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OR-UNG COVER SHEET
AOUATIC LANDS EASE -MENT, FLOOD CONTROL PROJECTS
Grantor State of Washington. Denartmerit o Natural Resources..`
Grantee Ong County Flood Control Zone District,'and thkitv`of.Tukwifa
Legal Description (abbreviated):
Portion Sections 23, 24, 25, 35, and 3� T: P,-4 E., and;
Portion Sections 2, T. 22 N., R. 4 E.
AdditiQnalaegal($ on: PigIiminary Exhibit A
Assessor Tazc'Parcel ID `Washington State aquatic lands, not subiect td'taXation
Reference Nds. Docunkents Released or Assigned: None
Project" Area: :Green River
XC{SE`TA)C`NOT REQUIRED
iGng.. 90.wds Division
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS EASEMENT
FLOOD CONTROL PROJECTS
TABLE OF CONTENTS
PAGE
1 GRANT OF EASEMENT ..............................1
1.1 Easement Defined 1
1.2 Survey and Easement Property Descriptions 1
1.3 Condition of Easement Property 2
2. USE ..............................2
2.1 Permitted Use 2
2.2 Restrictions on Use 2
2.3 Conformance with Laws 3
2.4 Liens and Encumbrances 3
2.5 Interference with Other Uses 3
3. TERM ..............................3
3.1 Term Defined 3
3.3 End of Term 3
4. FEES ..............................4
4.1 Fee 4
4.2 Payment Place 4
5. OTHER EXPENSES ..............................4
5.1 Utilities 4
5.2 Taxes and Assessments 4
5.3 Failure to Pay 4
6. LATE PAYMENTS AND OTHER CHARGES ..............................4
6.1 Late Charge 4
6.2 Interest Penalty for Past Due Fees and Other Sums Owed 4
6.3 Referral to Collection Agency and Collection Agency Fees 5
6.4 No Accord and Satisfaction 5
Form Date 5/2008 i Easement No. 51- 082633
7. IMPROVEMENTS ..............................5
7.1 Improvements Defined 5
7.2 Existing Improvements 5
7.3 Construction, Alteration, Replacement, and Modification 6
7.4 Disposition and Removal of Grantees -Owned Improvements at End of Easement.......... 6
7.5 Disposition of Unauthorized Improvements 7
7.6 Disposition of Personal Property 8
8. ENVIRONMENTAL LIABILITY /RISK ALLOCATION ..............................8
8.1 Definitions 8
8.2 General Conditions 8
8.3 Current Conditions and Duty to Investigate 9
8.4 Use of Hazardous Substances 9
8.5 Management of Contamination 9
8.6 Notification and Reporting 10
8.7 Indemnification 10
8.8 Reservation of Rights 11
8.9 Cleanup 12
8.10 Sampling by State, Reimbursement, and Split Samples 12
9. ASSIGNMENT .............................13
10. INDEMNITY, FINANCIAL SECURITY, INSURANCE .............................13
10.1 Indemnity 13
10.2 Insurance Terms 13
10.3 Insurance Types and Limits 15
11. MAINTENANCE AND REPAIR .............................16
11.1 State's Repairs 16
11.2 Grantees' Repairs and Maintenance 16
12. DAMAGE OR DESTRUCTION .............................17
12.1 Notice and Repair 17
12.2 State's Waiver of Claim 17
12.3 Insurance Proceeds 17
13. CONDEMNATION .............................17
14. TERMINATION .............................18
14.1 Termination by Breach 18
14.3 Termination by Grantees 18
15. NOTICE .............................18
15.1 Notice .............................18
15.2 Contract Persons 18
16. MISCELLANEOUS .............................19
16.1 Authority .............................19
16.2 Successors and Assigns 19
16.3 Headings 19
16.4 Entire Agreement 19
16.5 Waiver 19
16.6 Cumulative Remedies 19
16.7 Time is of the Essence 19
Form Date 5/2008 ii Easement No. 51- 082633
16.8 Language 19
16.9 Invalidity 20
16.10 Applicable Law and Venue 20
16.11 Recordation .............................20
16.12 Modification 20
16.13 Survival .............................20
16.14 Exhibits 20
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B PLAN OF OPERATION AND MAINTENANCE
Form Date 5/2008 iii Easement No. 51- 082633
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS EASEMENT
FLOOD CONTROL PROJECTS
AQUATIC LANDS EASEMENT NO. 51- 082633
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources "State and KING COUNTY FLOOD CONTROL
ZONE DISTRICT, a quasi municipal corporation and the CITY OF TUKWILA, a municipal
corporation "collectively Grantees
Grantees have authority to construct flood control systems under Revised Code of Washington
(RCW) Chapter 86.15.
State has authority to grant easements on state -owned aquatic lands under RCW 79.36.355
THEREFORE, the Parties agree as follows:
SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) State grants and conveys to Grantees a nonexclusive easement, subject to the
terms and conditions of this agreement, over, upon, and under the real property
described in Exhibit A. In this agreement, the term "Easement" means this
agreement and the rights granted; the term "Easement Property" means the real
property subject to the easement.
(b) This Easement is subject to all valid interests of third parties noted in the records
of King 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 resource, including aquatic life or living plants, any water rights, or any
mineral rights, including any right to excavate or withdraw sand, gravel, or other
valuable materials, except to the extent expressly permitted in Exhibit B.
(d) State grants to Grantees a nonexclusive easement for construction purposes only
over the property described in Exhibit A.
1.2 Survey and Easement Property Descriptions.
(a) Grantees prepared Exhibit A, which describes the Easement Property. Grantees
warrant that Exhibit A is a true and accurate description of the Easement
boundaries and the improvements to be constructed or already existing in the
Easement area.
