HomeMy WebLinkAbout5.790 Original Contract
RETURN ADDRESS:
City of Port Angeles
P.O. Box 1150
Port Angeles, WA ~
DOCUMENT TITLE:
2006 1186004
Clallam
County
5. '7 q D
filED FC'R RE::O<).. r THE R~. ;Uf::.i
OF P 4, C,'+u
---............-.--.. -~.... ----,.............~-.. .........
t'f_C:JRCr.:O Ir4 ]'!:-I.., ' _ '. (' / L L ~)-1 CO
2006 AUG 15 PI': 3: 51.
6)
ECONOMIC DEVELOPMENT AGREEMENT
State of Washington
City of Port Angeles
Port of Port Angeles
August 14, 2006
Settlement agreement
With (2) Exhibits
STATE OF WASHINGTON, CITY OF PORT ANGELES, AND
PORT OF PORT ANGELES
ECONOMIC DEVELOPMENT AGREEMENT
THIS AGREEMENT, is entered into this 14th day of August, 2006, by and between the
State of W ashington (State); the City of Port Angeles, a municipal corporation organized and
existing pursuant to RCW Title 35A (City); and the Port of Port Angeles, a special purpose
district of the State of Washington organized and existing pursuant to RCW Title 53 (Port).
For and in consideration of the benefits to be derived here from and the payments to be
made, the parties hereto recite, covenant, and agree as follows:
1. Premises of Agreement. State, Port and City are participants in a settlement of
pending and potential litigation, other components of which include a land use settlement
agreement of even date styled "Settlement Agreement Among The State Of Washington, Lower
Elwha Klallam Tribe, City Of Port Angeles, And Port Of Port Angeles" and an agreement
between the State and the Lower Elwha Klallam Tribe, a federally-recognized Indian Tribe
(Tribe) of even date. (The three agreements are collectively referred to herein as the Settlement).
Parties to the Settlement are the State, Port, City and Tribe. This agreement is made for good
and valuable consideration as a component of the Settlement and in furtherance thereof.
2. Payments to City and Port. When the legislature appropriates funds, the State
agrees to make payments to the City and to the Port as follows:
A. Benefit to the City. The State shall pay to the City the sum of Seven
Million Five Hundred Thousand Dollars ($7,500,000.00), to be applied by the City, in its
discretion, for the funding of public capital projects intended to enhance economic development,
such as but not limited to those projects identified in Exhibit 1.
B. Benefit to the Port. The State shall pay to the Port the sum of Seven
Million Five Hundred Thousand Dollars ($7,500,000.00), be applied by the Port, in its
discretion, for the funding of public capital projects intended to enhance economic development,
such as but not limited to those projects identified in Exhibit 2.
- 1 -
C. Benefits for Business Development. Upon written request of the City of
Port Angeles City Manager, the State shall also consider funding up to a total of Five Hundred
Thousand Dollars ($500,000.00), exclusive of the appropriation process, and consistent with
state law, directly to businesses seeking or requiring financial incentives to locate or remain in
Clallam County, Washington. Priority funding consideration will be given to firms working with
the Clallam Business Incubator and/or the Port. Any such funding shall be disbursed on
recommendation of the City Manager, subject to approval of Department of Community, Trade
and Economic Development (CTED), which approval shall not be unreasonably withheld.
D. City Archaeolo2:ist and Archaeolo2:ical Analvsis Fundin2:. The
Governor's capital budget proposal for the 2007-09 biennium shall also include the sum of Four
Hundred Eighty Thousand ($480,000.qO) to fund the development of an archaeological analysis
and the hiring of a City archaeologist, the specific details of which are further identified in
Section 8 of the Settlement Agreement. Accordingly, if the 2007 Legislature does not
appropriate the funding, then the Governor's supplemental capItal budget request submitted for
the 2008 legislative session shall include funding for the archaeologist and archaeological
analysis. Ifthe 2008 Legislature does not appropriate the funding for some or all the payments
described in this paragraph, then the State hereby commits to include the unfunded portions in
subsequent capital budget requests. The parties agree to cooperate and actively participate in the
legislative process to assist the State in obtaining the necessary appropriations.
3. Method and Source of Payment.
As and in satisfaction ofthe payment obligations described in Section 2, the State
shall include in the Governor's capital budget proposal for the 2007-09 biennium the sum of
Fifteen Million Dollars ($15,000,000.00) to fund capital projects for the benefit ofthe Port and
City as indicated in Section 2. The parties agree that such funding shall be used by the Port and
City for projects either identified in their respective capital budgets or directly ~ontained in the
state capital budget. These projects are anticipated to last over a greater than two year period and
as such may need further carryover appropriations in future budgets.
- 2 -
If the 2007 Legislature does not appropriate the funding for some or all the payments
described in Section 2 above, then the State hereby commits to include the unfunded portions in
subsequent capital budget requests.
The parties agree to cooperate and actively participate in the legislative process to assist
the State in obtaining the necessary appropriations.
4. Property Transfer to Port. In accordance with Section 2 of the Settlement
Agreement, "[t]he State will also convey to the Port fee title to all acreage north ofthe sheet pile
wall known as the "5 Line" to the former Graving Dock." As consideration for this transfer of
property the Port will assume responsibility for the State's coffer dam structure located on
aquatic lands which are part of this property transfer and relieve the State of the obligation to
remove the structure as required by an existing U.S. Army Corps of Engineers (COE) permit.
The State agrees to provide all reasonable assistance and take the lead in coordinating conversion
of the permit for the coffer dam structure from a temporary to a permanent permit. Once the
temporary permit has been made permanent, the State shall have no further obligation to the Port
with regard to the coffer dam structure. If the Port and the State are unsuccessful in converting
the temporary permit for the coffer dam to a permanent permit, the Port and the State agree to
negotiate in good faith the fair market value of the property transfer contemplated hereby and to
resolve appropriate consideration for that transfer by negotiation, mediation, or binding
arbitration pursuant to the arbitration statutes of the State of Washington then in effect. The
State further agrees to provide all reasonable assistance to the Port in the Port's efforts to assume
the rights/obligations in the COE permit associated with the provisions on dredging.
5. Non Bindin2 on Le2islature. The parties agree that nothing in this Agreement is
intended to bind any future legislatures.
STATE OF WASHINGTON
CITY OF PORT ANGELES
By:
Christine Gregoire,
BY:~~C}.R.~
ar A. Rogers, Mayor
- 3 -
By:
W.M. "Bill" Hannan
President, Port of Port Angeles Commission
-4-
~\
1-"
~
r:a
~
~
c::!r
t~
~
STATE OF WASHINGTON, CITY OF PORT ANGELES, AND
PORT OF PORT ANGELES
ECONOMIC DEVELOPMENT AGREEMENT
Exhibit 1
Examples of City Projects for Funding
Under the terms of Section 2 of this Agreement
August 14, 2006
City
Project ID Project Title
GG02-06 "A" Frame Removal - Ediz Hook
TR03-05 8th Street Bridge Ralls & Lights
TR01-01 8th Street Bridge Replacement Design
CL07-99 Airport Industrial Park Electrical Service
WWxx-xx Airport Industrial Park Waterline
WW02-00 Airport Industnal Sewer
WT01-06 Concrete Cylinder Pipe Replacement, Phase 2
WT02-05 Concrete Cylinder Pi'pe Replacement, Phase 3
WW03-06 CSO Storage Tank
WW01-06 Francis St. Sewer Main
GG01-05 Harbor Master Plan
PK01-03 International Waterfront Promenade
TR42-99 Laundson Blvd Bndge Widening
TR21-99 Laundson Blvd Reconstruction (Truck Route - "L")
CL78-99 Light Operations Center
TR18-99 Lincoln Blvd Rechannellzatlon and Signal
TR48-99 Olympic Peninsula international Gateway
WW02-05 Plant De-Watering Improvements
WW03-05 Plant Headwork's Improvements
WW02-04 Pump Station No 4 Replacement
WW04-06 Railroad Ave/Lincoln St. GravIty Sewer
GG03-06 Railroad Waterfront Pile Removal
WW04-04 Treatment Plant for CSO Flows
Total
Funding
Need
$375,000
$400,000
$650,000
$800,000
$1,500,000
$1,300,000
$1,800,000
$2,000,000
$4,100,000
$2,900,000
$500,000
$1,250,000
$3,150,000
$2,870,000
$1,000,000
$450,000
$1,200,000
$1,000,000
$375,000
$10,500,000
$3,300,000
$220,000
$14,000,000
$55,640,000
Notes
Waterfront EnVIronmental Revitalization
Above WSDOT Authonzation Level
RedesIgn Costs
Port of PA Economic Project
Port of PA Economic Project
Port of PA Economic Project
Major water transmission line
Major water transmission line
Part of CSO Plan
Part of CSO Plan
Interagency
Downtown Waterfront Revitalization
Replacement - Alternate HWY 101 Truck Route
Left Turn off of Truck Route onto HWY 101
Downtown RevitalizatIon
FIx Intersection
Projected Bond
Replaces Belt Press
Improve effiCiency of Plant
Part of CSO Plan
Part of CSO Plan
Waterfront Environmental Revitalization
Alternate if tank not purchased
Funds appropnated by the State as part of this agreement shall be'
"Applied by the City, in its discretion, for the funding of public capital projects Intended to enhance economic development, such as
but not limited to those projects" identified herein. See Section 2.A
EXHIBIT 2
PORT OF PORT ANGELES
ECONOMIC DEVELOPMENT PROPOSALS
The Port's 2006 Marine Facilities Master Plan (MFMP) identified key
development opportunities for Port-owned waterfront property. The MFMP also
addressed changes on the waterfront resulting from Washington State
Department of Transportation's project on State property.
The MFMP recommended several key projects, including the following:
I. COFFER DAM
The Coffer dam, on the north side of the former State site, is incomplete. The
Port proposes that the Coffer dam stay in its current location and the area north
of the dam be dredged per the existing Corps of Engineers permit to -20 feet
MLLW and that dredged materials be used on site.
II. BRIDGE CONSTRUCTION ACROSS TUMWATER CREEK
A key aspect of future efficient waterfront activity is for the Port to consolidate its
cargo handling activities in one location. The area currently used for log storage
and staging could become an area for future marine trades related activities
and/or other marine transportation uses. The existing bridge which connects this
area to other marine terminal properties must be replaced to tie the properties
together and accommodate heavy load capacities.
III. TERMINAL 1 FENDERING SYSTEM
A core activity of the Port's marine terminals is the repair and maintenance of
large oil tankers. This project will provide a new fendering system for the main
Terminal #1 berth.
IV. MULTI PURPOSE CARGO PIER and HANDLING EQUIPMENT
With the consolidation of log handling activities, a replacement cargo handling
facility is needed. This facility may handle inbound and outbound commodities,
and be serviced with cargo handling equipment.
