HomeMy WebLinkAbout4361 Resolution - WWTP PH 2A DNR Temp Aquatic Agmt ROE EasementRESOLUTION NO.4361
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE CITY MANAGER TO SIGN AND EXECUTE THE
AQUATIC LANDS RIGHT OF ENTRY NO. 23-104550 AND AQUATIC
LANDS EASEMENT NO. 51-104551 WITH THE STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES FOR THE CONSTRUCTION OF
THE WASTEWATER TREATMENT PLANT IMPROVEMENTS PHASE 2B
OUTFALL PIPE PROJECT.
WHEREAS, the City of Pasco (City) desires to install a new 42-inch diameter wastewater
treatment plant outfall pipe within the Columbia River, remove the existing 24-inch diameter
outfall pipe, perform associated riverbed restoration, and construct other appurtenances as
necessary to complete the project; and
WHEREAS, the proposed improvements are partially located within aquatic lands owned
by the State of Washington (State); and
WHEREAS, the State, acting through the Department of Natural Resources (DNR),
requires a right of entry agreement and temporary easement to permit access to State owned aquatic
lands within the Columbia River during the construction of said improvements; and
WHEREAS, the City applied for a right of entry and temporary easement and received
approval from the DNR to construct said improvements; and
WHEREAS, the fee associated with Aquatic Lands Right of Entry No. 23-104550 is
$3,000.00 and the fee associated with Aquatic Lands Easement No. 51-104551 is $1,870.00; and
WHEREAS, the City and its consultants consider this a reasonable value and a prudent
use of public resources.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
That the City Manager of the City of Pasco, Washington, is hereby authorized, empowered,
and directed to sign and execute the Aquatic Lands Right of Entry No. 23-104550 and the Aquatic
Lands Easement No. 51-104551 with the State of Washington Department of Natural Resources
in substantially the same form as copies attached hereto and incorporated herein by this reference
as Exhibit A and Exhibit B; and to make minor substantive changes as necessary to execute the
documents.
Be It Further Resolved that this Resolution shall take effect and be in full force
immediately upon passage by the City Council.
Resolution WWTP-DNR ROE & Easement for PH 2A- 1
PASSED by the City Council of the City of Pasco, Washington, on this 17th day of July,
2023.
Blanche Barajas
Mayor
ATTEST:
Debra Barham, CMC
City Clerk
Resolution WWTP-DNR ROE & Easement for PH 2A- 2
APPROVED AS TO FORM:
Kerr Wttomeys
Law, PLLC
EXHIBIT A
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
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AQUATIC LANDS RIGHT OF ENTRY
Right of Entry No. 23-104550
THIS RIGHT OF ENTRY is made by and between the STATE OF WASHINGTON, acting
through the Department of Natural Resources ("State"), and and CITY OF PASCO, a
government agency ("Licensee").
THE Parties agree as follows:
SECTION 1 GRANT OF PERMISSION
1.1 Permission. Subject to the terms and conditions set forth below, State grants Licensee a
revocable, nonexclusive license to enter upon the real property described in Exhibit A (the
"Property"). In this agreement, the term "Right of Entry" means this agreement and the rights
granted. By issuance of this Right of Entry, State is conferring the privilege of use of the
Property, and State expressly retains exclusive possession of the Property.
1.2 Other Interests and Rights. This Right of Entry is subject to all valid interests of third
parties noted in the records of Franklin County, or on file in the Office of the Commissioner of
Public Lands, Olympia, Washington. Licensee is responsible for obtaining approvals from other
persons, if any, who have an interest in the Property. This Right of Entry is subject to the rights
of the public under the Public Trust Doctrine or federal navigation servitude, and treaty rights of
Indian Tribes.
1.3 Condition of Property. Licensee has inspected the Property and accepts it in its present
condition. State has no obligation to make any repairs, additions, or improvements to the
Property. State makes no representation regarding the condition of the Property or the suitability
of the Property for Licensee's intended use. State expressly disclaims any warranty that the
Property is suitable for Licensee's intended use.
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THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
SECTION 2 USE
2.1 Authorized Activities. Licensee shall enter the Property only for the purpose of
conducting the activities described in Exhibit B (the "Activities") and for no other purpose.
Exhibit B also includes details about the Property. Licensee shall not conduct any other activities
on the Property without the prior written permission of State.
2.2 Restrictions on Activities. The following limitations and requirements apply to the
Property and adjacent state-owned aquatic lands. Licensee's compliance with the following does
not limit Licensee's liability under any other provision of this Right of Entry. Exhibit B also
includes additional obligations and requirements on Licensee.
(a) Licensee shall not cause or permit:
(1) Damage to land or natural resources, except to the extent expressly
permitted in Exhibit B;
(2) Waste; or
(3) Deposit of material, unless approved by State in writing and except to the
extent expressly permitted in Exhibit B. This prohibition includes deposit
of fill, rock, earth, ballast, wood waste, refuse, garbage, waste matter,
pollutants of any type, or other matter.
(b) Nothing in this License shall be interpreted as an authorization to dredge the
Property.
(c) Licensee shall immediately notify State if Licensee breaches any of the
requirements of Paragraph 2.2 or Exhibit B.
(d) Licensee shall, at Licensee's sole expense, be responsible for promptly remedying
any damages caused by Licensee, the Activities, or Licensee's failure to comply
with the requirements of Paragraph 2.2 or Exhibit B, except to the extent
expressly permitted in Exhibit B. Licensee shall remedy any damages in
accordance with a plan approved by State. Nothing in this paragraph shall prevent
State from taking steps to remedy any damages caused by Licensee, the
Activities, or Licensee's failure to comply with the requirements of Paragraph 2.2
or Exhibit B. If State takes such remedial actions, upon demand by State,
Licensee shall pay all remedial costs, restoration costs, and natural resources
damages.
2.3 Conformance with Laws. Licensee shall, at all times, keep current and comply with all
conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and
other government rules and regulations regarding its Activities on the Property.
2.4 Interference with Other Uses.
(a) Licensee shall conduct the Activities authorized in this Right of Entry in a manner
that minimizes or avoids interference with the rights of State, the public, or others
with valid right to use or occupy the Property or surrounding lands and water.
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THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
(b) Licensee and its agents, contractors, and subcontractors shall provide State with at
least two (2) weeks' notice before commencing any Activities. Licensee shall
promptly notify State of any modifications in the schedule.
2.5 Licensee's Contractors. Acts or omissions of Licensee's contractors operating under
this Right of Entry shall be deemed an act of the Licensee. Restrictions and/or requirements
placed on the Licensee herein shall apply equally to Licensee's contractors.
SECTION 3 TERM
3.1 Term Defined. This Right of Entry commences on the 1st day of July, 2022 ("
Commencement Date"), and terminates on the 30th day of June, 2027 (the "Termination Date"),
unless terminated sooner under the terms of this Right of Entry.
3.2 End of Term. Upon termination of this Right of Entry and except as otherwise provided
in Exhibit B, Licensee shall restore the Property to a condition substantially like its natural state
before Licensee's Activities. Licensee's restoration shall be in accordance with a plan approved
by State.
3.3 Disposition of Personal Property.
(a) "Personal Property" means items that can be removed from the Property without
(1) injury to the Property, adjacent state-owned aquatic lands, or Improvements,
or (2) diminishing the value or utility of the Property, adjacent state-owned
aquatic lands, or Improvements.
(b) Licensee retains ownership of Personal Property unless Licensee and State agree
otherwise in writing.
(c) Licensee shall remove Personal Property from the Property by the termination of
this Right of Entry. Licensee is liable for damage to the Property and
Improvements resulting from removal of Personal Property.
(d) State may sell or dispose of all Personal Property left on the Property after the
termination of this Right of Entry.
(1) If State conducts a sale of Personal Property, State shall first apply
proceeds to State's costs of removing the Personal Property, State's costs
in conducting the sale, and any other payment due from Licensee to State.
State shall pay the remainder, if any, to the Licensee. Licensee shall be
liable for any costs of removing the Personal Property and any costs of
conducting the sale that exceed the proceeds received by State.
(2) If State disposes of Personal Property, Licensee shall pay for the cost of
removal and disposal.
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COrnme W (GS(l): Tenn start date will be determined closer
to execution date.
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
SECTION 4 FEE
Licensee shall pay to State a fee in the amount of Three Thousand Dollars ($3,000.00), which is
due and payable on or before the Commencement Date.
SECTION 5 ENVIRONMENTAL LIABILITY
5.1 Definitions.
(a) "Hazardous Substance" means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup, including oil and petroleum products.
(b) "Release or threatened release of Hazardous Substance" means a release or
threatened release as defined under any law described in Paragraph 5.1(a).
(c) "Utmost care" means such a degree of care as would be exercised by a very
careful, prudent, and competent person under the same or similar circumstances;
the standard of care applicable under the Washington State Model Toxics Control
Act ("MTCA"), Chapter 70A.305 RCW.
(d) "Licensee and affiliates" when used in this Section 5 means Licensee or
Licensee's contractors, agents, employees, guests, invitees, licensees, affiliates, or
any person on the Property with the Licensee's permission.
(e) "Liabilities" as used in this Section 5 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
5.2 General Conditions.
(a) Licensee's obligations under this Section 5 extend to the area in, on, under, or
above:
(1) The Property; and
(2) Adjacent state-owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
(1) Licensee shall exercise the utmost care with respect to Hazardous
Substances.
(2) Licensee shall exercise utmost care for the foreseeable acts or omissions
of third parties with respect to Hazardous Substances, and the foreseeable
consequences of those acts or omissions, to the extent required to establish
a viable, third -party defense under the law.
5.3 Current Conditions and Duty to Investigate. State makes no representation about the
condition of the Property or adjacent state-owned aquatic lands. Hazardous Substances may exist
in, on, under, or above the Property.
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THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
5.4 Use of Hazardous Substances.
(a) Licensee and its affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws.
(b) Licensee shall not undertake, or allow others to undertake by Licensee's
permission, acquiescence, or failure to act, activities that:
(1) Result in a release or threatened release of Hazardous Substances; or
(2) Cause, contribute to, or exacerbate any contamination exceeding
regulatory cleanup standards whether the regulatory authority requires
cleanup before, during, or after Licensee's activities on the Property.
5.5 Management of Contamination, if any.
(a) Licensee and affiliates shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration
activities, if any;
(2) Result in human or environmental exposure to contaminated sediments, if
any;
(3) Result in the mechanical or chemical disturbance of on -site habitat
mitigation, if any.
5.6 In the Event of a Release or Threatened Release.
(a) Licensee shall immediately notify State if the Licensee becomes aware of any
release or threatened release of Hazardous Substance; any new discovery of or
new information about a problem or liability related to, or derived from, the
presence of Hazardous Substances; or any actual or alleged violation of any
federal, state, or local statute, ordinance, rule, regulation, or other law pertaining
to Hazardous Substances. Licensee's duty to report under this Paragraph extends
to lands described in Paragraph 5.2(a) and to any other property used by Licensee
in conjunction with the Property if a release of Hazardous Substances on the other
property could affect the Property.
