Loading...
HomeMy WebLinkAboutLog170 STATE OF WASHINGTON PARKS AND RECREATION COMMISSION Rex Derr, Director f' :.-.: i; Fort Flagler State Park Water Easement and Agreement #2003-12-640 THIS AGREEMENT is made between the State of Washington, acting through the WASHINGTON STATE PARKS AND RECREATION COMMISSION, as grantor (hereafter "State") and PUBLIC UTILITY DISTRICT NO.1 OF JEFFERSON COUNTY, (hereafter "PUD"). AUTHORITY State is acting under those authorities granted to State and described under RCW 79A.05.070, and Washington State Parks and Recreation Commission action of May 3, 2001. The easement granted hereunder is granted subject to and conditioned upon the following terms, conditions and covenants which the PUD and State hereby promise to observe and perfonTI faithfully and fully (collectively, the "Agreement"). EASEMENT 1.0 Conyeyance. State, for the consideration described in Section 1.2 below, hereby conveys and quit claims to the PUD a non-exclusive, non-divisible easement over a parcel ofland in Jefferson County described and shown as set forth in Exhibit A (hereafter "Easement Area"), together with the right of ingress and egress over and across existing roads. This easement is being conveyed pursuant to that Interlocal Agreement between State and the PUD, dated January 4,2005, as amended, which transfers to the PUD full ownership, operations and maintenance of the Facilities as described in section 2.0 ofthis agreement. 1.1 Term. The easement shall be perpetual unless terminated as set forth hereafter. 1.2 Consideration. As consideration for the easement granted herein, State and the PUD recognize mutual benefits: The PUD owns and operates the domestic water distribution system within Fort Flagler State Park (Park); State provides location (as shown by Exhibit B) for the reservoir from which the PUD supplies domestic water. 1.3 Appurtenant Easement. The easement granted herein shall be deemed appurtenant to the PUD's water system. 1.4 Title/Disclaimer. The rights granted herein are subject to permits, leases, licenses and easements, if any, heretofore granted by State affecting the property subject to this Agreement. 1.5 Operation and Maintenance of Submarine Line and DNR Easement. This easement does not provide assignment of Agreement No. 36236 granted Julx,27, 1972..by LuG ITEIVI # (tD Page. L ot~ 2.2 PUD's Use and Activities. The PUD shall exercise its rights under this Agreement so as to minimize, and avoid if reasonably possible, interference with State's use of the Easement Area and adjoining park property for park purposes. The PUD shall at all times conduct its activities on the Easement Area so as not to interfere with, obstruct or endanger the public or State's operations or facilities. RESERVATIONS 3.0 Reservations to State. State reserves all ownership of the Easement Area and resources thereon (including timber) and the right of use for any purpose including, but not limited to, the right to remove resources within the Easement Area; the right at all times to cross and re-cross the Easement Area at any place on grade or otherwise; and the right to use, maintain, patrol, reconstruct or repair the Easement Area so long as any such action by State does not unreasonably interfere with the PUD's rights. Control of park gates, roads and lands shall remain with State at all times. State may grant to third parties any and all rights reserved, including easements and leases, so long as any such right granted to any third party, or the exercise thereof, does not unreasonably interfere with the PUD's rights. In the event State elects to exercise rights provided by this reservation, including future grants to third parties, State shall give written notice to the PUD of such election. State reserves the right to erect a communications antenna within the Easement Area and/or to enter into an agreement with the PUD or other agency to provide for such an antenna. 3.1 Use of Area by State. The PUD has been advised and is aware that (a) State is using or intends to use the Easement Area and adjoining park property for recreational park purposes; (b) new park facilities may be constructed in addition to or in replacement of such facilities already existing; and (c) construction of such new facilities may require the installation of roads and other fixtures or improvements over, upon, across and under the Easement Area, and, in addition, may require the location of structures with permanent foundations within the Easement Area. Nothing herein prevents or precludes State from undertaking construction, installation and use of the Easement Area and adjoining park property; provided, however, that in pursuing such construction or allowing recreational use, the State will not materially impact or interfere with the PUD's operation, maintenance, repair and use of the Facilities. The State will not be liable to the PUD or any other party for loss or injury resulting from any damage or destruction of the PUD's Facilities directly or indirectly caused by State's use ofthe Easement Area, adjoining park property, or State's facilities on the Easement Area or adjoining park property, excepting for loss or injury which results solely from State's failure to exercise reasonable care not to damage or destroy the PUD's Facilities, or failure to take reasonable care to ensure that the public does not damage or destroy the PUD's Facilities. # Page LOG ITEM LiD ?- ot S-. t, -~:'~::_ ,'.t ';t.':>,,~ c. Specific physical characteristics, teclmical specifications ana components.... of Facilities; d. Schedule of completion dates for Facilities components; e. Detailed description of activities to be conducted in the Easement Area; and f. Detailed description of site restoration plan. No construction, reconstruction or development of any kind may take place within the Easement Area prior to State's written approval of the Plan of Development and verification that the PUD has obtained all applicable permits. Within 14 days of submission of any Plan of Development, the State will notify the PUD in writing of its verification of permits and approval of the Plan of Development. Nothing in this Agreement shall be deemed to impose any duty or obligation on State to determine the adequacy or sufficiency of the PUD's Plan of Development or to ascertain whether the PUD's construction is in conformance with the Plan of Development and Facilities Specifications approved by State. It is expressly understood that a Plan of Development is not required for the pre-approved water supply line from the tank to the Park property line, as shown on the Fort Flagler State Park Water System Improvements 95% Review, submitted by Parametrix. 