HomeMy WebLinkAboutR-2023-129 Resolution authorizing an agreement with Department of Natural Resources for an Aquatic Lands Easement RESOLUTION NO. R-2023-129
A RESOLUTION establishing an Aquatic Lands Easement Agreement with the Washington
Department of Natural Resources for structures associated with the
Naches River Water Treatment Plant Intake.
WHEREAS, the City of Yakima has existing facilities located within the Easement
Property, including engineered log jams, riprap, canal intake gates, canal wall, water intake, fish
screens, by-pass spillway, and intake equipment building; and
WHEREAS, the State of Washington Department of Natural Resources requires an
Aquatic Lands Easement Agreement to be executed for the City's existing facilities and use within
the Easement Property; and
WHEREAS, as a beneficiary of the use of the Easement Property and as required by the
Aquatic Lands Easement, the City is required to pay a one-time administrative fee of $1,870.00
for the 30-year term of the agreement and as calculated in accordance with RCW 79.110.240;
and,
WHEREAS, the City Council finds that it is the best interest of the City of Yakima and its
residents to execute the Aquatic Lands Easement Agreement with the State of Washington
Department of Natural Resources; now, therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Council of the City of Yakima hereby approves the Aquatic Lands Easement
Agreement between the State of Washington Department of Natural Resources and the City of
Yakima for structures associated with the Naches River Water Treatment Plant Intake. The
agreement is attached hereto and fully incorporated herein.
ADOPTED BY THE CITY COUNCIL this 19th day of September, 2023.
Janice De cio, Mayor
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YAKIMA COUNTY, WA
10/25/2023 10:13:02AM
EASEMENT
PAGES: 31
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DEPUTY TREASURER
When recorded,return to:
Robert Harrison,City Manager
129 N 2nd Street
Yakima, WA 98901
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MILAMY S.FRAM
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AQUATIC LANDS EASEMENT
Easement No.51-101709
Grantor: Washington State Department of Natural Resources
Grantee: City of Yakima
Abbreviated Legal Description: Section 13, 14. and 15,Township 14 North, Range 17 East,
W.M.
Complete Legal Description on Page 30
Assessor's Property Tax Parcel or Account Number: Not Applicable
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Easement: Not Applicable
THIS EASEMENT is made by and between the STATE OF WASHINGTON,acting through the
Department of Natural Resources('State"),and CITY OF YAKIMA,a government agency
("Grantee"). State has authority to enter into this Easement under Chapter 43.12 RCW,Chapter
43.30 RCW,and Title 79 of the Revised Code of Washington(RCW).
THEREFORE, the Parties agree as follows.
SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) State grants and conveys to Grantee a nonexclusive in gross casement,subject to
the terms and conditions of this agreement,over,upon,and under those bedlands
and shorelands legally described in Exhibit A("Easement Property"). In this
agreement, the term"Easement"means this agreement and the rights granted,
Aquatic Lands Essement 11/10/2022) Page 1 of 31 Easement No.51-101709
When recorded, return to:
Robert Harrison, City Manager
129 N 2nd Street
Yakima, WA 98901
COMPASS'
ANZ
UC LANDS
AQUATIC LANDS EASEMENT
Easement No. 51-101709
Grantor: Washington State Department of Natural Resources
Grantee: City of Yakima
Abbreviated Legal Description: Section 13, 14, and 15, Township 14 North, Range 17 East,
W.M.
Complete Legal Description on Page 30
Assessor's Property Tax Parcel or Account Number: Not Applicable
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Easement: Not Applicable
THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources ("State"), and CITY OF YAKIMA, a government agency
("Grantee"). State has authority to enter into this Easement under Chapter 43.12 RCW, Chapter
43.30 RCW, and Title 79 of the Revised Code of Washington (RCW).
THEREFORE, the Parties agree as follows:
1.1
SECTION 1 G NT OF EASEMENT
Easement Defined.
(a) State grants and conveys to Grantee a nonexclusive in gross easement, subject to
the terms and conditions of this agreement, over, upon, and under those bedlands
and shorelands legally described in Exhibit A ("Easement Property"). In this
agreement, the term "Easement" means this agreement and the rights granted.
Aquatic Lands Easement (1/10/2022)
Page 1 of 31 Easement No. 51-101709
(b) 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
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Easement does not include any right to harvest, collect or damage any
natural resources, including, but not limited to, aquatic life or living plants; any
water rights; any mineral rights; or any right to excavate or withdraw sand, gravel,
or other valuable materials.
(d) This Easement is not exclusive. State may enter and use the Easement Property
for any purpose or permit others to enter and use the Easement Property for any
purpose so long as such use does not unreasonably interfere with the rights
granted herein.
1.2 Survey and Easement Property Descriptions.
(a) Grantee's obligation to provide a true and accurate description of the Easement
Property and the location of the Improvements existing on the Easement Property
is a material term of this Easement. Grantee warrants that the record of survey
referenced in Exhibit A includes a true and accurate description of the Easement
Property and the location of the Improvements existing on the Easement Property.
(b) Grantee's use of any state-owned aquatic lands outside the Easement Property
boundaries is a material breach of this Easement and State may seek remedies
under Section 14 of this Easement in addition to any other remedies afforded by
law or equity or otherwise.
1.3 Condition of Easement Property. State makes no representation regarding the condition
of the Easement Property, Improvements located on the Easement Property, the suitability of the
Easement Property for Grantee's Permitted Use, compliance with governmental laws and
regulations, availability of utility rights, access to the Easement Property, or the existence of
hazardous substances on the Easement Property.
SECTION 2 USE
2.1 Permitted Use. This Easement is granted for the purpose of and is limited to:
Water intake structure with associated canal wall, bank armoring, and water
intake building (the "Permitted Use").
Exhibit B includes additional details about the Permitted Use, the Easement Property, and the
Improvements. The Permitted Use is subject to the restrictions and additional obligations set
forth in this Easement. The Permitted Use of this Easement shall not be changed or modified
without the written consent of State, which shall be at State's sole discretion.
2.2 Restrictions on Permitted Use and Operations.
(a) Grantee shall not cause or permit:
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Easement No. 51-101709
(1) Damage to land or natural resources on the Easement Property or adjacent
state-owned aquatic lands, regardless of whether the damages are a direct
or indirect result of the Permitted Use;
(2) Waste on the Easement Property or adjacent state-owned aquatic lands; or
(3) Deposit of material or filling activity on the Easement Property or adjacent
state-owned aquatic lands, unless approved by State in writing. This
prohibition includes, but is not limited to, any deposit of fill, rock, earth,
ballast, wood waste, hydrocarbons, refuse, garbage, waste matter
(including, but not limited to, chemical, biological, or toxic wastes),
pollutants, or other matter.
(b) Nothing in this Easement shall be interpreted as an authorization to dredge the
Easement Property.
(c) Grantee shall immediately notify State if Grantee breaches any of the terms and
conditions of this Easement.
(d) State's failure to notify Grantee of Grantee's failure to comply with all or any of
the restrictions set out in this Paragraph 2.2 does not constitute a waiver of any
remedies available to State.
(e) Grantee's compliance with the restrictions in this Paragraph 2.2 does not limit
Grantee's liability under any other provision of this Easement or the law.
2.3 Conformance with Laws. Grantee shall keep current and comply with all conditions and
terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding Grantee's use of the Easement Property.
2.4 Liens and Encumbrances. Unless expressly authorized by State in writing, Grantee
shall keep the Easement Property free and clear of any liens and encumbrances arising out of or
relating to the Permitted Use or Grantee's use of the Easement Property.
2.5 Interference with Other Uses.
(a) Grantee shall exercise Grantee's rights under this Easement in a manner that
minimizes or avoids interference with the rights of State, the public, or others
with valid rights to use or occupy the Easement Property or surrounding lands and
water.
