Approve lease agreement with WSDOT for right of way to a pedestrian trail. BEFORE THE BOARD OF COUNTY COMMISSIONERS
LEWIS COUNTY, WASHINGTON
IN THE MATTER OF: RESOLUTION NO. 20-113
APPROVING A LEASE AGREEMENT BETWEEN
WASHINGTON STATE DEPARTMENT OF
TRANSPORTATION AND LEWIS COUNTY FOR THE
RIGHT OF WAY TO A PEDESTRIAN TRAIL
WHEREAS, Lewis County desires to operate and maintain a trail segment under this
lease for a portion of highway right of way of SR 5, Mellen St. to Blakeslee Junction; and
WHEREAS, WSDOT is granted authority to lease property under RCW 47.12.120; and
WHEREAS, the County Engineer has reviewed the agreement and recommends that
the Board of County Commissioners (BOCC) execute the agreement.
NOW THEREFORE BE IT RESOLVED it is in the best public interest to authorize the
lease agreement between Washington State Department of Transportation and Lewis
County.
DONE IN OPEN SESSION this 6th day of April, 2020.
APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS
Jonathan Meyer, Prosecuting Attorney LEWIS COUNTY, WASHINGTON
Amber Smith Gary Stamper
By: Amber Smith, Gary Stamper, Chair
Deputy Prosecuting Attorney
ATTEST: •'e�""'`=w�'• Edna J . Fund
.ate`• p&D• 0° FS�i�.s •,Edna J. Fund, Vice Chair
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Rieva Lester Robert C. Jackson
Rieva Lester, Robert C. Jackson, Commissioner
Clerk of the Lewis County Board of County
Commissioners
Lease No.: TR-04-14226
I.C.No.: 4-21-10352
Parcel No.: 4-08087
Fed. Aid No.: None
Project: SR 5,Mellen Street to Blakeslee Junction
TRAIL LEASE
THIS IS A TRAIL LEASE made and entered into by and between the WASHINGTON
STATE, DEPARTMENT OF TRANSPORTATION (hereinafter WSDOT), and LEWIS
COUNTY,a political subdivision of the state of Washington(hereinafter TENANT);
WHEREAS, the land and premises to be leased are not presently needed exclusively for
highway purposes;and
WHEREAS,the TENANT desires to construct,operate,and maintain a trail segment under
this Lease as part of the TENANT's local comprehensive trail plan as an interim use until the land
and premises to be leased are needed for a highway purpose; and
WHEREAS, WSDOT is granted authority to lease property under RCW 47.12.120, and,
WSDOT deems it to be in the best public interest to enter into this Lease,
NOW, THEREFORE, in consideration of the terms, conditions, covenants, and
performances contained herein, IT IS MUTUALLY AGREED AS FOLLOWS:
1. PREMISES. WSDOT leases to TENANT, and TENANT hereby leases from WSDOT,
the premises(Premises) located in Gov't Lot 2,Section 18,Township 14 North,Range 2 West,
W.M. and known to be a portion of the highway right of way of SR 5, Mellen St. to Blakeslee
Junction,sheet 5 of 19 sheets,approved April 29,2010,revised November 22,2013 and as shown
hachured on Exhibit A, attached hereto and by this reference incorporated herein.
2. USE OF PREMISES.
A. No use other than reconstruction, operation, and maintenance of a public
pedestrian, bicycle, and other non-motorized vehicle trail under the control of TENANT is
permitted without the prior written approval of WSDOT. TENANT expressly agrees that it will
not charge others to use the Premises. No motorized vehicles will be allowed on the Premises
except for TENANT's maintenance vehicles and emergency vehicles responding to an emergency
on the Premises. In using the Premises, TENANT shall comply with all statutes, policies, and
regulations,including,but not limited to the Scenic Vistas Act,RCW 47.42 et seq. and WAC 468-
66 et seq.,heretofore adopted or hereafter promulgated by WSDOT or the state legislature relative
to the location, operation, and maintenance of improvements located on the Premises. No access
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I.C.No.:4-21-10352
to the Premises will be constructed or allowed to be constructed by or for TENANT without
WSDOT's prior written approval.Direct access to ramps or traveled lanes of state highways is not
permitted. All grading and construction plans and any changes thereof are subject to approval by
WSDOT.
B. TENANT will not allow third parties to use the trail as access to private property
or improvements located on private property. Furthermore, in using the Premises, it is expressly
agreed that TENANT shall:
(1) comply with all applicable federal, state, and local laws, ordinances, and
regulations, including environmental requirements that are in force or which may hereafter be in
force; and
(2)secure all necessary permits and licenses for the uses of the Premises authorized
in this Lease. TENANT hereby agrees to indemnify, defend and hold harmless WSDOT from all
claims or suits resulting from TENANT's failure to comply with such requirements.
C. No signs, other than directional signs or such signage as further described herein,
are permitted. WSDOT owned fences in place at the time of execution of this Lease or relocated
to separate the Premises from the traveled roadway will be maintained by WSDOT. Nothing is to
be attached to WSDOT's fence without prior written approval. If any fence is damaged as a result
of the activities authorized by this Lease, TENANT will promptly repair such damage at its cost
to WSDOT's satisfaction.
