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Diana Dupuis
Director
STATE OF WASHINGTON
WASHINGTON STATE PARKS AND RECREATION COMMISSION
1111 Israel Road S.W. • P.O. Box 42650 • Olympia, WA 98504-2650 • (360) 902-8500
TDD Telecommunications Device for the Deaf: 800-833-6388
www.parks.state.wa.us
July 18, 2024
Amended 7/11/2024
Item E-10: Palouse to Cascades State Park Trail – Ellensburg – Easement for
Public Road and Utility Crossings
EXECUTIVE SUMMARY: This item reports to the Washington State Parks and Recreation
Commission about the progress made with MLC Laird Holdings II LLC for a public road
crossing and utility crossing on the Palouse to Cascades State Park Trail for the Foster
Development, located in Kittitas County (Appendix 1: Palouse to Cascades State Park Trail
Vicinity Map, Appendix 2: Palouse to Cascades State Park Trail Project Area). This item
advances the Commission’s strategic goal: “Develop new parks and amenities and improve trails
and park services that meet the needs of growing and increasingly diverse population; Increase
outreach to trail users, improve trail conditions, build relationships with trail neighbors and
engage partners to improve mobility and connections between communities.”
SIGNIFICANT BACKGROUND: The Palouse to Cascades State Park Trail (Trail) offers
hikers, cyclists, and equestrians a chance to experience Washington State’s diverse landscapes,
from the lush Cascade Mountains to the vast scrublands of eastern Washington. The 287-mile
trail allows the discovery of various ecosystems, flora, and wildlife along its length.
The urban areas in Ellensburg are expanding, indicating a steady increase in development and
population growth. The increase in population is due to factors like migration, job opportunities,
and educational institutions. This plays a significant role in driving urban growth in Ellensburg.
The City of Ellensburg (City) adopted a Comprehensive Plan (Plan) in October 2008; this
represents a long-term vision for the development and expansion of the community over a period
of twenty (20) years. The Plan outlines the distribution, nature, and level of land utilization
across the City, as well as the nature and capacity of public amenities and services such as roads
and infrastructure. It acts as the foundation of the City’s implementation of rules governing
development, including zoning directives and criteria for land division. The Plan recommends a
future road crossing of the Trail in Ellensburg at Helena Avenue.
One of the newest companies to conduct business in Ellensburg is MLC Laird Holdings II LLC
(MLC), working with the legal landowner St James Group LLC. MLC has a background
specializing in land acquisition and market development in diverse locations like Arizona,
California, Washington, Nevada, Texas, North Carolina, South Carolina, and Tennessee. Over
the last two decades, MLC has aimed to foster collaborative relationships with stakeholders to
ensure that their developments benefit the local community. Their main emphasis lies in
residential developments like single family detached homes, build-for-rent units, and multifamily
properties (Appendix 3: Palouse to Cascades State Park Trail MLC Laird Bio Sheet).
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In 2023, MLC applied to Washington State Parks and Recreation Commission (Parks) for an
easement for two road crossings over the Palouse to Cascades State Park Trail for the Foster
North Development (Development). The Development property was annexed into the City and is
included in the City’s Comprehensive Plan consistent with the Plan’s zoning. The proposed
project originally consisted of a 296-lot single family residential development in Ellensburg,
WA, which is bisected by the Palouse to Cascades State Park Trail.
Over the past year working collaboratively, MLC, the City, and Parks determined that only one
public road crossing at a proposed new road named Buckaroo Drive will be necessary, along
with one utility crossing at Helena Avenue (Helena) (Appendix 4: Palouse to Cascades State
Parks Trail Helena Avenue Utility Crossing Map), and the overall number of parcels was
reduced from 296 to 265. To ensure the safety of trail users, the crossing will be signed and
painted as a crosswalk and will include flashing beacons to alert drivers. The Development will
include a traffic circle leading to Buckaroo Drive. Underground utility crossings are proposed at
Buckaroo Drive and Helena Avenue. The proposed utility crossings would be bored through the
trail prism in order to limit settling and damage to the trail surfacing.
Additionally, MLC accommodated Parks’ request for a new trailhead. The development of the
Helena Crossing Trailhead will be located in a separate tract just off Helena Avenue and will be
dedicated to Parks (Appendix 5: Palouse to Cascades State Park Trail Helena Avenue Trailhead
Map). The overall square footage of the trailhead tract is 28,177.2 square feet, or .65 acre. It will
provide a bike rack, ten (10) parking spaces, and the possibility of a fitted gate to close off the lot
during Trail closed hours. The tract would have sufficient separation for underground utilities
and enough ground space for amenities such as a picnic table.
Staff believes that these changes mitigate the safety concerns of allowing additional vehicles to
cross the trail while also providing additional access for trail users.
NEXT STEPS
Staff do not have delegated authority from the Commission to grant permanent property rights
that could adversely affect natural, cultural, or historic park resources, so the decision to grant an
easement lies with the Commission (Appendix 6: Palouse to Cascades State Park Trail Legal
Authority).
In order to allow a road crossing of the Trail, a perpetual easement is needed for both the road
crossing and utility crossings to satisfy long term use and maintenance (Appendix 7: Palouse to
Cascades State Park Trail Draft Easement Agreement).
A State Environmental Policy Act (SEPA) determination has been completed for this project, as
has a cultural resources survey of the project area. Staff is initiating tribal consultation on this
proposal and anticipates bringing this item for Commission consideration at the August 21, 2024,
or October 10, 2024, meeting.
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SUPPORTING INFORMATION
Appendix 1: Palouse to Cascades State Park Trail Vicinity Map
Appendix 2: Palouse to Cascades State Park Trail Project Area
Appendix 3: Palouse to Cascades State Park Trail MLC Laird Bio Sheet
Appendix 4: Palouse to Cascades State Park Trail Helena Avenue Utility Crossing Map
Appendix 5: Palouse to Cascades State Park Trail Helena Avenue Trailhead Map
Appendix 6: Palouse to Cascades State Park Trail Legal Authority
Appendix 7: Palouse to Cascades State Park Trail Draft Easement Agreement
Author(s): Nikki Fields, Real Estate Program Manager
Tammy Ferguson, Property and Acquisition Specialist
Reviewers:
Kira Swanson, SEPA: On March 28, 2024, the City of Ellensburg’s Community Development
Department issued a State Environmental Policy Act (SEPA) Mitigated Determination of
Significance (MDNS) for the proposed Foster North Subdivision. No further action or
documentation is required according to the State Environmental Policy Act.
Van Church, Fiscal Impact Statement: Report only, no fiscal impact.
Andy Woo, Assistant Attorney General: June 13, 2024
Heather Saunders, Parks Development Director
Approved for transmittal to Commission by:
________________________
Diana Dupuis, Director
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APPENDIX 1
PALOUSE TO CASCADES STATE PARK TRAIL
VICINITY MAP
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APPENDIX 2
PALOUSE TO CASCADES STATE PARK TRAIL
PROJECT AREA
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APPENDIX 3
PALOUSE TO CASCADES STATE PARK TRAIL
MLC LAIRD BIO SHEET
Overview
MLC Laird specializes in land acquisition and development primarily in California and
Washington state. The company takes a strategic approach to investments that includes extensive
data analysis of market metrics. Our primary objective is to foster collaborative relationships in
the communities that we invest with a focus on creating long term value for landowners, future
homeowners and the communities we serve. In addition, we look to navigate the complex
entitlement process effectively by tapping into established relationships with a network of industry
experts.
