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HomeMy WebLinkAbout2007 - Aquatic Lands Easement - Department of Natural Resources - 20070710000644Recording Requested By and When Recorded Mail To: City of Tukwila 6300 Southcenter Blvd., Suite 100 Tukwila, WA 98188 20070710000644 CITY OF TUKWIL EAS 58 00 PAGE001 OF 027 07/10/2007 10:35 KING COUNTY, WA RECORDING MEMORANDUM Aquatic Lands Easement No. 51- 079473 i 1. Grantor: a. Washington State Department of Natural Resources b. Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022 2. Grantee: a. City of Tukwila b. 6300 Southcenter Blvd., Suite 100 Tukwila, WA 98188 3. Additional Grantee names on page N/A of document. 4. THIS Aquatic Lands Easement "Instrument is made and granted by Grantor, Washington State Department of Natural Resources (DNR), a state agency, to the City of Tukwila "Grantee For valuable consideration, DNR has granted all the rights, interests, and responsibilities in the above Aquatic Lands Easement to Grantee in the property (the "Property") with the following Legal Descriptions: 5. a. Abbreviated legal description: SW''% of Section 24, Township 23, Range 4 East, W.M. b. Additional legal description is on page N/A of document. 6. DNR Document No.: 51- 079473 7. Duration of Aquatic Lands Easement: Thirty (30) Years TAX NOT REQUIOD F A g Co. Records STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS EASEMENT TABLE OF CONTENTS SECTION PAGE 1. GRANT AND LOCATION OF EASEMENT 1 1.1 Easement Property 1 1.2 Construction and Access 1 1.3 Right of Third Parties 1 1.4 Surveys, Maps, and Plans. 1 2. PURPOSE OF EASEMENT 2 3. TERM 2 3.1 Term. 2 4. USE FEE 2 4.1 Fee 2 4.2 Late Charges and Interest 2 4.3 Non Waiver 2 5. NOTIFICATION OF ACTIVITIES 2 6. MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS 3 6.1 Grantee's Activities 3 6.2 Restrictions on Use 3 7. INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY 3 8. COMPLIANCE WITH LAWS 4 Form Date: May, 2005 j Easement No. 51- 079473 di, /6 //4L 9. ENVIRONMENTAL LIABILITY/RISK ALLOCATION 4 9.1 Definition. 4 9.2 Use of Hazardous Substances. 4 9.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate 4 9.4 Notification and Reporting 5 9.5 Indemnification 6 9.6 Cleanup 7 9.7 Sampling by State, Reimbursement, and Split Samples 8 9.8 Reservation of Rights 9 10. PRESERVATION OF SURVEY CORNERS 9 11. TERMINATION OF EASEMENT 9 12. OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND EQUIPMENT 10 12.1 Existing Improvements 10 12.2 Grantee -Owned Improvements 10 12.3 Construction 10 12.4 Performance Bond 10 12.5 As Built Survey 10 12.6 Removal 10 12.7 Unauthorized Improvements 11 13. INDEMNITY 11 14. FINANCIAL SECURITY AND INSURANCE 12 14.1 Financial Security. 12 14.2 Insurance 12 14.3 State's Acquisition of Insurance 15 14.4 Self Insurance 15 15. TAXES AND ASSESSMENTS 15 16. ADVANCE BY STATE 15 17. NOTICE 16 18. ASSIGNMENT 16 19. SUCCESSORS AND ASSIGNS 16 20. TIME IS OF THE ESSENCE 16 21. RECORDATION 16 22. APPLICABLE LAW AND VENUE 17 23. MODIFICATION 17 24. SURVIVAL 17 25. INVALIDITY 17 EXHIBIT A: LEGAL DESCRIPTION AND SURVEY EXHIBIT B: PLAN OF OPERATIONS AND MAINTENANCE Form Date: May, 2005 11 Easement No. 51- 079473 AQUATIC LANDS EASEMENT NO. 51- 079473 THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the Department of Natural Resources "State and the CITY OF TUKWILA, a government agency /entity( "Grantee Form Date: May, 2005 STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS EASEMENT SECTION 1 GRANT AND LOCATION OF EASEMENT 1.1 Easement Property. State grants and conveys to Grantee a nonexclusive easement for a term of years (the "Easement over, upon, and under the property described in Exhibit A (the "Easement Property 1.2 Construction and Access. State grants to Grantee a nonexclusive easement, for construction purposes only, over the property described in Exhibit B, which includes the Easement Property and such additional property as is reasonably necessary for construction on the Easement Property. This construction easement shall terminate upon completion of construction by Grantee. To the extent it can do so without violating any other contract or lease, State hereby also grants a nonexclusive easement on State -owned land and water on either side of the Easement Property, if any exists, for ingress and egress to gain access to the Easement Property and to construct improvements on and maintain and repair the Easement Property. 1.3 Right of Third Parties. 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 the federal navigation servitude; and treaty rights of Indian Tribes. Not included in this Easement are 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. State makes no representations regarding access to the Easement Property. 1.4 Surveys, Maps, and Plans. In executing this Easement, State is relying upon the surveys, plats, diagrams, and /or legal descriptions provided by Grantee. Grantee is not relying upon and State is not making any representations about any surveys, plats, diagrams, and/or legal descriptions provided by State. 1 of 20 Easement No. 51- 079473 SECTION 2 PURPOSE OF EASEMENT This Easement is granted for the purpose of and is limited to constructing, installing, operating, maintaining, repairing, replacing, and using a 10" watermain "Permitted Use SECTION 3 TERM 3.1 Term. The term of this Easement is thirty (30) years (the "Term beginning on the 1st day of August, 2006 (the "Commencement Date and ending on the 31 day of July, 2036 (the "Termination Date unless terminated sooner under the terms of this Easement. SECTION 4 USE FEE 4.1 Use Fee. Pursuant to RCW 79.110.230 and RCW 79.110.240, so long as the Permitted Use is consistent with the purposes of RCW 79.105.010 through RCW 79.105.210 and does not obstruct navigation or other public uses of the Green River and its surrounding waters, this use is Granted to government owned public utilities for the cost of administrative fees associated with the processing of the application and document, plus the cost of administrative fees associated with the processing of any future application made with respect to this easement for the term specified in Section 3.1 (Term Defined). Administrative fees shall be paid within thirty (30) days after a bill is submitted to Grantee. Nothing in this subsection shall preclude State's ability to charge Grantee a fee for any impacts to natural resources on or adjacent to the Easement Property that are directly or indirectly associated with the Permitted Use or Grantee's use or occupation of the Easement Property. 