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STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS EASEMENT
TABLE OF CONTENTS
SECTION PAGE
1. GRANT AND LOCATION OF EASEMENT...............................................................1
1.1 Easement Property .................................................................1
1.2 Construction and Access ..........................................................1
1.3 Right of Third Parties..............................................................l
1.4 Surveys, Maps, and Plans.........................................................1
2. PURPOSE OF EASEMENT...........................................................................................2
3. TERM .............................................................................................................................2
3.1 Term. ................................................................................2
4. USE FEE......................................................................................................................2
4.1 Fee ....................................................................................2
4.2 Late Charges and Interest.........................................................2
4.3 Non-Waiver .........................................................................2
5. NOTIFICATION OF ACTIVITIES ........................................................................3
6. MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS.....3
6.1 Grantee's Activities ................................................................3
6.2 Restrictions on Use.................................................................3
7. INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY..............3
8. COMPLIANCE WITH LAWS................................................................................3
Form Date:06/1998 i Agreement No. 51-074605
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9. ENVIRONMENTAL LIABILITY/RISK ALLOCATION.....................................4
9.1 Definition. ...........................................................................4
9.2 Use of Hazardous Substances. ...................................................4
9.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate ......4
9.4 Notification and Reporting........................................................5
9.5 Indemnification .....................................................................6
9.6 Cleanup...............................................................................7
9.7 Sampling by State, Reimbursement, and Split Samples .....................7
9.8 Reservation of Rights ..............................................................8
10. PRESERVATION OF SURVEY CORNERS.........................................................8
11. TERMINATION OF EASEMENT.........................................................................8
12. OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND EQUIPMENT...9
12.1 Existing Improvements ............................................................9
12.2 Grantee-Owned Improvements...................................................9
12.3 Construction.........................................................................9
12.4 Performance Bond..................................................................9
12.5 As Built Survey. .................................................................. 10
12.6 Removal............................................................................ 10
12.7 Unauthorized Improvements.................................................... 10
13. 1NDEMNITY.........................................................................................................10
14. FINANCIAL SECURITY AND INSURANCE....................................................11
14.1 Financial Security. ............................................................... 11
14.2 Insurance........................................................................... 11
14.3 State's Acquisition of Insurance. .............................................. 13
14.4 Self Insurance ..................................................................... 14
15. TAXES AND ASSESSMENTS............................................................................14
16. ADVANCE BY STATE........................................................................................14
17. NOTICE.................................................................................................................14
18. ASSIGNMENT......................................................................................................15
19. SUCCESSORS AND ASSIGNS...........................................................................15
20. TIME IS OF THE ESSENCE................................................................................15
21. RECORDATION...................................................................................................15
22. APPLICABLE LAW AND VENUE.....................................................................15
23. MODIFICATION ..................................................................................................15
24. SURVIVAL ...........................................................................................................16
25. INVALIDITY........................................................................................................16
EXHIBIT A: LEGAL DESCRIPTION AND SURVEY
EXHIBIT B: PLAN OF OPERATIONS AND MAINTENANCE
Form Date:06/1998 ii Agreement No. 51-074605
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS EASEMENT
AQUATIC LANDS EASEMENT NO 51-074605
THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources ("State"), and the CITY OF RENTON, a government
agency/entity ("Grantee").
Whereas, the State recognizes the Project Cooperation Agreement between the Department of
the Army and the Grantee dated May 9, 1998 and recognizes that the Department of the Army
can apply for an assignment of this easement per Section 18 of this Easement, if needed due to a
breach by the Grantee.
SECTION 1 GRANT AND LOCATION OF EASEMENT
1.1 Easement Property. State grants and conveys to Grantee a nonexclusive easement for a
term of years (the "Easement") over, upon, and under the property described in Exhibit A (the
"Easement Property").
1.2 Construction and Access. State grants to Grantee a nonexclusive easement, for
construction purposes only, over the property described in Exhibit B, which includes the
Easement Property and such additional property as is reasonably necessary for construction on
the Easement Property. This construction easement shall terminate upon completion of
construction by Grantee. To the extent it can do so without violating any other contract or lease,
State hereby also grants a nonexclusive easement on State-owned land and water on either side
of the Easement Property, if any exists, for ingress and egress to gain access to the Easement
Property and to construct improvements on and maintain and repair the Easement Property.
1.3 Right of Third Parties. This Easement is subject to all valid interests of third parties
noted in the records of King County, or on file in the office of the Commissioner of Public
Lands, Olympia, Washington; rights of the public under the Public Trust Doctrine or the federal
navigation servitude; and treaty rights of Indian Tribes. Not included in this Easement are any
right to harvest, collect or damage any natural resource, including aquatic life or living plants,
any water rights, or any mineral rights, including any right to excavate or withdraw sand, gravel
or other valuable materials State makes no representations regarding access to the Easement
Property.
1.4 Surveys,Maps, and Plans. In executing this Easement, State is relying upon the
surveys,plats, diagrams, and/or legal descriptions provided by Grantee. Grantee is not relying
upon and State is not making any representations about any surveys, plats, diagrams, and/or legal
descriptions provided by State.
Form Date:06/1998 1 of 18 Agreement No.51-074605
SECTION 2 PURPOSE OF EASEMENT
This Easement is granted for the purpose of and is limited to constructing, installing, operating,
maintaining, repairing, replacing, and using an inlet and outlet for a spawning and rearing
channel ("Permitted Use").
SECTION 3 TERM
3.1 Term. The term of this Easement is Ninety (90) years, beginning on the 1 st day of
March, 2004 (the "Commencement Date"), and ending on the 29th day of February, 2094 (the
"Termination Date"), unless terminated sooner under the terms of this Easement.