D. Within thirty (30) calendar days of occupancy, TENANT at its sole expense shall
erect and maintain a permanent sign at all entrances to the Trail located on WSDOT right of way,
stating as follows:
"This trail is located on highway right of way under a cooperative agreement
between Lewis County and the Washington State Department of Transportation."
3. TERM. The term of this Lease is Twenty (20) years, COMMENCING ON THE
DATE OF EXECUTION OF THIS LEASE BY WSDOT(Commencement Date).
4. RENEWAL. Upon expiration of the initial term,this Lease may be renewed by TENANT
for Two (2) additional Ten (10) year periods, (Renewal Period), at the discretion of WSDOT;
provided that, (A) TENANT is not in default and has not been in default during the term of this
Lease; (B) the property is not needed for a priority transportation purpose, as determined by
WSDOT; (C) TENANT's continued use under this Lease does not impair the safety or operation
of WSDOT's highway or facility, as solely determined by WSDOT; and (D) the terms and
conditions of this Lease conform to then-existing state policies or practices, laws,regulations, and
contracts, or provided, TENANT is willing to amend this Lease to bring it into compliance with
such policies,practices,laws,regulations,and contracts.The Renewal Period shall be on the same
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I.C.No.:4-21-10352
terms and conditions as set forth herein, except as modified by any changes in policies, practices,
laws,regulations,annexations,or contracts and as reflected in a written amendment signed by both
parties. TENANT shall give written notice of its intent to renew this Lease for the Renewal
Period(s) not less than ninety (90) calendar days, but not more than six (6) months, prior to the
expiration of the Lease, or any extension thereof.
5. TERMINATION BY WSDOT.
A. WSDOT may terminate this Lease, without penalty or further liability as follows:
(1) immediately,upon the unauthorized assignment of this Lease by TENANT;
(2) upon not less than thirty (30)calendar days' prior written notice, for failure
of TENANT to provide acceptable As-Built drawings to WSDOT within ninety(90)calendar days
of the date of completion of any trail reconstruction,and fails to cure such failure within that thirty
(30)day period; acceptability of the As-Built drawings shall be determined solely by WSDOT;
(3) upon not less than thirty (30) calendar days' prior written notice, if
TENANT defaults on any provision in this Lease and is notified by WSDOT of the default two(2)
times within a six (6) month period. The third default shall be deemed"non-curable";
(4) upon not less than thirty (30) calendar days' prior written notice to
TENANT, if TENANT defaults, and fails to cure such default within that thirty (30) day period,
or such longer period, as may be reasonably determined by WSDOT, if TENANT is diligently
working to cure the default. Waiver or acceptance of any default of the terms of this Lease by
WSDOT shall not operate as a release of TENANT's responsibilities for any prior or subsequent
default;
(5) immediately, if TENANT's insurance coverage as required herein lapses
for any reason. In such event, WSDOT may, at its option,barricade access to the Premises;
(6) immediately, upon issuance of any court order, legislative action, or
governmental agency action having jurisdiction to take such action, which would significantly
impair or effectively prohibit TENANT's use of the Premises;
(7) immediately, upon written notice, if a receiver is appointed to take
possession of TENANT's assets, TENANT makes a general assignment for the benefit of
creditors, or TENANT becomes insolvent or takes or suffers action under the Bankruptcy Act;
(8) upon not less than sixty(60)calendar days' prior written notice, if WSDOT
reasonably determines that it is in furtherance of an overriding public interest for WSDOT to
terminate this Lease;
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(9) upon not less than thirty (30) calendar days' prior written notice if the
Premises has been abandoned, in WSDOT's sole judgment, for a continuous period of ninety (90)
days;
(10) immediately, if a transportation emergency exists as solely determined by
WSDOT;
B. WSDOT may terminate the Lease in part upon not less than sixty (60) calendar
days' prior written notice, if WSDOT determines that a portion of the Premises may be used for
additional purposes such as,but not limited to,telecommunications purposes,which in WSDOT's
sole reasonable determination are reasonably consistent with TENANT's authorized use of the
Premises.
C. It is hereby acknowledged and agreed that the highway use of the Premises is
paramount to any other use, including TENANT's use for a pedestrian, bicycle, and other non •
-
motorized vehicle trail.
D. TENANT agrees to pay all costs to barricade or to provide other interim safety
measures, as directed by WSDOT, if closure of the trail becomes necessary to facilitate repair,
reconstruction, maintenance, or modifications of the highway right of way.
6. TERMINATION BY TENANT. TENANT may terminate this Lease without penalty
or further liability as follows:
A. upon not less than sixty (60) calendar days' prior written notice for any reason;
provided that, TENANT removes all traces of the trail prior to the date of termination;
B. upon not less than thirty (30) calendar days' prior written notice, if WSDOT
defaults and fails to cure such default within that thirty (30) day period, or such longer period, as
may be reasonably determined by TENANT. if WSDOT is diligently working to cure the default;
or
C. immediately, upon written notice, if in TENANT's judgment the Premises is
destroyed or damaged so as to substantially and adversely affect TENANT's authorized use of the
Premises.