(b) To the fullest extent reasonably possible, Grantee shall place and construct
Improvements in a manner that allows unobstructed movement in and on the
waters above and around the Easement Property.
(c) Except in an emergency, Grantee shall provide State with written notice regarding
the start of construction or other Significant Activity on the Easement Property at
least sixty (60) days in advance ("Notice of Significant Activity"). "Significant
Activity" means any activity that may affect the use or enjoyment of the
Easement Property or adjacent state-owned aquatic lands by the State of
Washington, public, or others with valid rights to use or occupy the Easement
Property or adjacent state-owned aquatic lands.
(d) Grantee shall mark the location of any hazards associated with the Permitted Use
and any hazards associated with the Improvements in a manner that ensures
Aquatic Lands Easement (1/10/2022) Page 3 of 31 Easement No. 51-101709
reasonable notice to the public, including, but not limited to, boaters, kayakers,
swimmers, and divers. Grantee shall mark the location and limits of the
Improvements located on the Easement Property. The signs and notices shall
identify the type of installation (e.g., a pipe or cable), identify Grantee as the
entity responsible for the Permitted Use and its maintenance, and be posted in
location that gives reasonable notice to the public. When required by applicable
law or regulation, Grantee shall facilitate amendment of official navigational
charts to indicate existence and location of submerged Improvements.
SECTION 3 TERM
3.1 Term Defined. The term of this Easement is Thirty (30) years, beginning on the 0lst day
of October, 2023 (the "Commencement Date"), and ending on the 30th day of September, 2053
(the "Termination Date"), unless terminated sooner under the terms of this Easement (the
"Term"). Whenever the phrase "termination of this Easement" or "termination of the Easement"
is used in this Easement, it shall refer to the ending, termination, cancellation, or expiration of
the Easement.
3.2 Renewal of Easement and/or Application for New Easement. This Easement does not
provide a right of renewal. Grantee may apply for a new Easement, which State has discretion to
grant. Grantee must apply for a new Easement at least one (1) year prior to Termination Date.
3.3 End of Term.
(a) Removal of Improvements: Prior to the termination of this Easement, Grantee
shall remove Improvements in accordance with Section 7.
(b) Restoration of the Easement Property:
(1) Prior to the termination of this Easement, Grantee shall restore the
Easement Property to its condition prior to Grantee's Use of the Easement
Property.
(2) Restoration of the Easement Property is to be done at Grantee's expense
and to the satisfaction of State. Restoration of the Easement Property is
considered to be Work, as described in Section 7 of the Easement.
Grantee's plans for restoring the Easement Property shall be submitted to
State for prior approval in accordance with Section 7 of this Easement.
(3) If Grantee fails to restore the condition of the Easement Property as
required by this Paragraph, State may take steps reasonably necessary to
remedy Grantee's failure. Upon demand by State, Grantee shall pay all
costs of State's remedy, lost revenue resulting from the condition of the
Easement Property, and administrative costs associated with State's
remedy.
(c) Vacation of Property: Upon the termination of this Easement, Grantee shall cease
all operations on and use of the Easement Property.
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SECTION 4 FEES
4.1 Fee. For the Term, Grantee shall pay to State an administrative fee calculated in
accordance with RCW 79.110.240 of One Thousand Eight Hundred Seventy Dollars ($1,870.00),
which is due and payable on or before the Commencement Date. Any payment not paid by
State's close of business on the date due is past due.
4.2 Payment Place. Grantee shall make payment to Financial Management Division, 11 1 1
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Grantee shall pay all fees charged for utilities required or needed by the
Permitted Use.
5.2 Taxes and Assessments. Grantee shall pay all taxes, assessments, and other
governmental charges applicable or attributable to the Easement, the Grantee -Owned
Improvements, or the Permitted Use.
5.3 Proof of Payment. If required by State, Grantee shall furnish to State receipts or other
appropriate evidence establishing the payment of amounts this Easement requires Grantee to pay.,
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Failure to Pay. Failure to pay any fees or other expenses due under this Easement is a
breach by Grantee. State may seek remedies in Section 14 as well as late charges and interest as
provided in this Section 6. In addition, if Grantee fails to pay any amounts due to third parties
under this Easement, State may pay the amount due, and recover its cost in accordance with this
Section 6.
6.2 Late Charge. If State does not receive any payment within ten (10) days of the date due,
Grantee shall pay to State'a late charge equal to four percent (4%) of the unpaid amount or Fifty
Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to the
delay.
6.3 Interest Penalty for Past Due Fees and Other Sums Owed.
(a) Grantee shall pay interest on the past due fees at the rate of one percent (1%) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Fees not paid by the close of business on the due date will begin
accruing interest the day after the due date.
(b) If State pays or advances any amounts for or on behalf of Grantee, Grantee shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (1 %) per month from the date State notifies
Aquatic Lands Easement (1/10/2022) Page 5 of 31 Easement No. 51-101709
Grantee of the payment or advance. This includes, but is not limited to State's
payment of taxes, assessments, insurance premiums, costs of removal and
disposal of unauthorized materials, costs of removal and disposal of
Improvements under any provision of this Easement, or other amounts not paid
when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
full payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Grantee
shall pay collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Grantee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. State may accept
payment in any amount without prejudice to State's right to recover the balance or pursue any
other right or remedy. No endorsement or statement on any check, any payment, or any letter
accompanying any check or payment constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS, PERSONAL PROPERTY, AND WORK
7.1 Improvements and Personal Property Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.140, are additions
within, upon, or attached to the Easement Property. Improvements include, but
are not limited to, fill, structures and fixtures.
(b) "Personal Property" means items that can be removed from the Easement
Property without (1) injury to the Easement Property, adjacent state-owned lands
or Improvements or (2) diminishing the value or utility of the Easement Property,
adjacent state-owned lands or Improvements.
(c) "State -Owned Improvements" are Improvements made or owned by the State of
Washington. State -Owned Improvements include any construction, alteration, or
addition to State -Owned Improvements made by Grantee.
(d) "Grantee -Owned Improvements" are (1) Improvements owned by Grantee that
are existing on the Easement Property on the Commencement Date or (2)
Improvements made by Grantee with State's consent.
(e) "Unauthorized Improvements" are Improvements made on the Easement Property
during the Term without State's prior consent or Improvements made by Grantee
that do not conform with plans submitted to and approved by State.
(f) "Improvements Owned by Others" are Improvements made by others with a right
to occupy or use the Easement Property or adjacent state-owned lands.
7.2 Existing Improvements. On the Commencement Date, the following Grantee -Owned
Improvements are located on the Easement Property: Water intake structure with associated
canal wall, by-pass spillway, water intake building, engineered log jams, and riprap.
7.3 Construction, Major Repair, Modification, and Other Work.
Aquatic Lands Easement (1/10/2022) Page 6 of 31
Easement No. 51-101709
(a) This Paragraph 7.3 governs construction, alteration, replacement, major repair,
modification, and removal of Improvements (collectively "Work").
(b) Except in an emergency, Grantee shall not conduct any Work without State's
prior written consent. Grantee shall obtain State's prior written consent as
follows:
(1) Grantee shall submit to State plans and specifications describing the
proposed Work at least sixty (60) days before submitting permit
applications to regulatory authorities, unless Grantee and State otherwise
agree to coordinate permit applications. At a minimum, or if no permits
are necessary, Grantee shall submit plans and specifications to State at
least ninety (90) days before commencement of Work.
(2) State may deny consent if State determines that denial is in the best
interests of the State of Washington or if the proposed Work does not
comply with Paragraph 7.4. State may impose additional conditions
intended to protect and preserve the Easement Property or adjacent state-
owned aquatic lands.