V. EXPANSION OF SHIP REPAIR FACILITIES
The Port could expand Terminal # 3 to accommodate additional large tankers
and other vessels in order to grow this aspect of Port activity.
VI. PUBLIC ACCESS AMENITIES
The Port issued bonds to fund Port Angeles Boat Haven improvements, but cost
escalations may require additional funding.
~M~Brr 2-
RETURN ADDRESS:
City of Port Angeles
P.O. Box 1150
Port Angeles, WA 9831
DOCUMENT TITLE:
5.79D
fjl ((; iflh "t~(i' ,.
,,: -"2)' /1 c: C~~[~T
~ '--~ r.~ t1
, 'rl"<"'~ '""~""'~~7"''''_"~, ~"_~"'_~""'''-''p
, Lv".."....::.. 1..1 t I .1, i 1_ ...1, ~ ~ / ~ I "' ! ~ r ~4 . ~ +,
...,........ 1,. L.....
20G6 flue 15 p;,; 3: 55
""" "'" "m " 11/ "" " II
@
2006 1186005
Clallam
County
SETTLEMENT AGREEMENT
State of Washington
Lower Elwha Klallam Tribe
City of Port Angeles
Port of Port Angeles
August 14/ 2006
Settlement agreement
With (3) Exhibits
SETTLEMENT AGREEMENT AMONG THE
STATE OF WASHINGTON,
LOWER EL WHA KLALLAM TRIBE,
CITY OF PORT ANGELES, AND
PORT OF PORT ANGELES
THIS SETTLEMENT AGREEMENT ("Agreement") is entered into effective
as of August 14,2006, by and among the State of Washington ("State"); the Lower
Elwha Klallam Tribe, a federally-recognized sovereign Indian tribe ("Tribe"); the City of
Port Angeles ("City"); and the Port of Port Angeles, a special purpose district of the State
of Washington organized and existing pursuant to RCW Title 53 ("Port") - hereinafter
singularly referred to as a "Party" or collectively referred to as the "Parties."
In consideration of the real property transactions described herein and the mutual
benefit to the Parties arising from the agreements and undertakings hereinafter set forth,
the Parties hereby recite, covenant, and agree as follows:
Section 1. Recital of Principles.
1.1. This Agreement is not intended to create new or supersede existing law; provide
any new causes of action under existing law; or imply that the Tribe's interests are
not protected under or derived from federal, state, local, tribal and/or common
law.
1.2. The Parties acknowledge, reference and intend to abide by existing and future
applicable law. See S 7 below.
1.3. That portion ofTse whit zen that sits astride the former Graving Dock site and is
delineated in Section 2 below should be protected and promoted in perpetuity as a
cemetery and place for cultural and historic preservation.
1.4. The circumstances and the consequences of the discovery ofTse whit zen are
unique and the events at the former Graving Dock site do not represent the normal
process, and do not set precedent for any other situation. The decisions and
actions ofthe State with regard to the Graving Dock and Tse whit zen are not
precedent, and do not represent desirable, required or appropriate procedure or
outcome.
1.5. The Parties agree that the property delineated at Section 3 below will be buffered
from uses on adjoining property. Buffering will be the responsibility of the Tribe
and will be inside the boundaries of that property.
1.6. The Parties intend that appropriate commercial and industrial use and
development will continue on property adjacent to the property delineated at
Sections 2 and 3 below, and all other property within the City limits, including
designated Urban Growth Areas.
- 1 -
1.7. Development, commercial activities or industrial operations on property within
the City limits that may possibly contain archaeological resources shall be
allowed so long as those archaeological resources are not displaced or disturbed
as a result of such activities or operations.
1.8. The Parties intend that if any phenomena of possible archaeological interest are
uncovered during any excavation subject to the City's Shoreline Master Program,
work shall immediately stop and the developer shall immediately notify the City
and Tribe, and the City shall notify the State Department of Archaeology and
Historic Preservation (DAHP). See S 10.7 below.
1.9. The Parties pledge to institute and maintain active communication with each other
for the purposes of assuring cooperation, coordination and collaboration with
regard to issues of archaeological, cultural and historic significance.
1.10 For all purposes ofthis Agreement, "archaeologist" means a trained, professional
archaeologist meeting federal qualifications.
1.11. These recitals are a substantive manifestation ofthe Parties' collective intent.
Section 2. Transfer to Port.
The State will assign its lease of or relinquish its interest in 2.5 acres connecting the
harborfront with the former Graving Dock site (the so-called "DNR leased land"), to the
Port, which will make contiguous Port-owned property to the "north" and "east" of the
site. The State will also convey to the Port fee title to all acreage north ofthe sheet pile
wall known as the "5 Line" to the former Graving Dock. The Tribe will dedicate about
50 feet of the property identified in Section 3 below as a buffer between the Port's
property and the historic shoreline. The State, Port and Tribe will cooperate with regard
to the preservation and use of the stormwater treatment ponds along the west boundary of
the property identified in Section 3 below, which could include the buffers contemplated
by Section 4.1 below. See the area depicted in Exhibit A hereto. An easement allowing
ingress and egress to and from the harbor shall be granted by the State and/or the Port to
the Tribe for ceremonial use (see S 5 below). Said easement shall be on and across the
area depicted in Exhibit B hereto. The Tribe shall be entitled to use the easement four
times per year for up to a total of 12 days per year. The Tribe shall give at least two
weeks notice, whenever practicable, and no less than 48 hours notice, to the Port
Executive Director of intended use to facilitate rescheduling of Port uses in the easement
area depicted in Exhibit B. In special circumstances, the Tribe may request, on at least
two weeks written notice, use of the easement in excess of these limits, and the Port shall
consider such requests in good faith but may decline additional use if such use shall
significantly disrupt Port Terminal activities in the easement area.
- 2-
Section 3. Transfer to Tribe.
The State will convey to the Tribe fee title, subject to reversion, to property "south" of
the "5 Line," to a line 200 feet "north" of the "north" right of way line of Marine Drive,
with an easement allowing ingress and egress to and from Marine Drive and restrictions
that such property be used exclusively for cultural and historic preservation purposes.
See the area depicted in Exhibit A hereto. That State conveyance will be premised upon
findings from the Federal Highway Administration (FHW A) under 23 CFR part 710.403
and Section 106 of the National Historic Preservation Act that Tribal ownership and such
restricted Tribal use is reasonable mitigation for that portion ofTse whit zen that sits
astride the former Graving Dock site, and a reasonable expenditure of public funds for
that purpose. The Tribe, with written support from the State, City and Port, will seek to
accomplish the following, in decreasing order of priority: (1) conversion of all or part of
that property described in this Section from fee to trust under federal law, subject to the
same land use restrictions; (2) designation as a National Historic Site under the Historic
Sites Act of 1935 and other applicable federal laws; and (3) inclusion on the National
Register of Historic Places.
Section 4. Land Retained by State & Leased to Tribe.
The State will retain fee title to the property south of that line 200 feet "north" ofthe
"north" right of way line of Marine Drive, and lease that acreage to the Tribe subject to
cultural and historic preservation use restrictions that are effectuated through a consultative
process with the Tribe, City and Port. See the area depicted in Exhibit A hereto. That
State lease would also be premised on FHW A mitigation and permissible public
expenditure findings, as set forth in Section 3 to this Agreement.
Section 5. Land Use Restrictions.
The State and Tribe will expressly restrict use ofthe land to be owned or leased by the
Tribe as described in Sections 3 and 4 for cultural and historic preservation, which for
purposes of this Agreement means: site restoration; reburial ofKlallam ancestors;
maintaining ancestral burial grounds; ceremonial uses; and developing a facility to
promote cultural heritage and create significant local economic benefit related to the uses
(so long as archaeology supports development); to be effectuated through a collaborative
process with the Tribe, City and Port. The Parties agree that the Tribe's use ofthe land
described in Sections 3 and 4 shall specifically preclude gaming activities, whether such
activities are subject to compacting requirements or not. The State, City and Port do not
foresee any public purpose reason for exercising public condemnation authority on the
property described in Section 3 (to the extent not acquired by the federal government in
trust for the Tribe) and Section 4. The State, City or Port will cooperate with the Tribe's
reasonable efforts to minimize any taxation of that property, including but not limited to
seeking tax exemptions and structuring of an entity or entities that will own and/or lease
the land. The City will provide utility services to and on that land, and the Tribe will pay
all necessary utility fees and assessments.
- 3-
5.1 The Tribe shall determine and install appropriate buffers for its cultural and
historic preservation uses, and those buffers shall be within the property described
in Section 3 to insulate the Tribe's uses from surrounding uses; provided that the
Tribe will not be required to remove any archaeological resources to create such
buffers.
5.2 The Tribe acknowledges that the property surrounding the property that will
be conveyed or leased to the Tribe under Sections 3 and 4 to this Agreement, will
be utilized for heavy industrial and maritime use creating noise, dust, vibration
and other similar impacts typical of such uses. The Tribe accepts the property
delineated in those Sections 3 and 4 with knowledge of that surrounding land use
activity and agrees to not take any action opposing such use as long as such use
complies with existing and future applicable law and this Agreement.
5.3 Within sixty (60) days of execution of this Agreement, the State, at its own
expense, shall prepare legal descriptions of the property and easement described
above in Sections 2, 3 and 4, and depicted in Exhibits A and B. The State shall
deliver the legal descriptions to the Port and Tribe for review. Any review costs
shall be borne by the Port and Tribe. Thereafter, under the terms of separate but
related agreements between the State, City and Port, and the State and Tribe,
respectively (see S 15 below), the State shall convey title or lease that property to
the Port and Tribe, respectively, as contemplated by Sections 2, 3 and 4.
Section 6. Land Use Regulations.
The State, City and Port will initiate the process to modify, as needed, their respective
current land use designations, policies and regulations that presently apply to the acreage
that will be conveyed and leased to the Tribe for cultural and historic preservation to
remove any conflicts with the intended uses ofthese properties, as envisioned in Section
12 below; and agree to support proposed changes that effectuate this Section and Section
12.
Section 7. Applicable Law.
The Parties shall abide by and do not intend to alter existing and future applicable law
relating to discovery and treatment of historic properties, including artifacts, features and
human remains, as applied by the terms of this Agreement to property within the
jurisdiction ofthe City. See S 1.2 above. The Parties acknowledge the existence of tribal
law, and that certain property and other rights derived from tribal law are recognized and
enforced by state and federal courts. This Agreement does not intend to alter existing
law. The State, City and Port reserve the right to assert that tribal law does not apply.
Section 8. Archaeological Analysis.
8.1 The City shall hire as its employee an archaeologist for a five year period.
The State shall bear all the costs for employing the City Archaeologist, as well
as appropriate consultants, and the cost of the archaeological analysis
-4-
contemplated by this Section, subject to the provisions of subsection 8.1.1
below.