7. CONSIDERATION.In lieu of paying economic rent for the Premises, TENANT agrees
to provide other specific consideration which is deemed to be a highway benefit.The consideration
is: The separation of motor vehicle traffic from pedestrians or cyclists which will materially
increase motor vehicle safety and increase highway efficiency; and as part of the TENANT's
project for the extension and connection of NW Louisiana Ave. to Airport Road, the WSDOT's
I-5/Mellen Street to Blakeslee Junction Project, and per the GCB 1137 and GCB 1157, the trail is
part of a mitigation requirement to improve safety and reduce congestion on I-5 by providing an
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1.C.No.: 4-21-10352
alternate route for local traffic. TENANT's maintenance, at its sole expense, of the section of trail
as designated in Exhibit A which maintenance and construction would otherwise be the
responsibility of WSDOT.
8. MAINTENANCE RESPONSIBILITIES.
A. TENANT shall perform or cause to be performed at its sole expense all
maintenance of the Premises that shall include,but not be limited to,keeping the Premises in good
condition, both as to safety and appearance, to the reasonable satisfaction of WSDOT. TENANT
shall be responsible for weed control, and reconstruction and repair of any or all components of
the trail facility. In addition(if applicable),TENANT is responsible for the regular inspection and
repair of structures as required by the Code of Federal Regulations 23 CFR 650, subpart C,
National Bridge Inspection standards (NBIS), EXCEPT any and all work that would require SR 5
closure.
B. TENANT warrants that any landscaping planted and maintained on the Premises
will not damage, threaten to damage, or otherwise adversely affect any part or component of the
state's highway facility or operation, or adversely affect traffic safety.
C. TENANT agrees that it is additionally responsible for all maintenance activities on
the Premises listed below,including but not limited to,specific maintenance and operational items,
at its sole cost and expense,without further liability to WSDOT:
(1) Security and law enforcement for the Premises;
(2) Graffiti removal upon all real and personal property which includes
all fixtures and attachments, and the required signs under Section 2E, herein, including graffiti
removal from all highway retaining walls or structures previously inaccessible to the public.
Graffiti removal shall be done immediately upon notification and/or inspection,but performed no
less than monthly. TENANT shall in no way interfere with any highway operations or traffic flow
on SR 5;
(3) Litter control on an as needed" basis. or upon notification and/or
inspection,but no less than monthly;
(4) Surface sweeping of the trail path on an"as needed" basis, or upon
notification and/or inspection, but performed no less than monthly; and
(5) Removal and disposal of unauthorized signs, banners, ribbons, etc.
from the Premises immediately upon discovery, or upon notification and/or inspection.
D. TENANT agrees to pay all costs to barricade, or to provide other interim safety
measures, if closure of any part of the Leased Premises is deemed necessary by WSDOT.
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I.C.No.:4-21-10352
E. If TENANT fails to maintain the Premises as provided in this Lease,WSDOT may,
but is not obligated to, perform such maintenance after providing the TENANT with Thirty (30)
calendar days written notice of maintenance default(s) which TENANT fails to correct within
Thirty(30) calendar days of said notice, and the TENANT agrees to reimburse WSDOT for such
maintenance costs within Thirty (30) calendar days of WSDOT's detailed invoice (the "Due
Date"). All sums due by TENANT to WSDOT and not paid by the Due Date shall bear interest at
the rate of twelve percent (12%) per annum, or the highest rate of interest allowable by law,
whichever is greater; provided that, if the highest rate allowable by law is less than twelve percent
(12%), interest charged hereunder shall not exceed that amount. Interest shall be calculated from
the Due Date to the date of payment.
9. ENVIRONMENTAL REQUIREMENTS.
A. TENANT represents, warrants and agrees that it will conduct its activities on
Premises and lands adjacent thereto in compliance with all applicable Environmental Laws. As
used in this Lease, "Environmental Laws" means all federal, state and local environmental laws,
rules,regulations, ordinances,judicial or administrative decrees, orders, decisions, authorizations
or permits, including,but not limited to,the Resource Conservation and Recovery Act,42 U.S.C.
§ 6901, et seq.,the Clean Air Act, 42 U.S.C. § 7401, et seq., the Federal Water Pollution Control
Act, 33 U.S.C. § 1251, et seq., the Emergency Planning and Community Right to Know Act,
42 U.S.C. § 11001, et seq., the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601, et
seq., the Oil Pollution Control Act, 33 U.S.C. § 2701, et seq., and Washington or any other
comparable local, state or federal statute or ordinance pertaining to the environment or natural
resources and all regulations pertaining thereto, including all amendments and/or revisions to said
laws and regulations.
