HomeMy WebLinkAbout2005 - Aquatic Lands - Department of Natural Resources - 20051031000487City of Tukwila
City Clerk' Office
6200 Southcenter Blvd.
Tukwila, WA 98188
206 -433 -1800
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CITY OF TUKWIL ERS 55.00
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Forth Date: July 2003
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS EASEMENT
A o5 -c th
TABLE OF CONTENTS
SECTION PAGE
I. GRANT AND LOCATION OF EASEMENT 1
1.1 Easement Property 1
1.2 Construction and Acce 1
1.3 Right of Third Parties 1
1.4 Surveys, Maps, and Plans 1
2. PURPOSE OF EASEMENT 7
3. TERM 2
3.1 Term 2
4. USE FEE 7
4.1 Fee 2
4.2 Late Charges and Interest 2
4.3 Non Waiver 2
5. NOTIFICATION OF ACTIVITIES 7
6. MAJNTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS
6.1 Grantee's Activities
6.2 Restrictions on Use
7. INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY
8. COMPLIANCE WITH LAWS
Easement 51- 076499
O I n!NI T A LS
9. ENVIRONMENTAL LI.ABILITY/RISK ALLOCATION 3
9.1 Definition. 3
9.2 Use of Hazardous Substances. 4
9.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate 5
9.4 Notification and Reporting 5
9.5 Indenmification 5
9.6 Cleanup 6
9.7 Sampling by State, Reimbursement, and Split Samples 7
9.8 Reservation of Rights 7
10. PRESERVATION OF SURVEY CORNERS 8
11. TERMINATION OF EASEMENT 8
12. OWNERSHIP AND REMOVAL OF LMPROVEMENTS AND EQUIPMENT 8
12.1 Existing Improvements 8
12.2 Grantee Owned Improvements 9
12.3 Construction 9
12.4 Performance Bond. 9
12.5 As Built Sun•ev 9
12.6 Removal 9
12.7 Unauthorized Improvements 10
13. INDEMNITY 10
14. FINANCIAL SECURITY AND NSURANCE 10
14.1 Financial Security. 10
14.2 Insurance 11
14.3 Self Insurance 13
14.4 State's Acquisition of Insurance 13
15. TAXES AND ASSESSMENTS 14
16. ADVANCE BY STATE 14
17. NOTICE 14
18. ASSIGNMENT 14
19. SUCCESSORS AND ASSIGNS 14
20. TLME IS OF THE ESSENCE 15
21. RECORDATION 15
22. APPLICABLE LA \V AND VENUE 15
23. MODIFICATION 15
24. SURVIVAL 15
25. INVALIDITY 15
EXHIBIT A: LEGAL DESCRIPTION AND SURVEY
EXHIBIT B: PLAN OF OPERATIONS AND MAINTENANCE
Form Date: July 2003 11
Easement 51- 076499
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS EASEMENT
AQUATIC LANDS EASEMENT NO 51- 076499
THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources "State and CITY OF TUKWILA, a government
agency /entity "Grantee
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 A, 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, andlor 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.
Form Date: July 2003
1of18
Easement 51- 076499
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 sewer forcemain "Permitted Use The Permitted
Use is described or shown in neater detail in Exhibit B, the terms and conditions of which are
incorporated by reference and made a part of this Easement.
SECTION 3 TERM
3.1 Term. The term of this Easement is thirty (30) years beginning on the 1st day of May.
2005 (the "Commencement Date and ending on the 30th day of April. 2035 (the "Termination
Date unless terminated sooner under the terms of this Easement.
SECTION 4 USE FEE
4.1 Fee. Pursuant to RCW 79.90.470 and RCW 79.90.676, so long as the Permitted Use is
consistent with the purposes of RCW 79.90.450 through RC \V 79.90.460 and does not obstruct
navigation or other public uses of Duwamish 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). The use fee specified pursuant to RCW 79.90.575 shall
be paid upon execution of this easement. Any 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 w ithin 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 (S50), 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
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 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.
Form Date: July 2003 2 of 18 Easement 51- 076499
SECTION 6 MALNTENANCE 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.
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 Duwamish River for purposes of recreation, navigation, or commerce
including rights under the Public Trust Doctrine. Any improvements 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 LL&BILITY/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 70.106D.010 et seq.
Form Date: Jul) 2003 3 of 18 Easement 51- 076499
9.2 Use of Hazardous Substances. Grantee cot enants 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) 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 93 includes, but is not limited to, the following
requirements:
(1) Grantee shall not undertake activities that will cause, contribute to, or
exacerbate contamination of the Easement Property;
(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;
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.
