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HomeMy WebLinkAbout2021-04-26-minutes-public-works-study-sessionKITTITAS COUNTY COMMISSIONERS Public Works Study Session Regular Meeting Monday April 26, 2021 - 1:30 PM Webex 1. Call to Order 2. Request to Approve a Notice of Call for Sealed Bids for the Vantage Highway Pavement and Guardrail Replacement Project 3. Contract for Services - Sale of Water Mitigation Certificates Discussion 4. Other business 5. Adjourn Created on 4/23/2021 7:55:12 AM KITTITAS COUNTY PUBLIC WORKS STUDY SESSION MINUTES Webex Regular Meeting MONDAY 1:30 PM April 26, 2021 Board members present: Vice -Chairman Laura Osiadacz, and Commissioner Cory Wright Others: Josh Fredrickson, Rebecca Cruse, Candie Leader, Arden Thomas, Liz Remeto, Public Works; Dan Carlson, Jessica Miller, Toni Berkshire, Mike Flory, Community Development Services; Neil Caulkins, Prosecuting Attorney's Office;(4) Members of the Public At 1:51 pm Vice -Chairman Laura Osiadacz opened the Public Works Study Session. REQUEST TO APPROVE A NOTICE OF CALL FOR SEALED BIDS FOR THE VANTAGE HIGHWAY PAVEMENT AND GUARDRAIL REPLACEMENT PROJECT Josh Fredrickson gave background on the project and stated that this project includes six (6) miles of paving along with guardrail placement with bids being due by Thursday, May 20, 2021. Josh Fredrickson added that the project cost estimate is between $3.9 to $4.3 million dollars coming from different funding sources. Vice - Chairman Laura Osiadacz made a motion to approve a Notice of Call for Sealed Bids for the Vantage Highway Pavement and Guardrail Replacement Project. Commissioner Cory Wright seconded the motion. Motion passed 2-0. CONTRACT FOR SERVICES - SALE OF WATER MITIGATION CERTIFICATES DISCUSSION Arden Thomas stated staff is seeking direction from the Board of County Commissioners to move forward with entering into an agreement Nelson Gelbvieh Ranch LLC to allow Kittitas County the ability to sell water rights from their private water bank. Arden Thomas stated that the county has entered in similar agreements before, specifically, with the Reecer Creek Water Right, LLC in 2018. Arden Thomas continued that in the past this has allowed the County options and staff believes it is beneficial to maintain these water rights in Kittitas County, where the rights originated. Discussion was held. Vice -Chairman Laura Osiadacz asked Jessica Kuchan, the representative for Nelson Gelbvieh Ranch, LLC, if she had any additional questions or comments. Jessica Kuchan stated her client looks forward to the opportunity to pursue this relationship with the County. Staff was directed to move forward with the agreement. 2021-04-26 MINUTES Meeting adjourned at 2:00 pm. Rebecca Cruse, Administrative Assistant 2021-04-26 MINUTES KITTITAS COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON Laura Osiadacz, Vice -Chairman Page I of 2 Public Notice Kittitas County, Ellensburg WA This call for sealed bids is for the Vantage Highway Pavement and Guardrail Replacement Project. Bids are due by Thursday, May 20, 2021 at 10:00 am, at which time bids will no longer be accepted. Sealedbids will be received by the Kittitas County Public Works, at the reception desk located at 411 North Ruby Street, Suite 1, Ellensburg, Washington until 10:00 AM on Thursday, May 20, 2021 and will then and there be opened and publicly read for the construction of the Vantage Highway Pavement and Guardrail Replacement Project. All bid proposals shall be accompanied by a bid proposal deposit in cash, certified check, cashier's check, or surety bond in an amount equal to five percent (5%) of the amount of such bid proposal. Should the successful bidder fail to enter into such contract and furnish satisfactory performance and payment bonds within the time stated in the specifications, the bid proposal deposit shall be forfeited to the Kittitas County Public Works. The right is reserved to reject any and all bids and to waiver informalities in the bidding. Complete digital project bidding documents, including plans and specifications, are available at at w.qucstcdn.c >m. You may download the digital plan documents for $15 by inputting Quest Project 47782761 on the website's Project Search page. Please contact QuestCDN.com at 952-233-1632 or info@questcdn.com for assistance in free membership registration, downloading, and working with this digital project information. Informational copies of maps, plans and specifications are on file for inspection at the Kittitas County Public Works, 411 North Ruby Street, Suite 1, Ellensburg, WA 98926. The Kittitas County in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252,42 USC 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally- Assisted Programs of the Department of "transportation issued pursuant to such Act, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises as defined at 49 CFR. Part 26 will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin, or sex in consideration for an award. This project has a DBE Goal of 11% The improvement for which bids will be received is described below The Work to be performed within 60 (sixty) working days from the date of Notice to Proceed consists of furnishing all materials, equipment, tools, labor, and other work or items incidental thereto for: This Contract provides for resurfacing the entire length of the project, approximately 6.26 miles of Vantage Highway with fiber reinforced HMA and a pre -level layer on approximately 4.4 miles of Vantage Highway as shown on the plans. The project will remove all existing guardrail within the project limits and construct new guardrail and shoulder grading, and a structural earth wall. Additional items of'work include, but are not limited to, new guideposts, permanent signage, pavement marking, two driveway aprons, and removal of structures and obstructions, all in accordance with the attached Contract Plans, Contract Provisions, and the Standard Specifications. Special Considerations: The WSDOT I-90 Stevens Road to Vantage Paving Project is scheduled for early summer 2021 construction. To avoid overlapping project schedules, the first working day for this project shall be no earlier than July 6, 2021 and no later than August 2, 2021. Engineer's estimated range for