B. Toxic or hazardous substances are not allowed on the Premises without the express
written permission of WSDOT and under the terms and conditions specified by WSDOT. In the
event such permission is granted,the.disposal of such materials must be done in a legal manner by
TENANT. For the purposes of this Lease, "Hazardous Substances" shall include all those
substances identified as hazardous under the Comprehensive Environmental Response, Compen-
sation,and Liability Act,42 U.S.C. §9601 et seq.,and the Washington Model Toxics Control Act,
RCW 70.105D et seq., and shall include gasoline and other petroleum products. "Existing
Hazardous Substances"shall mean those Hazardous Substances existing on the Premises as of the
Commencement Date of this Lease that are not WSDOT Hazardous Substances. "WSDOT
Hazardous Substances"shall mean those Hazardous Substances (a)that have been released on the
Premises by WSDOT, its employees, contractors, or agents, either before or after the
Commencement Date; (b) released or have the potential to be released as a result of WSDOT's
activities or operations on the Premises either before or after the Commencement Date;or(c)have
been released or have the potential to be released as a result of WSDOT's use, disposal,
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transportation, generation and/or sale of Hazardous Substances on the Premises, regardless of
when they may have been released on the Premises.
C. TENANT agrees to cooperate in any environmental investigations conducted by
WSDOT's staff or independent third parties where there is evidence of a release or potential release
of Hazardous Substances on the Premises, or where WSDOT is directed to conduct such audit by
an agency or agencies having jurisdiction. TENANT will reimburse WSDOT for the cost of such
investigations, to the extent the need for said investigation is determined to be caused by
TENANT's operations. TENANT will provide WSDOT with notice of any inspections of the
Premises, notices of violations, and orders to clean up Hazardous Substances. TENANT will
permit WSDOT to participate in all settlement or abatement discussions. In the event TENANT
fails to take remedial measures as duly directed by a state, federal, or local regulatory agency
within ninety (90) calendar days of such notice, WSDOT'may elect to perform such work, and
TENANT covenants and agrees to reimburse WSDOT for all direct and indirect costs associated
with WSDOT's work where said release of Hazardous Substances is determined to have resulted
from TENANT's use of the Premises.
WSDOT's right to implement any required actions pursuant to this subparagraph shall not
accrue unless and until:
(1) TENANT's failure to implement remedial measures violates the terms of
the direction received from the state,federal,or local regulatory agency;
(2) WSDOT has provided TENANT with written notice of TENANT's failure
to implement the subject remedial measures; and
(3) TENANT has failed to cure the breach within ten (10) business days of
receipt of such written notice,unless the parties agree to an extended cure period.
D. TENANT agrees the use of the Premises shall be such that no hazardous or objec-
tionable smoke, fumes, vapor, odors, or discharge of any kind shall rise above the grade of the
property.
E. For the purposes of this Lease, "Costs" shall include but not be limited to, all
response costs,disposal fees,investigatory costs,monitoring costs,civil or criminal penalties, and
attorneys' fees and other litigation costs incurred in complying with Environmental Laws.
F. To the extent allowed by law, TENANT agrees to defend, indemnify and hold
harmless WSDOT from and against any and all claims,causes of action,demands and liability that
are caused by or result from TENANT's activities on the Premises, including but not limited to
any Costs, liabilities, damages, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees associated with the removal or remediation of any Hazardous Substances that have
been released or have the potential to be released on the Premises, including those that may have
migrated from the Premises through water or soil to other properties,including without limitation,
the adjacent WSDOT property, if a result of TENANT's activities on the Premises.
G. To the extent allowed by law, TENANT further agrees to defend, indemnify and
hold harmless WSDOT from any and all liability arising from the offsite disposal, handling,
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treatment, storage, or transportation of any Hazardous Substances removed from said property,
which Hazardous Substances were released onto the Premises as a result of TENANT's activities.
This obligation shall not apply with respect to the presence of Hazardous Substances on said
property that did not result from TENANT's use of the Premises.
H. To the extent allowed by law, WSDOT agrees to defend, indemnify, and hold
harmless TENANT from and against any and'all claims, causes of action, demands, and liability
that are caused by or result from the removal or remediation of any WSDOT Hazardous Substances
that have been released or have the potential to be released on the Premises, including, but not
limited to, any Costs, liabilities, damages, expenses, assessments, penalties, fines, losses,
judgments, and attorneys' fees associated with the presence of WSDOT Hazardous Substances on
the Premises. WSDOT further agrees to take all remedial measures at the Premises as duly directed
by a state,federal,or local regulatory agency,or as required under applicable Environmental Laws,
where such obligations result from WSDOT Hazardous Substances. In completing any work
required on the Premises in satisfaction of its duties under this Subsection, WSDOT shall not
unreasonably interfere with TENANT's use of the Premises. TENANT agrees to cooperate with
WSDOT in providing access to the Premises for any such work. WSDOT's obligations under this
paragraph shall not apply as to claims, causes of action, demands, and/or liabilities caused, in
whole or in part,by TENANT's activities on the Premises.
I. Any Costs associated with the investigation, removal, or remediation of Existing
Hazardous Substances on the Premises by TENANT, including any increased construction costs,
shall be the responsibility of TENANT and not the responsibility of WSDOT. Nothing in this
Agreement shall limit the ability of TENANT or WSDOT to pursue cost recovery from third
parties responsible for release of Hazardous Substances on the Premises.
