HomeMy WebLinkAbout4362 Resolution - WWTP PH 2A DNR Term Aquatic Easement 51-103464RESOLUTION NO.4362
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
AUTHORIZING THE CITY MANAGER TO SIGN AND EXECUTE THE
AQUATIC LANDS OUTFALL EASEMENT NO.51-103464 WITH THE STATE
OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES FOR THE
WASTEWATER TREATMENT PLANT OUTFALL PIPE.
WHEREAS, the City of Pasco (City) desires to operate a 42-inch diameter wastewater
treatment plant outfall pipe with appurtenances to discharge effluent into the Columbia River; and
WHEREAS, the outfall pipe and appurtenances 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 term easement which will allow the City to operate said outfall and appurtenances on
State owned aquatic lands within the Columbia River; and
WHEREAS, the City applied for a term easement and received approval from the DNR to
operate said outfall pipe and appurtenances to discharge effluent into the Columbia River for a
period of thirty (30) years; and
WHEREAS, the fee associated with the Aquatic Lands Outfall Easement No. 51-103464
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 Outfall Easement No. 51-103464 with the State
of Washington Department of Natural Resources in substantially the same form as a copy attached
hereto and incorporated herein by this reference as Exhibit A; and to make minor substantive
changes as necessary to execute the Easement.
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 Term Aquatic Easement for PH 2A - 1
PASSED by the City Council of the City of Pasco, Washington, on this 17th day of July,
2023.
17(�
Blanche Barajas
Mayor
ATTEST:
1'�
Debra Barham, CMC
City Clerk
APPROVED AS TO FORM:
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Kerr Fer aw, PLLC
Cit torneys
Resolution WWTP — DNR Term Aquatic Easement for PH 2A - 2
EXHIBIT A
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
When recorded, return to:
Attn: Jon Padvorac
City of Pasco Public Works
525 N. 3rd Avenue
Pasco, Washington 99301
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RH ARY S. FRANZ
COMMtSSIONER01 VUS11C (ANpS
AQUATIC LANDS OUTFALL EASEMENT
EASEMENT NO.51-103464
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 SW1A, NE1/4 SW1/4
Section 32, Township 9 North, Range 30 East,W.M.
Complete Legal Description on Page 32
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).
BACKGROUND
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Commented [GS(1]: Need the final recorded ROS (Record of
Survey)
THIS DRAFT DOES NOT CONSTITUTE AN OFFER
NOR A COMMITMENT TO EXTEND AN OFFER
Grantee desires to use state-owned aquatic lands located in Frankling County, Washington for
the purpose of discharging effluent from an outfall pipeline. Grantee has obtained the necessary
regulatory authorizations for this purpose including, but not limited to, a National Pollutant
Discharge Elimination System ("NPDES") Permit.
State is willing to grant an easement for a term to Grantee in reliance upon Grantee's promises to
operate the outfall and conveyance system in compliance with all laws and permits and in the
manner as described in all regulatory authorizations.
State's goals are to promote water re -use and reduce reliance on in -water disposal of waste
effluent, storm water, and other discharges that affect the use and environmental conditions of
state-owned aquatic lands and associated biological communities.
THEREFORE, the Parties agree as follows:
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 S` class shoreiands 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 Frankin 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.
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NOR A COMMITMENT TO EXTEND AN OFFER
(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.
1.4 Documentation of Easement Property Condition.
(a) To the extent satisfactory to State, Grantee shall film the condition and
appearance of the Easement Property within one hundred eighty days (180) days
of the Commencement Date, documenting the condition of both the water surface
and the underwater land. Grantee shall provide a true copy of such film and sworn
inspection report to State within three hundred sixy-five (365) days of the
Commencement Date.
(b) Within one hundred eighty days (180) days days before the Termination Date, or
within one hundred eighty days (180) days days after receiving a valid early
notice to terminate, Grantee shall film the appearance of the Easement Property to
the same extent as documented at the beginning of Term. Grantee shall provide a
true copy of such documentation to State within three hundred sixy-five (365)
days days after the completion of the filming.
SECTION 2 USE
2.1 Permitted Use. This Easement is granted for the purpose of and is limited to:
One (1) 42-inch diameter high -density polyethylene (HDPE) pipe utilized for
discharge of waste water treatment effluent (the "Permitted Use").