Kelly Foster
Kelly Foster is a native of Washington State growing up in Marysville, WA where his family
operated a small family business. Kelly currently resides in Bellevue, WA with his wife and 4
children. He has over 20 years of experience of residential and commercial development
experience in the Puget Sound market most recently as the Managing Member of Laird Holdings,
a land development and brokerage firm. Prior to that, Kelly spent 6 years starting the Seattle office
of UCP, Inc. a residential developer (NYSE: UCP) and ultimately becoming the President of
UCP’s homebuilding division in the Puget Sound market. Prior to UCP, Kelly was a principal at
Foster Penner, a developer and builder focused on the Seattle infill market, and he held project
management positions at Howland Homes and Polygon.
Shawn Milligan
Shawn Milligan is a 4
th
generation Californian and a 2
nd
generation residential real estate
developer. He currently resides in San Jose, CA with his wife and four children. Shawn has a
proven executive management track record and over 20 years of experience in the real estate and
technology industries. Prior to MLC Laird, he was a partner at KT Urban responsible for
acquisitions, product development, and land sales. Prior to joining KT Urban, Shawn was Senior
Vice President of UCP, Inc., a residential developer (NYSE: UCP), and was a member of the
senior executive team that took the Company public in July 2013. Previously, he served as Vice
President with KT Properties and Land Acquisitions Manager with Duc Housing Partners. He
started his career in public accounting with a focus on early-stage technology companies and the
venture capital industry. He graduated cum laude and earned a BS degree in accounting at Santa
Clara University. He is a former Certified Public Accountant.
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APPENDIX 4
PALOUSE TO CASCADES STATE PARK TRAIL
HELENA AVENUE UTILITY CROSSING MAP
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APPENDIX 5
PALOUSE TO CASCADES STATE PARK TRAIL
HELENA AVENUE TRAILHEAD MAP
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APPENDIX 6
PALOUSE TO CASCADES STATE PARK TRAIL
LEGAL AUTHORITY
RCW 79A.05.070
Further powers – Director of parks and recreation – Salaries.
The commission may:
(1) Make rules and regulations for the proper administration of its duties;
(2) Accept any grants of funds made with or without a matching requirement by the
United States, or any agency thereof, for purposes in keeping with the purposes of this chapter;
accept gifts, bequests, devises and endowments for purposes in keeping with such purposes;
enter into cooperative agreements with and provide for private nonprofit groups to use state park
property and facilities to raise money to contribute gifts, grants, and support to the commission
for the purposes of this chapter. The commission may assist the nonprofit group in a cooperative
effort by providing necessary agency personnel and services, if available. However, none of the
moneys raised may inure to the benefit of the nonprofit group, except in furtherance of its
purposes to benefit the commission as provided in this chapter. The agency and the private
nonprofit group must agree on the nature of any project to be supported by such gift or grant
prior to the use of any agency property or facilities for raising money. Any such gifts may be in
the form of recreational facilities developed or built in part or in whole for public use on agency
property, provided that the facility is consistent with the purposes of the agency;
(3) Require certification by the commission of all parks and recreation workers employed
in state aided or state-controlled programs;
(4) Act jointly, when advisable, with the United States, any other state agencies,
institutions, departments, boards, or commissions in order to carry out the objectives and
responsibilities of this chapter;
(5) Grant franchises and easements for any legitimate purpose on parks or parkways, for
such terms and subject to such conditions and considerations as the commission shall specify;
(6) Charge fees for services, utilities, and use of facilities as the commission shall deem
proper. The commission may utilize unstaffed collection stations to collect any fees or distribute
any permits necessary for access to state parks, including discover passes and day-use permits as
those terms are defined in RCW 79A.80.010;
(7) Enter into agreements whereby individuals or companies may rent undeveloped parks
or parkway land for grazing, agricultural, or mineral development purposes upon such terms and
conditions as the commission shall deem proper, for a term not to exceed forty years;
(8) Determine the qualifications of and employ a director of parks and recreation who
must receive a salary as fixed by the governor in accordance with the provisions of
RCW 43.03.040 and determine the qualifications and salary of and employ such other persons as
may be needed to carry out the provisions hereof; and
(9) Utilize such other powers as in the judgment of a majority of its members are deemed
necessary to effectuate the purposes of this chapter. However, the commission does not have
power to supervise directly any local park or recreation district, and no funds shall be made
available for such purpose.
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APPENDIX 7
PALOUSE TO CASCADES STATE PARK TRAIL
DRAFT EASEMENT AGREEMENT
STATE OF WASHINGTON
PARKS AND RECREATION COMMISSION
Diana Dupuis, Director
Palouse to Cascade State Park Trail
St James Group LLC & MLC Laird Holdings II LLC
Easement Agreement # E988501MLC1
This Easement Agreement (“Agreement”) is made between the State of Washington, acting
through the WASHINGTON STATE PARKS AND RECREATION COMMISSION, as Grantor (“State”)
AND St James Group LLC and MLC Laird Holdings II LLC located in Kittitas County,
Washington, (“Grantee”). The date of this Agreement is the date of last signature below
(“Effective Date”).
AUTHORITY
State is acting under those authorities granted to State by RCW 79A.05.070, and Washington
State Parks and Recreation Commission action of March 22, 2018, Policy 55-06-1; Less Than
Fee Simple Real Estate Transactions and November 21, 2019, Policy 25-07-1; Delegations of
Authority for Real Estate Transactions and Services.
Agreement is granted under authority of RCW 79A.05.070(5) and Washington State Parks and
Recreation Commission action of March 22, 2018, Policy 55-06-1; Less Than Fee Simple Real
Estate Transactions and November 21, 2019, Policy 25-07-1; Delegations of Authority for Real
Estate Transactions and Services. It is granted subject to and conditioned upon the following
terms and conditions, which Grantee hereby promises to observe and perform faithfully and
fully.
SEPA
On March 28, 2024, the City of Ellensburg’s Community Development Department issued a
State Environmental Policy Act (SEPA) Mitigated Determination of Significance (MDNS) for
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the proposed Foster North Subdivision. No further action or documentation is required according
to the State Environmental Policy Act.
EXHIBIT LIST
Exhibit A – Legal Description of Easement for Public Road Crossing
Exhibit B – Map of Easement Area for Public Road Crossing
Exhibit C – Legal Description of Utility Crossing
Exhibit D – Map of Easement Area for Utility Crossing
Exhibit E – Inadvertent Discovery Plan
Exhibit F – Additional Provisions
Exhibit TBD – Access Route
1.0 EASEMENT
The parties agree as follows:
1.1 Grant. State hereby grants to Grantee two (2) non-exclusive, non-divisible
easements over a parcel of land in Kittitas County legally described in Exhibit A –
Legal Description of Easement for Public Road Crossing and Exhibit C – Legal
Description of Utility Crossing, located approximately as shown on Exhibit B –
Map of the Easement Area for Public Road Crossing and Exhibit D – Map of
Easement Area for Utility Crossing (“Easement Area”), for the use(s) set forth in
Section 2.1 Permitted Use and Exhibit F – Additional Provisions, and only such
use(s). State hereby grants to Grantee a non-exclusive, non-divisible temporary
construction easement legally described as set forth in Exhibits A and C, Legal
Description as is reasonably necessary for construction within the Easement Area
(“Temporary Easement Area”).
1.2 Access Route. Agreement granted by State to Grantee includes a route by which
Grantee may access the Easement Area for purposes consistent with the Permitted
Use (“Access Route”). Use of the Access Route is not exclusive to Grantee. The
Access Route is legally described in Exhibit TBD and located approximately as
shown on Exhibit TBD. State will at all times have the right to use Access Route,
or any part thereof, provided, however, that if State’s use of the Access Route
interferes with Grantee’s use, State shall provide an alternate access route to
Grantee.
