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HomeMy WebLinkAboutWashington State, Department of Transportation (WSDOT) - 041017,� 6f, �0 q//O//7 TRAIL LEASE 2�rn 0T�l Lease No.: TR -03-13571 I.C. No.: 3-16-05117 THIS IS A TRAIL LEASE made and entered into by and between the WASHINGTON STATE DEPARTMENT OF TRANSPORTATION (hereinafter "WSDOT"), and JEFFERSON COUNTY, a political subdivision of the state of Washington (hereinafter "TENANT'). WHEREAS, the land and premises to be leased are not presently needed exclusively for highway purposes; and WHEREAS, the TENANT desires to construct, operate, and maintain a trail segment under this Lease as part of the TENANT's local comprehensive trail plan and/or a state or federal comprehensive trail plan as an interim use until the land and premises to be leased are needed for a highway purpose; and WHEREAS, this lease and the exhibits hereto supersede all contemporaneous agreements and understandings between the parties hereto, which includes but is not limited to Airspace Lease AA -3-10736, dated August 31, 1998, as amended, and it is the intent of the parties to supersede said Lease with this Lease and any amendments hereto; and WHEREAS, WSDOT is granted authority to lease property under RCW 47.12.120, and, WSDOT deems it to be in the best public interest to enter into this Lease, NOW, THEREFORE, in consideration of the terms, conditions, covenants, and performances contained herein, IT IS MUTUALLY AGREED AS FOLLOWS: 1. PREMISES. WSDOT leases to TENANT, and TENANT hereby leases from WSDOT, the premises (Premises) located in portions of Lot 2 of Section 24 and Lot 4 of Section 13, Township 29, Range 2 West, W.M., and known to be a portion of the highway right of way of SR 101, Contractor's Gulch to Junction City, sheet 3 of 4 sheets, the Southeast Quarter of the Southwest Quarter of Section 9 and the Southeast Quarter of the Northwest Quarter of Section 16, Township 30 North, Range 1 West, W.M., and known to be a portion of the highway right of way of SR 20, Chimacum Road to Port Townsend, AND in the West Half of Section 16 and the Southwest Quarter of Section 9, all within Township 30 North, Range I West, W.M., and known to be a portion of the highway right of way of EXHIBIT MAP - SR 20, Olympic Discovery Trail Lease, as shown hachured on Exhibit A, attached hereto and by this reference incorporated herein. It is further understood and agreed that WSDOT leases to TENANT, and TENANT hereby leases from WSDOT that area located in Section 16, Township 30 North, Range 1 West, W.M., and known to be a portion of the highway right of way of EXHIBIT MAP - SR 20, Olympic Discovery Trail Lease, as shown cross hachured on Exhibit A. That area shown cross hachured is located RES 419 Pagel of 20 Rev. 12;15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 beneath the existing WSDOT bridge structure. No rights are granted to, from, over and/or across said bridge structure. 2. TERM. The term of this Lease is twenty (20) years, COMMENCING ON THE DATE OF EXECUTION OF THIS LEASE BY WSDOT (Commencement Date). 3. RENEWAL. Upon expiration of the initial term, this Lease maybe renewed by TENANT for two additional ten (10) year periods, (Renewal Period), at the discretion of WSDOT; provided that, (A) TENANT is not in default and has not been in default during the term of this Lease; (B) the property is not needed for a priority transportation purpose, as determined by WSDOT; (C) TENANT's continued use under this Lease does not impair the safety or operation of WSDOT's highway or facility, as solely determined by WSDOT; and (D) the terms and conditions of this Lease conform to then -existing state policies or practices, laws, regulations, and contracts, or provided, TENANT is willing to amend this Lease to bring it into compliance with such policies, practices, laws, regulations, and contracts. The Renewal Period shall be on the same terns and conditions as set forth herein, except as modified by any changes in policies, practices, laws, regulations, or contracts and as reflected in a written amendment signed by both parties. TENANT shall give written notice of its intent to renew this Lease for the Renewal Period(s) not less than ninety (90) calendar days, but not more than six (6) months, prior to the expiration of the Lease, or any extension thereof. 4. CONSIDERATION. In lieu of paying economic rent for the Premises, TENANT agrees to provide other specific consideration which is deemed to be a highway benefit. The consideration is: The separation of motor vehicle traffic from pedestrians, equestrians, or cyclists which will materially increase motor vehicle safety and increase highway efficiency. For that section of the trail located on State Route 20, between Mile Post (M.P.) 9.16 and 9.20, non -motorized traffic currently uses the traveled lanes to cross the bridge. The trail design and construction will allow all non -motorized users of the highway to exit the easterly traveled highway shoulder at M.F. 9.05 and re-enter at M.P. 9.8 1, and to exit the westerly traveled highway shoulder at M.P. 9.25 and re- enter at M.P. 9.05, thus avoiding crossing said bridge structure. For that section of the trail located on State Route 101, between M.P. 281.53 and M.P. 281.69, non -motorized traffic is presently directed onto a narrow shoulder. The trail will be constructed behind a guardrail, on a built-up and widened shoulder, enhancing motor vehicle safety and increasing highway efficiency in this right of way area. 5. TERMINATION BY WSDOT. A. WSDOT may terminate this Lease, without penalty or further liability as follows: (1) immediately, upon the unauthorized assignment of this Lease by TENANT; RES 419 Page 2 of 20 Rev. 12115 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 (2) upon not less than thirty (30) calendar days' prior written notice, for failure of TENANT to provide acceptable As -Built drawings to WSDOT within sixty (60) calendar days of the date of completion of the trail construction; acceptability of the As -Built drawings shall be determined solely by WSDOT; (3) upon not