HomeMy WebLinkAbout0346 - WA Dept of Natural Resources - Agreement - Aquatic Lands Commercial Lease - Ebey SloughSTATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND,Commissioner of Public Lands
AQUATIC LANDS LEASE
(Commercial)
AQUATIC LANDS LEASE NO.22-076960
THIS LEASE is made by and between the STATE OF WASHINGTON,acting through
the Department ofNatural Resources ("State"),and CITY OF MARYSVILLE,a
government entity ("Tenant").
BACKGROUND
Tenant desires to lease the aquatic lands commonly known as Ebey Slough,which is a
harbor area located in Snohomish County,Washington,from State, and State desires to
lease the property to Tenant pursuant to the terms and conditions ofthis Lease.
THEREFORE,the parties agree as fol1ows:
SECTION 1 PROPERTY
1.1 Property Defined.State leases to Tenant and Tenant leases from State the real
property described in Exhibit A together with all the rights of State,if any, to
improvements on and easements benefiting the Property, but subject to the exceptions
and restrictions set forth in this Lease (col1ectivelythe "Property").This Lease is subject
to all valid interests of third parties noted in the records of Snohomish 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. Not included in this Lease are any right to harvest, col1ector 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 reserves the right to grant easements and other land uses on the Property
to others when the easement or other land uses wiII not unreasonably interfere with
Tenant's Permitted Use.
1.2 Survey,Maps,and Plans.In executing this Lease, State is relying on the
surveys, plats, diagrams,and/or legal descriptions provided by Tenant. Tenant is not
relying upon and State is not making any representations about any survey, plat,diagram,
and/or legal description provided by State.
1.3 Inspection.State makes no representation regarding the condition of the
Property,improvements located on the Property, the suitability of the Property for
Form Date:07/2003 1 Agreement No.22-076960
Tenant's Permitted Use,compliance with governmental laws and regulations,availability
of utility rights,access to the Property or the existence ofhazardous substances on the
Property.Tenant has inspected the Property and accepts it "AS IS."
SECTION 2 USE
2.1 Permitted Use.Tenant shall use the Property for the operation of a "public use"
park used in conjunction with a boat ramp and small access docks (the "Permitted Use"),
and for no other purpose,The Permitted Use is described or shown in greater detail in
Exhibit B, the terms and conditions of which are incorporated by reference and made a
part of this Lease. The parties agree that this is a water-dependent use.
2.2 Restrictions on Use.Tenant shall not cause or permit any damage to natural
resources on the Property.Tenant shall also not cause or permit any filling activity to
occur on the 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 Property,except as
approved in writing by State.Tenant shall neither commit nor allow waste to be
committed to or on the Property.If Tenant fails to comply with all or any of the
restrictions on the use ofthe Property set out in this Subsection 2.2,State shall notify
Tenant and provide Tenant a reasonable time to take all steps necessary to remedy the
failure.If Tenant fails to do so in a timely manner,then State may take any steps
reasonably necessary to remedy this failure.Upon demand by State,Tenant shall pay all
costs of such remedial action,including but not limited to the costs ofremoving and
disposing of any material deposited improperly on the Property. This section shall not in
any way limit Tenant's liability under Section 8, below.
2.3 Conformance with Laws.Tenant shall, at all times, keep current and comply
with all conditions and terms of any permits,licenses,certificates,regulations,
ordinances,statutes,and other govemment rules and regulations regarding its use or
occupancy of the Property.
2.4 Liens and Encumbrances.Tenant shall keep the Property free and clear of any
liens and encumbrances arising out of or relating to its use or occupancy of the Property.
SECTION 3 TERM
3.1 Term Defined.The term ofthis Lease is Thirty (30) years (the "Term"),
beginning on the IS'day of May, 2005 (the "Commencement Date"),and ending on the
30th day of April,2035 (the "Termination Date"),unless terminated sooner under the
terms of this Lease.
