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GCA 4894
WSDOT/CITY OF RENTON SPRINGBROOK CREEK WETLAND
AND HABITAT
MITIGATION BANK AGREEMENT
THIS Springbrook Creek Wetland and Habitat Mitigation Agreement
(AGREEMENT) is entered into by and between the CITY OF RENTON, a municipal
corporation, hereinafter referred to as the (CITY) and the STATE OF WASHINGTON,
DEPARTMENT OF TRANSPORTATION, hereinafter referred to as (WSDOT),
collectively referred to as the (PARTIES) and individually referred to as the (PARTY),
regarding the establishment, use, operation, and management of the Springbrook Creek
Wetland and Habitat Mitigation Bank, herein referred to as (BANK).
WHEREAS, the PARTIES desire to create the BANK for use as compensatory
mitigation for unavoidable adverse impacts to waters of the United States, including
wetlands, and to aquatic habitat, and
WHEREAS, the PARTIES have developed the Springbrook Creek Wetland and Habitat
Mitigation Banking Instrument, hereinafter (INSTRUMENT) and by this reference made
a part of this agreement, that establishes the site-specific conditions, standards, and
procedural requirements applicable to.the BANK, and
WHEREAS, the INSTRUMENT has been approved by the US Army Corps of
Engineers, US Environmental Protection Agency, US Fish and Wildlife, and the
Washington State Department of Ecology, collectively identified hereinafter as the Bank
Oversight Committee(BOC), and
WHEREAS, the US Army Corps of Engineers and the Washington State Department of
Ecology are further identified as the CHAIRS of the BOC, and
WHEREAS, the PARTIES have entered into a Memorandum of Agreement, hereinafter
(MOA), attached as Exhibit A and by this reference made a part of this agreement, with
the CHAIRS to specify responsibilities for the establishment, use, operation, and
management of the BANK, and
WHEREAS, the PARTIES have agreed to establish and operate the BANK in
accordance with the terms and conditions outlined in the MOA, and
WHEREAS, the PARTIES desire to further identify and clarify each PARTY's roles and
responsibilities related to the BANK, and
WHEREAS, pursuant to Chapter 39.34 RCW, the Interlocal Cooperation Act, the
PARTIES are each authorized to enter into an agreement for cooperative action,
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NOW THEREFORE, the PARTIES agree as follows:
1.0 OVERVIEW OF THE BANK
1.1 The physical site (SITE) of the BANK is located within the corporate limits of the
CITY. The SITE is approximately 130 acres and consists of five (5) units, herein
referred to as (UNIT). The legal descriptions for the UNITS are attached hereto
and made a part hereof as Exhibit B.
1.2 The Springbrook Pedestrian Trail (TRAIL) is located in UNIT A of the SITE and
is identified as the physical trail structure and other related elements, such as
benches, interpretive signing, and plantings within the eighty-eight (88) foot wide
TRAIL zone.
1.3 For the purposes of exchange of services, property rights, and funds between
PARTIES under the Interlocal Cooperation Act, it is acknowledged and agreed
that each respective PARTY will receive certain intrinsic and realized benefits
from the BANK. The relative value of such services, property rights, and funds to
be offered and received by each respective PARTY under this AGREEMENT has
been determined by the PARTIES to be of relative equal value.
1.4 The goal of the BANK is to improve ecological functions and values of the SITE
by re-establishing wetlands, rehabilitating and enhancing existing wetlands,
enhancing water regimes, enhancing riparian areas along Springbrook Creek,
enhancing uplands, and establishing protective buffers. When the SITE is
restored and enhanced in an approved manner, the increased value of the wetlands
and uplands will be available for use by the PARTIES in the form of Wetland
Mitigation Credits, herein referred to as (CREDITS).
1.5 CREDITS represent the increased value of the SITE due to improvements made
to the SITE. The CREDITS will be available for the PARTIES to use once they
are released by the BOC in accordance with the terms of the MOA. Available
CREDITS will be used to mitigate unavoidable wetland impacts associated with
the building of future transportation projects and other projects within the service
area(SERVICE AREA) as defined in the INSTRUMENT.
2.0 CREDIT SHARE AND MANAGEMENT
2.1 The actual total number of CREDITS associated with the BANK is 46.01;
however, the total number of CREDITS as described in the INSTRUMENT is
45.12, which reflects the 0.89 CREDIT reduction due to the TRAIL.
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2.2 As outlined in Section IV of the INSTRUMENT, the CREDIT reduction due to
the TRAIL will be deducted from the CITY's share in Year 1 and Year 5 of the
INSTRUMENT's Credit Release Schedule, equal to 0.45 CREDITS in Year 1 and
0.44 CREDITS in Year 5. Therefore, the CITY's share of the CREDITS, after the
TRAIL CREDIT reduction, is 22.115 CREDITS. If the TRAIL is not
constructed, and if the BOC agrees to restore the 0.89 CREDIT reduction due to
the proposed TRAIL, then the CITY shall receive the restored TRAIL CREDITS.
2.3 WSDOT's share of the CREDITS is 23.005 CREDITS.
2.4 CREDITS will be released by the BOC from the BANK for use by WSDOT and
the CITY according to the terms of the MOA. The PARTIES agree that WSDOT
will receive the first CREDITS released by the BOC that are necessary to satisfy
wetland mitigation requirements for projects within the SERVICE AREA which
have been funded by the 2003 and 2005 Legislative transportation packages, not
to exceed 10 CREDITS. The CITY will then receive CREDITS, until both
PARTIES have received an equal number of CREDITS, other than reduction due
to the TRAIL. Once the PARTIES have received an equal number of CREDITS,
all remaining credits, other than the CITY's reduction due to construction of the
TRAIL, will be equally divided between the PARTIES.
2.5 In the event that either PARTY has a funded project requiring additional
CREDITS, that PARTY (PARTY 1) may request that the other PARTY (PARTY
2) consider allocating a sufficient number of their CREDITS to PARTY 1 for the
funded project. PARTY 2 will consider the reasonableness and give due
consideration to PARTY 1's request; if PARTY 2 agrees with the request,
PARTY 1 will receive the necessary CREDITS from PARTY 2. PARTY 1 will
receive no more CREDITS until PARTY 2's total CREDITS equal the number of
total CREDITS received by PARTY 1. The PARTIES will enter into an
amendment to this AGREEMENT to record the details of any CREDIT allocation
agreement.
2.6 The PARTIES will manage their own CREDITS. Each PARTY will maintain a
ledger of CREDITS acquired through the achievement of specified performance
standards and CREDITS that are released and debited. The PARTIES agree to
inform the other PARTY of any details related to CREDIT debiting prior to the
CREDITS being debited. In addition, the PARTIES agree to inform the
Muckleshoot Indian Tribe, hereinafter the (TRIBE), of their intention to debit any
CREDIT as soon as a proposed project is identified. Both PARTIES agree to
manage their individual shares of CREDITS in the BANK and to be responsible
for not using, selling or transferring more CREDITS than they have at any given
time as their individual share of CREDITS, as described in Section IV of the
MOA.
2.7 A master ledger, as required by the INSTRUMENT, shall be submitted to the
BOC annually. WSDOT shall establish and maintain for inspection and reporting
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purposes a ledger of all credit transactions. WSDOT will maintain a ledger of the
credits that are released through the achievement of specified performance
standards, as well as credits that are debited through sale, use, or transfer. The
City may maintain its own separate concurrent ledger to track its portion of the
credits, but WSDOT will retain responsibility for the master ledger detailing all
debits and credits associated with the BANK to satisfy BOC requirements as
described in Section 4.4 of the INSTRUMENT. The PARTIES will meet annually
to review and prepare the master ledger for submittal. The master ledger shall
show a cumulative tabulation of all transactions at the BANK to date, as specified
in the INSTRUMENT.
3.0 EASEMENTS
3.1 The SITE is owned by the CITY and has been pledged for use in the BANK in a
manner consistent with the MOA. Ownership of the SITE shall not be altered by
this AGREEMENT, except to the extent covered by the Conservation Easement,
herein referred to as the (EASEMENT) and by this reference made a part of this
AGREEMENT.
3.2 The CITY agrees to burden the CITY's fee title to the SITE through the grant of
the EASEMENT. The EASEMENT is created and used for the purpose of the
long-term protection of the SITE. The EASEMENT will be recorded in King
County, Washington, to ensure that the SITE can never be modified without the
written consent of the BOC. The EASEMENT, attached as Exhibit C, is to be
incorporated into the INSTRUMENT.
3.3 The PARTIES agree that the CITY shall grant the EASEMENT to Cascade Land
Conservancy (CLC). The PARTIES agree that WSDOT shall be assignee to the
EASEMENT at such time as all WSDOT CREDITS in the BANK are used, sold,
or transferred.
3.4 The PARTIES have identified several existing utility and access easements, and
gas/oil/mineral rights on the SITE. The PARTIES have and are cooperatively and
aggressively pursuing release of unused easements, and acknowledge that each
PARTY has incurred costs as a result of the release of said easements.
3.5 The CITY will obtain a drainage easement from Burlington Northern Santa Fe
Railway (BNSF) outside of the SITE for a portion of the parcel that is situated
between UNITS C and D that is necessary to ensure the continued flow of water
between the two UNITS.
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4.0 DESIGN AND CONSTRUCTION OF THE SITE
4.1 The PARTIES acknowledge that WSDOT, working closely with the CITY, has
completed the design and the plans, specifications, and estimate (PS&E) for SITE
construction. The PARTIES further acknowledge that, unless otherwise required,
WSDOT, is responsible for obtaining all permits necessary for construction of the
SITE; WSDOT; and the CITY, if named as co-permittee on the permits, are
responsible for complying with all the permits necessary for construction of the
SITE and the TRAIL.
4.2 The PARTIES agree that WSDOT will advertise, award, and administer the plans,
specifications, and estimates (CONTRACT) for construction of the SITE.
4.3 WSDOT agrees to meet with the CITY during CONTRACT administration to
provide progress updates; the PARTIES will determine the frequency of these
meetings prior to the start of construction.
4.4 As defined in the CONTRACT, plant establishment is three (3) years to ensure
the availability of a contractor to perform any necessary establishment activities
per the WSDOT Construction Specification (such as weed control and
replanting). During Years 2 and 3 of plant establishment, WSDOT will consider
all CITY comments related to plant establishment of the SITE when directing the
CONTRACT work.
4.5 WSDOT will comply with all permit conditions listed in the CITY permits issued
for this project and with applicable CITY Code requirements, as consistent with
the INSTRUMENT.
5.0 DESIGN, CONSTRUCTION,AND MAINTENANCE OF THE TRAIL
5.1 The PARTIES acknowledge that WSDOT, at the CITY's request, has completed
the design and the plans, specifications, and estimate(PS & E) for construction of
the TRAIL.
5.2 WSDOT will work with the Multi-Agency Permitting Team (MAPT) to allow the
CITY to be co-permittee on the permits for the BANK, and the CITY could use
these permits to construct the TRAIL, provided that the permits have not expired
and the CITY complies with all of the conditions within the permits.
5.3 At the time of bid opening of the CONTRACT, WSDOT will identify the
apparent low bidder for the CONTRACT. The CITY will have the opportunity to
examine the apparent lowest bid estimate related to the TRAIL, and within
twenty-one (21) calendar days of bid opening determine whether to proceed with
construction of the TRAIL under the CONTRACT.
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5.4 If within twenty-one (21) days of bid opening, the CITY determines to proceed
with the construction of the TRAIL under the CONTRACT, then the following
shall apply.
5.4.1 WSDOT will be the lead agency for CONTRACT administration
of all work related to the TRAIL.
5.4.2 Prior to providing the contractor relief of responsibility for the
completed TRAIL, WSDOT will work with the CITY to assure the
CONTRACT has been fulfilled.
5.4.3 The CITY is responsible for funding of the design and
construction, including site preparation, grading and planting, of
TRAIL.
5.4.4 The CITY will provide and install bollards, identified in the
CONTRACT as CITY-provided and installed, within one month of
completion of construction of the TRAIL.
5.4.5 WSDOT will notify the CITY in writing when construction of the
TRAIL is complete.
5.4.6 The CITY will provide a bench with mounting hardware, as
identified in the CONTRACT and will deliver said bench to the
SITE within sixty (60) calendar days of written notification from
WSDOT.
5.4.7 The CITY will furnish and install park rules and regulations signs.
Signs will be installed within one month of completion of the trail.
5.4.8 The CITY will furnish and install pet stations within one month of
completion of the trail.
5.4.9 The CITY will be responsible for funding and conducting all
management, maintenance and protection of the TRAIL if the
contractor for the CONTRACT is granted relief of responsibility
for completed work related to the TRAIL, in accordance with the
CONTRACT.
5.4.10 The CITY shall be responsible for funding and conducting all
management, maintenance and protection of the TRAIL after
completion of the construction CONTRACT in perpetuity.
5.5 If within twenty-one (21) days of bid opening, the CITY determines not to
proceed with the construction of the TRAIL under the CONTRACT, then deletion
of the TRAIL will be documented by change order, and the following shall apply.
5.5.1 The CITY shall reimburse WSDOT for administrative costs to
remove the rejected TRAIL, with total administrative costs not to exceed
$10,000; and
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5.5.2 WSDOT will provide the CITY with the TRAIL plans and
specifications.
5.6 If the CITY determines not to proceed with the construction of the TRAIL under
the CONTRACT but determines to build the TRAIL at a later date, then the
following shall apply.
5.6.1 The CITY may not commence construction of the TRAIL until
after the initial phase of the CONTRACT is completed and Year 2
of plant establishment has begun.
5.6.2 The CITY will be responsible for BANK contractor claims or
plants damaged outside of the eighteen (18)-foot TRAIL
construction zone that result from worked performed by the CITY
on the TRAIL.
5.6.3 The CITY will be the lead agency for design, permitting and
construction of the TRAIL.
5.6.3.1 If the CITY is co-permittee with WSDOT on the
BANK permits, then
5.6.3.1.1 the CITY could enter into a separate
agreement with WSDOT for the CITY to
contract with WSDOT to construct the
TRAIL, or
5.6.3.1.2 the CITY could enter into its own contract
to construct the TRAIL.
5.6.3.2 If the CITY is not co-permittee with WSDOT on any of
the BANK permits required to construct the TRAIL,
then
5.6.3.2.1 the CITY could apply for new permits for
the CITY to construct the TRAIL under its
own contract, or
5.6.3.2.2 the CITY could enter into a separate
agreement with WSDOT for the CITY to
contract with WSDOT to construct the
TRAIL.