4.2 Late Charges and Interest. If any use fee is not received by State within ten (10) days of the date due, Grantee 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 as a result of the delay. If any use fee is not paid within thirty (30) days of the date due, then Grantee shall, in addition to paying the late charges established above, pay interest on the amount outstanding at the rate of one percent (1 per month until paid. 4.3 Non Waiver. State's acceptance of a use fee shall not be construed to be a waiver of any preceding or existing breach other than the failure to pay the particular use fee that was accepted. SECTION 5 NOTIFICATION OF ACTIVITIES Except in the case of an emergency, Grantee shall provide State with written notice of any construction or other significant activity on the Easement Property at least thirty (30) days Form Date: May, 2005 2 of 20 Easement No. 51- 079473 in advance. In cases of emergency, Grantee shall notify State of such activity no later than five (5) days after such activity commences. "Significant activity" means any activity that might affect State's or public's use or enjoyment of Easement Property and any surrounding state -owned aquatic lands or the waters. SECTION 6 MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS 6.1 Grantee's Activities. Grantee shall promptly repair, at its sole cost, all damages to any improvements on the Easement Property, to the Easement Property, or to any natural resources which are caused by Grantee's activities. All work performed by Grantee shall be completed in a careful and worker like manner to State's satisfaction, free of any claims or liens. Upon completion of any work performed by Grantee, Grantee shall remove all debris and restore the Easement Property, as nearly as possible, to the condition it was in prior to commencement of the work. 6.2 Restrictions on Use. Grantee shall not cause or permit any damage to natural resources on the Easement Property. Grantee shall also not cause or permit any filling activity to occur on the Easement Property. This prohibition includes any deposit of rock, earth, ballast, refuse, garbage, waste matter (including chemical, biological or toxic wastes), hydrocarbons, any other pollutants, or other matter in or on the Easement Property, except as approved in writing by State. Grantee shall neither commit nor allow waste to be committed to or on the Easement Property. If Grantee fails to comply with all or any of the restrictions in use set out in this Subsection 6.2, State may take any steps reasonably necessary to remedy such failure. Upon demand by State, Grantee 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. This section shall not in any way limit Grantee's liability under Section 9, below. The prohibitions in this section against damage to natural resources, filling, deposition of any unapproved materials, and waste, shall also apply to protect state -owned aquatic lands adjacent to the Property from any of Grantee's activities related to Grantee's occupation of the Property. All obligations imposed by this section on Grantee to cure any violation of the prohibited activities in this section shall also extend to state -owned aquatic lands adjacent to the Property when the violation arose from Grantee's activities related to Grantee's occupation of the Property. SECTION 7 INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY Grantee shall exercise its rights under this Easement so as to minimize and avoid, to the fullest extent reasonably possible, interference with State's use of the Easement Property or with the public's right to use the Green River for purposes of recreation, navigation, or commerce including rights under the Public Trust Doctrine. Any improvements Form Date: May, 2005 3 of 20 Easement No. 51- 079473 constructed by Grantee on the Easement Property shall be placed and constructed so as to allow, to the fullest extent reasonably possible, unobstructed movement through the water column in the Easement Property. SECTION 8 COMPLIANCE WITH LAWS Grantee shall, at its own expense, conform to all applicable laws, regulations, permits, orders, or requirements of any public authority affecting the Easement Property and the Permitted Use. Upon request, Grantee shall supply State with copies of permits or orders. SECTION 9 ENVIRONMENTAL LIABILITY/RISK ALLOCATION 9.1 Definition. "Hazardous Substance" means any substance which 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 or cleanup, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 "CERCLA 42 U.S.C. 9601 et seq., and Washington's Model Toxics Control Act "MTCA RCW 70.105D.010 et seq. 9.2 Use of Hazardous Substances. Grantee covenants and agrees that Hazardous Substances will not be used, stored, generated, processed, transported, handled, released, or disposed of in, on, under, or above the Easement Property, except in accordance with all applicable laws. 9.3 Current Conditions, Duty of Utmost Care, 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. With regard to any Hazardous