less than thirty (30) calendar days' prior written notice, if TENANT defaults on any provision in this Lease and is notified by WSDOT of the default two (2) times within a six (6) month period. The third default shall be deemed "non -curable"; (4) upon not less than thirty (30) calendar days' prior written notice to TENANT, if TENANT defaults, and fails to cure such default within that thirty (30) day period, or such longer period, as may be reasonably determined by WSDOT, if TENANT is diligently working to cure the default. Waiver or acceptance of any default of the terms of this Lease by WSDOT shall not operate as a release of TENANT's responsibilities for any prior or subsequent default; (5) upon not less than thirty (30) calendar days prior written notice, if TENANT (i) does not begin construction of the improvements, as described in Construction Agreement between WSDOT and Jefferson County Public Works Agreement # GCB 2021, dated January 30, 2017, attached hereto as Exhibit B and by this reference incorporated herein) within sixty (60) calendar days from the Commencement Date of this Lease; (ii) does not complete the work within ninety (90) calendar days of the beginning of said construction, or (iii) fails to open the trail to the public within thirty (30) calendar days of completing the trail construction. WSDOT and TENANT may mutually agree in writing to extend the periods provided under (i), (ii), and/or (iii) to accommodate unforeseen conditions out of the control of either party, such as, but not limited to, weather, availability of equipment, availability of utilities, and two (2) WSDOT fish barrier removal projects, requiring "fish windows" for construction; (6) immediately, if TENANT's insurance coverage as required herein lapses for any reason. In such event, WSDOT may, at its option, barricade access to the Premises; (7) immediately, upon issuance of any court order, legislative action, or governmental agency action having jurisdiction to take such action, which would significantly impair or effectively prohibit TENANT's use of the Premises; (8) immediately, upon written notice, if a receiver is appointed to take possession of TENANT's assets, TENANT makes a general assignment for the benefit of creditors, or TENANT becomes insolvent or takes or suffers action under the Bankruptcy Act; (9) upon not less than thirty (30) calendar days' prior written notice, if WSDOT determines that it is in the best interest of WSDOT to terminate this Lease; RES 419 Page 3 of 20 Rev. 12/15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 (I 0) upon not less than thirty (30) calendar days' prior written notice if the Premises has been abandoned, in WSDOT's sole judgment, for a continuous period of ninety (90) days; or (11) immediately, if a transportation emergency exists as solely determined by 1►.r "1014110 B. WSDOT may terminate the Lease in part upon not less than sixty (60) calendar days' prior written notice, if WSDOT determines that a portion of the Premises may be used for, but not limited to, telecommunications purposes, which in WSDOT's sole determination are reasonably consistent with TENANT's authorized use of the Premises. C. It is hereby acknowledged and agreed that the highway use of the Premises is paramount to any other use, including TENANT's use for a pedestrian, bicycle, and other non - motorized vehicle trail. If this Lease is terminated for highway construction or reconstruction, and WSDOT determines that it is necessary to relocate the trail system or acquire replacement land, TENANT hereby agrees to acquire any such necessary replacement lands promptly and at no cost to WSDOT, to reconstruct its facility at no cost to WSDOT on said replacement lands, and to indemnify and hold harmless WSDOT from any and all costs. D. If TENANT fails to remove the trail and WSDOT determines that it is necessary to continue to maintain the trail in a safe, operable condition, then TENANT hereby agrees that WSDOT may withhold funds sufficient to reimburse WSDOT for all costs associated with the continued maintenance of said trail from TENANT's share of any Motor Vehicle Gas Tax Funds or any other funds distributed to TENANT by WSDOT to cover ongoing expenses of trail maintenance and operation. E. TENANT agrees to pay all costs to barricade or to provide other interim safety measures, as directed by WSDOT, if closure of the trail becomes necessary to facilitate repair, reconstruction, maintenance, or modifications of the highway right of way. 6. TERMINATION BY TENANT. TENANT may terminate this Lease without penalty or further liability as follows: A. upon not less than thirty (30) calendar days' prior written notice for any reason; provided that, TENANT removes all traces of the trail prior to the date of termination; B. upon not less than thirty (30) calendar days' prior written notice, if WSDOT defaults and fails to cure such default within that thirty (30) calendar day period, or such longer period, as may be reasonably determined by TENANT, if WSDOT is diligently working to cure the default; or RES 419 Page 4 of 20 Rev. 12115 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 C. immediately, upon written notice, if in TENANT's judgment the Premises is destroyed or damaged so as to substantially and adversely affect TENANT's authorized use of the Premises. 