5.6.4 If the TRAIL is constructed, the CITY shall be responsible in
perpetuity for funding and conducting all management,
maintenance and protection of the TRAIL after completion of the
construction CONTRACT.
5.7 If the CITY determines not to proceed with the construction of the TRAIL
under the CONTRACT and the CITY decides not to build the TRAIL at a
later date, so that no TRAIL is built in the BANK, then the CITY can
request that the BOC incorporate the TRAIL area into the BANK in return
for the 0.89 credits held out of the BANK for the TRAIL.
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6.0 ESTABLISHMENT AND LONG-TERM MANAGEMENT OF THE SITE
6.1 DEFINITIONS
6.1.1 The establishment (ESTABLISHMENT) phase begins when the MOA is
signed between the PARTIES and the BOC and continues until
performance standards have been met and all credits have been released
by the BOC in accordance with the terms of the INSTRUMENT and
MOA(sections III.B. and IV.K.). The ESTABLISHMENT phase includes
Year 2 and 3 of plant establishment items identified in the construction
CONTRACT.
6.1.2 The OPERATIONAL LIFE of the BANK is identified as that period of
time when either of the PARTIES has CREDITS remaining on the master
ledger that have yet to be used, sold, or transferred.
6.1.3 The long term management (LTM) phase begins upon completion of the
ESTABLISHMENT phase and runs in perpetuity.
6.2 ESTABLISHMENT PHASE
6.2.1 The PARTIES agree that WSDOT shall be the responsible PARTY for
monitoring and management during ESTABLISHMENT of the SITE, in
accordance with the terms of the MOA.
6.2.2 During the CONTRACT administration, WSDOT will consider all CITY
comments related to establishment of the SITE when directing the
contractor's work under the CONTRACT.
6.2.3 In the years of the ESTABLISHMENT phase following completion of the
CONTRACT, the PARTIES will review the monitoring reports identified
in Section 4.5 of the INSTRUMENT and, if necessary, arrange for a joint
site inspection to evaluate whether additional actions (such as replanting)
are needed to meet performance standards. The PARTIES will use this
information to jointly develop an annual ESTABLISHMENT work plan
(ESTABLISHMENT WORK PLAN).
6.2.4 The ESTABLISHMENT WORK PLAN will identify work elements and
costs associated with required monitoring and/or any other additional
work necessary to meet performance standards during the subsequent
calendar year. The PARTIES will review and approve the
ESTABLISHMENT WORK PLAN and the ESTABLISHMENT WORK
PLAN's cost estimate prior to work being performed.
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6.2.5 WSDOT will submit annually to the BOC an annual monitoring report, as
identified in the INSTRUMENT. WSDOT shall work cooperatively with
the CITY to prepare this annual report, and WSDOT will provide the
CITY with a copy of the annual report.
6.3 LONG-TERM MANAGEMENT PHASE
6.3.1 The CITY shall be the responsible PARTY during the LTM phase of the
SITE, in accordance with the terms of Section IV.M of the MOA.
6.3.2 Prior to completion of the ESTABLISHMENT phase, the CITY will
develop a work plan for the LTM (LTM WORK PLAN) as described in
the INSTRUMENT (Section 5.2) and the MOA (Sections III.C.3 and
IV.M.).
6.3.3 ESTABLISHMENT and LTM activities exclude the TRAIL.
7.0 FUNDING RESPONSIBILITIES
7.1 WSDOT will fund all costs associated with both design and construction of the
SITE, including costs related to acquisition of all permits, other than those costs
specifically related to the design and construction of the TRAIL, which shall be
funded by the CITY.
7.2 The PARTIES have agreed to share certain BANK project development costs
related to the SITE as estimated in Exhibit D.
7.2.1 The PARTIES will determine the final total amount of these costs,
determine each PARTY's share, determine what each PARTY has paid to
date, and determine the amount due the other PARTY if either PARTY
has paid more than their share of said costs. The PARTY due any funds
shall invoice the other PARTY within thirty (30) days of said
determination; the PARTY owing any funds shall pay within thirty (30)
days of receipt of said invoice.
7.3 The PARTIES have agreed that water usage costs will be as follows:
7.3.1 the CITY will waive all System Development Charges related to water
service during construction of the SITE and SITE irrigation; and
7.3.2 water usage rates will be the commodity rate for 0-1000 cubic feet per
month; and
7.3.3 WSDOT will pay all of the water connections and use costs for Year 1 of
plant establishment; thereafter, WSDOT and the CITY will equally share
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the water connections and use costs until the end of the
ESTABLISHMENT phase.
7.4 While CLC is grantee of the EASEMENT, the CITY shall pay to CLC all costs
associated with CLC's duties as grantee of the EASEMENT, and WSDOT agrees
to reimburse the CITY for half of these costs.
7.5 WSDOT will pay for all costs associated with the ESTABLISHMENT, including
those related to monitoring, other than any costs attributable to the TRAIL. At the
end of Year 1 of plant establishment, the CITY agrees to reimburse WSDOT for
half of all ESTABLISHMENT costs in subsequent years, until the end of the
ESTABLISHMENT phase.
7.6 The CITY will pay for all costs associated with the LTM of the BANK. While
WSDOT still has a credit interest in the BANK and if the BOC mandates work
that is not included in the LTM plan described in the MOA, the CITY and
WSDOT will equally share the cost of this mandated work; otherwise the CITY
will pay for all LTM costs.
7.7 The CITY shall be responsible for all costs related to design, permitting,
construction, management, and maintenance of the TRAIL.
7.8 The PARTIES shall use the following addresses for invoicing:
CITY OF RENTON
Surface Water Utility
Attn: Utility Engineering Supervisor
1055 South Grady Way—5th Floor
Renton, WA 98055
WASHINGTON STATE DEPARTMENT OF TRANSPORTATION
Urban Corridors Office
Environmental Services Director
401 —2nd Avenue South, Suite 560
Seattle, WA 98104-3850
8.0 RIGHT OF ENTRY AND SITE ACCESS
8.1 WSDOT and its contractors will have right of entry and access to the SITE as
needed for the purpose of construction,monitoring, and SITE establishment.
8.2 During the ESTABLISHMENT phase, WSDOT will provide reasonable notice,
of not less than twenty-four(24) hours, prior to performing any work that reduces
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access to the TRAIL by a telephone call, letter, or electronic message to the
designated representative of the CITY.
8.3 During construction of the CONTRACT, the CITY will provide reasonable
notice, of not less than twenty-four (24) hours, of its intent to access the SITE by
a telephone call, letter, or electronic message to the designated representative of
WSDOT prior to the date access is required.
8.4 WSDOT, its agents and assigns shall have reasonable and free access to the SITE
for educational, scientific, and biological purposes to observe and study the SITE
for the duration of this AGREEMENT, as consistent with the provisions in the
EASEMENT.
9.0 GENERAL AGREEMENT PROVISIONS
9.1 All aspects of this AGREEMENT may be modified, amended, deleted, or revised
only by written mutual amendment to this AGREEMENT by the PARTIES. No
obligations of either PARTY to this AGREEMENT may be transferred or
assigned to a third PARTY without the prior written consent of the other PARTY;
such consent shall not be unreasonably withheld, conditioned, or delayed.
9.2 If either PARTY has reason to believe that a violation of the INSTRUMENT, this
AGREEMENT, the EASEMENT, or the MOA is occurring or is threatened, for
the purpose of enforcing the provisions of the INSTRUMENT, this
AGREEMENT, the EASEMENT, or the MOA, the other PARTY shall be
notified either in writing or by an electronic message notice.
9.3 Each PARTY shall indemnify and hold the other PARTY, and their agents,
employees, and/or officers, harmless from and shall process and defend at its own
expense any and all claims, demands, suits, at law or equity, actions, penalties,
losses, damages, or costs of whatsoever kind or nature, brought against the other
PARTY arising out of, in connection with, or incident to the indemnifying
PARTY's performance or failure to perform any aspect of this AGREEMENT;
provided, however that if such claims are caused by or result from the concurrent
negligence of their agents, employees, and/or officers, this indemnity provision
shall be valid and enforceable only to the extent of the negligence of the
indemnifying PARTY; and provided further, that nothing herein shall require the
PARTY to hold harmless or defend the other PARTY, their agents, employees,
and/or officers from any claims arising from the sole negligence of the other
PARTY, their agents, employees, and/or officers. No liability shall attach to the
other PARTY by reason of entering into this AGREEMENT except as expressly
provided herein.
9.4 The indemnification and waiver obligations set forth in Sections 9.3 and 9.5 shall
survive the expiration or earlier termination of this AGREEMENT.
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9.5 For the purposes of this AGREEMENT only, each of the PARTIES hereto
specifically and expressly waives, with respect to the other, its immunity and
limitation on liability under any industrial insurance legislation including but not
limited to Title 51 RCW, and acknowledges that this waiver was specifically
entered into after mutual negotiation.
9.6 A representative to be designated by each agency administrator will be
responsible for the timely sharing and/or exchange of any or all documentation
related to the restoration and site management, and funding and monitoring
responsibilities under this AGREEMENT. Such designated representative may be
changed from time to time. Written authorization to represent an agency will be
provided to the other PARTY in a timely manner by the PARTY's administrator.
9.7 In the event of a dispute arising out of the conduct of this AGREEMENT, the
PARTIES will work collaboratively towards resolution beginning with the lowest
organizational level. If the dispute cannot be resolved at the lowest organizational
level, the dispute will be raised to the I-405/Renton Administrator Executive
committee, which consists of the City of Renton Chief Administrative Officer and
his direct reports, the I-405 Project Director and the I-405 Project Manager. If the
dispute cannot be resolved using this process, the PARTIES shall acknowledge
impasse. Within thirty (30) days after acknowledging impasse, the dispute shall
be determined by a dispute board in the following manner: Each PARTY to this
AGREEMENT shall appoint a member to the dispute board. The members so
appointed shall jointly appoint a third member to the dispute board. The third
member shall not be an employee of, or be affiliated in any way with either of the
two PARTIES to this AGREEMENT. The dispute board shall hold hearings to
evaluate the facts, contract terms, and applicable statutes and rules.
After the hearings are concluded, the dispute board shall meet in private and reach
a conclusion supported by two or more members. Its findings and
recommendations, together with its reasons shall then be submitted as a written
report to both PARTIES. The recommendations shall be based on the pertinent
contract provisions and facts and circumstances involved in the dispute.
The dispute board should make every effort to reach a unanimous decision. If this
proves impossible, the dissenting member may prepare a minority report.
Although both PARTIES should place weight upon the dispute board's
recommendations, they are not binding. Either PARTY may appeal a
recommendation to the dispute board for reconsideration. However, if the dispute
board's recommendations do not resolve the dispute, the written report, including
any minority report, may be admissible as evidence in any subsequent litigation.
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It is not desirable to adopt hard and fast rules for the functioning of the dispute
board. The entire procedure should be kept flexible so that it can adapt to
changing situations.
9.8 If ever all or part of the SITE is taken in eminent domain by public, corporate, or
other authority so as to abrogate the restrictions imposed by the INSTRUMENT,
the MOA, this AGREEMENT, or the EASEMENT, the PARTIES shall join in
appropriate actions at the time of such taking to recover the just compensation and
damages as provided by law. All expenses incurred by the PARTIES in this
action, including any replacement costs, shall be paid out of the recovered
proceeds, and the PARTIES will equally divide the remaining proceeds from the
condemnation proceeds.
9.9 The covenants, terms, conditions, and restrictions of this AGREEMENT shall be
binding upon, and inure to the benefit of the PARTIES to this AGREEMENT and
their respective successors and assigns and shall continue as a servitude running in
perpetuity with the SITE.
10.0 INTERPRETATION, SEVERABILITY
10.1 The interpretation and performance of this AGREEMENT shall be governed by
the laws of the State of Washington.
10.2 Any general rule of construction to the contrary notwithstanding, this
AGREEMENT shall be liberally construed to implement the purposes of the
MOA, INSTRUMENT, and EASEMENT and the policy and purpose of RCW
84.34.200-250 and RCW 64.04.130.
10.3 If any provision in the INSTRUMENT or this AGREEMENT is found to be
ambiguous, an interpretation consistent with the purpose of the MOA,
INSTRUMENT, and EASEMENT that would render the provision valid shall be
favored over any interpretation that would render it invalid.
10.4 If any provision of this AGREEMENT, or the application of such provision to any
person or circumstances, is found to be invalid, the remainder of the provisions of
this AGREEMENT, or the application of that provision to persons or
circumstances other than those which it is found to be invalid, shall not be
affected by the invalidity.
10.5 Any forbearance by the PARTIES to exercise their rights under the this
AGREEMENT in the event of any breach of any of the terms of the this
AGREEMENT, shall not be deemed or construed to be a waiver by the PARTIES
of such terms or of any subsequent breach of the same or any other terms of this
AGREEMENT or of any of the PARTIES' rights under this AGREEMENT. No
delay or omission by either PARTY in the exercise of any right or remedy upon
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any breach by the other PARTY shall impair such right or remedy or be construed
as a waiver.
11.0 ENTIRE AGREEMENT, COUNTERPARTS
This AGREEMENT replaces the Springbrook Wetland and Habitat Mitigation
Bank Letter of Concurrence signed on March 7, 2005 by the PARTIES and the
Springbrook Wetland and Habitat Mitigation Bank Agreements Concurrance Letter
signed on February 10, 2006 by the PARTIES. This AGREEMENT, the
INSTRUMENT, the MOA and the EASEMENT set forth the entire agreement of the
PARTIES with respect to this AGREEMENT and supersede all prior discussions,
negotiations, understandings, or agreements relating to the SITE, all of which are merged
into this AGREEMENT, the INSTRUMENT, the MOA and the EASEMENT.
12.0 EFFECTIVENESS AND DURATION
This AGREEMENT is effective upon execution by both PARTIES and shall
continue as a servitude running in perpetuity with the SITE.
13.0 TITLES
The titles in this AGREEMENT have been inserted solely for convenience of
reference and are not a part of this AGREEMENT and shall have no effect on
construction or interpretation. The titles in no way define, limit, or describe the scope or
intent of this AGREEMENT.
14.0 NOTICE
Any notice, demand, request, consent, approval or communication that either
PARTY desires or is required to give to the others shall be in writing and either delivered
personally or sent by first class mail,postage prepaid, addressed as follows:
WSDOT: DEPARTMENT OF TRANSPORTATION
Attn: Urban Corridors Regional Administrator
401 Second Avenue South, Suite 560
Seattle, WA 98104
CITY: CITY OF RENTON, WASHINGTON
Office of the Mayor
1055 S. Grady Way
Renton, WA 98055
GCA 4894 PAGE 14 OF 17
Nfte
or to such other address as any either PARTY from time to time shall designate by
written notice to each other.