J. To the extent allowed by law, WSDOT shall reimburse TENANT for the cost of
any environmental investigations, disposal, or cleanup activities conducted by TENANT to the
extent the need for said investigation resulted from WSDOT Hazardous Substances. WSDOT will
provide TENANT with notices of any inspections of the Premises,notices of violations,and orders
to clean-up contamination that WSDOT receives from an agency or agencies with jurisdiction.
WSDOT will permit TENANT to participate in all settlement or abatement discussions. In the
event that WSDOT fails to take remedial measures as duly directed by a state, federal, or local
regulatory agency within ninety(90)calendar days of such notice, TENANT may elect to perform
such work, and WSDOT covenants and agrees to reimburse TENANT for the reasonable direct
and indirect costs associated with TENANT's work. This reimbursement obligation shall not
apply, however, to the extent the contamination is determined to have resulted from TENANT's
use of the Premises.
TENANT's right to implement any required actions pursuant to this subparagraph shall not
accrue unless and until:
(1) WSDOT's failure to implement remedial measures violates the terms of the
direction received from the state, federal, or local regulatory agency;
(2) TENANT has provided WSDOT with written notice of WSDOT's failure to
implement the subject remedial measures; and
(3) WSDOT has failed to cure its breach within ten(10)business days of receipt
of such written notice, unless the parties agree in writing to an extended
cure period.
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K. WSDOT will obtain TENANT'S consent in instances when a third party seeks to
use the Premises, except as otherwise provided in Sections 10 and 16 of this Lease, and WSDOT
shall require the third party to indemnify TENANT for any Costs associated with the third party's
release of Hazardous Substances from the Premises or use of Hazardous Substances on the
Premises. If WSDOT allows a third party to use the Premises, the responsibility for any Costs for
Existing Hazardous Substances or WSDOT Hazardous Substances that are not released by
TENANT will be determined by applicable law.
L. In the event of any third party actions related to Existing Hazardous Substances
including private party actions or actions brought by public agencies, each Party shall bear its own
costs of defense and neither shall be entitled to indemnification or defense by the other Party under
this section.
M. The provisions of this section shall survive the expiration or termination of this
Lease.
10. WSDOT'S RESERVATION OF RIGHT TO MAINTAIN/GRANT UTILITY
FRANCHISES/PERMITS AND TO LEASE FOR COMPATIBLE PURPOSES.
A. WSDOT reserves the right for utility franchise and permit holders to enter upon the
Premises to maintain facilities and, for itself, to grant utility franchises and/or permits within the
Premises. Such installation will be accomplished in such a manner as to minimize any disruption
to TENANT. The franchise/permit holder will be required to restore paving and grading damaged
by the installation. WSDOT also reserves the right to withdraw portions of the Premises for uses
such as, but not limited to, telecommunications transmission sites, which WSDOT determines to
be reasonably compatible with TENANT's authorized use of Premises.
B. TENANT shall not disturb markers installed by a franchise/permit holder and will
contact and provide notice to any franchise/permit holder and all owners of underground facilities
prior to any excavation. TENANT shall contact WSDOT and call the Underground Utility
Locating Service,or its successor organization, as part of its efforts to ascertain any and all owners
of underground utility facilities and to locate the utility. TENANT shall not damage legally
installed underground utilities. TENANT shall comply with all applicable provisions of chapter
19.122 RCW relating to underground facilities.
11. TAXES/ASSESSMENTS/UTILITIES. TENANT agrees to pay all assessments that
benefit the Premises and/or which may hereafter become a lien on the interest of TENANT in
accordance with RCW 79.44.010. TENANT agrees to pay all taxes that may hereafter be levied or
imposed upon the interest of TENANT or by reason of this Lease. TENANT is responsible for and
agrees to pay the cost for all utilities, including, but not limited to, surcharges, fuel adjustments,
rate adjustments and taxes that serve the Premises.
12. LIMITATIONS. TENANT expressly acknowledges and agrees that WSDOT's rights
under this Lease to review, comment on, disapprove, and/or accept designs, plans specifications,
work plans, construction, equipment. installation: (a) exist solely for the benefit and protection of
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WSDOT;(b)do not create or impose upon WSDOT any standard or duty of care toward TENANT,
all of which are hereby disclaimed;(c)may not be relied upon by TENANT in determining whether
TENANT has satisfied any and all applicable standards and requirements; and (d) may not be
asserted, nor may WSDOT's exercise or failure to exercise any such rights be asserted, against
WSDOT by TENANT as a defense, legal, or equitable, to TENANT's obligation to fulfill such
standards and requirements and regardless of any acceptance of work by WSDOT.
