HomeMy WebLinkAboutContract CAG-16-084
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WASHINGTON STATE DEPARTMENT OF
Natural Resources
Peter Goldmark•Commissioner of Public Lands
AQUATIC LANDS RIGHT OF ENTRY
Right of Entry No. 23-091558
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources("State"), and the CITY OF RENTON Government
Agency/Entity("Licensee").
THE Parties agree as follows:
SECTION 1 GRANT OF PERMISSION
1.1 Permission. Subject to the terms and conditions set forth below, State grants Licensee a
revocable,nonexclusive license to enter upon the real property described in Exhibit A(the
"Property"). In this agreement,the term"Right of Entry" means this agreement and the rights
granted.
1.2 Other Interests and Rights. This Right of Entry 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. L,icensee is responsible for obtaining approvals from other
persons, if any,who have an interest in the Property. This Right of Entry is subject to the rights
of the public under the Public Trust Doctrine or federal navigation servitude and treaty rights of
Indian Tribes.
SECTION 2 USE
2.1 Authorized Activities. Licensee shall enter the Property only for the purpose of
conducting the activities described in Exhibit B (the"Activities") and for no other purpose.
Licensee shall not conduct any other activities on the Property without the prior written
permission of State.
2.2 Restrictions on Activities.
(a) The limitations in this Paragraph 2.2 apply to the Property and adjacent state-
owned aquatic land. Licensee's compliance with this Paragraph 2.2 does not limit
Licensee's liability under any other provision of this License.
(b) Licensee shall not cause or permit:
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(1) Damage to natural resources,
(2) Waste,or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill,rock,earth, ballast, wood waste, refuse, garbage,
waste matter,pollutants of any type, or other matter.
(c) State may take any steps reasonably necessary to remedy any failure of Licensee
to comply with the restrictions on activities under this Subsection 2.2. Upon
demand by State, Licensee shall pay all remedial costs and natural resources
damages.
2.3 Conformance with Laws. Licensee shall keep current and comply with all conditions
and terms of any permits, licenses, certificates, regulations,ordinances, statutes, and other
government rutes and regulations regarding its activities on the Property.
2.4 Interference with Other Uses.
(a) Licensee shall exercise Licensee's right of entry under this Right of Entry 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 Property or sunounding lands and
water.
(b) Licensee and its agents, contractors, and subcontractors shall provide State with at
least two (2)weeks' notice before commencing any Activities. Licensee shall
promptly notify State of any modifications in the schedule.
SECTION 3 TERM
3.1 Term Defned. This right of entry is effective on the lst day of June, 2016 ("Effective
Date"), and terminates on the 31 st day of May,2018 ("Termination Date"), unless terminated
sooner under the terms of this Right of Entry.
3.2 End of Term. Upon termination of this Right of Entry and except as otherwise provided
in Exhibit B, Licensee shall restore the Property to a condition substantially like its natural state
before Licensee's Activities.
SECTION 4 CONSIDERATION
The consideration is a fee in the amount of One Thousand Five Hundred Dollars($1,500}, which
is due and payable on or before the Effective Date.
SECTION 5 ENVIRONMENTAL LIABILITY
5.1 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,
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regulation,or other law retating to human health, environmental protection,
contamination,pollution, or cleanup, including oil and petroleum products.
(b) "Release or threatened release of Hazardous Substance"means a release or
threatened release as defined under any Hazardous Substance law.
5.2 General Conditions. Licensee shall exercise the utmost care with respect to Hazardous
Substances, including the foreseeable acts or omissions of third parties affecting Hazardous
Substances, consistent with the standard of care applicable under the Model Toxics Control Act,
RCW 70.1O5D.040.
5.3 Use of Hazardous Substances.
(a) Licensee, its contractors, agents, employees, guests, invitees,or affiliates shall not
use, store, generate,process, transport, handie, release, or dispose of Hazardous
Substances on the Property or adjacent state-owned aquatic lands,except in
accordance with all applicable laws.
(b) Licensee shall not undertake, or allow others to undertake by Licensee's
permission, acquiescence, or failure to act, activities on the Property or adjacent
state-owned aquatic lands that:
(1) Result in a release or threatened release of Hazardous Substances,or
(2) Cause, contribute to,or exacerbate any contamination exceeding
regulatory cleanup standards whether the regulatory authority requires
cleanup before, during, or after Licensee's activities on the Property.
