HomeMy WebLinkAboutR-2008-055 DNR Easement - Wastewater; Washington State Department of Natural ResourcesRESOLUTION NO. R-2008-55
A RESOLUTION authorizing the City Manager to sign Aquatic Lands Outfall Easement No.
51-079464 with the Washington State Department of Natural Resources.
WHEREAS, the Wastewater Treatment Plant Outfall into the Yakima River is located on
state lands ; and
WHEREAS, RCW 79.105 and RCW 110 require easements over state owned aquatic
lands; and
WHEREAS, the Wastewater Division prepared all the required documentation, legal
descriptions of the property and applied for the easement as required; and
WHEREAS, the Wastewater Division and the City Attorney's Office reviewed and
negotiated an Agreement that was consistent with the existing Outfall; and
WHEREAS, the term of this easement will be 15 years from the 1St day in December
2006 and fee for the easement will be the administrative costs to the Department of Natural
Resources; and
WHEREAS, with the requirement for the City of Yakima to obtain an easement for it's
Aquatic Outfall at the Wastewater Treatment Plant; therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is authorized and directed to execute the Aquatic Outfall Easement No. 51-
079464, attached hereto and incorporated herein by this reference.
ADOPTED BY THE CITY COUNCIL this 18th day of March, 2008.
ATTEST:
City Clerk
avid Edler, Mayor
•
•
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. ( b
For Meeting of March 18, 2008
ITEM TITLE: A Resolution authorizing the City Manager to sign the Aquatic Lands Outfall
Easement No. 51-079464 with the Washington State Department of Natural Resources.
SUBMITTED BY: Dave Zabell, Assistant City Manager
Doug Mayo, Wastewater Manager
Max Linden, Utility Engineer
Jeff Cutter, Senior City Attorney
CONTACT PERSON/TELEPHONE: Max Linden/575-6077
SUMMARY EXPLANATION:
In the spring of 2006.the City of Yakima was notified by the Department of Natural Resources
(DNR) that the City was required to have an easement, from DNR, for the Wastewater
Treatment Plant (WWTP) outfall into the Yakima River. The easement is required for access
on or over state-owned lands, RCW 79.105 and RCW 79.110. The ground below the high
water line for the Yakima River is owned and governed by the State of Washington and the
DNR administers the easements.
As required the Wastewater Division prepared the legal description of the property along with a
plan of operations for the maintenance of the WWTP Outfall and applied for the easement. City
legal staff reviewed the easement along with Wastewater staff and negotiated the easement
language to reflect the status of the existing Outfall. The final Agreement was received on
January 16, 2008 and meets the negotiated terms the City and DNR agreed to. The term of the
Agreement is for 15 years and fees are administrative only.
Resolution X Ordinance _ Other (Specify) to authorize the City Manager to sign the WWTP
Aquatic Lands Outfall Lease
Contract — Mail to (name and address): Department of Natural Resources
Aquatics Region/Rivers District
PO Box 280
Castle Rock, WA 98611
Funding Source 473
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Staff respectfully requests City Council approve the resolution.
BOARD/COMMISSION RECOMMENDATION:
COUNCIL ACTION:
1), cp. Vg--
S i
Return To:
Yakima City Clerk
129 North Second Street
Yakima, WA 98901
Document Title: Aquatic Lands Outfall Easement No. 51-079464
Grantor: State of Washington, Department of Natural Resources
Grantee: City of Yakima
LEGAL •DESCRIPTION:
THAT PORTION OF THE BED AND SHORE OF THE YAKIMA RIVER, OWNED BY THE STATE OF
WASHINGTON, SITUATE IN THE SOUTHEAST QUARTER OF SECTION 28, TOWNSHIP 13, NORTH,
RANGE 19 EAST, W.M. DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHEAST QUARTER OF SECTION 29,
TOWNSHIP 13 NORTH, RANGE 19 EAST W.NI. THENCE SOUTH 89'17'36" EAST, ALONG THE
NORTH LINE OF SAID SUBDIVISION, 2647.45 FEET TO THE EAST QUARTER CORNER OF SAID
SECTION; THENCE CONTINUING SOUTH 89'17'36" EAST 475.55 FEET; THENCE SOUTH 0'42'24"
WEST, 1911.50 FEET TO THE ORDINARY HIGH WATER MARK OF THE RIGHT BANK OF THE
YAKIMA RIVER AND THE TRUE POINT OF BEGINNING; THENCE SOUTH 41'13'09" EAST 55.69
FEET; THENCE SOUTH 48'46'51" WEST 30.00 FEET; THENCE NORTH 41'13'09" WEST 53.59 FEET
TO SAID ORDINARY HIGH WATER MARK; THENCE NORTH 49'47' EAST, ALONG SAID ORDINARY
HIGH WATER MARK, 21.49 FEET; THENCE NORTH 32'33'42" EAST CONTINUING ALONG SAID
ORDINARY HIGH WATER MARK, 8.87 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL NUMBER: None exists
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS OUTFALL EASEMENT NO. 51-079464
TABLE OF CONTENTS
SECTION PAGE
1. GRANT AND LOCATION OF EASEMENT 1
1.1 Easement Property 1
1.2 Rights of Third Parties 1
1.3 Inspection 1
1.4 Surveys, Maps, and Plan 2
2. USE OF EASEMENT 2
2.1 Permitted Use 2
2.2 Restrictions on Use 2
2.3 Conformance with Laws 2
2.4 Liens and Encumbrances 2
2.5 Amendment upon Change of Permit Status 3
3. TERM 3
3.1 Term Defined 3
3.2 Renewal of the Easement 3
3.3 Development of Disposal Alternatives 3
3.4 Delay in Delivery of Possession 4
3.5 End of Term 4
4. USE FEE 4
4.1 Fee 4
4.2 Payment Place 4
4.3 Late Charges and Interest 5
4.4 No Accord and Satisfaction 5
4.5 No Counterclaim, Setoff, or Abatement of Use Fee 5
5. COORDINATION OF ACTIVITIES 5
6. MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS 5
7. INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY 6
8. ENVIRONMENTAL LIABILITY/RISK ALLOCATION 6
8.1 Definition. 6
8.2 Use of Hazardous Substances. 6
8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate 6
8.4 Notification and Reporting. 7
8.5 Indemnification and Burden of Proof. 8
8.6 Cleanup. 9
8.7 Sampling. 9
8.8 Sediment Investigation 10
8.9 Reservation of Rights 11
9. NATURAL RESOURCE DAMAGES 11
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9.1 Impacts to Natural Resources 11
9.2 Mitigation for Unanticipated or Excessive Natural Resource Damages 11
9.3 Indemnification 12
10. REPORTING 12
11. PRESERVATION OF SURVEY CORNERS , 12
12. TERMINATION OF EASEMENT 13
13. OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND EQUIPMENT 13
13.1 Existing Improvements 13
13.2 Grantee -Owned Improvements 13
13.3 Construction 13
13.4 Removal 14
13.5 Unauthorized Improvements 15
14. INDEMNITY 15
15. INSURANCE 16
15.1 Financial Security 16
15.2 Insurance 16
15.3 State's Acquisition of Insurance 19
16. TAXES AND ASSESSMENTS 19
17. ADVANCE BY STATE 19
18. NOTICE 20
19. ASSIGNMENT 20
20. SUCCESSORS AND ASSIGNS 20
21. TIME IS OF THE ESSENCE 20
22. APPLICABLE LAW AND VENUE 20
23. RECORDATION 20
24. MODIFICATION 21
25. MISCELLANEOUS 21
