HomeMy WebLinkAbout2018 Easement 51-095976HILARY S. FRANZ
COMMISSIONER OF PUBLIC LANDS
April 4, 2018
DEPARTMENT OF
NATURAL RESOURCES
SOUTH PUGET SOUND REGION
950 FARMAN AVENUE N
ENUMCLAW. WA 98022-9282
360-825-1631
TRS 711
SOUTH PUGET.REGIONODNR.WA.GOV
I1 r �WWW.DNR.WA.GOV
v
f�D
A"R 0 P�•3
OM UNIT T y ON R
CERTIFIED MAIL
70113500 0002 1275 6574
Ms. Maggie Gipson, Environmental Service Specialist
City of Auburn
25 West Main Street
Auburn, WA 98001
Subject: Aquatic Lands Easement 51-095976
Dear Ms. Gipson:
Enclosed is a final copy of Easement No. 51-095976 for your records.
Please record this document at the King county auditor's office and return the information to our
office within thirty (30) days of your receipt of this letter. Section 16 of this agreement details
the requirements, which include providing us the recording number and date.
If you should have any questions, feel free to contact me at (206) 455-1014 or by email at
trina.sunderland@dnr.wa.gov.
Sincerely,
&h Vv-
Trina Sunderland, Land Manager
Aquatic Resources Division
c: District File
TRO File
A PRINTED ON RECYCLED PAPER. DNR IS AN EQUAL OPPORTUNITY EMPLOYER.
When recorded, return to:
City of Auburn
25 West Main Street
Auburn, WA 98001
rauar s. FXMZ
COMMMONfR Of PUKK LANDS
AQUATIC LANDS EASEMENT
Easement No. 51-095976
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Auburn
Legal Description: Section 7 Township 21 North, Range 5 East W.M.
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 AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources ("State"), and CITY OF AUBURN, 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).
THE Parties agree as follows:
SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) State grants and conveys to Grantee a nonexclusive easement, subject to the terms
and conditions of this agreement, over, upon, and under the real property at The
Green River described in Exhibit A. In this agreement, the term "Easement"
Aquatic Lands Easement (Rev. 12/17) Page 1 of 28 Easement No. 51-095976
means this agreement and the rights granted; the term "Easement Property" means
the real property subject to the easement.
(b) This Easement is subject to all valid interests of third parties noted in the records
of King County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Easement does not include any right to harvest, collect or damage any
natural resource, including aquatic life or living plants, any water rights, or any
mineral rights, including any right to excavate or withdraw sand, gravel, or other
valuable materials.
(d) This Easement does not include the right to grant easements and franchises to
third parties.
1.2 Survey and Easement Property Descriptions.
(a) Grantee prepared Exhibit A, which describes the Easement Property. Grantee
represents that Exhibit A is a true and accurate description of the Easement
boundaries and the improvements to be constructed or already existing in the
Easement area. Grantee's obligation to provide a true and accurate description of
the Easement Property boundaries is a material term of this Easement.
(b) State's acceptance of Exhibit A does not constitute agreement that Grantee's
property description accurately reflects the actual amount of land used by
Grantee. State reserves the right to retroactively adjust fees if at any time during
the Term State discovers a discrepancy between Grantee's property description
and the area actually used by Grantee.
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. Grantee shall use the Easement Property for: A fiber optic cable
crossing (the "Permitted Use"), and for no other purpose, including utilities unless specifically
identified as part of the Permitted Use. The Permitted Use is described or shown in detail in
Exhibit B.
2.2 Restrictions on Use.
(a) The limitations in this Paragraph 2.2 apply to the Property and adjacent state-
owned aquatic land. Grantee's compliance with this Paragraph 2.2 does not limit
Grantee's liability under any other provision of this Easement.
(b) Grantee shall not cause or permit:
Aquatic Lands Easement (Rev. 12/17) Page 2 of 28 Easement No. 51-095976
(1) Any damage to natural resources, regardless of whether the damages are a
direct or indirect result of the Permitted Use.
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, hydrocarbons,
refuse, garbage, waste matter, pollutants of any type, or other matter.
(c) Failure to Comply with Restrictions on Use.
(1) Grantee's failure to comply with the restrictions on use under this
Subsection 2.2 is a breach subject to Subsection 14.1. Grantee shall cure
the breach by taking all steps necessary to remedy the failure and restore
the Easement Property and adjacent state-owned aquatic lands to the
condition before the failure occurred within the time for cure provided in
Subsection 14.1.