15.0 VENUE
In the event that any PARTY deems it necessary to institute legal action or
proceedings to enforce any right of obligation under this AGREEMENT, the PARTIES
hereto agree that any such action or proceedings shall be brought in the superior court
situated in King County, Washington.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT as of
the latest date written below.
CITY OF RENTON, WASHINGTON STATE
WASHINGTON DEPARTMENT OF TRANSPORTATION
/0, 2cOp
By: err' By:
KATHY KEO R DATE CRAIG STO I , P.E. DATE
Mayor Deputy Administrator
Urban Corridors Office
For: City Of Renton, For: Washington State
Washington Department of Transportation
Approved as to form Approved as to form
By: $f i q oc
Lawrence J. Warren Date Ste en R.klasinski Date
City Attorney Assistant Attorney General
Attest: i/A//l 400,6
Michele Neumann, Deputy City Clerk
GCA 4894 PAGE 15 OF 17
CITY ACKNOWLEDGMENT WITH SEAL
STATE OF WASHINGTON )
. ss.
County of )
I, the undersigned, a Notary Public in and for the State of Washington, do hereby certify
that on this day of , before me personally appeared Kathy
Keolker to me known to be the Mayor of the municipal corporation that executed the
foregoing instrument and acknowledged the said instrument to be the free and voluntary
act and deed of said municipal corporation, for the uses and purposes therein set forth,
and on oath states that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year last above written.
Notary(print name)
Notary Public in and for the State of Washington,
residing at
My Appointment expires
GCA 4894 PAGE 16 OF 17
Nwe
STATE AGENCY ACKNOWLEDGMENT WITH SEAL
STATE OF WASHINGTON )
: ss.
County of )
I, the undersigned, a Notary Public in and for the State of Washington, do hereby certify
that on this day of , before me personally appeared
Craig Stone, Deputy Administrator, Urban Corridors Office, for the Washington State
Department of Transportation, 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, I have hereunto set my hand and affixed my official seal the
day and year last above written.
Notary(print name)
Notary Public in and for the State of Washington,
residing at
My Appointment expires
GCA 4894 PAGE 17 OF 17
EXHIBIT A
MEMORANDUM OF AGREEMENT
SPRINGBROOK CREEK WETLAND AND HABITAT MITIGATION BANK
NNW
MEMORANDUM OF AGREEMENT
SPRINGBROOK CREEK WETLAND AND HABITAT MITIGATION BANK
This Memorandum of Agreement regarding the establishment, use, operation, and management
of the Springbrook Creek Wetland and Habitat Mitigation Bank (hereinafter, the Bank) is made
and entered into by and among Washington State Department of Transportation (hereinafter,
WSDOT) and the City of Renton(hereinafter, City),hereinafter collectively identified as the
Sponsors, the U.S. Army Corps of Engineers (Corps), and the Washington State Department of
Ecology(Ecology), with reference to the following:
I. PREAMBLE
A. Purpose: The purpose of this Memorandum of Agreement (hereinafter, the
Agreement) is to specify responsibilities for the establishment, use, operation, and management
of the Bank. It consists of this "Basic Agreement"establishing the central obligations assumed
and consideration provided by each Party, as well as a Mitigation Banking Instrument
(hereinafter, the Instrument) that establishes the site-specific conditions, standards, and
procedural requirements applicable to the Bank. The provisions of the Instrument are hereby
incorporated into this Agreement by reference. The Bank will be used for compensatory
mitigation for unavoidable adverse impacts to waters of the United States, including wetlands,
and to aquatic habitat including habitat for endangered and threatened species, that result from
activities authorized by Federal, State, and local authorities,when use of the Bank has been
specifically approved by the appropriate regulatory agencies.
B. Location and Ownership of Parcel: Whereas, the City owns 129.22 acres of land
located near Springbrook Creek in the City of Renton, King County, Washington.
C. Project Description: Whereas, the Sponsors have expressed an interest to restore
and/or enhance 116.86 acres of aquatic and associated habitat, and shall then maintain the Bank
in accordance with the provisions of this Agreement. The Bank area will provide mitigation
treatment areas that will re-establish, rehabilitate, and enhance wetlands and forested wetlands,
and enhance both riparian upland and upland habitat, as detailed in Section 2.6 of the Instrument.
D. Bank Oversight Committee. Whereas, the Bank Oversight Committee (BOC)
consists of:
1. Chair: U.S. Army Corps of Engineers, Seattle District (Corps).
2. Chair: Washington Department of Ecology(Ecology).
3. U.S. Environmental Protection Agency, Region X (EPA).
4. U.S. Fish and Wildlife Service.
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NOW, THEREFORE, the parties agree to the following:
II. AUTHORITIES
The establishment, use, operation, and management of the Bank are carried out in accordance
with the following authorities:
A. Federal:
1. Clean Water Act(33 USC §§ 1251 et seq.)
2. Rivers and Harbors Act (33 USC § 403)
3. Fish and Wildlife Coordination Act (16 USC §§ 661 et seq.)
4. Regulatory Programs of the Corps of Engineers,Final Rule(33 CFR Parts 320-
330)
5. Guidelines for Specification of Disposal Sites for Dredged and Fill Material (40
CFR Part 230)
6. Memorandum of Agreement between the Environmental Protection Agency
and the Department of the Army concerning the Determination of Mitigation Under the
Clean Water Act, Section 404(b)(1) Guidelines (February 6, 1990)
7. Federal Guidance for the Establishment, Use, Operation of Mitigation Banks
(60 F.R. 58605 et seq.)
8. Regulatory Guidance Letter No. 02-02, Guidance on Compensatory Mitigation
Projects for Aquatic Resource Impacts under the Corps Regulatory Program pursuant to
Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of
1899, U.S. Army Corps of Engineers, December 26, 2002
B. State of Washington:
1. Washington State Department of Transportation, Wetland Compensation Bank
Program, Memorandum of Agreement, September 15, 1994
2. Washington Water Pollution Control Act,RCW 90.48 et seq.
3. Washington State Alternative Mitigation Policy, developed by Ecology,
Washington State Department of Transportation (WSDOT), Washington Department of
Fish and Wildlife (WDFW), and the Office of Community Development(OCD), 2000.
4. Washington State's Pilot Rule on Wetland Mitigation Banking (WAC 173-
300, Compensatory Wetland Mitigation Banking).
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,
III. ESTABLISHMENT OF THE BANK
A. Permits. WSDOT will obtain all appropriate environmental documentation,permits
or other authorizations needed to establish and maintain the Bank, prior to the release of any
mitigation credits. Compliance with this Agreement does not fulfill the requirement, or
substitute, for such authorization. Prior to acquiring any mitigation credits pursuant to this
Agreement, the WSDOT must obtain appropriate authorization from the Corps and Ecology in
accordance with the terms of the Agreement.
B. Bank Establishment. The Sponsors jointly agree to establish the Bank as described in
Sections 2 and 3 of the Instrument. WSDOT shall be responsible to ensure funding and
accomplishment of the collective obligations arising during the establishment phase that extends
from the execution of this Agreement until it terminates as described in Article IV.K. of this
Agreement. In recognition of successful establishment, credits will be released to the Sponsors
in accordance with the procedures and schedules referenced in the Instrument, particularly in
Section 4.2. In the event the Sponsors determine that modifications to the Instrument are
necessary, the Sponsors shall submit a written request for such modification to the BOC, through
the Chairs, for approval. Documentation of implemented modifications shall be made consistent
with Article VI.B.2 of this Agreement.
C. Financial Assurance Requirements:
1. The Sponsors intend to satisfy their obligations under this Agreement by
obtaining sufficient funding to carry out all design, development, monitoring, and site
management responsibilities. The following financial assurances are provided for the
work described in this Agreement.
2. Funding for all responsibilities and obligations arising during the establishment
phase of the Bank, including remedial actions as delineated in Article IV.H. of this
Agreement, has been included in the budget for the Transportation 2003 (Nickel)
Account, "provided solely to implement the activities and project included in the
Legislative 2003 Transportation Project List—Current Law report as transmitted to
LEAP (the Legislative Evaluation and Accountability Program committee) on April 27,
2003"(Engrossed Substitute House Bill 1163). To the extent, if any, that these funds are
insufficient to fully and timely fund WSDOT's obligations as delineated in this
Agreement, the WSDOT shall include in its budget request appropriations sufficient to
cover the balance of WSDOT's obligations under this Agreement, and will use all
reasonable and lawful means to fulfill its obligations hereunder. In the event the
legislature of the State of Washington does not provide funds in sufficient amounts to
discharge these obligations, the WSDOT shall use its best efforts to procure funding in
order to satisfy its obligations under this Instrument from any other source of funds
legally available for this purpose. Nothing herein shall constitute, nor be deemed to
constitute, an obligation of future appropriations by the legislature.
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*lime 441010
3. Long-Term Management Endowment Fund:
a. The City shall institute an endowment fund to fund long-term
management actions as defined in Article IV.M of this Agreement and Section 5. 2 of the
Instrument following the termination of the establishment phase of the Bank. Upon
termination of the establishment phase, the BOC will authorize the City to apply these
funds to the long-term management of the Bank, or will direct that they be disbursed to a
Long-Term Steward in the event of the City's relinquishment of responsibility for long-
term management of the Bank.
b. The Long-Term Management Endowment Fund shall be funded so
that the Fund contains a lump sum of$25,000 as of the date the establishment phase is to
terminate pursuant to Article IV.K.
D. Real Estate Provisions: All real property to be included within the Bank site area, as
more completely described in Appendix A to the Conservation Easement, is owned in fee simple
by the City and has been pledged for use in the Bank in a manner consistent with this
Agreement. The City shall burden the City's fee title to the Bank property through the grant of a
conservation easement, pursuant to the provisions of Section 5.1.1 of the Instrument. The
inclusion of the aforementioned property in the Bank and the granting of a conservation
easement restricting future land uses for the benefit of the Bank shall not convey or establish any
property interest on the part of any Party to this Agreement, nor convey or establish any interest
in Bank credits. The Agreement does not authorize, nor shall it be construed to permit, the
establishment of any lien, encumbrance, or other claim with respect to the property, with the sole
exception of the right on the part of the Corps to require the Sponsors to implement elements of
this Agreement, including recording the conservation easement, required as a condition of a
permit issued under Section 404 of the Clean Water Act for discharges of dredged and fill
material into waters of the United States associated with construction and operation and
management of the Bank.
IV. OPERATION OF THE BANK
A. Service Area: The Bank is approved to provide compensatory mitigation for impacts
to the Waters of the United States, including wetlands, within a portion of Water Resources
Inventory Area 8 and 9 as shown in Figure 1-3 of the Instrument. In exceptional situations,the
Bank may be used to compensate for an impact that occurs outside of the Service Area if
specifically approved by the regulatory agency(ies) having jurisdiction over that impact and the
BOC,pursuant to the procedures and criteria prescribed in Section 1.3 of the Instrument. If the
Corps and Ecology determine that the Sponsors have sold or transferred credits at any time to
provide compensatory mitigation for loss of aquatic resources outside of the Service Area
without prior approval, the Corps and Ecology, in consultation with the other members of the
BOC, may direct that the sale or other transfer of credits immediately cease.
B. Access to the Bank Site. The Sponsors will allow, or otherwise provide for, access to
the site by members of the BOC or their agents or designees, as reasonably necessary for the
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actions for the Bank as specified in Section 3.4 of the Instrument, to attain those project
objectives and performance standards. Prior to their execution, proposals for the remediation
and monitoring activities must be approved by the Corps and Ecology, in consultation with the
Sponsors and the BOC. In the event WSDOT fails to implement necessary remedial actions
within the prescribed period, the Corps and/or Ecology, following consultation with the Sponsors
and the BOC, will direct remedial, corrective, and/or sanctioning action in accordance with the
procedures specified in Section 3.4 of the Instrument.
I. Force Majeure: In the event of substantial damage caused by a natural or human-
caused catastrophic event or a deliberate and unlawful act, that the Corps and Ecology, in
consultation with the Sponsors and the BOC, determine has had a significant adverse impact on
the quality of the aquatic functions, native vegetation, soils or wildlife of the Bank and is
beyond the control of the Sponsors, their agents, contractors, or consultants to prevent or
mitigate: the Sponsors may request,pursuant to Article III.B. of this Agreement, and the Corps
and Ecology, in consultation with the BOC,may approve changes to the construction, operation,
project objectives, performance standards, or crediting formula of the Bank, pursuant to the
standards and procedures specified in Section 3.4 of the Instrument. A natural catastrophic event
includes,but is not limited to, a flood equal to or greater in magnitude than the 100-year flood
event, an earthquake of a force projected from an earthquake with a return period of 475 years,
drought that is significantly longer than the periodic multi-year drought cycles that are typical of
weather patterns in the Pacific Northwest, as well as debilitating disease,wildfire, depredation,
regional pest infestation, or fluvioigeomorphic change. A human-caused catastrophic event
includes,but is not limited to, war, insurrection,riot or other civil disorders, spill of a hazardous
or toxic substance, or fire. A deliberate and unlawful act includes,but is not limited to, the
dumping of a hazardous or toxic substance, as well as significant acts of vandalism or arson. If
any such act occurs the BOC , in consultation with the Sponsors, will determine what changes to
the Bank and/or this Agreement or the Instrument will be in the best interest of the Bank and the
aquatic environment. The consequences of any events of force majeure recognized as such by
the Corps and Ecology shall not affect the status of previously released credits, whether or not
they have yet been sold, used or transferred.
J. Default: Should the Corps and/or Ecology, in consultation with the BOC, determine
that (1)the Sponsors are in material default of any provision of this Agreement, (2) the failure to
comply adversely affects the ability of the Bank to achieve its goals and objectives, and(3) the
Sponsors have not made a reasonable effort to bring the Bank into compliance with this
Agreement,the Corps and/or Ecology may notify the Sponsors that the debiting, sale, use, and/or
transfer of mitigation credits are suspended until the delineated deficiencies are rectified. Upon
written notification of suspension, regardless of the phase of the Bank implementation, each
Sponsor agrees to immediately cease any use, debiting, sale, or transfer transactions not yet
finally completed, until informed by the Corps and/or Ecology that use, debiting, sale, or transfer
of credits may be resumed. Regardless of the phase of Bank implementation, should either
Sponsor remain in default for a period of 90 days, the Corps and/or Ecology, following
consultation with the BOC, may terminate this Agreement, the Instrument, and any subsequent
banking operations. In the event such termination action is commenced, the Sponsors agree to
fulfill their pre-existing obligations to perform all establishment, monitoring,maintenance,
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411W 11111111
purpose of inspection, compliance monitoring, and remediation consistent with the terms and
conditions of this Agreement, throughout the period of Bank establishment and long-term
management. Inspecting parties shall provide reasonable prior notice of a scheduled inspection,
and shall not unreasonably disrupt or disturb activities on the property. During the establishment
phase of the Bank, notice shall be given to WSDOT, and during the long-term management
phase of the Bank, notice shall be given to the City.