(3) State will not approve plans to construct new Improvements or expand
existing Improvements in or over habitats designated by State as important
habitat, including, but not limited to: native aquatic vegetation,
commercial geoduck tracts, forage fish spawning areas, and salmon
critical habitat. Grantee shall confirm location of important habitat on
Property, if any, with State before submitting plans and specifications in
accordance with Paragraph 7.3.
(c) Grantee shall immediately notify State of emergency Work. Upon State's request,
Grantee shall provide State with as -built plans and specifications of emergency
Work.
(d) Grantee shall not commence Work until Grantee or Grantee's contractor has:
(1) Obtained a performance and payment bond in an amount equal to one
hundred twenty-five percent (125%) of the estimated cost of construction.
Grantee or Grantee's contractor shall maintain the performance and
payment bond until the costs of the Work, including all laborers and
material persons, are paid in full.
(2) Obtained all required permits.
(3) Provided Notice of Significant Activity in accordance with Paragraph
2.5(c).
Grantee shall preserve and protect Improvements Owned by Others, if any.
Grantee shall preserve all legal land subdivision survey markers and witness
objects ("Markers"). If disturbance of a Marker will be a necessary consequence
of Grantee's construction, Grantee shall reference and/or replace the Marker in
accordance with all applicable laws and regulations current at the time, including,
but not limited to Chapter 58.24 RCW. At Grantee's expense, Grantee shall retain
a registered professional engineer or licensed land surveyor to reestablish
destroyed or disturbed Markers in accordance with United States General Land
Office standards.
(e)
(f)
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Page 7 of 31 Easement No. 51-101709
(g) Before completing Work, Grantee shall remove all debris and restore the
Easement Property, as nearly as possible, to its natural condition before the Work
began. If Work is intended for removal of Improvements at End of Term, Grantee
shall restore the Easement Property in accordance with Paragraph 3.3, End of
Term.
(h) Upon completing Work, Grantee shall promptly provide State with as -built plans
and specifications. State may also require Grantee to obtain an updated record of
survey showing the Easement Property boundaries and the as -built location of all
Improvements on the Easement Property.
(i) State shall not charge additional fees for authorized Improvements installed by
Grantee on the Easement Property during this Term, but State may charge
additional fees for such Improvements if and when the Grantee or successor
obtains a subsequent use authorization for the Easement Property and State has
waived the requirement for removal of Improvements as provided in Paragraph
7.5.
7.4 Standards for Work.
(a) Applicability of Standards for Work.
(1) The standards for Work in Paragraph 7.4(b) apply to Work commenced in
the five-year period following the Commencement Date. Work
commences when State approves plans and specifications.
(2) If Grantee commences Work five years or more after the Commencement
Date, Grantee shall comply with State's current standards for Work.
(3) If Grantee commences Work five years or more after the Commencement
Date, Grantee shall ascertain State's current standards for Work as
follows:
(i) Before submitting plans and specifications for State's approval as
required by Paragraph 7.3 of the Easement, Grantee shall request
State to provide Grantee with State's current standards for Work
on state-owned aquatic lands.
(ii) Within thirty (30) days of receiving Grantee's request, State shall
provide Grantee with State's current standards for Work, which
will be effective for the purpose of State's approval of Grantee's
proposed Work, provided Grantee submits plans and specifications
for State's approval within two (2) years of Grantee's request for
standards.
(iii) If State does not timely provide State's current standards for Work
upon Grantee's request, the standards for Work under Paragraph
7.4(b) apply to Grantee's Work, provided Grantee submits plans
and specifications as required by Paragraph 7.3 within two (2)
years of Grantee's request for State's current standards for Work.
(iv) If Grantee fails to (1) make a request for State's current standards
for Work or (2) timely submit plans and specifications to State
after receiving State's current standards for Work, Grantee, at
Grantee's sole expense, shall make changes in plans or Work
Aquatic Lands Easement (1/10/2022) Page 8 of 31 Easement No. 51-101709
necessary to conform to State's current standards for Work upon
State's demand.
(b) The following standards for Work apply to Work commenced in the five-year
period following the Commencement Date.
(1) Grantee shall only conduct in -water Work during time periods authorized
for such work under WAC 220-660-110, Authorized Work Times in
Freshwater Areas, or as otherwise directed by the Washington Department
of Fish and Wildlife (WDFW), United States Fish and Wildlife Service
(USFWS), and National Marine Fisheries Service (NMFS).
7.5 Grantee -Owned Improvements at End of Easement.
(a) Disposition.
(1) Grantee shall remove Grantee -Owned Improvements in accordance with
Paragraph 7.3 upon the termination of the Easement unless State waives
the requirement for removal.
(2) Grantee -Owned Improvements remaining on the Easement Property on the
termination of the Easement shall become State -Owned Improvements
without payment by State, unless State elects otherwise. State may refuse
or waive ownership.
(3) If Grantee -Owned Improvements remain on the Easement Property after
the termination of the Easement without State's consent, State may
remove all Improvements and Grantee shall pay State's costs of removal
and disposal.
(b) Conditions Under Which State May Waive Removal of Grantee -Owned
Improvements.
(1) State may waive removal of any Grantee -Owned Improvements whenever
State determines that it is in the best interests of the State of Washington.
(2) If Grantee enters into a new Easement, State may waive requirement to
remove Grantee -Owned Improvements. State also may consent to
Grantee's continued ownership of Grantee -Owned Improvements.
(3) State may waive requirement to remove Grantee -Owned Improvements
upon consideration of a timely request from Grantee, as follows:
(i) Grantee shall submit its request to leave Grantee -Owned
Improvements to State at least one (1) year before the
Termination Date.
(ii) State, within ninety (90) days of receiving Grantee's request, will
notify Grantee whether State consents to any Grantee -Owned
Improvements remaining. State has no obligation to grant consent.
(iii) State's failure to respond to Grantee's request to leave
Improvements within ninety (90) days is a denial of the request.
(c) Grantee's Obligations if State Waives Removal.
(1) Grantee shall not remove a Grantee -Owned Improvement if State waives
the requirement for removal of that Grantee -Owned Improvement.
(2) Grantee shall maintain such Grantee -Owned Improvements in accordance
with this Easement until the termination of this Easement. State may
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(3)
require Grantee to take appropriate steps to decommission the structure.
Grantee is liable to State for cost of repair if Grantee causes or allows
damage to Grantee -Owned Improvements State has designated to remain.
State may condition its waiver of removal on Grantee entering into a new
Easement for the Grantee -Owned Improvements.
7.6 Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b) The placement of Unauthorized Improvements on the Easement Property is a
breach of this Easement and State may require removal of any or all Unauthorized
Improvements. If State requires removal of Unauthorized Improvements and if
Grantee fails to remove the Unauthorized Improvements, State may remove the
Unauthorized Improvements and Grantee shall pay for the cost of removal and
disposal.
(c) In addition to requiring removal of Unauthorized Improvements, State may
charge Grantee a use fee that is sixty percent (60%) higher than the full market
value of the use of the land for the Unauthorized Improvements from the time of
installation or construction until the time the Unauthorized Improvements are
removed.
(d) If State consents to Unauthorized Improvements remaining on the Easement
Property, upon State's consent, the Unauthorized Improvements will be treated as
Grantee -Owned Improvements and the removal and ownership of such
Improvements shall be governed by Paragraph 7.5. If State consents to the
Unauthorized Improvements remaining on the Easement Property, State may
charge a use fee that is sixty percent (60%) higher than the full market value of
the use of the land for the Unauthorized Improvements from the time of
installation or construction until State consents.
7.7 Personal Property.
(a) Grantee retains ownership of Personal Property unless Grantee and State agree
otherwise in writing.
(b) Grantee shall remove Personal Property from the Easement Property by the
termination of the Easement. Grantee is liable for damage to the Easement
Property and to any Improvements that may result from removal of Personal
Property.