25.1 Authority 21
25.2 Headings 21
25.3 Entire Agreement 21
25.4 Waiver 21
25.5 Cumulative Remedies 21
25.6 Language 21
25.7 Invalidity 22
Exhibit A: Record of Survey
Exhibit B: Plan of Operations
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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS OUTFALL EASEMENT
AQUATIC LANDS EASEMENT NO. 51-079464
THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources (State), and CITY OF YAKIMA - PUBLICLY OWNED
TREATMENT WORKS, 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 Rights of Third Parties. This Easement is subject to all valid interests of third parties
noted in the records of Yakima 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 or collect 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 reserves the right to grant easements and other land uses on the
Easement Property to others when the easement or other land uses will not unreasonably
interfere with Grantee's Permitted Use.
1.3 Inspection. State makes no representation regarding the condition of the Easement
Property, improvements located on the Easement Property, the suitability of the Easement
Property for Grantee's Permitted Use, compliance with governmental laws and regulations,
availability of utility rights, access to the Easement Property or the existence of hazardous
substances on the Easement Property. Grantee has inspected the Easement Property and accepts
it "AS IS."
Form Date 2006 1
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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.
SECTION 2 USE OF EASEMENT
2.1 Permitted Use. This Easement is granted for the purpose of and is limited to
reconstructing, operating, maintaining, and repairing the existing outfall pipelines and diffuser
shown in Exhibit A ("Permitted Use") and Exhibit B, ("Plan of Operations"). No modification to
the permitted use shall be allowed without State's prior written consent. Any modification to the
improvements approved under this subsection shall only be undertaken after complying with
Sections 6 and 13. The existing outfall pipelines and diffuser are constructed and shall be
operated in accordance with the provisions of the Plan of Operations contained in Exhibit B.
2.2 Restrictions on Use. Grantee shall not cause or permit any damage to natural resources
on or adjoining 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, on, or adjoining the :Easement Property, except as approved
in writing by State or pursuant to discharges made in full compliance with a valid NPDES
permit. Grantee shall neither commit nor allow waste to be committed to, on, or adjoining the
Easement Property. If Grantee fails to comply with all or any of the restrictions on use set out in
this Subsection 2.2, State may terminate this Easement in accordance with Section 12 and, at
State's discretion, 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 in, on, or adjoining the
Easement Property. This section shall not in any way limit Grantee's liability under Section 8,
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
adjoining 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 adjoining the
Property when the violation can be proven to have arisen from Grantee's activities related to
Grantee's occupation of the Property.
2.3 Conformance with Laws. Grantee shall, at all times, keep current and comply with all
conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and
other government rules and regulations regarding its use or occupancy of the Easement Property.
This includes, but is not limited to all state and federal laws, regulations, orders or permits
governing the construction, operation, repair and maintenance of the outfall pipeline shown in
Exhibit A.
2.4 Liens and Encumbrances. Grantee shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use or occupancy of the Easement
Property.
Form Date 2006 2
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2.5 Amendment upon Change of Permit Status. This Easement is granted in reliance upon
Grantee's agreement to operate an outfall in substantially the same manner as described in the
regulatory permits it has obtained as of the date this Easement was executed, and in full
compliance with those permits. State reserves the right to amend the terms and conditions of this
Easement in those cases where any regulatory permit (including, but not limited to, any National
Pollutant Discharge Elimination Systems (NPDES) Permit, Hydraulic Project Approval, U.S.
Army Corps of Engineers Section 404 Permit, or Shoreline Substantial Development Permit) is
modified in any manner that affects the performance of any obligation or covenant under this
Easement. This right to amend the Easement shall expressly include those circumstances where
the permit is modified to allow for a change in the manner in which the outfall is operated, or a
change in the type, quality, or quantity of effluent being discharged. State similarly reserves the
right to amend this Easement where Grantee fails to operate in conformance with its permits and
where such failure could with reasonable certainty affect the lands and natural resources
associated with the Easement area and adjoining state owned lands or natural resources. This
right to amend the Easement shall operate independent of any right to terminate the Easement
pursuant to Section 12 or any other provision of this Easement. In the event that Grantee
disagrees with any amendments that are required by State under this Subsection, Grantee's sole
option shall be to request that the Easement be terminated upon sixty days written notice. In the
event that the Easement is terminated under these circumstances, Grantee shall be allowed a pro
rata reduction in any fees paid under Subsection 4.1 for the remaining unused Term, with the
exception that no refund of any fees shall be provided if the outfall is allowed to remain in place
pursuant to the provisions of Subsection 13.4.
SECTION 3 TERM
3.1 Term Defined. The term of this Easement is fifteen (15) years (the "Term"), beginning
on the 1st day of December, 2006 (the "Commencement Date"), and ending on the 30th day of
November, 2021, (the "Termination Date"), unless renewed pursuant to Subsection 3.2 or
terminated sooner under the terms of this Easement.
3.2 Renewal of the Easement. No interim renewals are contemplated. Grantee may apply
for a new easement prior to, or upon expiration of this easement. Any renewal application will be
evaluated using the statutes, guidelines and policies utilized by State at the time the application is
being reviewed in conjunction with the provisions of Subsection 3.3.
