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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 $1,870.00; and WHEREAS, the City and its consultants consider this a reasonable value and a prudent use of public resources. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON: That the City Manager of the City of Pasco, Washington, is hereby authorized, empowered, and directed to sign and execute the Aquatic Lands Right of Entry No. 23-104550 and the Aquatic Lands Easement No. 51-104551 with the State of Washington Department of Natural Resources in substantially the same form as copies attached hereto and incorporated herein by this reference as Exhibit A and Exhibit B; and to make minor substantive changes as necessary to execute the documents. Be It Further Resolved that this Resolution shall take effect and be in full force immediately upon passage by the City Council. Resolution WWTP-DNR ROE & Easement for PH 2A- 1 PASSED by the City Council of the City of Pasco, Washington, on this 17th day of July, 2023. Blanche Barajas Mayor ATTEST: Debra Barham, CMC City Clerk Resolution WWTP-DNR ROE & Easement for PH 2A- 2 APPROVED AS TO FORM: Kerr Wttomeys Law, PLLC EXHIBIT A THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER �'SNINQ►O� O w Ai • O a aATuIL HILARY S. FRANZ �OMra7VSJOWA pf e0BUC IANC'$ 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 1 of 17 Right of Entry No. 23-104550 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 2 of 17 Right of Entry No. 23-104550 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 3 of 17 Right of Entry No. 23-104550 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 4 of 17 Right of Entry No. 23-104550 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 5 of 17 Right of Entry No. 23-104550 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 Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 6 of 17 Right of Entry No. 23-104550 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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 Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 7 of 17 Right of Entry No. 23-104550 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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, Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 8 of 17 Right of Entry No. 23-104550 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 9 of 17 Right of Entry No. 23-104550 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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 Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 10 of 17 Right of Entry No. 23-104550 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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. Aquatic Lands Right of Entry (Rev. 7/14/2021) Page 11 of 17 Right of Entry No. 23-104550 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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) AVE T09N R30E S32 WM WA Seddlnnda 4 QVft Area-675,225 SF i Y e� Wg Nf;R$t8N s A•:E aU E = eared by: MAC Date 519/202' MMORFM AVE 11142= Proposed Outfall Pipeline + z:zx_e k" 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 O!V"\h AO e w s M� 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: Aquatic Lands Easement (1/10/2022) Page 1 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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: Aquatic Lands Easement (1/10/2022) Page 2 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 3 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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. Aquatic Lands Easement (1/10/2022) Page 4 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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 Aquatic Lands Easement (1/10/2022) Page 5 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 6 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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. Aquatic Lands Easement (1/10/2022) Page 7 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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. Aquatic Lands Easement (1/10/2022) Page 8 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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: Aquatic Lands Easement (1/10/2022) Page 9 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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. Aquatic Lands Easement (1/10/2022) Page 10 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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. Aquatic Lands Easement (1/10/2022) Page 11 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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; Aquatic Lands Easement (1/10/2022) Page 12 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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; Aquatic Lands Easement (1/10/2022) Page 13 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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. Aquatic Lands Easement (1/10/2022) Page 14 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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 Aquatic Lands Easement (1/10/2022) Page 15 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 16 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER (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 Aquatic Lands Easement (1/10/2022) Page 17 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 18 of32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. . Aquatic Lands Easement (1/10/2022) Page 19 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 20 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 21 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 22 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 23 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 24 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 25 of 32 Easement No. 51-104551 THIS DRAFT DOES NUT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 26 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 27 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 28 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 29 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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 Aquatic Lands Easement (1/10/2022) Page 30 of 32 Easement No. 51-104551 Commented [GS(31: Edit Once I get the approved and recorded survey. THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER 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. Aquatic Lands Easement (1/10/2022) Page 31 of 32 Easement No. 51-104551 THIS DRAFT DOES NOT CONSTITUTE AN OFFER NOR A COMMITMENT TO EXTEND AN OFFER • 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. Aquatic Lands Easement (1/10/2022) Page 32 of 32 Easement No. 51-104551