Exhibit B includes additional details about the Permitted Use, the Easement Property, and the
Improvements. Exhibit B also includes additional obligations on Grantee. 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:
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(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,
refuse, garbage, waste matter (including, but not limited to, chemical,
biological, or toxic wastes), hydrocarbons, 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 terns 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.
(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.
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(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. Grantee shall mark the location and limits of the
Improvements located on the Easement Property. The signs and notices shall
identify the type of installation (e.g., an outfall pipe), identify Grantee as the
entity responsible for the Permitted Use and its maintenance, and be posted in
location that gives reasonable notice to the public. When required by applicable
law or regulation Grantee shall facilitate amendment of official navigational
charts to indicate existence and location of submerged Improvements.
2.6 Amendment Upon Change of Permit Status. State reserves the right to amend the
terms and conditions of this Easement whenever any regulatory authority (1) modifies a permit
in a manner affecting the provisions of this Easement; or (2) allows for a change in the manner of
outfall operation including, but not limited to, a change in the type, quality, or quantity of
discharge. Nothing in this Paragraph or Easement shall be deemed to allow Grantee to change
the type, quality, or quantity of discharge without fast obtaining the consent of State.
SECTION 3 TERM
3.1 Term Defined. The term of this Easement is thirty (30) years, beginning on the jj day
of [�, 20[ 1(the "Commencement Date"), and ending on the [_j day of [ _____J,
201j (the "Termination Date"), unless terminated sooner under the terms of this Easement (the commented [Gs(2): Date will be determined closer to
"Term"). Whenever the phrase "termination of this Easement" or "termination of the Easement" execution of contact.
is used in this Easement, it shall refer to the ending, termination, cancellation, or expiration of
the Easement.
3.2 Renewal of Easement and/or Application for New Easement.
(a) 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.
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Grantee's plans for restoring the Easement Property shall be submitted to
State for prior approval in accordance with Section 7 of this Easement.
(3) If Permittee fails to restore the condition of the Easement Property as
required by this Paragraph, State may take steps reasonably necessary to
remedy Permittee's failure. Upon demand by State, Permittee 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
(S1,870.00), 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.
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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
Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to the
delay.
63 Interest Penalty for Past Due Fees and Other Sums Owed.
(a) Grantee shall pay interest on the past due fees at the rate of one percent (1%) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Fees not paid by the close of business on the due date will begin
accruing interest the day after the due date.
(b) If State pays or advances any amounts for or on behalf of Grantee, Grantee shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (1 %) per month from the date State notifies
Grantee of the payment or advance. This includes, but is not limited to State's
payment of taxes, assessments, insurance premiums, costs of removal and
disposal of unauthorized materials, costs of removal and disposal of
Improvements under any provision of this Easement, or other amounts not paid
when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
full payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Grantee
shall pay collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Grantee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. State may accept
payment in any amount without prejudice to State's right to recover the balance or pursue any
other right or remedy. No endorsement or statement on any check, any payment, or any letter
accompanying any check or payment constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS, PERSONAL PROPERTY, AND WORK
7.1 Improvements and Personal Property Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.140, are additions
within, upon, or attached to the Easement Property. Improvements include, but
are not limited to, fill, structures, and fixtures.
(b) "Personal Property" means items that can be removed from the Easement
Property without (1) injury to the Easement Property, adjacent state-owned lands
or Improvements; or (2) diminishing the value or utility of the Easement Property,
adjacent state-owned lands, or Improvements.
(c) "State -Owned Improvements" are Improvements made or owned by the State of
Washington. State -Owned Improvements include any construction, alteration, or
addition to State -Owned Improvements made by Grantee.
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(d) "Grantee -Owned Improvements" are (1) Improvements owned by Grantee that
are existing on the Easement Property on the Commencement Date or (2)
Improvements made by Grantee with State's consent.
(e) "Unauthorized Improvements" are Improvements made on the Easement Property
during the Term without State's prior consent or Improvements made by Grantee
that do not conform with plans submitted to and approved by State.
(f) "Improvements Owned by Others" are Improvements made by others with a right
to occupy or use the Easement Property or adjacent state-owned lands.
7.2 Existing Improvements. On the Commencement Date there are no Improvements
located on the Easement Property.