(d) State's failure to notify Grantee of Grantee's failure to comply with all or any of
the restrictions set out in this Subsection 2.2 does not constitute a waiver of any
remedies available to State.
(e) This Section 2.2 does not limit Grantee's liability under Section 8, below.
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. Grantee shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use of the Easement Property, unless
expressly authorized by State in writing.
2.5 Interference with Other Uses.
(a) 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 right 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 of
construction or other significant activity on Easement Property at least thirty (30)
days in advance. "Significant Activity" means any activity that may affect use or
enjoyment by the State, public, or others with valid rights to use or occupy the
Easement Property or surrounding lands and water.
(d) Grantee shall mark the location of any hazards associated with the Permitted Use
and any Improvements in a manner that ensures reasonable notice to the public.
Aquatic Lands Easement (Rev. 12/17) Page 3 of 28 Easement No. 51-095976
SECTION 3 TERM
3.1 Term Defined. The term of this Easement is Thirty (30) years (the "Term"), beginning
on the 15th day of February, 2018 (the "Commencement Date"), and ending on the 14th day of
February, 2048 (the "Termination Date"), unless terminated sooner under the terms of this
Easement.
3.2 Renewal of the 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. State shall notify Grantee within
ninety (90) days of its intent to approve or deny a new Easement.
3.3 End of Term.
(a) Upon the expiration or termination of this Easement, Grantee shall remove
Improvements in accordance with Section 7, Improvements, and surrender the
Easement Property to State in the same or better condition as on the
Commencement Date, reasonable wear and tear excepted.
(b) Definition of Reasonable Wear and Tear.
(1) Reasonable wear and tear is deterioration resulting from the Permitted Use
that has occurred without neglect, negligence, carelessness, accident, or
abuse by Grantee or Grantee's contractors, agents, invitees, guests,
employees, affiliates, licensees, or permittees.
(2) Reasonable wear and tear does not include any deposit of material
prohibited under Paragraph 2.2(b) unless expressly permitted by State in
writing and regardless of whether the deposit is incidental to or the
byproduct of the Permitted Use.
(c) If Easement Property is in worse condition, excepting for reasonable wear and
tear, on the surrender date than on the Commencement Date, the following
provisions apply.
(1) State shall provide Grantee a reasonable time to take all steps necessary to
remedy the condition of the Easement Property. State may require Grantee
to enter into a right -of -entry or other use authorization prior to the Grantee
entering the Easement Property to remedy any breach of this
Paragraph 3.3.
(2) If Grantee fails to remedy the condition of the Easement Property in a
timely manner, State may take any steps reasonably necessary to remedy
Grantee's failure. Upon demand by State, Grantee shall pay all costs of
such remedial action, including but not limited to the costs of removing
and disposing of any material deposited improperly on the Easement
Property, lost revenue resulting from the condition of the Easement
Property prior to and during remedial action, and any administrative costs
associated with the remedial action.
Aquatic Lands Easement (Rev. 12/17) Page 4 of 28 Easement No. 51-095976
SECTION 4 FEES
4.1 Fee. For the Term, Grantee shall pay to State an administrative fee calculated in
accordance with RCW 79.110.230(l ). 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, I I I I
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, of any kind whatsoever, applicable or attributable to the Easement and the
Permitted Use.
5.3 Failure to Pay. If Grantee fails to pay any of the amounts due under this Easement, State
may pay the amount due, and recover its cost in accordance with Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Failure to Pay. Failure to pay any fees or other expenses is a default by Grantee. State
may seek remedies in Section 14 as well as late charges and interest as provided in 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 fee at the rate of one percent (1 %) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Fee not paid by the close of business day 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
Grantee of the payment or advance. This includes, but is not limited to taxes,
assessments, insurance premiums, costs of removal and disposal of unauthorized
Aquatic Lands Easement (Rev. 12/17) Page 5 of 28 Easement No. 51-095976
materials pursuant to Paragraph 2.2 above, costs of removal and disposal of
improvements pursuant to Section 7 below, or other amounts not paid when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, 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. No endorsement or
statement on any check, any payment, or any letter accompanying any check or payment
constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS
7.1 Improvements Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.145, are additions
within, upon, or attached to the land. This includes, but is not limited to,
structures and fixtures.