C. Schedule of Credit Availability: Subject to the documentation and scheduling
provisions of Section 4.2 of the Instrument, the Sponsors may submit to the BOC written
evidence that particular performance standards have been achieved. If the Corps and Ecology,
after consulting with the other members of the BOC and the Sponsors, concur that certain
performance standards have been achieved in full, it is agreed that the credits associated with
those performance standards will become available for marketing or use by the Sponsors.
D. Credit Deficit or Fraudulent Transactions: If the Corps and/or Ecology determine at
any point that the Bank is operating without prior written approval at a deficit, or has engaged in
fraudulent transactions in the sale, transfer, or use of credits, the Corps and/or Ecology will direct
the Sponsors to immediately cease release and sale, use, or other transfer of credits, and will
determine, in consultation with the BOC and the Sponsors,what actions are necessary to correct
the situation and will direct their performance prior to the release of any additional mitigation
credits. During the establishment phase, WSDOT will be directed to accomplish any action
deemed necessary, and during the long-term management phase the City will be directed to
accomplish any action deemed necessary.
E. Provisions For Use of the Mitigation Bank Area: The Sponsors shall not:
1. Grant additional easements,rights of way, or any other property interest in or
to the project areas without the written consent of the Corps and Ecology, in consultation
with the BOC.
2. Use or authorize the use of any areas within the Bank for any purpose that is
contrary to the provisions of this Agreement or the conservation easement, or which
interferes with the conservation purposes of the Bank.
F. Site Management Provisions: During the establishment phase WSDOT agrees to
perform all necessary work to achieve and maintain the Performance Standards as prescribed in
Section 3.3 of the Instrument.
G. Monitoring Provisions: WSDOT agrees to perform all necessary work, pursuant to
Section 4.5 of the Instrument, during the establishment phase to monitor the Bank to demonstrate
compliance with the Performance Standards established in Section 3.3 of the Instrument. The
City shall perform all monitoring necessary for the long-term management phase of the Bank,
pursuant to Section 5.2 of the Instrument.
H. Remedial Actions: During the establishment phase, in the event the Bank fails to
achieve by the specified date one or more of the performance standards delineated in Section 3.3
of the Instrument, WSDOT shall develop and implement appropriate remedial and monitoring
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management, and remediation responsibilities relating to credits that were released, sold, used, or
transferred prior to termination.
K. Termination of the Establishment Phase of the Bank: Prior to termination of the
establishment phase of the Bank, the BOC will perform a final compliance inspection to evaluate
whether all performance standards have been achieved. Upon the Corps and Ecology
determining, in consultation with the other members of the BOC and the Sponsors, that the
following terms have been met, the establishment phase of the Bank will terminate and the
period of Long-Term Management will commence:
1. all applicable performance standards prescribed in the Instrument have been
achieved;
2. all available credits have been released or the Sponsors have permanently
ceased banking activities;
3. the City has prepared a Long-Term Management Plan that reflects the Long-
Term Management Requirements identified in Section 5.2 of the Instrument, that has
been approved by the Corps and Ecology;
4. the City has either: (i) assumed responsibilities for accomplishing the Long-
Term Management Plan, in which case the City will fulfill the role of Long-Term
Steward, or(ii) has assigned those responsibilities to another Long-Term Steward
pursuant to Article N.M of this Agreement;
5. the Long-Term Management Endowment Fund has been fully funded;
6. the contents of the Long-Term Management Endowment Fund have been
transferred to the Long-Term Steward; and
7. the Bank has complied with the terms of this Agreement.
L. Termination of the Operational Life of the Bank: Following the termination of the
establishment phase of the Bank, and upon(1) sale, use, or transfer of all credits, or(2)upon
acceptance by the BOC of a written declaration by the Sponsors that they have permanently
ceased banking activities, the operational life of the Bank will terminate.
M. Long-Term Management: The City shall develop a Long-Term Management Plan
reflecting the guidelines and objectives specified in Section 5.2 of the Instrument, and submit the
Plan for approval of the Corps and Ecology, in consultation with the other members of the BOC
and following consultation with the WSDOT. The City is responsible for execution of the
approved Long-Term Management Plan. The City may only deviate from the approved Plan
upon written approval of the Corps and Ecology, following consultation with the WSDOT and
the BOC. The City may assign its long-term management responsibilities to a third party
assignee, which will then serve as Long-Term Steward in place of the City. The identity of the
assignee and the terms of the long-term management agreement between the City and the
assignee must be approved by the Corps and Ecology, following consultation with the BOC and
the WSDOT, in advance of assignment. Upon execution of a long-term management assignment
agreement and the transfer of the contents of the Endowment Fund, and upon satisfaction of the
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� a
remaining requirements for termination of the establishment phase of the Bank under Article
IV.K. of this Agreement, the Sponsors shall be relieved of all further long-term management
responsibilities under this Agreement.
N. Transfer of Ownership of the Bank Site: The Sponsors shall remain responsible for
complying with the provisions of this Agreement throughout the operational life of the Bank
regardless of the ownership status of the underlying real property, unless those responsibilities
have been assigned pursuant to the provisions of Article VI.C. of this Agreement. The City may
transfer ownership of all or a portion of the Bank to another party provided the Corps and
Ecology, following consultation with the other members of the BOC and the WSDOT, expressly
approve the transfer in writing.
V. RESPONSIBILITIES OF THE CORPS AND ECOLOGY
A. The Corps and Ecology agree to provide appropriate oversight in carrying out
provisions of this Agreement.
B. The Corps and Ecology agree to review and provide comments on project plans,
monitoring reports, and remediation proposals, and similar submittals from the Sponsors in a
timely manner. As Chairs, the Corps and Ecology will coordinate their review with the other
members of the BOC.
C. The Corps and Ecology agree to review requests to modify the terms of this
Agreement, transfer title or interest in the Bank, determine achievement of performance
standards in order to evaluate the release of credits for each phase of the Bank, and approve the
Long-Term Management Plan. As Chairs, the Corps and Ecology will coordinate review with
the members of the BOC so that a decision is rendered or comments detailing deficiencies are
provided in a timely manner. The Corps and Ecology agree to not unreasonably withhold or
delay decisions on such requests.
D. The Corps and Ecology agree to act in good faith when rendering decisions about
acceptability of financial assurances, requiring remedial actions,requiring long-term
management actions, and releasing credits. Corps and Ecology approval of the identity of any
assignee responsible for executing the Long-Term Management Plan, and approval of the terms
of any Long-Term Management assignment agreement, will not be unreasonably withheld.
E. The Corps and Ecology will periodically inspect the Bank site as necessary to
evaluate, in consultation with the other members of the BOC, the achievement of performance
standards, to assess the results of any remedial actions taken, to monitor implementation of the
Long-Term Management Plan, and, in general, to verify the Sponsors' compliance with the
provisions of this Agreement.
F. Upon satisfaction of the requirements of Article IV.K. of this Agreement,the Corps
and Ecology will certify, following consultation with the Sponsors and the BOC, that the
establishment phase of the Bank has terminated, and that the period of long-term management
has commenced. Upon satisfaction of the requirements of Article IV.L. of this Agreement, the
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Corps and Ecology, following consultation with the other members of the BOC,will jointly issue
a letter certifying that the operational life of the Bank has terminated.
VI. GENERAL PROVISIONS
A. Decision Making by Consensus: The Corps and Ecology will strive to achieve
consensus regarding issues that arise pertaining to the establishment, operation, maintenance, and
management of the Bank. As Chairs, the Corps and Ecology will coordinate the review and
oversight activities of the BOC so as to best facilitate opportunity to reach the desired consensus.
Review and oversight decisions will take into account the views of the Sponsors to the maximum
extent practicable. Where consensus cannot otherwise be reached within a reasonable
timeframe, following full consideration of the comments of the members of the BOC and
following consultation with the Sponsors, the Corps holds the responsibility and authority under
Section 404 of the Clean Water Act, and Ecology holds independent responsibility and authority
under Section 401 of the Clean Water Act and RCW ch. 90.48, to make final decisions regarding
the application of the terms of this Agreement.
B. Entry into Effect, Modification or Amendment, and Termination of this Agreement:
1. This Agreement will enter into effect on the date of signature by the authorized
representative of each of the Corps, Ecology, WSDOT, and the City, as of the date of the
last of these four signatures.
2. This "Basic Agreement"portion of this Memorandum of Agreement may be
amended or modified only with the written approval of each of the Sponsors, the
Program Manager for Shorelands and Environmental Assistance on behalf of Ecology,
and the Seattle District Engineer on behalf of the Corps, or their designees. Any such
modifications or amendments will take effect following consultation with the other
members of the BOC. Amendment of the provisions of the Instrument may be
effectuated through an exchange of letters signed by each of the Sponsors, the Mitigation
Banking Specialist serving as Co-Chair on behalf of the Corps, and the Mitigation
Banking Specialist serving as Co-Chair on behalf of Ecology, following consultation
with the other members of the BOC,provided the exchange of letters expresses mutual
agreement as to the exact language to be deleted or modified, and the exact language to
be inserted.
3. This Agreement may be terminated by the mutual agreement of the Sponsors,
Corps, and Ecology, following consultation with the BOC, or under the terms of Article
IV.J. of this Agreement in the case of default by the Sponsors. In the event any such
termination action is commenced, each of the Sponsors agrees to fulfill its pre-existing
obligations to perform all establishment, monitoring, maintenance,management, and
remediation responsibilities relating to credits that were debited, sold, used, or transferred
prior to termination.
4. Upon termination of the operational life of the Bank pursuant to Article IV.L.,
and certification to that effect pursuant to Article V.F., this Agreement shall terminate
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without further action by any Party. Thereafter, the Long-Term Management Plan
developed, approved, and instituted in accordance with Article IV.M. shall govern the
continuing obligations of the City, or its assignee as applicable.
C. Assignment of Obligations under this Instrument: Either Sponsor may be permitted
to assign its obligations, responsibilities, and entitlements under this Agreement to a third party.
The Corps and Ecology, following consultation with the BOC and the other Sponsor, must
approve the identity of the assignee in order for any assignment to effectively relieve a Sponsor
of those obligations. In evaluating a prospective assignee, the Corps and Ecology may consider
characteristics such as environmental mitigation expertise, wetlands mitigation project or
analogous experience, and financial strength and stability. Approval of the identity of the
assignee will not be unreasonably withheld. The assignee must execute a mitigation banking
agreement with the Corps and Ecology under terms identical, to the extent practicable,to the
present Agreement. Any applicable financial assurances established pursuant to Articles III.C.3.
of this Agreement must be initiated, as well as any additional financial assurances deemed
necessary in light of the status of the assignee. The obligations, responsibilities, and entitlements
under this Agreement may not be severed or transferred piecemeal. However, the physical
ownership of the Bank site real property and the obligations, responsibilities, and entitlements
under this Agreement are separate and distinct; thus, ownership may be transferred
independently of assignment of this Agreement. Once assignment has been properly
accomplished, the applicable Sponsor will be relieved of all its obligations and responsibilities
under this Instrument. Specific additional provisions pertaining to the assignment of Long-Term
Management obligations are described at Article IV.M.
D. Specific Language of this Agreement Shall Be Controlling: To the extent that
specific provisions of this "Basic Agreement" are inconsistent with any terms and conditions
contained in the Instrument, or inconsistent with other documents that are incorporated into this
Agreement by reference and that are not legally binding, the specific language within this Basic
Agreement shall be controlling.
E. Notice: Any notice required or permitted hereunder shall be deemed to have been
given either(i) when delivered by hand, or(ii) three (3) days following the date deposited in the
United States mail, postage prepaid,by registered or certified mail,return receipt requested, or
(iii) sent by Federal Express or similar next day nationwide delivery system, addressed as
follows (or addressed in such other manner as the party being notified shall have requested by
written notice to the other party):
Washington State Department of Transportation
Mitigation Banking Specialist
Environmental Services Office
Biology Branch
P.O. Box 47331
Olympia, WA 98504-7331
360-705-7406
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U.S. Army Corps of Engineers, Seattle District
Mitigation Banking Specialist/Co-chair of the BOC
Regulatory Branch
Seattle District, Corps of Engineers
4735 E. Marginal Way South
P.O. Box 3755
Seattle, WA 98124-3755
206-764-3495
Washington State Depaitment of Ecology
Mitigation Banking Specialist/Co-chair of the BOC
Shorelands and Environmental Assistance Program
PO Box 47600
300 Desmond Drive
Olympia, WA 98504-7600
360-407-7045
City of Renton
Office of the Mayor
1055 S. Grady Way
Renton, WA 98055
425-430-6500
F. Entire Agreement: This Agreement, incorporating the provisions of the Instrument as
indicated, constitutes the entire agreement between the Parties concerning the subject matter
hereof.
G. Invalid Provisions: In the event any one or more of the provisions contained in this
Agreement are held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability will not affect any other provisions hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had not been contained
herein.
H. Effect of Agreement: This Agreement does not in any manner affect statutory
authorities and responsibilities of the signatory Parties. This Agreement is not intended, nor may
it be relied upon,to create any rights in third parties enforceable in litigation with the United
States or the State of Washington. This Agreement does not authorize, nor shall it be construed
to permit, the establishment of any lien, encumbrance, or other claim with respect to the
property,with the sole exception of the right on the part of the Corps and Ecology to require the
Sponsors to implement the provisions of this Agreement, including recording the conservation
easement, required as a condition of the issuance of permits for discharges of dredged and fill
material into waters of the United States associated with construction and operation and
management of the Bank.
11 of 13
I. Attorneys' Fees: If any action at law or equity, including any action for declaratory
relief, is brought to enforce or interpret the provisions of this Agreement, each party to the
litigation shall bear its own attorneys' fees and costs of litigation.
J. Availability of Funds: Implementation of this Agreement is subject to the requirements
of the Anti-Deficiency Act, 32 U.S.C. § 1341, and the availability of appropriated funds.