13. "AS BUILT"PLANS. Within thirty (30) days of the date that any future trail
reconstruction is completed, TENANT shall provide WSDOT with a complete set of dimensioned
"As-Built" scale drawings showing at least the information following: (a) trail centerline; (b)ties
to beginning and end of trail;(c)underground utilities;and(d) such other information as WSDOT
may request. Acceptability of the As-Built drawings shall be determined solely by WSDOT. In the
event TENANT fails to provide such plans within the prescribed time period, TENANT hereby
agrees that WSDOT shall have the right, at its option, to contract with a consultant in order to
secure such plans and TENANT agrees to reimburse WSDOT for all costs incurred in obtaining
said plans within thirty(30)calendar days of the date of WSDOT's invoice.
14. LIENS.
A. TENANT shall at all times indemnify and hold harmless WSDOT from all claims
for labor or materials in connection with construction, repair, alteration, maintenance, or
installation of structures, improvements, equipment, or facilities on or within the Premises, and
from the cost of defending against such claims, including attorney fees.
B. In the event a lien is filed upon the Premises, TENANT shall: (a) record a valid
Release of Lien; (b) deposit sufficient cash with WSDOT to cover the amount of the claim on the
lien in question and authorize payment to the extent of said deposit to any subsequent judgment
holder that may arise as a matter of public record from litigation with regard to lienholder claim;
or(c)procure and record a bond which releases the Premises from the claim of the lien and from
any action brought to foreclose the lien.
C. Should TENANT fail to accomplish Section B.(a), (b), or (c) above within fifteen
(15)calendar days after the filing of such a lien,the Lease shall be in default per Section 5.A.(4).
15. ENCUMBRANCES.It is expressly understood that TENANT shall not encumber the
Premises.
16. WSDOT'S RIGHT OF ENTRYIINSPECTION. WSDOT, for itself, its agents, and
contractors and for the Federal Highway Administration(FHWA),reserves the right to enter upon
the Premises at any time without notice to TENANT for the purpose of inspection, maintenance,
construction, or reconstruction of the highway facility or any element thereof, or to perform
environmental reviews.WSDOT shall in no way be responsible for any incidental or consequential
damages due to such loss of use, if any, by TENANT. WSDOT and FHWA may from time-to-
RES 419 Page 10 of 17
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time go upon the Premises for the purpose of inspecting any excavation, reconstruction, or
maintenance work being done by TENANT. Further, this right shall not impose any obligation
upon WSDOT to make inspections to ascertain the safety of TENANT's improvements or the
condition of the Premises.
17. INSURANCE.
A. TENANT warrants that it is self-insured,and agrees to provide acceptable evidence
of its self-insured status to WSDOT. TENANT's insurance policy must provide liability coverage
for the Premises, including public liability coverage for bodily injury, property damage, and
personal injury of not less than Two Million and no/100 Dollars($2,000,000.00)combined single
limit per occurrence, with a general aggregate amount of not less than Four Million and no/100
Dollars ($4,000,000.00) per policy period. Such aggregate limits shall apply for this Premises
location, and coverage under said policy shall be triggered on an "occurrence basis," not on a
"claims made"basis.TENANT shall increase the policy limits at its sole cost,when and if WSDOT
deems it necessary due to TENANT's use of the Premises within ten (10) calendar days of
WSDOT's written request to do so.
B. TENANT assumes all obligations for premium payment, and in the event of non-
payment is obligated to reimburse WSDOT the cost of maintaining the insurance coverage and
any legal fees incurred in enforcing such reimbursement in the event TENANT fails to pay the
policy premiums.
C. Coverage, if obtained by TENANT in compliance with the Section, shall not be
deemed as having relieved TENANT of any liability in excess of such coverage.
D. In the event TENANT, after commencement of this Lease, elects to terminate its
self-insured status and secure commercial liability coverage, TENANT will promptly notify
WSDOT, promptly secure insurance coverage as designated herein or as amended by WSDOT
and promptly provide a certificate of insurance from an insurer licensed to conduct business in the
state of Washington, to the satisfaction of WSDOT. WSDOT shall be named as an additional
insured by endorsement of the liability policy required, utilizing ISO Form 2026 (Additional
Insured — Designated Person or Organization) or its equivalent without modification. The
endorsement shall require the insurer to provide the WSDOT, Real Estate Services Office, P.O.
Box 47338 Olympia, WA 98504-7338,with no less than thirty(30) calendar day's written notice
before any cancellation of the coverage required herein.
18. HOLD HARMLESS/INDEMNIFICATION.
A. TENANT, its successors, and assigns, will protect, save, and hold harmless WSDOT, its
authorized agents,and employees,from all claims,actions,costs,damages,(both to persons and/or
property) or expenses of any nature whatsoever by reason of the acts or omissions of TENANT,
its assigns, subtenants, agents, contractors, licensees, invitees, employees, or any person
RES 419 Pagel 1 of 17
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I.C.No.: 4-21-10352
whomsoever, arising out of or in connection with any acts or activities related to this Lease,
whether those claims, actions,costs, damages, or expenses result from acts or activities occurring
on or off the Premises. TENANT further agrees to defend WSDOT, its agents, or employees, in
any litigation, including payment of any costs or attorney's fees, for any claims or actions
commenced, arising out of, or in connection with acts or activities related to this Lease, whether
those claims,actions,costs,damages,or expenses result from acts or activities occurring on or off
the Premises. This obligation shall not include such claims, actions, costs, damages, or expenses
which may be caused by the sole negligence of WSDOT or its authorized agents or employees;
provided that, if the claims or damages are caused by or result from the concurrent negligence of
(1) WSDOT, its agents, or employees; and (2) TENANT, its assigns, subtenants, agents,
contractors, licensees, invitees, employees, or involves those actions covered by RCW 4.24.115,
this indemnity provision shall be valid and enforceable only to the extent of the negligence of
TENANT or its assigns, subtenants,agents,contractors, licensees, invitees, and employees.