8.1.1 The Parties acknowledge that the State, through this Agreement,
cannot budget at one time five years of funding for the City Archaeologist,
consultants, and analysis contemplated in this Section. Therefore, the Parties
agree that the City will develop budgets for the City Archaeologist,
consultants, and analysis, in coordination with the State's biennial budget
cycle. The City will develop each budget and submit it to the State in
adequate time for the State to include the funding in the regular or
supplemental budget cycle, as appropriate. The State covenants that it will
initiate and take all reasonable means to support and include in the State's
budget authorization to pay to the City sufficient funds for the archaeologist,
consultants, and analysis contemplated in this Section.
8.1.2 The Tribe, State, and Port shall be consulted during the City's
interview process for the City Archaeologist position and their representatives
shall be allowed to participate in candidate interviews, but the final decision
about whom should fill that position shall rest solely with the City.
8.2 On land identified in Section 8.9 below, the City Archaeologist, in
consultation with the Tribe, State, Port and other interested parties, will
conduct, administer and manage an archaeological analysis designed to
determine the potential locations of archaeological resources. Subject to
available state funding, the predictive analysis will include one or more of the
following methods: ethnographic studies, statistically-based archaeological
predictive modeling, geomorphological studies, remote sensing methods,
forensic canines, and/or other scientifically appropriate methods. Based on
these methods, the City Archaeologist, in consultation with the Parties, will
establish the appropriate archaeological fielding testing methods, which will
include pedestrian surveys, subsurface test units, backhoe trenching, augering,
coring, geoslicing, and/or other scientifically appropriate methods appropriate
to the environmental conditions of the field inventory area and probability
designation.
8.3 The analysis shall be conducted expeditiously and in good faith and
completed as soon as possible, but not later than two years after State funding
or City hiring ofthe City Archaeologist, whichever is later. Permitting
processes will proceed in the normal course of business and under existing
and future applicable law while the analysis is conducted. Mitigation plans
will be subject to the protocols set forth in Sections 9 and 10. Completion of
the analysis is not a prerequisite to permit processing.
8.4 As part ofthe analysis, the Tribe agrees to cooperate with the State, City
and Port for purposes of allowing them access to the Tribal repository of
history and information, which would aid in the thoroughness and accuracy of
- 5-
the analysis. The State, City and Port agree to consult with the Tribe
regarding the design, implementation and results of the analysis, including
data quality and data analysis.
8.5 The analysis is intended to help reduce uncertainty, which will promote
predictable development by informing governmental permitting personnel
how to devise appropriate mitigation in accordance with this Agreement.
8.6 The end product of the archaeological analysis will be detailed maps
designating areas as having high, medium or low probability for the presence
of archaeological resources. Buffers and other protections for identified
archaeological resources will be determined by the City Archaeologist, in
consultation with all the Parties, based on the nature and size of the resource,
the environmental conditions, nature and extent of the proposed development
project, confidence in the delineation of the site boundaries, and any other
factors the City Archaeologist deems necessary to provide reasonable
protection to the archaeological resources. Section 11 below discusses the
confidential treatment of these reports, maps and other documents.
,8.7 These maps will also depict recorded archaeological sites, districts,
traditional cultural properties and isolated features, as well as sacred areas, to
aid in predictability and appropriate mitigation as development occurs. This
information will be considered confidential and exempt from public disclosure
by state and local government under RCW 27.53.070 and RCW 42.56, except
as necessary to carry out government activities to manage, mitigate, or protect
these archaeological resources, and consistent with Section 11 below.
8.8 The City and Tribe will continually update these maps as new information
is discovered, and will provide this information to the Tribe and DAHP.
8.9 The archaeological analysis contemplated herein shall encompass the
following areas and the uplands contiguous to those areas: all of Ediz Hook,
and along the shoreline from the base of Ediz Hook to the Rayonier mill site
from the toe ofthe bluffline as it currently exists to the existing shoreline.
8.10 The Parties recognize that the site of the former Rayonier pulp mill is
subject to a Superfund deferral agreement and a clean-up process under
authority ofthe State's Model Toxics Control Act. For that reason, operations
and activities on that property are already subject to strict review and
regulation and are subject to different laws and considerations than other
properties on the Port Angeles waterfront. For these reasons, the Parties agree
that no term or condition of this Agreement shall apply to the Rayonier
property. If the federal Environmental Protection Agency ever (1) removes
that site from the Comprehensive Environmental Response, Compensation,
and Liability Information System (CERCLIS), or (2) revokes deferral ofthe
National Priorities List (NPL) listing process or otherwise reasserts authority
over the investigation and/or cleanup of the Rayonier site, then Rayonier (or
- 6-
its successor), the Tribe and any other party with a legally recognizable
interest in that site may elect by written agreement to apply the terms and
conditions ofthis Agreement to the site. Additionally, those parties may elect
by written agreement to apply the terms and conditions of this Agreement to
that site at any time of their choosing. However, nothing in this Agreement
shall be read to compel those parties to effect such an agreement. The
exclusion of Rayonier property, provided above, is not intended to restrict or
abridge the jurisdiction of the City as permitting authority over that property.
Section 9. Project Permitting
9.1 The Port and City will prepare and implement permitting and planning
procedures consistent with this Agreement.
9.2 The Port and City will provide training on these procedures to all City and
Port personnel who are involved with approving or conducting ground-
disturbing work, and the State, City, Port and Tribe will collaborate to
produce educational materials for the public, landowners, and developers
about the sensitive nature and protection of archaeological resources.
9.3 The City, Port and State permitting staff will promptly consult the
analysis maps described in Section 8 when they are contacted by landowners
or developers with potential ground-disturbing projects, whether within or
outside of Shoreline Management Act jurisdiction, and will use the maps to
devise appropriate mitigation.
9.3.1. For purposes of this Agreement, "ground-disturbing" means
operations, such as digging, trenching, boring, excavating, and drilling, that
cause physical penetration of the surface of the ground by tools or equipment.
9.4 The State, City, Port and Tribe will identify or establish inter-
govemmentalliaison positions for purposes of providing the verbal and
written notice envisioned in this Agreement.
9.5 The Tribe will designate a person to serve as the agent for the Tribe in all
matters relating to discoveries of archaeological resources. The City, Port and
State permitting staff will provide oral and written notification to Tribal and
DAHP contact persons as early in the process as possible, to inform the Tribe
and DAHP when ground-disturbing projects are proposed within or near
culturally sensitive areas. The names and phone numbers of the Tribal, City,
Port and DAHP contact persons contemplated by this Section and Section
10.6 below are set forth in Exhibit C hereto, which shall be annually updated
by the Parties' inter-govemmentalliaisons upon the anniversary of the
effective date of this Agreement.
-7 -
9.6 Mitigation.
9.6.1 As allowed by law and as provided herein, the Parties will
mitigate development-related impacts to archaeological resources
consistent with this Agreement and the order of preference for
mitigation measures set forth in the State Environmental Policy Act
(SEP A) and Shoreline Management Act (SMA), including those
statutes' respective regulations, and other applicable law.
9.6.2 Under appropriate circumstances, the local government may
deny a permit or other approval.
9.6.3 If ground-disturbing work is to occur in a culturally sensitive
area of interest to the Tribe, to be determined through the
archaeological analysis contemplated by Section 8 (see S 8.4), the
Tribe shall be consulted with regard to a proposed mitigation plan
before work commences, with the goal being development of a
mitigation plan acceptable to all parties. By way of example, the
agreed-upon mitigation plan could dictate that an on-site
archaeologist and/or Tribal members or staff persons may monitor
the work, and that the City, Port or State will take all reasonable
means to ensure the Tribal representatives access to the site.
Section 10. Disposition of Discovered Artifacts and Human Remains
10.1 Under RCW 27.53 and subject to Section 10.3 below, archaeological
resources may not be disturbed without a permit from DAHP. The City and
Port will work with the Tribe and DAHP to ensure that cultural artifacts
removed from government-owned lands are provided to the Tribe for
appropriate curation or use. In addition, the City and Port will work with the
Tribe, DAHP and landowners to encourage the transfer of cultural artifacts
removed from private lands to the Tribe.
10.2 Based upon the Tribe's interests in human remains and funerary objects
that are affiliated with the Tribe, if testing reveals human remains of five or
less associated individuals (defined in Section 10.4 below) and if a different
arrangement is not agreed to by the landowner, the human remains and
associated funerary objects will be reinterred on the property described in
Section 3 under the Tribe's supervision. Development may proceed within
the area from which the remains and funerary objects were discovered.
10.3 Based upon the Tribe's interests in human remains and funerary objects
that are affiliated with the Tribe, if testing reveals human remains of six or
more associated individuals (defined in Section 10.4 below), the Parties will
follow existing and future applicable law to determine, on a case-by-case basis
and subject to such law, the disposition of the remains and associated funerary
-8-
objects. This Section is not intended to create any new or additional right of
action for any party. See S 7 above.
10.4 For purposes of Sections 10.2 and 10.3, "associated individuals" shall be
determined collectively by the Parties' archaeologists or designees, applying
generally accepted archaeological methods, with the goal being a
determination that is acceptable to all parties. In the event the archaeologists
or designees collectively cannot agree within fourteen (14) days oftheir and
the Parties' inspection ofthe site under Section 10.6 below, the City
Archaeologist shall make the determination and the Parties shall defer to that
determination unless inconsistent with generally accepted archaeological
methods.
10.5 To the extent allowed by law, the applicable terms ofthis Agreement
will be incorporated into federal, State and local permits and other approvals.
10.6 As a local permit condition, the permittee will immediately notify the
Tribal Chair and specified Tribal staff by both letter and telephone (work and
cellular), as well as the City, when new artifacts, features or human remains
are discovered. In turn, the City will immediately notify DAHP, as required
in RCW 27.44 and 27.53.
10.7 If archaeological resources are discovered, no further ground-disturbing
activity will occur and no materials will be removed in an area around the
discovery to be determined collectively by the Parties' archaeologists or
designees, applying generally accepted archaeological methods with the goal
being a determination that is acceptable to all parties, until such time as the
requirements of subsections (1) through (5) below are satisfied; provided that
in the event those archaeologists or designees cannot collectively agree on that
initial "stop work" area within fourteen (14) days of the discovery, the City
Archaeologist shall make the determination, and the Parties shall defer to that
determination unless inconsistent with generally accepted archaeological
methods.
(1) The notices contemplated by Section 10.6 are given;
(2) They and the Parties inspect the site along with the affected landowner;
(3) They determine the full extent of the culturally sensitive area affected
by the project;
(4) An acceptable mitigation plan is developed and implemented in
accordance with Section 10 and consistent with Sections 10.1 above regarding
disposition of artifacts, and 10.2 and 10.3 regarding treatment of human
remains, and applicable law; and
-9-
(5) A permit is obtained from DAHP, as required in RCW 27.44 and
RCW 27.53, which may impose additional or different conditions on ground-
disturbing activities.