3.3 Development of Disposal Alternatives. Grantee acknowledges that it is State's goal to
reduce the reliance on the receiving waters of Washington State for the disposal of waste
effluent, storm water and other discharges, and to promote water re -use. Any renewal of this
easement shall be dependent upon Grantee's satisfactory progress towards the implementation of
reasonably practical disposal alternatives that abate the effect of the pollution constituents on
State-owned aquatic lands and their associated biological communities. To assure that such
progress is made during the Term of this Easement Grantee shall, at the time of application to
renew the NPDES Permit for the Permitted Use, provide State with copies of any written reports
or other documentation submitted to any state, federal, or local governmental authority
identifying: (1) activities Grantee has undertaken to reduce discharges as well as efforts to
decrease chemical, biological and physical impacts to aquatic lands and their associated
Form Date 2006 3
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biological communities since the Grantee's previous application to renew the NPDES permit; or
(2) Grantee's current and future plans, including funding, for reducing discharges and decreasing
chemical, biological and physical impacts to aquatic lands and their associated biological
communities. In any request for renewal, if Grantee has not provided evidence satisfactory to
State that it is making progress towards disposal alternatives that abate pollution impacts, the
State may require Grantee to undertake a thorough investigation and analysis of reasonably
practical disposal alternatives to the Permitted Use. If such review is required, it shall be
completed prior to any renewal of this Easement. Grantee acknowledges that the processing of
any renewal application is contingent upon compliance with this Subsection 3.3, and that State is
under no obligation to issue a new Easement. Grantee further acknowledges that a failure to
anticipate and conduct the disposal alternatives investigation and analysis may delay or prevent
renewal of this Easement
3.4 Delay in Delivery of Possession. If State, for any reason whatsoever, cannot deliver
possession of the Easement Property to Grantee on the Commencement Date, this Easement shall
not be void or voidable, nor shall State be liable to Grantee for any loss or damage resulting from
the delay in delivery of possession. In such event, the date of delivery of possession shall be the
Commencement Date for all purposes, including the payment of any Use Fee. In the event
Grantee takes possession before the Commencement Date, the date of possession shall be the
Commencement Date for all purposes, including the payment of any Use Fee. If the Easement
Term commences earlier or later than the scheduled Commencement Date, the Termination Date
shall be adjusted accordingly.
3.5 End of Term. Upon the expiration or termination of this Easement Grantee shall
surrender the Easement Property to State in the same or better condition as on the
Commencement Date.
SECTION 4 USE FEE
4.1 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 Yakima 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
79.110.240 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
adjoining 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 Payment Place. Payment for any annual Use Fee or other sum payable to State under the
terms of this agreement is to be made to State at the following address:
Form Date 2006
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DEPARTMENT OF NATURAL RESOURCES
Financial Management Division
1111 Washington St SE
PO Box 47041
Olympia, WA 98504-7041
4.3 Late Charges and Interest. If any Use Fee or sum payable to State under the terms of
this Easement 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.
4.4 No Accord and Satisfaction. If Grantee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply suchpayment as it elects. In the absence of
an election, the payment or receipt shall be applied first to accrued taxes which State has
advanced or may be obligated to pay, then to other amounts advanced by State, then to late
charges and accrued interest, and then to the earliest Use Fee due. State may accept any payment
in any amount without prejudice to State's right to recover the balance of the Use Fee or pursue
any other right or remedy. No endorsement or statement on any check, any payment, or any letter
accompanying any check or payment shall constitute or be construed as an accord and
satisfaction.
4.5 No Counterclaim, Setoff, or Abatement of Use Fee. Except as expressly set forth
elsewhere in this Easement, the Use Fee and all other sums payable by Grantee pursuant to this
Easement shall be paid without the requirement that State provide prior notice or demand, and
shall not be subject to any counterclaim, setoff, deduction, defense or abatement.
SECTION 5 COORDINATION OF ACTIVITIES
Grantee shall coordinate the dates of any planned construction and other major activities on the
Easement Property with State. Except in the case of an emergency, Grantee shall provide State
with written notice of its intent to enter upon the Easement Property at least five (5) days prior to
entry.
SECTION 6 MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS
During the term of this Easement, Grantee shall maintain the outfall pipeline, and any other
Improvements on the Easement Property, in good condition and working order. Subject to the
limitations in Section 1.3, Grantee shall promptly repair, at its sole cost, all damages to any
improvements on the Easement Property, or to any natural resources on or adjoining the
Easement Property, which are caused by Grantee's activities. All work performed by Grantee
shall be completed in a careful and workmanlike 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
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commencement of the work. Pursuant to Section 13 of this Easement State's prior written
consent and approval shall be required prior to undertaking any significant work within the
Easement Property, but shall not be required for any routine maintenance or repair of
improvements made by the Grantee pursuant to its obligation to maintain the Easement Property
in good order and repair. Exhibit B describes the routine maintenance that does not require
State's prior consent. In the event of an Emergency, Grantee may take reasonable steps to abate
the emergent event, but shall promptly notify State in writing of the actions it has taken and that
it proposes to take thereafter. Once the immediate emergency is under control, any further work
shall require State's prior written consent in accordance with the provisions of this Easement.
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 Yakima River and its associated waters 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. Grantee shall also mark or record the location of the Permitted Use and any
related improvements in such locations and with such publications as are necessary to give
reasonable notice to the public of the existence of any hazards associated with the improvements,
and the location and limitations, if any, of the improvements. The signs and notices shall identify
the type of installation (e.g., an outfall pipe) and shall identify Grantee as the person responsible
for the Permitted Use and its maintenance.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definition. "Hazardous Substance" means any substance which now or in the future
becomes defined or regulated 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 70.1050.010 et seq.
8.2 Use of Hazardous Substances. Grantee covenants and agrees that Hazardous Substances
will not be used, stored, generated, processed, transported, handled, released, or disposed of on,
in, under, or above the Easement Property, except in accordance and compliance with all
applicable laws, permits or licenses.
8.3 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, other than
responsibilities required under existing law, to conduct investigations, to review
any State records, documents or files, or to obtain or supply any information to
Grantee.