(b) "Personal Property" means items that can be removed from the Easement
Property without (1) injury to the Easement Property, adjacent state-owned lands
or Improvements or (2) diminishing the value or utility of the Easement Property,
adjacent state-owned lands or Improvements.
(c) "State -Owned Improvements" are Improvements made or owned by State. State -
Owned Improvements includes any construction, alteration, or addition to State -
Owned Improvements made by Grantee.
(d) "Grantee -Owned Improvements" are Improvements made by Grantee with State's
consent.
(e) "Unauthorized Improvements" are Improvements made on the Easement Property
without State's prior consent or Improvements made by Grantee that do not
conform with plans submitted to and approved by the State.
(f) "Improvements Owned by Others" are Improvements made by Others with a right
to occupy or use the Easement Property or adjacent state-owned lands.
7.2 Existing Improvements. On the Commencement Date, the following Improvements
Owned By Others are located on the Easement Property: An electrical utility crossing.
7.3 Construction, Major Repair, Modification, and Demolition.
(a) This Paragraph 7.3 governs construction, alteration, replacement, major repair,
modification alteration, demolition and deconstruction of Improvements
("Work").
(b) All Work must conform with State's standards for Improvements current at the
time Grantee submits plans and specifications for State's approval.
(c) Except in an emergency, Grantee shall not conduct any Work without State's
prior written consent, as follows:
Aquatic Lands Easement (Rev. 12/17) Page 6 of 28 Easement No. 51-095976
(1) State may deny consent if State determines that denial is in the best
interests of the State. State may impose additional conditions reasonably
intended to protect and preserve the Easement Property. If Work is for
removal of Improvements at End of Term, State may waive removal of
some or all Improvements.
(2) Except in an emergency, 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
at least ninety (90) days before commencement of Work.
(3) State waives the requirement for consent if State does not notify Grantee
of its grant or denial of consent within sixty (60) days of submittal.
(d) Grantee shall notify State of emergency Work within five (5) business days of the
start of such Work. Upon State's request, Grantee shall provide State with plans
and specifications or as-builts of emergency Work.
(e) Grantee shall not commence or authorize 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 shall maintain the performance and payment bond until Grantee
pays in full the costs of the Work, including all laborers and material
persons.
(2) Obtained all required permits.
(3) Provided notice of Significant Activity in accordance with Paragraph
2.5(c).
(f) Grantee shall preserve and protect Improvements Owned by Others, if any.
(g) 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 U.S. General Land Office
standards.
(h) Before completing Work, Grantee shall remove all debris and restore the
Easement Property, as nearly as possible, to the condition prior to the
commencement of Work. 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.
(i) Upon completing work, Grantee shall promptly provide State with as -built plans
and specifications.
(j) State shall not charge rent for authorized Improvements installed by Grantee
during this Term of this Easement, but State may charge rent for such
Improvements when and if the Grantee or successor obtains a subsequent use
Aquatic Lands Easement (Rev. 12/17) Page 7 of 28 Easement No. 51-095976
authorization for the Easement Property and State has waived the requirement for
Improvements to be removed 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 then current standards for Work.
(3) Grantee may 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 then current standards for Work on
State-owned Aquatic Lands.
(ii) Within thirty (30) days of receiving Grantee's request, State shall
provide Grantee with 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 current standards upon Grantee's
request, the standards 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 standards.
(iv) If Grantee fails to (1) make a request for current standards or (2)
timely submit plans and specifications to State after receiving
current standards, Grantee shall make changes in plans or Work
necessary to conform to 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) None.
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 expiration, termination, or cancellation of the
Easement unless State waives the requirement for removal.
(2) Grantee -Owned Improvements remaining on the Easement Property on the
expiration, termination, or cancellation date become State -Owned
Improvements without payment by State, unless State elects otherwise.
State may refuse or waive ownership.
(3) If Grantee -Owned Improvements remain on the Easement Property after
the expiration, termination, or cancellation date without State's consent,
Aquatic Lands Easement (Rev. 12/17) Page 8 of 28 Easement No. 51-095976
State may remove all Improvements and Grantee shall pay the costs of
removal and disposal.
(b) Conditions Under Which State May Waive Removal of Grantee -Owned
Improvements.
(1) State may waive removal of any or all Grantee -Owned Improvements
whenever State determines that it is in the best interests of the State.