If the Parties' archaeologists or designees collectively cannot agree on the
matters in subsections (3) and/or (4), within fourteen (14) days oftheir and
Parties' inspection of the site under subsection (2), determinations on such
matters shall be made by the City Archaeologist applying generally accepted
archaeological methods. The Parties shall defer to such determinations unless
inconsistent with generally accepted archaeological methods.
With regard to subsection (5), any disturbance, excavation, or removal of
archaeological resources or sites must comply with the conditions imposed in
such permit. Alternatively, if ground-disturbing activities occur as part of a
federal undertaking, as that term is defined in Section 301(7) of the National
Historic Preservation Act (NHPA), 16 U.S.C. S 470w(7), any disturbance,
excavation, or removal of archaeological resources or sites must comply with
the requirements of Section 106 of the NHPA, 16 U.S.C. S 470f.
The provisions of Section 9 and 10 of this Agreement shall be applied in those
areas which are subject to archaeological analysis pursuant to Section 8.9
hereof, and shall also be utilized as guidelines for permitting and construction
activity in other areas of the City of Port Angeles and its Urban Growth Areas
as now established or hereafter defined.
Section 11. Confidentiality
11.1 To the extent authorized by law, those portions of all reports, maps, or
other information identifying the location of archaeological sites, objects, or
human remains will be treated as confidential and exempt from public
disclosure, to discourage looting and depradation.
11.2 To the extent authorized by law, those portions of the reports, maps, or
other information identifying the location of archaeological sites or objects or
human remains will be shared with state and local governmental permitting
personnel. These portions of the reports, maps, or other information will be
shared with landowners and their consultants only as absolutely necessary and
with confidentiality procedures firmly in place, including, but not limited to:
(1) maintaining a registry of names, addresses, and telephone numbers of
those who view the information; (2) restricting copying; (3) notifying the
Tribe if copies are requested or released; and (4) requiring that all copies are
eventually returned or destroyed. These restrictions will be incorporated into
all federal, State, and local permits and other approvals. Information
identifying the location of archaeological sites or objects or human remains
located on a particular parcel may be shared with the owner of that parcel
during permitting activities or as otherwise required under law.
- 10-
11.3 The State, City and Port may share with the public the non-confidential
and non-exempt portions of the reports, maps, or other information for
purposes of: (1) educating the public as to the sensitive nature of the cultural
resources and the Tribe's cultural affiliation with the cultural resources; (2)
encouraging repatriation (as described in Section 10); and (3) avoiding similar
damage to cultural resources in the future; so long as the sharing of such
information does not reveal the specific location of artifacts, human remains,
features and sites, consistent with RCW 42.56.
Section 12. Future Planning
As necessary, the City will initiate and take all reasonable means to support
the process to amend the Shoreline Master Program, and the City, Port and
State will amend any plans or authorities, to reflect and implement this
Agreement, and to provide notification to the public, landowners, and
developers.
Section 13. State and Federal Designations
Under Sections 10.1 and 10.3 but not 10.2, the Tribe may seek the listing of
historic properties under federal and state law for all qualifying properties, and
take other action necessary to protect such properties.
Section 14. Dispute Resolution
14.1 The Parties agree that they shall attempt to resolve any dispute arising
under this Agreement according to the following sequence of dispute
resolution measures, until the dispute is finally resolved: (1) government-to-
government consultation between the State, City, Port and Tribe through their
inter-governmental liaisons designated pursuant to Section 9.4 above; (2)
govemment-to-government consultation between the City Mayor, President of
the Port Commission, Tribal Council Chair and designated representative of
the State; and (3) mediation between the State, City, Port and Tribe facilitated
by John Bickerman or some other mediator to be mutually agreed upon by the
Parties.
14.2 If the measures in Section 14.1 do not result in final resolution of the
dispute, any party may take such legal action as they deem appropriate. The
Thurston County Superior Court will retain jurisdiction to enforce the terms of
this Agreement. In the event any Party is required by the Thurston County
Superior Court to file a new cause of action to enforce the terms of this
Agreement, the Parties hereby waive sovereign immunity and consent to be
sued to the extent necessary for such an action to proceed in the Thurston
County Superior Court.
-11-
Section 15. Other Agreements
The agreement reached between the State and Tribe, and agreement reached
between the State, City and Port, are each incorporated by reference as if fully
set forth herein.
STATE OF WASHINGTON
Cn. me O. Gregoire
Its Governor
By:
LOWER EL WHA KLALLAM TRIBE
By:.- ~~~ ~ ~tlA...L
Frances G. Charles
Its Tribal Chairperson
CITY OF PORT ANGELES
By:~~d~
Its Mayor
PORT OF PORT ANGELES
By:
W.M. "Bill" Hannan
President, Port of Port Angeles Commission
-12 -
S'ORMWnER TRtATttENT POIIOS ITYP..I
r
I
r
d
BIOFILTRATIOlI .VAlE ""'.1
~ N 3I"S'Z'" V 795.9" ~
t(.SI\ -ST -\t -S, -ST -Sl- -(')'1-T--ST
6 PILE tTPr:
Al 48
AZ 48
AZ 4!
AZ 41
S At 411
6 AZ .411
1 AZ 36
a AZ36
t 4l !l6
10 A.Z 36
11 AZ 36
12 AZ 36
13 AZ 36
1.41 AZ 36
IS A.Z 36
16 A.Z: 36
IT AZ 36
18 Al 36
'9 AZ 36
20 Pl .410
21 PZ 40
22 PI 21'
23 PI 2'
24 PZ 2'
25 PI 22
26 PI 22
27 PI 22
PIPE
SHEET PILE COOES
tiP El.tvUION PILE _IOTM
.70 45.63'
.5a 45.63'
-54 4555
'53.$ 45.""
-so 45.6S"
- 30 45.61'
.70 49.55"
'66 .419.55
.6.4 4'.!!"
"2 4'.55"
-51 4".55"
-,0 '0 .56 49.55
-5].5 49.55
.4. 4'.55"
-]0 TO -44 49.55'
-42.5 .9.55"
'41 49.55'
'2' 49.55"
-6 to -48 49.55'
-1'0 39.25
.41 39.25"
-)0 36.00'
'15 3&.00
-5 TO -15 36.00
.35 1II..00'
-11 44.00'
-16 TO -17 44.00"
'62 2 DIAM.
LEGEND
;:.:; INLET
.. CATCH BASIN
MANHOLE
0 DRAINACE STRUCTURE CODE
~ 2'OIAM. PIPE PILE
.~ .~zs:.n SHEET PILE CODE
SHEET PILE
. z PROPERTY LINE
, STORM SEWER
~ -5T--
.uo-- UNDERDRAIN LINE
FENCE
c::z::3 CONCRETE SLAB
BEARINCS AND DISTANCES ARE INFOR~AilO~AL
ONL Y. SEE THE PORT ANCELES CRAVINC OOC~
SITE SUNDRY SITE PLAN FOR HORE
INFORMATION AND ACCURACYI2
sM.e.- ~
PROJECT OATU~
NAVO 8B
I
1
i
50 100 I
SCAl.E IN FEET ~
-'-'------- r PL Oil
. .... PORT ANGELES GRAVING DOCK i---
I ::7: TSE-WHIT-ZEN VILLAGE SITE i
I ~II CnY Of PORT ANGELES
Washington Slale. CLALlAM COUNTY, WA ! '''\''
I Department of Transpoo1ationl - . "
...."!!"...':._.L_.....'''!''..._ '''' -1_____________j_.~~~.-As B~LT EXHIBIT .~__._,_.L_'::'?.J
~"eg'.
rFfiE-"'IlC
I'TlNE" ---
DATE
F'PLOlTED 8T
t" '.DESICNEO 8Y
J ENTERED BT
f,~ ~J tHEC'ED BT
i;' -. PROJ. ENCR.
~"I,~G,-O~,!- ~...'-
"'~
'~'!.lSI.llN
COI",.acfll).
_LDA!E, ,'Bd _ _
;;:..."
~
=
...~
"II
~
B
EI
~v
W<<
..J
EXHIBIT C
CONTACT PERSONS
LOWER EL WHA KLALLAM TRIBE
Frances Charles
Chairperson
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone: (360) 452-8471
Cellular: (360) 460-2808
Fax: (360) 452-3428
Email: fgcharles@elwha.nsn.us
Arlene Wheeler
Cultural Resources Liaison
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone (360) 452-8471 Ext. 102
Cellular: (360) 460-5842
Fax: (360) 452-3428
Email: arlenew@elwha.nsn.us
Carmen Char1es- Watson
Assistant to Cultural Resources Liaison
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone: (360) 452-8471
Fax: (360) 452-3428
Email: carmenc@elwha.nsn.us
.
CITY OF PORT ANGELES
City Manager
Mark Madsen
321 E. 5th
Port Angeles, W A 98362
Phone: (360) 417-4500
Email: mmadsen@cityofpa.us
City Archaeologist
(Position yet to be filled)
321 E. 5th
Port Angeles, W A 98362
Phone: (360) 417-4500
PORT OF PORT ANGELES
W. M. "Bill" Hannan
Commission President
Port of Port Angeles
338 - West First Street
P.O. Box 1350
Port Angeles, W A 98362
Phone: (360) 457-8527
Fax: (360) 417-3427
Email: billh@portofpa.com
Robert E. McChesney
Executive Director
Port of Port Angeles
338 - West First Street
P.O. Box 1350
Port Angeles, W A 98362
Phone: (360) 457-8527
Fax: (360) 417-3427
Email: bobm@portofpa.com
.
..
WASHINGTON STATE
Allyson Brooks, Ph.D.
State Historic Preservation Officer
Department of Archaeology and Historic Preservation
1063 S. Capitol Way, Suite 106
P.O. Box 48343
Olympia, W A 98502
Phone (360) 586-3065
Fax (360) 586-3067
Email: Allyson.Brooks@DAHP.WA.GOV
Rob Whitlam
State Archaeologist
Department of Archaeology and Historic Preservation
1063 S. Capitol Way, Suite 106
P.O. Box 48343
Olympia, W A 98502
Phone (360) 586-3080
Fax (360) 586-3067
Email: Rob.Whitlam@DAHP.WA.GOV
Randy Hain
Regional Administrator
Washington State Department of Transportation
5720 Capitol Boulevard South
Tumwater, WA 98501
Phone: 360-357-2605
Fax: 360-357-2601
Email: HainR@wsdot.wa.gov
'5.7t{O
"
SETTLEMENT AGREEMENT
BETWEEN STATE OF WASHINGTON
AND LOWER ElWHA KlAllAM TRIBE
THIS SETTLEMENT AGREEMENT ("Agreement") is entered into this 14th day of
August, 2006, by and between the State of Washington ("State") and the Lower Elwha
Klallam Tribe ("Tribe"), a federally-recognized sovereign Indian tribe, with reference to
the following facts:
RECITALS
A. In or around April 2003, for the purpose of constructing and operating a graving
dock (the "Project"), the State acquired from the Port of Port Angeles ("Port") a
20 acre parcel and leased an additional 2.4 acres from the Department of Natural
Resources ("Port Parcel" and "DNR Parcel" respectively and collectively referred
to as the "Graving Dock Property").