Form Date 5/2008 1 of 24 Easement No. 51- 082633
(b) Grantees shall not rely on any written legal descriptions, surveys, plats, or
diagrams "property description provided by State. Grantees shall not rely on
State's approval or acceptance of Exhibit A or any other Grantee provided
property description as affirmation or agreement that Exhibit A or other property
description is true and accurate. Grantees' obligation to provide a true and
accurate description of the Easement Property boundaries is a material term of
this Easement.
(c) State accepts a preliminary Exhibit A upon the Commencement Date of this
Easement. Grantees shall submit a final Exhibit A for State's approval within one
hundred and eighty days (180) days of the Commencement Date. Upon State's
written approval, the final Exhibit A supersedes the preliminary Exhibit A. Until
superseded, the preliminary Exhibit A has full legal effect.
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 Grantees' 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. Grantees shall use the Easement Property for levees (the "Permitted
Use and for no other purpose. The Permitted Use is described or shown in detail in Exhibit B.
2.2 Restrictions on Use.
(a) Grantees shall not cause or permit any damage to natural resources on the
Easement Property or adjacent state -owned aquatic lands, except to the extent
expressly permitted in Exhibit B.
(b) Unless approved by State in writing, Grantees shall not cause or permit any filling
activity to occur on the Easement Property or adjacent state -owned aquatic land,
except to the extent expressly permitted in Exhibit B. This prohibition includes
any deposit of rock, earth, ballast, wood waste, refuse, garbage, waste matter
(including chemical, biological, or toxic wastes), hydrocarbons, any other
pollutants, or other matter.
(c) Grantees shall neither commit nor allow waste to be committed to or on the
Easement Property or adjacent state -owned aquatic land.
(d) Failure to Comply with Restrictions on Use.
(1) Grantees' failure to comply with the restrictions on use under this
Subsection 2.2 is a breach subject to Subsection 14.1. Grantees shall cure
the breach by taking all steps necessary to remedy the failure and restore
the Easement Property and adjacent state -owned aquatic lands to the
condition before the failure occurred within the time for cure provided in
Subsection 14.1.
Form Date 5/2008 2 of 24 Easement No. 51- 082633
(2) If Grantees fails to cure the default in the manner described in this
Paragraph 2.2(d), the breach will be subject to termination under
Subsection 14.1. In addition, the State may (1) restore the Easement
Property and adjacent state -owned aquatic lands and charge Grantees
remedial costs and /or (2) charge Grantees natural resource damages. On
demand by State, Grantees shall pay all remedial costs and natural
resources damages.
(e) State's failure to notify Grantees of Grantees' failure to comply with all or any of
the restrictions set out in this Subsection 2.2 does not constitute a waiver of any
remedies available to State.
(f) This Section 2.2 does not limit Grantees' liability under Section 8, below.
2.3 Conformance with Laws. Grantees 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 its use of the Easement Property.
2.4 Liens and Encumbrances. Grantees shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use of the Easement Property, unless
expressly authorized by State in writing.
2.5 Interference with Other Uses.
(a) Grantees shall exercise Grantees' rights under this Easement 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 Easement Property or surrounding lands and
water.
(b) To the fullest extent reasonably possible, Grantees shall place and construct
Improvements in a manner that allows unobstructed movement in and on the
waters around the Easement Property.
(c) Except in an emergency, Grantees shall provide State with written notice of
construction or other significant activity on Easement Property at least thirty (30)
days in advance. "Significant Activity" means any activity that may affect use
or enjoyment by the State, public, or others with valid rights to use or occupy the
Easement Property or surrounding lands and water.
SECTION 3 TERM
3.1 Term Defined. The term of this Easement begins on the 16 day of May, 2008 (the
"Commencement Date and continues until the Easement Property is no longer used for a flood
control levee, unless terminated sooner under the terms of this Easement.
3.2 End of Term.
(a) Upon the expiration or termination of this Easement, Grantees shall surrender the
Easement Property to State in accordance with Subsection 7.4 and restored to a
condition substantially like its natural state prior to the construction of the levee.
(b) If Easement Property does not meet the condition described in Paragraph 3.2(a)
the following provisions apply.
Form Date 5/2008 3 of 24 Easement No. 51- 082633
(1) State shall provide Grantees a reasonable time to take all steps necessary
to remedy the condition of the Easement Property. State may require
Grantees to enter into a right -of -entry or other use authorization prior to
the Grantees entering the Easement Property to remedy any breach of this
Subsection 3.2.
(2) If Grantees fails to remedy the condition of the Easement Property in a
timely manner, State may take any steps reasonably necessary to remedy
Grantees' failure. Upon demand by State, Grantees shall pay all costs of
such remedial action, including but not limited to the costs of removing
and disposing of any material deposited improperly on the Easement
Property, lost revenue resulting from the condition of the Easement
Property prior to and during remedial action, and any administrative costs
associated with the remedial action.
SECTION 4 FEES
4.1 Fee. For the Term, Grantees shall pay to State a fee of Three Thousand Dollars ($3,000),
which is due and payable on or before the Commencement Date.
4.2 Payment Place. Grantees shall make payment to Financial Management Division, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504 -7041.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Grantees shall pay all fees charged for utilities in connection with the use of the
Easement Property.
5.2 Taxes and Assessments. Grantees shall pay all taxes, assessments, and other
governmental charges, of any kind whatsoever, applicable or attributable to the Easement and the
Permitted Use.
5.3 Failure to Pay. If Grantees fails to pay any of the amounts due under this Easement,
State may pay the amount due, and recover its cost in accordance with Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Late Charge. If State does not receive any payment within ten (10) days of the date due,
Grantees shall pay to State a late charge equal to four percent (4 of the amount of the payment
or Fifty Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to
the delay.