the project is $3.9-$4.3 Million. Specifications may be seen at the office of the Board of Commissioners and online at http://www.co.kittitas.wa.us/notices/ file:///C:/TJsers/CANDIE--I.LEA/AppData/Local/Temp/1)'1'6QD7DB.htm 4/23/2021 Publish: Daily Record: 04/29/2021; 05/06/202 1; 05/13/2021 Daily Joumal of Commerce: 04/29/2021; 05/06/2021; 05/13/2021 Page 2 of 2 file:///C:iUsers/CANDIE—I.LEA/AppDaWLocal/Temp/DT6QD7DB.htm 4/23/2021 KITTITAS COUNTY Board of County Commissioners STUDY SESSION STAFF REPORT STUDY SESSION DATE: April 26, 2021 ACTION REQUESTED: Request to Approve a Notice of Call for Sealed Bids for the Vantage Highway Project, CRP 298-19. BACKGROUND: The Vantage Highway Project will provide an asphalt overlay to build surface depth and structural capacity and install or upgrade guardrail to protect hazardous slopes in the same location (MP 21.25 — MP 27.51). The work is being completed with Federal Funding from the Highway Safety Improvement Program (HSIP), State Funding from the Rural Arterial Program (RAP), and local road maintenance funding from Public Works. The engineers estimated range for construction is: $3,900,000.00 to $4,300,000.00. Call for bids are advertised in the legal newspaper and the Daily Journal of Commerce. Bids are scheduled to be delivered by LOAM Thursday, May 20, 2021 and will be opened at the Public Works office. INTERACTION: Public Works RECOMMENDATION: Move to approve Notice of Call for Sealed Bids for the Vantage Highway Project and direct staff to advertise as requested. HANDLING: Return one (1) copy to Public Works ATTACHMENTS: Notice of Call for Sealed Bids LEAD STAFF: Josh Fredrickson County Engineer Page 1 of 2 Public Notice Kittitas County, Ellensburg WA This call for sealed bids is for the Vantage Highway Pavement and Guardrail Replacement Project. Bids are due by Thursday, May 20, 2021 at 10:00 am, at which time bids will no longer be accepted. Sealed bids will be received by the Kittitas County Public Works, at the reception desk located at 411 North Ruby Street, Suite 1, Ellensburg, Washington until 10:00 AM on Thursday, May 20, 2021 and will then and there be opened and publicly read for the construction of the Vantage Highway Pavement and Guardrail Replacement Project. All bid proposals shall be accompanied by a bid proposal deposit in cash, certified check, cashier's check, or surety bond in an amount equal to five percent (5%) of the amount of such bid proposal. Should the successful bidder fail to enter into such contract and furnish satisfactory performance and payment bonds within the time stated in the specifications, the bid proposal deposit shall be forfeited to the Kittitas County Public Works. The right is reserved to reject any and all bids and to waiver informalities in the bidding. Complete digital project bidding documents, including plans and specifications, are available at www.ouestcdn.com. You may download the digital plan documents for $15 by inputting Quest Project #7782761 on the website's Project Search page. Please contact QuestCDN.com at 952-233-1632 or info@questcdn.com for assistance in free membership registration, downloading, and working with this digital project information. Informational copies of maps, plans and specifications are on file for inspection at the Kittitas County Public Works, 411 North Ruby Street, Suite 1, Ellensburg, WA 98926. The Kittitas County in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 USC 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally- Assisted Programs of the Department of Transportation issued pursuant to such Act, hereby notifies all bidders that it will affirmatively ensure that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises as defined at 49 CFR Part 26 will be afforded full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin, or sex in consideration for an award. This project has a DBE Goal of 11% The improvement for which bids will be received is described below The Work to be performed within 60 (sixty) working days from the date of Notice to Proceed consists of furnishing all materials, equipment, tools, labor, and other work or items incidental thereto for: This Contract provides for resurfacing the entire length of the project, approximately 6.26 miles of Vantage Highway with fiber reinforced HMA and a pre -level layer on approximately 4.4 miles of Vantage Highway as shown on the plans. The project will remove all existing guardrail within the project limits and construct new guardrail and shoulder grading, and a structural earth wall. Additional items of work include, but are not limited to, new guideposts, permanent signage, pavement marking, two driveway aprons, and removal of structures and obstructions, all in accordance with the attached Contract Plans, Contract Provisions, and the Standard Specifications. Special Considerations: The WSDOT 1-90 Stevens Road to Vantage Paving Project is scheduled for early summer 2021 construction. To avoid overlapping project schedules, the first working day for this project shall be no earlier than July 6, 2021 and no later than August 2, 2021. Engineer's estimated range for the project is $3.9-$4.3 Million Specifications may be seen at the office of the Board of Commissioners and online at http://www.co.kittitas.wa.us/notices/ file:///C:/IJsers/CANDIE—I.LEA/AppData/Local/Temp/DT6QD7DB.htm 4/23/2021 Publish: Daily Record: 04/29/2021; 05/06/2021; 05/13/2021 Daily Joumal of Commerce: 04/29/2021; 05/06/2021; 05/13/2021 Page 2 of 2 file:///C:[Users/CANDIE—I.LEA/AppData/Local/Temp/DT6QD7DB.htm 4/23/2021 Page 1 of 1 For more information, contact Public Works All bid submittals shall become the property of Kittitas County. Kittitas County reserves the right to reject all bids and re -advertise if necessary. file:///C:/Users/CANDIE—I.LEA/AppData/Local/Temp/ALJQDX4U.htm 4/23/2021 KITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS PUBLIC WORKS — BOARD OF COUNTY COMMISSIONERS STUDY SESSION STAFF REPORT STUDY SESSION DATE: April 26, 2021 TOPIC: Contract for Services: Sale of Water Mitigation Certificates ACTION REQUESTED: Direction to Staff LEAD STAFF: Arden Thomas RECOMMENDATION: Direct Staff to prepare enabling documentation BRIEFING SUMMARY: • Kittitas County operates a water banking program