3.2 Renewal of the Easement. Grantee shall have the option to renew this Easement at the
end of Initial Term for an additional term to be agreed at the time of renewal. Grantee shall
notify the State of its desire to renew by providing written notice at least ninety(90)days prior to
the Termination Date of the Initial Term of this Easement. Grantee shall not be entitled to renew
if it is in default under the terms of this Easement at the time the option to renew is exercised and
fails to cure the default in accordance with the provisions of Section 11. The terms and
conditions of any renewal term shall be the same as set forth in this Easement, except that the
Use Fee may be recalculated in accordance with the provisions of Subsection 4.1, and provisions
dealing with hazardous waste, natural resource impacts, insurance, and financial security, may be
changed at the time of each renewal.
SECTION 4 USE FEE
4.1 Fee. Grantee shall pay a single use fee in the amount of Four Hundred Eighty Six
Dollars ($486.00), which shall be due and payable in full on or before the Commencement Date.
Nothing in this subsection shall preclude State's ability to charge Grantee a fee for any impacts to
natural resources on or adjacent to the Easement Property that are directly or indirectly
associated with the Permitted Use or Grantee's use or occupation of the Easement Property.
4.2 Late Charges and Interest. If any use fee is not received by State within ten(10) days
of the date due, Grantee shall pay to State a late charge equal to four percent(4%) of the amount
of the payment or Fifty Dollars ($50), whichever is greater,to defray the overhead expenses of
State as a result of the delay. If any use fee is not paid within thirty (30) days of the date due,
then Grantee shall, in addition to paying the late charges established above, pay interest on the
amount outstanding at the rate of one percent (1%) per month until paid.
4.3 Non-Waiver. State's acceptance of a use fee shall not be construed to be a waiver of any
preceding or existing breach other than the failure to pay the particular use fee that was accepted.
SECTION 5 NOTIFICATION OF ACTIVITIES
Except in the case of an emergency, Grantee shall provide State with written notice of any
construction or other significant activity on the Easement Property at least thirty(30) days in
Form Date:06/1998 2 of 18 Agreement No. 51-074605
advance. In cases of emergency, Grantee shall notify State of such activity no later than five (5)
days after such activity commences. "Significant activity"means any activity that might affect
State's or public's use or enjoyment of Easement Property and any surrounding state-owned
aquatic lands or the waters.
SECTION 6 MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS
6.1 Grantee's Activities. Grantee shall promptly repair, at its sole cost, all damages to any
improvements on the Easement Property, to the Easement Property, or to any natural resources,
except to the extent such damage is expressly permitted in Exhibit B, which are caused by
Grantee's activities. All work performed by Grantee shall be completed in a careful and worker
like manner to State's satisfaction, free of any claims or liens. Upon completion of any work
performed by Grantee, Grantee shall remove all debris and restore the Easement Property, as
nearly as possible, to the condition it was in prior to commencement of the work.
6.2 Restrictions on Use. Grantee shall not cause or permit any damage to natural resources
on the Easement Property, except to the extent such damage is expressly permitted in Exhibit B.
Grantee shall also not cause or permit any filling activity to occur on the Easement Property.
This prohibition includes any deposit of rock, earth, ballast, refuse, garbage, waste matter
(including chemical, biological or toxic wastes), hydrocarbons, any other pollutants, or other
matter in or on the Easement Property, except as approved in writing by State. Grantee shall
neither commit nor allow waste to be committed to or on the Easement Property. If Grantee fails
to comply with all or any of the restrictions in use set out in this Subsection 6.2, State may take
any steps reasonably necessary to remedy such failure. Upon demand by State, Grantee shall
pay all costs of such remedial action, including, but not limited to,the costs of removing and
disposing of any material deposited improperly on the Easement Property. This section shall not
in any way limit Grantee's liability under Section 9, below.
SECTION 7 INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY
Grantee shall exercise its rights under this Easement so as to minimize and avoid, to the fullest
extent reasonably possible, interference with State's use of the Easement Property or with the
public's right to use Cedar River for purposes of recreation, navigation, or commerce including
rights under the Public Trust Doctrine. Any improvements constructed by Grantee on the
Easement Property shall be placed and constructed so as to allow,to the fullest extent reasonably
possible, unobstructed movement through the water column in the Easement Property.
SECTION 8 COMPLIANCE WITH LAWS
Grantee shall, at its own expense, conform to all applicable laws, regulations, permits, orders, or
requirements of any public authority affecting the Easement Property and the Permitted Use.
Upon request, Grantee shall supply State with copies of permits or orders.
Form Date:06/1998 3 of 18 Agreement No.51-074605
SECTION 9 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
9.1 Definition. "Hazardous Substance" means any substance which now or in the future
becomes regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection, contamination or
cleanup, including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. 9601 et seq., and Washington's
Model Toxics Control Act ("MTCA"), RCW 70.1 O5D.010 et seq.
9.2 Use of Hazardous Substances. Grantee covenants and agrees that Hazardous
Substances will not be used, stored, generated, processed, transported, handled, released, or
disposed of in, on, under, or above the Easement Property, except in accordance with all
applicable laws.
9.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate.
(a) With regard to any Hazardous Substances that may exist in, on, under, or above
the Easement Property, State disclaims any and all responsibility to conduct
investigations, to review any State records, documents or files, or to obtain or
supply any information to Grantee.