5.4 In the Event of a Release or Threatened Release.
(a) Licensee shall immediately notify State if the Licensee becomes aware of any
release or threatened release of Hazardous Substance on the Property.
(b) If a Licensee's act or omission results in a release of Hazardous Substances,
Licensee, at its sole expense, shall promptly take all actions necessary or
advisable to clean up, contain, and remove the Hazardous Substances in
accordance with applicable laws.
SECTION 6 ASSIGNMENT
Licensee shall not assign this Right of Entry.
SECTION 7 INDEMNITY AND INSURANCE
7.1 Indemnity.
(a) Licensee shall indemnify,defend, and hold State, its employees,officers, and
agents harmless fronn any Claims arising out of the Activities or related activities
by Licensee,its contractors, agents, invitees, guests, employees or affiliates.
(b) "Claim"as used in this Subsection 7.1 means any financial loss,claim, suit,
action, damages, expenses, fees(including attorneys' fees),penalties,or
judgments attributable to bodily injury, sickness, disease,death, and damages to
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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 Property, including damage resulting from Hazardous
Substances,and damages resulting from loss of use of the Property.
(c) State shall not require Licensee to indemnify, defend, and hold State harmless for
claims that arise solely out of the willful or negligent act of State or State's
elected officials, employees, or agents.
(d) Licensee waives its immunity under Title 51 RCW to the extent it is required to
indemnify,defend, and hold State and its agencies, officials, agents, or employees
harmless.
7.2 Insurance Terms.
(a) Insurance Required.
(1) Licensee certifies that it is self-insured 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 Subsection 7.2 and by
Subsection 7.3, Insurance Types and Limits. Licensee shall provide to
State evidence of its status as a self-insured entity. Upon request by State,
Licensee shall provide a written description of its financial condition
and/or the self-insured funding mechanism. Licensee shall provide State
with at least thirty(30)days' written notice prior to any material changes
to Licensee's self-insured funding mechanism.
(2) Unless State agrees to an exception, Licensee 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. Licensee 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 liability insurance po(icies must
name the State of Washington, the Department of Natural Resources, its
elected and appointed officials, agents, and employees as an additional
insured.
(4) All insurance provided in compliance with this Right of Entry must be
primary as to any other insurance or self-insurance programs afforded to
or maintained by State.
(b) Waiver. ,
(1) Licensee waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Right of Entry covers these
damages.
(2) Except as prohibited by law, Licensee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this Right of Entry.
(c) Proof of Insurance. �
Aquatic Lands Right of Entry Page 4 of 11 Right of Entry No.23-091558 �,
(1) Licensee shall provide State with a certificate(s)of insurance executed by
a duly authorized representative of each insurer, showing compliance with
insurance requirements specified in this Right of Entry and, if requested,
copies of policies to State.
(2) The certificate(s)of insurance must reference additional insureds and the
Right of Entry number.
(3) Receipt of such certificates 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 Right of Entry, 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 thirty(30) 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} Licensee shall secure new or modified insurance coverage within thirty
(30)days after State requires changes in the limits of liability.
(fl General Terms.
(1) State does not represent that coverage and limits required under this Right
of Entry are adequate to protect Licensee.
(2) Coverage and limits do not limit Licensee's liability for indemnification
and reimbursements granted to State under this Right of Entry.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to pcoperty first to restore the real property covered by this
Right of Entry,then to pay the cost of the reconstruction, then to pay the
State any sums in arrears, and then to Licensee.
7.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Licensee 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 Property and/or arising out of
Licensee's use,occupation,or control of the Property 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. I
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(2) CGL insurance must be written on Insurance Services Office(ISO)
Occurrence Form CG 00 O1 (or a substitute form providing equivalent
coverage). All insurance must cover liabiIity 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) Licensee shall comply with all State of Washington workers'
compensation statutes and regulations. Licensee shall provide
workers' compensation coverage for all employees of Licensee.
Coverage must include bodily injury(including death)by accident
or disease,which arises out of or in connection with Licensee's
use, occupation, and control of the Property.