Substances that may exist in, on, under, or above the Easement Property, State disclaims any and all responsibility to conduct investigations, to review any State records, documents or files, or to obtain or supply any information to Grantee. (b) Grantee shall exercise the utmost care with respect to both Hazardous Substances in, on, under, or above the Easement Property as of the Commencement Date, and any Hazardous Substances that come to be located in, on, under, or above the Easement Property during the Term of this agreement, along with the foreseeable acts or omissions of third parties affecting those Hazardous Substances, and the foreseeable consequences of those acts or omissions. The obligation to exercise utmost care under this Subsection 9.3 includes, but is not limited to, the following requirements: Form Date: May, 2005 4 of 20 Easement No. 51- 079473 (1) (2) Grantee shall not undertake activities that damage or interfere with the operation of remedial or restoration activities on the Easement Property or undertake activities that result in human or environmental exposure to contaminated sediments on the Easement Property; (3) (5) 9.4 Notification and Reporting. (1) Form Date: May, 2005 Grantee shall not undertake activities that will cause, contribute to, or exacerbate contamination of the Easement Property; Grantee shall not undertake any activities that result in the mechanical or chemical disturbance of on -site habitat mitigation; (4) If requested, Grantee shall allow reasonable access to the Easement Property by employees and authorized agents of the Environmental Protection Agency, the Washington State Department of Ecology, or other similar environmental agencies; and If requested, Grantee shall allow reasonable access to potentially liable or responsible parties who are the subject of an order or consent decree which requires access to the Easement Property. Grantee's obligation to provide access to potentially liable or responsible parties may be conditioned upon the negotiation of an access agreement with such parties, provided that such agreement shall not be unreasonably withheld. (c) It shall be Grantee's obligation to gather sufficient information concerning the Easement Property and the existence, scope, and location of any Hazardous Substances on the Easement Property, or adjoining the Easement Property, that allows Grantee to effectively meet its obligations under this Easement. (a) Grantee shall immediately notify State if Grantee becomes aware of any of the following: A release or threatened release of Hazardous Substances in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property; (2) Any problem or liability related to, or derived from, the presence of any Hazardous Substance in, on, under, or above the Easement Property, any adjoining property, or any other property subject to 5 of 20 Easement No. 51- 079473 (3) 9.5 Indemnification. Form Date: May, 2005 use by Grantee in conjunction with its use of the Easement Property; Any actual or alleged violation of any federal, state, or local statute, ordinance, rule, regulation, or other law pertaining to Hazardous Substances with respect to the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property; (4) Any lien or action with respect to any of the foregoing; or, (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) Grantee shall, at State's request, provide State with copies of any and all reports, studies or audits which pertain to environmental issues or concerns and to the Easement Property, and which were prepared for Grantee and submitted to any federal, state or local authorities pursuant to any federal, state or local permit, license or law. These permits include, but are not limited to, any National Pollution Discharge Elimination System Permit, any Army Corps of Engineers permit, any state Hydraulics Project Approval, any state Water Quality Certification, or any Local Shoreline permit. (a) Grantee shall fully indemnify, defend, and hold State harmless from and against any and all claims, demands, damages, natural resource damages, response costs, remedial costs, cleanup costs, losses, liens, liabilities, penalties, fines, lawsuits, other proceedings, costs, and expenses (including attorneys' fees and disbursements), that arise out of, or are in any way related to: (1) The use, storage, generation, processing, transportation, handling, or disposal of any Hazardous Substance by Grantee, its subgrantees, contractors, agents, employees, guests, invitees, or affiliates in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, during the Term of this Easement or during any time when Grantee occupies or occupied the Easement Property or any such other property; 6 of 20 Basement No. 51- 079473 (2) The release or threatened release of any Hazardous Substance, or the exacerbation of any Hazardous Substance contamination, in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, which release, threatened release, or exacerbation occurs or occurred during the Term of this Easement or during any time when Grantee occupies or occupied the Easement Property or any such other property and as a result of: (i) Any act or omission of Grantee, its subgrantees, contractors, agents, employees, guests, invitees, or affiliates; or, (ii) Any foreseeable act or omission of a third party unless Grantee exercised the utmost care with respect to the foreseeable acts or omissions of the third party and the foreseeable consequences of those acts or omissions. (b) In addition to the indemnifications provided in Subsection 9.5(a), Grantee shall fully indemnify State for any and all damages, liabilities, costs or expenses (including attorneys' fees and disbursements) that arise out of or are in any way related to Grantee's breach of the obligations of Subsection 9.3(b). This obligation is not intended to duplicate the indemnity provided in Subsection 9.5(a) and applies only to damages, liabilities, costs or expenses that are associated with a breach of Subsection 9.3(b) and which are not characterized as a release, threatened release, or exacerbation of Hazardous Substances. 