1.3 Term. Agreement commences on the Effective Date and is perpetual unless
terminated as set forth in this Agreement, except the Temporary Easement Area,
which terminates upon completion of construction and restoration by Grantee as
specified in Section 4.3 Timing and Duration.
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1.4 Consideration
(a) Consideration. Grantee shall pay to State the sum of $ TBD as consideration
for this Agreement; this sum represents the fair market value of the
Agreement as of the Effective Date.
(b) Annual Installments. Said sum must be paid in equal annual installments of
TBD. The first installment must be made on the Effective Date. Grantee shall
pay in advance and without demand subsequent annual installments on or
before each anniversary of the Effective Date (“Anniversary Date”).
(c) Late Charge for Failure to Pay. Pursuant to RCW 43.17.240, failure to pay
any installment or interest payment required in this Agreement will result in a
late charge equal to one percent (1%) per month or fraction thereof that the
payment is late.
1.5 Appurtenant Easement. This Agreement is appurtenant to real property in Kittitas
County, Washington, located approximately as shown in Exhibit ___ and legally
described in Exhibit ___, attached hereto, and known as the Foster Development,
a residential development (“Benefited Parcel”). The rights attached to the
Benefited Parcel are indivisible.
1.6 Title/Disclaimer. The rights granted in this Agreement are subject to permits,
leases, licenses, and easements, if any, previously granted by State affecting the
property subject to this Agreement. Further, State does not warrant or imply that
the Easement Area is suitable for Grantee’s intended use.
2.0 USE AND MAINTENANCE OF EASEMENT AREA PROHIBITED ACTIVITIES
2.1 Permitted Use. Agreement is for the purpose of a temporary construction
easement and easement for one (1) public road crossing ingress/egress for the
Foster Residential Development at the to be built road known as “Buckaroo
Drive” and one (1) utility crossing for underground utilities at Helena
Avenue and is limited to constructing, installing, operating, maintaining,
repairing, replacing, and using Easement Area as defined and provided herein,
(“Facilities”) subject to Grantee obtaining and at all times possessing all
applicable federal, state, and local permits. Any changes outside of the permitted
use will require a written amendment.
(a) Constructing. The act to build, erect, or devise using specified materials as
per an approved plan by the State. Grantee must notify the State Parks
Area Manager provided in Section 7.9 of this Agreement prior to any
construction.
(b) Installing. The installation of particular or specified items for the purposes
of construction as outlined in this Agreement and an approved plan
reviewed by the State.
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(c) Operating. The grantee is allowed to operate or perform as necessary in
the normal day-to-day capacity within the terms outlined and granted in
the Agreement.
(d) Maintaining. Maintenance should be completed on a schedule and written
notification should be transmitted to the State Park Area Manager two (2)
weeks prior to conducting maintenance.
(e) Repairing. Grantee is allowed to mend, patch, or rebuild any damaged or
defective components used to construct in the original granted purposes
outlined in this Agreement. Prior to making any repairs, plans of the
proposed repairs shall be transmitted to the State Park Region Manager
prior to any repair may take place.
(f) Replacing. Grantee may replace or substitute one item for another item,
“like for like.” If this item is outside of the permitted use, it will require a
written amendment to the Agreement prior to any replacement. Any
proposed amendment must be submitted to the State Park Region Manager
and the Real Estate Department as provided in Section 7.9 for State’s
review and consideration.
(g) Using. The permitted use and area of use as outlined in this Easement
Agreement.
2.2 Grantee’s Use and Activities. Grantee shall exercise its rights under this
Agreement so as to minimize, and avoid if reasonably possible, interference with
State’s use of the Easement Area and adjoining park property for park purposes.
Grantee shall at all times conduct its activities on the Easement Area so as not to
interfere with, obstruct, or endanger the public or State’s operations or Facilities.
2.3 Unauthorized Improvements. Any improvements not included in the original
permitted use of the Easement Area, or as otherwise approved in advance in
writing by State, are prohibited and may be cause for termination of this
Agreement. Improvements placed within the Easement Area without State’s prior
written consent immediately become the property of State or, at State’s option,
must be removed by Grantee at Grantee’s sole cost.
2.4 Monitoring. Grantee shall test and monitor the Facilities as required by the
appropriate regulatory authority or by State. Grantee shall provide test results to
State at State’s request. State reserves the right to perform testing at any time on
any portion of the Facilities.
2.5 Waste; Appearance and Condition of the Easement Area. Grantee shall not
deposit refuse, garbage, or other waste matter in or on the Easement Area.
Grantee shall keep the Easement Area in a neat, clean, sanitary, and safe
condition, and shall keep the Easement Area, the Facilities, and all items installed
by Grantee in or on the Easement Area or Facilities in good condition, except
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only for reasonable wear and tear. Grantee shall store all trash, refuse, and waste
material on the Easement Area so as not to constitute a nuisance, in adequately
covered containers that are not visible to the public.
2.6 Hazardous Substances. Grantee shall not, without State’s prior written consent,
use, store, generate, process, transport, handle, treat, release, or dispose of any
hazardous substance or other pollutant in or on the Easement Area. The term
“hazardous substance” means any substance or material as those terms are now or
are hereafter defined or regulated under any federal, state, or local law including
but not limited to the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA, 42 U.S.C. 9601 et. seq.), or the Washington Model
Toxic Control Act (MTCA, RCW 70.105D). Grantee shall immediately notify
State if Grantee becomes aware of any release or threatened release of a
hazardous substance or other pollutant on the Easement Area or adjoining
property. If a release of any hazardous substance or other pollutant occurs in, on,
under, adjacent to, or above the Easement Area or adjacent property arising out of
any action of Grantee, its contractors, subcontractors, invitees, agents, employees,
licensees, or permitees, Grantee shall, at Grantee’s sole expense, promptly take all
actions necessary or advisable to clean up, contain, and remove the hazardous
substance or other pollutant in accordance with applicable laws. Any cleanup
must be performed in a manner approved in advance in writing by State, except in
emergency situations Grantee may take reasonable and appropriate actions
without advance approval.
2.7 Wetlands. Grantee shall not cause damage to or conduct any filling of any
wetlands without the proper written authorization from the appropriate
government agency and without receiving prior written approval from State.
2.8 Timber and Vegetation Removal. Except as required by Section 2.9, Weed
Control, no timber or other vegetation may be cut or removed without the prior
written consent of and compensation to State according to the policies of the
Washington State Parks and Recreation Commission. If Grantee cuts or removes
timber or vegetation, all subsequent growth belongs to State. Grantee shall not
eradicate by broadcast brush spraying, or other methods of removal, any timber or
vegetation on the Easement Area. Grantee shall take all reasonable precautions to
protect timber and vegetation. Any damage to timber or vegetation not previously
authorized by State must be paid for by Grantee at triple the appraised value as
determined by State. In the event Grantee injures or damages timber or vegetation
while responding to an emergency such as a fire, flood, or Facilities failure, or
necessary repair to the Facilities, Grantee shall immediately thereafter restore the
ground to its prior condition and replace any such timber or vegetation to State’s
reasonable satisfaction.
2.9 Weed Control. Grantee shall, at its own cost, control all noxious weeds on the
Easement Area. Such weed control must comply with county noxious weed
control board rules established under RCW chapter 17.10. Grantee shall be
responsible, and shall immediately reimburse State, for any weed control cost
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incurred as a result of Grantee’s failure to control weeds on the Easement Area.
All methods of weed control must be approved in writing by State prior to
beginning weed control activities. Aerial spraying is not permitted.