(c) State may remove, sell, or dispose of all Personal Property left on the Easement
Property after the termination of the Easement.
(I) If State conducts a sale of Personal Property, State shall first apply
proceeds to State's costs of removing the Personal Property, State's costs
in conducting the sale, and any other payment due from the Grantee to
State. State shall pay the remainder, if any, to the Grantee. Grantee shall
be liable for any costs of removing the Personal Property and conducting
the sale that exceed the proceeds received by State.
(2) If State disposes of Personal Property, Grantee shall pay for the cost of
removal and disposal.
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SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definitions.
(a) "Hazardous Substance" means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup.
(b) "Release or threatened release of Hazardous Substance" means a release or
threatened release as defined under any law described in Paragraph 8.1(a).
(c) "Utmost care" means such a degree of care as would be exercised by a very
careful, prudent, and competent person under the same or similar circumstances;
the utmost care required under RCW 70A.305.040(3)(a)(iii) of the Washington
State Model Toxics Control Act.
(d) "Grantee and affiliates" when used in this Section 8 means Grantee or Grantee's
subgrantees, contractors, agents, employees, guests, invitees, licensees, affiliates,
or any person on the Easement Property with the Grantee's permission.
(e) "Liabilities" as used in this Section 8 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
8.2 General Conditions.
(a) Grantee's obligations under this Section 8 extend to the area in, on, under, or
above:
(1) The Easement Property and
(2) Adjacent state-owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
(1) Grantee shall exercise the utmost care with respect to Hazardous
Substances.
(2) As relates to the Permitted Use, Grantee shall exercise utmost care for the
foreseeable acts or omissions of third parties with respect to Hazardous
Substances, and the foreseeable consequences of those acts or omissions,
to the extent required to establish a viable, third -party defense under the
law.
8.3 Current Conditions and Duty to Investigate.
(a) State makes no representation about the condition of the Easement Property or
adjacent state-owned aquatic lands. Hazardous Substances may exist in, on,
under, or above the Easement Property or adjacent state-owned aquatic lands.
(b) This Easement does not impose a duty on State to conduct investigations or
supply information to Grantee about Hazardous Substances.
(c) Grantee is responsible for conducting all appropriate inquiry and gathering
sufficient information concerning the Easement Property and the existence, scope,
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and location of Hazardous Substances on or near the Easement Property necessary
for Grantee to meet Grantee's obligations under this Easement and utilize the
Easement Property for the Permitted Use.
8.4 Use of Hazardous Substances.
(a) Grantee and affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws.
(b) Grantee shall not undertake, or allow others to undertake by Grantee's
permission, acquiescence, or failure to act, activities that result in a
release or threatened release of Hazardous Substances.
(c) If use of Hazardous Substances related to the Permitted Use or Grantee's use of
the Property results in a violation of law:
(1) Grantee shall submit to State any plans for remedying the violation, and
(2) Grantee shall implement any measures to restore the Easement Property or
natural resources that State may require in addition to remedial measures
required by regulatory authorities.
8.5 Management of Contamination.
(a) Grantee and affiliates shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration
activities, if any;
(2) Result in human or environmental exposure to contaminated sediments, if
any;
(3) Result in the mechanical or chemical disturbance of on -site habitat
mitigation, if any.
(b) If requested, Grantee shall allow reasonable access to:
(1) Employees and authorized agents of the United States Environmental
Protection Agency (EPA), the Washington State Department of Ecology,
health department, or other similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Easement Property. Grantee may
negotiate an access agreement with such parties, but Grantee may not
unreasonably withhold such agreement.
8.6 Notification and Reporting.
(a) Grantee shall immediately notify State if Grantee becomes aware of any of the
following:
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of Hazardous Substances;
(3) Any lien or action arising from Hazardous Substances;
(4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous
Substances;
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(5) Any notification from the EPA or the Washington State Department of
Ecology that remediation or removal of Hazardous Substances is or may
be required at the Easement Property.
(b) Grantee's duty to report under Paragraph 8.6(a) extends to lands described in
Paragraph 8.2(a), and to any other property used by Grantee in conjunction with
the Easement Property if a release of Hazardous Substances on the other property
could affect the Easement Property.
(c) Grantee shall provide State with copies of all documents Grantee submits to any
federal, state, or local authorities concerning environmental impacts or proposals
relative to the Easement Property. Documents subject to this requirement include,
but are not limited to, applications, reports, studies, or audits for National
Pollutant Discharge Elimination System permits (NPDES); United States Army
Corps of Engineers permits; State Hydraulic Project Approvals (HPA); State
Water Quality Certifications; Substantial Shoreline Development permits; and any
reporting necessary for the existence, location, and storage of Hazardous
Substances on the Easement Property.
8.7 Indemnification.
(a) Grantee shall fully indemnify, defend, and hold harmless State from and against
any Liabilities that arise out of, or relate to:
(I) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Grantee and affiliates occurring
whenever Grantee uses or has used the Easement Property;
(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Grantee and affiliates occurring whenever
Grantee uses or has used the Easement Property.
(b) Grantee shall fully indemnify, defend, and hold harmless State for any Liabilities
that arise out of or relate to Grantee's breach of obligations under Paragraph 8.5.
(c) If Grantee fails to exercise care as described in Paragraph 8.2(b)(2), Grantee shall
fully indemnify, defend, and hold harmless State from and against Liabilities
arising from the acts or omissions of third parties in relation to the release or
threatened release of Hazardous Substances.
8.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 8.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all such rights, claims, immunities, and defenses
that either Party may have against third parties. Nothing in this Section 8 benefits
or creates rights for third parties.
(c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 8
do not release either Party from or affect the liability of either Party for Hazardous
Substances claims or actions by regulatory agencies.
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8.9 Cleanup.
(a) If Grantee's act, omission, or breach of obligation under Paragraph 8.4 results in a
release of Hazardous Substances that exceeds the threshold limits of any
applicable regulatory standards, Grantee shall, at Grantee's sole expense,
promptly take all actions necessary or advisable to clean up the Hazardous
Substances in accordance with applicable law.
(b) If a cleanup is eligible for the Washington State Department of Ecology's
Voluntary Cleanup Program, Grantee may undertake a cleanup of the Easement
Property pursuant to the Washington State Department of Ecology's Voluntary
Cleanup Program, provided that Grantee cooperates with the Department of
Natural Resources in development of cleanup plans. Grantee shall not proceed
with Voluntary Cleanup without the Department of Natural Resources' approval
of final plans. Nothing in the operation of this provision is an agreement by the
Department of Natural Resources that the Voluntary Cleanup complies with any
laws or with the provisions of this Easement. Grantee's completion of a Voluntary
Cleanup is not a release from or waiver of any obligation for Hazardous
Substances under this Easement.
8.10 Sampling by State, Reimbursement, and Split Samples.
(a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of
the Easement Property at any time to determine the existence, scope, or effects of
Hazardous Substances.
(b) If such Tests, along with any other information, demonstrate a breach of
Grantee's obligations regarding Hazardous Substances under this Easement,
Grantee shall promptly reimburse State for all costs associated with such Tests,
provided State gave Grantee thirty (30) days' advance notice in nonemergencies,
and reasonably practical notice in emergencies.
(c) In nonemergencies, Grantee is entitled to obtain split samples of Test samples,
provided Grantee gives State written notice requesting split samples at least ten
(10) days before State conducts Tests. Upon demand, Grantee shall promptly
reimburse State for additional cost, if any, of split samples.
(d) If either Party conducts Tests on the Easement Property, the conducting Party
shall provide the other Party with validated final data and quality
assurance/quality control/chain of custody information about the Tests within
sixty (60) days of a written request by the other Party, unless Tests are part of a
submittal under Paragraph 8.6(c) in which case Grantee shall submit data and
information to State without written request by State. Neither party is obligated to
provide any analytical summaries or the work product of experts.