9.6 Cleanup. If a release of Hazardous Substances occurs in, on, under, or above the Easement Property or other State -owned property arising out of any action, inaction, or event described or referred to in Subsection 9.5, above, Grantee shall, at its sole expense, promptly take all actions necessary or advisable to clean up the Hazardous Substances. Cleanup actions shall include, without limitation, removal, containment and remedial actions and shall be performed in accordance with all applicable laws, rules, ordinances, and permits. Grantee's obligation to undertake a cleanup of the Easement Property under this Subsection 9.6 shall be limited to those instances where the Hazardous Substances exist in amounts that exceed the threshold limits of any applicable regulatory cleanup standards. Grantee shall also be solely responsible for all cleanup, administrative, and enforcement costs of governmental agencies, including natural resource damage claims, arising out of any action, inaction, or event described or referred to in Subsection 9.5, above. Grantee may undertake a cleanup pursuant to the Washington State Department of Ecology's Voluntary Cleanup Program, provided that: (1) Any cleanup plans shall be submitted to State (DNR) for review and comment at least thirty (30) days prior to Form Date: May, 2005 7 of 20 Easement No. 51- 079473 implementation (except in emergency situations), and (2) Grantee must not be in breach of this Easement. Nothing in the operation of this provision shall be construed as an agreement by State that the voluntary cleanup complies with any laws or with the provisions of this Easement. 9.7 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 on the Easement Property, any adjoining property, any other property subject to use by Grantee in conjunction with its use of the Easement Property, or any natural resources. If such Tests, along with any other information, demonstrates the existence, release or threatened release of Hazardous Substances arising out of any action, inaction, or event described or referred to in Subsection 9.5, above, Grantee shall promptly reimburse State for all costs associated with such Tests. (b) State's ability to seek reimbursement for any Tests under this Subsection shall be conditioned upon State providing Grantee written notice of its intent to conduct any Tests at least thirty (30) calendar days prior to undertaking such Tests, unless such Tests are performed in response to an emergency situation in which case State shall only be required to give such notice as is reasonably practical. (c) (d) Within thirty (30) calendar days of a written request (unless otherwise required pursuant to Subsection 9.4(b), 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 Grantee. There is no obligation to provide any analytical summaries or expert opinion work product. Form Date: May, 2005 Grantee shall be entitled to obtain split samples of any Test samples obtained by State, but only if Grantee provides State with written notice requesting such samples within twenty (20) calendar days of the date Grantee is deemed to have received notice of State's intent to conduct any non emergency Tests. The additional cost, if any, of split samples shall be borne solely by Grantee. Any additional costs State incurs by virtue of Grantee's split sampling shall be reimbursed to State within thirty (30) calendar days after a bill with documentation for such costs is sent to Grantee. 8 of 20 Easement No. 51- 079473 9.8 Reservation of Rights. The parties have agreed to allocate certain environmental risks, liabilities, and responsibilities by the terms of Section 9. With respect to those environmental liabilities covered by the indemnification provisions of Subsection 9.5, that subsection shall exclusively govern the allocation of those liabilities. With respect to any environmental risks, liabilities, or responsibilities not covered by Subsection 9.5, 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 in, on, under, or above the Easement Property, any adjoining property or any other property subject to use by Grantee in conjunction with its use of the Easement Property that either party may have against the other under federal, state or local laws, including but not limited to, CERCLA, MTCA, and the common law. No right, claim, immunity, or defense either party may have against third parties is affected by this Easement and the parties expressly reserve all such rights, claims, immunities, and defenses. The allocations of risks, liabilities, and responsibilities set forth above do not release either party from, or affect either party's liability for, claims or actions by federal, state, or local regulatory agencies concerning Hazardous Substances. SECTION 10 PRESERVATION OF SURVEY CORNERS Grantee shall exercise the utmost care to ensure that all legal land subdivision survey corners and witness objects are preserved. If any survey corners or witness objects are destroyed or disturbed, Grantee shall reestablish them by a registered professional engineer or licensed land surveyor in accordance with US General Land Office standards, at Grantee's own expense. Corners and /or witness objects that must necessarily be disturbed or destroyed in the process of construction of improvements must be adequately referenced and /or replaced in accordance with all applicable laws and regulations in force at the time, including but not limited to, Chapter 58.24 RCW. The references must be