(2) If Grantee renews the Easement or 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) If Grantee does not renew the Easement or enter into a new Easement,
State may waive requirement to remove Grantee -Owned Improvements
upon consideration of a timely request from Grantee, as follows:
(i) Grantee must notify State at least one (1) year before the
Termination Date of its request to leave Grantee -Owned
Improvements.
(ii) State, within ninety (90) days, will notify Grantee whether State
consents to any or all 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 Improvements if State waives the requirement
for removal of any or all Grantee -Owned Improvements.
(2) Grantee shall maintain such Improvements in accordance with this
Easement until the expiration, termination, or cancellation date. Grantee is
liable to State for cost of repair if Grantee causes or allows damage to
Improvements State has designated to remain.
7.6 Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b) State may either:
(1) Consent to Grantee ownership of the Improvements, or
(2) Charge use and occupancy fee in accordance with RCW 79.105.200 for
the Improvements from the time of installation or construction and
(i) Require Grantee to remove the Improvements in accordance with
Paragraph 7.3, in which case Grantee shall pay use and occupancy
fee for the Improvements until removal,
(ii) Consent to Improvements remaining and Grantee shall pay use and
occupancy fee for the use of the Improvements, or
(iii) Remove Improvements and Grantee shall pay for the cost of
removal and disposal, in which case Grantee shall pay use and
occupancy fee for use of the Improvements until removal and
disposal.
Aquatic Lands Easement (Rev. 12/17) Page 9 of 28 Easement No. 51-095976
7.7 Disposition of 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 Date. Grantee is liable for any damage to the Easement Property and
to any Improvements that may result from removal of Personal Property.
(c) State may sell or dispose of all Personal Property left on the Easement Property
after the Termination Date.
(1) If State conducts a sale of Personal Property, State shall apply proceeds
first to the State's administrative costs in conducting the sale, second to
payment of amount that then may be due from the Grantee to the State,
and State shall pay the remainder, if any, to the Grantee.
(2) If State disposes of Personal Property, Grantee shall pay for the cost of
removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definitions.
(a) "Hazardous Substance" means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup.
(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 standard of care applicable under the Washington State Model Toxics Control
Act ("MTCA"), Chapter 70.105D RCW, as amended.
(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.
Aquatic Lands Easement (Rev. 12/17) Page 10 of 28 Easement No. 51-095976
(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.
Hazardous Substances may exist in, on, under, or above the Easement Property.
(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 about the existence, scope, and location of Hazardous
Substances on or near the Property necessary for Grantee to meet Grantee's
obligations under this Easement and utilize the 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 results in a violation
of law:
(1) Grantee shall submit to State any plans for remedying the violations, 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, if any.
(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 Environmental Protection
Agency, the Washington State Department of Ecology, health department,
or other similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Easement Property. Grantee may
negotiate an access agreement with such parties, but Grantee may not
unreasonably withhold such agreement.
Aquatic Lands Easement (Rev. 12/17) Page 11 of 28 Easement No. 51-095976
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;
(5) Any notification from the US Environmental Protection Agency (EPA) or
the Washington State Department of Ecology (DOE) that remediation or
removal of Hazardous Substances is or may be required at the Easement
Property.
(b) Grantee'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
Pollution Discharge and Elimination System Permits; Army Corps of Engineers
permits; State Hydraulic Project Approvals (HPA); State Water Quality
certification; Substantial Development permit; and any reporting necessary for the
existence, location, and storage of Hazardous Substances on the Property.
8.7 Indemnification.
(a) Grantee shall fully indemnify, defend, and hold State harmless from and against
Liabilities that arise out of, or relate to:
(1) 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 State harmless for any Liabilities
that arise out of or relate to Grantee's breach of obligations under Paragraph 8.5.
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.
Aquatic Lands Easement (Rev. 12/17) Page 12 of 28 Easement No. 51-095976
(b) The Parties expressly reserve all rights, claims, immunities, and defenses 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.
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 standard, 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) Grantee may undertake a cleanup of the 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 the Tests,
provided State gave Grantee thirty (30) calendar 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) calendar 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 Property, the conducting Party shall provide
the other with validated final data and quality assurance/quality control/chain of
custody information about the Tests within sixty (60) calendar 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.
Aquatic Lands Easement (Rev. 12/17) Page 13 of 28 Easement No. 51-095976
SECTION 9 ASSIGNMENT
Grantee shall not assign any part of Grantee's interest in this Easement or the Easement Property
or grant any rights or franchises to third parties without State's prior written consent, which State
shall not unreasonably condition or withhold. State reserves the right to reasonably change the
terms and conditions of this Easement upon State's consent to assignment.