(ii) If Licensee 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, Licensee shall indemnify State. Indemnity shall
include all fines;payment of benefits to Licensee, employees,or
their heirs or legal representatives; and the cost of effecting
coverage on behalf of such employees.
(2) Longshore and Harbor Worker's Act. The Longshore and Harbor
Worker's Compensation Act(33 U.S.C. Section 901 et seq.)may require
Licensee to provide insurance coverage for longshore and harbor workers
other than seaman. Licensee shail ascertain if such insurance is required
and, if required, shall maintain insurance in compliance with this Act.
Licensee is responsible for all civil and criminal liability arising from
failure to maintain such coverage. I
(3) Jones Act. The Jones Act(46 U.S.C. Section 688)may require Licensee '
to provide insurance coverage for seamen injured during employment ,
resulting from negligence of the owner,master, or fellow crew members. �
Licensee shall ascertain if such insurance is required and,if required, shall !�
maintain insurance in compliance with this Act. Licensee is responsible
for all civil and criminal liability arising from failure to maintain such
coverage.
(c) Employer's Liability Insurance. Licensee shall procure employer's liability
insurance, and, if necessary,commercial umbrella liability insurance with limits
not less than One Million Dollars($1,000,000)each accident for bodily injury by
accident oz One Million Dollars($I,000,000)each emptoyee for bodily injury by
disease.
Aquatic Lands Right of Entry Page 6 of 11 Right of Entry No.23-091558
SECTION 8 TERMINATION
8.1 Termination by Revocation. State may terminate this Right of Entry at any time upon
thirty(30)days' notice to the Licensee.
8.2 Termination by Completion of Activities. If Licensee completes Activities prior to the
Termination Date,this Right of Entry terminates upon Licensee's completion of all Activities,
including restoration of the Property under Subsection 3.2.
SECTION 9 NOTICE
Following are the locations for delivery of notice and the Contact Person. Any Party may change
the location of notice and/or the Contact Person upon reasonable notice to the other.
State: DEPARTMENT OF NATURAL RESOURCES
Shoreline District Aquatics
950 Farman Avenue North
Enumclaw, WA 98022-9282
Contact: Vivian Roach,Aquatic Land Manager
Phone:253-341-7564
Fax: 360-825-1672
Email: vivian.roach(�a,dnr.wa. o�v
Licensee: CTTY OF RENTON
1055 South Grady Way
Renton, WA 98507-3232
Contacts: Hebe C. Bemardo,Civil Engineer III Ronald Straka,P.E.
Phone: 425-430-7264 Phone: 425-430-7248
Fax: 425-430-7241 Fax: 425-430-7241
Email: hbernardona,rentonwa.gov Email: rstraka(�a,,rentonwa.�ov
SECTION 10 MISCELLANEOUS '
10.1 Headings. The headings used in this Right of Entry are for convenience only and in no I�,
way define, limit,or extend the scope of this Right of Entry or the intent of any provision. �,
10.2 Invalidity. The invalidity,voidness,or illegality of any provision of this Right of Entry
does not affect, impair,or invalidate any other provision of this Right of Entry.
10.3 Applicable Law and Venue. This Right of Entry 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
Aquatic Lands Right of Entry Page 7 of 11 Right of Entry No.23-041558
out of or in connection with this Right of Entry is in the Superior Court for Thurston County,
Washington.
10.4 Modification. No modification of this Right of Entry is effective unless in writing and
signed by the Parties. Oral representations or statements do not bind either Party.
10.5 Survival. Any obligations of Licensee not fully performed upon termination of this
Right of Entry do not cease, bvt continue as obligations of the Licensee until fully performed.