B. The State started construction work at the Graving Dock Property in August 2003
and, in the process of this work, discovered archaeological resources associated
with the former Klallam village of Tse whit zen.
C. On March 16, 2004, a Section 106 Memorandum of Agreement ("MOA") was
entered into between the Washington State Historic Preservation Officer and the
Federal Highway Administration, an agency of the United States. The MOA was
also signed as "invited signatories" by the U.S. Army Corps of Engineers, the
Tribe and the State. Incorporated into the MOA was an agreed-upon Site
Treatment Plan prepared by the Tribe and the State with the assistance of
Larson Anthropological Archaeological Services Limited. A simultaneous
Settlement Agreement and Release was entered into by the Tribe and WSDOT.
D. During the Spring, Summer, and Fall of 2004, construction of the graving dock
was accompanied, pursuant to the MOA, by archaeological investigations, data
recovery and recovery of human remains at various locations at the Graving
Dock Property. In the course of construction and investigation, several hundred
sets of human remains were discovered and recovered from the Site. These
human remains are in the possession and control of the Tribe and are awaiting
re-interment.
E. As part of the construction of a graving dock facility, the State installed sheet
piles and a concrete slab at the Graving Dock Property. In December 2004, the
State abandoned construction of the graving dock project. The sheet piles and
concrete slab currently remain in place at the time the parties are executing this
Agreement.
- 1 -
F. In August 2005, the Tribe filed suit against the State in Thurston County Superior
Court, Lower Elwha Klallam Tribe et al v. State et ai, Cause No. 05-2-01595-8
("Lawsuit"), to assert claims for relief as a result of injuries and damages the
Tribe believes the State to have caused to the Tribe and its members.
G. In September 2005, the State answered the Tribe's Complaint, denying the
Tribe's allegations and asserting counterclaims against the Tribe.
H. The State and Tribe agreed in late 2005 to participate in mediation with attorney
John Bickerman and the City of Port Angeles ("City") and Port agreed to join in
that process.
I. On July 14, 2006, after a series of meetings, discussions and negotiations, the
State, Tribe, City and Port developed a draft agreement in principle as a guide for
further negotiations to resolve the disputes relating to the Project and Tse whit
zen, including the claims pending between them in the Lawsuit.
J. The State and Tribe are now executing this Agreement and a Settlement
Agreement with the City and Port ("Settlement Agreement") to establish the
binding and definitive terms of their agreement and their respective rights and
obligations.
AGREEMENT
In consideration of the mutual promises set forth below, the State and Tribe
hereby agree as follows:
1. Transfer of Real Property to Tribe
(a) In partial settlement of the Lawsuit, the State shall transfer to the
Tribe fee simple title, subject to a reversionary interest described in Section 1 (b)
below), to the Port Parcel excluding (i) a strip of land 200 feet in width adjacent to and
running along Marine Drive (the "Marine Drive Parcel") and (ii) the acreage north of the
line that has been referred to and known as the "5-Line" for the Project (the
"Northeastern Parcel"). Exhibit A depicts the portion of the Port Parcel to be
transferred to the Tribe in green shading ("Tribe Parcel") and the Marine Drive Parcel
and the Northeastern Parcel in blue and red shading, respectively. The conveyance
shall be in a mutually agreeable form that it is accordance with state law, provides for
the land to be converted to trust in accordance with federal law, and enables the
Federal Highway Administration to make the "public interest finding" required by federal
law. .
(b) The Tribe's use of the Tribe Parcel shall be restricted to cultural
and historic preservation, which for purposes of this Agreement shall include site
restoration; reburial of Klallam ancestors; maintaining ancestral burial grounds;
ceremonial uses; and developing a facility to promote cultural heritage and create
- 2 -
significant local economic benefit related to these uses. It is agreed that the Tribe's use
of the Tribe Parcel shall specifically preclude gaming activities, whether such activities
are subject to compacting requirements or not. In the event that the Tribe uses the
Tribe Parcel for any other purpose, the State may notify the Tribe in writing that it is in
violation of this Agreement. The State shall identify in its notice the specific violating
activities. The Tribe shall have one hundred and twenty (120) days from receipt of the
State's notice to terminate the activities violating this Agreement. If the Tribe does not
terminate the violating activities, then title to the Tribe Parcel shall automatically revert
to the State; provided, however, in the event the Tribe disagrees with the State's
determination that such activities violate the permitted uses, the parties shall follow the
dispute resolution provisions of Section 15. Notwithstanding the automatic reversion
provision herein, the Tribe shall reconvey the Tribe Parcel to the State through the
execution and recordation of a mutually agreed upon deed, at the expense of the Tribe.
(c) Within sixty (60) days of execution of this Agreement, the State, at
its own expense, shall prepare legal descriptions of the Marine Drive Parcel and Tribe
Parcel. The State shall deliver to the Tribe for review the legal descriptions and a
corresponding survey map stamped by a surveyor licensed in the State of Washington.
Any review costs shall be borne by the Tribe. The legal description for the Tribe Parcel
shall be used in the deed provided for under subsection 1 (a) above, and the legal
description for the Marine Drive Parcel shall be used in the ground lease provided for
under Section 5.
(d) The State shall deliver to the Tribe the fully executed deed within
fourteen (14) business days of the State certifying completion of all Remediation Work
required under Section 4 below.
2. Payments to Tribe
(a) The State shall pay five hundred thousand dollars ($500,000) to the
Tribe within thirty (30) days of the execution of this Agreement or concurrently with the
date of entry of a consent judgment required under Section 3 below, whichever is later.
(b) On or before August 1 , 2007, the State shall deposit the sum of two
million dollars ($2,000,000) into an interest bearing escrow account for the benefit of the
Tribe. The principal and interest shall be released to the Tribe on the date of transfer of
title to the Tribe Parcel called for in Section 1, subject to withholding and payment to the
State for the Tribe's breach of its obligations in Section 8(c). The parties shall furnish
the escrow company with mutually agreeable escrow instructions consistent with the
terms of this Agreement.
(c) The payments called for in this Agreement are in addition to all prior
payments the State has made to the Tribe, and the Tribe shall have no obligation to
return or re-pay to the State any payments made prior to the execution of this
Agreement.
- 3 -
3. Consent Judgment
(a) Within thirty (30) days of the execution of this Agreement, the State
and the Tribe shall jointly request that the Thurston County Superior Court enter a
consent judgment in the Litigation.
(b) Counsel for the State and the Tribe shall cooperate in seeking the
approval of the Court for the consent judgment. Such cooperation shall include, but is
not limited to, working with representatives of the City and Port to obtain their approval
for the consent judgment and filing such pleadings and other papers as the Court may
require to approve the consent judgment.
4. Remediation of Property Prior to Transfer
(a) The State shall, at its sole expense, complete or cause to be
completed the following remediation work ("Remediation Work") at the Graving Dock
Property and Shotwell Landfill:
(i) Removal of all sheet piles existing on or within the Tribe
Parcel and the Marine Drive Parcel, together with all
construction materials. Removal shall include all sheet piles
installed on or near the "5-Line."
(ii) Removal of the concrete slab previously constructed on the
Tribe Parcel.
(iii) Transport to the Tribal and/or Marine Drive Parcel, as
designated by the Tribe, all native materials previously
removed from the Graving Dock Property and taken to the
Shotwell Landfill.
(b) The Tribe shall, at its own expense, provide monitors at the Graving
Dock Property and/or the Shotwell Landfill to (a) observe and identify any possible
impacts and damage to underlying material, archaeological resources, features, and
human remains and if such impacts or damage are identified, the parties shall follow the
applicable provisions of the amended Section 106 Memorandum of Agreement, and (b)
identify the materials at the Shotwell Landfill to be transported to the Tribal and/or
Marine Parcel. The State and the monitors will reasonably cooperate during the State's
performance of the Remediation Work. At least fourteen (14) days prior to
commencement of the Remediation Work, the Tribe shall provide the State with a
written notice identifying each monitor and his or her contact information.
(c) The parties acknowledge that specific permits and other approvals
will be necessary to complete the Remediation Work. The permits and approvals
include, but are not limited to, Amendment of Section 106 MOA, concurrence by DAHP,
U.S. Army Corps Section 404 permit, NEPA review, ESA consultation, Department of
Ecology NPDES permit, City of Port Angeles Shoreline permit, and City of Port Angeles
grading/demolition/haul permit. The parties recognize and agree that time is of the
-4-
essence in completing the Remediation Work. The State shall use its best efforts to
complete the Remediation Work no later than July 31,2008. Within sixty (60) days of
execution of this Agreement, the State and Tribe shall meet with federal, state, and local
agencies with jurisdiction over the Graving Dock Property and the Remediation Work to
discuss permit issues with a goal of achieving reburial of the human remains by the fall
of 2007.
(d) The State shall follow all applicable laws and regulations, including
the State's Standard Specifications for Road, Bridge, and Municipal Construction, in the
performance of the Remediation Work identified in Section 4(a). The State shall be
solely responsible for and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Remediation Work.
(e) The State shall use its best efforts to perform the Remediation
Work in a manner that minimizes damage to the underlying material, archaeological
resources, features, and human remains. During the removal of the sheet piles and
concrete slab, the areas shall be graded in accordance with the City of Port Angeles
grading permit. A list of equipment to be used for the Remediation Work is attached
hereto as Exhibit B.
(f) The State shall obtain all permits, licenses and other authorizations
and approvals necessary to complete the Remediation Work. The Tribe, upon request
from the State or other agency with jurisdiction, shall provide written support for the
State's applications for such permits, licenses, authorizations and approvals. The Tribe
hereby agrees not to require any additional investigations, terms or conditions upon the
Remediation Work.
(g) The State shall employ an inspector and necessary assistants who
shall be responsible for the Graving Dock Property during performance of the
Remediation Work. At least fourteen (14) days prior to commencement of the
Remediation Work, the State shall provide the Tribe with a written notice identifying the
inspector and his or her contact information. The inspector shall represent the State,
and decisions made by the inspector shall be as binding to the extent of his or her lawful
authority.
(h) Within thirty (30) days of execution of this Agreement, the State
shall begin to submit quarterly progress reports to the Tribe. During the time period that
work is being performed at the Graving Dock Property and/or the Shotwell Landfill, the
State shall provide progress reports every two weeks. The reports shall include, at a
minimum, the following components: (a) a summary of work performed since the prior
report; (b) a statement of any delays in the performance of work, includ ing an
explanation of such delays; (c) the measures taken or to be taken to address any
delays; and (d) any facts or events impacting any archaeological resources located at
the Graving Dock Property or the Shotwell Landfill. Any disputes regarding the
progress of the Remediation Work shall be subject to the dispute resolution provisions
of Section 15.