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
10.1 Indemnity.
(a) Grantee shall indemnify, defend, and hold State, its employees, officers, and
agents harmless from any Claims arising out of the Permitted Use or activities
related to the Permitted Use 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, and damages
to tangible property, including, but not limited to, land, aquatic life, and other
natural resources. "Damages to tangible property" includes, but is not limited to,
physical injury to the Easement Property diminution of value, and/or damages
resulting from loss of use of the Easement Property.
(c) State shall not require Grantee to indemnify, defend, and hold State harmless for
claims caused solely by or resulting solely from the negligence or willful act of
State or State's elected officials, employees, or agents.
(d) Grantee specifically and expressly waives any immunity that may be granted
under the Washington State Industrial Act, Title 51 RCW in connection with its
obligation to indemnify, defend, and/or hold State and its agencies, officials,
agents, or employees harmless. Further, the indemnification obligation under this
Easement 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
worker's compensation acts.
(e) Section 8, Environmental Liability/Risk Allocation, exclusively governs
Grantee's liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold State harmless for Hazardous Substances.
(f) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a
claim, suit, or action for injuries or damage is caused by or results from the
concurrent negligence of (a) the State or State's agents or employees 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.
Aquatic Lands Easement (Rev. 12/17) Page 14 of 28 Easement No. 51-095976
10.2 Insurance Terms.
(a) Insurance Required.
(1) Grantee certifies that on the Commencement Date of this Easement, it is a
member of a self -insured risk pool for all the liability exposures, its self-
insurance plan satisfies all State requirements, and its self-insurance plan
provides coverage equal to that required in this Paragraph 10.2 and by
Paragraph 10.3, Insurance Types and Limits. Grantee shall provide to
State evidence of its status as a member of a self -insured risk pool. Upon
request by State, Grantee shall provide a written description of its financial
condition and/or the self -insured funding mechanism. Grantee shall
provide State with at least thirty (30) days' written notice prior to any
material changes to Grantee's self -insured funding mechanism. If during
the term of this Easement Grantee's self-insurance plan fails to provide
coverage equal to that required in Paragraph 10.2 and Paragraph 10.3 of
this Easement, Grantee shall procure additional commercial insurance
coverage to meet the requirements of this Easement. The requirements in
Section 10.2(a)(3) and (4) only apply where the Grantee procures
additional commercial insurance to meet the requirements of this
Easement.
(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 Best's 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 must
comply with Chapter 48.15 RCW and 284-15 WAC.
(3) All general liability, excess, umbrella, builder's risk, and pollution legal
liability insurance policies must name the State of Washington, the
Department of Natural Resources, its elected and appointed officials,
agents, and employees as an additional insured by way of endorsement.
(4) All property insurance must name the State of Washington, the
Department of Natural Resources, its elected and appointed officials,
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.
Aquatic Lands Easement (Rev. 12/17) Page 15 of 28 Easement No. 51-095976
(1) Grantee shall provide State with a certificate(s) of insurance and
endorsement(s) 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,
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 described above within
fifteen (15) days after Grantee receives a notice to comply from State, State may
either:
(1) Deem the failure an Event of Default under Section 14, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, 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 the 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
Aquatic Lands Easement (Rev. 12/17) Page 16 of 28 Easement No. 51-095976
arising out of the Permitted Use and, if necessary, commercial umbrella
insurance with a limit of not less than One Million Dollars ($1,000,000)
per each occurrence. If such CGL or MGL insurance contains aggregate
limits, the general aggregate limit must be at least twice the "each
occurrence" limit. CGL or MGL insurance must have products -completed
operations aggregate limit of at least two times the "each occurrence"
limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross -liability)
condition.
(3) MGL insurance must have no exclusions for non -owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) 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 includes 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. Longshore and Harbor
Workers' Act (33 U.S.C. Section 901 et seq.) and/or the Jones Act (46
U.S.C. Section 688) 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 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.
Aquatic Lands Easement (Rev. 12/17) Page 17 of 28 Easement No. 51-095976
10.4 Financial Security.
(a) At its own expense, Grantee shall procure and maintain during the Term of this
Easement a corporate security bond or provide other financial security that State
may approve ("Security"). Grantee shall provide Security in an amount equal to
Zero Dollars ($0), which is consistent with RCW 79.105.330, and secures
Grantee's performance of its obligations under this Easement, with the exception
of the obligations under Section 8, Environmental Liability/Risk Allocation.