SECTION 9 NATURE OF ESTATE AND ASSIGNMENT
This Easement shall be in gross for the sole benefit of Grantee's use associated with the
Permitted Use. This Easement shall not run with the land. This Easement is indivisible. Grantee
shall not sell, convey, mortgage, assign, pledge, grant franchises for, or otherwise transfer or
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encumber any part of Grantee's interest in this Easement or any part of Grantee's interest in the
Easement Property without State's prior written consent, which shall be at State's sole discretion.
State reserves the right to reasonably change the terms and conditions of this Easement upon
State's consent to requests made under this Section 9.
SECTION 10 INDEMNITY, INSU
NCE, FINANCIAL SECURITY
10.1 Indemnity.
(a) Grantee shall indemnify, defend, and hold harmless State, its employees, officials,
officers, and agents from any Claim arising out of the Permitted Use, any Claim
arising out of activities related to the Permitted Use, and any Claim arising out of
the use of the Easement Property by Grantee, its contractors, agents, invitees,
guests, employees, affiliates, licensees, or permittees, to the fullest extent
permitted by law and subject to the limitations provided below.
(b) "Claim" as used in this Paragraph 10.1 means any financial loss, claim, suit,
action, damages, expenses, costs, fees (including attorneys' fees), fines, penalties,
or judgments attributable to: bodily injury; sickness; disease; death; damages to
tangible property, including, but not limited to, land, aquatic life, and other
natural resources. "Damages to tangible property" includes, but is not limited to,
physical injury to tangible property, diminution in value of tangible property,
damages resulting from loss of use of tangible property, and loss or diminution of
natural resource values.
(c) State shall not require Grantee to indemnify, defend, and hold harmless State, its
employees, officials, officers, and agents for a Claim caused solely by or resulting
solely from the negligence or willful act of State or State's employees, officials,
officers, or agents.
(d) Grantee specifically and expressly waives any immunity that may be granted
under the Washington State Industrial Insurance Act, Title 51 RCW in connection
with its obligation to indemnify, defend, and hold harmless State and its
employees, officials, officers, and agents. Further, Grantee's obligation under this
Easement to indemnify, defend, and hold harmless State and its employees,
officials, officers, and agents shall not be limited in any way by any limitation on
amount or type of damages, compensation, or benefits payable to or for any third
party under the workers' compensation acts.
(e) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a
Claim, is caused by or results from the concurrent negligence of (a) State or
State's employees, officials, officers, or agents and (b) the Grantee or Grantee's
agents or employees, these indemnity provisions shall be valid and enforceable
only to the extent of the negligence of the Grantee and those acting on its behalf.
(f) Section 8, Environmental Liability/Risk Allocation, exclusively shall govern
Grantee's liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold harmless State for Hazardous Substances.
10.2 Insurance Terms.
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(a) Insurance Required.
(1) At its own expense, Grantee, or Grantee's contractor(s) where permitted in
Paragraph 10.3, shall procure and maintain during the Term, the insurance
coverages and limits described in this Paragraph 10.2 and in Paragraph
10.3, Insurance Types and Limits. State may terminate this Easement if
Grantee fails to maintain required insurance.
(2) Unless State agrees to an exception, Grantee shall provide insurance
issued by an insurance company or companies admitted to do business in
the State of Washington and have a rating of A- or better by the most
recently published edition of A.M. Best's Insurance Reports. Grantee may
submit a request to the risk manager for the Department of Natural
Resources to approve an exception to this requirement. If an insurer is not
admitted, the insurance policies and procedures for issuing the insurance
policies shall comply with Chapter 48.15 RCW and 284-15 WAC.
(3) All general liability, excess, umbrella, and pollution legal liability
insurance policies must name the State of Washington, the Department of
Natural Resources, its elected and appointed officials, officers, agents, and
employees as an additional insured by way of endorsement.
(4) All property, builder's risk, and equipment breakdown insurance must
name the State of Washington, the Department of Natural Resources, its
elected and appointed officials, officers, agents, and employees as loss
payees.
(5) All insurance provided in compliance with this Easement must be primary
as to any other insurance or self-insurance programs afforded to or
maintained by State.
(b) Waiver.
(1) Grantee waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Easement covers these
damages.
(2) Except as prohibited by law, Grantee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this Easement.
(c) Proof of Insurance.
(1) Grantee shall provide State with a certificate(s) and endorsement(s) of
insurance executed by a duly authorized representative of each insurer,
showing compliance with insurance requirements specified in this
Easement and, if requested, copies of policies to State.
(2) The certificate(s) of insurance must reference the Easement number.
(3) Receipt of such certificates, endorsements, or policies by State does not
constitute approval by State of the terms of such policies.
(d) State must receive written notice before cancellation or non -renewal of any
insurance required by this Easement, as follows:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium,
provide State ten (10) days' advance notice of cancellation; otherwise,
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provide State forty-five (45) days' advance notice of cancellation or non -
renewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to
non-payment of premium, provide State ten (10) days' advance notice of
cancellation; otherwise, provide State twenty (20) days' advance notice of
cancellation or non -renewal.
(e) Adjustments in Insurance Coverage.
(1) State may impose changes in the limits of liability for all types of
insurance as State deems necessary.
(2) Grantee shall secure new or modified insurance coverage within thirty
(30) days after State requires changes in the limits of liability.
(f) If Grantee fails to procure and maintain the insurance required in this Easement
within fifteen (15) days after Grantee receives a notice to comply from State,
State may either:
(1) Terminate this Easement, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Grantee shall pay to State the full amount paid
by State, together with interest at the rate provided in Paragraph 6.3 from
the date of State's notice of the expenditure until Grantee's repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this
Easement are adequate to protect Grantee.
(2) Coverage and limits do not limit Grantee's liability for indemnification
and reimbursements granted to State under this Easement.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to Easement Property first to restore the Easement Property,
then to pay the cost of the reconstruction, then to pay State any sums in
arrears, and then to Grantee.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Grantee shall maintain commercial general liability insurance (CGL) or
marine general liability (MGL) covering claims for bodily injury, personal
injury, or property damage arising on the Easement Property and/or
arising out of the Permitted Use and, if necessary, commercial umbrella
insurance with a limit of not less than One Million Dollars ($1,000,000)
per each occurrence. If such CGL or MGL insurance contains aggregate
limits, the general aggregate limit must be at least twice the "each
occurrence" limit. CGL or MGL insurance must have products -completed
operations aggregate limit of at least two times the "each occurrence"
limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
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personal injury and advertising injury, and liability assumed under an
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross -liability)
condition.
(3) MGL insurance must have no exclusions for non -owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(1) Grantee shall comply with all State of Washington workers'
compensation statutes and regulations. Grantee shall provide
workers' compensation coverage for all employees of Grantee.
Coverage must include bodily injury (including death) by accident
or disease, which arises out of or in connection with the Permitted
Use or related activities.
(ii) If Grantee fails to comply with all State of Washington workers'
compensation statutes and regulations and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees, Grantee shall indemnify State. Indemnity shall include
all fines; payment of benefits to Grantee, employees, or their heirs
or legal representatives; and the cost of effecting coverage on
behalf of such employees.
(2) Longshore and Harbor Workers' and Jones Acts. The Longshore and
Harbor Workers' Act (33 U.S.C. Section 901 et seq.) and/or the Jones Act
(46 U.S.C. Section 30104) may require Grantee to provide insurance
coverage in some circumstances. Grantee shall ascertain if such insurance
is required and, if required, shall maintain insurance in compliance with
the law. Grantee is responsible for all civil and criminal liability arising
from failure to maintain such coverage.