6.2 Interest Penalty for Past -Due Fees and Other Sums Owed.
(a) If State does not receive payment within thirty (30) days of the date due, then
Grantees shall pay interest on the amount outstanding at the rate of one percent
(1 per month until paid, in addition to paying the late charges determined under
Subsection 6.1, above.
Form Date 5/2008 4 of 24 Easement No. 51- 082633
(b) If State pays or advances any amounts for or on behalf of Grantees, Grantees 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
Grantees of the payment or advance. This includes, but is not limited to taxes,
assessments, insurance premiums, costs of removal and disposal of unauthorized
materials pursuant to Subsection 2.2 above, costs of removal and disposal of
improvements pursuant to Section 7 below, or other amounts not paid when due.
6.3 Referral to Collection Agency and Collection Agency Fees. If State does not receive
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,
Grantees shall pay collection agency fees in addition to the unpaid amount.
6.4 No Accord and Satisfaction. If Grantees pay, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. No endorsement
or statement on any check, any payment, or any letter accompanying any check or payment
constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS
7.1 Improvements Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.145, are additions
within, upon, or attached to the land. This includes, but is 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 State. State
Owned Improvements includes any construction, alteration, or addition to State
Owned Improvements made by Grantees.
(d) "Grantee -Owned Improvements" are Improvements made by Grantees with
State's consent.
(e) "Unauthorized Improvements" are Improvements made on the Easement Property
without State's prior consent or Improvements made by Grantees that do not
conform with plans submitted to and approved by the 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 Improvements are
located on the Easement Property: levees, including structural components such as toe rock, rip
rap slope protection, bioengineering slope protection, internal drainage structures and other
ecological components such as large wood, anchor systems, and vegetation. The Improvements
are Grantee -Owned Improvements.
Form Date 5/2008 5 of 24 Easement No. 51- 082633
7.3 Construction, Major Repair, Modification, and Demolition.
(a) This Subsection 7.3 governs construction, alteration, replacement, major repair,
modification, alteration, demolition and deconstruction of Improvements
(collectively "Work Section 11 governs routine maintenance and minor repair
of Improvements and Easement Property.
(b) Except in an emergency, Grantees shall not conduct any Work without prior
coordination with State, as follows:
(1) State may impose additional conditions reasonably intended to protect or
preserve the Easement Property.
(2) Grantees shall submit to State plans and specifications describing the
proposed Work at least ninety (90) days before Grantees plans to start the
Work.
(3) If regulatory permits are necessary, Grantees shall submit plans and
specifications at least sixty (60) days before submitting permit
applications to the regulatory agencies unless Grantees and State
otherwise agree to coordinate permit applications.
(4) State shall provide comment, if any, within sixty (60) days of submittal.
(c) If Grantees conduct emergency Work, Grantees shall notify State within five (5)
business days of the start of such Work. Upon request, Grantees shall provide
State with plans and specifications or as- builts of emergency repairs.
(d) Grantees shall not commence or authorize Work until:
(1) Grantees have obtained all required permits.
(2) Grantees have provided notice of Significant Activity in accordance with
Paragraph 2.5(c).
(e) Grantees shall preserve and protect Improvements Owned by Others, if any.
(f) Grantees shall preserve all legal land subdivision survey markers and witness
objects "Markers. If disturbance of a Marker will be a necessary consequence
of Grantees' construction, Grantees 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 Grantees' expense, Grantees shall
retain a registered professional engineer or licensed land surveyor to reestablish
destroyed or disturbed Markers in accordance with U.S. General Land Office
standards.
(g) Before completing Work, Grantees shall remove all debris and restore the
Easement Property, as nearly as possible, to its condition before the
commencement of Work.
(h) Upon completing Work, Grantees shall promptly provide State with as -built plans
and specifications.
7.4 Grantee -Owned Improvements at End of Easement.
(a) Disposition
(1) Grantees shall remove Grantee -Owned Improvements upon the expiration,
termination, or cancellation of the Easement unless State waives the
requirement for removal or State determines that abandonment or
modification of Improvements is in the best interests of the State.
Form Date 5/2008 6 of 24 Easement No. 5 1- 08263 3
(2) Grantee -Owned Improvements remaining on the Easement Property on the
expiration, termination or cancellation date 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 expiration, termination, or cancellation date without State's consent,
State may remove all Improvements and Grantees shall pay the costs of
removal and disposal.
(b) Determination of Removal or Abandonment or Modification.
(1) State may waive removal of any or all Grantee -Owned Improvements
whenever State determines that it is in the best interests of the State. State
will consider it in the best interests of the State to waive removal where
abandonment or modification is less detrimental than removal to the long
term use and management of state -owned lands and resources.
(2) State and Grantees shall coordinate removal, abandonment, or
modification as follows:
(i) At least one (1) year before the Grantees intend to terminate the
Easement, Grantees shall notify State of its proposal to either
remove, abandon, or modify Grantee -Owned Improvements.
(ii) State, within ninety (90) days, will notify Grantees whether State
consents to removal, abandonment, or modification.
(c) Grantees' Obligations If State Consents to Abandonment or Modification.
(1) Grantees shall conduct Work necessary for abandonment or modification
in accordance with Subsection 7.3.
(2) The submittal shall include restoration of the Easement Property in
accordance with Subsection 3.3, End of Term.
(d) Grantees' Obligations if State Waives Removal.
(1) Grantees shall not remove Improvements if State waives the requirement
for removal of any or all Grantees -Owned Improvements.