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 and any design plans and specifications developed
pursuant to Washington Department of Ecology laws and rules for
discharges 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. Grantee shall submit the
following additional information to State with Grantee's plans and
specifications:
(a) Grantee shall submit the mixing zone analysis for new or
reconstructed outfalls prepared by the Washington State
Department of Ecology in accordance with the Department of
Ecology Water Quality Program Permit Writer's Manual
Publication No. 92-109 Appendix C.
(b) Grantee shall include documentation that the designs and
specifications of the outfall are consistent with Department of
Ecology Criteria for Sewage Works Design (Publication #98-37).
If State, Department of Ecology, or any other regulatory agency
establishes different standards, Grantee shall meet the most
protective standard.
(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
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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.
(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.
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(2) If Grantee commences Work five years or more after the Commencement
Date, Grantee shall comply with State's then -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.
(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) AND 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.
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(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. If the
Grantee -Owned Improvements are no longer used as part of an operational
or active outfall, State may condition its waiver of removal on Grantee
entering into a new Easement for the storage of the Grantee -Owned
Improvements.
(3) State may waive requirement to remove Grantee -Owned Improvements
upon consideration of a timely request from Grantee, as follows:
(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.
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(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.
(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;
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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.
(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 thud 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.
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(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.
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;
(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,
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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;
(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) Grantee is obligated to indemnify under this Paragraph 8.7 regardless of whether
a NPDES or other permit or license authorizes the discharge or release of
Hazardous Substances.
(d) 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.
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(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.
(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.
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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
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.
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(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 terns of such policies.
(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.
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(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
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
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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) 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.
(e) Property Insurance.
(1) Grantee shall buy and maintain property insurance covering all real
property and fixtures, equipment, Improvements and betterments
(regardless of whether owned by Grantee or State). Such insurance must
be written on an all risks basis and, at minimum, cover the perils insured
under ISO Special Causes of Loss Form CP 10 30, and cover the full
replacement cost of the property insured. Such insurance may have
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commercially reasonable deductibles. Any coinsurance requirement in the
policy must be waived.
(2) Grantee shall buy and maintain equipment breakdown insurance covering
all real property and fixtures, equipment, Improvements and betterments
(regardless of whether owned by Grantee or State) from loss or damage
caused by the explosion of equipment, fired or unfired vessels, electric or
steam generators, electrical arcing, or pipes.
(3) In the event of any loss, damage, or casualty that is covered by one or
more of the types of insurance described above, the Parties shall proceed
cooperatively to settle the loss and collect the proceeds of such insurance,
which State shall hold in trust, including interest earned on such proceeds,
for use according to the terms of this Easement. The Parties shall use
insurance proceeds in accordance with Paragraph 10.2(g)(3).
(4) When sufficient funds are available, using insurance proceeds described
above, the Parties shall continue with reasonable diligence to prepare
plans and specifications for, and thereafter carry out, all work necessary
to:
(i) Repair and restore damaged Improvements to their former
condition, or
(ii) Replace and restore damaged Improvements with new
Improvements on the Easement Property of a quality and
usefulness at least equivalent to, or more suitable than, damaged
Improvements.
(e) 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
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
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(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.
(4) Grantee or Grantee's contractor(s) shall buy and maintain equipment
breakdown insurance covering insured objects during installation and until
final acceptance by permitting authority. If testing is performed, such
insurance must cover such operations. The insurance must name Grantee,
all contractors, and subcontractors in the work as insured.
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
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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
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.
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(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
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
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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
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
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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.
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.
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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
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.
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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.
16.10 Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Venue for any action arising out of or in
connection with this Easement is in the Superior Court for Thurston County, Washington.
16.11 Statutory Reference. Any reference to a statute or rule means that statute or rule as
presently enacted or hereafter amended or superseded.
16.12 Recordation. At Grantee's expense and no later than thirty (30) days after receiving the
fully -executed Easement, Grantee shall record this Easement in the county in which the
Easement Property is located. Grantee shall include the parcel number of the upland property
used in conjunction with the Easement Property, if any. Grantee shall provide State with
recording information, including the date of recordation and file number. If Grantee fails to
record this Easement, State may record this Easement and Grantee shall pay the costs of
recording upon State's demand.
16.13 Modification. No modification of this Easement is effective unless in writing and signed
by both Parties. Oral representations or statements do not bind either Party.