that provides for the sale of water mitigation certificates. • Kittitas County previously executed a Contract for Services to sell mitigation certificates backed by water rights owned by non -County water banking entities • A private water bank would like to enter into a similar Contract for Services agreement with Kittitas County. BACKGROUND: Kittitas County operates a water banking program that provides the sale of water mitigation certificates. A water mitigation certificate enables applicants to demonstrate that they have legal access to water, as required by KCC 13.35.027. Water mitigation certificates are available through the County water bank and through private water banks. On May 7, 2018, Kittitas County executed a Contract for Services for the Sale of Water Mitigation Certificates with Reecer Creek Water Rights, LLC "RCWR'). This agreement enables Kittitas County to sell RCWR water rights under the same terms that we sell county -owned water. Nelson Gelbvieh Ranch, LLC now wishes to enter into a Contract for Services for the Sale of Water Mitigation Certificates with Kittitas County, and a draft agreement has been prepared. DISCUSSION: By entering into these service contracts with private water bank entities, the County helps ensure that water held by private banks is retained for use within Kittitas County and further secures the amount of water for use within Kittitas County. The agreement with RCWR anticipated and addressed that the County may enter into similar agreements with other non -County water banks. Page 1 of 3 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT Until the County's agreement with the Reecer Creek Water Bank expires on May 7, 2023, the County shall first sell at least 25 water mitigation certificates associated with the Reecer Creek Water Bank. Thereafter, the County will sell water mitigation certificates from the non -County water banks with which the County has agreements on a rotational basis with each individual water mitigation certificate alternatively coming from water associated with a non -County water bank. The rotational order among non - County entities will be determined by the order in which each non -County water bank first entered into a Contract with the County for Services for the Sale of Water Mitigation Certificates. FISCAL IMPACTS: By selling private mitigation certificates, Kittitas County continues to collect revenue required to support program staffing and collect the in -lieu fee for watershed management identified in Kittitas County's 2014 Settlement agreement. The County foregoes collecting the cost recovery fee component, as this portion of the fee is directed to the private water bank. ATTACHMENTS: Exhibit 1: Contract for Services Page 2 of 3 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT EXHIBIT 1; Contract for Services Page 3 of 3 PUBLIC WORKS BOARD OF COUNTY COMMISSIONERS WORK SESSION STAFF REPORT Contract for Services Sale of Water Mitigation Certificates This Contract for Services for the Sale of Water Mitigation Certificates (this "Agreement") is entered into and between KITTITAS COUNTY ("the County"), a political subdivision of the State of Washington, and NELSON GELBVIEH RANCH, LLC ("NGR") (hereinafter collectively referred to as the "Parties"), as of this , 2021 (the "Effective Date"). WHEREAS, the County operates a water banking program that provides for the sale of mitigation certificates in the form of a package "A" and a package "B" ("County water mitigation certificate"); and WHEREAS, the County requires a water mitigation certificate as one of the means to show adequate provision of potable water for the issuance of a building permit; and WHEREAS, as required by Kittitas County Code 13.40.030 the County operates a metering program to monitor water consumption as a condition of purchasing a County water mitigation certificate from the County; and WHEREAS, the County owns its own water rights and Trust Water Right Agreements and has contracted with other non -County water banking entities to sell their water mitigation certificates as part of the County's water banking program; and WHEREAS, mitigation certificates offered through the County Bank are backed by water rights the County has purchased that are held in the trust water program administered by the Department of Ecology and subject to a Trust Water Rights Agreement; WHEREAS, the County wishes to offer through the County water banking program mitigation certificates backed by water rights from other private water banks that are held in the trust water program administered by the Department of Ecology and subject to a Trust Water Rights Agreement; WHEREAS, NGR owns water rights held by the Washington State Department of Ecology ("Ecology") in the State Trust Water Right Program and is authorized to provide offsetting mitigation for third parties seeking 1) to mitigate for existing groundwater withdrawals, 2) water budget neutral determinations, or 3) permits for new surface and groundwater uses, as authorized in the Trust Water Right Agreement, attached hereto as Exhibit A and incorporated by reference ("NGR's Trust Agreement"); and WHEREAS, NGR desires that the County market and sell up to 25 acre-feet of consumptive use water associated the water right identified in Exhibit B attached hereto and incorporated by reference ("NGR Water Right"), which is subject to NGR's Trust Agreement; and WHEREAS, the County desires to contract with NGR and NGR desires to contract with the County for the County to sell water mitigation certificates associated with the NGR Water Right under the terms of this Agreement. NOW THEREFORE, the Parties agree as follows: 1. Scope of services to be performed by the County. a. The County will sell water mitigation certificates associated with the NGR Water Right in the form of a County water mitigation certificate, at the same prices and under the same terms as those offered by the County's water banking program. b. The County will require purchasers buying water mitigation certificates associated with the NGR Water Right to pay the necessary fees and agree to the terms for being a part of the County's water banking and metering program, as referenced in Exhibit C and subject to change by approval of the Kittitas