approved by State prior to removal of the survey corners and /or witness objects. Form Date: May, 2005 SECTION 11 TERMINATION OF EASEMENT This Easement shall terminate if Grantee receives notice from State that Grantee is in breach of this Easement and Grantee fails to cure that breach within sixty (60) days of State's notice. If the breach is not reasonably capable of being cured within the sixty (60) days, Grantee shall commence the cure within the sixty (60) day period and continue the cure with diligence until completion. In addition to terminating this Easement, State shall have any other remedy available to it. State's failure to exercise its right to terminate at any time shall not waive State's right to terminate for any future breach. If Grantee ceases to use the Easement Property for the purposes set forth in this Easement for a period of five (5) successive years, this Easement shall terminate without further action by State and Grantee's rights shall revert to State. This Easement may also terminate if Grantee provides State with sixty (60) days written notice of its intent to terminate the Easement, in a form satisfactory to State. 9 of 20 Easement No. 51- 079473 SECTION 12 OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND EQUIPMENT 12.1 Existing Improvements. On the Commencement Date, the following improvements are located on the Easement Property: Southcenter Blvd. Bridge (51- 079909), and 12" D.I.P. storm drain (51- 079908)( "Existing Improvements The improvements are not owned by State. 12.2 Grantee -Owned Improvements. So long as this Easement remains in effect, Grantee shall retain ownership of all Existing Improvements, and all improvements and trade fixtures it may place on the Easement Property (collectively "Grantee -Owned Improvements Grantee -Owned Improvements shall not include any construction, reconstruction, alteration, or addition to any Unauthorized Improvements as defined in Subsection 12.7 below. 12.3 Construction. No Grantee -Owned Improvements shall be placed on the Easement Property without State's prior written consent. State's consent has been granted for the initial construction of any improvements identified in the Plan of Operations (Exhibit B). Prior to any construction, alteration, replacement, removal or major repair of any improvements (whether State -Owned or Grantee Owned), Grantee shall submit to State plans and specifications which describe the proposed activity. Except in the case of emergency repairs, such work shall not commence until State has approved those plans and specifications. State shall have sixty (60) days in which to review the proposed plans and specifications. The plans and specifications shall be deemed approved unless State notifies Grantee otherwise within the sixty (60) days. In the case of emergency repairs, Grantee shall notify State within five (5) business days of the start of such repairs and shall provide State with the proposed plans and specifications for the repairs if requested. 12.4 Performance Bond. Except in the case of emergency repairs, no construction work of any kind shall commence until Grantee has obtained a performance and payment bond in an amount equal to 125% of the estimated cost of construction. State may require Grantee to obtain a performance and payment bond for emergency repair work that has been initiated. The performance and payment bond shall be maintained until the costs of construction, including all laborers and material persons, have been paid in full. 12.5 As Built Survey. Upon completion of construction, Grantee shall promptly provide State with as -built plans and specifications. In those cases where new improvements are approved, or where the location of any improvements is changed, Grantee may be required to provide an as -built survey of the Easement Property. 12.6 Removal. Grantee -Owned Improvements shall be removed by Grantee by the Termination Date unless State notifies Grantee that the Grantee -Owned Improvements may remain. If State elects for the Grantee -Owned Improvements to remain on the Form Date: May, 2005 10 of 20 Easement No. 51- 079473 Easement Property after the Termination Date, they shall become the property of State without payment by State. To the extent that Grantee -Owned Improvements include items of personal property which may be removed from the premises without harming the Easement Property, or diminishing the value of the Easement Property or the improvements, State asserts no ownership interest in these improvements unless the parties agree otherwise in writing upon termination of this Easement. Any Grantee Owned Improvements specifically identified as personal property in Exhibit A or B shall be treated in accordance with this provision. Grantee shall notify State at least one hundred eighty (180) days before the Termination Date if it intends to leave the Grantee Owned Improvements on the Easement Property. State shall then have ninety (90) days in which to notify Grantee that it wishes to have the Grantee -Owned Improvements removed or elects to have them remain. Failure to notify Grantee shall be deemed an election by State that the Grantee -Owned Improvements will remain on the Easement Property. If the Grantee -Owned Improvements remain on the Easement Property after the Termination Date without State's actual or deemed consent, they still will become the property of the State but the State may remove them and Grantee shall pay the costs of removal and disposal upon State's demand. 