(b) If a Licensee's act or omission results in a release of Hazardous Substances,
Licensee, at its sole expense, shall promptly take all actions necessary or
advisable to clean up, contain, and remove the Hazardous Substances in
accordance with applicable laws.
(c) If Licensee submits any documents concerning environmental impacts or
proposals relative to the Property to any federal, state, or local authorities,
Licensee shall submit a copy of such documents to State. Documents subject to
this requirement include, but are not limited to, applications, reports, studies, or
audits for National Pollutant Discharge Elimination System permits; U.S. Army
Corps of Engineers permits; State Hydraulic Project Approvals (HPA); State
Water Quality Certifications; Shoreline Substantial Development permits; and any
reporting necessary for the existence, location, and storage of Hazardous
Substances on the Property.
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THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
5.7 Indemnification.
(a) Licensee shall indemnify, defend, and hold harmless State from and against
Liabilities that arise out of, or relate to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Licensee and affiliates occurring
during the term of this Right of Entry or whenever Licensee uses or has
used the Property;
(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Licensee and affiliates occurring during the
term of this Right of Entry or whenever Licensee uses or has used the
Property.
(b) Licensee shall fully indemnify, defend, and hold harmless State for Liabilities
that arise out of or relate to Licensee's breach of obligations under Paragraph 5.4.
(c) If Licensee fails to exercise care as described in Paragraph 5.2, to the extent
permitted by law, Licensee shall fully indemnify, defend, and hold harmless State
from and against Liabilities arising from the acts or omissions of third parties in
relation to the release or threatened release of Hazardous Substances.
5.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 5.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all rights, claims, immunities, and defenses that
either Party may have against third parties. Nothing in this Section 5 benefits or
creates rights for third parties.
(c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 5
do not release either Party from or affect the liability of either Party for Hazardous
Substances claims or actions by regulatory agencies.
SECTION 6 NO ASSIGNMENT
Licensee shall not transfer or assign this Right of Entry.
SECTION 7 INDEMNITY AND INSURANCE
7.1 Indemnity.
(a) Licensee shall indemnify, defend, and hold harmless State, its employees,
officials, officers, and agents from any Claim arising out of the Activities, out of
activities related to the Activities, or out of the use of the Property by Licensee, its
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NOR A COMMITMENT TO EXTEND AN OFFER
contractors, agents, invitees, guests, employees, or affiliates to the fullest extent
permitted by law and subject to the limitations provided below.
(b) "Claim" as used in this Paragraph 7.1 means any financial loss, claim, suit, action,
damages, expenses, costs, fees (including attorneys' fees), fines, penalties, or
judgments attributable to bodily injury, sickness, disease, death, and damages to
tangible property, including, but not limited to, land, aquatic life, and other
natural resources. "Damages to tangible property" includes, but is not limited to,
physical injury to the Property, diminution of value, and/or damages resulting
from loss of use of the Property.
(c) State shall not require Licensee to indemnify, defend, and hold harmless State its
employees, officials, officers, or agents for a Claim caused solely by or resulting
solely from the negligence or willful act of State or State's employees, officials,
officers, or agents.
(d) Licensee specifically and expressly waives any immunity that may be granted
under the Washington State Industrial Insurance Act, Title 51 RCW in connection
with its obligation to indemnify, defend, and hold harmless State and its
employees, officials, officers, or agents. Further, Licensee's obligation under this
Right of Entry to indemnify, defend, and hold harmless State, its employees,
officials, officers, and agents shall not be limited in any way by any limitation on
amount or type of damages, compensation, or benefits payable to or for any third
party under the worker's compensation acts.
(e) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a
Claim is caused by or results from the concurrent negligence of (a) State or
State's employees, officials, officers, or agents, and (b) the Licensee or Licensee's
contractors, agents, invitees, guests, employees or affiliates, these indemnity
provisions shall be valid and enforceable only to the extent of the negligence of
the Licensee and those acting on its behalf.
(f) Section 5, Environmental Liability, shall exclusively govern Licensee's liability
to State for Hazardous Substances and its obligation to indemnify, defend, and
hold harmless State for Hazardous Substances.
7.2 Insurance Terms.
(a) Insurance Required.
(1) Licensee certifies that on the Commencement Date of this Right of Entry
it is a member of a self -insured risk pool for all the liability exposures, its
self-insurance plan satisfies all State requirements, and its self-insurance
plan provides coverage equal to that required in this Paragraph 7.2 and by
Paragraph 7.3, Insurance Types and Limits. Licensee shall provide to State
evidence of its status as a member of a self -insured risk pool. Upon
request by State, Licensee shall provide a written description of its
financial condition and/or the self -insured funding mechanism. Licensee
shall provide State with at least thirty (30) days' written notice prior to any
material changes to Licensee's self -insured funding mechanism. If during
the term of this Right of Entry Licensee's self-insurance plan fails to
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NOR A COMMITMENT TO EXTEND AN OFFER
provide coverage equal to that required in Paragraph 7.2 and Paragraph
7.3 of this Right of Entry, Licensee shall procure additional commercial
insurance coverage to meet the requirements of this Right of Entry. The
requirements in Section 7.2(a)(3) only apply where the Licensee procures
additional commercial insurance to meet the requirements of this Right of
Entry.
(2) Unless State agrees to an exception, Licensee shall provide insurance
issued by an insurance company or companies admitted to do business in
the State of Washington and have a rating of A- or better by the most
recently published edition of A.M. Best's Insurance Reports. Licensee
may submit a request to the risk manager for the Department of Natural
Resources to approve an exception, in writing, to this requirement. If an
insurer is not admitted, the insurance policies and procedures for issuing
the insurance policies shall comply with Chapter 48.15 RCW and 284-15
WAC.
(3) All general liability, excess, and umbrella liability insurance policies must
name the State of Washington, the Department of Natural Resources, its
elected and appointed officials, officers, agents, and employees as an
additional insured by way of endorsement.
(4) All insurance provided in compliance with this Right of Entry must be
primary as to any other insurance or self-insurance programs afforded to
or maintained by State.
(b) Waiver.
(1) Licensee waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Right of Entry covers these
damages.
(2) Except as prohibited by law, Licensee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this Right of Entry.
(c) Proof of Insurance.
(1) Licensee shall provide State with a certificate(s) and endorsement(s) of
insurance executed by a duly authorized representative of each insurer,
showing compliance with insurance requirements specified in this Right of
Entry; and, if requested, copies of policies to State.
(2) The certificate(s) of insurance must reference additional insureds and the
Right of Entry number.
(3) Receipt of such certificates, endorsements, or policies by State does not
constitute approval by State of the terms of such policies.
(d) State must receive written notice before cancellation or non -renewal of any
insurance required by this Right of Entry, as follows:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium,
provide State ten (10) days' advance notice of cancellation; otherwise,
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NOR A COMMITMENT TO EXTEND AN OFFER
provide State forty-five (45) days' advance notice of cancellation or non -
renewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to
non-payment of premium, provide State ten (10) days' advance notice of
cancellation; otherwise, provide State twenty (20) days' advance notice of
cancellation or non -renewal.
(e) Adjustments in Insurance Coverage.
(1) State may impose changes in the limits of liability for all types of
insurance as State deems necessary.
(2) Licensee shall secure new or modified insurance coverage within thirty
(30) days after State requires changes in the limits of liability.
(f) General Terms.
(1) State does not represent that coverage and limits required under this Right
of Entry are adequate to protect Licensee.
(2) Coverage and limits do not limit Licensee's liability for indemnification
and reimbursements granted to State under this Right of Entry.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to property first to restore the real property covered by this
Right of Entry, then to pay the cost of the reconstruction, then to pay State
any sums in arrears, and then to Licensee.
7.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Licensee shall maintain commercial general liability insurance (CGL) or
marine general liability (MGL) covering claims for bodily injury, personal
injury, or property damage arising on the Property and/or arising out of
Licensee's use, occupation, or control of the Property and, if necessary,
commercial umbrella insurance with a limit of not less than One Million
Dollars ($1,000,000) per each occurrence. If such CGL or MGL insurance
contains aggregate limits, the general aggregate limit must be at least
twice the "each occurrence" limit. CGL or MGL insurance must have
products -completed operations aggregate limit of at least two times the
"each occurrence" limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross -liability)
condition.
(3) MGL insurance must have no exclusions for non -owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
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NOR A COMMITMENT TO EXTEND AN OFFER
(i) Licensee shall comply with all State of Washington workers'
compensation statutes and regulations. Licensee shall provide
workers' compensation coverage for all employees of Licensee.
Coverage must include bodily injury (including death) by accident
or disease, which arises out of or in connection with Licensee's
use, occupation, and control of the Property.
(ii) If Licensee fails to comply with all State of Washington workers'
compensation statutes and regulations, and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees, Licensee shall indemnify State. Indemnity shall
include all fines; payment of benefits to Licensee, employees, or
their heirs or legal representatives; and the cost of effecting
coverage on behalf of such employees.
(2) Longshore and Harbor Worker's Act. The Longshore and Harbor
Worker's Compensation Act (33 U.S.C. Section 901 et seq.) may require
Licensee to provide insurance coverage for longshore and harbor workers
other than seaman. Licensee shall ascertain if such insurance is required
and, if required, shall maintain insurance in compliance with this Act.
Licensee is responsible for all civil and criminal liability arising from
failure to maintain such coverage.
(3) Jones Act. The Jones Act (46 U.S.C. Section 688) may require Licensee to
provide insurance coverage for seamen injured during employment
resulting from negligence of the owner, master, or fellow crew members.
Licensee shall ascertain if such insurance is required and, if required, shall
maintain insurance in compliance with this Act. Licensee is responsible
for all civil and criminal liability arising from failure to maintain such
coverage.
(c) Employer's Liability Insurance. Licensee shall procure employer's liability
insurance, and, if necessary, commercial umbrella liability insurance with limits
not less than One Million Dollars ($1,000,000) per each accident for bodily injury
by accident or One Million Dollars ($1,000,000) per each employee for bodily
injury by disease.
(d) Auto Policy Insurance. If Licensee operates, maintains, loads, or unloads vehicles
as part of the Activities, Licensee shall maintain auto liability insurance and, if
necessary, commercial umbrella liability insurance with a limit not less than One
Million Dollars ($1,000,000) per accident. Such insurance must cover liability
arising out of "Any Auto".