Form Date 2006 6
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(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 8.3 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;
(3)
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
(5)
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 State owned lands adjoining the
Easement Property, that allows Grantee to effectively meet its obligations under
this easement. The standard of care required of Grantee by this Subsection 8.3
shall be that required of a person with actual knowledge of the presence of
Hazardous Substances, whether or not Grantee had such actual knowledge.
8.4 Notification and Reporting.
(a) Grantee shall immediately notify State if Grantee becomes aware of any of the
following:
Form Date 2006 7
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Yakima Co, WA
(1) A release or threatened release of Hazardous Substances in, on, under, or
above the Easement Property, adjoining property, or any other property
subject to use by Grantee in conjunction with its use of the Easement
Property where such a release would affect 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
adjoining property, or any other property subject to use by Grantee in
conjunction with its use of the Easement Property where such problem or
liability would affect the Easement Property;
(3)
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 adjoining property, or
any other property subject to use by Grantee in conjunction with its use of
the Easement Property where such violation would affect 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.
8.5 Indemnification and Burden of Proof.
Notwithstanding any NPDES permit or other permit or license that authorizes the discharge or
release of Hazardous Substances or other deleterious substances, 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 sub grantees, contractors, agents,
employees, guests, invitees, or affiliates in, on, under, or above the Easement
Property or adjoining property during the term of this Easement or during any
time when Grantee occupies or occupied the Easement Property or any adjoining
property;
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(2) The release or threatened release of any Hazardous Substance in, on, under, or
above the Easement Property or adjoining property, which release or threatened
release occurs or occurred during the term of this Easement or during any time
when Grantee occupies or occupied the Easement Property or adjoining property
and as a result of any act or omission of Grantee, its sub grantees, contractors,
agents, employees, guests, invitees, or affiliates
(3)
A breach of the obligations of Subsection 8.3, above, by Grantee, its sub grantees,
contractors, agents, employees, guests, invitees, or affiliates.
(4) Grantee will have use of and access to the Easement Property. Accordingly, if
State seeks to impose liability under Subsection 8.5(a) State shall have the initial
burden of proving by a preponderance of the evidence the existence, release, or
threatened release of Hazardous Substances in, on, under, or above the Easement
Property or adjoining property. Grantee shall then have the burden of proving by a
preponderance of the evidence that none of the indemnification provisions apply.
8.6 Cleanup. If a release of Hazardous Substances occurs on, in, under, or above the
Easement Property or adjoining State-owned property arising out of any action or inaction
described or referred to in Subsection 8.5 above, Grantee shall, at its sole expense, promptly take
all actions necessary or advisable to clean up the Hazardous Substances. These 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 shall also be solely
responsible for all cleanup, administrative, and enforcement costs of governmental agencies,
including natural resource damage claims for cleanups required on, in, under or above the
Easement property or adjoining State owned property arising from any action or inaction
described or referred to in Subsection 8.5, above. Any cleanup shall be performed in a manner
approved in advance in writing by State, except that in emergency situations Grantee may take
reasonable and appropriate actions without advance approval.
8.7 Sampling.
(a) As a condition of State entering into this Easement, Grantee agrees to promptly
conduct the environmental investigations specified in (Section 8) (specifically
Subsections 8.3 and 8.8) of this document. The investigations specified in
(Section 8) (specifically Subsections 8.3 and 8.8) will be conducted in accordance
with generally accepted scientific methods and principles. State shall be provided
the opportunity to review the sampling and analysis plan.
(b) 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, adjoining property, any other
property subject to use by Grantee in conjunction with its use of the Easement
Property where a release of Hazardous Substances would affect the Easement
Property, or any natural resources. If such Tests, along with any other
information, demonstrates the existence, release, or threatened release of
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Hazardous Substances arising out of any action, inaction, or event for which
Grantee, its sub grantees, contractors, agents, employees, guests, invitees, or
affiliates is responsible and as described or referred to in Subsection 8.5, above,
Grantee shall promptly reimburse State for all costs associated with such Tests.
(c) 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.
(d) 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 request shall be
reimbursed to State within thirty (30) calendar days after a bill with
documentation for such costs is sent to Grantee.
(e) Within thirty (30) calendar days of a written request 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.
8.8 Sediment Investigation.
(a) If State has reason to believe that a release or threatened release of Hazardous
Substances has occurred on the Easement Property during Grantee's occupancy,
State may require Grantee to conduct a Closeout Environmental Assessment
(Closeout Assessment) by providing Grantee with written notice of this
requirement no later than one hundred eighty (180) calendar days prior to the
Termination Date, or within ninety (90) days of any valid notice to terminate the
easement earlier than originally agreed. The purpose of the Closeout Assessment
shall be to determine the existence, scope, or effects of any Hazardous Substances
on the Easement Property and adjoining natural resources. If the initial results of
the Closeout Assessment disclose the existence of Hazardous Substances that may
have migrated to adjoining property, State may require additional Closeout
Assessment work to determine the existence, scope, and effect of any Hazardous
Substances on adjoining property, any other property subject to use by Grantee in
conjunction with its use of the Easement Property where a release would affect
the Easement Property, or on any associated natural resources. The Closeout
Assessment may include Sediment Sampling. Any Sediment Sampling must
include those sample locations and parameters reported in Grantee's Sediment
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(b)
Investigation Report completed at the initiation of this Easement as well as any
additional testing requirements State may require based on changes in scientific,
statutory, or regulatory standards for information concerning the activities of
Grantee, its sub grantees, contractors, agents, employees, guests, invitees, or
affiliates.
Prior to undertaking the Closeout Assessment, Grantee shall submit a proposed
plan in writing for State's approval. The plan shall be provided to State within
sixty (60) days of the State's notice requiring the Closeout Assessment. If State
fails to respond in writing, either approving or disapproving of the proposed plan,
within sixty (60) days of its receipt, the proposed plan shall be deemed approved
Grantee shall be responsible for all costs required to complete planning, sampling,
analyzing, and reporting associated with the Closeout Assessment.