Form Date: July 2003 4 of 18 Easement 51-076499
9.4 Notification and Reporting.
(a) Grantee shall immediately notify State if Grantee becomes aware of any of the
following:
(b)
(a)
(1) 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 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,
9.5 Indemnification.
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;
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.
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.
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 wyay related to:
Form Date: July 2003 5 of 18
Easement 31-076499
(b)
(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;
(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.
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
Form Date: July 2003 6 of 18 Easement 51-076499
Washington State Department of Ecology's Voluntary Cleanup Program, provided that: (I) Any
cleanup plans shall be submitted to State (DNR) for review and comment at least thirty (30) days
prior to 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) 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.
(d) Within thirty (30) calendar days of a written request (unless othenvise 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 o£ State or Grantee. There is no
obligation to provide any analytical summaries or expert opinion work product.
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,
Form Date: July 2003 7 of 18
Easement 51- 076 -499
Farm Date: Jul 2003
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, MICA, 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 sun•ey
corners and/or witness objects.
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. hi 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.
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: Foster Bridge (51- 046343) and an unidentified gray pipe <6"
diameter) "Existing Improvements The improvements are not owned by State.
8 of 18 Easement 51- 076 -199
12.2 Grantee -Owned Improvements. So long as this Easement remains in effect, Grantee
shall retain ownership of 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 emer_ency 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 othenvise 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 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 othenvise 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
Form Date: July 2003 9 of 18
Easement 51- 076499
14.1 Financial Security.
(b)
Form Date: July 2003
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 I DENS ITY
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.
SECTION 14 FINANCIAL SECURITY AND INSURANCE
(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 (SO), 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.
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.
10 of 18 Easement 51- 076499
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 RCN.
(a) Types of Required Insurance.
Form Date: July 2003
(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 S1,000,000
General Aggregate Limit 52,000,000
State may impose changes in the limits of liability:
(3)
(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.
Worker's Compensation/Employer's Liability Insurance. Grantee shall
procure and maintain
11 of 18 Easement 51- 076499
(b)
Form Date: July 2003
(i)
State of Washington Worker's Compensation coverage, as
applicable, with respect to any w ork 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
51,000,000 S1,000,000 51,000,000
(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 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 Each Accident
Bodily Injury and Property Damage 51,000,000
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;
12 of 18 Easement 51- 076499
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 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 Self Insurance. Grantee warrants that it has the capacity to self insure for the risks and
coverages specified in Section 14. Grantee's obligations under Section 14 may be met by
providing evidence of self insurance that is acceptable to State. Any acceptance 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 the 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 its 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
subjected to the requirements of Section 14. Grantee shall be in compliance with the
requirements of Section 14 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. All sublease agreements must comply with the
provisions of Section 14.
14.4 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.
Form Date: Jul} 2003 13 of 18
Easement 51- 076499
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.
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 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.
State:
Grantee:
SECTION 15 TAXES AND ASSESSMENTS
SECTION 16 ADVANCE BY STATE
CITY OF TUKW LA
6300 Southcenter Blvd.
Tukwila. WA 98188
SECTION 17 NOTICE
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:
DEPARTMENT OF NATURAL RESOURCES
Shoreline District Aquatics Region
950 Farman Avenue North
Enumclaw. \VA 98022 -9282
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.
Form Date: July 2003 14 of 18
Easement 51- 076499
Form Date: July 2003
SECTION 20 TIME IS OF TIIE ESSENCE
TD 1E 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 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 deliver} 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 an) 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 L1'VALIDITV
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.
15 of 18 Easement 51- 076499
THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last
signature below.
Dated: _Alai 12 2
Dated:
Form Date: July 2003
Standard Easement Use Authorization
Approved as to Form in July 2003
by Mile Grossmann
Assistant Attorney General
State of Washington
Grantee: CITY OF TUKWILA
20 By:
Title: Mayor
STATE OF W
DEPARTb
Title:
�e4. 11 t \•`le.C�
STEVEN MULLET
Address: 6300 Southcenter Blvd
Tukwila, WA 98188
SHJNGTOJ'
TOF1T►
DOUG S THERLAND
RESOURCES
Commissioner of Public Lands
Address: 950 Farman Avenue North
Enumclaw, WA 98022 -9282
16 of 18 Easement 51- 076499
STAIEOF VVO
ss.
REPRESENTATIVE ACKNOWLEDGMENT
I certify that I know or have satisfactory evidence that STEVEN MULLET 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. t
Dated: 6I /2 OS RQl At 7/
Form Date: Jul- 2003
(Seal or stamp)
17 of 18
(Signature)
frt f 1,30kez
(Print Name)
Notary Public in and for the State of
W hineton, residing at
My appointment expires 65'09 67
Easement 51- 076499
STATE OF WASHINGTON
ss
Countv of i LU -tech_
STA 1 E ACKNOWLEDGMENT
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.