- 5 -
(i) The State shall notify the Tribe that all Remediation Work has been
performed in accordance with this Agreement by delivering to the Tribe an executed
certification in the form attached as Exhibit C.
5. Ground Lease for Marine Drive Parcel
(a) The State shall retain fee title of the Marine Drive Parcel, and lease
that parcel to the Tribe subject to the cultural and historical use restrictions identified in
Section 1 (b) herein. Furthermore, the use restrictions shall be effectuated through a
consultative process with the Tribe, City and Port.
(b) The State and Tribe shall execute a ground lease for the Marine
Drive Parcel, in a mutually agreeable form (the "Lease"), within fourteen (14) days after
the State certifies completion of all Remediation Work required under Section 4 above.
(c) Following execution of this Agreement and during the term of the
Lease, the State shall not take any action to encumber title to the Marine Drive Parcel.
Following execution of this Agreement and during the term of the Lease, the State may
transfer and assign the Marine Drive Parcel to any state or local agency of the State of
Washington, subject to the Lease with the Tribe.
(d) Within fourteen (14) days of execution of the Lease, the State shall
execute and record a memorandum of lease in a form to be agreed upon.
6. Time Period Prior to Transfer of Title and Lease
At all times preceding transfer of title and lease of the Graving Dock
Property:
(a) The State shall not encumber the property or commit waste
thereon.
(b) Following execution of the Agreement, the State may transfer fee
title to the Marine Drive Parcel from the Washington State Department of Transportation
to another state agency; provided that such transfer is subject to this Agreement.
(c) The State shall limit the activities of its employees, contractors or
other agents on the property to activities consistent with highway purposes, completion
of the Remediation Work, and obligations of this Agreement.
7. Occupation, Use, Protection, Control and Regulation of Tribal and
Marine Drive Parcels
(a) The parties agree that the Tribe will use the Tribe Parcel and the
Marine Drive Parcel exclusively for cultural and historic preservation purposes and that
it is the Tribe's intention that the Tribe Parcel be converted from fee to trust status. The
parties agree that if the Tribe Parcel is converted to trust status, the Tribe Parcel shall
remain subject to the use restrictions and reversionary interest set forth in Section 1
- 6 -
above. The State also acknowledges that it is the Tribe's intention that the Tribal and
Marine Drive Parcels be designated as a National Historic Site under the Historic Sites
Act of 1935 and other applicable federal laws, and added to the National Register of
Historic Places.
(b) It shall be the Tribe's responsibility to accomplish the goals set forth
in subparagraph (a), provided, however, that the State shall cooperate with and support
the Tribe in accomplishing these goals including, but not limited to, letters of support
from the Governor for the State of Washington.
(c) The State does not foresee any public purpose reason for
exercising public condemnation authority on the property described in Section 1 (to the
extent not acquired by the federal government in trust for the Tribe) and Section 5. The
State will cooperate with the Tribe's reasonable efforts to minimize any taxation of that
property, including but not limited to seeking tax exemptions and structuring of an entity
or entities that will own and/or lease the land.
8. Claims Against LAASIWSHS and Indemnification
(a) The Tribe shall negotiate in good faith to reach, within thirty (30)
days of the execution of this Agreement, a settlement of its existing claims against
Western Shores Heritage Service, Inc. ("WSHS") and Larson Anthropological and
Archaeological Services Limited ("LAAS") pending in the Litigation.
(b) If the Tribe has not reached a settlement with WSHS and/or LAAS
at the end of the thirty (30) day negotiation period or upon the entry of the Consent
Judgment, whichever is later, the State shall, upon the Tribe's written request, assign all
of its claims against WSHS and/or LAAS, as applicable, relating to or arising out of the
Project by executing and delivering to the Tribe the assignment document attached as
Exhibit D.
(c) The Tribe agrees to defend, indemnify and save harmless the State
and its officers, agents, employees, agencies and departments, or successors-in-
interests, both individually and in their representative capacities ("State"), regarding any
and all claims (whether sounding in contribution, indemnity, tort, contract, law or equity),
loss, damage, demand, suit, judgment and attorney's fees, and any other kind of
expense (collectively "claims") asserted by WSHS, LAAS, or any owner, employee,
successor or assign of those entities that derive from work performed by either entity on
the graving yard project; provided, however, the Tribe's obligations in this subsection
shall be limited to whatever amount the Tribe actually receives from WSHS and/or
LAAS, (or any owner, employee, successor or assign of those entities). The Tribe
acknowledges that this indemnification and hold harmless clause is a material term of
this Agreement. If a claim covered by this subsection is asserted against the State, the
Tribe will provide appropriate assurances to ensure that it will fulfill the obligations set
forth in this subsection. If the Tribe fails to supply such assurances, the parties shall
direct the escrow agent to withhold a sufficient amount from the payment required by
Section 2 to provide security to the State. The Tribe further agrees that in any judgment,
- 7 -
settlement or release agreement with WSHS and/or LAAS, the Tribe shall include a
provision in which WSHS and/or LAAS fully releases and dismisses any claims it has or
may have against the State that arise from, relate to or underlie the facts, allegations,
and/or claims articulated in the Lawsuit.
9. Possession of Archaeological Resources
(a) Consistent with WAC 25-48-060(2) and (4) and the State's
obligations under the National Historic Preservation Act and rules adopted thereunder,
archaeological resources previously removed from the Port Parcel by the State or its
agents shall remain in the possession of the State and under the control of the Burke
Museum at the University of Washington until such time as the Tribe has arranged for or
identified an alternate approved curation facility.
(b) An "alternate approved curation facility" means a facility other than
the Burke Museum that has been approved as (1) having the capacity to curate the
archaeological resources and (2) meeting the Secretary of the Interior's applicable
standards for archaeological curation in 36 CFR Part 79. For purposes of this
Agreement, the determination whether a facility satisfies the criteria to be designated as
an "alternate approved curation facility" facility shall be made by a qualified person
jointly selected and designated by the Tribe and the Washington State Department of
Archaeology and Historic Preservation.
(c) Once an alternative curation facility has been approved, the Tribe
may, at its discretion, request in writing that the State transfer possession and control to
the Tribe, for permanent curation at the alternate approved curation facility, of all
archaeological resources that the State or its agents have removed from the Port Parcel
and continue to hold, or to have arranged for the holding thereof, on behalf of the Tribe.
(d) As soon as possible after receiving the Tribe's written request to
transfer possession of archaeological resources, the State shall notify the Burke
Museum that the Tribe has the State's permission to deliver, or cause to be delivered, to
the alternative approved curation facility the archaeological resources removed from the
Port Parcel and in the State's possession or control.
(e) The Tribe shall ensure that the alternative approved curation facility
continues to comply with all applicable Secretary of the Interior's standards for
archaeological curation in 36 CFR Part 79, including specifically 36 CFR 79.9 and 36
CFR 79.10, which requires that curated materials be made available for scientific,
educational, and religious uses.
10. Allocation of Liabilities/Indemnification - State
(a) The State shall be solely responsible for all liabilities connected to
the Graving Dock Property relating to:
(i) Performance of the Remediation Work by the State or its
contractors; provided, however, that while the State
- 8 -
acknowledges duties to federal, state, and local agencies
that have jurisdiction over performance of the Remediation
Work, the State shall not be liable to the Tribe and all
Plaintiffs for impacts to the underlying material,
archaeological resources, features, or human remains due to
the effects of vibration, site disturbance, noise, and other
related activities associated with conducting the Remediation
Work nor liable for any Tribal employees or agents present
during any of the Remediation Work to the extent the
Remediation Work is conducted in accordance with the
amended Section 106 Agreement and the applicable
provisions of this Agreement; and
(ii) Tribal members' past exposure to dioxin, if any, present at
the Graving Dock Property while performing services for the
graving dock project; provided, however, the State reserves
all rights and defenses, including but not limited to,
contesting liability for exposure to dioxin and the statute of
limitations.
(iii) Claims, causes of action, or liens of third parties (other than
those covered by Section 8.c herein) related to the Graving
Dock property occurring or arising prior to transfer of title to
the Tribe Parcel and/or leasing of the Marine Parcel.
(collectively "State Liabilities").
(b) Except as provided otherwise in Section 1 O( a)(i) above, the State
shall defend, indemnify and save harmless the Tribe and the Tribe's members,
authorized agents and employees of any of them from every claim, risk, loss, damage,
demand, suit, judgment and attorney's fees, and any other kind of expense arising out
of injury to or death of any and all persons, or arising out of property damage of any
kind, whether tangible or intangible, or loss of use resulting therefrom, arising out of or
in any manner connected with the State Liabilities. This obligation shall not include
such claims, risk, loss, damage, demand, suit, judgment, fees, or expenses (collectively
"claims") which may be caused by the sole negligence of the Tribe, Tribe's members, or
its authorized agents or employees; provided, that if the claims are caused by or result
from the concurrent negligence of (a) the State, its officers, authorized agents or
employees and (b) the Tribe, its members, authorized agents or employees, or involves
those actions covered by RCW 4.24.115, this indemnity provision shall be valid and
enforceable only to the extent of the negligence of the State, its officers, authorized
agents or employees.
- 9 -
11. Allocation of Liabilities/Indemnification - Tribe
(a) The Tribe shall be solely responsible for all liabilities connected to
the Graving Dock Property and Shotwell Landfill relating to:
(i) Monitoring activities conducted by the Tribe, its members,
employees or authorized agents associated with the
Remediation Work;
(ii) Facts or events occurring or arising after transfer of title to
the Tribe Parcel to the Tribe and/or the leasing of the Marine
Parcel to the Tribe; and
(iii) Any and all claims arising out of the events or allegations
described in the Tribes' Lawsuit by individual tribal members
(not including dioxin claims), lien claims, and subrogation
claims by insurance carriers.
(collectively "Tribe Liabilities").
(b) The Tribe shall defend, indemnify and save harmless the State and
its officers, agents, employees, agencies and departments, both individually and in their
representative capacities from every claim, risk, loss, damage, demand, suit, judgment
and attorney's fees, and any other kind of expense arising out the Tribe's breach of
obligations under this Agreement and/or the Tribe's negligence that arises out of or is in
any manner connected with the Tribe Liabilities. With respect to the Tribe Liabilities
listed in Section 11 (a)(i-ii), this obligation shall not include such claims, risk, loss,
damage, demand, suit, judgment, fees, or expenses (collectively "claims") which may be
caused by the sole negligence of the State, or its authorized agents or employees;
provided, that if the claims are caused by or result from the concurrent negligence of (a)
the STATE, its officers, authorized agents or employees and (b) the Tribe, its members,
authorized agents or employees, or involves those actions covered by RCW 4.24.115,
this indemnity provision shall be valid and enforceable only to the extent of the
negligence of the Tribe, its members, authorized agents or employees.