(c) Employers' Liability Insurance. Grantee shall procure employers' liability
insurance, and, if necessary, commercial umbrella liability insurance with limits
not less than One Million Dollars ($1,000,000) each accident for bodily injury by
accident and One Million Dollars ($1,000,000) each employee for bodily injury
by disease.
(d) Property Insurance.
(1) Grantee shall buy and maintain property insurance covering all real
property and fixtures, equipment, Improvements and betterments
(regardless of whether owned by Grantee or State). Such insurance must
be written on an all risks basis and, at minimum, cover the perils insured
under ISO Special Causes of Loss Form CP 10 30, and cover the full
replacement cost of the property insured. Such insurance may have
commercially reasonable deductibles. Any coinsurance requirement in the
policy must be waived.
(2) Grantee shall buy and maintain equipment breakdown insurance covering
all real property and fixtures, equipment, Improvements and betterments
(regardless of whether owned by Grantee or State) from loss or damage
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caused by the explosion of equipment, fired or unfired vessels, electric or
steam generators, electrical arcing, or pipes.
(3) In the event of any loss, damage, or casualty that is covered by one or
more of the types of insurance described above, the Parties shall proceed
cooperatively to settle the loss and collect the proceeds of such insurance,
which State shall hold in trust, including interest earned on such proceeds,
for use according to the terms of this Easement. The Parties shall use
insurance proceeds in accordance with Paragraph 10.2(g)(3).
(4) When sufficient funds are available, using insurance proceeds described
above, the Parties shall continue with reasonable diligence to prepare
plans and specifications for, and thereafter carry out, all work necessary
to:
(i) Repair and restore damaged Improvements to their former
condition, or
(ii) Replace and restore damaged Improvements with new
Improvements on the Easement Property of a quality and
usefulness at least equivalent to, or more suitable than, damaged
Improvements.
(e) Business Auto Policy Insurance.
(1) Grantee or Grantee's contractor(s) shall maintain business auto liability
insurance and, if necessary, commercial umbrella liability insurance with a
limit not less than One Million Dollars ($1,000,000 per accident. Such
insurance must cover liability arising out of "Any Auto."
(2) Business auto coverage must be written on ISO Form CA 00 01, or
substitute liability form providing equivalent coverage. If necessary, the
policy must be endorsed to provide contractual liability coverages and
cover a "covered pollution cost or expense" as provided in the 1990 or
later editions of CA 00 01.
10.4 Financial Security.
(a) On the Commencement Date of this Easement, Grantee is not required to procure
and maintain a corporate security bond or other financial security ("Security").
During the Term, State may require Grantee to procure and maintain Security
upon any of the events listed in Paragraph 10.4(c)(1). Grantee's failure to
maintain the Security in the required amount during the Term constitutes a breach
of this Easement.
(b) All Security must be in a form acceptable to State.
(1) Bonds must be issued by companies admitted to do business within the
State of Washington and have a rating of A-, Class VII or better, in the
most recently published edition of A.M. Best's Insurance Reports, unless
State approves an exception in writing. Grantee may submit a request to
the Risk Manager for the Department of Natural Resources for an
exception to this requirement.
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(2) Letters of credit, if approved by State, must be irrevocable, allow State to
draw funds at will, provide for automatic renewal, and comply with
RCW 62A.5-101, et. seq.
(3) Savings account assignments, if approved by State, must allow State to
draw funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the Security amount:
(i) As a condition of approval of assignment of this Easement,
(ii) Upon a material change in the condition or disposition of any
Improvements, or
(iii) Upon a change in the Permitted Use.
(2) Grantee shall deliver a new or modified form of Security to State within
thirty (30) days after State has required adjustment of the amount of the
Security.
(d) Upon any breach by Grantee in its obligations under this Easement, State may
collect on the Security to offset the liability of Grantee to State. Collection on the
Security does not (1) relieve Grantee of liability, (2) limit any of State's other
remedies, (3) reinstate the Easement or cure the breach or (4) prevent termination
of the Easement because of the breach.
SECTION 11 MAINTENANCE AND REPAIR
11.1 State's Repairs. State shall not be required to make any alterations,
maintenance, replacements, or repairs in, on, or about the Easement Property, or any
part thereof, during the Term.
11.2 Grantee's Repairs and Maintenance.
(a) Grantee shall, at its sole cost and expense, keep and maintain the Easement
Property and all Grantee -Owned Improvements in good order and repair, in a
clean, attractive, and safe condition. Grantee shall repair all damage caused or
permitted by Grantee to Improvements Owned by Others on the Easement
Property.
(b) Grantee shall, at its sole cost and expense, make any and all additions,
repairs, alterations, maintenance, replacements, or changes to the
Easement Property or to any Grantee -Owned Improvements on the
Easement Property that may be required by any public authority having
jurisdiction over the Easement Property and requiring it for public health,
safety and welfare purposes.
(c) Except as provided in Paragraph 11.2(d), all additions, repairs, alterations,
maintenance, replacements or changes to the Easement Property and to any
Grantee -Owned Improvements on the Easement Property shall be made in
accordance with, and ownership shall be governed by, Section 7 above.
(d) Routine maintenance and repair are acts intended to prevent a decline, lapse, or
cessation of the Permitted Use and associated Grantee -Owned Improvements.
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Routine maintenance or repair that does not require regulatory permits does not
require authorization from State pursuant to Section 7.
(e) Upon completion of maintenance activities, Grantee shall remove all debris and
restore the Easement Property to the condition prior to the commencement of
Work.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Damage to Improvements.
(a) In the event of any damage to or destruction of any Improvements on the
Easement Property, Grantee shall immediately notify State, with subsequent
written notice to State within five (5) days.
(b) Grantee shall be solely responsible for any reconstruction, repair, or replacement
of any Grantee -Owned Improvements. If Grantee elects not to reconstruct, repair,
or replace all or a portion of any damaged Improvements, Grantee shall promptly
remove any damaged or destroyed Improvements and restore the Easement
Property. Any reconstruction, repair, or replacement of Improvements is governed
by Section 7 Improvements, Personal Property, and Work, and Section 11,
Maintenance and Repair, and any Additional Obligations in Exhibit B.
(c) If Grantee is in breach of this Easement at the time damage or destruction occurs
to Grantee -Owned Improvements, State may elect to terminate the Easement
without giving Grantee an opportunity to cure, and State may retain any insurance
proceeds payable as a result of the damage or destruction.
12.2 Damage to Land or Natural Resources
(a) In the event of any damage to or destruction to the land or natural resources on the
Easement Property, Grantee shall immediately notify State, with subsequent
written notice to State within five (5) days. In the event of any damage or
destruction to land or natural resources on adjacent state-owned aquatic lands that
is attributable to Grantee's use of the Property, to the Permitted Use, or to related
activities, Grantee shall immediately notify State, with subsequent written notice
to State within five (5) days.
(b) Grantee, at Grantee's sole cost, shall remedy any damages to land or natural
resources on the Easement Property and adjacent state-owned aquatic lands that
are attributable to Grantee's use of the Property, the Permitted Use, or related
activities, in accordance with a plan approved by State. Grantee shall also
compensate State for any lost or damaged natural resource values in accordance
with Paragraph 12.2(c).
(c) Compensation for lost resource values:
(1) If damages to the land or natural resources result in lost or damaged
natural resource values, Grantee shall compensate State with (1) monetary
compensation; (2) the completion of a project approved by State that
includes replacing, enhancing, or otherwise providing in -kind habitats,
resources, or environments on other state-owned aquatic lands in order to
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offset the damage and impacts; or (3) a mixture of both monetary
compensation and a project. State shall have the discretion to determine if
Grantee will compensate with monetary compensation, a project, or both.