(b) Grantee shall exercise the utmost care with respect to both Hazardous Substances
in, on, under, or above the Easement Property as of the Commencement Date, and
any Hazardous Substances that come to be located in, on, under, or above the
Easement Property during the Term of this agreement, along with the foreseeable
acts or omissions of third parties affecting those Hazardous Substances, and the
foreseeable consequences of those acts or omissions. The obligation to exercise
utmost care under this Subsection 9.3 includes, but is not limited to, the following
requirements:
(1) Grantee shall not undertake activities that will cause, contribute to, or
exacerbate contamination of the Easement Property;
(2) Grantee shall not undertake activities that damage or interfere with the
operation of remedial or restoration activities on the Easement Property or
undertake activities that result in human or environmental exposure to
contaminated sediments on the Easement Property;
(3) Grantee shall not undertake any activities that result in the mechanical or
chemical disturbance of on-site habitat mitigation;
(4) If requested, Grantee shall allow reasonable access to the Easement
Property by employees and authorized agents of the Environmental
Protection Agency, the Washington State Department of Ecology, or other
similar environmental agencies; and
Form Date:06/1998 4 of 18 Agreement No. 51-074605
(5) If requested, Grantee shall allow reasonable access to potentially liable or
responsible parties who are the subject of an order or consent decree
which requires access to the Easement Property. Grantee's obligation to
provide access to potentially liable or responsible parties may be
conditioned upon the negotiation of an access agreement with such parties,
provided that such agreement shall not be unreasonably withheld.
(c) It shall be Grantee's obligation to gather sufficient information concerning the
Easement Property and the existence, scope, and location of any Hazardous
Substances on the Easement Property, or adjoining the Easement Property, that
allows Grantee to effectively meet its obligations under this Easement.
9.4 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 in, on, under, or
above the Easement Property, any adjoining property, or any other
property subject to use by Grantee in conjunction with its use of the
Easement Property;
(2) Any problem or liability related to, or derived from, the presence of any
Hazardous Substance in, on, under, or above the Easement Property, any
adjoining property, or any other property subject to use by Grantee in
conjunction with its use of the Easement Property;
(3) Any actual or alleged violation of any federal, state, or local
statute, ordinance, rule, regulation, or other law pertaining to Hazardous
Substances with respect to the Easement Property, any adjoining property,
or any other property subject to use by Grantee in conjunction with its use
of the Easement Property;
(4) Any lien or action with respect to any of the foregoing; or,
(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 shall, at State's request, provide State with copies of any and all reports,
studies or audits which pertain to environmental issues or concerns and to the
Easement Property, and which were prepared for Grantee and submitted to any
federal, state or local authorities pursuant to any federal, state or local permit,
license or law. These permits include, but are not limited to, any National
Form Date:06/1998 5 of 18 Agreement No. 51-074605
Pollution Discharge Elimination System Permit, any Army Corps of Engineers
permit, any state Hydraulics Project Approval, any state Water Quality
Certification, or any Local Shoreline permit.
9.5 Indemnification.
(a) Grantee shall fully indemnify, defend, and hold State harmless from and against
any and all claims, demands, damages, natural resource damages, response costs,
remedial costs, cleanup costs, losses, liens, liabilities,penalties, fines, lawsuits,
other proceedings, costs, and expenses (including attorneys' fees and
disbursements), that arise out of, or are in any way related to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Grantee, its subgrantees,
contractors, agents, employees, guests, invitees, or affiliates in, on, under,
or above the Easement Property, any adjoining property, or any other
property subject to use by Grantee in conjunction with its use of the
Easement Property, during the Term of this Easement or during any time
when Grantee occupies or occupied the Easement Property or any such
other property;
(2) The release or threatened release of any Hazardous Substance, or the
exacerbation of any Hazardous Substance contamination, in, on, under, or
above the Easement Property, any adjoining property, or any other
property subject to use by Grantee in conjunction with its use of the
Easement Property, which release,threatened release, or exacerbation
occurs or occurred during the Term of this Easement or during any time
when Grantee occupies or occupied the Easement Property or any such
other property and as a result of:
(i) Any act or omission of Grantee, its subgrantees, contractors,
agents, employees, guests, invitees, or affiliates; or,
(ii) Any foreseeable act or omission of a third party unless Grantee
exercised the utmost care with respect to the foreseeable acts or
omissions of the third party and the foreseeable consequences of
those acts or omissions.
(b) In addition to the indemnifications provided in Subsection 9.5(a), Grantee shall
fully indemnify State for any and all damages, liabilities, costs or expenses
(including attorneys' fees and disbursements)that arise out of or are in any way
related to Grantee's breach of the obligations of Subsection 9.3(b). This
obligation is not intended to duplicate the indemnity provided in Subsection 9.5(a)
and applies only to damages, liabilities, costs or expenses that are associated with
a breach of Subsection 9.3(b) and which are not characterized as a release,
threatened release, or exacerbation of Hazardous Substances.
Form Date:06/1998 6 of 18 Agreement No. 51-074605
9.6 Cleanup. If a release of Hazardous Substances occurs in, on, under, or above the
Easement Property or other State-owned property arising out of any action, inaction,or event
described or referred to in Subsection 9.5, above, Grantee shall, at its sole expense,promptly
take all actions necessary or advisable to clean up the Hazardous Substances. Cleanup actions
shall include, without limitation, removal, containment and remedial actions and shall be
performed in accordance with all applicable laws, rules, ordinances, and permits. Grantee's
obligation to undertake a cleanup of the Easement Property under this Subsection 9.6 shall be
limited to those instances where the Hazardous Substances exist in amounts that exceed the
threshold limits of any applicable regulatory cleanup standards. Grantee shall also be solely
responsible for all cleanup, administrative, and enforcement costs of governmental agencies,
including natural resource damage claims, arising out of any action, inaction, or event described
or referred to in Subsection 9.5, above. Grantee may undertake a cleanup pursuant to the
Washington State Department of Ecology's Voluntary Cleanup Program, provided that: (1) Any
cleanup plans shall be submitted to State (DNR) for review and comment at least thirty (30) days
prior to implementation (except in emergency situations), and (2) Grantee must not be in breach
of this Easement. Nothing in the operation of this provision shall be construed as an agreement
by State that the voluntary cleanup complies with any laws or with the provisions of this
Easement.