Nothing in this Agreement may be construed to require the obligation, appropriation, or
expenditure of any money from the United States Treasury, in advance of an appropriation for
that purpose.
K. Headings and Captions: Any paragraph heading or caption contained in this
Agreement shall be for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement.
L. Counterparts: This Agreement may be executed by the Parties in any combination, in
one or more counterparts, all of which together shall constitute one and the same instrument.
M. Binding: This Agreement shall be immediately, automatically, and irrevocably
binding upon each of WSDOT and the City, and their heirs, successors, assigns and legal
representatives, upon execution by the Sponsors, Ecology, and the Corps.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date herein
below last written.
SPONSORS
4LJ _ 1/ /q/oi
Megan ite,P.E. Date
Direct& ' nvironmental Services
Washington State Department of Transportation
'eadtiv ,ei■eat— 8//60/0
Kathy K olker Date
Mayor
City of Renton
Attest: )41u_
Bonnie I. Walton, City Clerk
12 of 13
BANK OVERSIGHT COMMITTEE
By the BOC Chairs:
q,14401 ;
g(7/.\0(.
Michael McCormick Date
Colonel, Corps of Engineers
District Engineer
.4-...e4:-,7 c.:—.. 8/e/A,G
Gordon White Date
Program Manager for Shorelands and Environmental Assistance Program
Washington State Department of Ecology
13of13
EXHIBIT B
LEGAL DESCRIPTION
Units A, B and E of City of Renton Lot Line Adjustment No. LUA-06- 09-5- -LLA,
recorded under King County Recording No. Zpp(' q0000-7
TOGETHER WITH the north 721 feet of Unit D of said Lot Line Adjustment; and
TOGETHER WITH Unit C of said Lot Line Adjustment, EXCEPT that portion of said
unit lying northerly of the southernmost line of the easement granted to Burlington
Northern and Santa Fe Railway Co. recorded under King County Recording Number
20050303000964.
Situated in Section 30, Township 23 North, Range 5 East, W.M., and in Sections 25 and
36 of Township 23 North, Range 4 East, W.M., all in the City of Renton, King County,
Washington.
ter' •Nie
EXHIBIT C
CONSERVATION EASEMENT
7
AFTER RECORDING RETURN TO:
CITY OF RENTON
1055 South Grady Way
Renton, WA 98055
Attn: Surface Water Utility Engineering Supervisor
6te6i 0 1 005 000 3 a
GRANT DEED OF CONSERVATION EASEMENT
Grantor: City of Renton
Grantee: Cascade Land Conservancy
Legal Description
Ptn of W 1/2 of Section 30, T23N, R5E, W.M. and Ptn of Section
25, T23N, R4E, W.M. and Ptn of NE 1/4 of the NW 1/4 of Section 36, T23N,
R4E. W.M., all in the City of Renton, King County, Washington.
Additional legal description: at Exhibit A.
Assessor's Tax Parcel Numbers:
1) 125381-0090-05 (Unit A); 2)252304-9004 (Unit B); 3) Ptn of 252304-9019 (Unit C);
4)Ptn of 362304-9002-06 (Unit D); and 4)125381-0240-04 (Unit E)
HIS RANT DEED OF CONSERVATION EASEMENT("Easement") is made as of the
day of. C&, 2006 by City of Renton, a municipal corporation "
Cascade Land Conservancy, a Washington nonprofit corporation ("Grantee") c in favor of
"Parties"). ) (collectively
1. RECITALS
1.1. Grantor is the sole owner in fee simple of that certain real property (the "Protected
Property") in King County, Washington, more particularly described in Exhibit A (legal
description) and shown on Exhibit B (site plan), which are attached and incorporated into this
Easement by this reference.
1.2. The Protected Property(Springbrook Creek Bank)possesses wetlands and other
fish and wildlife habitat("Conservation Values"). Wetlands and other fish and wildlife habitat
Springbrook Conservation Easement 1
October 3, 2006
toy tag
on the Protected Property that are restored, enhanced, or otherwise created after the effective date
of this Easement shall also be considered Conservation Values.
1.3. The Conservation Values are a result of the Protected Property's inherent
ecological potential and of the existing and/or anticipated restoration and enhancement of
wetlands and other habitats on the Protected Property by Washington State Department of
Transportation("WSDOT") and the City of Renton(collectively"Sponsors"). The foregoing
restoration and enhancement is intended to qualify the Protected Property for inclusion by
WSDOT and the City of Renton in a wetland mitigation bank and issuance of credits there from
("Mitigation Bank"). Additional restoration and enhancement of the Protected Property may
occur as identified and described in that certain Memorandum of Agreement and Mitigation
Banking Instrument for the Springbrook Creek Wetland and Habitat Mitigation Bank, as may be
amended from time to time (collectively"Banking Agreements"), approved by the Washington
Department of Ecology and U.S. Army Corps of Engineers("Banking Agencies"), in
consultation with other certain public agencies (collectively, "Bank Oversight Committee").
1.4. The Springbrook Creek Mitigation Bank was established by WSDOT and the City
of Renton in coordination with, and approved by,the Banking Agencies. This Easement is a
condition of the operation of the Mitigation Bank. Grantee acknowledges that from time-to-time
Grantor may increase the real property that is subject to this Easement in furtherance of the
Mitigation Bank. Grantor and Grantee may amend this Easement to accomplish the foregoing as
provided in Section 12.1 below.
1.5. Grantor and Grantee intend that the Conservation Values be preserved and
maintained in perpetuity by permitting only those land uses on the Protected Property that do not
impair or interfere with the Conservation Values, which include, but are not limited to, such
restoration, enhancement, and recreational uses as further provided in this Easement.
1.6. Grantee is a publicly supported, tax-exempt nonprofit organization, qualified
under Sections 501(c)(3) and 170(h)of the Internal Revenue Code of 1986, as amended, and also
qualified as a nonprofit nature conservancy corporation under RCW 64.04.130 and RCW
84.34.250, whose primary purpose is to promote the preservation of open space and critically
important ecological systems in Snohomish, King, Pierce, and Kittitas Counties in Washington
State.
1.7. Grantee agrees, by accepting this Easement, to preserve and protect in perpetuity
the Conservation Values and enforce the provisions hereof unless this Easement is sooner
extinguished or terminated as otherwise provided for herein.
1.8. The Parties acknowledge that this Easement does not provide standards or criteria
regarding the effectiveness of the Sponsors' restoration or enhancement of the Protected Property
and that this Easement is not intended to provide a basis for ensuring the effectiveness of such
restoration and enhancement or to obligate Grantee to ensure such effectiveness. The Parties
further acknowledge that such standards and criteria and the ability to ensure the effectiveness
thereof are provided for in the Banking Agreements and related documents.
Springbrook Conservation Easement 2 October 3, 2006
err'
low
2. CONVEYANCE AND CONSIDERATION
2.1. For the reasons stated above, and in consideration of the mutual covenants, terms,
conditions, and restrictions contained in this Easement, and other good and valuable
consideration provided by the Parties, Grantor hereby voluntarily grants, conveys, and quit
claims to Grantee a conservation easement in perpetuity over the Protected Property, consisting
of certain rights in the Protected Property, as set forth in this Easement, subject only to the
restrictions contained in this Easement.
2.2. This conveyance is a conveyance of an interest in real property under the
provisions of RCW 64.04.130 and RCW 84.34.210.
2.3. This grant shall be subject to easements, restrictions, interests, and water rights of
record as of the effective date of this Easement, including, but not limited to, those set forth in
Exhibit C, which is attached and incorporated into this Easement by this reference.
2.4. Grantor expressly intends that this Easement run with the land and that this
Easement shall be binding upon Grantor's successors and assigns.
2.5. This Easement does not transfer any water or water rights. This Easement also
does not transfer, or create any entitlement in, any credit from, or rights in the credits from, the
Mitigation Bank.
3. PURPOSE
The purpose of this Easement is to assure that the Protected Property will be retained
forever in its condition as wetland and other aquatic and riparian habitat of fish, wildlife, and
plants,providing the wetland, aquatic and riparian functions and values described in the Baseline
Documentation, and to prevent any use of, or activity on,the Protected Property that will impair
or interfere with the Conservation Values (the"Purpose"). Grantor intends that this Easement
will confine the use of, or activity on, the Protected Property to such uses and activities that are
consistent with this Purpose. This Easement shall not be construed as affording to the general
public physical access to any portion of the Protected Property.
4. RIGHTS CONVEYED TO GRANTEE
To accomplish the Purpose of this Easement, the following rights are conveyed to
Grantee by this Easement:
4.1. Identification and Protection. To identify,preserve and protect in perpetuity,
unless sooner extinguished or terminated as otherwise provided under this Easement, and to
restore or enhance by mutual agreement, the Conservation Values.
4.2. Access.
4.2.1. To enter the Protected Property annually, at a mutually agreeable time and
Springbrook Conservation Easement 3 October 3, 2006
upon prior written notice to Grantor, for the purpose of making a general inspection to monitor
compliance with this Easement.
4.2.2. To enter the Protected Property at such other times as are necessary if
Grantee reasonably believes that a violation of the Easement is occurring or has occurred, for the
purpose of mitigating or terminating the violation and otherwise enforcing the provisions of this
Easement. Such entry shall be upon prior reasonable notice to Grantor, and Grantee shall not in
any case unreasonably interfere with Grantor's use of the Protected Property.
4.2.3. To enter the Protected Property, at mutually agreeable times and upon
prior written notice to Grantor, to exercise any other affirmative rights as expressly provided for
herein.
4.3. Scientific/Educational Use. To allow persons or groups to enter the Protected
Property for educational, scientific, and biological purposes to observe and study on the
Protected Property;provided that any such persons or groups first are approved by Grantor,
which approval shall not be unreasonably withheld, delayed, or conditioned, make prior
arrangements with Grantor, agree to provide Grantor with copies of any data or reports resulting
from such observation or study, and agree to abide by any reasonable restrictions on access set
forth by Grantor. Grantor and Grantee agree that all persons or groups given permission to enter
the Protected Property shall sign a waiver, substantially in the form attached to this Easement as
Exhibit D, which is incorporated herein by this reference. This waiver is intended to release
Grantor, Grantee and Assignee from all liability to the extent allowed by law.
4.4. Injunction and Restoration. To enjoin any use of, or activity on, the Protected
Property that is inconsistent with the Purpose of this Easement, and to undertake the restoration
of such areas or features of the Protected Property as may be damaged by uses or activities
inconsistent with the provisions of this Easement, all in accordance with Section 9.
4.5. Enforcement. To enforce the terms of this Easement, consistent with Section 9.
4.6. Assignment. To assign, convey, or otherwise transfer Grantee's interest in the
Protected Property in accordance with Section 13 and subject to Section 11.4.
4.7. Baseline Documentation.
4.7.1. Within sixty(60) days after the effective date of this Easement, within
sixty days (60) after the recording of any amendment hereof under Section 12.1 below and
thereafter as provided in Section 4.7.2 below, Grantee shall document specifically the
Conservation Values in an inventory of relevant features of the Protected Property, which
Grantee shall maintain on file at its offices and which shall be incorporated into this Easement by
this reference ("Baseline Documentation"). The Baseline Documentation shall consist of
reports, maps, photographs, and other documentation that provide, collectively, an accurate
representation of the Protected Property. The Baseline Documentation is intended to serve as an
objective, although nonexclusive, information baseline for monitoring compliance with the terms
and conditions of this Easement.
Springbrook Conservation Easement 4
October 3, 2006
.r
New
4.7.2. As previously noted, the additional restoration and enhancement work
under the Banking Agreements that may occur on the Protected Property is likely to enhance
significantly the Conservation Values. Grantee may from time-to-time and as necessary update
the Baseline Documentation to reflect such work and to document the enhanced Conservation
Values resulting there from for purposes of monitoring compliance with the terms and conditions
of this Easement.
4.8. Maintenance of Protected Property. To control non-native, noxious weeds and
invasive weeds (collectively "Weeds"), the exercise of which shall be in Grantee's sole
discretion, and acknowledging that Grantor is required to comply with all applicable state and
local laws for controlling weeds on the Protected Property(see Section 5.11.1,below). Grantee
shall provide Grantor 10 days prior written notice of its intent to exercise this right to control
Weeds on the Protected Property.
5. GRANTOR'S RESERVED RIGHTS AND OBLIGATIONS
5.1. General. Grantor reserves for itself and its successors and assigns all rights
accruing from ownership of the Protected Property, including, but not limited to, the right to sell,
lease, and devise the Protected Property and the right to engage in, or permit or invite others to
engage in, any use of, or activity on, the Protected Property that is not inconsistent with the
Purpose of the Easement and that is not prohibited by this Easement. Without limiting the
generality of this Section 5.1, Grantor specifically reserves for itself and its successors and
assigns, the following uses and activities:
5.2. Recreation. The undertaking of recreational activities on a non commercial
basis, such as hiking, bird watching and the public's use of the pedestrian trail provided for in
Section 5.5 below,provided that such activities are conducted in a manner and intensity that does
not cause more than a de minimis adverse impact on the Conservation Values.
5.3. Fences. The construction and maintenance of fences within or around the
Protected Property.
5.4. Habitat Stewardship,Restoration, and Enhancement. Constructing,
installing,planting, maintaining, and engaging in other activities to maintain or further restore or
enhance the Conservation Values in accordance with the Banking Agreements and any final
design,construction or management plans and bid specifications subsequently developed in
conformance with the Banking Agreements, as may be amended from time to time, ("Mitigation
Bank Plans and Specifications"), which may include, but are not limited to:planting and
irrigating plants; removing and controlling weeds; maintaining berms, log weir in Unit C, and
water conveyance structure in Unit D; and creating new wetlands. Grantor shall provide Grantee
Mitigation Bank Plans and Specifications relating to: any proposed use of herbicides for Weed
control; grading and excavation plans; the alteration or manipulation of natural water courses; or
the creation of new wetlands,water impoundments, channels or water courses and shall provide
Grantee with prior written notice of any material deviation from such Plans and Specifications
relating to such activities. Motorized and mechanized vehicles may be used in furtherance of,
Springbrook Conservation Easement 5
October 3, 2006
and to facilitate, the foregoing activities, provided that any off-road use thereof does not cause
more than a de minimis adverse impact on the Conservation Values. If Grantor has conveyed or
assigned its rights to engage in the activities described in this Section 5.4 to Grantee or third
parties, Grantor covenants to not interfere with such restoration and/or enhancement, including,
but not limited to, by the exercise of any rights reserved to Grantor under this Easement.