(2) Grantees shall maintain such Improvements in accordance with this
Easement until the expiration, termination, or cancellation date. Grantees
are liable to State for cost of repair if Grantees cause or allows damage to
Improvements State has designated to remain.
7.5 Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b) State may either:
(1) Consent to Grantees ownership of the Improvements, or
(2) Charge use and occupancy fee in accordance with RCW 79.105.200 of the
Improvements from the time of installation or construction and
(i) Require Grantees to remove the Improvements, in which case
Grantees shall pay use and occupancy fee for the Improvements
until removal,
(ii) Consent to Improvements remaining and Grantees shall pay use
and occupancy fee for the use of the Improvements, or
Form Date 5/2008 7 of 24 Easement No. 51- 082633
(iii) Remove Improvements and Grantees shall pay for the cost of
removal and disposal, in which case Grantees shall pay use and
occupancy fee for use of the Improvements until removal and
disposal.
7.6 Disposition of Personal Property.
(a) Grantees retain ownership of Personal Property unless Grantees and State agree
otherwise in writing.
(b) Grantees shall remove Personal Property from the Easement Property by the
Termination Date. Grantees is liable for any damage to the Easement Property
and to any Improvements that may result from removal of Personal Property.
(c) State may sell or dispose of all Personal Property left on the Easement Property
after the Termination Date.
(1) If State conducts a sale of Personal Property, State shall apply proceeds
first to the State's administrative costs in conducting the sale, second to
payment of amount that then may be due from the Grantees to the State,
and State shall pay the remainder, if any, to the Grantees.
(2) If State disposes of Personal Property, Grantees 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, including, but not limited to, the Resource
Conservation and Recovery Act "RCRA 42 U.S.C. 6901 et. seq., as amended;
Comprehensive Environmental Response, Compensation and Liability Act of
1980 "CERCLA 42 U.S.C. 9601 et seq., as amended; Washington's Model
Toxics Control Act "MTCA Chapter 70.105 RCW, as amended; and
Washington's Sediment Management Standards, WAC Chapter 173 -204.
(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) or any
similar event defined under any such law.
(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 established under MTCA, RCW 70.105D.040.
8.2 General Conditions.
(a) Grantees' 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 where a release or the presence of
Hazardous Substances may arise from Grantees' use of the Easement
Property.
Form Date 5/2008 8 of 24 Easement No. 51- 082633
(b) Standard of Care.
(1) Grantees shall exercise the utmost care with respect to Hazardous
Substances.
(2) In relation to the Permitted Use, Grantees 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, including but not limited to RCW 70.105D.040.
8.3 Current Conditions and Duty to Investigate.
(a) State makes no representation about the condition of the Easement Property.
Hazardous Substances may exist in, on, under, or above the Easement Property or
adjacent state -owned lands.
(b) This Easement does not impose a duty on State to conduct investigations or
supply information to Grantees about Hazardous Substances.
(c) Grantees are responsible for conducting all appropriate inquiry and gathering
sufficient information concerning the Easement Property and the existence, scope,
and location of any Hazardous Substances on the Easement Property or on
adjacent lands that allows Grantees to meet Grantees' obligations under this
Easement.
8.4 Use of Hazardous Substances.
(a) Grantees, its, contractors, agents, employees, guests, invitees, or affiliates shall
not use, store, generate, process, transport, handle, release, or dispose of
Hazardous Substances, except in accordance with all applicable laws.
(b) Grantees shall not undertake, or allow others to undertake by Grantees'
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 Grantees' use of the Easement Property.
(c) If use of Hazardous Substance related to the Permitted Use results in a violation
of an applicable law:
(1) Grantees shall submit to State any plans for remedying the violation, and
(2) State may require remedial measures in addition to remedial measures
required by regulatory authorities.
8.5 Management of Contamination.
(a) Grantees shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration
activities;
(2) Result in human or environmental exposure to contaminated sediments;
(3) Result in the mechanical or chemical disturbance of on -site habitat
mitigation.
Form Date 5/2008 9 of 24 Easement No. 51- 082633
(b) Grantees shall not interfere with access by:
(1) Employees and authorized agents of the Environmental Protection
Agency, 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. Grantees
may negotiate an access agreement with such parties, but Grantees may
not unreasonably withhold such agreement.
8.6 Notification and Reporting.
(a) Grantees shall immediately notify State if Grantees become 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 any Hazardous Substance;
(3) Any lien or action arising from the foregoing;
(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 US Environmental Protection Agency (EPA) or
the Washington State Department of Ecology (DOE) that remediation or
removal of Hazardous Substances is or may be required at the Easement
Property.
(b) Grantees' duty to report under Paragraph 8.6(a) extends to the Easement Property,
adjacent state -owned aquatic lands where a release or the presence of Hazardous
Substances could arise from the Grantees' use of the Easement Property, and any
other property used by Grantees in conjunction with Grantees' use of the
Easement Property where a release or the presence of Hazardous Substances on
the other property would affect the Easement Property.
(c) Grantees shall provide State with copies of all documents concerning
environmental issues associated with the Easement Property, and submitted by
Grantees to any federal, state or local authorities. Documents subject to this
requirement include, but are not limited to, applications, reports, studies, or audits
for National Pollution Discharge and Elimination System Permits (NPDES);
Army Corps of Engineers permits; State Hydraulic Project Approvals (HPA);
State Water Quality certification; Substantial Development permit; and any
reporting necessary for the existence, location, and storage of Hazardous
Substances on the Easement Property.
8.7 Indemnification.
(a) "Liabilities" as used in this Subsection 8.7 means any claims, demands,
proceedings, lawsuits, damages, costs, expenses, fees (including attorneys' fees
and disbursements), penalties, or judgments.