7. USE OF PREMISES. A. No use other than construction, operation, and maintenance of a public pedestrian, bicycle, and other non -motorized vehicle trail under the control of TENANT is permitted without the prior written approval of WSDOT. TENANT expressly agrees that it will not charge others to use the Premises. No motorized vehicles will be allowed on the Premises except for TENANT's maintenance vehicles and emergency vehicles responding to an emergency on the Premises. In using the Premises, TENANT shall comply with all statutes, policies, and regulations, including, but not limited to the Scenic Vistas Act, RCW 47.42 et seq. and WAC 468-66 et seq., heretofore adopted or hereafter promulgated by WSDOT or the state legislature relative to the location, operation, and maintenance of improvements located on the Premises. No access to the Premises will be constructed or allowed to be constructed by or for TENANT without WSDOT's prior written approval, except those access points shown on Exhibit A. Direct access to ramps or traveled lanes of state highways is not permitted. Trail construction shall be in accordance with those conditions as set forth in Exhibit B. All grading and construction plans and any changes thereof are subject to approval by WSDOT. B. TENANT will not allow third parties to use the trail as access to private property or improvements. Furthermore, in using the Premises, it is expressly agreed that TENANT shall: (1) comply with all applicable federal, state, and local laws, ordinances, and regulations, including environmental requirements that are in force or which may hereafter be in force; and (2) secure all necessary permits and licenses for the uses of the Premises authorized in this Lease. TENANT hereby agrees to indemnify, defend and hold harmless WSDOT from all claims or suits resulting from TENANT's failure to comply with such requirements. C. No signs, other than directional signs or that sign further described herein, are permitted. WSDOT owned fences in place at the time of execution of this Lease or relocated to separate the Premises from the traveled roadway will be maintained by WSDOT. Nothing is to be attached to WSDOT's fence without prior written approval. If any fence is damaged as a result of the activities authorized by this Lease, TENANT will promptly repair such damage at its cost to WSDOT's satisfaction. D. Within thirty (30) calendar days of occupancy, TENANT at is sole expense shall erect and maintain a permanent sign at all entrances to the Trail located on WSDOT right of way, stating as follows: RES 419 Page 5 of 20 Rev. 12/15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 "This trail is located on highway right of way under a cooperative agreement between Jefferson County and the Washington State Department of Transportation. " E. WSDOT does not warrant that the unconstructed right of way is suitable for TENANT's purposes. 8. MAINTENANCE RESPONSIBILITIES. A. TENANT shall perform or cause to be performed at its sole expense all maintenance of the Premises that shall include, but not be limited to, keeping the Premises in good condition, both as to safety and appearance, to the satisfaction of WSDOT. TENANT shall be responsible for vegetation control, and reconstruction and repair of any or all components of the trail facility. In addition, (and if applicable), TENANT is responsible for the regular inspection and repair of structures as required by the Code of Federal Regulations 23 CFR 650, subpart C, National Bridge Inspection standards (NBIS), EXCEPT any and all work that would require SR 20 or SR 101 closure. B. TENANT warrants that any landscaping planted and maintained on the Premises will not damage, threaten to damage, or otherwise adversely affect any part or component of the state's highway facility or operation, or adversely affect traffic safety. 9. ENVIRONMENTAL REQUIREMENTS. A. TENANT represents, warrants, and agrees that it will conduct its activities on and off the Premises in compliance with all applicable environmental laws. As used in this Lease, the term "Environmental Laws" means all federal, state, and Iocal environmental laws, rules, regulations, ordinances, judicial, or administrative decrees, orders, decisions, authorizations, or permits, including, but not limited to, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq., the Clean Air Act, 42 U.S.C. § 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11001, et seq., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq., the Oil Pollution Control Act, 33 U.S.C. § 2701, et seq., and Washington or any other comparable local, state, or federal statute or ordinance pertaining to the environment or natural resources and all regulations pertaining thereto, including all amendments and/or revisions to said laws and regulations. B. Toxic or hazardous substances are not allowed on the Premises without the express written permission of WSDOT and under such terms and conditions as may be specified by WSDOT. For the purposes of this Lease, "Hazardous Substances," shall include all those substances identified as hazardous under the Comprehensive Environmental Response, RES 419 Page 6 of 20 Rev. 12/15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., and the Washington Model Toxics Control Act, RCW 70.105D et seq., including all amendments and/or revisions to said laws and regulations, and shall include gasoline and other petroleum products. In the event such permission is granted, the use and/or disposal of such materials must be done in a legal manner by TENANT. C. TENANT agrees to cooperate in any environmental investigations conducted by WSDOT staff or independent third parties where there is evidence of contamination on the Premises, or where WSDOT is directed to conduct such audit by an agency or agencies having jurisdiction. TENANT will reimburse WSDOT for the cost of such investigations, where the need for said investigation is determined to be caused by TENANT's operations. TENANT will provide WSDOT with notice of any inspections of the Premises, notices of violations, and orders to clean up contamination. TENANT will permit WSDOT to participate in all settlement or abatement discussions. In the event that TENANT fails to take remedial measures as duly directed by a state, federal, or local regulatory agency within ninety {90} calendar days of such notice, WSDOT may elect to perform such work, and TENANT covenants and agrees to reimburse WSDOT for all direct and indirect costs associated with WSDOT's work where those costs are determined to have resulted from TENANT's use of the Premises. TENANT further agrees that the use of the Premises shall be such that no hazardous or objectionable smoke, fumes, vapor, odors, or discharge of any kind shall rise above the grade of the right of way. D. For the purposes of this Lease, "Costs" shall