12. Release of Existing and Future Claims Relating to Tse whit zen
(a) It is the intention of the State and the Tribe that this Agreement will
definitively settle and resolve all claims the Tribe has asserted or could have asserted
against the State, its employees and agents and the State has asserted or could have
asserted against the Tribe in the Litigation and that the State will not have any further
liability to the Tribe or its members for the disturbance or damage to Tse whit zen;
provided, however, that this Agreement is not intended to release or affect any claims
that individual Tribal members may have against the State arising out of or resulting
from their past exposure to dioxin, if any, present at the Graving Dock Property while
performing services for the graving dock project.
- 10-
(b) Subject to the State's performance of the obligations set forth in this
Agreement, the Tribe, Carmen Watson-Charles, Arlene Wheeler, and Arnold "Robert"
Elofson, individually and on behalf of all others similarly situated for themselves, their
heirs, successors and assigns, hereby completely release and forever discharge the
State and its officers, agents, employees, agencies and departments, both individually
and in their representative capacities, including but not limited to the State Department
of Transportation and its Secretary Douglas B. MacDonald and the Department of
Archaeology and Historic Preservation and its Historic Preservation Officer Allyson
Brooks from any and all claims, demands, actions, suits, liability, loss, damages,
obligations, costs (including payment of attorney fees), and expenses of any kind or
nature, that the Tribe and all other Plaintiffs asserted or could have asserted (whether
known or unknown) that arise from, relate to or underlie the facts, allegations, and/or
claims articulated in the Lawsuit or that might be cognizable before any federal or state
agency, or any other court.
(c) Subject to the State's performance of the obligations set forth in this
Agreement, the Tribe, Carmen Watson-Charles, Arlene Wheeler, and Arnold "Robert"
Elofson, individually and on behalf of all others similarly situated for themselves, their
heirs, successors and assigns, hereby completely release and forever discharge Peter
Kiewitt Sons, Inc., Kiewit Pacific Co., General Construction Co., Jonathan Shotwell
Corporation, Fields Shotwell Corporation, and Platinum C Limited Partnership, and its
officers, agents, and employees, from any and all claims, demands, actions, suits,
liability, loss, damages, obligations, costs (including payment of attorney fees), and
expenses of any kind or nature, that the Tribe and all other Plaintiffs asserted or could
have asserted (whether known or unknown) that arise from, relate to or underlie the
facts, allegations, and/or claims articulated in the Lawsuit or that might be cognizable
before any federal or state agency, or any other court.
(d) Subsections (b) and (c) above do not extend to any claims that
individual Tribal members may have arising out of or resulting from their past exposure
to dioxin, if any, present at the Graving Dock Property while performing services for the
graving dock project.
(e) Subject to the Tribe's performance of the obligations set forth in this
Agreement, the State completely releases and forever discharges the Tribe and all of its
members, officers, agents, employees, both individually and in their representative
capacities, including but not limited to Chairwoman Frances Charles, from any and all
claims, demands, actions, suits, liability, loss, damages, obligations, costs (including
payment of attorney fees), and expenses of any kind or nature, that the State asserted
or could have asserted (whether known or unknown) that arise from, relate to or
underlie the facts, allegations, and/or claims articulated in the Lawsuit or that might be
cognizable before any federal or state agency, or any other court.
13. Default/Remedies
(a) Injunctive Relief. The parties each shall be entitled to seek
injunctive relief in the event that the other materially breaches its obligations under this
- 11 -
Agreement. The parties acknowledge that a material breach of this Agreement could
result in irreparable harm to the other party such that monetary relief will be insufficient
compensation and that injunctive relief is necessary and appropriate to give meaning to
this Agreement and protect the parties' respective rights and interests.
(b) Multiple Remedies/ Other Remedies. The parties' rights and
remedies in event of a material breach of this Agreement are not exclusive. A party's
exercise of one remedy is not an election of remedies. The remedies specified in this
Agreement are in addition to, and not in place of, all remedies that may be available to
the parties at law or in equity.
(c) Limited Waiver of Sovereign Immunity. Except to the extent
expressly set forth herein, the terms of this Agreement do not constitute a waiver of
sovereign immunity by the Tribe or the State, and any such waiver is and shall be
deemed to be only a limited waiver. The terms of the Tribe's and State's respective
limited waivers of sovereign immunity, furthermore, shall be strictly construed and not
liberally construed, and shall not provide any rights to any person or entity that has not
signed this Agreement. The Tribe and State expressly agree to waive any claim of
sovereign immunity solely for the purposes of allowing the other Party to enforce the
terms of this Agreement in Thurston County Superior Court. This sovereign immunity
waiver shall be effective only during the period of time that this Agreement is in effect.
14. Miscellaneous
(a) Entire Agreement. This Agreement, together with exhibits and the
Settlement Agreement, contains the entire agreement and understanding of the parties
with respect to the entire subject matter hereof, and there are no representations,
inducements, promises or agreements, oral or otherwise, not embodied herein. Any
and all prior discussions, negotiations, commitments and understandings relating
thereto are merged herein. There are no conditions precedent to the effectiveness of
this Agreement other than as stated herein, and there are no related collateral
agreements existing between the parties that are not referenced herein. To the extent
there is any inconsistency between this Agreement and any of the attached exhibits,
this Agreement shall control.
(b) Prior Agreements Preserved. This Agreement does not
constitute an alteration, waiver or amendment of any term or provision of the Section
106 Memorandum of Agreement (including the Site Treatment Plan) or the Settlement
Agreement and Release dated March 16, 2004; provided however, both the State and
Tribe hereby commit to amend the Memorandum of Agreement in coordination with the
Federal Highway Administration and U.S. Army Corps of Engineers in order to satisfy all
outstanding Section 106 requirements associated with the graving yard project. It is the
parties' intention that the amendment to the Memorandum of Agreement be in
conformance with this Agreement.
(c) Amendment and/or Modification. Neither this Agreement nor any
term or provision hereof may be changed, waived, discharged, amended, modified or
- 12 -
terminated orally, or in any manner other than by an instrument in writing signed by all
of the parties hereto.
(d) Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed immediately effective when
(i) delivered personally, (ii) sent by a nationally recognized same day or overnight
courier service, (iii) sent by certified United States Mail with first class postage prepaid
and return receipt requested, or (iv) sent by equipment that transmits a facsimile with a
printed confirmation page showing receipt of all pages. In each case, the notice or
other communication shall be addressed to the affected party or parties at the
addresses set forth below, or to such other address as the parties may hereafter
designate in writing:
If to State of Washington:
Allyson Brooks, Ph.D.
State Historic Preservation Officer
Department of Archaeology and Historic
Preservation
1063 S. Capitol Way, Suite 106
P.O. Box 48343
Olympia, WA 98502
Phone: (360) 586-3065
Fax: (360) 586-3067
Email: Allyson.Brooks@DAHP.WA.GOV
With a copy to:
Steve E. Dietrich
Office of the Attorney General
Transportation & Public Construction
Division
P. O. Box 40113
Olympia, WA 98504-0113
Phone: 360.753.6126
Fax: 360.586.6847
Email: SteveD@atg.wa.gov
Randy Hain
Regional Administrator
Washington State Department of
Transportation
5720 Capitol Boulevard South
Tumwater, W A 98501
Phone: 360-357-2605
Fax: 360-357-2601
Email: HainR@wsdot.wa.gov
Alan D. Copsey
Office of the Attorney General
Agriculture and Health Division
P. O. Box 40109
Olympia, WA 98504-0109
Phone: 360.664.4967
Fax: 360.586.3564
Email: AlanC@atg.wa.gov
- 13 -
If to Lower Elwha Klallam Tribe:
Frances Charles
Tribal Chairperson
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angles, W A 98363
Phone: 360.452.8471
Fax: 360.452.3428
Email: elwha-council@elwha.nsn.us
John H. Miller
Executive Director
Lower Elwha Klallam Tribe
2851 Lower Elwha Road
Port Angeles, W A 98363
Phone: 360.452.8471
Fax: 360.452.3428
Email: jmiller@elwha.nsn.us
With a copy to:
Gabriel S. Galanda
Williams, Kastner & Gibbs PLLC
601 Union Street, Suite 4100
Seattle, WA 98101-2380
Phone: 206.628.6600
Fax: 206.628.6611
Email: ggalanda@wkg.com
(e) Any lawsuit to enforce this Agreement shall be filed in Thurston
County Superior Court.
(f) This Agreement shall be governed by applicable law.
(g) Costs and Attorneys' Fees. If any party hereto shall bring any
suit, arbitration or action against another for relief, declaratory or otherwise, arising out
of this Agreement, the prevailing party shall have and recover against the other party, in
addition to all court costs and disbursements, such sum as the court may adjudge to be
a reasonable attorney's fee. The parties hereby agree to bear all their own fees and
costs associated with the Lawsuit through the date of entry of the Consent Judgment.
(h) Interpretation and Authorization. The Tribe and the State
acknowledge that the terms of this Agreement were reached after government-to-
government consultations and have been reviewed by and discussed with respective
counsel for each of the Parties. The Parties further agree that this Agreement shall not
be construed in favor of or against any Party. The undersigned warrant and represent
that they have complete and proper authority to execute this Agreement on behalf of
their Party, that they have read this Agreement and understand its contents, and that
any and all necessary minutes and resolutions authorizing the Parties to enter into this
Agreement and to undertake the actions, terms, conditions, and covenants thereof have
been duly made and approved. The Lower Elwha Klallam Tribal Council has, by Tribal
Council Resolution, authorized its Tribal Chairperson, France Charles, to sign this
- 14-
Agreement and any and all documents necessary to its implementation which resolution
is attached hereto as Exhibit E and incorporated herein by this reference.
(i) Admission of Liability. This Agreement is a compromise of
disputed claims between the parties and is the product of serious and extended
negotiations. The parties' entry into this Agreement is a result of compromise and does
not constitute an admission of liability. The parties agree that this Agreement shall have
no precedential value for any other matters or lawsuits.
15. Dispute Resolution
(a) The Parties agree that they shall attempt to resolve any dispute
arising under this Agreement according to the following sequence of dispute resolution
measures, until the dispute is finally resolved: (1) government-to-government
consultation between the Tribal Chair and the designated representative of the State
and (2) mediation between the State and Tribe facilitated by John Bickerman or some
other mediator to be mutually agreed upon by the Parties.
(b) If the measures in Section 15(a) do not result in final resolution of
the dispute, any party may take such legal action as they deem appropriate. The
Thurston County Superior Court will retain jurisdiction to enforce the terms of this
Agreement. In the event any Party is required by the Thurston County Superior Court to
file a new cause of action to enforce the terms of this Agreement, the Parties hereby
waive sovereign immunity and consent to be sued to the extent necessary for such an
action to proceed in the Thurston County Superior Court.
STATE OF WASHINGTON
By:
Christine O. Gregoire
Its Governor
LOWER ELWHA KLALLAM TRIBE
By: -:J~~ ~ .~
Frances Charles
Its Tribal Chairperson
- 15 -
By:~h&-b.
