and does not significantly jeopar- dize future development of the area in compliance with the provi- sions and intent of the B -I Zoning District. Willow Lake and Aspen Lake are reclaimed gravel pits. 6. The significance of Columbia Asphalt's hardship is more compelling than, and reasonably overbalances, the public interest resulting from denial of the request for expansion of this non- conforming use. 7. The gravel mining operation was lawful at the time of its inception. 8. The value of nearby properties will not be significantly depressed by approving the requested expansion of gravel mining as a nonconforming use. 9. Columbia Asphalt has met its burden of proving that the gravel mining operations are consistent with the criteria for expansion of a nonconforming use, including, but not limited to, City of Yakima Municipal Code § 15.19.080. 10. Gravel mining on the parcel complies with the applicable use regulations of the Yakima County Shoreline Master Program, in- cluding, but not limited to, Chapter 15.04 thereof. 11. Operation of the proposed concrete and asphalt plants would not comply with the applicable use regulations of the Yakima County Shoreline Master Program, including, but not limited to, Chapter 15.04 thereof. 12. The gravel mining operations comply with applicable develop- ment standards of the Yakima County Shoreline Master Program including, but not limited to, Chapter 14.00 thereof. 13. The proposed concrete and asphalt plants do not comply with the applicable development standards of the Yakima County Shore- line Master Program, including, but not limited to, Chapter 14.00 thereof. 14. The gravel mining operations comply with the policies of the Shoreline Management Act, RCW Chapter 90.58, and the policies of the Yakima County Shoreline Master Program. Page -6 (sc/columbia.rp) 15. The proposed concrete and asphalt plants do not comply with the Shoreline Management Act, RCW Chapter 90.58, and the Yakima County Shoreline Master Program. 16. The gravel mining operations, including the ultimate site reclamation, are consistent with the general public interest concerning the shorelines. 17. The proposed concrete and asphalt plants are not consistent with the general public interest concerning the shorelines and would be contrary to the public health, safety, and welfare. 18. Columbia Asphalt has met its burden of proving that the gravel mining operations satisfy the requisite criteria for granting a Shoreline Substantial Development Permit, including, but not limited to, the criteria set forth at Washington Adminis- trative Code § 173-14-100(2) and Yakima County Shoreline Master Program § 17.05. 19. Columbia Asphalt has not met its burden of proving that the concrete and asphalt plants satisfy the requisite criteria for granting a Shoreline Substantial Development Permit, including, but not limited to, the criteria set forth at Washington Adminis- trative Code § 173-14-100(2) and Yakima County Shoreline Master Program § 17.05. 20. The gravel mining operations are consistent with the poli- cies of RCW 90.58.020. 21. The proposed concrete and asphalt plants would not be con- sistent with the policies of RCW 90.58.020. 22. The gravel mining operations are consistent with the specif- ic policies and their underlying element goals in Chapter 4 of the Yakima County Shoreline Master Program. 23. The proposed concrete and asphalt plants are not consistent with the specific policies and their underlying element goals in Chapter 4 of the Yakima County Shoreline Master Program. 24. The gravel mining operations will not interfere with the normal public use of public shorelines. 25. The gravel mining operations will be compatible with other permitted uses within the area. 26. The proposed concrete and asphalt plants would not be com- patible with other permitted uses within the area. Page -7 (sc/columbia.rp) 27. The gravel mining operations will cause no unreasonably adverse effects to the urban shoreline environment designation. 28. The concrete and asphalt plants would cause unreasonably adverse effects to the urban shoreline environment designation. 29. The public interest will suffer no substantial detrimental effect from the gravel mining operations. 30. The public interest would suffer substantial detrimental effect from the proposed operation of concrete and asphalt plants. 31. Columbia Asphalt has met its burden of proving that the criteria for issuing a Shoreline Conditional Use Permit for gravel mining operations have been met, including, but not limited to, the criteria set forth at Washington Administrative Code § 173-14-140 and Section 18.04 of the Yakima County Shore- line Master Program. 