include, but not be limited to, all response costs, disposal fees, investigatory costs, monitoring costs, civil, or criminal penalties, and attorney fees and other litigation costs incurred in complying with state or federal environmental laws, which shall include, but not be limited to, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq; the Clean Water Act, 33 U.S.C. § 1251; the Clean Air Act, 42 U.S.C. § 7401; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901; and the Washington Model Toxics Control Act, RCW 70.105D et seq., including all amendments and/or revisions to said laws and regulations. E. TENANT agrees to defend, indemnify, and hold harmless WSDOT from and against any and all claims, causes of action, demands, and liability including, but not limited to, any costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments, and attorneys' fees associated with the removal or remediation of any Hazardous Substances that have been released, or otherwise come to be located on the Premises, including those that may have migrated from the Premises through water or soil to other properties, including without limitation, the adjacent WSDOT property and which are caused by or result from TENANT's activities on the Premises. TENANT further agrees to retain, defend, indemnify, and hold harmless WSDOT from any and all liability arising from the offsite disposal, handling, treatment, storage, or transportation of any such Hazardous Substances removed from said Premises. RES 419 Page 7 of 20 Rev. 12.15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 E. WSDOT hereby agrees to indemnify and hold harmless TENANT from any costs or liabilities associated with the removal or remediation of any Hazardous Substances that have been released, or otherwise come to be located on the Premises by the acts or omissions of WSDOT, its employees, contractors, and agents. WSDOT further agrees to retain and indemnify and hold harmless TENANT from any and all liability arising from the offsite disposal, handling, treatment, storage, or transportation of any such Hazardous Substances removed from said Premises. G. The provisions of this Section shall survive the expiration or termination of this Lease. 10. WSDOT'S RESERVATION OF RIGHT TO MAINTAIN AND GRANT UTILITY FRANCHISES AND PERMITS AND TO LEASE FOR COMPATIBLE PURPOSES. A. WSDOT reserves the right for utility franchise and permit holders to enter upon the Premises to maintain facilities and, for itself, to grant utility franchises and/or permits within the Premises. Such installation will be accomplished in such a manner as to minimize any disruption to TENANT. The franchise/permit holder will be required to restore paving and grading damaged by the installation. WSDOT also reserves the right to withdraw portions of the Premises for uses such as, but not limited to, telecommunications transmission sites, which WSDOT determines to be reasonably compatible with TENANT's authorized use of Premises. B. TENANT shall not disturb markers installed by a franchise/permit holder and will contact and provide notice to any franchise/permit holder and all owners of underground facilities prior to any excavation. TENANT shall contact WSDOT and call the Underground Utility Locating Service, or its successor organization, as part of its efforts to ascertain any and all owners of underground utility facilities and to locate the utility. TENANT shall not damage legally installed underground utilities. TENANT shall comply with all applicable provisions of chapter 19.122 RCW relating to underground facilities. 11. TAXES, ASSESSMENTS, AND UTILITIES. TENANT agrees to pay all assessments that benefit the Premises and/or which may hereafter become a lien on the interest of TENANT in accordance with RCW 79. 4.010. TENANT agrees to pay all taxes that may hereafter be levied or imposed upon the interest of TENANT or by reason of this Lease. TENANT is responsible for and agrees to pay the cost for all utilities, including, but not limited to, surcharges, fuel adjustments, rate adjustments and taxes that serve the Premises. 12. WSDOT'S APPROVAL OF DESIGN AND CONSTRUCTION. TENANT covenants that any construction on the Premises will not damage, threaten to damage, or otherwise adversely affect any part or element of the highway facility or its operation. WSDOT shall be furnished with one (1) complete set of plans, details, and specifications and revisions thereto for grading and all RES 419 Page 8 of 20 Rev. 12? 15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 improvements proposed to be placed on the Premises, and no work shall be done without prior written approval of such plans by WSDOT. All construction work shall be done in conformity with the plans and specifications as approved. WSDOT may take any action necessary, including directing that work be temporarily stopped or directing that additional work be done, to ensure compliance with the plans and specifications, protection of all parts and elements of the highway facility, and compliance with WSDOT's construction and safety standards. The improvements shall be designed and constructed in a manner that will permit WSDOT access to the highway facility for the purposes of inspection, maintenance, and construction, when necessary. 13. LIMITATIONS. TENANT expressly acknowledges and agrees that WSDOT's rights under this Lease to review, continent on, disapprove, and/or accept designs, plans specifications, work plans, construction, equipment, installation; (a) exist solely for the benefit and protection of WSDOT; (b) do not create or impose upon WSDOT any standard or duty of care toward TENANT, all of which are hereby disclaimed; (c) may not be relied upon by TENANT in determining whether TENANT has satisfied any and all applicable standards and requirements; and (d) may not be asserted, nor may WSDOT's exercise or failure to exercise any such rights be asserted, against WSDOT by TENANT as a defense, legal, or equitable, to TENANT's obligation to fulfill such standards and requirements and regardless of any acceptance of work by WSDOT. 