8.9 Reservation of Rights. The parties have agreed to allocate certain environmental risks,
liabilities, and responsibilities by the terms of Section 8. With respect to those environmental
liabilities covered by the indemnification provisions of Subsection 8.5, that subsection shall
exclusively govern the allocation of those liabilities. With respect to any environmental risks,
liabilities, or responsibilities not covered by Subsection 8.5, 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, adjoining property, or any other property subject to use by Grantee in
conjunction with its use of the Easement Property where a release would affect 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 9 NATURAL RESOURCE DAMAGES
9.1 Impacts to Natural Resources. In accordance with Subsection 2.2, Grantee's use or
occupation of the Easement Property must be undertaken in a manner that will not result in any
damage to natural resources on or adjoining the Easement Property. In the event that Grantee's
use or occupation of the Easement Property results in damage to natural resources, Grantee shall
be in default of this Easement agreement and State may exercise its right to terminate the
Easement pursuant to Section 12 of this agreement in addition to any other remedies available to
State under Sections 8 and 9 of this agreement or at law or in equity.
9.2 Mitigation for Unanticipated or Excessive Natural Resource Damages. Grantee
agrees that, to the extent it can be established that any natural resources are lost or damaged as a
result of the Permitted Use, then Grantee shall be required to undertake the following steps:
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(a) Grantee shall be required to prepare and implement a written plan that is
satisfactory to State for eliminating or minimizing any future impacts;
(b) To the extent that it is not possible to avoid impacts, Grantee shall be required to
prepare and implement a plan for the replacement of any lost or damaged natural
resource values that is reasonably satisfactory to the State;
(c) Grantee shall be required to prepare and implement a written plan for monitoring
and reporting on the implementation of all actions required under Subsections 9.2
(a) and (b) that is satisfactory to State.
To the extent that lost natural resource values cannot be replaced, or continue to be damaged,
Grantee shall pay State for the value of the lost or damaged resource values. In the event the
parties to this Agreement cannot agree upon any measure of damages, a three-member panel of
appraisers shall be appointed, consisting of natural resource economists. One member shall be
appointed by and at the cost of State, one member by and at the cost of Grantee, and the third
member by mutual agreement of the first two panel members with the cost to be borne equally
by State and Grantee. The decision of a majority of the members of the panel shall be made
based upon generally accepted valuation principles utilized by natural resource damage trustees
in Comprehensive Environmental Response, compensation, and Liability Act and Model Toxic
Control Act proceedings. The decision shall be binding on the parties to this Agreement.
9.3 Indemnification. Notwithstanding any mitigation plans, any regulatory permits or
licenses authorizing discharges, or any other provision in this Agreement (including subsection
2.1), Grantee shall indemnify, defend, and hold the State harmless from all claims for damages
to, or the loss of, natural resource values that are made against the State as a direct or indirect
result of Grantee's Permitted Use, including all resource claims brought by Indian tribes, other
federal, state, or local agencies, or members of the public. No damages or fees paid by Grantee to
State under any other provision of this Agreement shall be allowed as a setoff against Grantee's
obligations under this Subsection 9.5 to indemnify, defend, and hold the State harmless against
the claims of third parties.
SECTION 10 REPORTING
Grantee shall, at State's request, provide State with copies of all reports, studies, or audits which
pertain to environmental problems that have a reasonable possibility of affecting the Easement
Property, and which are or were prepared by or for Grantee and submitted to any federal, state,
or local authorities as required by any federal, state, or local permit, license, or law. These
permits include, but are not limited to, any National Pollution Discharge and Elimination System
Permit, any Army Corps of Engineers permit, any State Hydraulics Permit, any State Water
Quality Certification, or Substantial Development Permit.
SECTION 11 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,
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Grantee shall reestablish them by a registered professional engineer or licensed land surveyor in
accordance with U.S. 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
obj ects.
SECTION 12 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. 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 13 OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND
EQUIPMENT
13.1 Existing Improvements. On the Commencement Date, the following improvements are
located on the Easement Property: Twin barrel river outfall. These improvements are not owned
by State.
13.2 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 in accordance with Subsection 2.1 (collectively Grantee -
Owned Improvements as more fully described in Exhibits A and B). Grantee -Owned
Improvements shall not include any construction, reconstruction, alteration or addition to any
Unauthorized Improvements as defined in Subsection 13.5 below. No Grantee -Owned
Improvements shall be placed on the Easement Property without State's prior written consent.
13.3 Construction. 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. A "major repair' or an
"alteration" shall be defined as any work performed within the Easement Property that
substantially changes the configuration or location of any Improvement or that may result in
substantial adverse impacts to the environment. Construction shall not commence until State has
approved those plans and specifications and Grantee has obtained a performance and payment
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bond in an amount equal to 125% of the estimated cost of construction. The performance and
payment bond shall be maintained until the costs of construction, including all laborers and
material persons, have been paid in full. 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. Upon completion of construction,
Grantee shall promptly provide State with as -built plans and specifications. Routine maintenance
and emergency maintenance activities shall be undertaken in accordance with the provisions of
Section 6.
13.4 Removal. Upon the termination of this Easement without any renewal, Grantee shall
remove or retire any improvements located upon the Easement Property in accordance with the
provisions of this Subsection and shall restore the Easement Property to a condition substantially
similar to its state prior to the construction and operation of the outfall.
(a) Notification. Prior to, or within one hundred eighty (180) days after, the
Termination Date, State shall notify Grantee in writing whether it intends to
require the removal of the improvements or whether the improvements shall be
abandoned in place. In the event State fails to provide any notice of its intent,
Grantee shall remove the improvements in accordance with the provisions of this
Subsection.
(b) Removal. In those cases where the improvements shall be removed, Grantee
agrees to provide a written plan, to be approved in writing by State, for the
removal of the improvements and for the restoration of the Easement Property.
The plan shall identify a timeline for removal and restoration, shall identify any
impacts to the Easement Property, adjoining natural resources, or adjoining lands
and resources, and shall identify any measures needed to restore the Easement
Property. In those cases where State determines that the proposed removal would
disrupt existing state lands or natural resources and would be detrimental to the
long term use and management of the state's lands and resources, State may notify
Grantee that the improvements must be abandoned in place in accordance with the
provisions of this Subsection.
(c) Abandonment. In those cases where the improvements shall be abandoned in
place, Grantee agrees to provide a writtenplan, to be approved in writing by
State, for abandonment and restoration. The plan shall identify a timeline for
abandonment and restoration, shall identify the location of the improvements,
shall propose a suitable means for plugging any abandoned pipelines, shall
identify the means for notifying the public of the existence of any abandoned
improvements, and shall identify any measures needed to restore the Easement
Property. In those cases where State determines that the proposed abandonment
would be detrimental to the long-term use and management of the state's lands
and resources, State may notify Grantee that the improvements must be removed
in accordance with the provisions of this Subsection.