32. Columbia Asphalt has not met its burden of proving that the criteria for issuing a Shoreline Conditional Use Permit for the proposed concrete and asphalt plants have been met, including, but not limited to, the criteria set forth at Washington Adminis- trative Code § 173-14-140 and § 18.04 of the Yakima County Shore- line Master Program. Based upon the foregoing Findings of Fact and Conclusions of Law, the City Council of the City of Yakima hereby makes the following: DECISION 1. Columbia Asphalt's request for approval under the Yakima Urban Area Zoning Ordinance of expansion of a nonconforming use for gravel mining operations in the B-1 Zone is approved subject to compliance with all of the following conditions. 2. Columbia Asphalt's request for a Shoreline Substantial Development Permit to construct a dike across Willow Lake and to conduct gravel mining operations is approved subject to compli- ance with all of the following conditions. 3. Columbia Asphalt's request for a Shoreline Substantial Development Permit for the construction and operation of concrete and asphalt plants is denied. 4. Columbia Asphalt's request for a Shoreline Conditional Use Permit for gravel mining operations is approved subject to com- pliance with all of the following conditions. Page -8 (sc/columbia.rp) 5. Columbia Asphalt's request for a Shoreline Conditional Use Permit for the construction and operation of concrete and asphalt plants is denied. CONDITIONS The foregoing decision is subject to compliance with all of the following conditions: 1. Reclamation Plan. Mining and reclamation shall comply with all surface mining permits issued by the Depart- ment of Natural Resources. In addition, a site recla- mation plan shall be prepared and submitted for joint approval by the City of Yakima Director of Community and Economic Development and the Yakima County Planning Director. This reclamation plan shall, at a minimum, contain the following elements: a. revegetation of the shoreline areas; b. enhancement of fish and wildlife habitat; c. reclaimed slopes shall be no steeper than 3 feet horizontal to 1 foot vertical from the ordinary high water mark to 5 feet below the ordinary high water mark; d. reclaimed slopes shall be no steeper than 4 feet horizontal to 1 foot vertical above the ordinary high water mark along the east shore of the exca- vation where it abuts Willow Lake, and along the west shore of the excavation where it abuts Myron Lake; and e. shallow areas shall be established as shown on the mining and reclamation plan together with the establishment of irregular shorelines with bays and peninsulas at least along the shallow areas of the reclaimed excavation as shown on the site plan. In addition, if the dike is breached, it shall be done in a manner that leaves a remnant or remnants to serve as islands. If it is not breached, pipes shall be established in the dike to permit flow between the two portions of Willow Lake. Whether or not the dike is breached, an irregular shoreline and shallow areas shall be established, at minimum, along the west side of the remnants of the dike. 2. Excavation Depth. Excavation depth shall be limited to 30 feet below the existing surface level. Page -9 (sc/columbia.rp) 3. Excavation Setback. Excavation shall maintain a 25 foot setback from the property lines. 4. Water Pollution Prevention. No pollutants shall be dis- charged into Willow Lake, Myron Lake, the Naches River, or any other surface body of water. The on-site settling ponds and percolation canal shall not be allowed to discharge into Willow Lake, the Naches River, or any other water body and shall comply with the requirement of all Department of Ecology waste discharge permits. 5. Hazardous Substance Treatment. Handling of fuel and chemi- cals, and spill prevention measures shall comply with De- partment of Ecology regulations and a spill -prevention plan approved by the Department of Ecology. 6. No Off -Site Materials. No processing or stockpiling of gravel mined off-site shall occur on the parcel. 7. Air Pollution Prevention. All operations shall comply with air quality standards as required by the Yakima County Clean Air Authority and the Washington Department of Ecology, including the best available control technology to control and abate dust and other airborne particulates from the gravel operations. Regular water truck operations shall be used to prevent airborne fugitive dust. Operations shall temporarily cease whenever high winds make dust abatement procedures ineffective. A notice of construction permit shall be obtained prior to the resumption of any opera- tions. The Yakima County Clean Air Authority shall be responsible for ensuring compliance with these require- ments. 