9.7 Sampling by State, Reimbursement, and Split Samples.
(a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of
the Easement Property at any time to determine the existence, scope, or effects of
Hazardous Substances on the Easement Property, any adjoining property, any
other property subject to use by Grantee in conjunction with its use of the
Easement Property, or any natural resources. If such Tests, along with any other
information, demonstrates the existence, release or threatened release of
Hazardous Substances arising out of any action, inaction, or event described or
referred to in Subsection 9.5, above, Grantee shall promptly reimburse State for
all costs associated with such Tests.
(b) State's ability to seek reimbursement for any Tests under this Subsection shall be
conditioned upon State providing Grantee written notice of its intent to conduct
any Tests at least thirty (30) calendar days prior to undertaking such Tests, unless
such Tests are performed in response to an emergency situation in which case
State shall only be required to give such notice as is reasonably practical.
(c) Grantee shall be entitled to obtain split samples of any Test samples obtained by
State, but only if Grantee provides State with written notice requesting such
samples within twenty (20) calendar days of the date Grantee is deemed to have
received notice of State's intent to conduct any non-emergency Tests. The
additional cost, if any, of split samples shall be borne solely by Grantee. Any
additional costs State incurs by virtue of Grantee's split sampling shall be
reimbursed to State within thirty (30) calendar days after a bill with
documentation for such costs is sent to Grantee.
Form Date:06/1998 7 of 18 Agreement No.51-074605
(d) Within thirty(30) calendar days of a written request (unless otherwise required
pursuant to Subsection 9.4(b), above), either party to this Easement shall provide
the other party with validated final data, quality assurance/quality control
information, and chain of custody information, associated with any Tests of the
Easement Property performed by, or on behalf of, State or Grantee. There is no
obligation to provide any analytical summaries or expert opinion work product.
9.8 Reservation of Rights. The parties have agreed to allocate certain environmental risks,
liabilities, and responsibilities by the terms of Section 9. With respect to those environmental
liabilities covered by the indemnification provisions of Subsection 9.5, that subsection shall
exclusively govern the allocation of those liabilities. With respect to any environmental risks,
liabilities, or responsibilities not covered by Subsection 9.5, the parties expressly reserve and do
not waive or relinquish any rights, claims, immunities, causes of action or defenses relating to
the presence, release, or threatened release of Hazardous Substances in, on, under, or above the
Easement Property, any adjoining property or any other property subject to use by Grantee in
conjunction with its use of the Easement Property that either party may have against the other
under federal, state or local laws, including but not limited to, CERCLA, MTCA, and the
common law. No right, claim, immunity, or defense either party may have against third parties
is affected by this Easement and the parties expressly reserve all such rights, claims, immunities,
and defenses. The allocations of risks, liabilities, and responsibilities set forth above do not
release either party from, or affect either party's liability for, claims or actions by federal, state,
or local regulatory agencies concerning Hazardous Substances.
SECTION 10 PRESERVATION OF SURVEY CORNERS
Grantee shall exercise the utmost care to ensure that all legal land subdivision survey corners and
witness objects are preserved. If any survey corners or witness objects are destroyed or
disturbed, Grantee shall reestablish them by a registered professional engineer or licensed land
surveyor in accordance with US General Land Office standards, at Grantee's own expense.
Corners and/or witness objects that must necessarily be disturbed or destroyed in the process of
construction of improvements must be adequately referenced and/or replaced in accordance with
all applicable laws and regulations in force at the time, including, but not limited to,
Chapter 58.24 RCW. The references must be approved by State prior to removal of the survey
corners and/or witness objects.
SECTION 11 TERMINATION OF EASEMENT
This Easement shall terminate if Grantee receives notice from State that Grantee is in breach of
this Easement and Grantee fails to cure that breach within one hundred twenty (120) days of
State's notice. If the breach is not reasonably capable of being cured within the one hundred
twenty(120) days, Grantee shall commence the cure within the one hundred twenty(120) day
period and continue the cure with diligence until completion. In addition to terminating this
Easement, State shall have any other remedy available to it. State's failure to exercise its right to
terminate at any time shall not waive State's right to terminate for any future breach. If Grantee
ceases to use the Easement Property for the purposes set forth in this Easement for a period of
Form Date:06/1998 8 of 18 Agreement No. S1-074605
five (5) successive years, this Easement shall terminate without further action by State and
Grantee's rights shall revert to State. This Easement may also terminate if Grantee provides
State with one hundred twenty (120) days written notice of its intent to terminate the Easement,
in a form satisfactory to State.
The United States has entered into a Project Cooperation Agreement with Grantee for a flood
control project which includes this easement as lands required for the project. Prior to
termination under this paragraph for the breach of a condition of this Easement, the State will
provide similar advance notice to the United States as that which must be provided to the
Grantee. Termination shall not occur if within that notice period the United States provides
notice to the State in writing of its intent to cure the breach and curative action is initiated within
a reasonable period of time thereafter.
SECTION 12 OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND
EQUIPMENT
12.1 Existing Improvements. On the Commencement Date, the following improvements are
located on the Easement Property: ("Existing Improvements"); none. The improvements are not
owned by the State.
12.2 Grantee-Owned Improvements. So long as this Easement remains in effect, Grantee
shall retain ownership of all improvements and trade fixtures it may place on the Easement
Property (collectively "Grantee-Owned Improvements"). Grantee-Owned Improvements shall
not include any construction, reconstruction, alteration, or addition to any Unauthorized
Improvements as defined in Subsection 12.7 below.