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(d) Plans for Removal or Abandonment. Grantee shall provide the plan for removal
or abandonment within ninety (90) days after the actual or deemed notification of
state's removal or abandonment requirement is provided. State shall then have
ninety (90) days in which to approve or reject the plan. State's failure to respond
within the time allowed shall be deemed an approval of the plan.
(e) Costs to Remove or Abandon and to Restore. Grantee agrees to undertake the
removal and disposal of the improvements, or the abandonment of the
improvements, and the restoration of the :Easement Property, at its sole cost and
expense. Grantee agrees to perform any removal and restoration activities in a
prompt and expeditious manner upon approval of any plans. If Grantee fails to
timely meet its obligations under this Subsection State may perform Grantee's
obligations and seek reimbursement
(f)
Ownership of Abandoned Improvements. Any improvements that are allowed to
be abandoned in place shall become the property of State without any payment by
State. To the extent that Grantee -Owned Improvements include items of personal
property, which may be removed from the Easement Property without harming
the Property, or diminishing the value of the 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.
13.5 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 in Exhibit A (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 a Use Fee 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 14 INDEMNITY
Grantee shall indemnify, defend, and hold harmless State, its employees, officers, and agents
from any and all liability, damages (including bodily injury, personal injury and 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. This section shall not in any way limit
Grantee's liability under Section 8 or Section 9, above.
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SECTION 15 INSURANCE
15.1 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 ($0.00), which shall secure Grantee's full performance of its
obligations under this Easement, with the exception of the obligations under
Section 8 (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.
15.2 Insurance. At its own expense, Grantee shall procure and maintain during the Term of
this Easement, the insurance coverage's and limits described in Subsections 15.2 (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.
(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 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 $5,000,000
General Aggregate Limit $10,000,000
State may impose changes in the limits of liability:
(i) As a condition of approval of assignment of this Easement;
(ii) Upon any breach of Section 8, above;
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(iii) Upon a material change in the condition of the 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 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) Long shore 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
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.
(5)
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 $1,000,000
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(6) Contractor's Pollution Liability. Grantee shall require all contractors'
performing work on the Easement Property to procure and maintain
Contractor's Pollution Legal Liability, including investigation and defense
costs, for bodily injury and property damage, including loss of use of
damaged property or of property that has been physically damaged or
destroyed. Such coverage must provide for both on-site and off-site clean
up costs, cover gradual and sudden pollution and includes in its scope of
coverage natural resource damage claims. Coverage shall be maintained in
an amount of at least:
1. $1,000,000 each occurrence for contractor's operations on the
Easement Property; and
2. If the policy contains a general aggregate limit or policy limit, it
shall be at least $5,000,000.
Such insurance may be provided on an occurrence or claims -made basis. If
such coverage is obtained as an endorsement to the CGL and is provided
on a claims -made basis, the following additional conditions must be met:
(i) The Insurance Certificate must state that the insurer is covering
hazardous substance removal.
(ii) The policy must contain no retroactive date, or the retroactive date
must precede abatement services.
(iii) Coverage must be continuously maintained with the same
insurance carrier through the official completion of any work on
the Easement Property.
(iv) The extended reporting period (tail) must be purchased to cover a
minimum of thirty six (36) months beyond completion of work.
(b) Terms of Insurance. The policies required under Subsection 15.2 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 Long shore and Harbor Worker's Act coverage's). Furthermore, all
policies of insurance described in Subsection 15.2 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;
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(3)
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) With the exception of Contractor's Pollution Liability (governed by the
provisions of Subsection 15.2(a)(6)), all liability policies must provide
coverage on an occurrence basis; and,
(5) 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 checklist of
coverage's provided by State, executed by a duly authorized representative of
each insurer showing compliance with the insurance requirements described in
Section 15, 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.
15.3 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 4.3 from the date of State's notice of the expenditure
until Grantee's repayment.
SECTION 16 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 17 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 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.
Form Date 2006 19
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Yakima Co, WA
SECTION 18 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:
To State:
DEPARTMENT OF NATURAL RESOURCES
Aquatic Region/Rivers District
PO Box 280
Castle Rock, WA 98611
To Grantee: CITY OF YAKIMA — Yakima Regional Wastewater Treatment Plant
129 2nd Street
Yakima, WA 98901
A notice shall be deemed given and delivered upon personal delivery, upon receipt of a
continuation report if delivered by facsimile machine, or three (3) days after being mailed as set
forth above, whichever is applicable.
SECTION 19 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 20 SUCCESSORS AND ASSIGNS
This Easement shall be binding upon and inure to the benefit of the parties, their successors and
assigns.
SECTION 21 TIME IS OF THE ESSENCE
TIME IS OF THE ESSENCE as to each and every provision of this Easement.
SECTION 22 APPLICABLE LAW
This Easement shall be interpreted and construed in accordance with the laws of the State of
Washington.
SECTION 23 RECORDATION
Grantee shall record this Easement in the county in which the Easement Property is located, at
Grantee's sole expense. Grantee shall provide State with recording information, including the
date of recordation and file number. Grantee shall have thirty (30) days from the Commencement
Date to comply with the requirements of this subsection. If Grantee fails to record this Easement,
State may record it and Grantee shall pay the costs of recording upon State's demand.
Form Date 2006 20
1111111111113111011111111111111 7606303
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SECTION 24 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 25 MISCELLANEOUS
25.1 Authority. Grantee and the person or persons executing this Easement on behalf of
Grantee represent that Grantee is qualified to do business in the State of Washington, that
Grantee has full right and authority to enter into this Easement, and that each and every person
signing on behalf of Grantee is authorized to do so. Upon State's request, Grantee will provide
evidence satisfactory to State confirming these representations. This Easement is entered into by
State pursuant to the authority granted it in Chapters 79.105 to 79.145 RCW and the Constitution
of the State of Washington.
25.2 Headings. The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
25.3 Entire Agreement. This Easement, including the exhibits and addenda, if any, contains
the entire agreement of the parties. All prior and contemporaneous agreements, promises,
representations, and statements relating to this transaction or to the Easement Property if any, are
merged into this Easement.
25.4 Waiver. The waiver by State of any breach or default of any term, covenant, or condition
of this Easement shall not be deemed to be a waiver of such term, covenant, or condition; of any
subsequent breach or default of the same; or of any other term, covenant, or condition of this
Easement.