2.10 Damage. Grantee, when exercising the rights granted by this Agreement, shall
repair or cause to be repaired, at its sole cost, all damage to improvements on
State lands occasioned by Grantee that is in excess of that which it would cause
through normal and prudent exercise of such rights.
2.11 Response to an Emergency. For the purposes of this Agreement, “Emergency” is
defined as a sudden, unexpected occurrence that poses a clear and imminent
danger, requiring immediate action to prevent or mitigate the loss or impairment
of life, health, property, natural resources, or essential public services. Nothing in
this Agreement prevents Grantee from responding to a bona fide Emergency
relating to its Easement Area, provided Grantee immediately provides notice to
State of its emergency response through the emergency notification process
provide herein (“Emergency Notification”). Any emergency work outside of the
Easement Area will require prior approval from the Area Manager through
Emergency Notification. The Emergency Notification process is as follows: As
early as practicable, Grantee shall notify the State Park Area Manager, as
provided in Section 7.9, by phone or text message if not reachable via phone, with
nature of emergency, and followed by written notification to the Real Estate
Department by electronic mail at L[email protected].
2.12 Use of Roads. The speed limit within the park is 10 m.p.h. Pedestrians have right
of way over vehicles at all times.
2.13 Road Maintenance and Repair. Any road used by grantee under this Agreement
must be maintained to a standard equal to or better than the condition of that road
on the Effective Date. At a minimum, the road will be maintained to meet forest
practice standards set forth in WAC 222-24-050 as now written or hereafter
amended. The cost of road maintenance will be allocated on the basis of the
parties’, and others’, proportional uses of the road. Where either party uses a road,
or portion of a road, that party must perform, or pay the costs of, that share of
maintenance occasioned by its use. State reserves the right to control priority of
road use and maintenance by it and others.
Grantee shall, at its sole expense, repair damage to any road used under this
Agreement that is in excess of that which results through normal and prudent use
of the road. If damage is caused by an unauthorized user, then the cost of repair
will be treated as ordinary maintenance and handled as set forth above.
2.14 Tree Removal. No trees are to be cut or removed from State’s property without
prior written approval of the State according to the policies of the Washington
State Parks and Recreation Commission or as described in Grantee’s plans.
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2.15 Requests for Tree Removals. Requests for removal of trees within the permitted
use area will be considered on a case-by-case basis. All tree work will be
performed by qualified contractors and adhere to all applicable laws and
regulations, agency policy, and ANSI A300 Pruning Standards at the
determination of State Parks.
2.16 Tree removals within Agreement Area. Unless otherwise explicitly stated for the
Agreement Area, Grantee must obtain agency approval prior to removal. Grantee
must adhere to agency policies and procedures for removal of significant trees
(living or dead standing trees over 10” at breast height).
2.17 Hazardous Tree Removal. Hazardous tree removal must be approved by the
agency prior to removal, unless the tree poses an imminent threat to life or
property or if the target area cannot be closed, or the target area relocated. Any
hazardous tree removal must meet the agency definition of an emergency tree and
follow the agency emergency tree removal procedure.
2.18 Non-Emergency Tree Removal. All non-hazardous tree removal must be
requested in writing. Grantee must demonstrate the necessity to perform the
function for which the Agreement was intended. Grantee must follow State Parks’
non-emergency significant tree removal review and approval process.
2.19 Right to Timber. State Parks retain their right to all standing timber and
dispensation of any merchantable timber removed with the Agreement area.
Grantee will compensate State Parks personnel or at real market value determined
at the time of sale.
3.0 RESERVATIONS
3.1 Reservations to State. State reserves all ownership of the Easement Area and
resources thereon (including timber) and the right of use for any purpose
including: the right to remove resources within the Easement Area the right at all
times to cross the Easement Area at any place on grade or otherwise; the right to
use, maintain, patrol, reconstruct, or repair the Easement Area, the right to erect
fences on, over, or across the Easement Area, or any part thereof; and the right to
occupy the Easement Area with State’s facilities and equipment so long as the
exercise of any such right by State does not unreasonably interfere with Grantee’s
rights granted by this Agreement. State at all times retains control of park gates,
roads, and lands. State may grant to third parties any and all rights reserved to
State, including easements and leases, so long as any such right granted to any
third party, or the exercise thereof, does not unreasonably interfere with Grantee’s
rights granted by this Agreement. In the event State elects to exercise any right
reserved under this Agreement, including granting to third parties any right
reserved under this Agreement, State shall give written notice to Grantee.
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3.2 Use of Area by State.
(a) State is using or may use the Easement Area and adjoining park property
for recreational park purposes.
(b) New park facilities may be constructed in addition to or in replacement of
already existing facilities.
(c) Construction of new facilities may require the installation of roads and
other fixtures or improvements over, upon, across, or under the Easement
Area and, in addition, may require the location of structures with
permanent foundations within the Easement Area.
Nothing in this Agreement prevents or precludes State from undertaking
construction, installation, and use of the Easement Area or adjoining park
property. State will not be liable to Grantee or any other party for loss or injury
resulting from any damage or destruction of Grantee’s Facilities directly or
indirectly caused by State’s use of the Easement Area or adjoining park property,
or State’s facilities on the Easement Area or adjoining park property, excepting
for loss or injury which results solely from State’s failure to exercise reasonable
care not to damage or destroy Grantee’s Facilities.
Further, State is not liable to Grantee for any increased cost to Grantee of
maintenance, repair, or replacement of its Facilities due to State’s use and
development of the property.
3.3 Emergency Action. State may take such emergency action as is necessary to
protect the public health, safety, and welfare, including temporarily closing or
otherwise restricting Grantee’s use of the Easement Area. Grantee shall have no
recourse against State for any losses incurred as a result of State’s taking such
emergency action.
4.0 CONSTRUCTION
4.1 Plan of Development. At least 30 days prior to any construction of the Facilities,
or any other construction, including reconstruction, Grantee shall submit a
completed Plan of Development to State for its written approval and verification.
State’s approval will be contingent upon acceptance of the Plan of Development
by the applicable permitting authorities. The Plan of Development must include
the following:
(a) Map showing areas where the construction is to occur, file reference
#E988501MLC1, location of Facilities, and location of utility and other
Easements.
(b) Land clearing, leveling, and erosion control plans.
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(c) Facilities Specifications, including specific physical characteristics,
technical specifications, and components of the Facilities.
(d) Schedule of completion dates for the Facilities components; and
(e) Detailed description of activities to be conducted in the Easement Area.
No construction of any kind may take place within the Easement Area prior to
State’s written approval of the Plan of Development and verification that Grantee
has obtained all applicable permits. State will notify Grantee in writing of its
verification of permits and approval of the Plan of Development. Nothing in this
Agreement imposes any duty or obligation on State to determine the adequacy or
sufficiency of Grantee's Plan of Development or to ascertain whether Grantee’s
construction is in conformance with the Plan of Development and Facilities
Specifications approved by State.
During construction and maintenance, Grantee shall minimize soil erosion and
damage to soil. Grantee’s equipment shall not be operated when ground
conditions are such that excessive soil damage or erosion will occur.
In case of incomplete construction, Grantee shall restore the Easement Area to its
original condition, if State determines it to be in the best interest for managing the
Easement Area.
4.2 Facilities Specifications. Grantee shall so place, protect, and bury the Facilities as
to allow the unobstructed movement of persons, equipment, and materials across
the surface of the Easement Area and shall install the Facilities at such depth as to
not interfere with State’s normal and usual use of the Easement Area. Grantee
shall bury the Facilities and Grantee shall mark the location of the buried
Facilities as required by the applicable regulatory and permitting authorities or as
directed by State. Grantee shall mark the location of the buried Facilities as
directed by State and install signs that identify the Facilities as buried and
identified utilities and that identify Grantee as the owner of the Facilities.