B. WAIVER: TENANT agrees that its obligations under this Section extend to any
claim, demand, and/or cause of action brought by, or on behalf of, any of its employees or agents
while occupying the Premises for any purpose. For this purpose, TENANT, by MUTUAL
NEGOTIATION, hereby waives with respect to WSDOT only, any immunity that would
otherwise be available to it against such claims under the Industrial Insurance provisions chapter
51.12 RCW.
C. The indemnification and WAIVER provisions contained in this Section shall
survive the termination or expiration of this Lease.
19. NONDISCRIMINATION. TENANT, for itself, its successors, and assigns, as part of
the consideration hereof, does hereby agree to comply with all applicable civil rights and
antidiscrimination requirements including,but not limited to, chapter 49.60 RCW.
20. ASSIGNMENT. Neither this Lease nor any rights created by it may be assigned,
sublet, or transferred in written or oral form.
21. SURRENDER OF PREMISES/REMOVAL OF TENANT'S
IMPROVEMENTS/PERSONAL PROPERTY.
A. Upon termination of this Lease, TENANT shall cease its operations on and/or use
of the Premises. In the event TENANT fails to vacate the Premises on the date of termination,
TENANT shall be liable for any and all costs to WSDOT arising from such failure.As used herein,
"vacate" shall include preventing use of the Premises by the public.
B. Upon termination of this Lease, TENANT agrees, if so directed by WSDOT, to
restore grades and on limited access highways also to relocate WSDOT's fences, if any, to their
configurations prior to TENANT's occupancy.This work is to be done at TENANT's sole expense
to the satisfaction of WSDOT.
RES 419 Page 12 of 17
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I.C.No.:4-21-10352
C. Upon termination of this Lease TENANT agrees, if so requested by WSDOT, to
obliterate the trail,remove all improvements and personal property,and/or provide erosion control
treatment at its own expense and to WSDOT's satisfaction,returning the right of way to its original
condition before the construction of the trail.
D. TENANT shall accomplish the above work by the date of termination. If, after
termination of this Lease, TENANT has not removed its improvements and/or personal property
and returned the right of way to its original condition,if requested to do so,within the time allowed,
WSDOT may, but need not, remove and dispose of said improvements and/or personal property
and return the right of way to its original condition at the expense of TENANT, and TENANT
shall reimburse WSDOT for any and all expenses incurred by WSDOT in connection with such
removal, work or disposal within thirty(30) calendar days of the date of WSDOT's invoice.
22. NO RELATIONSHIP ESTABLISHED. WSDOT shall in no event be construed to be
a partner with, associate, or joint venturer of TENANT or any party associated with TENANT.
TENANT shall not create any obligation or responsibility on behalf of WSDOT or bind WSDOT
in any manner.
23. TRANSPORTATION PURPOSES.
A. TENANT and WSDOT hereby affirm that upon termination or expiration of this
Lease for any reason and the subsequent use of the Premises for transportation or other purposes,
such use will not be considered the use of any publicly-owned land from a public park, recreation
area, or wildlife and waterfowl refuge within the meaning of 23 U.S.C. 138 and 49 U.S.C. 303
(former 49 U.S.C.1653 (f), Section"4f'). If this Lease is terminated for highway construction and
WSDOT or authorized local, state, or federal official having jurisdiction of the land or a court of
competent jurisdiction determines that replacement of the trail is required under 23 U.S.C. 138 and
49 U.S.C. 303, TENANT agrees that it shall be responsible for and promptly replace the trail as
required and pay all such costs in accordance with Section 5.C. of this Lease.
B. TENANT further acknowledges, agrees, and promises not to use Outdoor
Recreation Funds as provided for in the Land and Water Conservation Fund Act, 16 U.S.C.460-1,
sections 4-11 (see section 8(f)(3)within state owned right of way; such funds may be used outside
of the state owned right of way).
24. CONDITION OF THE PROPERTY. WSDOT and TENANT acknowledge that
they have jointly examined the Premises identified in Exhibit A, attached hereto, and TENANT
accepts said Premises in its present condition as of the Commencement Date of this Lease.
25. BINDING CONTRACT. This Lease shall not become binding upon WSDOT unless
and until executed for WSDOT by the Secretary of Transportation, or such Secretary's duly
authorized representative.