25.5 Cumulative Remedies. The rights and remedies of State under this Easement are
cumulative and in addition to all other rights and remedies afforded to State by law or equity or
otherwise.
25.6 Language. The word "Grantee" as used in this Easement shall be applicable to one or
more persons, as the case may be. The singular shall include the plural, and the neuter shall
include the masculine and feminine. If there is more than one Grantee, their obligations shall be
joint and several. The word "persons," whenever used, shall include individuals, firms,
associations, and corporations. The word "adjoining" shall be understood in conformity with
Black's Law Dictionary, 6th Edition, to mean "touching or contiguous, as distinguished from
lying near to or adjacent. To be in contact with; to abut upon", and shall specifically pertain only
to State DNR land.
Form Date 2006
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25.7 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.
THIS EASEMENT requires the signature of all parties and is executed as of the date of the last
signature below.
Dated: ar 2008
Dated: /�a,o/% 3/
YAKIMA REGIONAL WWTP
By: RICHAR A. ZAIS, JR.
Title: City Manager
Address: 129 N 2nd Street
Yakima, WA 98901
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
�tle:
4dress:
tx
•
Approved as to Form in July 20 :
•
Assistant Attorney General State o
Form Date 2006
22
SCOTT T. ROBINSON
Assistant Region Manager
PO Box 280
Castle Rock, W A 98611
•_ _ ____a T T. Cl 11711444
7606303
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REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
County of )
I certify that I know or have satisfactory evidence that RICHARD A. ZAIS, JR. is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the City Manager
for the City of Yakima to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated: a°sJ 2.OQef
(Seal or stamp)
Form Date 2006 23
(Signature)
.1-//)4- A • 41.4"1 ,tJ 5
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires 0-45"-K)
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CLERK EAS $78,80 Yakima Co, WR
STATE ACKNOWLEDGEMENT
STATE OF WASHINGTON )
) ss
County of Lewis )
I certify that I know or have satisfactory evidence that SCOTT T. ROBINSON 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 Assistant Region
Manager of the Department of Natural Resources, to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
Dated: v \ p' O l i
(Seal or stamp)
Form Date 2006
(Signature)
_1Mur)6u Band
(Print Name)
Notary Public in and for the State of
WasAingtol, iding at
s
My appointment expires 1 2_ 27 1 0
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EAS $70,00 Yakima Co, WA
City of Yakima
Agreement 51-079464
Exhibit B- Plan of Operations and Maintenance for the
Yakima Regional Wastewater Treatment Plant Outfall
Site Description and Present Use
The purpose of this easement is for the continued use and maintenance of two existing
parallel 30 -inch steel out fall pipes and diffuser within easement area described in exhibit
A from the Yakima Regional Wastewater Treatment Plant (WWTP). The existing out
fall pipes are located on portions of beds of navigable water of the Yakima River, owned
by the State of Washington, in Yakima County, located within the South West 1/4 of
section 28, Township 13 North, Range 19 East, W.M.
The Yakima Regional WWTP is owned and operated by the City of Yakima, which treats
wastewater from several outlying areas including the City of Union Gap and the Terrace
Heights Sewer District. The plant treats wastewater from industrial, commercial and
residential dischargers to the system.
The WWTP uses a trickling -filter activated -sludge process consisting of bar screens,
screenings compactor, grit removal; parshall flume; primary clarification; trickling filters;
trickling filter clarification; diffused aeration activated sludge; secondary clarification;
anaerobic digestion; centrifugal biosolids dewatering; centrate lagoons; chlorination
disinfection; dechlorination; an outfall and process control buildings.
Future Use and conditions
The existing WWTP outfall was upgraded in 1991 from a discharge along the bank to its
current configuration along the bed of the Yakima River. The WWTP is undergoing
several improvements at this time, but the outfall will not be impacted by any of these
improvements. The capacity of the outfall system exceeds the estimated peak flows for
2024 even when the Yakima River is at the 100 -year flood level so there are no
anticipated changes to this outfall at this time.
Description of outfall and maintenance
Treated and disinfected wastewater flows approximately 1,200 feet from the WWTP, in a
78 -inch concrete reinforced pipe, to an outfall structure on the bank of Yakima River.
The outfall structure contains two chambers with a weir wall and manual sluice gate for
isolation. Effluent flows through the gate in the weir into the second chamber then into
two 30 -inch discharge pipes for approximately 20ft. The two 30 inch pipes reduce to 24 -
inch each and are then encased in concrete and buried in the bed of the Yakima River for
approximately 40 feet. At the assimilation point in the Yakima River the pipes are
tapered and flow is directed downstream at a vertical angle of 15 percent and a 45 degree
horizontal angle to the river flow direction (3ee attached drawing). In case of
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emergencies flow can also be bypassed through a sluice gate in the outfall structure onto
the bank of the Yakima River above the high water level. A daily visual inspection of the
outfall is performed to confirm that effluent is being discharged through the outfall
structure into the river. See attached section 2.7.3 River Outfall of our Operations and
maintenance manual for further descriptions of routine maintenance and emergency
operations.
National Pollution Discharge Elimination System (NPDES) Permit
The current wastewater discharge permit, Permit No.:WA-002402-3, was issued on June
2, 2006 with effluent limitations on the discharge on the following parameters: 5 -day
Biochemical Oxygen Demand (BODS), Total Suspended Solids (TSS), pH, Fecal
Coliform Bacteria, Chronic WET Limit and Total Residual Chlorine.
An outfall evaluation is required every permit cycle with the next one due on January 31,
2010. The last evaluation was performed on November 25, 2003 confirming that the
outfall is intact and functional (See attached inspection report).
Wastewater Treatment Plant Facilities Plan
The 2004 Facilities plan has identified several priority improvements (See attached Table
12-5 of the plan) to the WWTP over the next 20 years. The Yakima WWTP is
categorized by the Department of ecology as a Class IV facility, based on its design flow
of more than 10 million gallons per day (MGD) and its primary treatment type, in
accordance with WAC 173-230-140. A copy of the WWTP Facility plan and Operations
and Maintenance Manual are available upon request.
Reporting
The Lessee shall provide the Department of Natural Resources (DNR) an outfall
inspection report consistent with the N.P.D.E.S. permit #WA -002402-3 Expiration date
July 30, 2011 section S11, Outfall Evaluation.