If Grantee fails to place or bury the Facilities according to the Facilities
Specifications or as otherwise approved in writing by State, Grantee shall hold
State harmless from any and all damage to the Facilities. Further, Grantee shall
indemnify State against all claims or liabilities resulting directly or indirectly
from Grantee’s failure to properly place or bury the Facilities per the Facilities
Specifications and other requirements contained in this Agreement. State may
require Grantee to relocate the Facilities in the event that the Facilities interfere
with State’s use of the park.
State reserves the right to inspect the open trench during construction to ensure
compliance with the Plan of Development, permits, and Facilities Specifications.
Grantee shall take precautionary measures necessary to ensure the safety of park
staff and visitors during construction.
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4.3 Timing and Duration. Unless otherwise approved in writing by State, Grantee
shall conduct all construction work prior to May 15 and after September 15 of
each calendar year.
Except in the event of an emergency or with State’s prior written approval,
construction access is confined to daylight hours on weekdays; construction
access on weekends and holidays is strictly prohibited. State reserves the right to
further condition, limit, or restrict the timing and duration of Grantee’s
construction activities at State’s sole discretion.
4.4 Survey Markers. Grantee shall not destroy or disturb any survey markers
(including but not limited to corner markers, witness objects, or line markers)
without State’s prior written approval. Markers that must necessarily be disturbed
or destroyed during construction must be adequately referenced and replaced in
accordance with all applicable laws of the state of Washington, including but not
limited to RCW 58.24, and all State regulations pertaining to preservation of such
markers. Grantee shall re-establish such markers using a licensed land surveyor or
public official as prescribed by law according to U.S. General Land Office
standards at Grantee’s sole cost.
4.5 As-Built Survey. Upon State’s request, Grantee shall promptly provide State with
as-built drawings and a survey showing the location of the Facilities on the
Easement Area.
4.6 As-Built Survey. Grantee shall promptly provide State with as-built drawings and
a GPS survey recorded as a digital file on a compact disc showing the location of
the Facilities on State's property. Said survey must be based on either the decimal
degree or NAD 83 Washington State Plane South coordinate system and must be
formatted as an ArcGIS shapefile of points.
4.7 Work Standards. Grantee shall perform all work in accordance with the Plan of
Development submitted to and approved by State and Grantee shall complete all
work in a careful and workmanlike manner to State’s satisfaction, free of claims
or liens.
4.8 Grantee shall deliver to State a bond, savings account assignment, or letter of
credit in the amount of $25,000. The bond, savings account assignment, or letter
of credit must be conditioned upon Grantee's faithful performance of its
obligation under this Agreement. In the event Grantee fails or refuses to meet its
obligations to the satisfaction of State, State may, without waiver or any other
right of recovery, satisfy whatever damages suffered by State by withholding such
amounts from the bond or by recovery against the savings account assigned or
letter of credit. Grantee shall not commence any activity on the Easement Area
prior to State’s receipt of the bond, savings account assignment, or letter of credit.
4.9 Inspectors. State may appoint one or more representatives to serve as inspectors to
oversee work performed by Grantee in the Easement Area. Grantee shall not carry
20
on any work unless it has given such notice thereof as State has requested so as to
allow for the presence of State’s inspectors. Grantee and its contractors and
subcontractors shall promptly and fully comply with all orders and directions of
State’s inspectors, including without limitation, cessation of work, and Grantee’s
construction contracts must so provide. Grantee shall promptly pay State’s charge
for such inspectors, including salary, lodging, and travel expenses.
4.10 Archaeology and Cultural Resource Compliance. All construction and
maintenance projects should be reviewed by State Parks archaeologists per RCW
27.53.080 prior to any ground disturbance and are subject to all applicable
cultural resource regulations and laws (e.g., Governor Executive Order (GEO 21-
02), Section 106 of the National Historic Preservation Act of 1966 (NHPA), RCW
27.53, SEPA, etc.).
Per RCW 27.53.080, cultural resource investigations are to be carried out by a
SOI qualified archaeologist and only after appropriate agreement has been made
between the professional archaeologist (in contract with the applicant) and State.
A copy of such agreement shall be filed with State.
If ground disturbing activities encounter human skeletal remains during
construction, then all activity will cease that may cause further disturbance to
those remains. The area of the find will be secured and protected from further
disturbance until the State provides written notice to proceed.
The finding of human skeletal remains will be reported to the county medical
examiner/coroner and local law enforcement in the most expeditious manner
possible. Please refer to Exhibit E – Inadvertent Discovery Plan (IDP) for contact
information.
The remains will not be touched, moved, or further disturbed. The county medical
examiner/coroner will assume jurisdiction over the human skeletal remains and
make a determination of whether those remains are forensic or non-forensic. If the
county medical examiner/coroner determines the remains are non-forensic, then
they will report that finding to the Department of Archeology and Historic
Preservation (DAHP) who will then take jurisdiction over the remains. DAHP
will notify any appropriate cemeteries and all affected tribes of the found remains.
In the event cultural (archaeological) resources are found or unearthed during any
work allowed by this Easement the Grantee shall comply with provisions of
Chapter 27.44 RCW, Chapter 27.53 RCW, and the rules and regulations of
DAHP, including compliance with all archaeological excavation permit
requirements.
If cultural resources are discovered, Grantee shall cease work immediately and
contact State Parks' Archaeology Program Manager at the following email
[email protected]. Please refer to Exhibit E – Inadvertent Discovery
Plan (IDP).
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4.11 Restoration. Upon completion of construction authorized under this Agreement,
and upon completion of any subsequent work performed by Grantee, Grantee
shall remove all debris and restore the surface of the Easement Area as nearly as
possible to the condition in which it was at the commencement of work and shall
remove any and all equipment and materials used in the construction.
5.0 INSURANCE
5.1 Insurance. At its own expense, Grantee shall procure and maintain during the
term of this Agreement, and require its contractors, subcontractors, or other
permitees to procure and maintain while operating on the Easement Area [or
Access Route], the insurance described below. All insurance must be purchased
on an occurrence basis and be issued by a carrier admitted by the Insurance
Commissioner to do business in the state of Washington.
Commercial General Liability. Insurance written under Insurance Services Office
(ISO) Form CG0001 or its equivalent with minimum limits as set out below
covering liability arising from premises, operations, independent contractors,
personal injury, products completed, and liability assumed under an insured
contract. In the event that Grantee is self-insured, Grantee shall send a letter,
signed by a person with appropriate authority to obligate Grantee, to State
obligating Grantee’s self-insurance fund to the responsibilities set forth in this
Agreement.
General Aggregate Limit $2,000,000
Each Occurrence Limit $1,000,000
Business Auto Policy (BAP). Insurance written on an ISO CG0001 form or
equivalent providing Bodily Injury and Property Damage Liability coverage for
all owned, hired, or non-owned vehicles assigned to, or used in, the performance
of this Agreement for a combined single limit of not less than $1,000,000 each
occurrence.
Physical Property Damage Insurance. Insurance covering all real and personal
property located on or constituting a part of the Easement Area in an amount
equal to at least one hundred percent (100%) of the replacement value of all
improvements on the Easement Area (regardless of ownership). Grantee may
obtain such insurance on an “Agreed Value” basis. Such insurance may have
commercially reasonable deductibles. Any co-insurance provisions of the policy
will be endorsed to be eliminated or waived.