14. NON -COMPLETION OF CONSTRUCTION. TENANT shall obtain WSDOT's approval of construction drawings, complete construction of the project according to the approved plans, and open the trail to the public within six (6) months of the effective date of this Lease, unless the approved construction period is extended under the terms of Section 5.A.(5). 15. "AS BUILT" PLANS. Within sixty (60) days of the date the trail construction is completed, TENANT shall provide WSDOT with a complete set of dimensioned "As -Built" scale drawings showing at least the information following: (a) trail centerline; (b) ties to beginning and end of trail; (c) underground utilities; and (d) such other information as WSDOT may request. Acceptability of the As -Built drawings shall be determined solely by WSDOT. In the event TENANT fails to provide such plans within the prescribed time period, TENANT hereby agrees that WSDOT shall have the right, at its option, to contract with a consultant in order to secure such plans and TENANT agrees to reimburse WSDOT for all costs incurred in obtaining said plans within thirty (30) calendar days of the date of WSDOT's invoice. 16. LIENS. A. TENANT shall at all times indemnify and hold harmless WSDOT from all claims for labor or materials in connection with construction, repair, alteration, maintenance, or installation of structures, improvements, equipment, or facilities on or within the Premises, and from the cost of defending against such claims, including attorney fees. RES 419 page 9 of 20 Rev. 1215 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 B. In the event a lien is filed upon the Premises, TENANT shall: (a) record a valid Release of Lien; (b) deposit sufficient cash with WSDOT to cover the amount of the claim on the lien in question and authorize payment to the extent of said deposit to any subsequent judgment holder that may arise as a matter of public record from litigation with regard to lienholder claim; or (c) procure and record a bond which releases the Premises from the claim of the lien and from any action brought to foreclose the lien. C. Should TENANT fail to accomplish a, b, or c above within fifteen (15) calendar days after the filing of such a lien, the Lease shall be in default. 17. ENCUMBRANCES. It is expressly understood that TENANT shall not encumber the Premises. 18. WSDOVS RIGHT OF ENTRY AND INSPECTION. WSDOT, for itself, its agents, and contractors and for the Federal Highway Administration (FHWA), reserves the right to enter upon the Premises at any time without notice to TENANT for the purpose of inspection, maintenance, construction, or reconstruction of the highway facility or any element thereof, or to perform environmental reviews. This includes, but is not limited to, two future WSDOT culvert projects for fish barrier removal, located within the Premises. WSDOT shall in no way be responsible for any incidental or consequential damages due to such loss of use, if any, by TENANT. WSDOT and FHWA may from time -to -time go upon the Premises for the purpose of inspecting any excavation, construction, or maintenance work being done by TENANT. Further, this right shall not impose any obligation upon WSDOT to make inspections to ascertain the safety of TENANT's improvements or the condition of the Premises. 19. INSURANCE. A. TENANT warrants that it is self-insured, and agrees to provide acceptable evidence of its self-insured status to WSDOT. TENANT's insurance policy must provide liability coverage for the Premises, including public liability coverage for bodily injury, property damage, and personal injury of not less than Two Million and no,�100 Dollars ($2,000,000.00) combined single limit per occurrence, with a general aggregate amount of not less than Four Million and no/100 Dollars ($4,000,000.00) per policy period. Such aggregate limits shall apply for this Premises location, and coverage under said policy shall be triggered on an "occurrence basis," not on a "claims made" basis. TENANT shall increase the policy limits at its sole cost, when and if WSDOT deems it necessary due to TENANT's use of the Premises within ten (10) calendar days of WSDOT's written request to do so. B. TENANT assumes all obligations for premium payment, and in the event of non- payment is obligated to reimburse WSDOT the cost of maintaining the insurance coverage and RES 419 Page 10 of 20 Rev. I Z+ 15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 any legal fees incurred in enforcing such reimbursement in the event TENANT fails to pay the policy premiums. C. Coverage, if obtained by TENANT in compliance with the Section, shall not be deemed as having relieved TENANT of any liability in excess of such coverage. D. In the event TENANT, after commencement of this Lease, elects to terminate its self-insured status and secure commercial liability coverage, TENANT will promptly notify WSDOT, promptly secure insurance coverage as designated herein or as amended by WSDOT and promptly provide a certificate of insurance from an insurer licensed to conduct business in the state of Washington, to the satisfaction of WSDOT. WSDOT shall be named as an additional insured by endorsement of the liability policy required, utilizing ISO Form 2026 (Additional Insured ,., Designated Person or Organization) or its equivalent without modification. The endorsement shall require the insurer to provide the WSDOT, Real Estate Services Office, P.O. Box 47338 Olympia, WA 98504-7338, with no less than thirty (30) calendar day's written notice before any cancellation of the coverage required herein. 