12.3 Construction. No Grantee-Owned Improvements shall be placed on the Easement
Property without State's prior written consent. State's consent has been granted for the initial
construction of any improvements identified in the Plan of Operations (Exhibit B). Prior to any
construction, alteration, replacement, removal or major repair of any improvements (whether
State-Owned or Grantee-Owned), Grantee shall submit to State plans and specifications which
describe the proposed activity. Except in the case of emergency repairs, such work shall not
commence until State has approved those plans and specifications. State shall have sixty(60)
days in which to review the proposed plans and specifications. The plans and specifications shall
be deemed approved unless State notifies Grantee otherwise within the sixty (60) days. In the
case of emergency repairs, Grantee shall notify State within five (5) business days of the start of
such repairs and shall provide State with the proposed plans and specifications for the repairs if
requested.
12.4 Performance Bond. Except in the case of emergency repairs, no construction
work of any kind shall commence until Grantee has obtained a performance and payment bond
in an amount equal to 125% of the estimated cost of construction. State may require Grantee to
obtain a performance and payment bond for emergency repair work that has been initiated. The
performance and payment bond shall be maintained until the costs of construction, including all
laborers and material persons, have been paid in full.
Form Date:06/1998 9 of 18 Agreement No. 51-074605
12.5 As Built Survey. Upon completion of construction, Grantee shall promptly provide State
with as-built plans and specifications. In those cases where new improvements are approved, or
where the location of any improvements is changed, Grantee may be required to provide an as-
built survey of the Easement Property.
12.6 Removal. Grantee-Owned Improvements shall be removed by Grantee by the
Termination Date unless State notifies Grantee that the Grantee-Owned Improvements may
remain. If State elects for the Grantee-Owned Improvements to remain on the Easement
Property after the Termination Date, they shall become the property of State without payment by
State. To the extent that Grantee-Owned Improvements include items of personal property
which may be removed from the premises without harming the Easement Property, or
diminishing the value of the Easement Property or the improvements, State asserts no ownership
interest in these improvements unless the parties agree otherwise in writing upon termination of
this Easement. Any Grantee-Owned Improvements specifically identified as personal property
in Exhibit A or B shall be treated in accordance with this provision. Grantee shall notify State at
least one hundred eighty (180) days before the Termination Date if it intends to leave the
Grantee-Owned Improvements on the Easement Property. State shall then have ninety (90) days
in which to notify Grantee that it wishes to have the Grantee-Owned Improvements removed or
elects to have them remain. Failure to notify Grantee shall be deemed an election by State that
the Grantee-Owned Improvements will remain on the Easement Property. If the Grantee-Owned
Improvements remain on the Easement Property after the Termination Date without State's
actual or deemed consent, they still will become the property of the State but the State may
remove them and Grantee shall pay the costs of removal and disposal upon State's demand.
12.7 Unauthorized Improvements. Improvements made on the Easement Property without
State's prior written consent or which are not in conformance with the plans submitted to and
approved by State ("Unauthorized Improvements") shall immediately become the property of
State, unless State elects otherwise. Regardless of ownership of Unauthorized Improvements,
State may, at its option, require Grantee to sever, remove, and dispose of them, charge Grantee
rent for the use of them, or both. If Grantee fails to remove an Unauthorized Improvement upon
request, State may remove it and charge Grantee for the cost of removal and disposal.
SECITON 13 INDEMNITY
Grantee shall indemnify, defend, and hold harmless State, its employees, officers, and agents
from any and all liability, damages (including damages to land, aquatic life, and other natural
resources), expenses, causes of action, suits, claims, costs, fees (including attorneys fees),
penalties, or judgments, of any nature whatsoever, arising out of the use, occupation, or control
of the Easement Property by Grantee, its contractors, subcontractors, invitees, agents, employees,
licensees, or permittees, except as may arise solely out of the willful or negligent act of State or
State's elected officials, employees, or agents. To the extent that RCW 4.24.115 applies, Grantee
shall not be required to indemnify, defend, and hold State harmless from State's sole or
concurrent negligence. Grantee's liability to State for hazardous substances, and its obligation to
indemnify, defend, and hold the State harmless for hazardous substances, shall be governed
exclusively by Section 9.
Form Date:06/1998 10 of 18 Agreement No. 51-074605
SECTION 14 FINANCIAL SECURITY AND INSURANCE
14.1 Financial Security.
(a) At its own expense, Grantee shall procure and maintain a corporate surety bond or
provide other financial security satisfactory to State (the "Bond") in an amount
equal to Zero Dollars ($0), which shall secure Grantee's full performance of its
obligations under this Easement, with the exception of the obligations under
Section 9 (Environmental Liability/Risk Allocation) above. The Bond shall be in
a form and issued by a surety company acceptable to State. State may require an
adjustment in the amount of the Bond.
(b) Upon any default by Grantee in its obligations under this Easement, State may
collect on the Bond to offset the liability of Grantee to State. Collection on the
Bond shall not relieve Grantee of liability, shall not limit any of State's other
remedies, and shall not reinstate or cure the default or prevent termination of the
Easement because of the default.
14.2 Insurance. At its own expense, Grantee shall procure and maintain during the Term of
this Easement, the insurance coverages and limits described in Subsections 14.2 (a) and (b)
below. This insurance shall be issued by an insurance company or companies admitted and
licensed by the Insurance Commissioner to do business in the State of Washington. Insurers
must have a rating of B+ or better by "Best's Insurance Reports," or a comparable rating by
another rating company acceptable to State. If non-admitted or non-rated carriers are used, the
policies must comply with Chapter 48.15 RCW.
(a) Types of Required Insurance.