Form Date 5/2008 10 of 24 Easement No. 51- 082633
(b) Grantees shall fully indemnify, defend, and hold State harmless 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 Grantees, its contractors, agents,
invitees, guests, employees, affiliates, licensees, or permittees occurring
anytime Grantees uses or has used the Easement Property;
(2) The release or threatened release of any Hazardous Substance, or the
exacerbation of any Hazardous Substance contamination resulting from
any act or omission of Grantees, its contractors, agents, employees, guests,
invitees, or affiliates occurring anytime Grantees uses or has used the
Easement Property.
(c) Grantees shall fully indemnify, defend, and hold State harmless for any Liabilities
that arise out of or relate to Grantees' breach of obligations under Subsection 8.5.
(d) Third Parties.
(1) Grantees has no duty to indemnify State for acts or omissions of third
parties unless Grantees fails to exercise the standard of care required by
Paragraph 8.2(b)(2). Grantees' third -party indemnification duty arises
under the conditions described in Subparagraph 8.7(d)(2).
(2) If an administrative or legal proceeding arising from a release or
threatened release of Hazardous Substances finds or holds that Grantees
failed to exercise care as described in Subparagraph 8.7(d)(1), Grantees
shall fully indemnify, defend, and hold State harmless from and against
any liabilities arising from the acts or omissions of third parties in relation
to the release or threatened release of Hazardous Substances. This
includes any liabilities arising before the finding or holding in the
proceeding.
8.8 Reservation of Rights.
(a) For any environmental liabilities not covered by the indemnification provisions of
Subsection 8.7, the Parties expressly reserve and do not waive or relinquish any
rights, claims, immunities, causes of action, or defenses relating to the presence,
release, or threatened release of Hazardous Substances that either Party may have
against the other under law.
(b) This Easement affects no right, claim, immunity, or defense either Party may have
against third parties, and the Parties expressly reserve all such rights, claims,
immunities, and defenses.
(c) The provisions under this Section 8 do not benefit, or create rights for, third
parties.
(d) The allocations of risks, liabilities, and responsibilities set forth above do not
release either Party from, or affect the liability of either Party for, claims or
actions by federal, state, or local regulatory agencies concerning Hazardous
Substances.
Form Date 5/2008 11 of 24 Easement No. 51- 082633
8.9 Cleanup.
(a) If Grantees' act, omission, or breach of obligation under Subsection 8.4 results in
a release of Hazardous Substances, Grantees shall, at Grantees' sole expense,
promptly take all actions necessary or advisable to clean up the Hazardous
Substances in accordance with applicable law. Cleanup actions include, without
limitation, removal, containment, and remedial actions.
(b) Grantees' obligation to undertake a cleanup under Section 8 is limited to those
instances where the Hazardous Substances exist in amounts that exceed the
threshold limits of any applicable regulatory cleanup standards.
(c) At the State's discretion, Grantees may undertake a cleanup of the Easement
Property pursuant to the Washington State Department of Ecology's Voluntary
Cleanup Program, provided that Grantees cooperate with State (DNR) in
development of cleanup plans. Grantees shall not proceed with Voluntary
Cleanup without State (DNR) approval of final plans. Nothing in the operation of
this provision is an agreement by State (DNR) that the Voluntary Cleanup
complies with any laws or with the provisions of this Easement. Grantees'
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 the existence,
release, or threatened release of Hazardous Substances arising out of any action,
inaction, or event described or referred to in Subsection 8.4, above, Grantees shall
promptly reimburse State for all costs associated with such Tests.
(c) State shall not seek reimbursement for any Tests under this Subsection 8.10
unless State provides Grantees written notice of its intent to conduct any Tests at
least thirty (3 0) calendar days prior to undertaking such Tests, except when such
Tests are in response to an emergency. Grantees shall reimburse State for Tests
performed in response to an emergency if State has provided such notice as is
reasonably practical.
(d) Grantees are entitled to obtain split samples of any Test samples obtained by
State, but only if Grantees provides State with written notice requesting such
samples within twenty (20) calendar days of the date of Grantees' receipt of
notice of State's intent to conduct any non emergency Tests. Grantees solely
shall bear the additional cost, if any, of split samples. Grantees shall reimburse
State for any additional costs caused by split sampling within thirty (30) calendar
days after State sends Grantees a bill with documentation for such costs.
(e) Within sixty (60) calendar days of a written request (unless otherwise required
pursuant to Paragraph 8.6(c), above), either Party to this Easement shall provide
the other Party with validated final data, quality assurance /quality control
information, and chain of custody information, associated with any Tests of the
Easement Property performed by or on behalf of State or Grantees. There is no
obligation to provide any analytical summaries or the work product of experts.
Form Date 5/2008 12 of 24 Easement No. 51- 082633
SECTION 9 ASSIGNMENT
Grantees shall not assign any part of Grantees' interest in this Easement or the Easement
Property or grant any rights or franchises to third parties without State's prior written consent,
which State shall not unreasonably condition or withhold. State reserves the right to reasonably
change the terms and conditions of this Easement upon State's consent to assignment. Use by
the Corps of Engineers on behalf of the Grantees shall not constitute an assignment.
SECTION 10 INDEMNITY AND INSURANCE
10.1 Indemnity.
(a) Grantees shall indemnify, defend, and hold State, its employees, officers, and
agents harmless from any Claims arising out of the Permitted Use or related
activities by Grantees, its contractors, agents, invitees, guests, employees,
affiliates, licensees, or permittees.
(b) "Claim" as used in this Subsection 10.1 means any financial loss, claim, suit,
action, damages, expenses, fees (including attorneys' fees), 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 Easement Property and damages resulting from loss of use
of the Easement Property.