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 the 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 Best's Reports, unless State approves
an exception. Grantee may submit a request to the Risk Manager for the
Department of Natural Resources for an exception to this requirement.
(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) At the same time as revaluation, if any,
(ii) As a condition of approval of assignment of this Easement,
(iii) Upon a material change in the condition or disposition of any
Improvements, or
(iv) 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 default 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 or cure the default or (4) prevent termination of the
Easement because of the default.
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 improvements (regardless of ownership) in good order and
Aquatic Lands Easement (Rev. 12/17) Page 18 of 28 Easement No. 51-095976
repair, in a clean, attractive, and safe condition.
(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 improvements on the Easement Property
which 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 Section 11.2(d), all additions, repairs, alterations,
replacements or changes to the Easement Property and to any
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 Improvements. Routine
maintenance or repair that does not require regulatory permits does not require
authorization from State pursuant to Section 7.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of any known damage to or destruction of the Easement Property or
any Improvements, Grantee shall promptly give written notice to State. State does
not have actual knowledge of the damage or destruction of the Easement Property
or any Improvements without Grantee's written notice.
(b) Unless otherwise agreed in writing, Grantee shall promptly reconstruct, repair, or
replace any Improvements in accordance with Paragraph 7.3, Construction, Major
Repair, Modification, and Demolition, as nearly as possible to its condition
immediately prior to the damage or destruction. Where damage to state-owned
aquatic land or natural resources is attributable to the Permitted Use or related
activities, Grantee shall promptly restore the lands or resources to the condition
preceding the damage in accordance with Paragraph 7.3 unless otherwise agreed
in writing.
12.2 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Easement Property unless State provides written notice to Grantee of each specific claim
waived.
12.3 Insurance Proceeds. Grantee's duty to reconstruct, repair, or replace any damage or
destruction of the Easement Property or any Improvements on the Easement Property is not
conditioned upon the availability of any insurance proceeds to Grantee from which the cost of
repairs may be paid. The Parties shall use insurance proceeds in accordance with Paragraph
10.2(g)(3).
Aquatic Lands Easement (Rev. 12/17) Page 19 of 28 Easement No. 51-095976
SECTION 13 CONDEMNATION
In the event of condemnation, the Parties shall allocate the 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; the
reversionary interest in Grantee -Owned Improvements, if any; and State -Owned Improvements.
In the event of a partial taking, the Parties shall compute the ratio based on the portion of
Easement Property or Improvements taken. If 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 Breach.
(a) State may terminate this Easement upon Grantee's failure to cure a breach of its
terms within sixty (60) days of State's written notice of breach.
(b) For nonmonetary breach not capable of cure within sixty (60) days, State will not
unreasonably withhold approval of a reasonable alternative cure schedule.
Grantee must submit a cure schedule within thirty (30) days of a notice of breach.
State shall not terminate if State approves the schedule and Grantee works
diligently and in good faith to execute the cure. State may terminate if Grantee
fails to timely submit a schedule or fails to cure in accordance with an approved
schedule.
(c) If breach arises from Grantee's failure to comply with restrictions on Permitted
use under Paragraph 2.2, State may, without terminating this Easement, restore
the natural resources or Property and charge Grantee restoration costs and/or
charge Grantee damages. On demand by State, Grantee shall pay all costs and/or
damages.
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. Grantee's
rights revert to State upon Termination by Nonuse.
14.3 Termination by Grantee. Grantee may terminate this Easement upon providing State
with sixty (60) days written notice of intent to terminate. Grantee shall comply with Paragraph
3.3, End of Term.
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 the State is lawfully entitled for Grantee's
breach or threatened breach of any provision of this Easement.
Aquatic Lands Easement (Rev. 12/17) Page 20 of 28 Easement No. 51-095976
SECTION 15 NOTICE AND SUBMITTALS
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
950 Farman Avenue North
Enumclaw, WA 98022-9282
Grantee: CITY OF AUBURN
25 West Main Street
Auburn, WA 98001
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.
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. 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
contemporaneous agreements, promises, representations, and statements relating to this
transaction or to the Easement Property.