5.1 Unauthorized Improvements. All improvements not included in the Permitted Use ofthe Easement Area, or as otherwise approved in advance in writing by State, are prohibited. Improvements placed within the Easement Area without State's prior written consent shall immediately become the property of State or at State's option, may be required to be removed by the PUD at its sole cost. 5.2 Facilities Specifications. The PUD shall so place, protect, and bury the Facilities as to allow the unobstructed movement of any equipment or materials across the surface of the Easement Area and shall install the Facilities at such depth as to not interfere with State's normal and usual use ofthe Easement Area. The PUD shall mark the location of the buried Facilities as required by the applicable regulatory and permitting authorities or as directed by State. If the PUD fails to place or bury the Facilities according to the Facilities Specifications or as otherwise approved in writing by State, the PUD shall hold State harmless from any and all damage to the Facilities. Further, the PUD shall indemnify, defend and hold harmless State against all claims or liabilities resulting directly or indirectly from the PUD's failure to properly place or bury the Facilities per the Facilities Specifications and other requirements contained in this Agreement. 5.3 Damage. The PUD, when exercising the rights granted herein, shall repair or cause to be repaired, at its sole cost and expense, all damage to improvements on State lands occasioned by it, which is in excess of that which it would cause through normal and prudent exercise of such rights. LOG ITEM [1t) ~ ot5 # Page 6.3 Successors. The rights and obligations of the parties shall inure to the benefit of and be binding upon their respective successors and assigns. 6.4 Forfeiture. With the exception ofthe planned extension of the line to serve property located outside ofFt. Flagler State Park, in the event that any portion ofthe Easement Area is not used by the PUD for any three (3) -year period, the PUD's rights within the Easement Area shall revert to State, and the Easement Area shall be freed from the easement as fully and completely as ifthis Agreement had not been entered into. 6.5 Termination. Except as otherwise stated herein, this Agreement may not be terminated except by the mutual, wlitten consent of both parties. In the event that this Agreement is terminated, the PUD's rights within the Easement Area shall immediately revert to State, and the Easement Area shall be freed from the easement as fully and completely as if this Agreement had not been entered into. 6.6 Indemnity. To the extent permitted by law, the PUD shall indemnify, defend with counsel acceptable to State, and hold harmless State, its employees, officers, and agents from any and all liability, damages, expenses, causes of action, suits, claims, costs, fees (including reasonable attorney's fees), penalties, or judgments, of any nature whatsoever, alising out ofthe use, occupation, or control of the Easement Area by the PUD, its contractors, subcontractors, agents, employees, or franchisees, including but not limited to the use, storage, generation, processing, transportation, handling, disposal, release, or threatened release of any hazardous substance or materials. To the extent that RCW 4.24.115 applies, the PUD shall not be required to indemnify State from State's sole or concurrent negligence. This indemnification shall survive the forfeiture or termination of this Agreement. To the extent permitted by law, State shall indemnify, defend with counsel acceptable to the PUD, and hold harmless the PUD, its employees, officers, and agents from any and all liability, damages, expenses, causes of action, suits, claims, costs, fees (including reasonable attorney's fees), penalties, or judgments, of any nature whatsoever, arising out of its failure to comply with this Agreement. To the extent that RCW 4.24.115 applies, the State shall not be required to indemnify the PUD from the PUD's sole or concurrent negligence. This indemnification shall survive the forfeiture or termination of this Agreement. 6.7 Attorney Fees 'and Venue. In the event either party is required to incur attorney fees and costs to enforce the other party's obligations under the terms of this agreement, in addition to any other relief to which such party may be entitled, the prevailing party shall be entitled to its costs and reasonable attorney fees. Venue for any action shall be in Thurston County Superior Court. The laws of the state of Washington shall govern any dispute and the interpretation of this Agreement. 6.8 Notices and Submittals. All notices, demands, and requests required under this Agreement shall be in writing sent by United States registered or certified mail,Jlosta~ prepaid, and shall be addressed as follows: LuG II EM # t--z b Page Lf otL 6.13 Interpretation. This Agreement has been submitted to the scrutiny of all parties hereto and their counsel if desired, and shall be given a fair and reasonable interpretation in accordance with the words hereof, without consideration or weight being given to its having drafted by any party hereto or its counsel. 6.14 N on-Waiver. No failure to insist upon the strict performance of any provision of tlns Agreement shall be construed as depriving either party of the right to insist on strict performance of such provision or any other provision in the future. No waiver by either party of any provision of this Agreement shall be deemed to have been made unless expressed in writing and signed by such party. 6.15 Remedies Cumulative. The specified remedies to which the parties may resort under this Agreement are cumulative and are not intended to be exclusive of any other remedies or means of redress to which either party may lawfully be entitled in case of any breach or threatened breach by the other party. In addition to the remedies provided in this Agreement, the State or the PUD shall be entitled to the restraint by injunction of the violation, or attempted or threatened violation, of any of the terms and conditions of this Agreement. 6.16 Severability. If any term of this Agreement or the application thereof to any person or circumstance is found to be to any extent invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Agreement shall be valid and be enforced as written to the fullest extent permitted by law. 6.17 State's Consent. Except in the case of assignment and purpose ofthe easement, State shall not unreasonably withhold its consent where such consent is expressly provided for in this Agreement. 6.18 Recording. Upon full execution, the PUD shall promptly record this Agreement in Jefferson County and provide a copy ofthe recorded Agreement to State. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of this day of , 20 , - - PUD #1 OF JEFFERSON COUNTY STATE- WASHINGTON STATE PARKS & RECREATION COMMISSION By By Name Larry Fairleigh, Assistant Director Parks Development Service C>p~r LUl::i ITEM # [~D Page~_ .ots=.