Employer’s Liability (“Stop Gap”) Insurance. Grantee shall purchase and
maintain Employer’s Liability or “Stop Gap” Insurance including liability
coverage with limits not less than those specified below. Grantee waives
immunity under Title 51 RCW to the extent required by this clause. Insurance
must include liability coverage with limits not less than those specified below:
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Each Employee Policy Limit
By Accident By Disease By Disease
Bodily Injury $1,000,000 $1,000,000 $1,000,000
Worker’s Compensation Insurance. The State of Washington Worker’s
Compensation coverage, as applicable, with respect to any work by Grantee’s
employees on or about the Easement Area [, Access Route,] or Facilities
Builder’s Risk Insurance. Contingent liability and builder’s risk insurance in an
amount reasonably satisfactory to State during construction, replacement, or
material alteration of the Easement Area or improvements on the Easement Area.
Coverage shall be in place until the work is completed, and evidence of
completion is provided to State.
Environmental/Pollution Liability. Grantee shall purchase and maintain liability
insurance to cover any environmental/pollution liability associated with the
operation of the Facilities including, but not limited to, liability arising on account
of water pollution or hazardous substances described in this Agreement. Such
insurance must include liability coverage with limits not less than those specified
below:
General Aggregate Limit $2,000,000
Each Claim/Occurrence Limit $1,000,000
6.0 TERMINATION
6.1 Termination for Breach. If Grantee breaches any provision of this Agreement,
State may terminate this Agreement after Grantee has been given 30 days’ written
notice of the breach and (1) the breach has not been corrected within such time; or
(2) if the breach cannot be reasonably corrected within such 30-day period,
Grantee has not commenced correction and continued correction with reasonable
diligence.
The occurrence of any of the following events is a breach that allows immediate
termination of this Agreement (30 days’ written notice not required): if Grantee
makes an assignment for the benefit of creditors or files a voluntary petition under
any bankruptcy act or other law for the relief of debtors; or if an involuntary
petition is filed under any bankruptcy act or other law for the relief of debtors; or
an order for relief is entered for or against Grantee under any bankruptcy act or
other law for the relief of debtors; or if any department of any government or any
officer thereof takes possession of Grantee’s business or property. Upon any such
occurrence State, at its option, may, in addition to any other remedy available at
law or equity or under this Agreement, terminate this Agreement by notice to
Grantee and upon such termination Grantee shall quit and surrender the Easement
Area to State, but Grantee shall remain liable as provided by this Agreement.
23
6.2 Termination for Non-Use. In the event that Grantee does not commence use of the
Easement Area within a period of two years following the Effective Date, this
Agreement terminates. However, an extension of time may be granted upon
written request prior to the expiration date of the two-year period and upon such
additional terms and conditions as State may specify, including modification of
the consideration due State, which may include additional charges for
administrative costs and appreciation of land and valuable material.
If Grantee ceases to use the Easement Area for a period of two years, this
Agreement terminates.
6.3 Effect of Termination. In the event that this Agreement is terminated for any
reason, Grantee’s rights within the Easement Area immediately revert to State,
and the Easement Area will be freed from the Easement as fully and completely
as if this Agreement had not been entered into. Upon termination, all Facilities on
the Easement Area are forfeited and become the property of State subject only to
any previously approved waiver of interest or security interest. In addition to the
right of termination, State has any other remedy available in law or equity. Any
Grantee obligations not fully performed upon termination continue until fully
performed. The failure of State to exercise any right at any time will not waive
State’s right to terminate for any future breach or default. The failure by State to
provide notice to Grantee does not relieve Grantee of its obligations under this
Agreement.
6.4 Removal of Improvements and Equipment. All Facilities that remain on the
Easement Area 60 days from the termination of this Agreement, become the
property of State and become a part of the land upon which they are located;
provided, however, that any time within 60 days after the termination of this
Agreement, Grantee is entitled to remove the Facilities; or, State may require
Grantee to remove the Facilities, at Grantee’s cost. All tools, equipment, and other
property not permanently affixed upon the land by Grantee remain Grantee’s
property. Grantee shall, within 60 days after termination of this Agreement,
remove all such tools, equipment, and other property not permanently affixed
upon the land.
7.0 GENERAL TERMS AND CONDITIONS
7.1 Compliance with Laws and Regulations. Grantee shall comply with all applicable
laws, including all federal, state, county, and municipal laws, ordinances, and
regulations in effect for the design, construction, maintenance, operation, or
improvement of the Facilities and use of the Easement Area. Grantee shall so
comply in a timely manner and at its sole cost.
In addition to complying with those laws of the state of Washington pertaining to
forest protection, Grantee shall comply with any requirements pertaining to
burning procedure, blasting, watchman, extra patrol, pumpers, tankers, fire hose,
24
fire tools, etc., that State deems necessary for prevention and suppression of fire
resulting from construction operations.
7.2 Ownership and Maintenance of Facilities. The Facilities authorized in this
Agreement must be continuously owned and maintained by Grantee at Grantee’s
sole expense.
Any merger, consolidation, liquidation, or any change in ownership or the power
to vote the majority of Grantee’s outstanding voting stock, constitutes an
assignment, whether the result of a single transaction or a series of transactions.
If Grantee is a general partnership, the death, withdrawal or expulsion of a partner
or partners owning in the aggregate more than 50% of the partnership profits or
capital will constitute an assignment, and the transfer of interests representing, in
the aggregate more than 50% of the partnership profits or capital, whether the
result of a single transaction or a series of transactions, will constitute an
assignment. If Grantee is a limited partnership, the death, withdrawal, or
expulsion of any general partner will constitute an assignment.
7.3 Successors. The rights and obligations of the parties inure to the benefit of and be
binding upon their respective successors and assigns.
7.4 Indemnity. Grantee shall indemnify State for any and all liability or loss,
including costs and reasonable attorneys' fees incurred by State in defense thereof,
arising from acts or omissions of Grantee, or Grantee's employees, agents, or
contractors, in the exercise of the rights granted in this Agreement. However,
Grantee is not required to indemnify State for liability or losses arising out of
bodily injury to persons or damage to property caused by the sole negligence of
State or State's employees or agents. If the liabilities or losses are caused by the
concurrent negligence of Grantee, or Grantee’s employees, agents, or contractors,
and State or State’s employees or agents, Grantee shall indemnify State only to
the extent of the negligence of Grantee or Grantee’s employees, agents, or
contractors.
7.5 Attorney Fees. In the event State is required to incur attorney fees and costs to
enforce Grantee’s obligations under this Agreement, in addition to any other relief
to which State may be entitled, Grantee shall pay to State its costs and reasonable
attorney fees.
7.6 Venue and Governing Law. Venue for any action related to this Agreement is in
Thurston County Superior Court. The laws of the state of Washington govern any
dispute and the interpretation of this Agreement.
7.7 Notices and Submittals. All notices, demands, and requests required under this
Agreement must be in writing sent by United States registered or certified mail,
postage prepaid, and shall be addressed as follows or at such other place as either
party may from time to time designate by written notice to the other.
25
Notices, demands, and requests served upon State or Grantee as provided in this
section are sufficiently given for purposes of this Agreement three days after such
notice, demand, or request is mailed. When a notice, demand, or request is mailed
by State, it is considered mailed on the date transferred to State’s Consolidated
Mail Services.
All notices, demands, or requests sent to State shall refer to file #E988501MLC1
in the subject line. Notices required to be in writing under this permit must be
given as follows:
If to State:
Washington State Parks & Recreation Commission
Real Estate Program
P.O. Box 42650
Olympia, WA 98504-2650
(360) 902-8500
With Copy to:
Washington State Parks & Recreation Commission
Area Manager
If to Grantee:
7.8 Force Majeure. Grantee’s failure to comply with any of the obligations under this
Agreement will be excused only if due to causes beyond Grantee’s control and
without the fault or negligence of Grantee, including acts of God, acts of the
public enemy, acts of any government, fires, floods, epidemics, and strikes.