(e) Protection and Indemnity Insurance (P&I). For each vessel owned, used, and/or
operated on the Property by Licensee or Licensee's contractor(s), Licensee or
Licensee's contractor(s) shall procure and maintain P&I insurance with limits of
liability not less than One Million Dollars ($1,000,000). The P&I insurance must
cover, at a minimum, all claims relating to injuries or damages to persons or
property sustained in, on, or about the property; fuel spills; wreck removal;
salvage; injuries to passengers and crew of the vessel; and damages to nets and
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NOR A COMMITMENT TO EXTEND AN OFFER
fishing lines. If necessary, Licensee shall procure and maintain commercial
umbrella liability insurance covering claims for these risks.
(f) Hull Insurance. Licensee or Licensee's contractor(s) shall procure and maintain
hull insurance for each vessel owned and/or operated by the Licensee or
Licensee's contractor(s) on the Property. The coverage amount of each hull
insurance policy must be equal to the value of the covered vessel.
SECTION 8 TERMINATION
8.1 Termination by Revocation. State may terminate this Right of Entry at any time upon
thirty (30) days' notice to the Licensee.
8.2 Termination by Completion of Activities. If Licensee completes Activities and
restoration of the Property prior to the Termination Date, this Right of Entry terminates upon
Licensee's completion of all Activities and the restoration of the Property under Paragraph 3.2.
8.3 Termination Resulting from Breach. If Licensee breaches any terms of this Right of
Entry, State may terminate this Right of Entry immediately upon notice to Licensee.
SECTION 9 NOTICE
Following are the locations for delivery of notice and the Contact Person. Any Party may change
the location of notice and/or the Contact Person upon reasonable notice to the other.
State: DEPARTMENT OF NATURAL RESOURCES
Aquatic Resources, Rivers District
360-748-2387
rivers@dnr.wa.gov
Grantee: CITY OF PASCO PUBLIC WORKS
Jon Padvorac, City Engineer
509-545-3445
padvoracj@pasco-wa.gov
SECTION 10 MISCELLANEOUS
10.1 Headings. The headings used in this Right of Entry are for convenience only and in no
way define, limit, or extend the scope of this Right of Entry or the intent of any provision.
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NOR A COMMITMENT TO EXTEND AN OFFER
10.2 Invalidity. The invalidity, voidness, or illegality of any provision of this Right of Entry
does not affect, impair, or invalidate any other provision of this Right of Entry.
10.3 Applicable Law and Venue. This Right of Entry is to be interpreted and construed in
accordance with the laws of the State of Washington. Venue for any action arising out of or in
connection with this Right of Entry is in the Superior Court for Thurston County, Washington.
10.4 Statutory Reference. Any reference to a statute or rule means that statute or rule as
presently enacted or hereafter amended or superseded.
10.5 Modification. No modification of this Right of Entry is effective unless in writing and
signed by the Parties. Oral representations or statements do not bind either Party.
10.6 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Right of Entry.
10.7 Survival. Any obligations of Licensee not fully performed upon termination of this Right
of Entry do not cease, but continue as obligations of the Licensee until fully performed.
Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 12 of 17 Right of Entry No. 23-104550
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
10.8 Exhibits and Attachments. ,All referenced exhibits and attachments are incorporated in
this Right of Entry unless expressly identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
Dated: , 20
Dated: 120
CITY OF PASCO PUBLIC WORKS
By:
JON PADVORAC
Title:
City Engineer
Address:
525 N. 3rd Avenue
Pasco, WA 99301
Phone:
509-545-3445
STATE OF WASHINGTON
DEPARTMENT OF NATURAL
RESOURCES
By: THOMAS A. GORMAN
Title: Aquatic Resources Division
Manager
Address: 1111 Washington St SE
MS 47027
Olympia, WA 98504
Aquatic Lands Right of Entry
Template approved as to form this
14th day of July 2021
Jennifer Clements, Assistant Attorney General
Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 13 of 17 Right of Entry No. 23-104550
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
EXHIBIT A
PROPERTY DESCRIPTION
Agreement Number: 23-104550
PROPERTY DESCRIPTION:
Located in and in front of a portion of Block 13 of the Pasco Shorelands lying in Section
32, Township 9 North, Range 30 East, W.M., Franklin County.
2. COORDINATES OF THE RIGHT OF ENTRY:
Lat: 46.21627N
Long:-119.08710W (WGS 84)
3. APPROXIMATE SQUARE FOOTAGE OF RIGHT OF ENTRY:
Total square feet 675,225
Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 14 of 17 Right of Entry No. 23-104550
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
Legal Description
ro nimo,s` r sdw
Lat_ 46.21627N
303E 4APCWOR
Long:-119.08710W (WGS 84)
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Area-675,225 SF
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= eared by: MAC Date 519/202'
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Proposed Outfall Pipeline
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Existing Outfall Pipeline
To Be Removed
Barge construction activity
area associated with
WWTP Outfall Replacement
CW'-'ATba53S, U:;3A wC:..' Aeo,: R;n IG%. all V-
City of Pasco
Pasco
Franklin County
WWTP outfall Replacement
ROE 23-104550
Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 15 of 17 Right of Entry No. 23-104550
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
EXHIBIT B
DESCRIPTION OF ACTIVITIES
A. Existing Conditions. The City of Pasco Waste Water Treatment Plan (WWTP) is
located upland of the Columbia river, located in Frankin County. The Treatment
plant operates the existing 24-inch diameter outfall pipe, and diffuser, which is
oriented north -south, and is approximately 900 feet offshore from the north bank
of the river. This outfall pipe was authorized under 51-070234 and installed in
1954, with the construction of the WWTP, and the diffuser section was installed
in late 1990s. The existing 24-inch diamater pipe will be removed and replaced
with an new 42-inch diameter HDPE outfall pipe and diffuser, which is being
authorized under 51-103464.
B. Activities. Licensee is proposing to utilize barge(s) to aid in construction
activities associated with the City of Pasco WWTP Clean Water Preservation
Project Phase 2. Barges are needed to support construction of the new outfall pipe
and decommissioning/removal of of the existing 24-inch diameter outfall pipe.
Barge activities include: excavation using a clamshell barge or excavator
operating from a floating barge, stockpiling of sediment for dewatering, storage of
crushed clean material for pipe installation, towing and placement of new HDPE
pipe, tensioning of pipe, and installation of spud piles or cable anchors to secure
barge(s). The area of operation is defined and shown on Exhibit A. Subject to the
conditions in this Right of Entry, State grants its consent to these Activities.
C. Permits. Licensee has secured the following permits for the Activities:
• SERP (State Environmental Review Process) Submittal, Clean Water
Preservation Project, WQC-202 1 -Pasco-00020 and WQC-2022-Pasco-00044,
Department of Ecology, issued September 29, 2022.
• National Pollutant Discharge Elimination System (NPDES) Waste Discharge
Permit No. WA-004496-2, Department of Ecology, issued June 29, 2010,
expires June 30, 2015. Permit has been administratively extended while the
Department of Ecology (Ecology) generates a new permit.
• Construction Stormwater General Permit: WAR312101, Department of
Ecology, issued February 14, 2023.
• Letter of Concurrence for Determination of No Historic Properties, Section
106 of the National Historic Preservation Act, DAHP Project Number 2022-
04-02720, Department of Ecology, Water Quality Program, issued October
12, 2022.
• Hydraulic Project Approval: 2022-3-53+01, Washington Department of Fish
and Wildlife, issued November 15, 2022, expires November 14, 2027.
Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 16 of 17 Right of Entry No. 23-104550
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
• SEPA Checklist, City of Pasco, signed July 5, 2022.
• SEPA Notice of Mitigated Determination of Non -Significance: SEPA 2022-
069, City of Pasco, issued July 27, 2022.
• Shoreline Substantial Development and Conditional Use permit (includes
Critical Areas): SMP 2022-003, City of Pasco, issued August 18, 2022.
• Biological Opinion and Letter of Concurrence: FWS/Rl/2022-0036919,
United States Department of the Interior Fish and Wildlife, issued September
27, 2022.
• Nationwide Permit 1 and 7: NWS-2022-223, Department of Army Corp of
Engineers, issued September 15, 2022, expires March 14, 2027 (includes DOE
401 and CZMA certification).
• Tier 1 Antidegradation Evaluation for the City of Pasco WWTP Clean Water
Preservation Project Phase 2 in Pasco, Washington, USACE Reference #
NWS-2022-223, Dredged Material Management Office (DMMP), issued May
20, 2022.
• Endangered Species Act Biological Opinion: WCRO-2022-01039, United
States Department of Commerce National Oceanic and Atmospheric
Administration (NOAA), issued November 17, 2022.
• Private Aids to Navigation (PATON) Permit, United States Coast Guard,
issued October 25, 2022.
ADDITIONAL OBLIGATIONS AND REQUIREMENTS
A. Licensee shall avoid damage caused by propeller wash from vessels.
B. Licensee shall not allow moorage or anchorage of vessels in water shallower than
seven (7) feet, and shall not allow vessels to come in contact with underlying
bedlands (commonly referred to as "grounding out") at any time.
Licensee shall only conduct in -water activities during time periods authorized for
such activities under WAC 220-660-110, Authorized Work Times in Freshwater
Areas, or as otherwise directed by the Washington Department of Fish and
Wildlife (WDFW) — AND [United States Fish and Wildlife Service (USFWS)
AND National Marine Fisheries Service (NMFS).
Aquatic Lands Right of Entry
Template approved as to form this
14th day of July 2021
Jennifer Clements, Assistant Attorney General
Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 17 of 17 Right of Entry No. 23-104550
EXHIBIT B
THIS DRAFT DOES NU . CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
When recorded, return to:
Attn: Jon Padvorac
City of Pasco Public Works
525 N. 3rd Avenue
Pasco, Washington 99301
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HILARY 5. FRANZ
.!r,!Kt CNWk0 ce SO,` (ANDS
AQUATIC LANDS EASEMENT
Easement No. 51-104551
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Pasco Public Works
Abbreviated Legal Description: SW1/4 SE1/4, NW1/4 SE1/4, SE1/4 SW1/4, NE1A SW1/4
Section 32, Township 9 North, Range 30East, W.M. Commented [GS(1]: Need the final recorded ROS (Record of
Complete Legal Description on Page 30 survey)
Auditor Reference Number(s) TBD
Assessor's Property Tax Parcel or Account Number: Not Applicable
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Easement: Not Applicable
THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources ("State"), and CITY OF PASCO, a government agency
("Grantee"). State has authority to enter into this Easement under Chapter 43.12 RCW, Chapter
43.30 RCW, and Title 79 of the Revised Code of Washington (RCW).
THEREFORE, the Parties agree as follows:
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SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) State grants and conveys to Grantee a nonexclusive in gross easement, subject to
the terms and conditions of this agreement, over, upon, and under those bedlands
and 1 st class shorelands of the Columbia River legally described in Exhibit A
("Easement Property"). In this agreement, the term "Easement" means this
agreement and the rights granted.