8. Vegetative Site Screening. A natural vegetative site screen shall be planted in two staggered rows along the Willow Lake dike, the north property line adjacent to Highway 12, and the west property line adjacent to Myron Lake. The vegeta- tive site screen shall be comprised of two offset rows of Pines and Hybrid Poplars which are trispaced on five foot centers. All vegetative site screens shall be regularly irrigated and maintained. 9. Paved Access Road. The access road shall be paved from River Road to the site. 10. Truck Traffic Restrictions. No traffic entering or exiting the site shall use River Road to the east of the property entrance except when necessary to make gravel deliveries in that particular area; provided, however, that these restric- tions shall not apply when all other transportation routes are blocked. Page -10 (sc/columbia.rp) 11. Dike Structural Integrity. The structural integrity of the existing dike shall be investigated by an independent licensed professional engineer who is qualified by experi- ence and eduction to analyze the physical and structural requirements of such a dike. The engineer shall prepare a report detailing any necessary structural improvements or enhancements which are required or recommended for structur- al integrity. Columbia Asphalt shall improve or reconstruct the dike in accordance with the report's recommendations. The structural engineering report, together with "As Built" dike drawings, shall be submitted to both the City and County Engineers for approval prior to commencement of any operations. 12. Structure Setback. Structures and processing equipment shall maintain a 50 foot setback from the ordinary high water mark of Willow Lake (along the east side of the dike). 13. Water Level Monitoring Plan. A Water Level Monitoring Plan for nearby lakes shall be prepared at Columbia Asphalt's expense and shall be approved by both the City Engineer and County Engineer prior to resuming any operations on the parcel. This plan shall be prepared by a licensed profes- sional engineer who is qualified by education and experience to evaluate the hydrologic effects of the dike, dewatering, and mining operations upon water levels of nearby lakes. The Water Level Monitoring Plan shall include, at a minimum, the following elements: a. a description of the surface and subsurface hydrology of the area; b. a process for periodic data collection and monitoring the water levels of nearby lakes and groundwater aqui- fers; c. a contingency plan for mitigating any significant water level reductions; and d. the plan and all water level monitoring information shall be promptly provided to the City Engineer, County Engineer, and any nearby affected landowners who make a written request for such information. If at any time the City and County determine that the mining operations, dewatering, or dike have caused, are causing, or will cause a significant reduction in water levels of any nearby lake, then Columbia Asphalt shall, at the City's and County's direction, cease or modify mining operations and dewatering, or any portion thereof, to the extent and under such conditions as the City and County in their sole discre- tion may prescribe. Page -11 (sc/columbia.rp) 14. Water Quality Monitoring. If at any time the City and County determine that the mining operations, dewatering, or dike have caused, are causing, or will cause a degradation in water quality of any nearby lake, then Columbia Asphalt shall, at the City's and County's direction, cease or modify mining operations and dewatering, or any portion thereof, to the extent and under such conditions as the City and County in their sole discretion may prescribe. 15. Signs. No sign shall be established adjacent to Highway 12. 16. Term. All gravel extraction operations shall cease 5 years from the date of issuance of the shoreline permit, unless that date is extended by court order or by official action by the shoreline administrators having jurisdiction in accordance with WAC 173-14-060. 