(c) State shall not require Grantees to indemnify, defend, and hold State harmless for
claims that arise solely out of the willful or negligent act of State or State's
elected officials, employees, or agents.
(d) Grantees waive their immunity under Title 51 RCW to the extent it is required to
indemnify, defend, and hold State and its agencies, officials, agents, or employees
harmless.
(e) Section 8, Environmental Liability/Risk Allocation, exclusively governs
Grantees' liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold State harmless for Hazardous Substances.
10.2 Insurance Terms.
(a) Insurance Required.
(1) Alternative for Self Insured. Grantees certifies that it is self insured 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 Subsection 10.2 and by Subsection 10.3, Insurance Types
and Limits. Grantees shall provide to State evidence of its status as a self
insured entity. Upon request by State, Grantees shall provide a written
description of its financial condition and/or the self insured funding
mechanism. Grantees shall provide State with at least thirty (30) days'
written notice prior to any material changes to Grantees' self insured
funding mechanism.
Form Date 5/2008 13 of 24 Easement No. 51- 082633
(2) Unless State agrees to an exception, Grantees 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 Best's Reports. Grantees may submit a
request to State's risk manager for an exception to this requirement. If an
insurer is not admitted, the insurance policies and procedures for issuing
the insurance policies must comply with Chapter 48.15 RCW and 284 -15
WAC.
(3) The State of Washington, the Department of Natural Resources, its elected
and appointed officials, agents, and employees must be named as an
additional insured on all general liability, excess, umbrella, property,
builder's risk, and pollution legal liability insurance policies.
(4) 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) Grantees 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, Grantees 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) Grantees shall provide State with a certificate(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 additional insureds and the
Easement number.
(3) Receipt of such certificates 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 Easement, in accordance with the following:
(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.
Form Date 5/2008 14 of 24 Easement No. 51- 082633
(2) Grantees shall secure new or modified insurance coverage within thirty
(30) days after State requires changes in the limits of liability.
(f) If Grantees fails to procure and maintain the insurance described above within
fifteen (15) days after Grantees receives a notice to comply from State, State may
either:
(1) Deem the failure an Event of Default under Section 14, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Grantees shall pay to State the full amount paid
by State, together with interest at the rate provided in Subsection 6.2 from
the date of State's notice of the expenditure until Grantees' repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this
Easement will be adequate to protect Grantees.
(2) Coverage and limits do not limit Grantees' 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 the State any sums in
arrears, and then to Grantees.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Grantees 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) Grantees shall comply with all State of Washington workers'
compensation statutes and regulations. Grantees shall provide
workers' compensation coverage for all employees of Grantees.
Form Date 5/2008 15 of 24 Easement No. 51- 082633
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 Grantees fail 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, Grantees shall indemnify State. Indemnity includes all
fines; payment of benefits to Grantees, 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
Grantees to provide insurance coverage for longshore and harbor workers
other than seaman. Failure to obtain coverage in the amount required by
law may result in civil and criminal liabilities. Grantees is fully
responsible for ascertaining if such insurance is required and shall
maintain insurance in compliance with this Act. Grantees 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 may
require Grantees to provide insurance coverage for seamen injured during
employment resulting from negligence of the owner, master, or fellow
crew members. Failure to obtain coverage in the amount required by law
may result in civil and criminal liabilities. Grantees are fully responsible
for ascertaining if such insurance is required and shall maintain insurance
in compliance with this Act. Grantees are responsible for all civil and
criminal liability arising from failure to maintain such coverage.
(c) Employer's Liability Insurance. Grantees shall procure employer's 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 or One Million Dollars ($1,000,000) each employee for bodily injury by
disease.
SECTION 11 ROUTINE MAINTENANCE AND REPAIR
11.1 State's Repairs. This Easement does not obligate State to make any alterations,
maintenance, replacements, or repairs in, on, or about the Easement Property, during the Term.
11.2 Grantees' Repairs and Maintenance
(a) Routine maintenance and repair are acts intended to prevent a decline, lapse, or
cessation of the Permitted Use and associated Improvements. Routine
maintenance or repair is the type of work that does not require regulatory permits.
(b) At Grantees' sole expense, Grantees shall keep and maintain all Grantee -Owned
Improvements and the Easement Property as it relates to the Permitted Use in
good order and repair and in a safe condition. State's consent is not required for
routine maintenance or repair.
Form Date 5/2008 16 of 24 Easement No. 51- 082633
(c) At Grantees' own expense, Grantees shall make any additions, repairs, alterations,
maintenance, replacements, or changes to the Easement Property or to any
Improvements that any public authority requires because of the Permitted Use.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of any known damage to or destruction of the Easement Property or
any Improvements, Grantees shall promptly give written notice to State. State
does not have actual knowledge of the damage or destruction of the Easement
Property or any Improvements without Grantees' written notice.
(b) Unless otherwise agreed in writing, Grantees shall promptly reconstruct, repair, or
replace any Improvements in accordance with Subsection 7.3 Construction, Major
Repair, Modification, and Demolition, as nearly as possible to its condition
immediately prior to the damage or destruction. Where damage to state -owned
aquatic land or natural resources is attributable to the Permitted Use or related
activities, Grantees shall promptly restore the lands or resources to the condition
preceding the damage in accordance with Subsection 7.3 unless otherwise agreed
in writing.
12.2 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Easement Property unless State provides written notice to Grantees of each specific claim
waived.
12.3 Insurance Proceeds. Grantees' duty to reconstruct, repair, or replace any damage or
destruction of the Easement Property or any Improvements on the Easement Property is not
conditioned upon the availability of any insurance proceeds to Grantees from which the cost of
repairs may be paid. The Parties shall use insurance proceeds in accordance with
Subparagraph 10.2(g)(3).