(1) Commercial General Liability Insurance. Grantee shall procure and maintain
Commercial General Liability insurance covering claims for bodily injury,
personal injury, or property damage arising on the Easement Property and/or
arising out of Grantee's operations. If necessary, commercial umbrella insurance
covering claims for these risks shall be procured and maintained. Insurance must
include liability coverage with limits not less than those specified below:
Description
Each Occurrence $1,000,000
General Aggregate Limit $2,000,000
State may impose changes in the limits of liability:
(i) As a condition of approval of assignment or sublease of this
Easement;
(ii) Upon any breach of Section 9, above;
Form Date:06/1998 11 of 18 Agreement No. 51-074605
(iii) Upon a material change in the condition of the Easement Property
or any improvements; or,
(iv) Upon a change in the Permitted Use.
New or modified insurance coverage shall be in place within thirty (30)
days after changes in the limits of liability are required by State.
(2) Property Insurance. Grantee shall procure and maintain property
insurance covering all real property located on or constituting a part of the
Easement Property in an amount equal to the replacement value of all
improvements on the Easement Property. Such insurance may have
commercially reasonable deductibles.
(3) Worker's Compensation/Employer's Liability Insurance. Grantee shall
procure and maintain:
(i) State of Washington Worker's Compensation coverage, as
applicable, with respect to any work by Grantee's employees on or
about the Easement Property and on any improvements;
(ii) Employers Liability or"Stop Gap" insurance coverage, as
applicable, with limits not less than those specified below.
Insurance must include bodily injury coverage with limits not less
than those specified below:
Each Employee Policy Limit
Bv Accident Bv Disease Bv Disease
$1,000,000 $1,000,000 $1,000,000
(iii) Longshore and Harbor Worker's Act and Jones Act coverage,
as applicable, with respect to any work by Grantee's
employees on or about the Easement Property and on any
improvements.
(4) Builder's Risk Insurance. As applicable, Grantee shall procure and
maintain builder's risk insurance in an amount reasonably
satisfactory to State during construction, replacement, or material
alteration of the Easement Property or improvements on the
Easement Property. Coverage shall be in place until such work is
completed and evidence of completion is provided to State.
(5) Business Auto Policy Insurance. As applicable, Grantee shall
procure and maintain a business auto policy. The insurance must
include liability coverage with limits not less than those specified
below:
Form Date:06/1998 12 of 18 Agreement No.51-074605
Description Each Accident
Bodily Injury and Property Damage $1,000,000
(b) Terms of Insurance. The policies required under Subsection 14.2 shall
name the State of Washington, Department of Natural Resources as an
additional insured (except for State of Washington Worker's Compensation
coverage, and Federal Jones Act and Longshore and Harbor Worker's Act
coverages). Furthermore, all policies of insurance described in Subsection
14.2 shall meet the following requirements:
(1) Policies shall be written as primary policies not contributing with
and not in excess of coverage that State may carry;
(2) Policies shall expressly provide that such insurance may not be
canceled or nonrenewed with respect to State except upon forty-five
(45) days prior written notice from the insurance company to State;
(3) To the extent of State's insurable interest, property coverage shall
expressly provide that all proceeds shall be paid jointly to State and
Grantee;
(4) All liability policies must provide coverage on an occurrence basis;
and
(5) Liability policies shall not include exclusions for cross liability.
(c) Proof of Insurance. Grantee shall furnish evidence of insurance in the form of a
Certificate of Insurance satisfactory to the State accompanied by a check list of
coverages provided by State, executed by a duly authorized representative of each
insurer showing compliance with the insurance requirements described in Section
14, and, if requested, copies of policies to State. The Certificate of Insurance
shall reference the State of Washington, Department of Natural Resources and the
Easement number. Receipt of such certificates or policies by State does not
constitute approval by State of the terms of such policies. Grantee acknowledges
that the coverage requirements set forth herein are the minimum limits of
insurance the Grantee must purchase to enter into this agreement. These limits
may not be sufficient to cover all liability losses and related claim settlement
expenses. Purchase of these limits of coverage does not relieve the Grantee from
liability for losses and settlement expenses greater than these amounts.
14.3 State's Acquisition of Insurance. If Grantee fails to procure and maintain the insurance
described above within fifteen (15) days after Grantee receives a notice to comply from State,
State shall have the right to procure and maintain comparable substitute insurance and to pay the
premiums. Grantee shall pay to State upon demand the full amount paid by State,together with
interest at the rate provided in Subsection 4.2 from the date of State's notice of the expenditure
until Grantee's repayment.
Form Date:06/1998 13 of 18 Agreement No. 51-074605
14.4 Self Insurance. Licensee warrants that it has the capacity to self insure for the risks and
coverages specified in Section 14. Licensee's obligations under Section 14 may be met by
providing evidence of self insurance that is acceptable to State. Any acceptance of Licensee's
proof of self insurance by State must be obtained in writing. The decision to accept, or reject,
Licensee's proof of self insurance is within the sole discretion of the State. Licensee must
provide State with proof of continuing ability to provide self insurance within thirty(30) days of
any written request by State for such proof. Licensee shall also provide State with written notice
within seven (7) days of any material change in its ability to self insure, or to its program of self
insurance. If Licensee elects to discontinue its program of self insurance, or if State provides
written notice withdrawing its acceptance of Licensee's proof of self insurance, Licensee shall be
subjected to the requirements of Section 14. Licensee shall be in compliance with the
requirements of Section 14 prior to exercising an election to terminate self insurance coverage
and shall comply with those requirements within thirty(30) days of receipt of any notice from
State withdrawing its consent to self insurance. All sublease agreements must comply with the
provisions of Section 14.
SECTION 15 TAXES AND ASSESSMENTS
Grantee shall promptly pay all taxes, assessments and other governmental charges of any kind
whatsoever levied as a result of this Easement or relating to Grantee's improvements constructed
pursuant to this Easement.