12.7 Unauthorized Improvements. Improvements made on the Easement Property without State's prior written consent or which are not in conformance with the plans submitted to and approved by State "Unauthorized Improvements shall immediately become the property of State, unless State elects otherwise. Regardless of ownership of Unauthorized Improvements, State may, at its option, require Grantee to sever, remove, and dispose of them, charge Grantee rent for the use of them, or both. If Grantee fails to remove an Unauthorized Improvement upon request, State may remove it and charge Grantee for the cost of removal and disposal. SECTION 13 INDEMNITY Grantee shall indemnify, defend, and hold harmless State, its employees, officers, and agents from any and all liability, damages (including damages to land, aquatic life, and other natural resources), expenses, causes of action, suits, claims, costs, fees (including attorneys fees), penalties, or judgments, of any nature whatsoever, arising out of the use, occupation, or control of the Easement Property by Grantee, its contractors, subcontractors, invitees, agents, employees, licensees, or permittees, except as may arise solely out of the willful or negligent act of State or State's elected officials, employees, or agents. To the extent that RCW 4.24.115 applies, Grantee shall not be required to indemnify, defend, and hold State harmless from State's sole or concurrent negligence. Grantee's liability to State for hazardous substances, and its obligation to indemnify, defend, and hold the State harmless for hazardous substances, shall be governed exclusively by Section 9. Form Date: May, 2005 11 of 20 Easement No. 51- 079473 SECTION 14 FINANCIAL SECURITY AND INSURANCE 14.1 Financial Security. (a) At its own expense, Grantee shall procure and maintain a corporate surety bond or provide other financial security satisfactory to State (the "Bond in an amount equal to Zero Dollars ($0), which shall secure Grantee's full performance of its obligations under this Easement, with the exception of the obligations under Section 9 (Environmental Liability /Risk Allocation) above. The Bond shall be in a form and issued by a surety company acceptable to State. State may require an adjustment in the amount of the Bond. (b) Upon any default by Grantee in its obligations under this Easement, State may collect on the Bond to offset the liability of Grantee to State. Collection on the Bond shall not relieve Grantee of liability, shall not limit any of State's other remedies, and shall not reinstate or cure the default or prevent termination of the Easement because of the default. 14.2 Insurance. At its own expense, Grantee shall procure and maintain during the Term of this Easement, the insurance coverages and limits described in Subsections 14.2 (a) and (b) below. This insurance shall be issued by an insurance company or companies admitted and licensed by the Insurance Commissioner to do business in the State of Washington. Insurers must have a rating of B+ or better by "Best's Insurance Reports," or a comparable rating by another rating company acceptable to State. If non admitted or non -rated carriers are used, the policies must comply with Chapter 48.15 RCW. (a) Types of Required Insurance. Form Date: May, 2005 (1) Commercial General Liability Insurance. Grantee shall procure and maintain Commercial General Liability insurance covering claims for bodily injury, personal injury, or property damage arising on the Easement Property and /or arising out of Grantee's operations. If necessary, commercial umbrella insurance covering claims for these risks shall be procured and maintained. Insurance must include liability coverage with limits not less than those specified below: Description Each Occurrence $1,000,000 General Aggregate Limit $2,000,000 State may impose changes in the limits of liability: 12 of 20 Easement No. 51- 079473 Form Date: May, 2005 (i) As a condition of approval of assignment or sublease of this Easement; (ii) Upon any breach of Section 9, above; (iii) Upon a material change in the condition of the Easement Property or any improvements; or, (iv) Upon a change in the Permitted Use. New or modified insurance coverage shall be in place within thirty (30) days after changes in the limits of liability are required by State. (2) Property Insurance. Grantee shall procure and maintain property insurance covering all real property located on or constituting a part of the Easement Property in an amount equal to the replacement value of all improvements on the Easement Property. Such insurance may have commercially reasonable deductibles. (3) Worker's Compensation/Employer's Liability Insurance. Grantee shall procure and maintain: (i) State of Washington Worker's Compensation coverage, as applicable, with respect to any work by Grantee's employees on or about the Easement Property and on any improvements; (ii) Employers Liability or "Stop Gap" insurance coverage, as applicable, with limits not less than those specified below. Insurance must include bodily injury coverage with limits not less than those specified below: Each Employee Policy Limit By Accident By Disease By Disease $1,000,000 $1,000,000 $1,000,000 (iii) Longshore and Harbor Worker's Act and Jones Act coverage, as applicable, with respect to any work by Grantee's employees on or about the Easement Property and on any improvements. (4) Builder's Risk Insurance. As applicable, Grantee shall procure and maintain builder's risk insurance in an amount reasonably satisfactory to State during construction, replacement, or material alteration of the Easement Property 13 of 20 Easement No. 51- 079473 (5) or improvements on the Easement Property. Coverage shall be in place until such work is completed and evidence of completion is provided to State. Business Auto Policy Insurance. As applicable, Grantee shall procure and maintain a business auto policy. The insurance must include liability coverage with limits not less than those specified below: Description Bodily Injury and Property Damage Each Accident $1,000,000 (b) Terms of