17. Concomitant Agreement For Consultant Expenses. Columbia Asphalt shall comply with all terms and conditions of this permit. If violations are discovered, the City or County shall inform Columbia of necessary corrective actions. If Columbia fails to carry out any prescribed corrective ac- tion, the City and the County may, in addition to any other legal remedies, jointly retain an independent consultant to review Columbia Asphalt's compliance with the conditions herein and develop a compliance program, if necessary. Columbia Asphalt shall execute the Concomitant Agreement attached hereto as Exhibit A and incorporated by reference herein, whereby Columbia Asphalt promises and agrees to pay for all costs and expenses incurred by the City and County pursuant to this paragraph. As security for the obligations set forth in this paragraph and in the attached Concomitant Agreement, Columbia Asphalt shall post a Performance Bond or Standby Irrevocable Letter of Credit in the amount of $25,000.00 which has been issued by a financial institution approved by the City and County. The Performance Bond or Letter of Credit may be unconditionally drawn on by the City and County on sight when presented with a signed statement from either the City Engineer or the County Engineer certi- fying that Columbia Asphalt has not performed or complied with the conditions set forth in this decision. 18. Conditional Use Permit Approved. Issuance of the Shoreline Conditional Use Permit must be approved by the Department of Ecology prior to commencing any operations under the terms of this permit. 19. Noise Abatement. Noise levels from operations shall comply with maximum environmental noise levels as specified in Page -12 (sc/columbia.rp) Revised Operating Permit No. 10317 issued by the Department Of National Resources on March 20, 1989) 20. Hours of Operation. Any noise generating activity (in- cluding but not limited to mining, processing, loading, and equipment operations) shall be conducted only between the hours of 6:00 a.m. and 6:00 p.m. Mining and crushing shall be prohibited on weekends and holidays. 21. Permit Revocation. The City and County may jointly revoke the permits and approvals herein granted if the City and County determine that there is substantial noncompliance with any of the foregoing conditions. Adopted and approved this day of May, 1992. ATTEST: CITY OF YAKIMA City Clerk Pat Berndt, Mayor Page -13 (sc/columbia.rp) CONCOMITANT AGREEMENT THIS AGREEMENT is made and entered into this day of , 1992, by and between COLUMBIA ASPHALT & GRAVEL, INC., a Washington corporation (hereinafter "Columbia Asphalt") and the CITY OF YAKIMA, Washington and YAKIMA COUNTY, municipal corpo- rations of the State of Washington (hereinafter respectively "City" and "County"). WHEREAS, Columbia Asphalt has requested County permits and approvals under the Shoreline the Yakima Urban Area Zoning Ordinance for the dike across Willow Lake and for gravel mining from the City and Management Act and construction of a operations within Sections 10, 11, and 15, Township 13 North, Range 18 East, W.M. within the City of Yakima and Yakima County (hereinafter "Parcel"); and WHEREAS, the City and County have granted such permits and approvals subject to compliance with all of the conditions con- tained in the City and County decision document; and WHEREAS, one condition required by the City and County speci- fied that Columbia Asphalt shall execute a concomitant agreement whereby Columbia Asphalt promises and agrees to pay for all costs and expenses incurred by the City and County to monitor and assure compliance with the conditions of the project approval, now, there- fore, IN CONSIDERATION of the mutual promises and covenants made herein, the parties hereto agree as follows: 1. Compliance with Conditions of Decision. Columbia Asphalt promises and agrees to fully comply with all of the conditions set forth in the Findings, Conclusions, and Decision of the Yakima City Council and the Board of Yakima County Commission- ers dated May 26, 1992. Columbia Asphalt further promises and agrees to comply with all compliance orders and directions issued by either the City or the County regarding this proj- ect. 2. Reimbursement of Consultant Expenses. Columbia Asphalt prom- ises and agrees to promptly pay and reimburse the City and the County, and both, for all costs and expenses incurred by the City and County pursuant to Condition 17 of the Findings, Conclusions, and Decision of the City Council and Board of County Commissioners dated May 26, 1992, including, but not limited to, all fees, costs, and expenses incurred to hire or retain an independent environmental consultant, engineer, scientist, or other expert to review and monitor Columbia Asphalt's compliance with the decision, to develop any neces- sary compliance programs, and to implement the compliance programs and conditions of the decision. All payments shall be made to the City and County in accordance with the billing EXHIBIT A and collection procedures prescribed by Yakima County Code § 20.02.010(D)(3) concerning fees for Environmental Impact Statement administration. 