5.5. Pedestrian Trail. Construction and maintenance of an elevated public pedestrian
trail generally eight feet in its width, constructed of plastic wood, cedar timber, and/or other
nontoxic materials, and located in Unit A at the approximate location shown on Exhibit B,
provided that the trail design and construction shall be in accordance with the Mitigation Bank
Plans and Specifications.
5.6. Maintenance. Taking various actions necessary to protect the Conservation
Values and other features of the Protected Property from beavers and to otherwise mitigate for
the impacts of beavers on the Protected Property, including, but not limited to, trapping beavers,
removing trees, installing devices to interfere with activities of beavers, and removing and
otherwise destroying beaver dams and lodges.
5.7. Signs. The installation and maintenance of signs provided that such installation
does not cause more than a de minimis adverse impact on the Conservation Values. Signs in
excess of twenty-five (25) square feet in area need prior written approval by Grantee of sign
location and design.
5.8. Scientific/Educational Use. To allow persons or groups to enter the Protected
Property for educational, scientific, and biological purposes to observe and study on the
Protected Property. Grantor and Grantee agree that,with the exception of the general public's
use of the pedestrian trail provided for in Section 5.5 above, all persons or groups given
permission to enter the Protected Property shall sign a waiver, substantially in the form attached
to this Easement as Exhibit D, which is incorporated herein by this reference. This waiver is
intended to release Grantor, Grantee and Assignee from all liability to the extent allowed by law.
5.9. Protection of Health or Safety. The undertaking of other activities necessary to
protect health or safety, or that are actively required by and subject to compulsion of any
governmental agency with authority to require such activity;provided that any such activity shall
be conducted so that significant adverse impacts on the Conservation Values are avoided, or, if
avoidance is not possible,minimized to the greatest extent possible under the circumstances.
5.10 Utilities Infrastructure. Routine maintenance, improvement, operation,
removal,repair or replacement of existing City of Renton and King County utilities currently
occupying those areas that are designated as "Reserved for City of Renton Utilities
Infrastructure" and as "King County Sewer Easement" on Sheets 12 through 19 inclusive of
the City of Renton Lot Line Adjustment No. LUA-06-095-LLA, recorded under King County
recording No. 20060824900007, copies of which are attached to Exhibit C to this Easement.
Springbrook Conservation Easement 6
October 3, 2006
5.11 Grantor's Obligations.
5.11.1. Noxious Weed Control. Grantor shall comply with all state and local
requirements for controlling noxious weeds within the Protected Property.
5.11.2. Structures, Facilities and Improvements. Grantor shall maintain all
structures, facilities and improvements associated with the foregoing activities, including roads,
trails and fences, that are within the Protected Property and are merely incidental to the
functionality of the mitigation site, but that are necessary to Mitigation Bank management
activities, for as long as necessary to serve the needs of the long term management phase, as
described in the Banking Agreements and related documents.
5.11.3 Access &Non-Interference. Grantor shall provide access to the Banking
Agencies or their agents or designees as needed to fulfill their obligations, as set forth in the
Banking Agreements. In the event that Grantor assigns its responsibilities under the Long-Term
Management Plan("Plan"), as provided for in the Banking Agreements, Grantor shall refrain
from impeding or otherwise interfering with implementation of the Plan. Activities in
furtherance of the Plan are to be carried out by the Sponsors or their assignees as approved by the
Banking Agencies. Such activities may include, but are not limited to, maintenance and repair of
water control structures; maintenance, repair, removal, or abandonment of structural elements of
the Mitigation Bank; and removal of invasive plant species.
6. USES AND ACTIVITIES INCONSISTENT WITH
THE PURPOSE OF THE EASEMENT
6.1. General. Any use of, or activity on, the Protected Property inconsistent with the
Purpose of this Easement is prohibited, and Grantor acknowledges and agrees that it will not
conduct, engage in, or permit any such use or activity. Without limiting the generality of the
foregoing, the following uses of, or activities on, the Protected Property, although not an
exhaustive list of inconsistent uses or activities, are inconsistent with the Purpose of this
Easement and shall be prohibited:
6.1.1. Subdivision. The legal or"de facto"division or subdivision of the
Protected Property, which shall include, but not be limited to, any subdivision, short subdivision,
platting, binding site plan, or other process by which the Protected Property is divided into lots.
This prohibition shall not be interpreted to preclude any lot line adjustment that does not create a
number of lots that is greater than the number of lots in existence on the effective date of this
Easement.
6.1.2. Construction. The placement, installation, or construction of any
buildings, structures, or other improvements of any kind, including, but not limited to, roads,
railroads, utilities, cellular phone towers, septic systems,wells,recreational facilities, and
parking lots, except as expressly provided in Section 5 above, including, specifically, those uses
and activities provided for in the Mitigation Bank Plans and Specifications.
6.1.3. Alteration of Land. The alteration of the surface of the land, including,
Springbrook Conservation Easement 7 October 3, 2006
mirre
without limitation, the excavation or removal of soil, sand, gravel, rock,peat, or sod, except in
conjunction with a use or activity expressly allowed in Section 5 above, including, specifically,
those uses and activities provided for in the Mitigation Bank Plans and Specifications.
6.1.4. Erosion or Water Pollution. Any use or activity that causes or is likely to
cause significant soil degradation or erosion or significant pollution of any surface or subsurface
waters. For the purposes of this Easement, the uses and activities expressly allowed under
Section 5 above, including, specifically,those uses and activities provided for in the Mitigation
Bank Plans and Specifications, shall be deemed to not violate this prohibition.
6.1.5. Removal of Trees and Other Vegetation. The pruning, topping, cutting
down, uprooting, girdling, or other destruction or removal of live and dead trees and other
vegetation, except as expressly provided in Section 5 above or in conjunction with a use or
activity expressly allowed in Section 5 above, including, specifically, those uses and activities
provided for in the Mitigation Bank Plans and Specifications.
6.1.6. Waste Disposal. The disposal, storage, or Release of Hazardous
Substances, rubbish, garbage, debris, unregistered vehicles, abandoned equipment, parts thereof,
or other offensive waste or material. The term"Release"shall mean release, generation,
treatment, disposal, storage, dumping, burying, or abandonment. The term"Hazardous
Substances" shall mean any substances, materials, or wastes that are hazardous, toxic, dangerous,
or harmful, or are designated as, or contain components that are, or are designated as, hazardous,
toxic, dangerous, or harmful, and/or that are subject to regulation as hazardous, toxic, dangerous,
or harmful or as a pollutant by any federal, state, or local law,regulation, statute, or ordinance,
including, but not limited to,petroleum or any petroleum product.
6.1.7. Mining. The exploration for, or development and extraction of, oil, gas,
coal, limestone, fossils,metals, geothermal resources, sand, gravel, or rock of any type on or
below the surface of the Protected Property,except as expressly provided in rights of record as of
the effective date of this Easement, as set forth in Section 2.3 and Exhibit C.
6.1.8. Recreational Activities. The undertaking of recreational activities and the
installation or construction of improvements in furtherance of the same, except as expressly
provided in Section 5 above.
7. NOTICE AND APPROVAL
7.1. Notice.
7.1.1. Grantor. Certain provisions of this Easement require Grantor to notify
Grantee and/or to receive Grantee's written approval prior to undertaking certain permitted uses
and activities (e.g., Sections 5.4 [habitat stewardship—material deviations form Mitigation Bank
Plans and Specifications], 5.7 [signage], and 11.3 [subsequent transfers)). The purpose of
requiring Grantor to notify Grantee prior to undertaking these permitted uses and activities is to
afford Grantee an adequate opportunity to ensure that the use or activity in question is designed
and carried out in a manner consistent with the Purpose of this Easement. Whenever such notice
Springbrook Conservation Easement 8 October 3, 2006
Now
is required, Grantor shall notify Grantee in writing not less than thirty(30) days prior to the date
Grantor intends to undertake the use or activity in question. The notice shall describe the nature,
scope, design, location, timetable, and any other material aspect of the proposed use or activity in
sufficient detail to permit Grantee to make an informed judgment as to its consistency with the
terms of this Easement and the Purpose thereof.
7.1.2. Grantee. Certain provisions of this Easement require Grantee to give
notice to Grantor prior to undertaking certain activities (e.g., Sections 4.2 [access], 4.3
[scientific/educational use], 4.8 [weed control], 10.2 [taxes], and 13.1 [assignment]). Whenever
such notice is required, Grantee shall notify Grantor in writing not less than thirty(30) days prior
to the date Grantee intends to undertake the use or activity in question, unless otherwise provided
for by this Easement.
7.2. Approval. Where approval by one of the Parties is required under this Easement,
such approval shall be granted or denied in writing within thirty(30) days of receipt of a written
request for approval, and such approval shall not be unreasonably withheld, delayed or
conditioned. Such approval may include reasonable conditions consistent with the Banking
Agreements that must be satisfied in undertaking the proposed use or activity.
7.3. Optional Consultation. If Grantor is unsure whether a proposed use or activity
is prohibited by this Easement, Grantor may consult Grantee by providing Grantee a written
notice describing the nature, scope, design, location, timetable, and any other material aspect of
the proposed use or activity in sufficient detail to permit Grantee to make an informed judgment
as to its consistency with the Purpose of this Easement and to provide comments thereon to
Grantor. This Section 7.3 does not itself impose a requirement of prior approval of the activity
described in any such notice.
7.4. Addresses. Any notice, demand, request, consent, approval, or communication
that any party desires or is required to give to the others shall be in writing and either personally
delivered or sent by first class certified mail,postage prepaid, or by facsimile(if available)with
original dispatched by certified mail, addressed as follows, or to such other address as any party
from time to time shall designate by written notice to the others:
To Grantor: City of Renton
1055 South Grady Way
Renton, WA 98055
Attn: Surface Water Utility Engineering Supervisor
To Grantee: Cascade Land Conservancy
615 Second Avenue, Suite 625
Seattle, WA 98104
Attn: Senior Conservation Director
To Assignee: Washington State Department of Transportation
P.O. Box 47338
Olympia, WA 98504-7338
Springbrook Conservation Easement 9 October 3, 2006
:tl
vot
Nor
Attn: Director, Real Estate Services
And to
Washington State Department of Transportation
P.O. Box 47331
Olympia, WA 98504-7331
Attn: Director, Environmental Services
8. ALTERNATIVE DISPUTE RESOLUTION
8.1. Preventive Discussions. Grantor and Grantee will promptly give the other notice
of problems or concerns arising in connection with the other's actions under the Easement or the
use of or activities or conditions on the Protected Property, and will meet as needed,but no later
than fifteen(15)days after receipt of a written request for a meeting,to minimize the same. The
party giving notice according to this section shall provide a copy thereof to Assignee.
8.2. Mediation/Alternative Dispute Resolution. If a dispute arises between the
Parties concerning the consistency of any present or proposed use or activity with the Purpose of
this Easement, and if Grantor agrees not to continue or proceed with the use or activity pending
resolution of the dispute, the Parties shall meet together to discuss the dispute and attempt
resolution. If the dispute is not resolved through preventive discussions, either party may
thereafter refer the dispute to mediation by request made in writing to the other with a copy to
Assignee, or the Parties may,by mutual agreement, utilize other forms of alternative dispute
resolution. Within thirty(30)days of the receipt of a mediation request, the Parties shall select a
single mediator to hear the matter. The matter shall be settled in accordance with any
Washington State mediation statute then in effect.
9. JUDICIAL RESOLUTION
9.1. Notice of Violation, Corrective Action. If either party determines that the other
is in violation of the terms of this Easement or that a violation is threatened, they shall give
written notice to the other of such violation and demand corrective action sufficient to cure the
violation and, where the violation involves injury to the Protected Property resulting from any
use or activity inconsistent with the Purpose of this Easement, to restore the portion of the
Protected Property so injured to its prior condition in accordance with a plan approved by
Grantee. The party giving notice according to this section shall provide a copy thereof to
Assignee.
9.2. Failure to Respond. Either party may bring an action as provided in Section 9.3
below if the other party:
9.2.1. Fails to cure the violation within thirty(30) days after receipt of a notice
of violation; or
9.2.2. Under circumstances where the violation cannot reasonably be cured
Springbrook Conservation Easement 10 October 3, 2006
within a thirty(30)day period, fails to begin curing the violation within the thirty(30) day period
and fails to continue diligently to cure such violation until finally cured.
9.3. Action.
9.3.1. Injunctive Relief. Either party may bring an action at law or in equity in
a court having jurisdiction to enforce the terms of this Easement:
9.3.1.1. To enjoin the violation, ex parte as necessary and as allowed under the
applicable civil rules,by temporary or permanent injunction; and
9.3.1.2. To require the restoration of the Protected Property to the condition that
existed prior to any such injury.
9.3.2. Damages., The prevailing party shall be entitled to recover damages for
violation of the terms of this Easement or injury to any Conservation Values protected by this
Easement. Without limiting Grantor's liability in any way, Grantee shall first apply any damages
recovered to the cost of undertaking corrective or restoration action on the Protected Property.
9.4. Emergency Enforcement. If Grantee, in its sole discretion, determines that
circumstances require immediate action to prevent or mitigate significant damage to the
Conservation Values, Grantee may pursue its remedies under this Section 9 without prior notice
to Grantor or without waiting for the period provided for cure to expire.
9.5. Scope of Relief. Grantee's rights under this Section 9 apply equally in the event
of either actual or threatened violations of the terms of this Easement. Grantor agrees that
Grantee's remedies at law for any violation of the terms of this Easement are inadequate and that
Grantee shall be entitled to the injunctive relief described in this Section 9,both prohibitive and
mandatory, in addition to such other relief to which Grantee may be entitled, including specific
performance of the terms of this Easement,without the necessity of proving either actual
damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described
in this Section 9 shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity.
9.6. Costs of Enforcement. Except as provided in Section 8.1 above, in the event a
party to this Easement finds it necessary to bring an action at law or other proceeding against the
other party to enforce any of the provisions of this Easement, or by reason of any breach or
default under this Easement, the prevailing party in any such action or proceeding shall be paid
all costs and reasonable attorneys' fees by the other party.
9.7. Discretion in Enforcement. Enforcement of the terms of this Easement shall be
at the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this
Easement in the event of any breach of any terms of this Easement by Grantor, its agents,
employees, contractors, invitees or licensees shall not be deemed or construed to be a waiver by
Grantee of such term of any of Grantee's rights under this Easement. No delay or omission by
Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such
Springbrook Conservation Easement 11 October 3, 2006
tior 1110
right or remedy or be construed as a waiver.