County Board of County Commissioners. c. The County shall be responsible for all processing and servicing of the sales of County water mitigation certificates associated with the NGR Water Right sold pursuant to this Agreement, as provided herein. d. For sales of water mitigation certificates associated with the NGR Water Right in the areas depicted as the so called "green zones" in NGR's Trust Water Right Agreement, and except as provided in paragraphs (e), (f) and (g), the County shall sell the water mitigation certificates associated with the NGR Water Right in proportionate share with County or other non -County water banks with similar agreements with the County that have similar mitigation suitability before selling water mitigation certificates associated with a County -owned Trust Water Right Agreement. The County shall determine, in its sole discretion, which water banks to sell water mitigation certificates from to purchasers in the areas depicted as the so called "yellow zones" in NGR's Trust Water Right Agreement. e. The Parties acknowledge that the County has entered into a similar agreement with the Reecer Creek Water Bank in which the County agreed to sell at least 25 water mitigation certificates associated with the Reecer Creek Water Bank before the County sells water mitigation certificates from the County water bank or other non -County water banks. The County agrees that it shall not enter into any further agreements that would include a preference to sell a certain number of water mitigation certificates from one non -County water bank before any other non - County water bank. Until the County's agreement with the Reecer Creek Water Bank expires on May 7, 2023, the County shall first sell at least 25 water mitigation certificates associated with the Reecer Creek Water Bank. Thereafter, the County will sell water mitigation certificates from the non -County water banks with which the County has agreements on a rotational basis with each individual water mitigation certificate alternatively coming from water associated with a non -County water bank. The rotational order among non -County entities will be determined by the order in which each non -County water bank first entered into a Contract with the County for Services for the Sale of Water Mitigation Certificates. g. After May 7, 2023, the County shall sell mitigation certificates from the County water bank and each non -County water bank on a rotational basis with each individual water mitigation certificate alternatively coming from water associated with the different County and non -County water banks. The rotational order will first be the County water bank and then the order in which each non -County water bank first entered into a Contract with the County for Services for the Sale of Water Mitigation Certificates. For example, if there were two -non County water banks, then the rotation would be as follows: (1) County, (2) Non -County Bank that was first to contract with the County, (3) Non -County Bank that was second to contract with the County, then repeat. The County may elect, at its own discretion, to forego certificate sales out of the County water bank. In areas for which the NGR Water Right has a "green zone" suitability and the other non -County water banks do not have the same "green zone" suitability, the County shall sell the NGR Water Right prior to selling any water from the County water bank. 2. Obligations of NGR a. NGR agrees to reserve 25 acre-feet of consumptive use water associated with the NGR Water Right for the County's use under this Agreement for the Term, defined below in paragraph 3. b. NGR shall not sell the NGR Water Right or other water associated with the NGR Trust Agreement for water mitigation certificates that could be obtained through the County's water banking program during the Term. However, NGR retains the remainder of the NGR Water Right and all other water associated with the NGR Trust Water Rights for its own use, and can sell or lease that water to other parties for any purposes other than water mitigation certificates that could be obtained through the County's water banking program. 3. Time of Performance. The term of this contract shall be for five (5) years beginning the Effective Date (the 'Term"), with possibility of extending the length of the term on the mutual written agreement of the Parties. 4. Compensation. The County shall pay NGR the amount received for each water mitigation certificate associated with the NGR Water Right sold, less the same administrative fee the County charges for sales of County water mitigation certificates, and less Five Hundred Dollars ($500.00) per water mitigation certificate forthe County's in -lieu fee (ILF) program which contributes funding from each certificate sold by the County to accounts dedicated to water supply and instream improvements, as described in the Settlement Agreement between the Department of Ecology, Futurewise, and Kittitas County, dated May 15, 2014. S. Quarterly Accounting and Payment. The County shall remit to NGR the total balance due to NGR, on a quarterly basis (to the extent there is any balance due in the particular quarter) with a full accounting of sales and fees withheld. The County shall also be responsible for reporting all sales and metering data to Ecology as required by the County's Trust Water Right Agreements and the County's Over -the Counter mitigation certificate processing proposal as approved by Ecology. 6. Hold Harmless and Indemnification. NGR agrees to protect, save harmless, indemnify and defend, at its own expense, the County, its elected and appointed officials, employees and agents, from any loss or claim for damages of any nature whatsoever arising out of the performance of this Agreement, including claims by NGR's employees, volunteers or third parties, except for those damages solely caused by the negligence of willful misconduct of the County, its elected and appointed officials, employees or agents. 