16.14 Survival. Any obligations of Grantee not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantee until fully performed.
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16.15 Exhibits and Attachments. All referenced exhibits and attachments are incorporated in
this Easement unless expressly identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
Dated:
20
Dated: , 20_
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: ALEXANDRA K. SMITH
Title: Deputy Supervisor for Forest Resilience,
Regulation and Aquatics
Address: 1111 Washington Street SE
MS 47207
Olympia, WA 98504
Aquatic Lands Outfall Easement
Template approved as to form this
10th day of January 2022
Jennifer Clements, Assistant Attorney General
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REPRESENTATIVE ACKNOWLEDGMENT
Notarized online using audio -video communication
STATE OF )
) ss.
County of )
I certify that I know or have satisfactory evidence that JON PADVORAC is the person who
appeared before me, and said person acknowledged that he signed this instrument, on oath stated
that he was authorized to execute the instrument and acknowledged it as the City Engineer of the
City of Pasco to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
This notarial act involved the use of communication technology.
Dated: , 20_
(Seal or stamp)
(Signature)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
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NOR A CO',1NfTTN4FN TT TO FXTFNTI 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 ALEXANDRA K. SMITH 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 Deputy
Supervisor for Forest Resilience, Regulation, and Aquatics of the Department of Natural
Resources, to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
This notarial act involved the use of communication technology.
Dated: , 20
(Seal or stamp)
(Signature)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
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EXHIBIT A
PROPERTY DESCRIPTION
Agreement Number 51-103464
1. LEGAL DESCRIPTION OF THE PROPERTY:
The proposed 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: 15,226
Total Square Feet: 15,226
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survey.
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EXHIBIT B
DESCRIPTION OF PERMITTED USE
A. Existing Facilities.
There is one (1) active 24-inch diameter WWTP outfall pipe that extends into the
Columbia River and diffuses treated wastewater processed by the City of Pasco's
Waste Water Treatment Plant located upland of the river. The outfall is managed by
Department of Ecology (DOE) under NPDES WA-004496-2 which expired in 2015,
however, the Grantee is in the process of renewing the existing permit. The existing
pipe and outfall are outside of the easement area.
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. Once the new pipe is
installed and functional, the existing pipe will be decommissioned, and removed.
B. Proposed Work.
State authorizes Grantee to conduct the following Proposed Work on the Easement
Property: installation of one (1) 42-inch diameter high -density polyethylene (HDPE)
pipe approximately 1,200 linear feet in length, one (1) 150-foot-long diffuser section
with 10 vertical discharge ports with duckbill valves. 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.
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• 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.
• 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 W WTP 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
Except for the Proposed Work authorized in Section I.B. of this Exhibit B, State has not
authorized Grantee to conduct any Work on the Easement Property. Where Work will
need to be conducted to meet the Additional Obligations below, Grantee shall obtain
State's prior written consent in accordance with Section 7.3 of this Easement and obtain
all necessary regulatory permits prior to commencing such Work.
A. At the time of application to renew the NPDES Permit, or every five (5) years,
whichever is first, Grantee shall submit to State a report addressing progress to
reduce discharges on state-owned aquatic land and associated biological
communities. "Progress" means Grantee is analyzing or developing alternative
treatment and/or disposal methods including, but not limited to, (1) reduction of
inflow and infiltration; (2) groundwater recharge; (3) stream augmentation,
industrial process supply, and/or agricultural application; (4) water conservation
programs; (5) other water re -use projects; (6) low impact development; and (7)
stormwater treatment processes.
B. National Pollutant Discharge Elimination System (NPDES) permit
i. The NPDES Permit start date is June 29, 2010 and requires renewal in
accordance with WAC 173-220-180.
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ii. Grantee shall notify State when they contact the Washington State
Department of Ecology to apply or renew a National Pollutant Discharge
Elimination System (NPDES) permit.
iii. Grantee shall notify State of any proposed changes/additions/deletions to the
NPDES permit and allow State a reasonable period to comment.
iv. Grantee shall submit to State all NPDES Outfall Evaluation Reports.
D. Grantee shall post clearly the following signs provided by Grantee (Buoy Signs
that state "No anchor drag within 400 yards of buoy".
Aquatic Lands Outfall Easement
Template approved as to form this
1 Oth day of January 2022
Jennifer Clements, Assistant Attorney General
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