7.9 Amendments. Any amendments to this Agreement or the attached exhibits must
be made in writing, executed by the parties, and neither State nor Grantee shall be
bound by verbal or implied Agreements.
7.10 Discrimination. Grantee shall not unlawfully discriminate against any person on
the basis of race, color, creed, religion, sex, sexual orientation, age, or physical or
mental disability or allow any such discrimination by Grantee’s employees,
agents, representatives, or contractors.
7.11 Interpretation. This Agreement has been submitted to the scrutiny of all parties
hereto and their counsel if desired and must be given a fair and reasonable
interpretation in accordance with the words of this Agreement, without
consideration or weight being given to its having drafted by any party hereto or its
counsel.
7.12 Non-Waiver. No failure of State to insist upon the strict performance of any
provision of this Agreement may be construed as depriving State of the right to
26
insist upon strict performance of that provision or any other provision in the
future. No waiver by State of any provision of this Agreement is made unless
made in writing, signed by State.
7.13 Remedies Cumulative. The specified remedies to which State may resort under
this Agreement are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which State may lawfully be entitled in case of
any breach or threatened breach by Grantee. In addition to the remedies provided
in this Agreement, State is entitled to restraint by injunction of the violation, or
attempted or threatened violation, of any of the terms and conditions of this
Agreement.
7.14 Severability. If any term of this Agreement is found to be to any extent invalid or
unenforceable, the remainder of this Agreement, other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each other term of this
Agreement shall be valid and be enforced as written to the fullest extent permitted
by law.
7.15 Recording. Upon full execution, Grantee shall promptly record this Agreement in
Kittitas County and shall provide a copy of the recorded Agreement to State
EXECUTED as of the date hereinbelow set forth.
GRANTEE STATE
By By
Heather Saunders, Director of Parks
Development, By Delegations of
Authority of September 16, 2013,
revised November 6, 2013.
Title ________________________
Date: ________________________ Date: ______________________
APPROVED AS TO FORM ONLY:
Andy Woo, WSBA #46741
Assistant Attorney General
Date: _________________________
27
GRANTEE’S ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
County of )
THIS IS TO CERTIFY that on this day, before me the undersigned Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared
___________________________________________________________________________ to
me known to be the _____________________________________________________________
of _____________________________________________________________ that executed the
foregoing instrument and acknowledged the said instrument to be the free and voluntary act and
deed of said ________________________________________________________, for the uses
and purposes therein mentioned, and on oath stated that
_________________________________________________________________ was authorized
to execute the said instrument.
WITNESS my hand and official seal this _____day of ____________________, 20___.
__________________________________________
Notary Public in and for the State of Washington
residing at _________________________________
My commission expires ______________________
GRANTEE’S ACKNOWLEDGMENT
STATE OF WASHINGTON )
28
) ss.
County of )
THIS IS TO CERTIFY that on this day, before me the undersigned Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared
___________________________________________________________________________ to
me known to be the _____________________________________________________________
of _____________________________________________________________ that executed the
foregoing instrument and acknowledged the said instrument to be the free and voluntary act and
deed of said ________________________________________________________, for the uses
and purposes therein mentioned, and on oath stated that
_________________________________________________________________ was authorized
to execute the said instrument.
WITNESS my hand and official seal this _____day of ____________________, 20___.
__________________________________________
Notary Public in and for the State of Washington
residing at _________________________________
My commission expires ______________________
29
WASHINGTON STATE PARKS & RECREATION COMMISSION
ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
County of THURSTON )
THIS IS TO CERTIFY that on this day, before me the undersigned Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared
_____________________________________________________________________ to me
known to be the _________________________________________________________ of the
Washington State Parks and Recreation Commission that executed the foregoing instrument
and acknowledged the said instrument to be the free and voluntary act and deed of said
Commission, for the uses and purposes therein mentioned, and on oath stated that
____________________________________________________________________________
was authorized to execute the said instrument.
WITNESS my hand and official seal this _____day of ____________________, 20___.
__________________________________________
Notary Public in and for the State of Washington
residing at _________________________________
My commission expires ______________________
EXHIBIT LIST
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1. Exhibit A – Legal Description of Easement for Public Road Crossing
2. Exhibit B – Map of Easement Area for Public Road Crossing
3. Exhibit C – Legal Description of Utility Crossing
4. Exhibit D – Map of Easement Area for Utility Crossing
5. Exhibit E – Inadvertent Discovery Plan
6. Exhibit F – Additional Provisions
31
EXHIBIT A
LEGAL DESCRIPTION OF EASEMENT FOR PUBLIC ROAD CROSSING
32
EXHIBIT B
MAP OF EASEMENT AREA FOR PUBLIC ROAD CROSSING
33
EXHIBIT C
LEGAL DESCRIPTION OF UTILITY CROSSING
34
EXHIBIT D
MAP OF EASEMENT AREA FOR UTILITY CROSSING
35
EXHIBIT E
INADVERTENT DISCOVERY PLAN
Inadvertent Discoveries of Cultural Resources and Human Skeletal Remains
Palouse to Cascades State Park Trail, Kittitas County
Many of Washington’s most important heritage sites reside on lands owned or managed by the
Washington State Parks and Recreation Commission (WSPRC). Nearly all Washington State
Parks contain one or more important historic buildings, structures, or archaeological sites. For this
reason, archaeological surveys and historic building inventories are ordinarily commissioned as a
part of background analysis and information gathering for park developments and undertakings.
Results of these surveys are used during project planning to ensure every effort is made to avoid
impacts to cultural resources. Yet, despite these efforts, there always remains some potential for
unanticipated discoveries while working in Washington State Parks.
All unanticipated discoveries, both cultural resources and human skeletal remains, are subject to
all applicable federal and state statues, regulations, and executive orders. For these reasons, the
Inadvertent Discovery Plan (IDP) provides useful guidance and instructions for circumstances
when cultural resources or human skeletal remains are found. Please carefully read these
instructions. If you have any questions, please contact the appropriate WSPRC Area Manager or
the WSPRC archaeologist assigned to the undertaking. It is also strongly recommended that
anyone conducting ground-disturbing activities watch the training video produced by Washington
State Dept of Ecology: Inadvertent Discovery of Cultural Resources or Human Remains: Training
for Field Staff. This IDP for cultural resources and human skeletal remains is based on RCW
27.44, RCW 27.53, RCW 68.50.645, RCW 27.44.055, and RCW 68.60.055 and recommended
language from the Department of Archaeology and Historic Preservation (DAHP).
INADVERDENT DISCOVERY PLAN FOR CULTURAL RESOURCES
If cultural resources are found during a project, activity in the immediate area of the find should
be discontinued (stop), the area secured (protect), and the WSPRC archaeologists notified to
assess the find (notify). When in doubt, assume the material is a cultural resource and
implement the IDP outlined below.
Recognizing Cultural Resources-Types of Historic/Precontact Artifacts and/or Activity Areas
That May Be Found
• Artifacts- Both historic and precontact artifacts may be found exposed in backhoe
trenches or back dirt piles.
o Precontact artifacts may range from finished tools such as stone pestles,
arrowheads/projectile points, shell beads, or polished bone tools to small pieces
or “flakes” or “chips” of exotic stone such as chert, jasper, or obsidian.
o Historic artifacts may include older (more than 50 years) nails, plates/ceramics,
bottles, cans, coins, glass insulators, or bricks.
o Old abandoned industrial materials from farming, logging, railways,
lighthouses, and military installations.