If State requires monetary compensation, the value of damages shall be
determined in accordance with Paragraph 12.2(c)(2).
(2) If State requires monetary compensation under Paragraph 12.2(c)(1),
unless the Parties otherwise agree on the value, a three -member panel of
professional appraisers or resource economists will determine the measure
of lost resource values, and issue a written decision. The appraisers or
resource economists shall be qualified to assess economic value of natural
resources. State and Grantee each shall appoint and compensate one
member of the panel. By consensus, the two appointed members shall
select the third member, who will be compensated by State and Grantee
equally. The panel shall base the calculation of compensation on generally
accepted valuation principles. The written decision of the majority of the
panel shall bind the Parties.
(d) If damage to land or natural resources on the Easement Property or adjacent state-
owned aquatic lands are attributable to Grantee's use of the Property, to the
Permitted Use, or to related activities, or if such damage occurs when Grantee is
in breach of the Easement, State may elect to terminate the Easement in
accordance with Section 14. If State elects to terminate the Easement, Grantee is
still responsible for restoring any damages to land or natural resources on the
Easement Property and adjacent state-owned aquatic lands, and for compensating
State for any lost resource values in accordance with Paragraph 12.2(c). State may
retain any insurance proceeds payable as a result of the damage or destruction.
(e) State may, with or without terminating the Easement, at the sole expense of
Grantee, remedy any damages and complete a project that offsets lost or damaged
natural resource values. If State takes any such actions, upon demand by State,
Grantee shall pay all costs incurred by State.
12.3 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Easement Property or adjacent state-owned aquatic lands unless State provides written notice
to Grantee of each specific claim waived.
12.4 Insurance Proceeds. Grantee's duties under Paragraphs 12.1 and 12.2 are not
conditioned upon the availability of any insurance proceeds to Grantee from which the cost of
repairs may be paid. The Parties shall use insurance proceeds in accordance with Paragraph
10.2(g)(3).
SECTION 13 CONDEMNATION
In the event of condemnation, the Parties shall allocate the condemnation award between State
and Grantee based upon the ratio of the fair market value of (1) Grantee's rights in the Easement
Property and Grantee -Owned Improvements and (2) State's interest in the Easement Property;
Aquatic Lands Easement (1/10/2022) Page 22 of 31 Easement No. 51-101709
the reversionary interest in Grantee -Owned Improvements, if any; and State -Owned
Improvements, if any. In the event of a partial taking, the Parties shall compute the ratio based on
the portion of Easement Property or Improvements taken. If Grantee and State are unable to
agree on the allocation, the Parties shall submit the dispute to binding arbitration in accordance
with the rules of the American Arbitration Association.
SECTION 14 REMEDIES AND TERMINATION
14.1 Termination by Breach. State may terminate this Easement upon Grantee's failure to
cure a breach of the terms and conditions of this Easement. Unless otherwise stated in this
Easement, State shall provide Grantee written notice of breach, and Grantee shall have sixty (60)
days after receiving the notice to cure the breach. State may extend the cure period if breach is
not reasonably capable of cure within sixty (60) days. This sixty (60) day cure period does not
apply where State terminates this Easement under Paragraph 10.2(f) or Section 12.
14.2 Termination by Nonuse. If Grantee does not use the Easement Property for a period of
three (3) successive years, this Easement terminates without further action by State and
Grantee's rights revert to State. Grantee shall still be responsible for complying with all end of
Term requirements.
14.3 Termination by Grantee. Grantee may terminate this Easement upon providing State
with sixty (60) days written notice of intent to terminate. If Grantee terminates under this
Paragraph, the date of Grantee's termination shall be deemed the Termination Date and Grantee
shall comply with all end of Term requirements. Grantee is not entitled to any refunds of
Easement fees already paid to State.
14.4 Remedies Not Exclusive. The remedies specified under this Section 14 are not exclusive
of any other remedies or means of redress to which State is lawfully entitled for Grantee's breach
or threatened breach of any provision of this Easement.
SECTION 15 NOTICE AND SUBMITTALS
15.1 Notice. Following are the locations for delivery of notice and submittals required or
permitted under this Easement. Any Party may change the place of delivery upon ten (10) days'
written notice to the other.
State:
DEPARTMENT OF NATURAL RESOURCES
Rivers District, Aquatic Resources
601 Bond Road P.O. Box 280
Castle Rock, WA 98611
Grantee: CITY OF YAKIMA
129 N 2nd Street
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Page 23 of 31 Easement No. 51-101709
Yakima, WA 98901
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery, notice is effective upon personal delivery, upon receipt of
a confirmation report if delivered by facsimile machine, or three (3) days after mailing. All
notices must identify the Easement number. On notices transmitted by facsimile machine, the
Parties shall state the number of pages contained in the notice, including the transmittal page, if
any.
15.2 Contact Persons. On the Commencement Date, the following persons are designated
day-to-day contact persons. Any Party may change the Contact Person upon reasonable notice to
the other.
State:
DEPARTMENT OF NATURAL RESOURCES
Rivers District, Aquatic Resources
601 Bond Road I P.O. Box 280
Castle Rock, WA 98611
Phone Number: 360-740-6835
Fax: 360-748-2387
dnrreaqleasingrivers@dnr.wa.gov
Grantee: CITY OF YAKIMA
Mike Shane, Water/Irrigation Manager
Phone Number: 509-728-3939
Phone Number: 509-576-6480
mike.shane@yakimawa.gov
SECTION 16 MISCELLANEOUS
16.1 Authority. Grantee and the person or persons executing this Easement on behalf of
Grantee represent that Grantee is qualified to do business in the State of Washington, that
Grantee has full right and authority to enter into this Easement, and that each and every person
signing on behalf of Grantee is authorized to do so. Upon State's request, Grantee shall provide
evidence satisfactory to State confirming these representations.
16.2 Successors and Assigns. Subject to the limitations set forth in Section 9, this Easement
binds and inures to the benefit of the Parties, their successors, and assigns.
16.3 Headings. The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
16.4 Entire Agreement. This Easement, including the exhibits, attachments, and addenda, if
any, contains the entire agreement of the Parties. This Easement merges all prior and
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contemporaneous agreements, promises, representations, and statements relating to this
transaction or to the Easement Property.
16.5 Waiver.
(a) The waiver of any breach of any term, covenant, or condition of this Easement is
not a waiver of such term, covenant, or condition; of any subsequent breach of the
same; or of any other term, covenant, or condition of this Easement. State's
acceptance of a payment is not a waiver of any preceding or existing breach other
than the failure to pay the particular payment that was accepted.
(b) The renewal of the Easement, extension of the Easement, or the issuance of a new
Easement to Grantee, does not waive State's ability to pursue any rights or
remedies under the Easement.
16.6 Cumulative Remedies. The rights and remedies of State under this Easement are
cumulative and in addition to all other rights and remedies afforded by law or equity or
otherwise.
16.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Easement.
16.8 Language. The word "Grantee" as used in this Easement applies to one or more persons
and regardless of gender, as the case may be. The singular includes the plural, and the neuter
includes the masculine and feminine. If there is more than one Grantee, their obligations are joint
and several. The word "persons," whenever used, shall include individuals, firms, associations,
and corporations. The word "Parties" means State and Grantee in the collective. The word
"Party" means either or both State and Grantee, depending on the context.
16.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Easement does
not affect, impair, or invalidate any other provision of this Easement.
16.10 Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Venue for any action arising out of or in
connection with this Easement is in the Superior Court for Thurston County, Washington.
16.11 Statutory Reference. Any reference to a statute or rule means that statute or rule as
presently enacted or hereafter amended or superseded.