16.5 Waiver.
(a) The waiver of any breach or default of any term, covenant, or condition of this
Easement is not a waiver of such term, covenant, or condition; of any subsequent
breach or default of the same; or of any other term, covenant, or condition of this
Easement. State's acceptance of payment is not a waiver of any preceding or
Aquatic Lands Easement (Rev. 12/17) Page 21 of 28 Easement No. 51-095976
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,
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, includes 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 context.
16.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Easement does
not affect, impair, or invalidate any other provision of this Easement.
16.10 Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Any reference to a statute means that
statute as presently enacted or hereafter amended or superseded. Venue for any action arising out
of or in connection with this Easement is in the Superior Court for Thurston County,
Washington.
16.11 Recordation. 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 Property
is located. Grantee shall include the parcel number of the upland property used in conjunction
with the Property, if any. Grantee shall provide State with recording information, including the
date of recordation and file number.
16.12 Modification. No modification of this Easement is effective unless in writing and signed
by the Parties. Oral representations or statements do not bind either Party.
16.13 Survival. Any obligations of Grantee not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantee until fully performed.
Aquatic Lands Easement (Rev. 12/17) Page 22 of 28 Easement No. 51-095976
16.14 Exhibits and Attachments. All 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.
CITY OFr A�JBURN
Dated: 2(Y
Dated: I►'Iw# 21 , 20A
PAUL HAUGAN
IT Director
Address: 25 Main Street
Auburn, WA 98001
Phone: 253-288-3160
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
By. KRISTIN 9WENDDAL
Title: Acting, Deputy Supervisor for Aquatics,
Geology, and IT
Address: 950 Farman Avenue North
Enumclaw, WA 98022
Master approved as to form this
18`h Day of December 2017
Jennifer Clements, Assistant Attorney General
Aquatic Lands Easement (Rev. 12/17) Page 23 of 28 Easement No. 51-095976
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WA *?tJ&-'0N
) ss
County of KtNG-
I certify that I know or have satisfactory evidence that PAUL HAUGAN 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 IT Director of The
City of Auburn to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated: - a (o , 2019
(Seal or stamp)
Notary Public
State of Washington
MELISSA ANNE BAILEY
My Appointment Expires Apr 24. 2018
i --y 4AZ &-VZ -
(Signature) (7
54 4nH., Ra Alew
(Print Name)
Notary Public in and for the State of
Washington, residing at
J51130 IRCI Plea SE, C'ow' , W14 PYO
My appointment expires Ava a y6y ,,20/8
Aquatic Lands Easement (Rev. 12/17) Page 24 of 28 Easement No. 51-095976
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON)
O�� ) ss. UL",Q/L
County of')I'a-t p, )
I certify that I know or have satisfactory evidence that ISTIN SWENDDAL 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 Acting,
Deputy Supervisor for Aquatics, Geology, and IT of the epartment of Natural Resources, to be
the free and voluntary act of such party for the uses an urp ses mentioned in the instrument.
Dated: +/�� , 20 1�
(Signs e)
(Seal oK sin ) q�
PWgG �.,
yo Ek (Print Name)
i
?`g N
O� 2OjARh y Notary PAciti for the State of
=a " Washingat
IA
OF WAS"
My appointment e ires
Aquatic Lands Easement (Rev. 12/17) Page 25 of 28 Easement No. 51-095976
EXHIBIT A
Agreement Number 51-095976
Recording number of final DNR approved survey in King County: 20171005900001
Legal description of the Property:
A 10 FOOT EASEMENT PARCEL FOR AN AERIAL FIBER OPTIC CABLE OVER THAT
PORTION OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF
SECTION 7, TOWNSHIP 21 NORTH, RANGE 5 EAST, W.M., KING COUNTY,
WASHINGTON, BEING 5 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED
CENTERLINE:
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 7, THENCE SOUTH
28055'48" WEST A DISTANCE OF 1403.69 FEET TO CITY OF AUBURN MONUMENT
COA 510-024, AN ENCASED BRASS DISK WITH PUNCH, BEING THE NORTHEAST
CORNER OF THE SOUTH HALF OF THE WM. BRANNON DONATION LAND CLAIM
NO. 37;
THENCE NORTH 2010'04" EAST A DISTANCE OF 341.18 FEET TO PSE POLE NO.