7. Termination. a. Either the County or NGR may terminate this Agreement upon ninety (90) days written notice for any reason other than otherwise provided herein in which case the County shall pay NGR for all amounts due in performing the contract to the date of termination. b. The invalidity or unenforceability of any particular provision of this Agreement shall not affect other provision hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. S. Exercise of rights or remedies. Failure of either party to exercise any rights or remedies under this Agreement shall not be a waiver of any obligation by either party and shall not prevent either party from pursuing that right at any future time. 9. Governing Law and Venue. This shall be governed by and interpreted under the law of the State of Washington. Any action, suit, or judicial proceedings for the enforcement of this Agreement shall be brought in the Superior Court of the State of Washington in Kittitas County, Washington. 10. Documents Included in Agreement. This Agreement constitutes the entire agreement between the parties and includes the following documents: a. This Agreement. b. Exhibit A: NGR Trust Water Right Agreement c. Exhibit B: NGR Water Right d. Exhibit C: Fee Schedule 11. Condition Precedent. This Agreement and its terms must be approved by Ecology and the Water Transfer Working Group ("WTWG"), including but not limited to Ecology and WTWG approval of the issuance of water mitigation certificates from the NGR Water Right through the County's 'Over -the -Counter" Program, and without such approval this Agreement is null and void. The County agrees to prepare the necessary documentation for Ecology and WTWG review and approval, and NGR agrees to cooperate with the County in seeking and obtaining Ecology and WTWG review and approval. 12. Assignment. NGR may assign its interest in this Agreement to another person or entity by providing written notice to the County. NGR shall not assign its interest in this Agreement to another entity without assigning the NGR Water Right to the same person or entity. 13. Notices. Notices and payments under the terms of this Agreement shall be sent to: a. Nelson Gelbvieh Ranch, LLC: Jim Nelson Nelson Gelbvieh Ranch, LLC 162346 th Ave NW Shoreline, WA 98177 (206) 399-4995 With Copy To: Jessica Kuchan Confluence Law, PLLC 110 Prefontaine PI. S., Ste 304 Seattle, WA 98104 (206)502-4401 b. Kittitas County Kittitas County 205 W. 5th Ave., Suite 108 Ellensburg, WA 98926 IN WITNESS WHEREOF, the Parties have executed this Agreement this _ day of , 2021. Nelson Gelbvieh Ranch, LLC A Name: E. James Nelson, Member Date: Name: Lynn Whimpey, Member Date: BOARD OF COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON a Name: Commissioner Brett Wachsmith M Name: Commissioner Cory Wright 0 Name: Commissioner Laura Osiadacz Attest: Clerk of the Board Approved as to Form: Deputy Prosecuting Attorney Exhibit A (Trust Water Right Agreement) Trust Water Right Agreement 2,o 21 This Trust Water Right Agreement is made and entered into this&, day ofW 2.630, by and between the Washington State Department of Ecology ("Ecology') and Nelson Gelbvieh Ranch LLC, a Washington limited liability corporation ("NGR") (collectively referred to as the "Parties"). I. Recitals A. WHEREAS, Ecology is the trustee of the Yakima River Basin Trust Water Right Program, as authorized under Chapters 90.38 and 90.42 RCW ("Trust'); B. WHEREAS, Ecology has entered into a Water Storage and Delivery Contract with the U.S. Bureau of Reclamation to assist in managing water resources in the Yakima River Basin ("Reclamation - Ecology Contract'); C. WHEREAS, NGR is the owner of certain water rights from Reecer Creek, a tributary of the Yakima River as more particularly described and confirmed under Claim 01447 in the Final Decree, dated May 9, 2019, in Ecology v. Acquavella, Yakima County Superior Court Cause No. 77-2-01484-5, more particularly described in Exhibit A (hereinafter described as the "Mitigating Water Rights"); D. WHEREAS, NGR has temporarily donated the Mitigating Water Rights to the Trust, the Parties now intend to terminate the temporary donation and convey the Mitigating Water Rights permanently to the Trust, as provided herein; E. WHEREAS, NGR has requested that Ecology hold the Mitigating Water Rights for instream flow and mitigation purposes to be used to offset or mitigate future water uses; F. WHEREAS, NGR intends to enter into a Contract for Services regarding the Sale of Water Mitigation Certificates with Kittitas County ("County") for the County to market and sell water under this Agreement to its citizens consistent with the County's water bankin program; and G. WHEREAS, subject to the terms of this Agreement, E ology confirms it is willing, able and ` authorized to hold the Mitigating Water Rights in Trust as provided erem. II. Agreement NOW, THEREFORE, in consideration of the foregoing recitals, incorporated by reference, the mutual covenants and undertakings as hereinafter set forth, and other good and valuable consideration, the receipt of which is hereby acknowledged, Ecology and NGR hereby agree as follows: 1. Purpose. The purpose of this Agreement is to allow NGR to use the Mitigating Water Rights to offset or mitigate for its own mitigated permits or for third parties as provided herein. 2. Closing. NGR agrees to convey, through a Quit Claim Deed, the Mitigating Water Rights to Ecology to be placed in Trust, in a form substantially in the form provided in Exhibit B. 3. Authorizing the Use of the Mitigating Water Rights. Following recording of the Quit Claim Deed, NGR may allocate the Mitigating Water Rights to provide an offset or mitigation for existing groundwater withdrawals, water budget neutral determinations or permits for surface and groundwater uses as provided herein. These uses will be mitigated or offset, in whole or in part, by way of a permanent assignment of a portion of the Mitigating Water Rights as is reasonably required to ensure no impairment to total water supply available in the Yakima River Basin ("TWSA") or other water rights. NGR and Ecology agree the Mitigating Water Rights can provide a senior water right as off -setting mitigation, in whole or in part for the following: -- — 3.1. To mitigate for NGR's own water use, including on formerly appurtenant property after following the process specified in Section 4 of this Agreement. 3.2. To mitigate for third party water uses in Reecer Creek in accordance with the suitability depicted on Exhibit C, up to 5.65 acre-feet of annual new water uses. 3.3. To mitigate for third party water uses within the Yakima River basin in accordance with the suitability depicted in Exhibit D, attached hereto and incorporated herein and according to the process specified in Section 4 of this Agreement. 4. Process for Allocations of the Mitigating Water Rights. 4.1. NGR may enter into a contract with the County to market and sell the Mitigating Water Rights to mitigate for existing groundwater withdrawals water budget neutral determinations, permits or leases as provided herein. NGR and the County will report the use of the mitigating water rights in accordance with the agreements between the County and Ecology. 4.2. NGR may propose or enter into contracts with other third parties to provide a portion of the Mitigating Water Rights as mitigation for water budget neutral determinations, permits or leases on such terms consistent with this Agreement as NGR may elect. The Parties will continue to work in good faith to refine the suitability in accordance with Chapters 90.03, 90.38, 90.42 and 90.44 RCW. Ecology will process each new application or modification to an existing mitigation program administered by a local government, utilizing such portion of the Mitigating Water Rights, as reasonably needed, together with any other proposed mitigation measures, to address the impacts of the proposed use. 4.2.1. If necessary or appropriate, Ecology will present the proposed use of the Mitigating Water Rights to the Water Transfer Working Group ("WTWG"). Ecology, in consultation with the U.S. Bureau of Reclamation, will determine if some or all of the Mitigating Water Rights will be assigned to the Reclamation -Ecology Contract. NGR will ensure that any fees associated with the Reclamation -Ecology Contract for the Mitigating Water Rights are paid to Ecology. 4.2.2. Ecology will investigate the proposed use of the Mitigating Water Rights and recommend issuance or denial of the use based on applicable policy, rules, and law. 4.2.3. If Ecology approves the proposed use of the Mitigating Water Rights for a local government, Ecology, NGR and the local government will work in good faith to complete the process necessary for the new use. 4.2.4. If Ecology approves the proposed use of the Mitigating Water Rights for a non -local government third party, NGR shall cause an escrow account to be opened upon the execution of an agreement between NGR and the third -party. Closing of the escrow shall not occur until the following events have been completed: (1) mutual execution of all agreements and documents contemplated by or collateral to this Agreement; (2) NGR's deposit of an executed document in a form acceptable to Ecology permanently allocating a portion of the then available Mitigating Water Rights to the proposed use; (3) completion of all required public notices; (4) expiration of all notice, comment and appeal periods related to Ecology's authorizations; (5) deposit of all funds, documents and things relevant to close; and (6) participation in Kittitas County's metering program, if the new use is in Kittitas County. 5. Management of Trust Water Rights. Ecology shall hold and manage the Mitigating Water Rights pursuant to Chapters 90.38 and 90.42 RCW and this Agreement as part of TWSA. Ecology: 5.1. Shall take no position and make no assertions that the quantities and beneficial use of the Mitigating Water Rights is other than as provided in Exhibit A; 5.2. Shall, in addition to the protections against relinquishment afforded through the Trust Water Rights Program, at all times during the Term manage, maintain, preserve and protect for the benefit of NGR and its successors, designees and assigns all aspects and attributes of the Mitigating Water Rights, including, but not limited to, the priority date, total diversionary right, instantaneous quantity and annual consumptive quantity from impairment, challenges and claims; 5.3. Shall process all new applications and requeststo use the Mitigating Water Rights consistent with other agreements to which Ecology may be subject, including, but not limited to memorandums of agreements and rules; and 5.4. Shall not assess or charge NGR any costs of fees for maintaining the Mitigating Water Rights, provided that Ecology may charge third parties its regular costs and fees for water right applications, transfers and investigations or costs attributable to assignment of a portion of the Mitigating Water Rights to the Reclamation -Ecology Contract. 6. Term. The term of this Agreement shall be for as long as any portion of the Mitigating Water Rights is available to be assigned to new and/or existing uses ("Term"). 7. Representations and Warranties. In keeping with the purpose of this Agreement and as a material part of the consideration of this Agreement upon which its execution is dependent: 7.1. NGR makes the following undertakings, representation and warranties to Ecology: 7.1.1. NGR is a Washington limited liability company duly formed and authorized and fully able to enter into and perform all its obligations in this Agreement according to its terms; 7.1.2. Each individual executing this Agreement on behalf of NGR is duly authorized to execute and deliver this Agreement; 7.1.3. Upon its full execution, this Agreement is binding upon NGR in accordance with its terms; and 7.1.4. NGR shall use its best efforts to fully and timely perform its obligations and actions contemplated by this Agreement. 7.2. Ecology makes the following undertakings, representations and warranties to NGR: 7.2.1. Ecology is a division of the State of Washington duly formed and authorized and fully able to enter into and perform all its obligations in this Agreement according to its terms; 7.2.2. The individual executing this Agreement on behalf of Ecology is duly authorized to execute and deliver this Agreement; 7.2.3. Upon its full execution, this Agreement is binding upon Ecology in accordance with its terms; and 3 7.2.4. Ecology shall use its best efforts to fully and timely perform its obligations and actions contemplated by this Agreement. 8. Termination and Default. NGR shall have the right at any time to withdraw a pending new application, terminate this Agreement and remove from the Trust any portion of the Mitigating Water Rights that has been permanently assigned as mitigation for other water uses as set forth in this Agreement. In the event NGR terminates this Agreement, then Ecology shall, without delay, re -convey the unallocated portion of the Mitigated Water Rights back to NGR using a quit claim deed. Ecology shall also have the right at any time to terminate this Agreement and remove from the Trust any portion of the Mitigating Water Rights that have not been permanently assigned as mitigation for other water uses as set forth in this Agreement. In the event Ecology terminates this Agreement, then Ecology shall, without delay, re -convey the unallocated portion of the Mitigating Water Rights to NGR using a quit claim deed. If either party defaults in its obligations under this Agreement; or if this Agreement, or a material portion thereof, be declared illegal or unenforceable; or, if either party, through no fault or action by such party, should be incapable or prevented from performing any material obligations or actions, the non -defaulting party in the event of a default or either party in any other event shall have the right to the following: 8.1. As the computation of damages may be difficult, continue this Agreement and bring an action to specifically perform this Agreement. 8.2. Declare the Agreement null and void, whereupon the Parties shall cooperate to end the trust water right relationship in an orderly manner as follows: 8.2.1. NGR shall identify all in -process designation agreements and inform Ecology of the status of pending agreements. NGR shall not make representations regarding in -process designations and shall in each instance work with Ecology to determine whether an assignment should be completed. If Ecology agrees, the permit process will be completed promptly in accordance with applicable policies, rules and law. 8.2.2. Ecology shall promptly convey to NGR or its designee the portion of the trust water right not yet designated and assigned as mitigation for water uses. Ecology may use its unassigned portion of the Mitigating Water Rights set aside to address uncertainty associated with the then existing mitigation water uses. 8.2.3. Each party shall be responsible for its own costs associated with termination of this Agreement. 8.3. Pursue any other remedy now or hereafter available. !*K11 In no event shall the termination of this Agreement alter or affect any portion of the Mitigating Water Rights allocated for mitigation for new water uses. 9. This Agreement may be assigned by NGR upon the giving of written notice to Ecology and Ecology's written concurrence of the assignee's suitability, which shall not be unreasonably withheld. This Agreement is binding upon and inures to the benefit of the Parties to the Agreement as well as upon and to the benefit of their respective heirs, personal representatives, assignees and other successors -in - interest. 10. Any notice orcommunication required by this Agreement between NGR and Ecology shall be given to the addresses set forth below: To Ecology: Water Resources Section Manager Washington Department of Ecology A Central Regional Office 1250 West Alder Street Union Gap, WA 98903 To NGR: Jim Nelson Nelson Gelbvieh Ranch LLC 16234 6` Ave NW Shoreline, WA 98177-3735 With Copy to: Jessica Kuchan Confluence Law, PLLC 110 Prefontaine PI. S., Ste 304 Seattle, WA 98104 11. No provision of this Agreement is severable from any and all other provisions of the Agreement. Should any provision of this Agreement be unenforceable for any reason outside the control of the Parties and subject to the provisions of this Agreement, the party finding itself unable to enforce the provision may, at its sole discretion, declare this entire Agreement to be null and void. 12. If either party fails to exercise its rights under this Agreement, it will not be precluded from subsequent exercise of its rights under this Agreement. A failure to exercise rights will not constitute a waiver of any other rights under this Agreement, unless stated in a letter signed by an authorized representative of the party and attached to the original Agreement. 13. Amendments to this Agreement must be in writing and signed by an authorized representative of each of the Parties. 14. This Agreement will be governed and enforced under the State of Washington. Venue for any action arising under or related to this Agreement shall be in Kittitas County, Washington. 15. This Agreement may be executed in counterparts, each of which shall be deemed to be an original instrument. All such counterparts together shall constitute a fully executed Agreement. This Agreement is executed as of the date first written above. Signatures on the following page 5 STATE OF WASHINGTON DEPARTMENT OF ECOLOGY By: Trevor Hutton, NELSON GELBVIEH RANCH, LLC By: E. James WVelson Its: Central Region Water Resources Director Its: Member By: Lynn Whimpey Its: Member 6 t, Exhibit A Mitigating Water Rights Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: S4 -83627-J Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 15 feet south and 75 feet east of the north quarter corner of Section 28; being within the NW1/4NW1/4NE1/4 of Section 28, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1873 Instantaneous Quantity 0.097 cfs Annual Quantity 18.88 (11.33 consumptive) acre feet per year 7 Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: S4 -83639-J Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 540 feet south and 650 feet west of the center of Section 21, being within the NE1/45W1/4 of Section 21, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1881 Instantaneous Quantity 0.177 cfs Annual Quantity 16.09 (9.652 consumptive) acre feet per year 0 Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: 54-85160-J Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 540 feet south and 650 feet west of the center of Section 21, being within the NE1/45W1/4 of Section 21, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1881 Instantaneous Quantity 0.5715 cfs Annual Quantity 127.35 (76.41 consumptive) acre feet per year 9 Upon Recording Return to: Confluence Law, PLLC 110 Prefontaine PI. S., Suite 304 Seattle, Washington 98104 DOCUMENT TITLE: GRANTOR: GRANTEE: PARTIAL LEGAL DESCRIPTION: ASSESSOR'S TAX PARCEL NOS.: Exhibit B (Quit Claim Deed) QUIT CLAIM DEED (AS TO WATER RIGHTS) NELSON GELBVIEH RANCH LLC WASHINGTON DEPARTMENT OF ECOLOGY PTNS OF SECTIONS 27 AND 28, T. 19 N., R. 18 E.W.M. 954949,603337 & 028234 QUITCLAIM DEED (as to Water Rights) THE GRANTOR, NELSON GELBVIEH RANCH LLC, a Washington Limited Liability Company, for and in consideration of mutual promises in hand paid, conveys and quit claims to the WASHINGTON STATE DEPARTMENT OF ECOLOGY, Grantee, as a trust water right in the State Trust Water Right Program, established under Chapter 90.42 RCW, all rights, title and interest the Grantors may have in a portion of the water rights arising under or related to Claim No. 01447 as confirmed in the Conditional Final Order Subbasin No. 7 (Reecer) in State of Washington v. Acauavella et al. Yakima County Superior Court Cause No. 77-2-01484-5, more fully described in Exhibit A, attached hereto and incorporated by reference, which 10 water rights formerly were appurtenant to the real property situated in the County of Kittitas, State of Washington, legally described in Exhibit B, attached hereto and incorporated by reference. The water right shall be used and made available for use in accordance with the Trust Water Right Agreement between NELSON GELBVIEH RANCH LLC and the WASHINGTON STATE DEPARTMENT OF ECOLOGY, attached hereto as Exhibit C and incorporated by reference. Dated this _ day of 2020, Signatures on the following two pages 11 Nelson Gelbvieh Ranch LLC a Washington limited liability company Name: Lynn Whimpey Date: STATE OF WASHINGTON )ss. COUNTY OF KING ) Its: Member On this W1 +day of 1 : �.,,� - 020, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared LYNN WHIMPEY, to me known to be a Member of NELSON GELBVIEH RANCH LLC, a Washington limited liability company that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of said company, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute the said instrument. Dated: I a (�I �� 0> o Name: NOTARY PUBLIC for the State of Washington. SUE AN LEE residing at Notary Public state of Washington ` Commission k 158364 My appointment expires: 03 I 10, My Comm. Expires Mar 19, 2024 Nelson Gelbvieh Ranch LLC a Washington limited liability company C'%', By: Name: E. James Nelson Its: Member Date: /��c, .� �� ✓�(' STATE OF WASHINGTON )ss. COUNTY OF KING ) It On this Z✓ " day of De.-, 2020, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared E. JAMES NELSON, to me known to be a Member of NELSON GELBVIEH RANCH LLC, a Washington limited liability company that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act of said company, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute the said instrument. Dated: Del,-, X a , Z S.;25�' Name: NOTARY PUB C f r the ate of Washington residing at Uy ,�4 f My appointment expires: s IANLEY R. BYRD NOTARY PUBLIC STATE OF WASHINGTON COMMISSION EXPIRES MARCH 1, 2022 EXHIBIT A to the Quit Claim Deed (Water Rights) Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: S4-83627-1 Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 15 feet south and 75 feet east of the north quarter corner of Section 28; being within the NW1/4NW1/4NE1/4 of Section 28, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1873 Instantaneous Quantity 0.097 cfs Annual Quantity 18.88 (11.33 consumptive) acre feet per year 14 Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: 54-83639-J Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 540 feet south and 650 feet west of the center of Section 21, being within the NEI/4SW1/4 of Section 21, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1881 Instantaneous Quantity 0.177 cfs Annual Quantity 16.09 (9.652 consumptive) acre feet per year 15 Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: S4 -85160-J Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 540 feet south and 650 feet west of the center of Section 21, being within the NEI/4SW 1/4 of Section 21, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1881 Instantaneous Quantity 0.5715 cfs Annual Quantity 127.35 (76.41 consumptive) acre feet per year 16 Exhibit B to the Quit Claim Deed (Formerly Appurtenant Lands for the Water Rights in Exhibit A) That portion of Parcel E3 of that certain survey in Book 34 of Surveys, pages 212 and 213, records of Kittitas County, Washington lying within the N1/2NE1/4 of Section 28, T. 19 N., R. 18 E.W.M. That portion of the Ni/2N1/2NW1/4, Parcel A of Survey No. 574136, Book 20, Page 97 lying within the Wi/2NW1/4 of Section 27, T. 19 N., R. 18 E.W.M. That portion of the NW1/4 lying within the W1/2NW1/4 of Section 27, T. 19 N., R. 18 E.W.M. All within Kittitas County, State of Washington. 17 Exhibit C to the Quit Claim Deed (Trust Water Right Agreement) F- _.. .- 18 EXHIBIT C Suitability within Reecer Creek Subbasin (not to exceed 5.65 acre-feet annually) 19 EXHIBIT D Suitability within Yakima River Watershed I"9 Dr \ e� y�yl Yµinw B.aln `:. Suitability for water from bank 1 M.lr SO.N. F, Na.JP b..l lnlw O.6 No Milpalbn P.atiMe ( eg��R YaName Re.enal an _ U.M. ,�� - Sunceac N W `{ E 0 5 10 "Mb 20 Exhibit B (Water Right) Up to 25 acre-feet of consumptively used water under the following described water right: Name: Nelson Gelbvieh Ranch, LLC WATER RIGHT DESCRIPTION Water Right Number: S4-85160-1 Source: Reecer Creek Current Use: Instream Flow Period of Use: March 25 to October 15 Place of Use: Primary Reach: Instream flows in Reecer Creek from the historic point of diversion downstream to the confluence with Currier Creek. Secondary Reach: Instream flows in Reecer Creek commencing from the confluence with Currier Creek downstream to the confluence of Reecer Creek with the Yakima River, within the Yakima River downstream to the confluence with the Columbia River. Point of Diversion: 540 feet south and 650 feet west of the center of Section 21, being within the NE1/4SW1/4 of Section 21, T. 19 N., R. 18 E.W.M. Priority Date: June 30, 1881 Instantaneous Quantity 0.5715 cfs Annual Quantity 127.35 (76.41 consumptive) acre feet per year Exhibit C (County's Fee Schedule) Mitigation Package Package Cost A B $3,895 $4,810 Fee Breakout Cost Recovery $1,897 $2,812 In lieu $500 $500 Program Administration $1,495 $1,495 Auditor/finance $3 $3