16.12 Recordation. At Grantee's expense and no later than thirty (30) days after receiving the
fully -executed Easement, Grantee shall record this Easement in the county in which the
Easement Property is located. Grantee shall include the parcel number of the upland property
used in conjunction with the Easement Property, if any. Grantee shall provide State with
recording information, including the date of recordation and file number. If Grantee fails to
record this Easement, State may record this Easement and Grantee shall pay the costs of
recording upon State's demand.
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Page 25 of 31 Easement No. 51-101709
16.13 Modification. No modification of this Easement is effective unless in writing and signed
by both Parties. Oral representations or statements do not bind either Party.
16.14 Survival. Any obligations of Grantee not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantee until fully performed.
16.15 Exhibits and Attachments. Al! referenced exhibits and attachments are incorporated in
this Easement unless expressly identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
Dated:
CITY CONTRACT NO'
410 era
RESOLUTION NO'
, 2
Dated: 6C 'L-Pe-4i t -7 , 20 2-3
CITY OF YAKIMA
By: ROBERT HA" ' SON
Title: City Manager
Address: 129 N 2nd Street
Yakima, WA 98901
Phone: 509-575-6040
STATE OF WASHINGTON
DEPARTMENT 0 NATURA RESOURCES
7,F
By:
Title:
ALEXANDRA K. SMITH
Deputy Supervisor for Forest Resilience,
Regulation, and Aquatics
Address: 1111 Washington Street SE
MS 47027
Olympia, WA 98504
Aquatic Lands Easement
Template approved as to form this
10th day ofJanuary 2022
Jennifer Clements, Assistant Attorney General
Aquatic Lands Easement (1/10/2022)
Page 26 of 31 Easement No. 51-101709
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
County of )
I certify that I know or have satisfactory evidence that ROBERT HARRISON is the person who
appeared before me, and said person acknowledged that they signed this instrument, on oath
stated that they were authorized to execute the instrument and acknowledged it as the City
Manager of the City of Yakima to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
Dated:
Aquatic Lands Easement (1/10/2022)
20
(Sinatt re)
(Print Nante)
Notary Public in and for the State of
Wash'n t , µ'siding at
My appointment expires
Page 27 of 31 Easement No. 51-101709
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
ss.
County of )
I certify that I know or have satisfactory evidence that ALEXANDRA K. SMITH is the person
who appeared before me, and said person acknowledged that they signed this instrument, on oath
stated that they were authorized to execute the instrument and acknowledged it as the Deputy
Supervisor for Forest Resilience, Regulation, and Aquatics of the Department of Natural
Resources, to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Aquatic Lands Easement (I/10/2022)
Notary Public in and for the State of
Washington, residing at
My appointment expires
Page 28 of 31 Easement No. 51-101709
EXHIBIT A
PROPERTY DESCRIPTION
Agreement Number 51-101709
1. LEGAL DESCRIPTION OF THE EASEMENT PROPERTY:
The real property legally described and shown as DNR Easement 51-101709 in that Record
of Survey recorded in Yakima County, Washington on August 21, 2023, under Auditor's File
Number 8181635.
2. SQUARE FOOTAGE OF EASEMENT:
Land Classification
Unplatted Second Class
Shorelands
Bedlands
Square Footage
52,998
80,448
Total
Aquatic Lands Easement (1/10/2022)
133,446
Page 29 of 31 Easement No. 51-101709
1. DESC
EXHIBIT B
PROPERTY DESCRIPTION
PTION OF PERMITTED USE
A. Existing Facilities.
The Easement Property is located in the Naches River in Yakima County
Washington. This agreement authorizes the following encumbrances located on the
Property:
Water Intake Structure: This structure is the main intake of diverted water that
consists of a series of five (5) fish screens approximately 10 feet long by 3 feet wide
in reinforced concrete wall and weir stop logs to keep fish from becoming trapped or
impinged on the screens. The water from the screens enters a fish screen bay that
combines water into a 48 inch supply pipeline to the intake equipment building.
Canal Wall: The canal wall is a 975 foot long reinforced concrete wall with a riprap
footing. This structure moves water towards the intake gates. The banks of the canal
are also protected with riprap along the highway side. The canal intake gates divert
the Naches River water into the canal and towards the intake. Three metal slide gates
(3 feet by 3 feet) with bar screens are located at the upstream end of the concrete
canal wall. The gates have additional bar screens to limit debris from entering the
water intake structure.
By -Pass Spillway "Obermeyer Weir": This structure controls the water surface
elevation and by-pass flows from the canal by raising and lowering the By -Pass
Spillway via a rubber bladder controlled by a compressor. A crane is mounted on the
concrete canal wall for removal of debris. The structure then allows flows to by-pass
back to the Naches River.
Riprap: River grade control. Riprap is installed to create a river grade control
structure to limit the downward cutting of the channel bed and maintain water surface
elevations (WSEs) for the intake gates. Portions of riprap are elevated above the
channel bed just below the intake screens on the left bank. The engineered log jam
portion of the structure is located outside the ordinary high-water mark to allow flows
to enter the secondary floodplain channel. The structure is approximately 390 feet
long by 30 feet wide (180 feet is outside the ordinary high-water mark) comprised of
9,803.1 tons of riprap primarily buried at depth below the grade of the existing
channel bed apart.
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Page 30 of 31 Easement No. 51-101709
The riprap size used is as follows:
Class C
Approximate Size (in)'
42
Percent Passing (smaller
100
36
80-95
28
50-80
22
15-50
14
15 max
Engineered Log Jam (hereinafter "ELJ") 1 and 2: ELJ 1 is approximately 150 feet long
by 47 feet wide (90 feet of ELJ 1 is outside the ordinary high-water mark). ELJ 2 is
approximately 270 feet long by 47 feet wide (60 feet of ELJ 2 is outside the ordinary
high-water mark). These structures are installed as a bendway weir with a low elevation
profile that project approximately four (4) feet up from the bed of the channel. The ELJ
are installed to roughen the channel, limit channel meandering and lateral migration,
restrict channel flanking through riprap keyway installation (outside of the ordinary high
water mark) and encourage flows back toward the intake gates. The structures are
constructed in a modular fashion installed primarily below grade of the existing channel
bed with portions of logs and rootwads exposed. The logs are secured to one another
through cabling and chaining. The ELJ were further secured to the channel bed with
approved soil anchors. The ELJ are installed within the river grade control consisting of
large natural logs, all thread rods, riprap, and habitat boulders.
Water Intake Building: This building houses the water intake pumps, associated
infrastructure and collection, monitoring and conveyance equipment.
B. Proposed Work. Grantee proposes no new facilities or Work.
2. ADDITIONAL OBLIGATIONS
A. Grantee shall post clearly the following signs provided by Grantee: notice of project
locations and potential hazards for recreational users 300 feet upstream of the project
location and 300 feet downstream of the project location.
Aquatic Lands Easement (1/10/2022)
Page 31 of 31 Easement No. 51-101709
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 6.1.
For Meeting of: September 19, 2023
ITEM TITLE: Resolution authorizing an agreement with Department of Natural
Resources for an Aquatic Lands Easement
SUBMITTED BY: Scott Schafer- Public Works Director
*Mike Shane -Water/Irrigation Manager
SUMMARY EXPLANATION:
As part of the Naches River Water Intake Project(AC2335), the City of Yakima installed
engineered log jams and river grade control structures in the Naches River upstream of the water
treatment plant intake facilities. The State of Washington Department of Natural Resources
(DNR) requires that a 30-year aquatic lands easement agreement be established with the City of
Yakima for all facilities located within the property defined as bedlands and shorelands. The
easement also covers all existing water treatment plant intake facilities not previously identified in
an easement agreement.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Public Trust and Accountability
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt Resolution.
ATTACHMENTS:
Description Upload Date Type
O Resolution-DNR Easement Agreement 9/7/2023 Resolution
O DNR Easement Agreement 9/8/2023 Contract