(b) This Easement is subject to all valid interests of third parties noted in the records
of Franklin County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Easement does not include any right to harvest, collect or damage any
natural resources, including, but not limited to, aquatic life or living plants; any
water rights; any mineral rights; or any right to excavate or withdraw sand, gravel,
or other valuable materials, except to the extent expressly permitted in Exhibit B.
(d) This Easement is not exclusive. State may enter and use the Easement Property
for any purpose or permit others to enter and use the Easement Property for any
purpose so long as such use does not unreasonably interfere with the rights
granted herein.
1.2 Survey and Easement Property Descriptions.
(a) Grantee's obligation to provide a true and accurate description of the Easement
Property, and the location of the Improvements to be constructed is a material
term of this Easement. Grantee warrants that the record of survey referenced in
Exhibit A includes a true and accurate description of the Easement Property, and
the location of the Improvements to be constructed.
(b) Unless State has given Grantee written authorization to use such lands, Grantee's
use of any state-owned aquatic lands outside the Easement Property boundaries is
a material breach of this Easement and State may seek remedies under Section 14
of this Easement in addition to any other remedies afforded by law or equity or
otherwise.
1.3 Condition of Easement Property. State makes no representation regarding the condition
of the Easement Property, Improvements located on the Easement Property, the suitability of the
Easement Property for Grantee's Permitted Use, compliance with governmental laws and
regulations, availability of utility rights, access to the Easement Property, or the existence of
hazardous substances on the Easement Property.
SECTION 2 USE
2.1 Permitted Use. This Easement is granted for the purpose of and is limited to:
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expanded construction area (the "Permitted Use").
Exhibit B includes additional details about the Permitted Use, the Easement Property, and the
Improvements. The Permitted Use is subject to the restrictions and additional obligations set
forth in this Easement. The Permitted Use of this Easement shall not be changed or modified
without the written consent of State, which shall be at State's sole discretion.
2.2 Restrictions on Permitted Use and Operations.
(a) Grantee shall not cause or permit:
(1) Damage to land or natural resources on the Easement Property or adjacent
state-owned aquatic lands, regardless of whether the damages are a direct
or indirect result of the Permitted Use
(2) Waste on the Easement Property or adjacent state-owned aquatic lands; or
(3) Deposit of material or filling activity on the Easement Property or adjacent
state-owned aquatic lands, unless approved by State in writing and except
to the extent expressly permitted in Exhibit B. This prohibition includes,
but is not limited to, any deposit of fill, rock, earth, ballast, wood waste,
hydrocarbons, refuse, garbage, waste matter (including, but not limited to,
chemical, biological, or toxic wastes), pollutants, or other matter.
(b) Nothing in this Easement shall be interpreted as an authorization to dredge the
Easement Property.
(c) Grantee shall immediately notify State if Grantee breaches any of the terms and
conditions of this Easement.
(d) State's failure to notify Grantee of Grantee's failure to comply with all or any of
the restrictions set out in this Paragraph 2.2 does not constitute a waiver of any
remedies available to State.
(e) Grantee's compliance with the restrictions in this Paragraph 2.2 does not limit
Grantee's liability under any other provision of this Easement or the law.
2.3 Conformance with Laws. Grantee shall keep current and comply with all conditions and
terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding Grantee's use of the Easement Property.
2.4 Liens and Encumbrances. Unless expressly authorized by State in writing, Grantee
shall keep the Easement Property free and clear of any liens and encumbrances arising out of or
relating to the Permitted Use or Grantee's use of the Easement Property.
2.5 Interference with Other Uses.
(a) Grantee shall exercise Grantee's rights under this Easement in a manner that
minimizes or avoids interference with the rights of State, the public, or others
with valid rights to use or occupy the Easement Property or surrounding lands and
water.
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(b) To the fullest extent reasonably possible, Grantee shall place and construct
Improvements in a manner that allows unobstructed movement in and on the
waters above and around the Easement Property.
(c) Except in an emergency, Grantee shall provide State with written notice regarding
the start of construction or other Significant Activity on the Easement Property at
least sixty (60) days in advance ("Notice of Significant Activity"). "Significant
Activity" means any activity that may affect the use or enjoyment of the
Easement Property or adjacent state-owned aquatic lands by the State of
Washington, public, or others with valid rights to use or occupy the Easement
Property or adjacent state-owned aquatic lands.
(d) Grantee shall mark the location of any hazards associated with the Permitted Use
and any hazards associated with the Improvements in a manner that ensures
reasonable notice to the public, including, but not limited to, boaters, kayakers,
swimmers, and divers.
SECTION 3 TERM
3.1 Term Defined. The term of this Easement is five (5) years, beginning on the I` day of
July, 2022 (the "Commencement Date"), and ending on the 30th day of June, 2027 (the
"Termination Date"), unless terminated sooner under the terms of this Easement (the "Term").
Whenever the phrase "termination of this Easement" or "termination of the Easement" is used in
this Easement, it shall refer to the ending, termination, cancellation, or expiration of the
Easement. Commented (GS(21: Term will be changed closer to execution
of the contract.
3.2 Renewal of Easement and/or Application for New Easement.
This Easement does not provide a right of renewal. Grantee may apply for a new Easement,
which State has discretion to grant. Grantee must apply for a new Easement at least one (1) year
prior to Termination Date.
3.3 End of Term.
(a) Removal of Improvements: Prior to the termination of this Easement, Grantee
shall remove Improvements in accordance with Section 7.
(b) Restoration of the Easement Property:
(1) Prior to the termination of this Easement, Grantee shall restore the
Easement Property to its condition prior to Grantee's Use of the Easement
Property-
(2) Restoration of the Easement Property is to be done at Grantee's expense
and to the satisfaction of State. Restoration of the Easement Property is
considered to be Work, as described in Section 7 of the Easement.
Grantee's plans for restoring the Easement Property shall be submitted to
State for prior approval in accordance with Section 7 of this Easement.
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(3) If Grantee fails to restore the condition of the Easement Property as
required by this Paragraph, State may take steps reasonably necessary to
remedy Grantee's failure. Upon demand by State, Grantee shall pay all
costs of State's remedy, lost revenue resulting from the condition of the
Easement Property, and administrative costs associated with State's
remedy.
(c) Vacation of Property: Upon the termination of this Easement, Grantee shall cease
all operations on and use of the Easement Property.
SECTION 4 FEES
4.1 Fee. For the Term, Grantee shall pay to State an administrative fee calculated in
accordance with RCW 79.110.240 of One Thousand Eight Hundred Seventy Dollars and 00/100
($1,870.00), which is due and payable on or before the Commencement Date. Any payment not
paid by State's close of business on the date due is past due.
4.2 Payment Place. Grantee shall make payment to Financial Management Division, I I I I
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Grantee shall pay all fees charged for utilities required or needed by the
Permitted Use.
5.2 Taxes and Assessments. Grantee shall pay all taxes, assessments, and other
governmental charges applicable or attributable to the Easement, the Grantee -Owned
Improvements, or the Permitted Use.
5.3 Proof of Payment. If required by State, Grantee shall furnish to State receipts or other
appropriate evidence establishing the payment of amounts this Easement requires Grantee to pay.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Failure to Pay. Failure to pay any fees or other expenses due under this Easement is a
breach by Grantee. State may seek remedies in Section 14 as well as late charges and interest as
provided in this Section 6. In addition, if Grantee fails to pay any amounts due to third parties
under this Easement, State may pay the amount due, and recover its cost in accordance with this
Section 6.
6.2 Late Charge. If State does not receive any payment within ten (10) days of the date due,
Grantee shall pay to State a late charge equal to four percent (4%) of the unpaid amount or Fifty
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NOR A COMMITMENT TO EXTEND AN OFFER
Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to the
delay.
6.3 Interest Penalty for Past Due Fees and Other Sums Owed.
(a) Grantee shall pay interest on the past due fees at the rate of one percent (1 %) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Fees not paid by the close of business on the due date will begin
accruing interest the day after the due date.
(b) If State pays or advances any amounts for or on behalf of Grantee, Grantee shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (1%) per month from the date State notifies
Grantee of the payment or advance. This includes, but is not limited to State's
payment of taxes, assessments, insurance premiums, costs of removal and
disposal of unauthorized materials, costs of removal and disposal of
Improvements under any provision of this Easement, or other amounts not paid
when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
full payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Grantee
shall pay collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Grantee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. State may accept
payment in any amount without prejudice to State's right to recover the balance or pursue any
other right or remedy. No endorsement or statement on any check, any payment, or any letter
accompanying any check or payment constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS, PERSONAL PROPERTY, AND WORK
7.1 Improvements and Personal Property Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.140, are additions
within, upon, or attached to the Easement Property. Improvements include, but
are not limited to, fill, structures and fixtures.
(b) "Personal Property" means items that can be removed from the Easement
Property without (1) injury to the Easement Property, adjacent state-owned lands
or Improvements or (2) diminishing the value or utility of the Easement Property,
adjacent state-owned lands or Improvements.
(c) "State -Owned Improvements" are Improvements made or owned by the State of
Washington. State -Owned Improvements include any construction, alteration, or
addition to State -Owned Improvements made by Grantee.
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(d) "Grantee -Owned Improvements" are (1) Improvements owned by Grantee that
are existing on the Easement Property on the Commencement Date or (2)
Improvements made by Grantee with State's consent.
(e) "Unauthorized Improvements" are Improvements made on the Easement Property
during the Term without State's prior consent or Improvements made by Grantee
that do not conform with plans submitted to and approved by State.
(f) "Improvements Owned by Others" are Improvements made by others with a right
to occupy or use the Easement Property or adjacent state-owned lands.
7.2 Existing Improvements. On the Commencement Date, the following Grantee -Owned
Improvements are located on the Easement Property: one (1) existing 24" outfall pipe and
diffuser authorized under 51-070234.
7.3 Construction, Major Repair, Modification, and Other Work.
(a) This Paragraph 7.3 governs construction, alteration, replacement, major repair,
modification, and removal of Improvements ( collectively "Work").
(b) Except in an emergency, Grantee shall not conduct any Work without State's
prior written consent. Grantee shall obtain State's prior written consent as
follows:
(1) Grantee shall submit to State plans and specifications describing the
proposed Work at least sixty (60) days before submitting permit
applications to regulatory authorities, unless Grantee and State otherwise
agree to coordinate permit applications. At a minimum, or if no permits
are necessary, Grantee shall submit plans and specifications to State at
least ninety (90) days before commencement of Work.
(2) State may deny consent if State determines that denial is in the best
interests of the State of Washington or if the proposed Work does not
comply with Paragraph 7.4. State may impose additional conditions
intended to protect and preserve the Easement Property or adjacent state-
owned aquatic lands.
(c) Grantee shall immediately notify State of emergency Work. Upon State's request,
Grantee shall provide State with as -built plans and specifications of emergency
Work.