Dated: 5 3 /t
Form Date: July 2003
18 of 18
p`7 Lt d tib u
(Signature)
BON rt.) P
(Print Name)
Notary Public in and for the State of
\Was I mon, residing at
v1v appointment expires 5 I l L
Easement 51 -076 -199
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EXHIBIT B
PLAN OF OPERATION AND MAINTENANCE
Sewer Forcemain at Foster Bridge
City of Tukwila
Easement No. 51- 076499
Site Description and Present Use
The site is located on state owned aquatic land at the 56 Ave South Bridge (Foster Bridge)
crossing the Duwamish River, more specifically located in Exhibit A to the easement document.
The property is located within the limits of the City of Tukwila (City).
The Foster Bridge is covered under Easement Agreement No. 51- 046343 beginning on April 29,
1985 when the bridge was rebuilt. The bridge is a two -lane concrete car bridge with a pedestrian
sidewalk on the downstream side. The area is zoned low density residential to the east of the
river and commercial/light industrial between the Duwamish and Interurban Avenue South. Fall
Chinook salmon (Oncorhynchus tshawytscha) and bull trout (Salrelinus confluentus) are
currently the species listed under the federal Endangered Species Act that are found in the
Duwanush River.
Future Use and Conditions
A sewer force main will be attached to the Foster Bridge as part of the Foster Point Water. Sewer
and Roadway Improvement Project. It will be attached to the bridge on the downstream side,
beneath the pedestrian walkway and above the existing conduit. It will not decrease the passage
space beneath the bridge. The force main will consist of a 4" steel grooved end force main with
I" of foamglas insulation and an outer aluminum jacket. It will connect a new lift station at
Foster point to an existing sewer line.
1.2 Construction and Access
The temporary construction easement includes an area twenty feet on either side of the centerline
described in Exhibit A.
6.1 Grantee's Activities
The City of Tukwila is responsible for weekly visual inspections of the sewer force main as part
of the pump station maintenance and monitoring program.
6.2 Restrictions on Use
The City of Tukwila must provide the State with a copy of the City of Tukwila's most current
plan of operations and emergency response plan relating to the sewer force main. The pump
stations should also have a copy of the plan.
The City of Tukwila crews check the lift station two times a week to ensure the station is
operating properly. The lift station is monitored 24 hours a day by a radio telemetry system that
checks pump functions, wet well levels, and back -up generator functions. During the installation
of the force main, the piping will be pressure tested at 150 psi to ensure against leaks.
Exhibit B Page 1 of 2 51-076499
The wet well can be pumped out by a vactor truck should the force main be in need of repairs.
If a citizen needs to report a leak they may call the City of Tukwila Public Works Department.
The procedures for these emergencies are outlined in the "City of Tukwila Public Works
Operations Emergency Callous Standby Procedures The City of Tukwila is also a member
of the Interagency Water Quality Trouble Call System. The procedures are outlined in the
"Interagency Water Quality Trouble Call response _Llanual for the Seattle -King County Area
12.3 Construction
Construction will be completed from the bridge deck. No in -water work will be conducted. The
contractor will use a vehicle- mounted crane with a work scaffold attached to it to install the
pipeline onto the bridge. The crane truck will rest on the bridge deck and the scaffold will be
lowered over the side of the bridge. The large platform will prevent and contain concrete chips,
drill dust, miscellaneous dirt, debris, and tools from falling, into the Duwamish River. The
contractor shall provide the City a spill containment plan prior to work starting on the bridge.
The plan must show how debris will be prevented from entering the river. The City shall provide
a copy of the plan to the State.
A containment boom will be placed across the river immediately downstream of the bridge in the
event of a spill. The contractor will provide an individual trained in hazardous material spill
response at the site.
The pipe must be tested during the construction for 60 minutes at 150 psi.
17 Notice
Grantee shall designate a contact person for the Department of Natural Resources and has the
responsibility of notifying the Department of the status of the easement. The current contact
person from the City of Tukwila is:
Michael Cusick
Utilities Engineer
Public Works Department
6300 Southcenter Blvd., Suite 100
Tukwila, WA 98188-2544
206 431 -2441
mcusick€ci.tuhvila.wa.us
Current contact from the Department of Natural Resources is:
Melissa Montgomery
Shoreline District, Aquatics Region
950 Farman Avenue North
Enumclaw, WA 98022
(360) 825-1631
Melissa Montg,omery �c.wadnr.
Exhibit B Page 2 of 2 51-076499