SECTION 13 CONDEMNATION
In the event of condemnation, the Parties shall allocate the award between State and Grantees
based upon the ratio of the fair market value of (1) Grantees' 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.
In the event of a partial taking, the Parties shall compute the ratio based on the portion of
Easement Property or Improvements taken. If Grantees 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.
Form Date 5/2008 17 of 24 Easement No. 51- 082633
SECTION 14 TERMINATION
14.1 Termination by Breach. State may terminate this Easement upon Grantees' failure to
cure a breach of the terms and conditions of this Easement. State shall provide Grantees written
notice of breach. Grantees shall have sixty (60) days after receiving notice to cure. State may
extend the cure period if breach is not reasonably capable of cure within sixty (60) days.
14.2 Termination by Grantees. Grantees may terminate this Easement upon providing State
with sixty (60) days written notice of intent to terminate.
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
South Puget Sound Region
950 Farman Avenue
Enumclaw, WA 98022 -9282
Grantee: KING COUNTY FLOOD CONTROL ZONE DISTRICT
201 South Jackson Street, Suite 600
Seattle, WA 98104 -3855
Grantee: CITY OF TUKWILA
6300 Southcenter Boulevard
Tukwila, WA 98188 -2544
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: Snoqualmie Land Manager
Telephone number: 360 825 -1631
Fax number: 360 825 -1672
Form Date 5/2008 18 of 24 Easement No. 51- 082633
Grantees: Steve Bleifuhs, Managing Supervisor Rivers Section
King County
Department of Natural Resources and Parks
Telephone number: 206 296 -8011
Fax number: 206 205 -5134
Ryan Larson, Senior Surface Water Manager Engineer
City of Tukwila
Telephone number: 206 431 -2456
Fax number: 206 431 -3665
SECTION 16 MISCELLANEOUS
16.1 Authority. Grantees and the person or persons executing this Easement on behalf of
Grantees represent that Grantees have full right and authority to enter into this Easement, and
that each and every person signing on behalf of Grantees are authorized to do so. Upon State's
request, Grantees shall provide evidence satisfactory to State confirming these representations.
16.2 Successors and Assigns. 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 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. The waiver of any breach or default of any term, covenant, or condition of this
Easement is not a waiver of such term, covenant, or condition; of any subsequent breach or
default of the same; or of any other term, covenant, or condition of this Easement. State's
acceptance of payment is not a waiver of any preceding or existing breach other than the failure
to pay the particular payment that was accepted.
16.6 Cumulative Remedies. The rights and remedies 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 "Grantees" as used in this Easement applies to one or more
persons, as the case may be. The singular includes the plural, and the neuter includes the
masculine and feminine. If there is more than one Grantees, their obligations are joint and
several. The word "persons," whenever used, includes individuals, firms, associations, and
Form Date 5/2008 19 of 24 Easement No. 51- 082633
corporations. The word "Parties" means State and Grantees in the collective. The word "Party"
means either or both State and Grantees, depending on 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. Any reference to a statute means that
statute as presently enacted or hereafter amended or superseded. Venue for any action arising
out of or in connection with this Easement is in the Superior Court for Thurston County,
Washington.
16.11 Recordation. Grantees shall record this Easement or a memorandum documenting the
existence of this Easement in the county in which the Easement Property is located, at Grantees'
sole expense. If used, the memorandum must contain the Easement Property description, the
names of the Parties to the Easement, the State's Easement number, and the duration of the
Easement. Grantees shall provide State with recording information, including the date of
recordation and file number. Grantees have thirty (30) days from the date of delivery of the final
executed agreement to comply with the requirements of this Subsection 16.11. If Grantees fails
to record this Easement, State may record it and Grantees shall pay the costs of recording upon
State's demand.
16.12 Modification. No modification of this Easement is effective unless in writing and signed
by the Parties. Oral representations or statements do not bind either Party.
16.13 Survival. Any obligations of Grantees not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantees until fully performed.
16.14 Exhibits. All referenced exhibits are incorporated in this Easement unless expressly
identified as unincorporated.
Form Date 5/2008 20 of 24 Easement No. 51- 082633
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
CITY OF TUKWILA
Dated: p) 20
Title: Mayor, orp
Address: 6200 Southcenter Blvd.
Tukwila, WA 98188
KING COUNTY FLOOD CONTROL ZONE
DIS,TRICT
Dated: S 20
THERESA JENNINGS
Title: Department of Natural Resources and
Parks Director pursuant to Resolution
No. FCZD2008 -01.2 of said Grantees
Address: 201 South Jackson Street, Suite 600
Seattle, WA 98104 -3855
STATE OF ASHINGT
DEPART NT OF U L RESOURCES
Dated: 20_
DOUG S T VRLAND
Title: Commissioner of Public Lands
Cp••� .e
Address: Shoreline District Aquatics Region
rte: c� 950 Farman Avenue North
Enumclaw, WA 98022 -9282
6� oP wA �r'
Standard Ati ment
Approved as to
By: Janis Snoey
Assistant Attorney General
State of Washington
Form Date 5/2008 21 of 24 Easement No. 51- 082633
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON)
ss
County of
3o r
I certify that I know or have satisfactory evidence that is the person who
appeared before me, and said person acknowledged that she signed this instrument on -oath
stated that she was authorized to execute the instrument and acknowledged it as the DIR
OF KING COUNTY DEPARTMENT OF NATURAL RESOURCES AND PARKS acting on
behalf of the KING COUNTY FLOOD CONTROL ZONE DISTRICT pursuant to Resolution
FCZD2008 -01.2 of said District to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated: A/ A)
�gnature)
(Seal or stamp) 11
�amm��n� G
�i
DEGp��Y&�� (Print Name)
Notary Public in and for the State of
2 Washington, residing at
0Al
�'�i `�►t�`�O My appointment expires
WAS
Form Date 5/2008 22 of 24 Easement No. 51- 082633
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON)
ss
County of
I certify that I know or have satisfactory evidence thatJIM HAOOMtTON 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 MAYOR acting on
behalf of the CITY OF TUKWILA to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated: a, V
0 l (Signature)
(Seal or stamp)
OT RA''C
m% Notary Public in and for the State of
Washington, residing at
i N om\ i US t \G
##;I Oi
11 1111 WAStAN 'Ice
My appointment expires
Form Date 5/2008 23 of 24 Easement No. 51- 082633
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON
ss
County of T� U-r s fzs r+
I certify that I know or have satisfactory evidence that DOUG SUTHERLAND 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 COMMISSIONER
OF PUBLIC LANDS 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.