(d) Grantee shall not commence Work until Grantee or Grantee's contractor has:
(1) Obtained a performance and payment bond in an amount equal to one
hundred twenty-five percent (125%) of the estimated cost of construction.
Grantee or Grantee's contractor shall maintain the performance and
payment bond until the costs of the Work, including all laborers and
material persons, are paid in full.
(2) Obtained all required permits.
(3) Provided Notice of Significant Activity in accordance with Paragraph
2.5(c).
(e) Grantee shall preserve and protect Improvements Owned by Others, if any.
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(f) Grantee shall preserve all legal land subdivision survey markers and witness
objects ("Markers"). If disturbance of a Marker will be a necessary consequence
of Grantee's construction, Grantee shall reference and/or replace the Marker in
accordance with all applicable laws and regulations current at the time, including,
but not limited to Chapter 58.24 RCW. At Grantee's expense, Grantee shall retain
a registered professional engineer or licensed land surveyor to reestablish
destroyed or disturbed Markers in accordance with United States General Land
Office standards.
(g) Before completing Work, Grantee shall remove all debris and restore the
Easement Property, as nearly as possible, to its natural condition before the Work
began. If Work is intended for removal of Improvements at End of Term, Grantee
shall restore the Easement Property in accordance with Paragraph 3.3, End of
Term.
(h) Upon completing Work, Grantee shall promptly provide State with as -built plans
and specifications. State may also require Grantee to obtain an updated record of
survey showing the Easement Property boundaries and the as -built location of all
Improvements on the Easement Property.
(i) State shall not charge additional fees for authorized Improvements installed by
Grantee on the Easement Property during this Term, but State may charge
additional fees for such Improvements if and when the Grantee or successor
obtains a subsequent use authorization for the Easement Property and State has
waived the requirement for removal of Improvements as provided in Paragraph
7.5.
7.4 Standards for Work.
(a) Applicability of Standards for Work.
(1) The standards for Work in Paragraph 7.4(b) apply to Work commenced in
the five-year period following the Commencement Date. Work
commences when State approves plans and specifications.
(2) If Grantee commences Work five years or more after the Commencement
Date, Grantee shall comply with State's current standards for Work.
(3) If Grantee commences Work five years or more after the Commencement
Date, Grantee shall ascertain State's current standards for Work as
follows:
(i) Before submitting plans and specifications for State's approval as
required by Paragraph 7.3 of the Easement, Grantee shall request
State to provide Grantee with State's current standards for Work
on state-owned aquatic lands.
(ii) Within thirty (30) days of receiving Grantee's request, State shall
provide Grantee with State's current standards for Work, which
will be effective for the purpose of State's approval of Grantee's
proposed Work, provided Grantee submits plans and specifications
for State's approval within two (2) years of Grantee's request for
standards.
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(iii) If State does not timely provide State's current standards for Work
upon Grantee's request, the standards for Work under Paragraph
7.4(b) apply to Grantee's Work, provided Grantee submits plans
and specifications as required by Paragraph 7.3 within two (2)
years of Grantee's request for State's current standards for Work.
(iv) If Grantee fails to (1) make a request for State's current standards
for Work or (2) timely submit plans and specifications to State
after receiving State's current standards for Work, Grantee, at
Grantee's sole expense, shall make changes in plans or Work
necessary to conform to State's current standards for Work upon
State's demand.
(b) The following standards for Work apply to Work commenced in the five-year
period following the Commencement Date.
(1) Grantee shall only conduct in -water Work during time periods authorized
for such work under WAC 220-660-110, Authorized Work Times in
Freshwater Areas, or as otherwise directed by the Washington Department
of Fish and Wildlife (WDFW) OR United States Fish and Wildlife Service
(USFWS) OR National Marine Fisheries Service (NMFS).
7.5 Grantee -Owned Improvements at End of Easement.
(a) Disposition.
(1) Grantee shall remove Grantee -Owned Improvements in accordance with
Paragraph 7.3 upon the termination of the Easement unless State waives
the requirement for removal.
(2) Grantee -Owned Improvements remaining on the Easement Property on the
termination of the Easement shall become State -Owned Improvements
without payment by State, unless State elects otherwise. State may refuse
or waive ownership.
(3) If Grantee -Owned Improvements remain on the Easement Property after
the termination of the Easement without State's consent, State may
remove all Improvements and Grantee shall pay State's costs of removal
and disposal.
(b) Conditions Under Which State May Waive Removal of Grantee -Owned
Improvements.
(1) State may waive removal of any Grantee -Owned Improvements whenever
State determines that it is in the best interests of the State of Washington.
(2) If Grantee enters into a new Easement, State may waive requirement to
remove Grantee -Owned Improvements. State also may consent to
Grantee's continued ownership of Grantee -Owned Improvements.
(3) State may waive requirement to remove Grantee -Owned Improvements
upon consideration of a timely request from Grantee, as follows:
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(i) Grantee shall submit its request to leave Grantee -Owned
Improvements to State at least one (1) year before the
Termination Date.
(ii) State, within ninety (90) days of receiving Grantee's request, will
notify Grantee whether State consents to any Grantee -Owned
Improvements remaining. State has no obligation to grant consent.
(iii) State's failure to respond to Grantee's request to leave
Improvements within ninety (90) days is a denial of the request.
(c) Grantee's Obligations if State Waives Removal.
(1) Grantee shall not remove a Grantee -Owned Improvement if State waives
the requirement for removal of that Grantee -Owned Improvement.
(2) Grantee shall maintain such Grantee -Owned Improvements in accordance
with this Easement until the termination of this Easement. State may
require Grantee to take appropriate steps to decommission the structure.
Grantee is liable to State for cost of repair if Grantee causes or allows
damage to Grantee -Owned Improvements State has designated to remain.
(3) State may condition its waiver of removal on Grantee entering into a new
Easement for the Grantee -Owned Improvements.
7.6 Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b) The placement of Unauthorized Improvements on the Easement Property is a
breach of this Easement and State may require removal of any or all Unauthorized
Improvements. If State requires removal of Unauthorized Improvements and if
Grantee fails to remove the Unauthorized Improvements, State may remove the
Unauthorized Improvements and Grantee shall pay for the cost of removal and
disposal.
(c) In addition to requiring removal of Unauthorized Improvements, State may
charge Grantee a use fee that is sixty percent (60%) higher than the full market
value of the use of the land for the Unauthorized Improvements from the time of
installation or construction until the time the Unauthorized Improvements are
removed.
(d) If State consents to Unauthorized Improvements remaining on the Easement
Property, upon State's consent, the Unauthorized Improvements will be treated as
Grantee -Owned Improvements and the removal and ownership of such
Improvements shall be governed by Paragraph 7.5. If State consents to the
Unauthorized Improvements remaining on the Easement Property, State may
charge a use fee that is sixty percent (60%) higher than the full market value of
the use of the land for the Unauthorized Improvements from the time of
installation or construction until State consents.
7.7 Personal Property.
(a) Grantee retains ownership of Personal Property unless Grantee and State agree
otherwise in writing.
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(b) Grantee shall remove Personal Property from the Easement Property by the
termination of the Easement. Grantee is liable for damage to the Easement
Property and to any Improvements that may result from removal of Personal
Property.
(c) State may remove, sell, or dispose of all Personal Property left on the Easement
Property after the termination of the Easement.
(1) If State conducts a sale of Personal Property, State shall first apply
proceeds to State's costs of removing the Personal Property, State's costs
in conducting the sale, and any other payment due from the Grantee to
State. State shall pay the remainder, if any, to the Grantee. Grantee shall
be liable for any costs of removing the Personal Property and conducting
the sale that exceed the proceeds received by State.
(2) If State disposes of Personal Property, Grantee shall pay for the cost of
removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definitions.
(a) "Hazardous Substance" means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup.
(b) "Release or threatened release of Hazardous Substance" means a release or
threatened release as defined under any law described in Paragraph 8.1(a).
(c) "Utmost care" means such a degree of care as would be exercised by a very
careful, prudent, and competent person under the same or similar circumstances;
the utmost care required under RCW 70A.305.040(3)(a)(iii) of the Washington
State Model Toxics Control Act.
(d) "Grantee and affiliates" when used in this Section 8 means Grantee or Grantee's
subgrantees, contractors, agents, employees, guests, invitees, licensees, affiliates,
or any person on the Easement Property with the Grantee's permission.
(e) "Liabilities" as used in this Section 8 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
8.2 General Conditions.
(a) Grantee's obligations under this Section 8 extend to the area in, on, under, or
above:
(1) The Easement Property and
(2) Adjacent state-owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
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(1) Grantee shall exercise the utmost care with respect to Hazardous
Substances.
(2) As relates to the Permitted Use, Grantee shall exercise utmost care for the
foreseeable acts or omissions of third parties with respect to Hazardous
Substances, and the foreseeable consequences of those acts or omissions,
to the extent required to establish a viable, third -party defense under the
law.
8.3 Current Conditions and Duty to Investigate.
(a) State makes no representation about the condition of the Easement Property or
adjacent state-owned aquatic lands. Hazardous Substances may exist in, on,
under, or above the Easement Property or adjacent state-owned aquatic lands.
(b) This Easement does not impose a duty on State to conduct investigations or
supply information to Grantee about Hazardous Substances.
(c) Grantee is responsible for conducting all appropriate inquiry and gathering
sufficient information concerning the Easement Property and the existence, scope,
and location of Hazardous Substances on or near the Easement Property necessary
for Grantee to meet Grantee's obligations under this Easement and utilize the
Easement Property for the Permitted Use.
8.4 Use of Hazardous Substances.
(a) Grantee and affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws.
(b) Grantee shall not undertake, or allow others to undertake by Grantee's
permission, acquiescence, or failure to act, activities that result in a
release or threatened release of Hazardous Substances.
(c) If use of Hazardous Substances related to the Permitted Use or Grantee's use of
the Property results in a violation of law:
(1) Grantee shall submit to State any plans for remedying the violation, and
(2) Grantee shall implement any measures to restore the Easement Property or
natural resources that State may require in addition to remedial measures
required by regulatory authorities.
(d) Grantee shall comply with the provisions of Chapter 90.56 RCW Oil and
Hazardous Substance Spill Prevention and Response Act. Grantee shall develop,
update as necessary, and operate in accordance with a plan of operations that is
consistent with the requirements of Chapter 90.56 RCW.
8.5 Management of Contamination.
(a) Grantee and affiliates shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration
activities, if any;
(2) Result in human or environmental exposure to contaminated sediments, if
any;
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(3) Result in the mechanical or chemical disturbance of on -site habitat
mitigation, if any.
(b) If requested, Grantee shall allow reasonable access to:
(1) Employees and authorized agents of the United States Environmental
Protection Agency (EPA), the Washington State Department of Ecology,
health department, or other similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Easement Property. Grantee may
negotiate an access agreement with such parties, but Grantee may not
unreasonably withhold such agreement.