Carmen Watson-Charles
Plaintiff
BY~~~
ne Wheeler
Plaintiff
By: ~, tzA;;t ~
Arnold "Robert" Elofson
Plaintiff
- 16 -
STATE OF WASHINGTON
COUNTY OF CLALLAM
)
) ss.
)
On this day personally appeared before me Christine O. Gregoire, to me known
to be the Governor for the STATE OF WASHINGTON, the governmental entity that
executed the foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of the State of Washington, for the uses and purposes
therein mentioned, and on oath stated that she was authorized to execute the same
instrument.
GIVEN under my hand and official seal this 14+Y day of August, 2006.
\\\\\I\lll"'"",~
~",,~. l.US8.!"~
~~'{o ~~''i'S
~ ::s"'" ..1 r" ...
i~I"!Ii .\
"C) . .....,
= ! 4t""""
! i.. ~ ~
\ \. ",..+ 11.1
~ .... """"-' ~~ ...
~ ...~ r. .,....
~l'4,............ ~'i
~IIII E O. ~~
II"'I/III""'\\~
STATE OF WASHINGTON
COUNTY OF CLALLAM
Lusb
(print notary's na )
Notary Public in and fQr the State of Washington,
residing at ~e..Q U , I'Y\
My commission expires:
::D,q
10 I.;}. q / oJ 007
, I
)
) ss.
)
On this day personally appeared before me Frances Charles, to me known to be
the Tribal Chairperson for the LOWER ELWHA KLALLAM TRIBE, a federally-
recognized sovereign Indian tribe, the entity that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said
Tribe, for the uses and purposes therein mentioned, and on oath stated that she was
authorized to execute the same instrument.
GIVEN under my hand and official seal this / ++Y day of August, 2006.
:\\\\'\\"'''''"'II/.
~\~ f\. L(J. "'.11
~t~............~~tr.
~........-~. :so ,.. w
~~ ..- '..
! f~ ..',.... '")
I: ~
\ \ 'UI\.f, /_
~. .A . .-..
~ '~"'~ _ ~i.s'
~ "J.... . C1h.' ..
~ ~'t ............t.~~
II1111 0' W~.:\~
II """"""\\\~
jV~a~O- c~~
=v,' f'\a. ~ Lu {d-
(print notary's me)
Notary Public in and for the State of Washington,
residing at ~ ~~ ; ""
My commission exrJires: I (:) 1:2. q /.:t 007
- 17 -
STATE OF WASHINGTON
COUNTY OF CLALLAM
)
) ss.
)
On this day personally appeared before me Arlene Wheeler, to me known to be
the individual who executed the foregoing instrument, and acknowledged that she
signed the same as her free and voluntary act and deed, for the uses and purposes
therein mentioned.
GIVEN under my hand and official seal this 14- -l-iy day of August, 2006.
~\"''''"'''''III.
~~" ~'t
~iii~(~~~
I .'~.. ~ ~
I ,~1
\1~~~. 1
\~... . ~ IIf. ..
~ 4t"................
~/ft "
.~
STATE OF WASHINGTON
COUNTY OF CLALLAM
~~~~; ~~~
(print notary's na e)
Notary Public in and fO,r the State of Washington,
residing at 5ell\ u ,(h
My commission expires: /0 I d-.q /.;Ldol
)
) ss.
)
On this day personally appeared before me Carmen Watson-Charles, to me
known to be the individual who executed the foregoing instrument, and acknowledged
that she signed the same as her free and voluntary act and deed, for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this 14-11y day of August, 2006.
Lc.J$
(print notary' ame)
Notary Public in and fQr the State of Washington,
residing at ..s-~t u un
My commission expires: , c / ~ '\ / :.tool
- 18 -
STATE OF WASHINGTON
)
) ss.
)
COUNTY OF CLALLAM
On this day personally appeared before me Arnold "Robert" Elofson, to me
known to be the individual who executed the foregoing instrument, and acknowledged
that he signed the same as his free and voluntary act and deed, for the uses and
purposes therein mentioned.
GIVEN under my hand and official seal this (4+1.-/ day of August, 2006.
~~"'"Uf"'II/1.
~ ~ "'''~
l~'~~1"!~\
! ...~- ~~l
i ~~ /.
\~\ ....&IC
\~.~ , .
~ AI '" ~ 1IlS!...
~Ij'" ......~.....
1'/'"""",
U. Lo-. 7
=:u ~l\ K Lu5b
(print notary' name)
Notary Public in and for the State of Washington,
residing at 5" .e.q UI rY'\
My commission expires: 10 (~l\ /:)..001
- 19 -
"-
SfOAtWA TEA: TREa INERT PONDS C TYP. I
~
.tl'~
"..
Iff..~
11:'1"
~,.d
~~*'
~
~tc
='"
l
~
~.
"~
FILE ,,_
TINE
DATE
PlOTTED ST
DESIGNED ST
ENTERED ST
CHEC~ED ST
PROJ. ENGR.
R€C! ON.ll. ADM.
ST
~
"Lit_ur
---om--
~~ SlUt FED4AID PROJ.N(l.
10 WAS'l
......
W
Washington Slale
Department of Transportation
".-
toItll.ItflllD.
l"otAflOlt.o.
R(1/(SION
OAl::
m
.-'
.
~
>
SHEET PILE CODES
6 PILE rypt tiP EI.EvAttON PILE WIOTte
I AZ 48 "0 45.63 .
2 .42 48 -58 45.63
3 Al 48 -54 <l$.G3
0 AZ 48 '5~.S 4~.G3'
5 AZ 48 '50 45.'63 .
6 AZ 48 -30 -'5.63
I A2 36 "0 ".55
. AZ 36 -66 ''3.55''
, Al ~& -6' 49.55
10 "-36 -62 49.55"
II AZ 36 -58 4'.55'
12 AZ 36 '43 TO '56 49.55
13 At 36 -53.5 4~.55
" A2 36 -.. 49.55
15 A2 36 -30 TO -44 4'3.55'
,. A! 36- -4l.5 49.55
" AZ 36 -AJ 4'9. 50S
1. AZ 36 -2' 49.55-
" Al 36 -6 ra -48 49.55'
", 20 PI <40 -10 39.250'
2. PZ 40 -0' J 39.2'5"
zz PZ 21 -30 36_00'
23 PZ 21 -IS 36.00
,. PI 21 oS TO -15 36..00'
2S PI 22 -35 04.00"
2' PZ 22 -IT .:i4.00"
27 PZ 2Z -16 TO-17 44.00
PIP€: -6' 2 OIAM.
LEGEND
:.: INLET
.. CATCH BASIN
., MANHOLE
Q) DRAINAGE STRUCiURE CODE
.~ I-:-~~--~ 2'DIAM, PIPE PILE
'2 SHEET PILE CODE
4;;; SHEET PilE
'" PROPERTY LINE
STORM SEwER
-UD-- UNDERDRA I N Ll NE
FENCE
CONCREiE SLAB
BEARINGS AND DISTANCES ARE INFORMATIO~Al
ONl Y. SEE THE PORT ANGELES CRAVING DOCK
SITE SUNDRY SITE PLAN FOR MORE
INFORMATION AND 'CCUR.CY.
--J. ~~. ~
-:)\~t~ '?
PROJECT DATUM
NAVe 88
o so too
SC.ll..E IN FEET
PORT ANGELES GRAVING DOCK
TSE-WHIT-ZEN VILlAGE SITE
CITY OF PORT ANGELES
ClAUAM COUNlY, WA
AS BUilT EXHIBIT
,_p]:qfJ -
<J
EC"
';~
1-S:
~ir
trJ'"
..J
..,-
1
~
Equipment List
Pile Removal
225 ton (or larger) crawler cranes with vibratory hammer
Forklifts
Trailer mounted plasma cutters
Manlifts
Semi trucks with flatbed trailers
Service Trucks
Concrete Slab Removal
Excavators with hoe-ram
Dozer
Loader with 6yd bucket
Grader
Roller
Watertruck
Service Trucks
Dump trucks with trailers
Shotwell Midden
Dump trucks with trailers
Grader or pushcat
Roller
Loader
~"'~'J;l Jj I' .;0; If'I''''' i2..
~~}~ ~~~~~j ~~ V
CERTIFICATE OF COMPLETION
Pursuant to Section 4 of the Settlement Agreement dated August 14, 2006, the
State of Washington hereby makes the following certification to the Lower Elwha
Klallam Tribe:
1. All sheet piles previously constructed at the Graving Dock Property
(excepting only those located on the property leased from the Department of Natural
Resources) have been removed from the property.
2. The concrete slab previously constructed at the Graving Dock Property
has been removed from the property.
3. All debris and spoils resulting from the removal of the sheet piles and
concrete slab has been removed from the Graving Dock Property.
4. All work related to the removal of the sheet piles and concrete slab has
been performed in accordance with the terms of the Settlement Agreement, the
amended Section 106 Agreement, and applicable permits.
5. The State is aware of no unsafe condition existing on the Graving Dock
Property resulting from the removal of the sheet piles and concrete slab.
6. To the best of the State's knowledge, after reasonable inquiry, all native
materials (as identified by Tribal monitors) taken previously transported from the
Graving Dock Property to the Shotwell Landfill, has been returned to the Graving Dock
Property to the location( s) designated by the Tribe.
DATED this
day of
,200__
STATE OF WASHINGTON
By:
Its
- 1 -
E,.~'t'\ ~I ii' B "r
~-, ,~ \....q '4 ,. ~, ,
>o.i!! ""'" ,~ ,'1 - 'II
~)
STATE OF WASHINGTON
COUNTY OF
)
) ss.
)
On this day personally appeared before me
to me known to be the of the STATE OF
WASHINGTON, the governmental entity that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said
governmental entity, for the uses and purposes therein mentioned, and on oath stated
that he was authorized to execute the same instrument.
GIVEN under my hand and official seal this
day of
200
(print notary's name)
Notary Public in and for the State of Washington,
residing at
My commission expires:
- 2 -
ASSIGNMENT OF All CLAIMS
This Assignment is entered into this _ day of , 2006, by the
State of Washington ("Assignor") in favor of the Lower Elwha Klallam Tribe ("Assignee").
By executing this Assignment, and subject to and in consideration for the mutual
promises set forth in the Settlement Agreement dated August 14, 2006 between
Assignor and Assignee, Assignor hereby assigns to Assignee all of its right, title and
interest in any and all claims against archaeologist Lynn Larson, Larson Anthropological
and Archaeological Services Limited, archaeologist Glen Hartman, and Western Shore
Heritage Service, Inc. in any way related to or arising out of the Port Angeles Graving
Dock project that is the subject of litigation pending in Thurston County Superior Court,
Lower Elwha Klallam Tribe 6t al v. State et ai, Cause No. 05-2-01595-8.
DATED this
day of
,2006.
STATE OF WASHINGTON
By:
Its
EXJf.~iarr D