Dated:
(Signature)
(Seal or stamp)
(Print Name)
Cn Notary Public in and for the State of
Washington, residing at
My appointment expires
Form Date 5/2008 24 of 24 Easement No. 51- 082633
Preliminary Exhibit A
Tukwila 205 Levee
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22 23 24
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27 26 25
34 35 36
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03 02 01
Exhibit A
1 of 1 Easement No. 51-082633
EXHIBIT B
PLAN OF OPERATIONS AND MAINTENANCE
Lower Green River Section 205 Flood Protection Facility
City of Tukwila and King County Flood Control Zone District
AQUATIC LANDS EASEMENT No. 51- 082633
Site Description and Present Use
Grantees maintain and operate a federally assisted Section 205 flood protection levee on the
Green River that overlaps with Washington Department of Natural Resources aquatic lands
ownership. The geographic area of the Green River covered by this levee is on the left bank of
the Green River beginning upstream in the Northwest Quarter of Section 2, Township 22 North,
Range 4 East, and ending downstream in the Southwest quarter of Section 24, Township 23
North, Range 4 East.
Permitted Use
Grantees are authorized to construct, maintain, repair, operate, patrol, inspect, survey, demolish
and replace a levee on, over, and across the Easement Property, as necessary for the construction,
repair, operation, replacement, demolition, or maintenance of the levee, the Permitted Use
includes the right to (1) excavate, dredge, cut away, and remove existing on -site materials
including silt, sand, gravel, rock, wood or debris, and vegetation; (2) place fill material including
rock, gravel, soil, drainage outfall structures or related appurtenances, and large wood and
associated anchors; and (3) install and maintain replacement vegetation.
Insurance
Grantees shall provide State a letter stating its self insurance program meets the requirements of
Section 10.2 before any construction begins.
Routine Maintenance and Repair
Grantees will conduct ongoing routine maintenance of the levee and all appurtenances within or
landward of the original footprint of the existing levee.
Routine maintenance Droiects include (a) repair of existing gates and access roads; (b)
installation of beneficial native trees and shrubs along the face and landward sides of existing
flood protection facilities; (c) removal of undesirable non native vegetation such as blackberries
or plants designated as Noxious Weeds under Washington State Weed Law, (Chapter 17.10
RCW), Noxious Weeds and Weeds of Concern listed on the Washington State Noxious Weed
Control Board's Noxious Weeds List (Chapter 16 -750 WAC), and, on a limited basis, native
Exhibit B 1 of 2 Easement No. 51- 082633
cucumber (March oreganus) on flood protection facilities and access roads by hand or
mechanical means such as mowing; and (d) harvesting to obtain cuttings for King County bank
stabilization and habitat restoration projects countywide (e) removal of vegetation for inspection
of flood protection facilities, (f) repair of interior drainage channels, flap gates, culverts, large
wood and other already existing levee and revetment appurtenances, (g) removal of trees
determined to pose a hazard to people, property or flood facility structural integrity, (h)
vegetation removal on levees the County operates and maintains in accordance with the Army
Corps of Engineers levee maintenance standards.
Construction, Major Repair, Modification, and Demolition
Grantees may conduct construction, major repair, modification, demolition, and flood damage
repair of the levee and all appurtenances within or landward of the original footprint of the
existing levee. Grantees will submit to the State the engineering drawings and plans for each
project and locations per Section 7.3 of the Easement. Grantees shall provide copies of all
required permits to the State prior to construction.
Flood damage repair and rehabilitation nroiects (major repairs) entail reconstruction of flood
damaged levees. Repair techniques include using fish- friendly, bioengineering approaches laid
out in the 1993 Guidelines for Bank Stabilization Projects, or successor documents or as required
by the for Army Corps of Engineers. These design techniques often include installing a
combination of large toe rock (which is sometimes completely buried within the toe of the slope)
and large coniferous logs with and without intact rootwads at or below the estimated ordinary
high water mark (OHWM) and native vegetation and biodegradable geotextile fabrics at or
above the estimated OHWM, occasionally in combination with rock facing. In some cases, these
materials may be supplemented with limited amounts of deciduous logs. Such projects are
intended to stabilize eroding or slumping riverbanks and provide fish habitat benefits within the
flood protection facilities and adjacent floodplains.
Flood damage repairs also include setbacks and removals of existing bank stabilization facilities
where such actions will not adversely affect flood containment or the minimum freeboard
performance currently provided by the facility. Wherever practicable, and subject to the
requirements of the Army Corps of Engineers, the top of the bank or undeveloped portions of the
adjacent riparian zone will be revegetated with native riparian plant species to provide additional
riparian habitat for fish and wildlife.
Exhibit B 2 of 2 Easement No. 51- 082633