Insurance. The policies required under Subsection 14.2 shall name the State of Washington, Department of Natural Resources as an additional insured (except for State of Washington Worker's Compensation coverage, and Federal Jones Act and Longshore and Harbor Worker's Act coverages). Furthermore, all policies of insurance described in Subsection 14.2 shall meet the following requirements: (1) Policies shall be written as primary policies not contributing with and not in excess of coverage that State may carry; (2) Policies shall expressly provide that such insurance may not be canceled or nonrenewed with respect to State except upon forty -five (45) days prior written notice from the insurance company to State; (3) (5) Form Date: May, 2005 To the extent of State's insurable interest, property coverage shall expressly provide that all proceeds shall be paid jointly to State and Grantee; (4) All liability policies must provide coverage on an occurrence basis; and Liability policies shall not include exclusions for cross liability. (c) Proof of Insurance. Grantee shall furnish evidence of insurance in the form of a Certificate of Insurance satisfactory to the State accompanied by a check list of coverages provided by State, executed by a duly authorized representative of each insurer showing compliance with the insurance requirements described in Section 14, and, if requested, copies of policies to State. The Certificate of Insurance shall reference the State of 14 of 20 Easement No. 51- 079473 Washington, Department of Natural Resources and the Easement number. Receipt of such certificates or policies by State does not constitute approval by State of the terms of such policies. Grantee acknowledges that the coverage requirements set forth herein are the minimum limits of insurance the Grantee must purchase to enter into this agreement. These limits may not be sufficient to cover all liability losses and related claim settlement expenses. Purchase of these limits of coverage does not relieve the Grantee from liability for losses and settlement expenses greater than these amounts. 14.3 State's Acquisition of Insurance. If Grantee fails to procure and maintain the insurance described above within fifteen (15) days after Grantee receives a notice to comply from State, State shall have the right to procure and maintain comparable substitute insurance and to pay the premiums. Grantee shall pay to State upon demand the full amount paid by State, together with interest at the rate provided in Subsection 4.2 from the date of State's notice of the expenditure until Grantee's repayment. 14.4 Self Insurance. Grantee warrants that it has the capacity to self insure for the risks and coverages specified in Subsection 14.2. Grantee's obligations under Subsection 14.2 may be met by providing evidence of self insurance that is acceptable to the State. Any evidence of Grantee's proof of self insurance by State must be obtained in writing. The decision to accept, or reject, Grantee's proof of self insurance is within the sole discretion of State. Grantee must provide State with proof of continuing ability to provide self insurance within thirty (30) days of any written request by State for such proof. Grantee shall also provide State with written notice within seven (7) days of any material change in it ability to self insure, or to its program of self insurance. If Grantee elects to discontinue its program of self insurance, or if State provides written notice withdrawing its acceptance of Grantee's proof of self insurance, Grantee shall be subject to the requirements of Subsections 14.2 and 14.3. Grantee shall be in compliance with the requirements of Subsection 14.2 prior to exercising an election to terminate self insurance coverage and shall comply with those requirements within thirty (30) days of receipt of any notice from State withdrawing its consent to self insurance. SECTION 15 TAXES AND ASSESSMENTS Grantee shall promptly pay all taxes, assessments and other governmental charges of any kind whatsoever levied as a result of this Easement or relating to Grantee's improvements constructed pursuant to this Easement. SECTION 16 ADVANCE BY STATE If State advances or pays any costs or expenses for or on behalf of Grantee, including but not limited to taxes, assessments, insurance premiums, costs of removal and disposal of unauthorized materials, costs of removal and disposal of improvements, or other amounts Form Date: May, 2005 15 of 20 Easement No. 51- 079473 not paid when due, Grantee shall reimburse State the amount paid and shall pay interest on such amount at the rate of one percent (1 per month from the date State notifies Grantee of the advance or payment. Any notices required or permitted under this Easement may be personally delivered, delivered by facsimile machine, or mailed by certified mail, return receipt requested, to the following addresses or to such other places as the parties may direct in writing from time to time: State: Form Date: May, 2005 SECTION 17 NOTICE DEPARTMENT OF NATURAL RESOURCES Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022 -9282 Grantee: CITY OF TUKWILA 6300 Southcenter Blvd., Suite 100 Tukwila, WA 98188 A notice shall be deemed given and delivered upon personal delivery, upon receipt of a confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set forth above, whichever is applicable. SECTION 18 ASSIGNMENT Grantee shall not assign its rights in the Easement or grant any rights or franchises to third parties, without State's prior written consent. State reserves the right to change the terms and conditions of this Easement upon its consent to any assignment. SECTION 19 SUCCESSORS AND ASSIGNS This Easement shall be binding upon and inure to the benefit of the parties, their successors and assigns