20. HOLD HARMLESSIINDEMNIFICATION. A. TENANT, its successors, and assigns, will protect, save, and hold harmless WSDOT, its authorized agents, and employees, from all claims, actions, costs, damages (both to persons and/or property), or expenses of any nature whatsoever by reason of the acts or omissions of TENANT, its assigns, subtenants, agents, contractors, licensees, invitees, employees, or any person whomsoever, arising out of or in connection with any acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Premises. TENANT further agrees to defend WSDOT, its agents, or employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced, arising out of, or in connection with acts or activities related to this Lease, whether those claims, actions, costs, damages, or expenses result from acts or activities occurring on or off the Premises. This obligation shall not include such claims, actions, costs, damages, or expenses which may be caused by the sole negligence of WSDOT, its authorized agents, or employees; provided that, if the claims or damages are caused by or result from the concurrent negligence of, (a) WSDOT, its agents, or employees; and (b) TENANT, its assigns, subtenants, agents, contractors, licensees, invitees, employees, or involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of TENANT or its assigns, subtenants, agents, contractors, licensees, invitees, employees. B. TENANT specifically assumes potential liability for the actions brought by TENANT's employees and solely for the purposes of this indemnification and defense, TENANT specifically waives any immunity under the State industrial insurance law, Title 51 RCW. TENANT recognizes that this waiver was the subject of mutual negotiations. RES 419 Page I 1 of 20 Rev. 12115 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 C. The indemnification and waiver provisions contained in this Section shall survive the termination or expiration of this Lease. 21. NONDISCRIMINATION. TENANT, for itself, its successors, and assigns, as part of the consideration hereof, does hereby agree to comply with all applicable civil rights and antidiscrimination requirements including, but not limited to, chapter 49.60 RCW. 22. ASSIGNMENT. Neither this Lease nor any rights created by it may be assigned, sublet, or transferred in written or oral form. 23. SURRENDER OF PREMISES AND REMOVAL OF TENANT'S IMPROVEMENTS AND PERSONAL PROPERTY. A. Upon termination of this Lease, TENANT shall cease its operations on and/or use of the Premises. In the event TENANT fails to vacate the Premises on the date of termination, TENANT shall be liable for any and all costs to WSDOT arising from such failure. As used herein, "vacate" shall include preventing use of the Premises by the public. B. Upon termination of this Lease, TENANT agrees, if so directed by WSDOT, to restore grades and on limited access highways also to relocate WSDOT's fences, if any, to their configurations prior to TENANT's occupancy. This work is to be done at TENANT's sole expense to the satisfaction of WSDOT. C. Upon termination of this Lease TENANT agrees, if so requested by WSDOT, to obliterate the trail, remove all improvements and personal property, and/or provide erosion control treatment at its own expense and to WSDOT's satisfaction, returning the right of way to its original condition before the construction of the trail. D. TENANT shall accomplish the above work by the date of termination. If, after termination of this Lease, TENANT has not removed its improvements and/or personal property and returned the right of way to its original condition, if requested to do so, within the time allowed, WSDOT may, but need not, remove and dispose of said improvements and/or personal property and return the right of way to its original condition at the expense of TENANT, and TENANT shall reimburse WSDOT for any and all expenses incurred by WSDOT in connection with such removal, work or disposal within thirty (30) calendar days of the date of WSDOT's invoice. 24. NO RELATIONSHIP ESTABLISHED. WSDOT shall in no event be construed to be a partner with, associate, or joint venturer of TENANT or any party associated with TENANT. TENANT shall not create any obligation or responsibility on behalf of WSDOT or bind WSDOT in any manner. RES 419 Page 12 of 20 Rev. l2/15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 25. TRANSPORTATION PURPOSES. A. TENANT and WSDOT hereby affirm that upon termination or expiration of this Lease for any reason and the subsequent use of the Premises for transportation or other purposes, such use will not be considered the use of any publicly -owned land from a public park, recreation area, or wildlife and waterfowl refuge within the meaning of 23 U.S.C. 138 and 49 U.S.C. 303 (former 49 U.S.C.I 653 (f), Section "4f'). If this Lease is terminated for highway construction and WSDOT or authorized local, state, or federal official having jurisdiction of the land or a court of competent jurisdiction determines that replacement of the trail is required under 23 U.S.C. 138 and 49 U.S.C. 303, TENANT agrees that it shall be responsible for and promptly replace the trail as required and pay all such costs in accordance with Section 5.C. of this Lease. B. TENANT further acknowledges, agrees, and promises not to use Outdoor Recreation Funds as provided for in the Land and Water Conservation Fund Act, 16 U.S.C. 460-1, sections 4-11 (see section 8(0(3) within state owned right of way; such funds may be used outside of the state owned right of way). TENANT's grant funding for its trail project, Project Number: 12-1250C / Project Title: Discovery Bay Shoreline Restoration & Trail Constr., was obtained through a project grant agreement entered into between the State of Washington Recreation and Conservation Funding Board (RCFB) and Jefferson County (Sponsor). See Exhibit C, attached hereto and incorporated herein. The grant funding was distributed from the Aquatic Lands Enhancement Acct of the State of Washington and administered by the Recreation and Conservation Office. TENANT acknowledges and agrees that the Leased Premises as identified in this Lease may only be used for the purposes identified herein until the Lease expires or is terminated pursuant to the terms hereof; in other words, this Lease does not provide for perpetual use of the Leased Premises and is terminable by WSDOT or the TENANT as provided under the terms of this Lease. WSDOT shall not be responsible in any way under any circumstance to TENANT or any other person or entity whatsoever should WSDOT exercise its right to terminate this Lease, or any portion thereof, as provided herein. In addition to the terns of this Lease, TENANT shall be solely liable for and shall hold harmless and defend the Washington State Department of Transportation for any impacts to TENANT, the trail located on the Leased Premises, or grant funding triggered by any WSDOT action or inaction taken pursuant to the terms of this Lease, and TENANT shall be solely responsible for the payment of any claims, judgments, terms, assessments, penalties, expenses, interest and similar costs or charges, including all WSDOT costs incurred, including attorneys fees should WSDOT exercise any of its rights provided in this Lease. 