9.8. Acts Beyond Party's Control. Neither Grantor nor Grantee shall be in default or
violation as to any obligation created hereby and no condition precedent or subsequent shall be
deemed to fail to occur if such party is prevented from fulfilling such obligation by, or such
condition fails to occur due to:
9.8.1. Actions by trespasser upon the Protected Property;
9.8.2. Forces beyond such party's reasonable control, caused by a natural or
human-caused catastrophic event or a deliberate and unlawful act by a third-party,which forces
by exercise of due diligence and foresight such party could not reasonably have expected to
avoid. A natural catastrophic event includes a flood equal to or greater in magnitude than the
100-year flood event, an earthquake of a force projected from an earthquake with a return period
of 475 years, or a debilitating drought, disease, wildfire, depredation,regional pest infestation, or
fluvioigeomorphic change. A human-caused catastrophic event includes war, insurrection,riot
or other civil disorders, spill of a hazardous or toxic substance, or fire. A deliberate and unlawful
act includes the dumping of a hazardous or toxic substance, vandalism, or arson; or
9.8.3. Any action deemed reasonable by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to the Protected Property resulting from such causes.
In the event the terms of this Easement are violated by acts of trespassers, Grantor agrees, at
Grantee's option and expense, to join in any suit, to assign its right of action to Grantee, or to
appoint Grantee its attorney in fact, for the purpose of pursuing enforcement action against the
responsible parties.
9.9. Compliance Certificates. Upon request by Grantor, Grantee shall within thirty
(30)days execute and deliver to Grantor, or to any party designated by Grantor, any document,
including a letter of compliance,that certifies,to the best of Grantee's knowledge,the status of
Grantor's compliance with any obligation of Grantor contained in this Easement and otherwise
evidences the status of this Easement.
10. COSTS,LIABILITIES,TAXES,ENVIRONMENTAL
COMPLIANCE,AND INDEMNIFICATION
10.1. Costs, Legal Requirements,Liabilities and Insurance. Grantor retains all
responsibilities and shall bear all costs and liabilities of any kind related to the ownership,
operation, upkeep, and maintenance of the Protected Property.
10.2. Taxes and Other Costs. Grantor shall pay any taxes, fees and charges assessed
against the Protected Property by governmental authority as they become due, including taxes
imposed upon, or incurred as a result of, this Easement, and shall furnish Grantee with
satisfactory evidence of payment upon request. To preserve its rights under this Easement,
Grantee may, but is in no event obligated to, make payment of any taxes upon five (5) days prior
written notice to Grantor, in accordance with any bill, statement, or estimate procured from the
Springbrook Conservation Easement 12
October 3, 2006
appropriate authority, without inquiry into the validity of the taxes or the accuracy of the bill,
statement or estimate, and the obligation to Grantee created by such payment will bear interest
until paid by Grantor at the same rate imposed by the relevant governmental authority for the late
payment of the tax so paid by Grantee.
10.3. Representations and Warranties. Grantor represents and warrants that to
Grantor's actual knowledge, and except as disclosed to Grantee in writing prior to the effective
date of this Easement:
10.3.1. There are no apparent or latent defects in or on the Protected Property,
such as an open well, garbage dump, abandoned underground tanks, or hazardous waste dump;
and
10.3.2. Grantor and the Protected Property are in compliance with all federal,
state, and local laws, regulations, and requirements applicable to the Protected Property and its
use, including,but not limited to, environmental laws, regulations, and requirements.
10.4. Control. Nothing in this Easement shall be construed as giving rise, in the
absence of a judicial decree, to any right or ability in Grantee to exercise physical or managerial
control over the day-to-day operations of the Protected Property, or any of Grantor's activities on
the Protected Property, or otherwise to become an operator with respect to the Protected Property
within the meaning of the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended("CERCLA"), and the Model Toxics Control Act,as amended
("MTCA").
10.5. Grantor's Indemnification. Grantor shall hold harmless, indemnify, and defend
Grantee and its members, directors, officers, employees, agents, and contractors (collectively
"Grantee Indemnified Parties") from and against all liabilities,penalties, costs, losses, damages,
expenses, causes of action, claims, demands, or judgments, including,without limitation,
reasonable attorneys' and consultants' fees, arising from or in any way connected with breach of
its representations and warranties or injury to or the death of any person, or physical damage to
any property, resulting from any act, omission, condition, or other matter related to or occurring
on or about the Protected Property that is not a consequence of any action or omission of any of
the Grantee Indemnified Parties on or about the Protected Property.
10.6. Grantee's Indemnification. Grantee shall hold harmless, indemnify, and defend
Grantor and Grantor's members, directors, officers, employees, agents, and contractors
(collectively "Grantor Indemnified Parties") from and against all liabilities, penalties, costs,
losses, damages, expenses, causes of action, claims, demands, or judgments, including, without
limitation, reasonable attorneys' and consultants' fees, arising from or in any way connected
with injury to or the death of any person, or physical damage to any property, resulting from any
act, omission, condition, or other matter related to or occurring on or about the Protected
Property that is a consequence of Grantee's actions or omissions or the actions or omissions of
Grantee's members, directors, officers, employees, agents, or contractors on or about the
Protected Property.
Springbrook Conservation Easement 13 October 3, 2006
11. EXTINGUISHMENT,CONDEMNATION,AND SUBSEQUENT TRANSFER
11.1. Extinguishment. If circumstances arise in the future that render the Purpose of
this Easement impossible to accomplish, this Easement can only be terminated or extinguished,
whether in whole or in part, by the Parties' mutual agreement and with the written approval of
the Banking Agencies, or by judicial proceedings of a court having jurisdiction. Unless
otherwise agreed to by the Parties, Grantee shall have no compensable interest in this Easement
under such circumstances and Grantee acknowledges that its compensation relating to its
obligations under this Easement is provided for under separate agreement with the Grantor. The
immediately foregoing provision shall be limited solely to the circumstances described in this
Section 11.1, and shall not be interpreted to have any application or inference to any other
provision of, or circumstance under, this Easement, including,but not limited to, those
provisions pertaining to Grantee's rights to enforce the terms of this Easement and Grantee's
rights to damages to, or the cost of restoring, the Conservation Values.
11.2. Condemnation. If the Easement is taken,in the whole or in the part, by the
exercise of the power of eminent domain, Grantee shall not be entitled to compensation and the
entirety of any compensation award shall belong to Grantor. The immediately foregoing
provision shall be limited solely to the circumstances described in this Section 11.2, and shall not
be interpreted to have any application or inference to any other provision of, or circumstance
under,this Easement, including, but not limited to,those provisions pertaining to Grantee's
rights to enforce the terms of this Easement and Grantee's rights to damages to, or the cost of
restoring, the Conservation Values.
11.3. Subsequent Transfers. Grantor agrees to:
11.3.1. Incorporate the terms of this Easement by reference in any deed or other
legal instrument by which it divests itself of any interest in all or a portion of the Protected
Property, including, without limitation, a leasehold interest;
11.3.2. Describe this Easement in and append it to any executory contract for the
transfer of any interest in the Protected Property; and
11.3.3. Give written notice to Grantee of the transfer of any interest in all or a
portion of the Protected Property prior to the date of such transfer. Such notice to Grantee shall
include the name, address, and telephone number of the transferee or the transferee's
representative.
The failure of Grantor to perform any act required by this Section 11.3 shall not impair the
validity of this Easement or limit its enforceability in any way.
11.4. No Merger. In the event that Grantee acquires the fee title to the Protected
Property, it is Grantor's and Grantee's intention that no merger of title shall take place that
would merge the restrictions of this Easement with fee title to the protected property and thereby
eliminate them, and that the restrictions on the use of the Protected Property, as embodied in this
Springbrook Conservation Easement 14
October 3, 2006
NNW
Easement, shall, in the event title becomes vested in Grantee,become and remain permanent and
perpetual restrictions on the use of the Protected Property. Furthermore, the Grantee agrees to
incorporate the provisions in this Grant Deed of Conservation Easement in any subsequent
conveyance of an interest in the Protected Property.
12. AMENDMENT
12.1. Amendment to Expand Area. Grantor and Grantee are free to jointly amend
this Easement to increase the real property that is subject to this Easement,provided that any
such additional real property is contiguous with the property that is already subject to this
Easement. Any such amendment shall be recorded in the official records of King County,
Washington, and any other jurisdiction in which such recording is required.
12.2 Other Amendments. If circumstances arise under which any other amendment
to or modification of this Easement would be appropriate, Grantor and Grantee are free to jointly
amend this Easement upon approval of such amendment or modification by the Banking
Agencies. Any such amendment shall be recorded in the official records of King County,
Washington, and any other jurisdiction in which such recording is required.
13. ASSIGNMENT AND SUCCESSION
13.1. Assignment Generally. With Grantor's written approval, which will not be
unreasonably withheld, conditioned, or delayed, and the Banking Agencies' written approval,
this Easement is transferable, but Grantee may assign its rights and obligations under this
Easement only to an organization that is authorized to acquire and hold conservation easements
under RCW 64.04.130 or RCW 84.34.210(or any successor provision(s)then applicable). As a
condition of such transfer, Grantee shall require that the transferee exercise its rights under the
assignment consistent with the Purpose of this Easement. Grantee shall notify Grantor in writing
forty-five(45) days prior to such assignment at Grantor's last known address.
13.2. Assignment to WSDOT. The Grantee agrees to assign this Easement to the
Washington State Department of Transportation("Assignee") at such time as all of the
Assignee's banking credits have been sold,used or transferred, or the Sponsors have
permanently ceased banking activities, whichever occurs earlier(Termination of Assignee's
Mitigation Bank Operational Life). Assignee shall certify in writing to Grantor, Grantee and the
Bank Oversight Committee that the events necessary for Termination of Assignee's Mitigation
Bank Operational Life have occurred, and that Assignee requests Assignment of the Easement
pursuant to this Section. Upon Grantee's receipt of Grantor's written approval, which will not be
unreasonably withheld, conditioned, or delayed, and receipt of the Banking Agencies' written
approval, Grantee shall assign, and WSDOT shall accept assignment under an Assignment of
Easement substantially in the form of Exhibit E. Assignee will be obligated to all terms of this
Easement and will hold this Easement as Grantee from that point on in perpetuity.
13.3. Succession. If at any time(a) it becomes impossible for Grantee to ensure
compliance with the covenants, terms, conditions and restrictions contained in this Easement, (b)
the Grantor and the Banking Agencies, or the Banking Agencies alone, determine that this
Springbrook Conservation Easement 15 October 3, 2006
Easement should be assigned due to any reasons of actual non performance by the Grantee,
including,but not limited to, circumstances under which actual non performance occurs because
Grantee is the holder of both the fee title to the Protected Property and this Easement, (c) Grantee
ceases to exist or to be authorized to acquire and hold conservation easements under RCW
64.04.130 and 84.34.210 (or any successor provision(s)then applicable), or(d) Grantee is
otherwise released from its liabilities and obligations under the Easement,then, if Grantee has
been provided forty five(45)days prior notice and opportunity to cure any non performance or
otherwise remedy any other circumstance forming the basis of any transfer under this Section
13.3, and subject to the Preventative Discussion provisions under Section 8.2 above if applicable,
Grantee's rights and obligations under this Easement shall become vested and fall upon the
Banking Agencies or such other entity, with purposes similar to Grantee's,that is authorized to
acquire and hold conservation easements under RCW 64.04.130 or RCW 84.34.210(or any
successor provision(s)then applicable), to the extent that they shall accept this Easement;
provided that if such vesting is deemed to be void under the Rule Against Perpetuities, the rights
and obligations under this Easement shall vest in such organization as a court having jurisdiction
shall direct, pursuant to the applicable Washington law and with due regard to the Purpose of this
Easement.
14. RECORDATION
Grantee shall record this Easement in a timely fashion in the official records of King
County,Washington, and in any other appropriate jurisdictions, and may re-record it at any time
as may be required to preserve its rights in this Easement.
15. GENERAL PROVISIONS
15.1. Controlling Law. The interpretation and performance of this Easement shall be
governed by the laws of the State of Washington.
15.2. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to affect the
Purpose of this Easement. If any provision in this Easement is found to be ambiguous, an
interpretation consistent with the Purpose of this Easement that would render the provision valid
shall be favored over any interpretation that would render it invalid.
15.3. Severability. If any provision of this Easement, or its application to any person
or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the
application of such provision to persons or circumstances other than those as to which it is found
to be invalid, as the case may be, shall not be affected.
15.4. Entire Agreement. Except as to the Conservation Easement Reimbursement
Agreement for Springbrook Creek Wetland and Habitat Mitigation Bank, all prior discussions,
negotiations, understandings, communications,or oral agreements regarding this Easement have
been superseded by, and are merged into, this Easement.
15.5. No Forfeiture. This Easement does not convey any interest in the Protected
Springbrook Conservation Easement 16 October 3, 2006
Nque
Now
Property other than the rights specifically provided herein.
15.6. "Grantor"- "Grantee". The terms "Grantor" and "Grantee,"wherever used in
this Easement, and any pronouns used in their place, shall be held to mean and include,
respectively the above-named Grantor, and its successors and assigns, and the above-named
Grantee, and its successors and assigns.
15.7. Successors and Assigns. The covenants, terms, conditions, and restrictions of
this Easement shall be binding upon, and inure to the benefit of, the Parties to this Easement and
their respective successors and assigns, and shall continue as a servitude running in perpetuity
with the Protected Property, unless sooner terminated as expressly provided for herein. No term
or provision of this Easement is intended to be, or shall be, for the benefit of any person, firm,
organization, or corporation not a party to this Easement, and no such other person, firm,
organization, or corporation shall have any right or cause of action hereunder, except as
expressly provided in Section 13 above.
15.8. Termination of Rights and Obligations. A party's rights and obligations under
this Easement terminate upon transfer of the party's interest in the Easement or Protected
Property, except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
15.9. Counterparts. The Parties may execute this Easement in two or more
counterparts,which shall be signed by all Parties. Each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart shall be controlling.
15.10. Recitals. Each recital set forth above is fully incorporated into this Easement.
15.11. Effective Date. The effective date of this Easement is the date of recording of
this Easement.
15.12. Authority. The individuals signing below, if signing on behalf of any entity,
represent and warrant that they have the requisite authority to bind the entity on whose behalf
they are signing.
15.13. Captions. The captions in this Easement have been inserted solely for
convenience and ease of reference and are not a part of this Easement and shall have no effect
upon construction or interpretation.