8.6 Notification and Reporting.
(a) Grantee shall immediately notify State if Grantee becomes aware of any of the
following:
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of Hazardous Substances;
(3) Any lien or action arising from Hazardous Substances;
(4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous
Substances;
(5) Any notification from the EPA or the Washington State Department of
Ecology that remediation or removal of Hazardous Substances is or may
be required at the Easement Property.
(b) Grantee's duty to report under Paragraph 8.6(a) extends to lands described in
Paragraph 8.2(a), and to any other property used by Grantee in conjunction with
the Easement Property if a release of Hazardous Substances on the other property
could affect the Easement Property.
(c) Grantee shall provide State with copies of all documents Grantee submits to any
federal, state, or local authorities concerning environmental impacts or proposals
relative to the Easement Property. Documents subject to this requirement include,
but are not limited to, applications, reports, studies, or audits for National
Pollutant Discharge Elimination System permits (NPDES); United States Army
Corps of Engineers permits; State Hydraulic Project Approvals (HPA); State
Water Quality Certifications; Substantial Shoreline Development permits; and any
reporting necessary for the existence, location, and storage of Hazardous
Substances on the Easement Property.
8.7 Indemnification.
(a) Grantee shall fully indemnify, defend, and hold harmless State from and against
any Liabilities that arise out of, or relate to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Grantee and affiliates occurring
whenever Grantee uses or has used the Easement Property;
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(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Grantee and affiliates occurring whenever
Grantee uses or has used the Easement Property.
(b) Grantee shall fully indemnify, defend, and hold harmless State for any Liabilities
that arise out of or relate to Grantee's breach of obligations under Paragraph 8.5.
(c) If Grantee fails to exercise care as described in Paragraph 8.2(b)(2), Grantee shall
fully indemnify, defend, and hold harmless State from and against Liabilities
arising from the acts or omissions of third parties in relation to the release or
threatened release of Hazardous Substances.
8.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 8.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all such rights, claims, immunities, and defenses
that either Party may have against third parties. Nothing in this Section 8 benefits
or creates rights for third parties.
(c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 8
do not release either Party from or affect the liability of either Party for Hazardous
Substances claims or actions by regulatory agencies.
8.9 Cleanup.
(a) If Grantee's act, omission, or breach of obligation under Paragraph 8.4 results in a
release of Hazardous Substances that exceeds the threshold limits of any
applicable regulatory standards, Grantee shall, at Grantee's sole expense,
promptly take all actions necessary or advisable to clean up the Hazardous
Substances in accordance with applicable law.
(b) If a cleanup is eligible for the Washington State Department of Ecology's
Voluntary Cleanup Program, Grantee may undertake a cleanup of the Easement
Property pursuant to the Washington State Department of Ecology's Voluntary
Cleanup Program, provided that Grantee cooperates with the Department of
Natural Resources in development of cleanup plans. Grantee shall not proceed
with Voluntary Cleanup without the Department of Natural Resources' approval
of final plans. Nothing in the operation of this provision is an agreement by the
Department of Natural Resources that the Voluntary Cleanup complies with any
laws or with the provisions of this Easement. Grantee's completion of a Voluntary
Cleanup is not a release from or waiver of any obligation for Hazardous
Substances under this Easement.
8.10 Sampling by State, Reimbursement, and Split Samples.
(a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of
the Easement Property at any time to determine the existence, scope, or effects of
Hazardous Substances.
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(b) If such Tests, along with any other information, demonstrate a breach of
Grantee's obligations regarding Hazardous Substances under this Easement,
Grantee shall promptly reimburse State for all costs associated with such Tests,
provided State gave Grantee thirty (30) days' advance notice in nonemergencies,
and reasonably practical notice in emergencies.
(c) In nonemergencies, Grantee is entitled to obtain split samples of Test samples,
provided Grantee gives State written notice requesting split samples at least ten
(10) days before State conducts Tests. Upon demand, Grantee shall promptly
reimburse State for additional cost, if any, of split samples.
(d) If either Party conducts Tests on the Easement Property, the conducting Party
shall provide the other Party with validated final data and quality
assurance/quality control/chain of custody information about the Tests within
sixty (60) days of a written request by the other Party, unless Tests are part of a
submittal under Paragraph 8.6(c) in which case Grantee shall submit data and
information to State without written request by State. Neither party is obligated to
provide any analytical summaries or the work product of experts.
SECTION 9 NATURE OF ESTATE AND ASSIGNMENT
This Easement shall be in gross for the sole benefit of Grantee's use associated with the
Permitted Use. This Easement shall not run with the land. This Easement is indivisible. Grantee
shall not sell, convey, mortgage, assign, pledge, grant franchises for, or otherwise transfer or
encumber any part of Grantee's interest in this Easement or any part of Grantee's interest in the
Easement Property without State's prior written consent, which shall be at State's sole discretion.
State reserves the right to reasonably change the terms and conditions of this Easement upon
State's consent to requests made under this Section 9.
SECTION 10 INDEMNITY, INSURANCE, FINANCIAL SECURITY
10.1 Allocation of Responsibility. Each Party shall be responsible for the actions and
inactions of itself and its own officers, employees, and agents acting within the scope of their
authority. Section 8, Environmental Liability/Risk Allocation, exclusively shall govern Grantee's
liability to State for Hazardous Substances and its obligation to indemnify, defend, and hold
harmless State for Hazardous Substances.
10.2 Insurance Terms.
(a) Insurance Required.
(1) Grantee certifies that on the Commencement Date of this Easement it is a
member of a self -insured risk pool for all the liability exposures, its self-
insurance plan satisfies all State requirements, and its self-insurance plan
provides coverage equal to that required in this Paragraph 10.2 and by
Paragraph 10.3, Insurance Types and Limits. Grantee shall provide to
State evidence of its status as member of a self -insured risk pool. Upon
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request by State, Grantee shall provide a written description of its financial
condition and/or the self -insured funding mechanism. Grantee shall
provide State with at least thirty (30) days' written notice prior to any
material changes to Grantee's self -insured funding mechanism. If during
the Term Grantee's self-insurance plan fails to provide coverage equal to
that required in Paragraph 10.2 and Paragraph 10.3 of this Easement,
Grantee shall procure additional commercial insurance coverage to meet
the requirements of this Easement. The requirements in Paragraphs
10.2(a)(3) and (4) only apply where the Grantee procures additional
commercial insurance to meet the requirements of this Easement.
(2) Unless State agrees to an exception, Grantee shall provide insurance
issued by an insurance company or companies admitted to do business in
the State of Washington and have a rating of A- or better by the most
recently published edition of A.M. Best's Insurance Reports. Grantee may
submit a request to the risk manager for the Department of Natural
Resources to approve an exception to this requirement. If an insurer is not
admitted, the insurance policies and procedures for issuing the insurance
policies shall comply with Chapter 48.15 RCW and 284-15 WAC.
(3) All general liability, excess, umbrella, and pollution legal liability
insurance policies must name the State of Washington, the Department of
Natural Resources, its elected and appointed officials, officers, agents, and
employees as an additional insured by way of endorsement.
(4) All property, builder's risk, and equipment breakdown insurance must
name the State of Washington, the Department of Natural Resources, its
elected and appointed officials, officers, agents, and employees as loss
payees.
(5) All insurance provided in compliance with this Easement must be primary
as to any other insurance or self-insurance programs afforded to or
maintained by State.
(b) Waiver.
(1) Grantee waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Easement covers these
damages.
(2)
Except as prohibited by law, Grantee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this Easement.
(c) Proof of Insurance.
(1)
Grantee shall provide State with a certificate(s) and endorsement(s) of
insurance executed by a duly authorized representative of each insurer,
showing compliance with insurance requirements specified in this
Easement and, if requested, copies of policies to State.
(2)
The certificate(s) of insurance must reference the Easement number.
(3)
Receipt of such certificates, endorsements, or policies by State does not
constitute approval by State of the terms of such policies.
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(d) State must receive written notice before cancellation or non -renewal of any
insurance required by this Easement, as follows:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium,
provide State ten (10) days' advance notice of cancellation; otherwise,
provide State forty-five (45) days' advance notice of cancellation or non -
renewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to
non-payment of premium, provide State ten (10) days' advance notice of
cancellation; otherwise, provide State twenty (20) days' advance notice of
cancellation or non -renewal.
(e) Adjustments in Insurance Coverage.
(1) State may impose changes in the limits of liability for all types of
insurance as State deems necessary.
(2) Grantee shall secure new or modified insurance coverage within thirty
(30) days after State requires changes in the limits of liability.
(f) If Grantee fails to procure and maintain the insurance required in this Easement
within fifteen (15) days after Grantee receives a notice to comply from State,
State may either:
(1) Terminate this Easement, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Grantee shall pay to State the full amount paid
by State, together with interest at the rate provided in Paragraph 6.3 from
the date of State's notice of the expenditure until Grantee's repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this
Easement are adequate to protect Grantee.
(2) Coverage and limits do not limit Grantee's liability for indemnification
and reimbursements granted to State under this Easement.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to Easement Property first to restore the Easement Property,
then to pay the cost of the reconstruction, then to pay State any sums in
arrears, and then to Grantee.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Grantee shall maintain commercial general liability insurance (CGL) or
marine general liability (MGL) covering claims for bodily injury, personal
injury, or property damage arising on the Easement Property and/or
arising out of the Permitted Use and, if necessary, commercial umbrella
insurance with a limit of not less than One Million Dollars ($1,000,000)
per each occurrence. If such CGL or MGL insurance contains aggregate
limits, the general aggregate limit must be at least twice the "each
occurrence" limit. CGL or MGL insurance must have products -completed
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operations aggregate limit of at least two times the "each occurrence"
limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross -liability)
condition.
(3) MGL insurance must have no exclusions for non -owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) ' Grantee shall comply with all State of Washington workers'
compensation statutes and regulations. Grantee shall provide
workers' compensation coverage for all employees of Grantee.
Coverage must include bodily injury (including death) by accident
or disease, which arises out of or in connection with the Permitted
Use or related activities.
(ii) If Grantee fails to comply with all State of Washington workers'
compensation statutes and regulations and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees, Grantee shall indemnify State. Indemnity shall include
all fines; payment of benefits to Grantee, employees, or their heirs
or legal representatives; and the cost of effecting coverage on
behalf of such employees.
(2) Longshore and Harbor Workers' and Jones Acts. The Longshore and
Harbor Workers' Act (33 U.S.C. Section 901 et seq.) and/or the Jones Act
(46 U.S.C. Section 30104) may require Grantee to provide insurance
coverage in some circumstances. Grantee shall ascertain if such insurance
is required and, if required, shall maintain insurance in compliance with
the law. Grantee is responsible for all civil and criminal liability arising
from failure to maintain such coverage.