SECTION 16 ADVANCE BY STATE
If State advances or pays any costs or expenses for or on behalf of Grantee, including but not
limited to taxes, assessments, insurance premiums, costs of removal and disposal of unauthorized
materials, costs of removal and disposal of improvements, or other amounts not paid when due,
Grantee shall reimburse State the amount paid and shall pay interest on such amount at the rate
of one percent (1%)per month from the date State notifies Grantee of the advance or payment.
SECTION 17 NOTICE
Any notices required or permitted under this Easement may be personally delivered,delivered by
facsimile machine, or mailed by certified mail, return receipt requested, to the following
addresses or to such other places as the parties may direct in writing from time to time:
State: DEPARTMENT OF NATURAL RESOURCES
Shoreline District Aquatics Region
950 Farman Avenue North
Enumclaw, WA 98022-9282
Grantee: CITY OF RENTON
1055 South Grady Way
Renton, WA 98055
Form Date:06/1998 14 of]8 Agreement No. 51-074605
A notice shall be deemed given and delivered upon personal delivery, upon receipt of a
confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set
forth above, whichever is applicable.
SECTION 18 ASSIGNMENT
Grantee shall not assign its rights in the Easement or grant any rights or franchises to third
parties, without State's prior written consent. State reserves the right to change the terms and
conditions of this Easement upon its consent to any assignment.
SECTION 19 SUCCESSORS AND ASSIGNS
This Easement shall be binding upon and inure to the benefit of the parties, their successors and
assigns and shall be a covenant running with the land.
SECTION 20 TIME IS OF THE ESSENCE
TIME IS OF THE ESSENCE as to each and every provision of this Easement.
SECTION 21 RECORDATION
Grantee shall record this Easement or a memorandum documenting the existence of this
Easement in the county in which the Easement Property is located, at Grantee's sole expense.
The memorandum shall, at a minimum, contain the Easement Property description, the names of
the parties to the Easement, the State's easement number, and the duration of the Easement.
Grantee shall provide State with recording information, including the date of recordation and file
number. Grantee shall have thirty (30) days from the date of delivery of the final executed
agreement to comply with the requirements of this section. If Grantee fails to record this
Easement, State may record it and Grantee shall pay the costs of recording, including interest,
upon State's demand.
SECTION 22 APPLICABLE LAW AND VENUE
This Easement shall be interpreted and construed in accordance with and shall be subject to the
laws of the State of Washington. Any reference to a statute shall mean that statute as presently
enacted or hereafter amended or superseded. Venue for any action arising out of or in
connection with this Easement shall be in the Superior Court for Thurston County, Washington.
SECTION 23 MODIFICATION
Any modification of this Easement must be in writing and signed by the parties. State
shall not be bound by any oral representations or statements.
Form Date:06/1998 15 of 18 Agreement No.51-074605
SECTION 24 SURVIVAL
Any obligations of Grantee which are not fully performed upon termination of this Easement
shall not cease, but shall continue as obligations until fully performed.
SECTION 25 INVALIDITY
If any provision of this Easement shall prove to be invalid, void, or illegal, it shall in no way
affect, impair, or invalidate any other provision of this Easement.
THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last
signature below.
CITY OF RENTON
1 � � �� 1 � �?,,
Dated: �Y , 20�'il By: `" ��:�'(-ti�C�� � 1,�.J' ��R�''li
KAT KEOLKER-WHEELER
Attest:
Title: Mayor
'J. Ct�a,��;o�
Bonnie I. Walton, City Clerk Address: 1055 South Grady Way
'�� � , Renton, WA 98055
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�."'j•.��, ("� . ,_ � STATE OF WASHINGTON
^ ''••••'' DEPARTME T OF NAT L RESOURCES
� .,,, *
Dated: �� , 20_ By: �J'
DOUG T RLAND
E� '���-`c�'�� Title: Commissioner of Public Lands
��� ����.......��� �1
� •�i k •��'���l;, Address: 950 Farman Avenue North
>f b�"'" � '.�' ' Enumclaw, WA 98022
'� ;
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Approved as to F`oxrri o�1!�1�v;�tb�.�;2003
by Alexandra K. Smttll� � ,.� �"�`�'.�;;
Assistant Attorney GeneraI ��W y � .
State of Washington I� ����-"-'
Form Date:06/1998 16 of 18 Agreement No.51-074605
e
GRANTEE ACKNOWLEDGMENT
STATE OF (,�d i�'� )
• ) ss
COUNTY OF � i'1 )
On this �rn�i day of ��d� , 20�, before me
personally appeared KATHY KEOLKER-WHEELER to me known to be the
Mayor of the government agency/entity that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act
and deed of said government agency/entity, for the uses and purposes therein
mentioned, and on oath stated that she was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
_q�E.,Ev�� 1 /�t�i'(�� �y��"�G(/Yrt��
:C���'st N''M"�y��� � �
�'�;•��� �"�••� '�, � �,tcH��� I��uvnavtr� �
i :�NOTARy��; � (Type/Print Name)
i
� '� p�� ' � Notary Public in and for the State of Washington
�i� �' � residing at: f,�'��6ri
���9,�9:p����
��'9 � My Commission Expires: `� iq 2bD
��e���WAS`_
Form Date:06/1998 17 of 18 Agreement No. 51-074605
. • . .