312236-165872;
THENCE NORTH 24052'08" EAST A DISTANCE OF 24.57 FEET, MORE OR LESS, TO
THE LINE OF ORDINARY HIGH WATER OF THE GREEN RIVER (SOUTH BANK) AND
THE TRUE POINT OF BEGINNING OF THIS CENTERLINE DESCRIPTION;
THENCE CONTINUING NORTH 24052'08" EAST A DISTANCE OF 110.68 FEET, MORE
OR LESS, TO THE LINE OF ORDINARY HIGH WATER OF THE GREEN RIVER (NORTH
BANK) AND THE TERMINUS OF THIS CENTERLINE DESCRIPTION, AND FROM SAID
TERMINUS SAID NORTHEAST CORNER OF SAID SECTION 7 BEARS NORTH 38032'16"
EAST, 977.86 FEET DISTANT.
THE SIDE LINES OF SAID 10 FOOT EASEMENT PARCEL SHALL BE LENGTHENED OR
SHORTENED TO CONFORM TO THE LINE OF ORDINARY HIGH WATER OF THE
GREEN RIVER.
CONTAINS 1,107 SQUARE FEET (0.02 ACRES), MORE OR LESS
Square footage of each of these Use classifications:
Water -dependent
Nonwater-dependent 1,107
Public Access
Total square feet 1,107
Aquatic Lands Easement (Rev. 12/17) Page 26 of 28 Easement No. 51-095976
EXHIBIT B
1. DESCRIPTION OF PERMITTED USE
A. Existing Facilities.
An aerial electrical utility crossing (unauthorized).
B. Proposed Work. Grantee has submitted to State plans and specifications for the
Proposed Work shown in Attachment 1 to this Exhibit B (Proposed Work), which is
not incorporated in this Easement. State grants its consent to the Proposed Work as
provided under Paragraph 7.3 of the Easement. Grantee shall conform the Proposed
Work to all requirements of this Easement, including Section 7 and the additional
obligations of this Exhibit B.
C. Permits. Grantee has secured the following permits for the Proposed Work:
The City of Auburn Shoreline Conditional Use Permit, SHL 17-0003, 11/30/2017
The City of Auburn Floodplain Development Permit, FDP 17-0010
2. ADDITIONAL OBLIGATIONS
None.
Master Approved as to form this
1st day of June 2017
Jennifer Clements, Assistant Attorney General
Aquatic Lands Easement (Rev. 12/17) Page 27 of 28 Easement No. 51-095976
Attachment 1
Proposed Work
From the existing utility poles on either side of the Green River, the fiber optic line will be
strung approximately 14 feet above the mapped FEMA base flood elevation (20 feet above the
surveyed ordinary high-water mark). Methods to install the fiber optic line across the Green
River will not require any in -water work. The fiber optic line will temporarily utilize the existing
CATV utility line to get the proposed fiber optic line across the river. The fiber optic line will be
temporarily attached to the existing CATV line with an internal messenger subduct attached to a
roller. A pull rope will be utilized to walk the roller and proposed fiber optic line across the river
while attached to the CATV line. The pull rope will be walked across the footbridge adjacent to
the utility crossing while keeping tension on the southwest side to keep the messenger subduct
and proposed fiber optic line well above the water. It will then be permanently attached to the
existing utility pole located east / northeast of the Green River. (Milne Technologies Division,
2017).
' Excerpt from "Auburn Golf Course Fiber Optic Extension', Fiber Optic Alignment & Installation
Description — Reach Section 3. Milne Electric Technologies Division, April 21, 2017.
Aquatic Lands Easement (Rev. 12/17) Page 28 of 28 Easement No. 51-095976
DEPARTMENT OF
NATURAL RESOURCES
OFFICE OF THE COMMISSIONER
OF PUBLIC LANDS
1111 WASHINGTON Sr SE
MS 47C01
OLYMPIA, WA 98504-7031
360-902-1000
WWW.DNR.WA.GOV
March 21, 2018
MEMORANDUM
TO: Megan Duffy, Department Supervisor
J,�"
FROM: Kristin Swenddal, Acting Deputy Supervisor for Aquatics, Geology & IT `�'
SUBJECT: Delegation of Authority
During my absence on March 23-30, 2018, I hereby delegate the authority reserved to the Acting
Deputy Supervisor for Aquatics, Geology & IT, as set forth in the Delegation Order, dated
:March 28, 2017, to Michal Rechner, Acting DM for Aquatic Resources.
This delegation excludes appointing authority and discipline or termination decisions, which are
referred to you during this period.
Executive Management Division
Division Managers
Region Managers