• Activity Area/Cultural Features- While excavating trench lines look for evidence of
buried activity areas/cultural features such as old campfire hearths or buried artifacts.
36
o An area of charcoal or very dark stained soil with artifacts or burned rocks may
be a fire hearth.
o A concentration of shell with or without artifacts may be shell midden deposits.
o Modified or stripped trees, often cedar or aspen, or other modified natural
features, such as rock drawings or carvings
• Historic building foundation/structural remains- During excavation, buried historic
structures (e.g., privies, building foundations) that are more than 50 years old may be
found.
• Bone- Complete or broken pieces of bone may be discovered exposed in trench walls
or in back dirt piles. Bone can come from either animal remains or human remains and
requires a trained professional to identify. If you find bone, notify the WSPRC
archaeologist immediately and follow their directions.
Steps to Take If a Cultural Resource Is Found During Construction
1. Stop if a cultural resource(s) is observed or suspected, all work within the immediate area
of the discovery must stop.
2. Protect the area from further disturbance. Do not touch, move, or further disturb the
exposed materials/artifacts. Create a protected area with temporary fencing, flagging,
stakes, or other clear markings that is large enough (30 feet or larger) to protect the
discovery location area. The WSPRC archaeologist can help determine the size of the
protected area. Do not permit vehicles, equipment, or unauthorized personnel to traverse
the discovery site.
3. Notify the WSPRC archaeologist. If the area needs to be secured, notify the Park Ranger
or Park staff as well.
4. If requested by the WSPRC archaeologist, take photographs with a scale (e.g., pen, coin,
etc.) and collect geospatial information of the discovery site to document the initial finds.
What Not to Do If a Cultural Resource Is Found During Construction
• Do not remove any artifacts from the site of the discovery.
• Do not dig out objects protruding from any trench walls as this may cause further damage
to artifacts and/or destroy important contextual information.
• Do not share any information about the find, including on social media, except as necessary
to implement the IDP.
What Happens Next?
1. The find will be assessed by a professional archaeologist (may be a WSPRC
archaeologist or an archaeology consultant).
a. If the find is not a cultural resource, construction work may resume.
b. If the find is a cultural resource, the WSPRC archaeologist will contact the DAHP
and affected Tribes, as appropriate, to develop a suitable treatment plan for the
resource.
2. Construction work may resume in the protected area after the WSPRC archaeologist
assigned to the undertaking has determined that the find has been adequately investigated
and, if necessary, a treatment plan and monitor are in place to protect any remaining
archaeological deposits.
INADVERDENT DISCOVERY PLAN FOR HUMAN SKELETAL REMAINS
37
Native American burials and historic grave sites are common features on Washington State Park
lands. These remains, as well as any associated artifacts or funerary objects, are protected under
state law and, if the park is a federal lease, applicable federal law. If you discover human remains
(or bones that you believe may be human remains) during construction, please follow these
important instructions. It is imperative that reporting and treatment of any human remains found
during construction or any ground-disturbing activities are treated with utmost dignity and respect.
Steps to Take If Human Skeletal Remains are Found During Construction
1. Stop if human skeletal remains observed or suspected, all work within the immediate area
of the discovery must stop.
2. Protect the area from further disturbance. Do not touch, move, or further disturb the
remains. Cover the remains with a tarp or other materials (not soil or rocks) for temporary
protection in place and shield them from being photographed. Create a protected area with
temporary fencing, flagging, stakes, or other clear markings that is large enough (30 feet
or larger) to protect the discovery location area. The WSPRC archaeologist can help
determine the size of the protected area. Do not permit vehicles, equipment, or
unauthorized personnel to traverse the discovery site.
3. Notify local law enforcement (Park Ranger) and the appropriate county medical
examiner/coroner as soon as possible. If you are unsure if the remains are human, the
physical anthropologist at DAHP may be called. Also notify the Area Manager, the
WSPRC archaeologist, and the WSPRC Curator of Collections/NAGRPA Specialist of the
discovery of the remains.
4. If requested by the local law enforcement, the county coroner/examiner, the DAHP
physical anthropologist, or the WSPRC archaeologist, take photographs with a scale (e.g.,
pen, coin, etc.) and geospatial information of the discovery site to document the initial
finds.
What Not to Do If Human Skeletal Remains are Found During Construction
• Do not pick up or remove anything.
• Do not take any photographs of the remains unless instructed to do so by local law
enforcement, the county coroner/examiner, the DAHP physical anthropologist, or the
WSPRC archaeologist. If pictures are requested, be prepared to photograph them with a
scale (e.g., pen, coin, etc.) and collect geospatial information of the remains.
• Do not call 911 unless you cannot reach local law enforcement or the coroner/examiner by
other means.
• Do not share any information about the find, including on social media, except as necessary
to implement the IDP.
What Happens Next?
1. The county medical examiner/coroner will assume jurisdiction over the human skeletal
remains and decide whether those remains are forensic (crime-related) or non-forensic.
a. If forensic, the county medical examiner/coroner will retain jurisdiction over the
remains.
b. If non-forensic, the county medical examiner/coroner will report that finding to the
DAHP who will then take jurisdiction over the remains. The DAHP will notify any
appropriate cemeteries and all affected Tribes of the remains. The State Physical
Anthropologist will decide whether the remains are Indian or Non-Indian and report
that finding to any appropriate cemeteries and the affected Tribes. The DAHP will
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then handle all consultation with the affected parties as to the future preservation,
excavation, and disposition of the remains.
Note: The WSPRC archaeologist assigned to the undertaking will be coordinating
and consulting with the DAHP, affected Tribes, and other groups as necessary.
Additionally, WSPRC’s Curator of Collections/NAGPRA Specialist should be
included on all written and/or verbal correspondence until the remains have been
officially transferred from WSPRC’s possession to an outside authority. Until the
remains are transferred off of WSPRC’s property, it is the responsibility of the
Curator of Collections/NAGPRA Specialist to document and track the information
regarding all human remains and associated funerary objects (including all material
from excavation areas/units from which the human remains were removed).
2. Construction work may resume in the protected area after the WSPRC archaeologist
assigned to the undertaking has determined that the find has been adequately investigated
and, if necessary, a treatment plan and monitor are in place.
EMERGENCY CONTACTS
WSPRC Archaeologists
Jennifer Wilson, Archaeology Program Manager (360) 787-6511 (cell)
Shari Silverman, Archaeologist SW Region (435) 260-9894 (cell)
Kayley Bass, Archaeologist SW Region (360) 701-1277 (cell)
Emails: [email protected]
Sarah DuBois, Archaeologist Eastern Region (509) 972-5884 (cell)
Ayla Aymond, Archaeologist Eastern Region (509) 743-8251 (cell)
Sean Stcherbinine, Archaeologist NW Region (360) 770-1419 (cell)
Laura Syvertson, Archaeologist NW Region (360) 770-0444 (cell)
Maurice Major, Stewardship Archaeologist (360) 701-6218 (cell)
WSPRC Curator of Collections/NAGPRA Specialist
Alicia L. Woods, Statewide Curator of Collections & NAGPRA Specialist
Email: [email protected] (360) 586-0206 (office)
State Physical Anthropologist
Guy Tasa, DAHP (360) 790-1633 (cell)
Assistant State Physical Anthropologist
Jackie Berger, DAHP (360) 890-2633 (cell)
County Coroner/Examiner
Nick Henderson, Coroner (509) 856-4970 (cell)
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Local Law Enforcement
Andrew Kerlee, Park Ranger 3 (509) 350-0006 (cell)
Area Manager
John Ernster (509) 899-9294 (cell)
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EXHIBIT F
ADDITIONAL PROVISIONS
To Be Determined.