3. Indemnity. Columbia Asphalt shall protect, defend, indemnify, and hold the City of Yakima and Yakima County harmless from and against all costs, expenses, damages, liabilities, direct claims, third -party claims, and causes of action (including attorney's fees and expenses) relating to, arising out of, or connected with any necessary repair or reconstruction of the dike across Willow Lake, environmental cleanup or remediation of hazardous substances on the Parcel or in the vicinity of Willow Lake, and the direct and consequential expenses re- sulting from the degradation of water quality in nearby lakes or subsurface aquifers. 4. License. Columbia Asphalt hereby grants to the City and the County, their agents and employees, an irrevocable license to enter the Parcel at any reasonable time for the purpose of monitoring, reviewing, and implementing compliance programs required by the Concomitant Agreement and the conditions of project approval. 5. Independent Enforcement. This Concomitant Agreement may be enforced independently by either the City or the County, or both, in an action for damages, specific performance, injunc- tive relief, or other available procedures. 6. Covenant Running With the Land. The parties hereto intend that the promises and agreements made by Columbia Asphalt shall constitute covenants running with the Parcel and shall be binding upon the landowners, operators, contract purchas- ers, and their successors and assigns. 7. Notices. Any notices required or desired to be given under this Agreement shall be in writing and personally served, given by overnight express delivery, or given by mail. Any notice given by mail shall be sent, postage prepaid, by certi- fied mail, return receipt requested, addressed to the party to receive at the following address or at such other address as the party may from time to time direct in writing: City: City of Yakima City Engineer 129 North 2nd Street Yakima, WA 98901 County: County of Yakima County Engineer 128 North 2nd Street Yakima, WA 98901 Columbia Asphalt: Columbia Asphalt & Gravel, Inc. P.O. Box 100 Parker, WA 98939 Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be deemed to be given three (3) days after deposit with the United States Postal Service. 8. Integration. This written document constitutes the entire and exclusive agreement between the parties hereto. No other understandings, oral or otherwise, regarding the subject matter of this Agreement shall be deemed to exist or bind any of the parties hereto. No changes or additions to this Agree- ment shall be valid or binding upon either party unless such change or addition be in writing and executed by both par- ties. 9. Litigation. In the event that any suit or action is insti- tuted by either party to enforce compliance with or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall be entitled to collect, in addition to necessary court costs, such sums as the court may adjudge as reasonable attorney fees. The venue for any action to enforce or interpret this Agreement shall lie in Superior Court of Washington for Yakima County, Washington. DATED this day of , 1992. ATTEST: CITY OF YAKIMA City Clerk Richard A. Zais, Jr. City Manager ATTEST: COUNTY OF YAKIMA Clerk County Commissioner County Commissioner County Commissioner COLUMBIA ASPHALT & GRAVEL, INC. By: Its: STATE OF WASHINGTON ) :ss. County of Yakima On this day of , 1992, before me, the undersigned and Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared , known to me to be the of Columbia Asphalt & Gravel, Inc. who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary act and deed, for the uses and purposes therein mentioned. WITNESS by hand and official seal hereto affixed this day and year first written above. NOTARY PUBLIC in and for the State of Washington, residing at My commission expires: Richard Wachsmith and Constance Wachsmith, husband and wife, hereby represent and certify that they own the parcel affected by this Concomitant Agreement, and they expressly consent to the license hereinabove granted to the City and the County and to the hereinabove described covenant running with the land. Richard Wachsmith Constance Wachsmith STATE OF WASHINGTON ) :ss. County of Yakima On this day of , 1992, before me, the undersigned and Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Richard Wachsmith and Constance Wachsmith, husband and wife, known to me to be the individuals described herein and who executed the within and fore- going instrument, and acknowledged that they signed the same as their free and voluntary act and deed, for the uses and purposes therein mentioned. WITNESS by hand and official seal hereto affixed this day and year first written above. NOTARY PUBLIC in and for the State of Washington, residing at My commission expires: