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HomeMy WebLinkAboutRES 2023-055BOARD OF COUNTY COMMISSIONERS COUNTY OF KITTITAS STATE OF WASHINGTON RESOLUTION No.2023- P 321; AUTIIORIZING CHAIR SIGNATURE ON A MEMORAI\DUM OF AGREEMENT BETWEEN KITTITAS COUNTY AIID TROUT UNLIMITED WHEREAS: Kittitas County has purchased land and water rights previously associated with Tjossem Ditch to advance floodplain management, create a water rights portfolio for mitigation of new uses, and secure back mitigation for historic groundwater exempt water use goals; and WHEREAS: A floodplain management, streamflow improvement, and habitat enhancement goal associated with these purchases is to extinguish all water use from the'ljossem Ditch, which diverts from the Yakima River and conveys water across the floodplain; and WHEREAS: Trout Unlimited, a Michigan non-profit organization working to restore rivers and recover and conserve native trout and salmon, has been working with Tjossem Ditch water right holders to fulfill their water rights from alternative sources; and WHEREAS: Trout Unlimited has secured $470,000 in funding to enable ljossem Ditch water right holders to fulfill their water rights from alternative source ("the Tjossem Ditch Retirement Project Project"); and WHEREAS: Trout Unlimited requires an additional $80,000 to complete all work needed to finalize the Tjossem Ditch Retirement Project; and WHEREAS: Kittitas County desires to provide up to $80,000 in funding to ensure that the 'Ijossem Ditch Retirement Project be completed and to ensure that 14 cubic feet per second of water associated with water rights formerly diverted through the 'ljossem Ditch remains instream in the Yakima River and that flood control measures will no longer be needed to protect or maintain the Tjossem Ditch point of diversion. NOW THEREFORE, BE IT RESOLVf,D that the Board of County Commissioners of Kittitas County, Washington, in the best interest of the public, does hereby authorize Chair signature Memorandum of Agreement between Kittitas County and Trout Unlimited. DATED this 4th day of April 2023, atEllensburg, Washington. BOARD OF COTINTY COMMISSIONERS , WASHINGTON ;a= B Julie Kjorsvik poard- Mandy Buchholz lillll ABSENT 5rtn" Laura Osiadacz, Commissioner MEMORANDUM OF AGREEMENT BETWEEN TROUT UNLIMITED AND KITTITAS COUNTY TJOSSEM DITCH WATER RIGHTS SUPPORT THIS MEMORANDUM OF AGREEMENT ("MOA") is made and entered into by and between Trout Unlimited and Kittitas County. WHEREAS, Kittitas County has purchased land and water rights previously associated with 'Iiossem Ditch to advance floodplain management, create a water rights portfolio for mitigation of new uses, and secure back mitigation for historic groundwater exempt water use goals; and WHEREAS, a floodplain management, streamflow improvement, and habitat enhancement goal associated with these purchases is to extinguish all water use from the ljossem Ditch, which diverts frorn the Yakirna River and conveys water across the floodplain; and WHEREAS, Trout Unlimited, a Michigan non-profit organization working to restore rivers and recover and conserve native trout and sahnon, has been working with Tjossem Ditch water right holders to fulfill their water rights from alternative sources; and WHEREAS, Trout Unlimited has secured $470,000 in funding to enable Tjossem Ditch water right holders to fulfill their water rights from alternative source ("the ljossem Ditch Retirement Project Project"); and WHEREAS' Trout Unlimited requires an additional $80,000 to complete all work needed to complete the ljossem Ditch Retirement Project; and WHEREAS, Kittitas County desires to provide up to $80,000 in funding to ensure that the Tjossem Ditch Retirement Project be completed and to ensure that 14 cubic feet per second of water associated with water rights formerly diverted through the Tjossem Ditch remains instream in the Yakima River and that flood control measures will no longer be needed to protect or maintain the Tjossem Ditch point of diversion. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between Trout Unlimited and Kittitas County as follows: I. SCOPE Kittitas County will provide up to $80,000 in funding, allocated on a refundable basis, to Trout Unlimited, to implement the Tjossem Ditch Retirement Project to completely close Tjossem Ditch. The Tiossem Ditch Retirement Project implements the series of water right dispositions shown in Appendix A. II. PERIOD OF PERF'ORMANCE This Agreement will go into effect on April 1, 2023, and shall be in place until December 37, 2024, unless modified as provided herein. III. PROVISOS A. Nothing in this MOA is intended to create any rights in any parry not aparty to this MOA nor third-party benefi ciaries. B. Nothing in this MOA creates a resource obligation outside that stated within this MOA. C. This is not an exclusive agreement, and both parties reserve the right to compensate additional professional service providers. D. Indemnification/Hold Harmless. Kiffitas County and Trout Unlimited agree to hold each other and their officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees arising out of or resulting from the acts, errors or omissions of the parties in the reasonable performance of their duties under this Agreement, except for those injuries and damages that are caused or are attributable to the negligence of the agency. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Kittitas County, Trout Unlimited, or their officers, officials, employees and volunteers, the parties' liability, including the duty and cost to defend shall be only to the extent of the responsible parties' negligence. The provisions of this section shall survive the expiration or termination of this MOA. E. Attorneyos Fees. If any legal action or proceeding is commenced relating to this MOA, the prevailing party is entitled to recover its reasonable attorneys' fees and costs. F. By signing this MOA, both parties certif' that neither they nor their officials are not debarred, suspended, declared ineligible, or voluntarily excluded frorn participation in this transaction by any federal agency or department. IV. RECORDS MAINTENANCE The parties to this contract shall each maintain books, records, documents, and other evidence which sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of the services described herein. These records shall be subject to inspection, review or audit by personnel of both parties, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. All books, records, documents, and other material relevant to this MOAwill be retained for six years after expiration and the Office of the State Auditor, federal auditors, and any persons duly authorizedby the parties shall have full access and the right to examine any of these materials during this period. Records and other documents, in any medium, furnished by one party to this agreement to the other party, will remain the property of the furnishing party, unless otherwise agreed. The receiving party will not disclose or make available this material to any third parties without first giving notice to the furnishing party and giving it a reasonable opportunity to respond. Each party will utilize reasonable security procedures and protections to assure that records and documents provided by the other party are not erroneously disclosed to third parties. VIII: INDEPENDENT CAPACITY The employees or agents of each party who are engaged in the performance ofthis MOA shall continue to be employees or agents of that party and shall not be considered for any purpose to be employees or agents ofthe other parfy. IX: AGREEMENT ALTERATIONS AND AMENDMENTS This MOA may be amended by mutual agreement of the parties. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties. X: TERMINATION Either party may terminate this MOA upon 30 days prior written notification to the other pafty. If this MOA is so terminated, the parties shall be liable only for performance rendered or costs incurred in accordance with the terms of this Agreement prior to the effective date of termination. XI: GOVERNANCE This MOA is entered into pursuant to and under the authority granted by the laws of the State of Washington and any applicable federal laws. The provisions of this MOA shall be construed to conform to those laws. In the event of any inconsistency in the terms of this MOA, or between its terms and any applicable statute or rule, the inconsistency shall be resolved by giving precedence in the following order: a.) Applicable state and federal statutes and rules; b.) Scope of work (Attachment A); and c.) Any other provisions of the agreement, including materials incorporated by reference. XII: WAIVER A failure by either parfy to exercise its rights under this MOA shall not preclude that parfy from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this MOA unless stated to be such in a writing signed by an authorized representative of the party and attached to the original MOA. XIII: SEVERABILITY If any provision of this MOA or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this MOA which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this MOA, and to this end the provisions of this MOAare declared to be severable. XIV: ALL WRITINGS CONTAINED HEREIN This MOA contains allthe terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this MOA shall be deemed to exist or to bind any of the parties hereto. XV: CONTRACT MANAGEMENT The contract manager for each ofthe parties shall be responsible for and shall be the contact person for all communications regarding the performance of this MOA. The Contlact Manaqer fbr Trout Unlinrited is: Lisa Pelly, Director Trout Unlirnited 103 Palouse Wenatchee, WA 98801 The Contract Manager for the Countj' is: Arden Thomas, Kittitas County Water Resources Manager Kittitas County Public Works 411N. Ruby Street, #l Ellensburg, WA 98926 IN WITNESS WHEREOF, the parties have executed this Agreement Kittitas County Trout Un iredrlhf"Warren Colyer Director Date: fr?n I 4, 2-t,2Zt o3/zt /zte3 For: By: Title: Date: Appendix A Water Rights Addressed by Tjossem Ditch Retirement Project Table 1. The current disposition of each water right is explained and the bolded text in the "project Status" column corresponds tothe water right on Figure 1, an overview map of the Tjossem Ditch and water rights.s4-84195-JPublic 0.04 Apr 1- Oct 15 IRR - 1 acres4.-84282-tPublic 0.25 Apr 1 - Oct 15 tRR - 2.5 acres, SWs4-84238-JPrivate 1.00 Apr 1- Oct 15 IRR - 9 acre, SWs4.84225-tPrivate 0.06 Apr 1 - Oct 15 IRR - 2 acress4-84240-tPrivate 0.02 Apr 1- Oct 15IRR - 0.5 acres, fishpropagationIRR - 0.5 acress4-8424L-tPrivate 0.02 Apr 1- Oct 15s4-84260-JPrivate 0.02 Apr 1 - Oct 15IRR - 0.5 acres, fishpropagationIRR-6acres,SWs4-84229-J(A)Deeded to Ecology -TWRPDeeded to Ecology -TWRPROE/amendedorder completeROE/amendedorder completeOwned bylandowner (2 PODs)Owned bylandowner (2 PODs)Owned bylandowner (2 PODs)Owned bylandownerOwned bylandownerPurchase by KCPurchase by KCPurchase by KCcomplete - no longer divertable throughTjossem Ditch - T2complete - no longer divertable throughTjossem Ditch-T2need to implement Well and complete ECyprocess - Well siteneed to implement Well and complete ECyprocess - Well sitelandowner will quit claim deed and voluntarilyabandon Yakima River POD - Mod. PANDlandowner will quit claim deed and voluntarilyabandon Yakima River POD - Mod. PANDlandowner will quit claim deed and voluntarilyabandon Yakima River POD - Mod. PANDpermanent agreement not to divert in principle,agreement in process - PANDcomplete - no longer divertable throughTjossem Ditch (not on map)complete - no longer divertable throughTjossem Ditch (not on map)complete - no longer divertable throughTjossem Ditch (not on map)complete - no longer divertable throughTjossem Ditch - T1complete - no longer divertable throughTjossem Ditch - T1s4-84229-J(B)Private 0.48 Apr 1- Oct 15(cont. SW)Private 5.52 Apr 1- Oct 15lF + MITs4-84227-tPublic 1.39 Apr 1- Oct 15 tF + MtTs4-84228-tPublic 2.07 Apr 1 - Oct 15 tF + MtTs4-84250-JPublic 2.72 Apr 1- Oct 15 tF + MtTs4-84251-JPublic O.27 Apr 1 - Oct 15 lF + MtTPurchase by KCPage 2 of 5 Thls map is intonded for purposes and should not Tjossem Ditch discusslon be reliod upon for accuracy. A & lpsxd no -l - @ TlossemPoD TJossem Ditch (epgsx.) I i 0.5 1 !- '. I * Woll Sllee 0.25 I Mod, PAND f TrEnsbr#l I riansbr#a f PAND on.prooess) l. =+-*- BNSF - Wlson Cre€f Gamin, lntemap, incromcnt P lGN, Kadastsr NL, Ordnanoo Kong), (c) Oponshe€tMap contributors, .*st't, &&-&{\ FAO, g Ir Ri:.{i : ;s ,' .E * Figure 1. The Tjossem Ditch and its approximate flow paths to separate water users are identified with each water user identified according to their implementation step.