26. CONDITION OF THE PROPERTY. WSDOT and TENANT acknowledge that they have jointly examined the Premises identified in Exhibit A, attached hereto, and TENANT accepts said Premises in its present condition as of the Commencement Date of this Lease. RES 419 Page 13 of 20 Rev. 12/15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 27. BINDING CONTRACT. This Lease shall not become binding upon WSDOT unless and until executed for WSDOT by the Secretary of Transportation, or her duly authorized representative. 28. ATTORNEYS' FEES. In the event of any controversy, claim, or dispute arising out of this Lease, each party shall be solely responsible for the payment of its own legal expenses, including but not limited to, attorney's fees and costs. 29. MODIFICATIONS. This Lease contains all the agreements and conditions made between the parties hereto and may not be modified orally or in any manner other than by written amendment, signed by all authorized parties thereto. 30. INTERPRETATION. This Lease shall be governed by and interpreted in accordance with the laws of the state of Washington. The titles to paragraphs or sections of this Lease are for convenience only and shall have no effect on the construction or interpretation of any part hereof. 31. SEVERABILITY. In case any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Lease shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 32. VENUE. TENANT agrees that the venue of any action or suit concerning this Lease shall be in the Thurston County Superior Court and all actions or suits thereon shall be brought therein, unless applicable law requires otherwise. 33. TOTALITY OF AGREEMENT. It is understood that no guarantees, representations, promises, or statements expressed or implied have been made by WSDOT except to the extent that the same are expressed in this Lease. 34. MEMORANDUM OF LEASE. The parties hereby agree to execute and record a memorandum of lease, if either party so requests. 35. NOTICES. Wherever in this Lease written notices are to be given or made, they will be sent by certified or overnight mail addressed to the parties at the addresses listed below, unless a different address has been designated in writing and delivered to the other party. WSDOT: DEPARTMENT OF TRANSPORTATION (Mailing Address) Attn.: Property Management Program Manager P. O. Box 47338 Olympia, WA 98504-7338 RES 419 Page 14 of 20 Rev. 12115 Lease No.: TR -03-I3571 I.C. No.: 3-16-05117 DEPARTMENT OF TRANSPORTATION (Physical Address) Attn.: Property Management Program Manager 7345 Linderson Way SW Tumwater, WA 98501 � r � ► r_f ► r r a1r�i��Y•] i; [K•li� � �i� Attn: Director/County Engineer 623 Sheridan Street Port Townsend, WA 98368 THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK RES 419 Page 15 of 20 Rev. 11"15 Signatures: JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS By: Kathleen Kler, Chair Da M- Dated: L10 -i - By ja—ri Kate Dean, Member Dated:4KJL-11-�03-,() �� APPROVED � TO FORM By: ,. Michael Haas Jefferson County Prosecutor's Office Date: Lease No.: TR -03-I3571 I.C. No.: 3-16-05117 Accepted and Approved by: WASHINGTON STATE DEPARTMENT OF TRANSPORTATION By:� Allen Partin Real Estate Services Manager, Olympic Region Dated: r --1 APPROVED AS TO FORM L-05 Ann E. Salay Senior Assistant Attorney General Date: RES 419 Page 16 of 20 Rev. 12115 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 COUNTY ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss COUNTY OF JEFFERSON ) 1 On this day of4__2 0 2017 before me personally appeared Kathleen Kler, to me known to be the duly appointed Commissioners of Jefferson County, and that s/he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said Jefferson County, for the uses and purposes therein set forth, and on oath states that s/he was authorized to execute said instrument. IN WI"DESS WHEREOF, I have hereunto set my hand and affixed my official seal the day of , 2017. ,9 ' �, •�sioi�"'`r s ��i (Signature) iCD 4&, (Print or typ� e) /,® ,,;r, ', -r AZ Notary Public in and for the State of Washington �� �4�t►»w�r�" _ � �� residing at " ;N;.,� ik? p01�� �tiy►� Stk'� My commission expires, RES 419 Page 17 of 20 Rev. 12"15 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 COUNTY ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss COUNTY OF JEFFERSON ) On this day of�"' 2017 before me personally appeared David Sullivan, to me known to be the duly appointed Commissioners of Jefferson County, and that s/he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said Jefferson County, for the uses and purposes therein set forth, and on oath states that s/he was authorized to execute said instrument. IN WITNESS Imo! ' day of WHEREOF, have hereunto set my hand and affixed my official seal the " 2017. r OLYN q ��® (Signa � ture) zqg' 0 r" Z �" " • " _ (Print or typ . name) _S p Notary Public in and for the State of Washington par�ti11 r $- '� residing at "' s My commission expires � : I®�+� � ►tit �N� �..� RES 419 Page 18 of 20 Rev. 12115 Lease No.: TR -03-I3571 I.C. No.: 3-16-05117 COUNTY ACKNOWLEDGMENT STATE OF WASHINGTON) ) ss COUNTY OF JEFFERSON ) On this da of Y 2017 before me personally appeared Kate Dean, to me known to be the duly appointed Commissioners of Jefferson County, and that s/he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said Jefferson County, for the uses and purposes therein set forth, and on oath states that s/he was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the ` ,2'_ da of ?r?' , 20I7. Y � ..