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
)ss
County of�-�-�,,�u'��.���,i 1 �
���
On this ;�}Y day of ��... "' L..' , 20�,personally
appeared before me DOUG SUTHF,Lt� AND, to me known to be the
Commissioner of Public Lands of the Department of Natural Resources, State of
Washington, who executed the within and foregoing instrument on behalf of the
State of Washington, and acknowledged said instrument to be the free and
voluntary act and deed of the State of Washington for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said
instrument and that the seal affixed is the official seal of the Commissioner of
Public Lands for the State of Washington.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and year
first above written. r,.---
�'�,� `-�> ,
L_ 1�1�.1,��-�`,_�"1 � l v����
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� / [ �-�.�C;i7/ fl.� �i - l-7 J �1 ]
���4' (Type/Print Name)
...�.�,,, Notary Public i� a�nd for the �tate of Washington
� residing at: �- '� " _� .`
� 5-19� My Commission E pire�: � -/��1._.=�
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Form Date:06/1998 18 of 18 Agreement No. 51-074605
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DNR LEASE NO.: 4 h/0�`Ci a%10 UN Y AU I � G � �
PUFPOSE OF LEASE: OUTLET FROM SaLMON /6`��
SPAWNING ANO REARING CHANNEL F
�� ' HEET
� � G.L. 4, SECT. 21, TWP. 23 N., RGE. 5 E., W.M. �-�
�. __ _ __._. _.___.�_
EXHIBIT B
PLAN OF OPERATIONS AND MAINTENANCE
Cedar River Channel Mitigation —Renton, WA
City of Renton
Easement No. 51-074605
Site Description and Present Use
The site is located on the Cedar River at approximately River Mile 3.4 in Section 21, Township
23 N, Range 5 E, in Renton, Washington. The site is located east of the Rolling Hills
Neighborhood and west of the Maple Garden Neighborhood. The Maplewood golf course is
located near the site.
The following fish utilize the Cedar River for spawning, rearing and migratory transport,
steelhead salmon (Oncorhynchus mykiss), sockeye (O. nerka), chinook(O. tshaytscha), coho (O.
kisutch), and bull trout(Salvelinus confluentus).
Future Use and Condition
On February 28, 2001 a salmonid ground-water spawning channel on the Cedar River was
destroyed by the Nisqually Earthquake. The groundwater channel was originally constructed as
mitigation for the United States Army Corps of Engineers (USACE) Cedar River Section 205
Flood Hazard Reduction Project. The City of Renton requested assistance from the USACE to
replace the destroyed channel. The City of Renton and the USACE evaluated sites and
determined the site described above was the best location. An inlet and outlet for a spawning
and rearing channel will be constructed by the City of Renton. The project is funded and
managed by the United States Army Corps of Engineers.
SECTION 2 PURPOSE OF EASEMENT
The "Permitted Use" on this easement property is to construct, operate, maintain, repair, alter,
rehabilitate, remove, replace and monitor features on, over, and across the land delineated on
Exhibit A attached, including: vegetative plantings; modifications and improvements within and
adjacent to the river or shore for grade control or bank stabilization purposes; fish and wildlife
habitat or other ecosystem improvements; placement of materials or structures in the bed,banks,
or shorelines that influence river velocity or channel form; removal or placement of gravels,
cobbles, and boulders, and other structures or conveyances to direct, recharge or maintain flow to
a new spawning channel and wetlands.
Exhibit B 1 of 3 51-074605
SECTION 6 MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS
6.1 Grantee's Activities. Routine maintenance may occur on the easement property such as
cleaning and repairing of the channel inlet and outlet. Monitoring of the channel may include
adult and redd counts, fry production surveys, and riparian habitat monitoring.
Silt fencing, riprap, straw bales, and other temporary erosion control methods will be utilized to
ensure sediment does not enter the Cedar River. Native trees, shrubs, and plants will be planted
along the new channel to mitigate for the vegetation that is disturbed during construction.
SECTION 8 COMPLIANCE WITH LAWS
Grantee must provide the State with a copy of their Washington Department of Ecology 401
Water Quality Certification Nationwide Permit. Construction will not be allowed to commence
on the Easement Property until the State has received a copy of this permit.
SECTION 12 OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND
EQUIPMENT
12.3 Construction. Construction is permitted from June 16 to August 15. The following work
will occur on State Land during this construction window:
• An intake structure will be installed upstream of the project to convey flow from the
Cedar River into the channel. The structure will be made of a concrete headwall and
wingwall,trash rack, concrete box culvert, control valve, and approximately 140 feet of
pipe.
• Construction of an open-channel outlet approximately 1,200 feet downstream from the
intake structure to allow flow to re-enter the Cedar River and adult/juvenile fish to
migrate to or from the channel.
12.6 Removal. The improvements that are to be constructed and maintained on the easement
Properties under the authority of this Easement, including,but not limited to, the spawning and
rearing channel are intended to be permanent. Prior to the Ninety Year Easement Termination
Date, Grantees and State will negotiate in good faith to determine future responsibility for the
operation and maintenance of the improvements. Any agreement on such future responsibility
shall be in writing. If the Parties cannot agree on future responsibility for the operation and
maintenance of the improvements by the Ninety Year Easement Termination Date,the Ninety
Year Easement shall continue in full force and effect on a month-to-month tenancy until such
time as a written agreement can be reached.
SECTION 17 NOTICE
Grantee shall designate a contact person for the Department of Natural Resources who has the
responsibility of notifying the department of the status of the easement. The current contact
persons are:
Exhibit B 2 of 3 51-074605
.�
, , . . , ..
City of Renton: Ron Straka
1055 S. Grady Way—5�' Floor
Renton, WA 98055
(425) 430-7248
Department of Natural Resources: Monica Durkin, Snoqualmie Land Manager
Shoreline District Aquatics Region
950 Farman Ave.
Enumclaw, WA 98022-9282
(360) 825-1631 ext. 2006
SECTION 18 ASSIGNMENT
The State recognizes the Project Cooperation Agreement between the Department of the Army
and the Grantees dated May 9, 1998 and under this Section recognize that the Department of the
Army can apply for an assignment of this easement, if needed due to a breach by the Grantees.
Exhibit B 3 of 3 51-074605
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