(c) Employers' Liability Insurance. Grantee shall procure employers' liability
insurance, and, if necessary, commercial umbrella liability insurance with limits
not less than One Million Dollars ($1,000,000) each accident for bodily injury by
accident and One Million Dollars ($1,000,000) each employee for bodily injury
by disease.
(d) Builder's Risk Insurance.
(1) Grantee shall procure and maintain in force, or require its contractor(s) to
procure and maintain in force, builder's risk insurance on the entire work
during the period construction is in progress and until completion of the
project and acceptance by State. Such insurance must be written on a
completed form and in an amount equal to the value of the completed
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Improvements, subject to subsequent modifications to the sum. The
insurance must be written on a replacement cost basis. The insurance must
name Grantee, all contractors, and subcontractors in the work as insured.
(2) Insurance described above must cover or include the following:
(i) All risks of physical loss except those specifically excluded in the
policy, including loss or damage caused by collapse;
(ii) The entire work on the Easement Property, including reasonable
compensation for architect's services and expenses made necessary
by an insured loss;
(iii) Portions of the work located away from the Easement Property but
intended for use at the Easement Property, and portions of the
work in transit
(iv) Scaffolding, falsework, and temporary buildings located on the
Easement Property; and
(v) The cost of removing debris, including all demolition as made
legally necessary by the operation of any law, ordinance, or
regulation.
(3) Grantee or Grantee's contractor(s) is responsible for paying any part of
any loss not covered because of application of a deductible contained in
the policy described above.
(e) Pollution Legal Liability Insurance.
(1) Grantee shall procure and maintain for the duration of this Easement
pollution legal liability insurance, including investigation and defense
costs, for bodily injury and property damage, including loss of use of
damaged property or of property that has not been physically injured or
destroyed. Such coverage must also provide for both on -site and off -site
cleanup costs, cover gradual and sudden pollution, and include in its scope
of coverage natural resource damage claims. The Insurance Certificate
must state that the insurer is covering Hazardous Substance removal.
Grantee shall maintain coverage in an amount of at least:
(i) Two Million Dollars ($2,000,000) each occurrence for Grantee's
operations at the site(s) identified above, and
(ii) Five Million Dollars ($5,000,000) general aggregate or policy
limit, if any.
(2) Such insurance may be provided on an occurrence or claims -made basis. If
such coverage is obtained as an endorsement to the CGL or is provided on
a claims -made basis, the following additional conditions must be met:
(i) The policy must contain no retroactive date, or the retroactive date
must precede the Commencement Date of the Easement.
(ii) Coverage must either be continuously maintained for a period of
five (5) years following the Termination Date of the Easement, or
an extended reporting period of at least five (5) years following the
Termination Date of the Easement shall be purchased. .
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10.4 Financial Security.
(a) On the Commencement Date of this Easement, Grantee is not required to procure
and maintain a corporate security bond or other financial security ("Security").
During the Term, State may require Grantee to procure and maintain Security
upon any of the events listed in Paragraph 10.4(c)(1). Grantee's failure to
maintain the Security in the required amount during the Term constitutes a breach
of this Easement.
(b) All Security must be in a form acceptable to State.
(1) Bonds must be issued by companies admitted to do business within the
State of Washington and have a rating of A-, Class VII or better, in the
most recently published edition of A.M. Best's Insurance Reports, unless
State approves an exception in writing. Grantee may submit a request to
the Risk Manager for the Department of Natural Resources for an
exception to this requirement.
(2) Letters of credit, if approved by State, must be irrevocable, allow State to
draw funds at will, provide for automatic renewal, and comply with
RCW 62A.5-101, et. seq.
(3) Savings account assignments, if approved by State, must allow State to
draw funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the Security amount:
(i) As a condition of approval of assignment of this Easement,
(ii) Upon a material change in the condition or disposition of any
Improvements, or
(iii) Upon a change in the Permitted Use.
(2) Grantee shall deliver a new or modified form of Security to State within
thirty (30) days after State has required adjustment of the amount of the
Security.
(d) Upon any breach by Grantee in its obligations under this Easement, State may
collect on the Security to offset the liability of Grantee to State. Collection on the
Security does not (1) relieve Grantee of liability, (2) limit any of State's other
remedies, (3) reinstate the Easement or cure the breach or (4) prevent termination
of the Easement because of the breach.
SECTION 11 MAINTENANCE AND REPAIR
11.1 State's Repairs. State shall not be required to make any alterations,
maintenance, replacements, or repairs in, on, or about the Easement Property, or any
part thereof, during the Term.
11.2 Grantee's Repairs and Maintenance.
(a) Grantee shall, at its sole cost and expense, keep and maintain the Easement
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Property and all Grantee -Owned Improvements in good order and repair, in a
clean, attractive, and safe condition. Grantee shall repair all damage caused or
permitted by Grantee to Improvements Owned by Others on the Easement
Property.
(b) Grantee shall, at its sole cost and expense, make any and all additions,
repairs, alterations, maintenance, replacements, or changes to the
Easement Property or to any Grantee -Owned Improvements on the
Easement Property that may be required by any public authority having
jurisdiction over the Easement Property and requiring it for public health,
safety and welfare purposes.
(c) Except as provided in Paragraph 11.2(d), all additions, repairs, alterations,
maintenance, replacements or changes to the Easement Property and to any
Grantee -Owned Improvements on the Easement Property shall be made in
accordance with, and ownership shall be governed by, Section 7 above.
(d) Routine maintenance and repair are acts intended to prevent a decline, lapse, or
cessation of the Permitted Use and associated Grantee -Owned Improvements.
Routine maintenance or repair that does not require regulatory permits does not
require authorization from State pursuant to Section 7.
(e) Upon completion of maintenance activities, Grantee shall remove all debris and
restore the Easement Property to the condition prior to the commencement of
Work.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Damage to Improvements.
(a) In the event of any damage to or destruction of any Improvements on the
Easement Property, Grantee shall immediately notify State, with subsequent
written notice to State within five (5) days.
(b) Grantee shall be solely responsible for any reconstruction, repair, or replacement
of any Grantee -Owned Improvements. If Grantee elects not to reconstruct, repair,
or replace all or a portion of any damaged Improvements, Grantee shall promptly
remove any damaged or destroyed Improvements and restore the Easement
Property. Any reconstruction, repair, or replacement of Improvements is governed
by Section 7 Improvements, Personal Property, and Work, and Section 11,
Maintenance and Repair, and any Additional Obligations in Exhibit B.
(c) If Grantee is in breach of this Easement at the time damage or destruction occurs
to Grantee -Owned Improvements, State may elect to terminate the Easement
without giving Grantee an opportunity to cure, and State may retain any insurance
proceeds payable as a result of the damage or destruction.
12.2 Damage to Land or Natural Resources
(a) In the event of any damage to or destruction to the land or natural resources on the
Easement Property, Grantee shall immediately notify State, with subsequent
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written notice to State within five (5) days. In the event of any damage or
destruction to land or natural resources on adjacent state-owned aquatic lands that
is attributable to Grantee's use of the Property, to the Permitted Use, or to related
activities, Grantee shall immediately notify State, with subsequent written notice
to State within five (5) days.
(b) Grantee, at Grantee's sole cost, shall remedy any damages to land or natural
resources on the Easement Property and adjacent state-owned aquatic lands that
are attributable to Grantee's use of the Property, the Permitted Use, or related
activities, in accordance with a plan approved by State. Grantee shall also
compensate State for any lost or damaged natural resource values in accordance
with Paragraph 12.2(c).
(c) Compensation for lost resource values:
(1) If damages to the land or natural resources result in lost or damaged
natural resource values, Grantee shall compensate State with (1) monetary
compensation; (2) the completion of a project approved by State that
includes replacing, enhancing, or otherwise providing in -kind habitats,
resources, or environments on other state-owned aquatic lands in order to
offset the damage and impacts; or (3) a mixture of both monetary
compensation and a project. State shall have the discretion to determine if
Grantee will compensate with monetary compensation, a project, or both.
If State requires monetary compensation, the value of damages shall be
determined in accordance with Paragraph 12.2(c)(2). If State requires
monetary compensation under Paragraph 12.2(c)(1), unless the Parties
otherwise agree on the value, a three -member panel of professional
appraisers or resource economists will determine the measure of lost
resource values, and issue a written decision. The appraisers or resource
economists shall be qualified to assess economic value of natural
resources. State and Grantee each shall appoint and compensate one
member of the panel. By consensus, the two appointed members shall
select the third member, who will be compensated by State and Grantee
equally. The panel shall base the calculation of compensation on generally
accepted valuation principles. The written decision of the majority of the
panel shall bind the Parties.
(d) If damage to land or natural resources on the Easement Property or adjacent state-
owned aquatic lands are attributable to Grantee's use of the Property, to the
Permitted Use, or to related activities, or if such damage occurs when Grantee is
in breach of the Easement, State may elect to terminate the Easement in
accordance with Section 14. If State elects to terminate the Easement, Grantee is
still responsible for restoring any damages to land or natural resources on the
Easement Property and adjacent state-owned aquatic lands, and for compensating
State for any lost resource values in accordance with Paragraph 12.2(c). State may
retain any insurance proceeds payable as a result of the damage or destruction.
(e) State may, with or without terminating the Easement, at the sole expense of
Grantee, remedy any damages and complete a project that offsets lost or damaged
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natural resource values. If State takes any such actions, upon demand by State,
Grantee shall pay all costs incurred by State.
12.3 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Easement Property or adjacent state-owned aquatic lands unless State provides written notice
to Grantee of each specific claim waived.
12.4 Insurance Proceeds. Grantee's duties under Paragraphs 12.1 and 12.2 are not
conditioned upon the availability of any insurance proceeds to Grantee from which the cost of
repairs may be paid. The Parties shall use insurance proceeds in accordance with Paragraph
10.2(g)(3).
SECTION 13 CONDEMNATION
In the event of condemnation, the Parties shall allocate the condemnation award between State
and Grantee based upon the ratio of the fair market value of (1) Grantee's rights in the Easement
Property and Grantee -Owned Improvements and (2) State's interest in the Easement Property;
the reversionary interest in Grantee -Owned Improvements, if any; and State -Owned
Improvements, if any. In the event of a partial taking, the Parties shall compute the ratio based on
the portion of Easement Property or Improvements taken. If Grantee and State are unable to
agree on the allocation, the Parties shall submit the dispute to binding arbitration in accordance
with the rules of the American Arbitration Association.
SECTION 14 REMEDIES AND TERMINATION
14.1 Termination by Breach. State may terminate this Easement upon Grantee's failure to
cure a breach of the terms and conditions of this Easement. Unless otherwise stated in this
Easement, State shall provide Grantee written notice of breach, and Grantee shall have sixty (60)
days after receiving the notice to cure the breach. State may extend the cure period if breach is
not reasonably capable of cure within sixty (60) days. This sixty (60) day cure period does not
apply where State terminates this Easement under Paragraph 10.2(f) or Section 12.