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Lease No.: TR-04-14226
I.C.No.:4-21-10352
26. ATTORNEYS' FEES. In the event of any controversy,claim,or dispute arising out
of this Lease, each party shall be solely responsible for the payment of its own legal expenses,
including but not limited to, attorney's fees and costs.
27. MODIFICATIONS. This Lease contains all the agreements and conditions made
between the parties hereto and may not be modified orally or in any manner other than by written
amendment, signed by all authorized parties thereto.
28. INTERPRETATION. This Lease shall be governed by and interpreted in
accordance with the laws of the state of Washington. The titles to paragraphs or sections of this
Lease are for convenience only and shall have no effect on the construction or interpretation of
any part hereof.
29. SEVERABILITY. In case any one or more of the provisions contained in this Lease
shall for any reason be held to be invalid,illegal,or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Lease shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
30. VENUE. TENANT agrees that the venue of any action or suit concerning this Lease
shall be in the Thurston County Superior Court and all actions or suits thereon shall be brought
therein, unless applicable law requires otherwise.
31. TOTALITY OF AGREEMENT. It is understood that no guarantees, representations,
promises,or statements expressed or implied have been made by WSDOT except to the extent that
the same are expressed in this Lease.
32. MEMORANDUM OF LEASE. The parties hereby agree to execute and record a
memorandum of lease,if either party so requests.
33. NOTICES. Wherever in this Lease written notices are to be given or made,they will be
sent by certified or overnight mail addressed to the parties at the addresses listed below, unless a
different address has been designated in writing and delivered to the other party.
WSDOT: DEPARTMENT OF TRANSPORTATION(Mailing Address)
Attn.: Property Management Program Manager
P. O. Box 47338
Olympia, WA 98504-7338
DEPARTMENT OF TRANSPORTATION (Physical Address)
Attn.: Property Management Program Manager
7345 Linderson Way SW
Tumwater, WA 98501
RES 419 Page 14 of 17
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Lease No.: TR-04-14226
I.C.No.: 4-21-10352
TENANT: LEWIS COUNTY
Public Works Director
2025 NE Kresky Ave.
Chehalis, WA 98532
Signatures: Accepted and Approved by:
LEWIS COUNTY WASHINGTON STATE
DEPARTMENT OF TRANSPORTATION
By: By:
Name: Mike Palazzo, Southwest Region Real
Title: Estate Services Manager, Authorized Agent
By: Dated:
Name:J $
•
Name: d. ,d,co,i, /
Title: G'p yrljs Sla,t/t7L
Dated:
APPRO ED AS TO F
By: /fA
r Assistant Attorney General
Date: &Ai/ ZO 2 Z
RES 419 Page 15 of 17
Rev. 112017
Lease No.: TR-04-14226
I.C.No.: 4-21-10352
•
COUNTY ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss. •
County of Lewis )
On this ay of ��0 020 before me personally appeared
���It/4 ✓ ut c� G�� is * /-
7GQi'f ✓Q, lh. each one to me known to be one of the duly elected,
qualified and acting County Commissioners of Lewis County, Washington, that executed
the within and foregoing instrument and acknowledged said instrument to be the free and
voluntary act and deed of said County, for the uses and purposes therein mentioned, and
each on oath stated that they were authorized to execute said instrument by resolution of
the Board of County Commissioners of said County, and that the seal affixed is the official
seal of said County.
G 4N, nder my hand and official seal the day and year last above written.
... stON ci!,4„ 044 61/le)04.2 2,4'if4. file ea...
Notary Public in and for the State of
189798 „- f /70�
u,'s� Aoe`%� =o Washington, residing at (. I L01g
/��i 14"" N\NI, My commission expires /
''►11,°��WAS' . -
RES 419 Page 16 of 17
Rev. 112017
TAnSP No.: TR-04-14226
I.C.No.:4-2 1-1 03 52
WSDOT ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
County of Clark )
On this day of , 20 before
me personally appeared Mike Palazzo, to me known to be the duly appointed Real Estate Services
Manager, for the state of Washington Department of Transportation, Southwest Region, 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 of ,20 .
(Signature)
(Print or type name)
Notary Public in and for the State of Washington
residing at
My commission expires
RES419 Page 17of17
Rev. 112017
BOCC AGENDA ITEM SUMMARY
Resolution: BOCC Meeting Date: April 6, 2020
Suggested Wording for Agenda Item: Agenda Type: Deliberation
Approving a lease agreement between Washington State Department of Transportation and Lewis
County for the right of way to a pedestrian trail
Contact: Martin Roy Phone: 360-740-1183
Department: PW - Public Works
Description:
This resolution will approve a lease agreement between Washington State Department of
Transportation and Lewis County for a portion of highway right of way of SR 5, Mellen St. to
Blakeslee Junction. This lease will give the County right of way for the pedestrian, bicycle, and non-
motorized vehicle trail located at this premises. The County will maintain and operate this trail.
Approvals: Publication Requirements:
Publications:
User Status
PA's Office Approved
Additional Copies: Cover Letter To:
Tina Hemphill, Robin Saline, Martin Roy, Rose
Williams, PW