and shall be a covenant running with the land. SECTION 20 TIME IS OF THE ESSENCE TIME IS OF THE ESSENCE as to each and every provision of this Easement. SECTION 21 RECORDATION Grantee shall record this Easement or a memorandum documenting the existence of this Easement in the county in which the Easement Property is located, at Grantee's sole expense. The memorandum shall, at a minimum, contain the Easement Property 16 of 20 Easement No. 51- 079473 description, the names of the parties to the Easement, the State's easement number, and the duration of the Easement. Grantee shall provide State with recording information, including the date of recordation and file number. Grantee shall have thirty (30) days from the date of delivery of the final executed agreement to comply with the requirements of this section. If Grantee fails to record this Easement, State may record it and Grantee shall pay the costs of recording, including interest, upon State's demand. SECTION 22 APPLICABLE LAW AND VENUE This Easement shall be interpreted and construed in accordance with and shall be subject to the laws of the State of Washington. Any reference to a statute shall mean that statute as presently enacted or hereafter amended or superseded. Venue for any action arising out of or in connection with this Easement shall be in the Superior Court for Thurston County, Washington. SECTION 23 MODIFICATION Any modification of this Easement must be in writing and signed by the parties. State shall not be bound by any oral representations or statements. SECTION 24 SURVIVAL Any obligations of Grantee which are not fully performed upon termination of this Easement shall not cease, but shall continue as obligations until fully performed. SECTION 25 INVALIDITY If any provision of this Easement shall prove to be invalid, void, or illegal, it shall in no way affect, impair, or invalidate any other provision of this Easement. Form Date: May, 2005 17 of 20 Easement No. 51- 079473 THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last signature below. Dated: fJ 20O7 By ■VTh 1Vy,1/4_0. ,U, STEVEN M. MULLETT Dated: 4 /7% ,20 .r' Vs' :10.cati Approved as to Form in May, 2005 by Joe Panesko Assistant Attorney General State of Washington Form Date: May, 2005 J n Grantee: Title: Address: STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES By: Title: Address: CITY OF TUKWILA Mayor 6300 Southcenter Blvd., Suite 100 Tukwila, WA 98188 18 of 20 SU HERLAND Commissioner of Public Lands Shoreline District Aquatics Region 950 Farman Avenue North Enumclaw, WA 98022 -9282 Easement No. 51- 079473 I certify that I know or have satisfactory evidence that STEVEN M. MULLETT 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 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: Form Date: May, 2005 REPRESENTATIVE ACKNOWLEDGMENT e$NIS�C Liti 0.,`gS10N c�a,� T G/ vn 'U i r 3 BC.- 1� (5 nature) Lvr CNn/1 A/7 (Print Name) Notary Public in and for the State of ngton, residing at My appointment expires e /Zg a 19 of 20 L Easement No. 51- 079473 STATE OF WASHINGTON ss County of —7- l u ro -tc.i n 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, and ex officio administrator of the Department of Natural Resources of the State of Washington to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. /u Dated: J j -)1:07 a ot, /t k l on Ct (Signature) Form Date: May, 2005 STATE ACKNOWLEDGMENT Pk,; tz 10 t t (Print Name) Notary Public in and for the State of ngton, residing at .1.17y1l( Cc_ My appointment expires 5 9 "0? 20 of 20 Easement No. 51- 079473 T00006Z1T0L00Z 3 a z i- 1,1 z1 x M� O N za Frz z V a z ot M u Y W N 3 0 'Y ti t oo 0 v m O. Q fil EXHIBIT B PLAN OF OPERATIONS AND MAINTENANCE Easement No. 51- 079473 Water Pipeline Southcenter Blvd. Bridge City of Tukwila 6300 Southcenter Blvd., Suite 100 Tukwila, WA 98188 Site Description and Present Use The site is located at the Southcenter Blvd. Bridge (51- 079909) in the City of Tukwila, King County, Washington. The bridge crosses the Green River at Section 24, Township 23 North, Range 04 East. The current zoning for the properties adjacent to the project consists of Tukwila Urban Center, Low Density Residential and Commercial /Light Industrial. Future Use and Condition The City of Tukwila (City) plans to install 1900 feet of a new 10" ductile iron watermain (a portion of which will be installed on the north side of the Southcenter Blvd. Bridge) as part of upgrades to the City's water system. Project construction will commence in February or March of 2007, and is expected to take approximately ninety (90) to one hundred and twenty (120) days to complete. The pipe will have a visual inspection conducted annually. The pipe will have valves at each end for easy shut -off if the need arises. Section 1.2 Construction and Access No structures will be constructed over the Green River, and no in -water work will take place. The water line will be attached to the underside of the bridge using existing and proposed points of connection. The contractor has been advised that nothing shall fall into the river. Section 5 Notification of Activities Grantee shall provide written notice to State within thirty (30) days of project completion. Section 12.5 As -Built Survey Grantee shall provide State with as -built plans and specifications within four (4) to six (6) months of project completion. Section 17 Notice Grantee shall designate a contact person for the Department of Natural Resources. This person has the responsibility of notifying the Department of the status of the easement. The current contact person for the City of Tukwila is: Exhibit B Page 1 of 2 Easement No. 51- 079473 Michael Cusick, Senior Engineer City of Tukwila, Public Works Department Phone: 206.431.2441 Fax: 206.431.3665 Exhibit B Page 2 of 2 Easement No. 51- 079473