14.2 Termination by Nonuse. If Grantee does not use the Easement Property for a period of
three (3) successive years, this Easement terminates without further action by State and
Grantee's rights revert to State. Grantee shall still be responsible for complying with all end of
Term requirements.
14.3 Termination by Grantee. Grantee may terminate this Easement upon providing State
with sixty (60) days written notice of intent to terminate. If Grantee terminates under this
Paragraph, the date of Grantee's termination shall be deemed the Termination Date and Grantee
shall comply with all end of Term requirements. Grantee is not entitled to any refunds of
Easement fees already paid to State.
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14.4 Remedies Not Exclusive. The remedies specified under this Section 14 are not exclusive
of any other remedies or means of redress to which State is lawfully entitled for Grantee's breach
or threatened breach of any provision of this Easement.
SECTION 15 NOTICE AND SUBMITTALS
15.1 Notice. Following are the locations for delivery of notice and submittals required or
permitted under this Easement. Any Party may change the place of delivery upon ten (10) days'
written notice to the other.
State: DEPARTMENT OF NATURAL RESOURCES
Aquatic Resources, Rivers District
601 Bond Rd I P.O. Box 280
Castle Rock, WA 98611
Grantee: CITY OF PASCO PUBLIC WORKS
525 N. 3rd Avenue
Pasco, WA 99301
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery, notice is effective upon personal delivery, upon receipt of
a confirmation report if delivered by facsimile machine, or three (3) days after mailing. All
notices must identify the Easement number. On notices transmitted by facsimile machine, the
Parties shall state the number of pages contained in the notice, including the transmittal page, if
any.
15.2 Contact Persons. On the Commencement Date, the following persons are designated
day-to-day contact persons. Any Party may change the Contact Person upon reasonable notice to
the other.
State: DEPARTMENT OF NATURAL RESOURCES
Aquatic Resources, Rivers District
360-748-2387
rivers@dnr.wa.gov
Grantee: CITY OF PASCO PUBLIC WORKS
Jon Padvorac, City Engineer
509-545-3445
padvoracj@pasco-wa.gov
SECTION 16 MISCELLANEOUS
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16.1 Authority. Grantee and the person or persons executing this Easement on behalf of
Grantee represent that Grantee is qualified to do business in the State of Washington, that
Grantee has full right and authority to enter into this Easement, and that each and every person
signing on behalf of Grantee is authorized to do so. Upon State's request, Grantee shall provide
evidence satisfactory to State confirming these representations.
16.2 Successors and Assigns. Subject to the limitations set forth in Section 9, this Easement
binds and inures to the benefit of the Parties, their successors, and assigns.
16.3 Headings. The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
16.4 Entire Agreement. This Easement, including the exhibits, attachments, and addenda, if
any, contains the entire agreement of the Parties. This Easement merges all prior and
contemporaneous agreements, promises, representations, and statements relating to this
transaction or to the Easement Property.
16.5 Waiver.
(a) The waiver of any breach of any term, covenant, or condition of this Easement is
not a waiver of such term, covenant, or condition; of any subsequent breach of the
same; or of any other term, covenant, or condition of this Easement. State's
acceptance of a payment is not a waiver of any preceding or existing breach other
than the failure to pay the particular payment that was accepted.
(b) The renewal of the Easement, extension of the Easement, or the issuance of a new
Easement to Grantee, does not waive State's ability to pursue any rights or
remedies under the Easement.
16.6 Cumulative Remedies. The rights and remedies of State under this Easement are
cumulative and in addition to all other rights and remedies afforded by law or equity or
otherwise.
16.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Easement.
16.8 Language. The word "Grantee" as used in this Easement applies to one or more persons
and regardless of gender, as the case may be. The singular includes the plural, and the neuter
includes the masculine and feminine. If there is more than one Grantee, their obligations are joint
and several. The word "persons," whenever used, shall include individuals, firms, associations,
and corporations. The word "Parties" means State and Grantee in the collective. The word
"Party" means either or both State and Grantee, depending on the context.
16.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Easement does
not affect, impair, or invalidate any other provision of this Easement.
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16.10 Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Venue for any action arising out of or in
connection with this Easement is in the Superior Court for Thurston County, Washington.
16.11 Statutory Reference. Any reference to a statute or rule means that statute or rule as
presently enacted or hereafter amended or superseded.
16.12 Recordation. At Grantee's expense and no later than thirty (30) days after receiving the
fully -executed Easement, Grantee shall record this Easement in the county in which the
Easement Property is located. Grantee shall include the parcel number of the upland property
used in conjunction with the Easement Property, if any. Grantee shall provide State with
recording information, including the date of recordation and file number. If Grantee fails to
record this Easement, State may record this Easement and Grantee shall pay the costs of
recording upon State's demand.
16.13 Modification. No modification of this Easement is effective unless in writing and signed
by both Parties. Oral representations or statements do not bind either Party.
16.14 Survival. Any obligations of Grantee not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantee until fully performed.
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16.15 Exhibits and Attachments. All referenced exhibits and attachments are incorporated in
this Easement unless expressly identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
CITY OF PASCO PUBLIC WORKS
Dated: , 20
Dated: , 20
By:
JON PADVORAC
Title:
City Engineer
Address:
525 N. 3rd Avenue
Pasco, WA 99301
Phone:
509-545-3445
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
By: THOMAS A. GORMAN
Title: Aquatic Resources Division
Manager
Address: I I I I Washington St SE
MS 47027
Olympia, WA 98504
Aquatic Lands Easement
Template approved as to form this
1 Oth day of January 2022
Jennifer Clements, Assistant Attorney General
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REPRESENTATIVE ACKNOWLEDGMENT
Notarized online using audio -video communication
STATE OF )
) ss.
County of )
I certify that I know or have satisfactory evidence that JON PADVORAC is the person who
appeared before me, and said person acknowledged that he signed this instrument, on oath stated
that he was authorized to execute the instrument and acknowledged it as the City Engineer of the
City of Pasco to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
This notarial act involved the use of communication technology.
Dated: , 20
(Seal or stamp)
(Signature)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
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STATE ACKNOWLEDGMENT
Notarized online using audio -video communication
STATE OF WASHINGTON)
) ss.
County of )
I certify that I know or have satisfactory evidence that THOMAS A. GORMAN is the person
who appeared before me, and said person acknowledged that they signed this instrument, on oath
stated that they were authorized to execute the instrument and acknowledged it as the Division
Manager of Aquatics of the Department of Natural Resources, to be the free and voluntary act of
such party for the uses and purposes mentioned in the instrument.
This notarial act involved the use of communication technology.
Dated: .20
(Seal or stamp)
(Signature)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
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EXHIBIT A
PROPERTY DESCRIPTION
Agreement Number 51-103464
1. LEGAL DESCRIPTION OF THE PROPERTY:
The proposed temporary construction easement is legally described as DNR Easement
Application and File No. 51-103464, also in that Record of Survey recorded in Franklin
County, Washington on X, 2023 in Book X of Surveys on page X.
2. SQUARE FOOTAGE OF EASEMENT:
Total Bedlands: 675,312
Total Square Feet: 675,312
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survey.
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EXHIBIT B
DESCRIPTION OF PERMITTED USE
A. Existing Facilities. The temporary easement needed for expanded construction is
located in Franklin County, Washington, within the Columbia River. The existing 24-
inch diameter gravity outfall pipeline and in -river diffuser are at or near capacity due
to hydraulic constraint, and will be replaced with a 42-inch diameter high density
polyethylene pipe, and new diffuser.
B. Proposed Work. State authorizes Grantee to conduct the following Proposed Work
on the Easement Property: installation of a temporary work bridge for excavation,
excavation and trenching for the area of the outfall pipe, installation of sheet piling
with vibratory hammer, installation of approximately six (6) guide piles 24-inch
diameter by vibratory hammer, installation of a turbidity curtain, removal and storage
of excavated material in an offsite location or within approved uplands areas,
installation of quarry spalls, protective rock cover, native backfill, and approved fix
mix, and removal of trench sheet piles and guide piles. Grantee's Proposed Work is
considered Work and is subject to the terms and conditions of this Easement. If the
Proposed Work is not commenced within five years of the Commencement Date of
the Easement, or if Grantee is required to renew, extend, modify, or obtain a new
regulatory permit for the Proposed Work, Grantee shall obtain State's prior written
consent before conducting the Proposed Work pursuant to Section 7.3 of the
Easement.
C. Permits for Proposed Work. Grantee has secured the following permits for the
Proposed Work:
• SERP (State Environmental Review Process) Submittal, Clean Water
Preservation Project, WQC-2021-Pasco-00020 and WQC-2022-Pasco-00044,
Department of Ecology, issued September 29, 2022.
• National Pollutant Discharge Elimination System (NPDES) Waste Discharge
Permit No. WA-004496-2, Department of Ecology, issued June 29, 2010, expires
June 30, 2015. Permit has been administratively extended while the Department
of Ecology (Ecology) generates a new permit.
• Construction Stormwater General Permit: WAR312101, Department of Ecology,
issued February 14, 2023.
• Letter of Concurrence for Determination of No Historic Properties, Section 106 of
the National Historic Preservation Act, DAHP Project Number 2022-04-02720,
Department of Ecology, Water Quality Program, issued October 12, 2022.
• Hydraulic Project Approval: 2022-3-53+01, Washington Department of Fish and
Wildlife, issued November 15, 2022, expires November 14, 2027.
• SEPA Checklist, City of Pasco, signed July 5, 2022.
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• SEPA Notice of Mitigated Determination of Non -Significance: SEPA 2022-069,
City of Pasco, issued July 27, 2022.
• Shoreline Substantial Development and Conditional Use permit (includes Critical
Areas): SMP 2022-003, City of Pasco, issued August 18, 2022.
• Biological Opinion and Letter of Concurrence: FWS/Rl/2022-0036919, United
States Department of the Interior Fish and Wildlife, issued September 27, 2022.
• Nationwide Permit 1 and 7: NWS-2022-223, Department of Army Corp of
Engineers, issued September 15, 2022, expires March 14, 2027 (includes DOE
401 and CZMA certification).
• Tier 1 Antidegradation Evaluation for the City of Pasco WWTP Clean Water
Preservation Project Phase 2 in Pasco, Washington, USACE Reference # NWS-
2022-223, Dredged Material Management Office (DMMP), issued May 20, 2022.
• Endangered Species Act Biological Opinion: WCRO-2022-01039, United States
Department of Commerce National Oceanic and Atmospheric Administration
(NOAA), issued November 17, 2022.
• Private Aids to Navigation (PATON) Permit, United States Coast Guard, issued
October 25, 2022.
2. ADDITIONAL OBLIGATIONS
None.
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