10.6 Exhibits. All referenced exhibits are incorporated in this Right of Entry 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 F RENTON
Dated: , 201� C
By: r�v
Title: Public Works Administrator
Address: 1055 S Grady Way
Renton,WA 98057-3232 �
STATE OF WASHINGTON
DEPARTMENT OF NATU L RESOURCES
/ r-,
Dated: � �:�-� ✓� ,20 l.6
By: KRISTIN SWENDDAL
Title: Aquatic Resources Division Manager
Address: Shoreline District Aquatics
950 Farman Avenue North
Enumclaw,WA 98022-9282
Approved as to form this
1 day of November 2010
Janis Snoey,Assistant Attorney General
Aquatic Lands Right of Entry Page 8 of 11 Right of Entry No.23-091558
EXHIBIT A
The"Property"
AGREEMENT NUMBER: Aquatic Lands Right of Entry No. 23-091558
PROPERTY DESCRIPTION: A portion of Commercial Waterway No. 2 between Lots"A"
and"B"of the Third Supplemental Map of Lake Washington Shorelands in Section 7,Township
23 North,Range 5 East, W.M.
Lake Washingtor�
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Aquatic Lands Right of Entry Page 9 of 11 Right of Entry No.23-091558
EXHIBIT B
The"Activities"
1. DESCRIPTION OF ACTIVITIES
A. Existing Conditions.
The US Army Corps of Engineers(USACE) Lower Cedar River Section 205
Project is a Flood Hazard Reduction Project located in and along the lower 1.23
miles of the Cedar River in Renton, Washington. The project consists of an
actively maintained(dredged) river channel, and system of levees and floodwalls
that provide protection to the lower river and its extensive industrial and
commercial development including the Renton Municipal Airport and the Boeing
Company 737 production facility. Following the most recent dredging operation,
performed in 1998 by USACE,the river bed has continued to fill with native river
sediment composed primarily of gravel, as expected and identified as part of the
Ioriginal 1998 project permitting and design.
Vegetation below the OHWM is generally limited to riverine wetland areas at the
channel margin,which are dominated by reed canary grass with some yellow flag
iris. Both sides of the river within the project reach have flood control
appurtenances consisting of levees, floodwatls and bank armoring. Riverbed
sediment consists primarily of cobbles, gravels and a small fraction of fines(sand
and silt).
B. Proposed Conditions.
Maintenance dredging will be performed to maintain the project flood protection
benefits as required in the Project Cooperative Agreement(PCA) Operation&
Maintenance Manual between the City of Renton and the U.S.Army Corp of
Engineers (USACE 2004).
Within in project area the Cedar River will be excavated to a depth of
approximately four feet, on average,below the"Allowable Average Channel Bed
Profile"as defined in the PCA. The dredge depth will strictly adhere to the
average depth of four feet(below allowable average channel bed profile)with a
one foot over-dredge allowance. The estimated volume of dredged material for
the entire project reach(1.23 river miles) is 125,000 cubic yards. Estimated
dredge volume from the Property is 1,000 cubic yards.
Dredging work will be conducted utilizing a combination of land-based
(excavator method) and water-based(floating dredge method)mechanical
dredging equipment. Equipment used for dredging or on/near water work will be
checked regularly to ensure no fluids are leaking. Best Management Practices
will be employed to prevent construction stormwater from the uplands into the
river. Work windows(June 15 through August 31)will be enforced.
Aquatic Lands Right of Entry Page 10 of 11 Right of Entry No.23-091558
LICENSEE HAS SECURED THE FOLLOWING PERMITS:
, � 1
US Army Corps of Engineers Clean Water Act Section 404& OS/20/2016
Rivers and Harbor Act Section 10
NWS-2013-0804
Section 401 Water Quality
WA State Dept. of Ecology Certification Order#11634& 08/08/2015
CZMP Cectificate
WA State Dept. of Fish& HPA 2016-4-174+01 03/23/2016
Wildlife
Dredge Material Management Suitability Determination 12/04/2014
Program Memorandum for Open-water
Placement at Elliot Bay Disposal
Site or In-water Beneficial Use
City of Renton Shoreline Substantial OS/15/2015
Development Exemption, Project
Number LUA15-000185
SEPA The City of Renton determined the OS/04/2015
existing SEPA/NEPA E1S issued
under LUA97-192, Cedar River
Section 205 Flood Damage
Reduction Project, meets the
agency's responsibilities under
SEPA to cover the Cedar River
Maintenance Dredge, LUA 15-
000185, as the proposal has
minimal changes and complies
with WAC 197-11-600(3).
State grants its consent to this Work,except that Licensee shall conform all Work
to all other requirements of Section 5 of this License.
2. ADDITIONAL OBLIGATIONS. None.
Aquatic Lands Right of Entry Page 11 of 11 Right of Entry No.23-091558