„ LYN (Signature) '``�► Cjoaaatitiq+� A. ' (Print or type ame) r cn= ®-� %®+++ u � yti - '� Notary Public in for the State of Washington r c ® r „v Mycommission expires�. ®® rl `ittitxs`®> ` RES 419 Page 19 of 20 Rev. 12115 Lease No.: TR -03-13571 I.C. No.: 3-16-05117 WSDOT ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss COUNTY OF THURSTON ) On this ,,,,,,., day of 20a before me personally appeared Allen Partin to me known to be the du y appointed Olympic Region Real Estate Services Manager, and that he executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said State of Washington, for the uses and purposes therein set forth, and on oath states that he was authorized to execute said instrument. IN WITNESS WHEREOF ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, day of hereunto set my hand and affixed my official seal the - , 20 (Signature) (Print r type name) Notary Public i ,and or the Statp of Washington at oresiding commission expires My p e.,,.,. RES 419 Page 20 of 20 Rev. 1215 Department of Public Works O Consent Agenda Page 1 of 1 Jefferson County Board of Commissioners Agenda Request To: Board of Commissioners Philip Morley, County Administrator From: Monte Reinders, Public Works Director/ County Enginee Agenda Date: April 10, 2017 Subject: WA State Dept. of Transportation (WSDOT) Trail Lease, for Olympic Discovery Trail Project, South Discovery Bay - Segment A (Ft Replacing 1998 SR 20 Lease for Larry Scott Trail from Reynolds Rd to Mill Rd) Statement of Issue: The Board is asked to approve the WSDOT Trail Lease for the Olympic Discovery Trail (ODT) Project; Segment A, located in South Discovery Bay. This lease permits Jefferson County to construct and maintain the ODT on WSDOT property and is required by the trail construction grant funder, the Recreation Et Conservation Office (RCO), to establish control and tenure. This also replaces the 1998 State Route 20 Lease for the Larry Scott Trail from Reynolds Road to Mill Road. Analysis/Strategic Goals/Pro's £t Con's: This project is included in the officially adopted 2017-2022 Transportation Improvement Program and the 2017 Annual Construction Program as Item No. 7. This project will complete a section of the ODT from Old Gardiner Rd to Salmon Creek. Fiscal Impact/Cost Benefit Analysis: This agreement permits the County to construct and maintain improvements on WSDOT land. Construction of this project is funded by RCO grant #12-1250C with local matching funds previously identified. Costs associated with the WSDOT Trail Lease are budgeted in the funding. Recommendation: The Board is requested to sign (3) copies of the Construction Agreement and return (3) copies to Public Works. Public Works will return to the BOCC 1 executed original upon signature by WSDOT. Department Contact: John Fleming PE, Project Manager, (360) 385-9217 Reviewed P ip Morley, Coun' inistrator Date CONTRACT REVIEW FORM O—1 f CONTRACT WITH: WSDOT (Contractor/Consultant) CONTRACT FOR: WSDOT Trail Lease- Olympic Discovery TERM: 20 years, renewable for Trail, South Discovery Bay, Segment A; & 2 @ 10 year periods replaces 1998 State Route 20 Lease for Larry Scott Trail from Reynolds Rd to Mill Rd COUNTY DEPARTMENT: For More Information Contact: Contact Phone #: RETURN TO: Tina in AMOUNT: N/A Revenue: Expenditure: Matching Funds Required: Sources(s) of Matching Funds Step 1: APPROVED FORM Comments Public Works John Fleming PE (360) 385-9217 RETURN BY: 3/21/2017 33402.73 180.000.010.59500.65 Yes Local Funds REVIEW BY R Review by: I Date Reviewed: L PROCESS: X Exempt from Bid Process Consultant Selection Process Cooperative Purchase Competitive Sealed Bid Small Works Roster Vendor List Bid RFP or RFQ Other l ❑ R�t reed for revision (See Comments) Step 2: REVIEW BY PRO Review by: Date Reviewed: �OAPPROVED AS TO FORM ❑ mments A) a k-1 a PF A rl-A G ATTORNEY revision (See Comments) G e, u: 6 4 a-, < r .4- c/Jvt ►^`ii � /6L Michael Haas Step 3: (If required) DEPARTMENT MAKES REVISIONS AND RESUBMITS TO RISK MANAGEMENT AND PROSECUTING ATTORNEY (' Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF ORIGINALS ECEUV= Step 5: SUBMIT TO BOCC FOR APPROVAL MAR 1 m-7 Submit originals and 7copies of Contract, Review Form, and Agenda Bill to BOCC Office. Place "Sign Here" markers on all places the BOCC needs to sign. JEFFERSow CO(. MUST be in BOCC Office by 4:30 p.m. TUESDAY for the following Monday's agenda. PROSECUTING AT Top, t JN (This form is to stay with the contract throughout the contract review process and accompany the Agenda Bill.) , z -v H:\backup of public P drive\PROJECTS\CR860100 Olympic Discovery Trail ODT\WSDOT Trail Lease\Contract Review Form-WSDOT Trail Lease.docx rev. 6/10/2013 COPY MEMORANDUM OF LIABILITY COVERAGE ("MLC") FOR THE WASHINGTON COUNTIES RISK POOL ("WCRP") JOINT SELF-INSURANCE LIABILITY PROGRAM 1. MLC NUMBER: 2. MLC PERIOD 3. MEMBER COUNTY 4. LIMIT OF LIABILITY COVERAGE: S. DEDUCTIBLE: DECLARATIONS 1617-RISKPOOL-JFC'O Frern 12:00:01 a.m. on October 1. 2016 until 12:00:01 a.m. on October L 2017 Jefferson County C/o Board of County Commissioners 1820 Jefferson Stree: PO Box 1220 Port Townsend, Washington 98368 $10,000.000 each occurrence $25.000 each occurrence 6. COVERAGES: The joint self-insurance liability coverage as is afforded by this MLC is only for .he coverages that are indicated below. WCRP"s liability under this MLC shall be subject to all terms and conditions herein and any endorsements attached. a. Bodily injury b. Personal injury c. Property damage d. Errors and emissions e. Advertising Injury 7. DEFINITION OF TERMS: Terms appearing in bold type in the provisions of this MLC shall be interpreted only as defined in Section 6. DEFINITIONS. 8. MLC COMPOSITION: This MLC consists of this Dcclarations page, the Coverage Form and applicable endorsements. Dated this 28th day of September. 2016. WASHINGTON COUNTIES RISK POOL By: Ptt~c� Keith Goehner. Py2017 President MEMOR.ALNDUM OF LIA131LII Y COVERAUL 10101/2016-10XI112017 Fnr the WASHINGTON CObrNTIES RISK POOL JOINT SELF-INSURANCE LIABILITY PROGRAM