Operations Contact
Doug Mayo
Wastewater Division Manager
2220 East Viola
Yakima, WA 98901
(509) 575-6077
dmayo@ci.yakima.wa.us
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CEN SEC 29.
T-13 N. R-19 E,W.11.
2' PIPE 91 11011. CASE
STATE PLANE COORD'S
IC 456489.564
L 1648919.602
SEE LCR 7036414
NOTES
I. BEARINGS SHOWN ARE RELATIVE TO THE NORTH LINE OF THE
SOUTHEAST QUARTER OF SECTION 29 BEND SOUTH 891136'
EAST.
2. G.LO. SUBDIVISION CORNERS SHOWN HEREON AS FOUND WERE
VL9TED IN AUGUST. 2001
1 SURVEY PERFORMED WTH 7110 SECOND EIECTIDI9C TOTAL
STATION AN0 CAUBRATED CHAR 115910 FIELD TRAVERSE
PROCEDURES-
4.
ROCEDURES4. WASHINGTON STATE PLANE COORDINATES ( lUTh 20NE)�CR
SUBDIVISION CORNERS 910161 HEREON ON NAD 63 ANY
AND HERE PROVIDED BY WASHINGTON STA
TRANSPORTATION AS GENERATED FOR SR 24
PRO.ECT.
1 DISTANCES SHOWN ARE GROUND DISTANCES COMBINED SCALE
FACTOR TO CONVERT GROUND DISTANCES TO GRD DISTANCES
IS 0.9996664. FRONDED BY 6.6.0.0.7.
6. THE LOCATION OF THE ORDINARY HIGH WAITER MARK WAS
ESTABIUSNED AT THE WATER UNE ON TINE BASALT RIP -RAP
ALONG DIE RIGHT BANK OF THE YAKIMA RIVER
7. EASEMENT CONTAINS 1,611 SQUARE FEET MORE OR LESS /
/
/
/
/
/
/
/
/
/
/
/
RECONSTRUCTION
/
/
/
/
/
/
/
/
/
S 691136' E 3123.01'
2647,46'
(2647.11 GRID)
47115'
W 1/4 COR SEC 26.
E 1/4 CCR SEC 29,
T-13 N. R-19 E,W.M.
STEEL 117 IN YON. CASE
STATE PLANE COORD'S
N: 456522.211
E 1646272.692
ELEV. 1019.13 OARED RIE
SEE LCR 7359092 FENCE
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GAT FML STRUCTURE
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�T , \s,.
r� EASEMENT FOR
SEINER OUTFALL
RIGHT RANK
ORDINARY INION
WATER MAN(
AS ESTABLISHED
01 I/2S/2004
J$•4\'}t\
/ D.N3. HABIis®iT 581-079444
BASEMENT DBSCYIPTION FOR BSWE1 OUTPALL
INTO TIB YAKIMA RIVER
TNA7 PORTION OF THE BED M40 910RE OF TIE YNONA RIVER,
OWED BY THE STATE OF WASHINGTON, SITUATE M THE
SOUTHWEST QUARTER OF SECTION 26, TOWNSHIP 13 NORTH,
RANGE 19 EAST. NAL. DESCRIBED AS FOLLOWS
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHEAST
QUARTER OF SECTION 29. TOWNSHIP 13 NORTH. RANGE 18
EAST, W.N. 714DICE SOUTH 5 1x36• EAST, ALONG THE NORTH
UNE OF SAID SUBDIVISION. 2647.46 FEET 10 THE EAST
QUARTER GARNER OF SAID SECTION; THENCE CONTMUNO
SOUTH 891138' EAST 47155 FEET; THENCE SOUTH 0'4724•
HEST. 1911.50 FEET TO THE ORDINARY HIGH WATER MARK CO-
ME
F1HE RIGHT BANK CF THE YAKIMA RIVER AND TIE TRUE PONT
OF BEGINNING THENCE SOUTH 411509' EAST 55.69 FEET;
THENCE SOUTH 4546'S1' WEST 30.00 FTIT; THENCE NORTH
4113'09' WEST 53.59 FEET TO SAID ORDINARY HIGH WATER
NARK; THENCE NORTH 49.41 EAST. ALONG SAID ORDINARY
HIGH WATER NARK 21.49 FEET; TI4ENC6 NORTH 3233'42
EAST, CONTINUING ALONG SAID HD ORDINARY HIGH WATER MARK,
8.87 FEET TO TIE TRUE PONT OF BEGINNING.
AO
SCALE : 1'
AUDITOR'SCERTIFICATE
FILED FORRECORD THIS _� DAT OF
2001 . ATI606AU., UNDER AF NO 1 3162
RECORDS OF YAKIMA COUNTY. WASHINGTON.
ca;r4,,,21-4-17 kan4)c/L-
S U R V E Y O R' S
CERTIFICATE
114S MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR
UNDER MY DIRECTION IN CONFORMANCE WITH THE REQUIREMENTS
OF THE SURVEY RECO DING ACT AT THE REOUEST OF •
MAUL GOER IN OCTOBER 2006.
RICHARD L 11E1R. CERTIFICATE N0. 18929.
D.N.R. EASEMENT EXHIBIT
MAMMA REGIONAL WASTEWATER
TREATMENT PLANT OUTFALL
—PREPARED FOR—
BLACK i VEATCH
DATE 1/15/2006
12-2.7-0(P
Recording Requested By and
When Recorded Mail To:
City Clerk
City of Yakima
129 N. Second Street
Yakima, WA 98901
RECORDING COVER SHEET
Aquatic Lands Easement Lease No. 51-079464
1 If the document you are recording is an assignment, amendment, termination, or
re-recording of a document, the Auditor's reference number of the related document is N/A
Grantor.
a Washington State Department of Natural Resources
b Aquatic Region/Rivers District
PO Box 280
Castle Rock, WA 98611
3 Grantee.
a. City of Yakima
b. 129 N. Second Street
Yakima, WA 98901
4 Additional Grantee names on page N/A of document
5 Legal Descriptions
a. Abbreviated legal descnption Section 28, Township 13 North, Range
19 East, W.M.
b Additional legal description is on page N/A of document.
6 DNR Document No : 51-079464
7 Duration of Aquatic Lands Easement No. 51-079464: Fifteen (15) Years
8. Assessor's Property Tax Parcel Account Number(s) None Exists.