16. SCHEDULE OF EXHIBITS
16.1. Exhibit A—Legal Description of Property Subject to Easement.
16.2. Exhibit B—Site Map(s).
16.4. Exhibit C—Permitted Exceptions
Springbrook Conservation Easement 17
October 3, 2006
16.5 Exhibit D—Agreement for Release From Liability
16.6 Exhibit E—Assignment of Easement
To HAVE AND TO HOLD unto Grantee, its successors and assigns forever.
G��SS WHEREOF, the undersigned Grantor has executed this Easement this 3 day
of , 2006.
CITY OF RENTON, Grantor
By I
Kathy Keol er, Mayor
The CASCADE LAND CONSERVANCY does hereby accept the above Grant Deed of Conservation
Easement.
Dated: lb •
CASCADE LAND CONSERVANCY, Grantee
By
_ er-. .�� . •' � t."!
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LL Y ica /'e$ 4..-,4
THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION does hereby accept its designation
as Assignee��on the occurrence of those events described in Paragraph 13.2 above.
Dated: V /
WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION
e, ,
By
G, ald L% allinger
Director of Real Es . e Services
Springbrook Conservation Easement 18 October 3, 2006
low
STATE OF WASHINGTON
SS.
COUNTY OF KING
On this fA day of 0 C;1v At, 2006, before me, the undersigned, a Notary Public in
and for the State of Washington, duly commissioned a d worn, personally
appeared ..44'd t 'i, to me known to be the/ iU/ !° '"Y OF RENTON, the Washington
limited liabilit company that executed the within and foregoing Easement, and acknowledged
the said Easement to be the free and voluntary act and deed of said company for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute the said
Easement.
WITNESS my hand and official seal hereto affixed the deal and year in this certificate
above written.
��NEVI11 / y, .
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STATE OF WASHINGTON
SS.
COUNTY OF KING
On this day of 2006, before me, the undersigned, a Notary Public in
and for the State of Washington, dul o 'ssioned and sworn,personally appeared-Gely
0 eo for EgrPogittserr to me known to be the X of Cascade Land Conservancy, the Washington
nonprofit corporation that executed the within and foregoing Easement, and acknowledged the
said Easement to be the free and voluntary act and deed of said corporation for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute the said
Easement.
WITNESS my hand and official seal hereto affixed the deal and year in this certificate
above written.
toomlimitil
•a 'jam$r NO Y PUBLIC in and for the State of
NOTARY
E -...e-._. = Washington,residing at -
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Springbrook Conservation Easement 19 October 3, 2006
EXHIBIT A to
GRANT DEED OF CONSERVATION EASEMENT
Legal Description of Property Subject to Easement
Units A, B and E of City of Renton Lot Line Adjustment No. LUA-06-095-LLA, recorded under
King County Recording No. 20060824900007, as more particularly described in the attached
Sheet 2 thereof;
TOGETHER WITH Unit C of said Lot Line Adjustment, as more particularly described in the
attached Sheet 2 thereof,EXCEPT that portion of said unit lying northerly of the southernmost
line of the easement granted to Burlington Northern and Santa Fe Railway Co. recorded under
King County Recording Number 20050303000964; and
TOGETHER WITH the north 721 feet of Unit D of said Lot Line Adjustment, as more
particularly described in the attached Sheet 2 thereof.
Situated in Section 30,Township 23 North, Range 5 East, W.M., and in Sections 25 and 36 of
Township 23 North,Range 4 East, W.M., all in the City of Renton, King County, Washington.
Springbrook Conservation Easement 20 October 3, 2006
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EXHIBIT C to
GRANT DEED OF CONSERVATION EASEMENT
Permitted Exceptions
Those restrictions, reservations and protective covenants, and those easements identified as
"remaining"or"portion remaining,"all as shown on Sheets 12 through 19 inclusive of the City
of Renton Lot Line Adjustment No. LUA-06-095-LLA recorded under King County Recording
No. 20060824900007,copies of which are attached hereto.
Springbrook Conservation Easement 22 October 3, 2006
rr+ 'ror
EXHIBIT D to
GRANT DEED OF CONSERVATION EASEMENT
Agreement for Release from Liability
In consideration for permission to enter certain property, the Springbrook Creek
Mitigation Bank, in King County, Washington, owned by City of Renton(hereafter the
"Protected Property")to observe and study the ecology of the Protected Property, I hereby
acknowledge and agree to the following:
1. My activities in the Protected Property involve many risks, including,but not limited to,
risks of bodily injury/illness or death resulting from accident,poisonous plants or animals;
2. I am entering the Protected Property at my own risk and I assume full responsibility for
the risk of bodily injury or death,whether foreseen or unforeseen, in connection with my
activities in the Protected Property;
3. I HEREBY RELEASE,WAIVE AND DISCHARGE CITY OF RENTON and their personal
representatives,heirs, successors, and assigns, and the CASCADE LAND CONSERVANCY and its
personal representatives, successors, and assigns from any liability for harm or loss suffered by
me in connection with my activities in the Protected Property, WHETHER BY NEGLIGENCE OR NOT,
and I FURTHER SAVE AND HOLD HARMLESS CITY OF RENTON,WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION, and their personal representatives, heirs, successors or assigns, and the
CASCADE LAND CONSERVANCY, and its personal representatives, successors, and assigns, from
any and all liability, actions, causes of action, claims, demands of every kind and nature
whatsoever by me or my family, estate,heirs, executors, administrators, legal representatives,
successors or assigns arising out my activities in the Protected Property;
4. I hereby expressly agree that this"AGREEMENT FOR RELEASE FROM LIABILITY" is
intended to be as broad and inclusive as permitted by the laws of the State of Washington, and if
any portion thereof is held invalid, it is agreed that the balance shall,notwithstanding, continue
in full force and effect; and
5. This "AGREEMENT FOR RELEASE FROM LIABILITY"contains the entire agreement between
the parties hereto and that the terms of this Agreement are contractual in nature and not a mere
recital; I understand all of the terms; and I am of lawful age and legally competent to sign this
Agreement.
** I HAVE FULLY INFORMED MYSELF OF THE CONTENT OF THIS"AGREEMENT FOR RELEASE FROM
LIABILITY"BY READING IT CAREFULLY BEFORE SIGNING IT.
Name(print) Signature
Date City/County/State
Springbrook Conservation Easement 23 October 3, 2006
EXHIBIT E to
GRANT DEED OF CONSERVATION EASEMENT
Assignment of Easement
Springbrook Conservation Easement 24 October 3, 2006
AFTER RECORDING RETURN TO:
CITY OF RENTON
1055 South Grady Way
Renton, WA 98055
Attn: Surface Water Utility Engineering Supervisor
ASSIGNMENT OF GRANT DEED OF CONSERVATION EASEMENT
Assignor: Cascade land Conservancy
Assignee: Washington State Department of Transportation
Legal Description
Ptn of W 1/2 of Section 30, T23N, R5E, W.M. and Ptn of Section
25, T23N, R4E, W.M. and Ptn of NE 1/4 of the NW 1/4 of Section 36, T23N,
R4E. W.M., all in the City of Renton, King County, Washington.
Additional legal description: at Exhibit A.
Assessor's Tax Parcel Numbers:
1) 125381-0090-05 (Unit A); 2)252304-9004 (Unit B); 3) Ptn of 252304-9019(Unit C);
4) Ptn of 362304-9002-06 (Unit D); and 4)125381-0240-04 (Unit E)
Reference Number of Related Document [Easement]:
THIS ASSIGNMENT OF GRANT DEED OF CONSERVATION EASEMENT
("Assignment") is entered into by and between CASCADE LAND CONSERVANCY, a
Washington nonprofit company ("Assignor"), and the WASHINGTON STATE DEPARTMENT
OF TRANSPORTATION, a state agency of the State of Washington ("Assignee") (collectively,
the "Parties").
RECITALS
A. Assignor is the Grantee under that certain Grant Deed of Conservation Easement,
made by the City of Renton, Grantor, in favor of Grantee, dated , 2006, and recorded
in the real property records of King County, Washington, under Auditor's File No.
("Easement"). The Easement is attached hereto as Exhibit B.
Springbrook Conservation Easement 25 October 3, 2006
B. The Easement provides for the preservation and protection in perpetuity of certain
real property located in King County, Washington (the "Protected Property"), as legally
described in Exhibit A hereto.
C. The City of Renton (Grantor of the Easement) and Assignee are collectively the
sponsors of a mitigation bank, known as the Springbrook Creek Wetland and Habitat Mitigation
Bank("Mitigation Bank"). The Easement is a condition of the operation of the Mitigation Bank.
D. The Easement requires Assignor to assign the Easement to Assignee upon certain
events (Termination of Assignee's Mitigation Bank Operational Life), which events have now
occurred.
E. Assignee is authorized to acquire and hold conservation easements under RCW
64.04.130.
F. Assignor desires to assign all of its right, title and interest in the Easement to
Assignee, and Assignee desires to accept all right,title and interest in the Easement.
G. The City of Renton has provided Assignor with its written approval of this
Assignment, as have the Washington Department of Ecology and the U.S. Army Corps of
Engineers(the Banking Agencies).
AGREEMENT
NOW THEREFORE, intending to be legally bound and for good and valuable
consideration, including the mutual covenants and promises of the parties, the adequacy and
receipt of which is hereby acknowledged,the Parties agree as follows:
1. Assignment.
1.1 Assignor hereby assigns all of its right, title and interest in the Easement to
Assignee in consideration for Assignee's assumption of all of Assignor's stewardship and
management obligations under the Easement. Upon assignment, Assignor has no further rights,
responsibilities or obligations under the Easement.
1.2 Assignee hereby assumes all of the rights and obligations of Assignor as Grantee
under the Easement, and agrees to exercise its rights and obligations under this Assignment
consistent with the Purposes and terms of the Easement.
2. Assignee's address for notices to Grantee under Section 7 of the Easement is:
Washington State Department of Transportation
P.O. Box 47338
Olympia, WA 98504-7338
Attn: Director,Real Estate Services
Springbrook Conservation Easement 26 October 3, 2006
And
Washington State Department of Transportation
P.O. Box 47331
Olympia, WA 98504-7331
Attn: Director, Environmental Services
3. General Terms
3.1 Entire Agreement. This Assignment contains the entire integrated agreement of
the Parties, including all of the covenants and conditions between the parties, with respect to the
subject matter of this Assignment, and supersedes all prior correspondence, agreements, and
understandings,both oral and written.
3.2 Authority. Each undersigned representative of the parties certifies that he or she
is fully authorized to enter into the terms and conditions of this Assignment and to legally
execute, and bind such party to,this Assignment.
3.3 Recitals. Each recital and exhibit set forth above is fully incorporated into this
Assignment.
3.4 Effective Date. The effective date of this Assignment shall be the earliest date by
which both Assignor and Assignee have executed this instrument.
To HAVE AND TO HOLD unto Assignee, its successors and assigns forever.
IN WITNESS WHEREOF,the undersigned Assignor has executed this Assignment this_day of
, 20_
CASCADE LAND CONSERVANCY,Assignor
By
[name]
[title]
The WASHINGTON STATE DEPARTMENT OF TRANSPORTATION does hereby accept the above Assignment
of Grant Deed of Conservation Easement.
Dated:
WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION
By
[name]
[title]
Springbrook Conservation Easement 27 October 3, 2006
*11M
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of 20_,before me, the undersigned,a Notary Public in and for
the State of Washington,duly commissioned and sworn,personally appeared
to me known to be the President of Cascade Land Conservancy,the
Washington nonprofit corporation that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes
therein mentioned,and on oath stated that s/he is authorized to execute the said instrument.
WITNESS my hand and official seal hereto affixed the deal and year in this certificate above
written.
NOTARY PUBLIC in and for the State of
Washington,residing at
Print Name:
My commission expires
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
On this day of 2006,before me,the undersigned,a Notary Public in and for
the State of Washington,duly commissioned and sworn,personally appeared
[name]to me known to be the [title] of the
Washington State Department of Transportation,the agency of the State of Washington that executed the
within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act
and deed of said agency for the uses and purposes therein mentioned,and on oath stated that s/he is
authorized to execute the said instrument.
WITNESS my hand and official seal hereto affixed the deal and year in this certificate above
written.
NOTARY PUBLIC in and for the State of
Washington,residing at
Print Name:
My commission expires
Springbrook Conservation Easement 28 October 3, 2006
EXHIBIT A to
ASSIGNMENT OF GRANT DEED OF CONSERVATION EASEMENT
Legal Description of Property
Units A, B and E of City of Renton Lot Line Adjustment No. LUA-06-095-LLA, recorded under
King County Recording No. 20060824900007, as more particularly described in the attached
Sheet 2 thereof;
TOGETHER WITH Unit C of said Lot Line Adjustment, as more particularly described in the
attached Sheet 2 thereof, EXCEPT that portion of said unit lying northerly of the southernmost
line of the easement granted to Burlington Northern and Santa Fe Railway Co. recorded under
King County Recording Number 20050303000964; and
TOGETHER WITH the north 721 feet of Unit D of said Lot Line Adjustment, as more
particularly described in the attached Sheet 2 thereof.
Situated in Section 30, Township 23 North, Range 5 East, W.M., and in Sections 25 and 36 of
Township 23 North, Range 4 East, W.M., all in the City of Renton, King County, Washington.
Springbrook Conservation Easement 29 October 3,2006
%Niv 4.10
EXHIBIT B to
ASSIGNMENT OF GRANT DEED OF CONSERVATION EASEMENT
Conservation Easement
Springbrook Conservation Easement 30 October 3, 2006
EXHIBIT D
CITY OF RENTON AND WSDOT
ESTIMATED BANK PROJECT DEVELOPMENT COST SHARING
THE SPRINGBROOK CREEK HABITAT AND WETLAND MITIGATION BANK
FUNDING AGREEMENT TOTAL WSDOT CITY
COST PAYS PAYS
Development Costs
BNSF Drainage Easement* $22,515 $0 $22,515
Sundry Site Plan Task A $23,168 $23,168 $0
Sundry Site Plan Task B $25,650 $25,650 $0
Release Private Property Rights** $8,250 $8,250
Conservation Easement Costs (current estimates)
CLC Establishment Expenses *** $22,000 $20,690 $1,310
TOTAL CURRENT ESTIMATE $101,583 $69,508 $32,075
*WSDOT will reimburse the City for any BNSF Drainage Easement costs above$22,515
**The City will be responsible for any Release of Private Property Rights costs above$8,250.
***CLC Establishment Expenses are estimated. If actual costs differ,the City and WSDOT will
equally share the difference between the estimated and actual cost.