3.2 Renewal of the Lease.Tenant shall have the option to renew this Lease for Zero
(0)additional terms of Zero (0) years each. The initial Term of this Lease, and all
renewal terms,shall not exceed Thirty (30) years in the aggregate.Tenant shall exercise
this option by providing written notice ofits election to renew at least ninety (90)days
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prior to the Termination Date ofthe initial Term or any renewal term of this Lease.
Tenant shall not be entitled to renew if it is in default under the terms of this Lease at the
time the option to renew is exercised.The terms and conditions of any renewal term
shall be the same as set forth in this Lease, except that rent shall be recalculated,the
required amounts of financial security may be revised,and provisions dealing with
hazardous waste or impacts to natural resources may be changed at the time of the
renewal.
3.3 Delay in Delivery of Possession.If State, for any reason whatsoever,cannot
deliver possession of the Property to Tenant on the Commencement Date, this Lease shall
not be void or voidable,nor shall State be liable to Tenant for any loss or damage
resulting from the delay in delivery of possession.In such event, the date of delivery of
possession shall be the Commencement Date for all purposes,including the payment of
rent.In the event Tenant takes possession before the Commencement Date, the date of
possession shall be the Commencement Date for all purposes,including the payment of
rent.If the Lease Term commences earlier or later than the scheduled Commencement
Date, the Termination Date shall be adjusted accordingly.
3.4 End of Term.Upon the expiration or termination of the Term or extended term,
as applicable,Tenant shall surrender the Property to State in the same or better condition
as on the Commencement Date,reasonable wear and tear excepted.
3.5 Hold Over.If Tenant remains in possession of the Property after the Termination
Date, the occupancy shall not be an extension or renewal of the Term. The occupancy
shall be a month-to-month tenancy, on terms identical to the terms of this Lease,which
may be terminated by either party on thirty (30) days written notice. The monthly rent
during the holdover shall be the same rent which would be due if the Lease were still in
effect and all adjustments in rent were made in accordance with its terms.If State
provides a notice to vacate the Property in anticipation of the termination of this Lease or
at any time after the Termination Date and Tenant fails to do so within the time set forth
in the notice,then Tenant shall be a trespasser and shall owe the State all amounts due
under RCW 79.01.760 or other applicable law.
SECTION 4 RENT
4.1 Annual Rent.Until adjusted as set forth below,Tenant shall pay to State an
annual rent,consisting ofZero Dollars ($0.00)related to the water-dependent use. The
annual rent, as it currently exists or as adjusted or modified (the "Annual Rent"),shall be
providing that the "public use"of the facility is consistent with WAC 332-30-122,the
Tenant will not owe the department rent as specified under this section.
4.2 Payment Place.Payment is to be made to Financial Management Division,1111
Washington St SE, PO Box 47041,Olympia,WA 98504-7041.
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4.3 Adjustment Based on Use.Annual Rent is based on Tenant's Permitted Use of
the Property,as described in Section 2 above.If Tenant's Permitted Use changes, the
Annual Rent shall be adjusted as appropriate for the changed use.
4.4 Rent Adjustments for Water-Dependent Uses.
(a)Inflation Adjustment.State shall adjust water-dependent rent annually
pursuant to RCW 79.90.450 -902,except in those years in which the rent
is revalued under Subsection 4.4(b) below. This adjustment shall be
effective on the anniversary ofthe Commencement Date.
(b)Revaluation of Rent. State shall, at the end of the first four-year period of
the Term, and at the end of each subsequent four-year period,revalue the
water-dependent Annual Rent in accordance with RCW 79.90.450-.902.
(c)Rent Cap. After the initial year's rent is determined under Subsection 4.1,
rent may increase by operation of Subsection 4.4(a) or 4.4(b).If
application of the statutory rent formula for water-dependent uses would
result in an increase in the rent attributable to such uses of more than fifty
percent (50%) in anyone year, the actual increase implemented in such
year shall be limited to fifty percent (50%)of the then-existing rent, in
accordance with RCW 79.90.490. The balance of the increase determined
by the formula shall be deferred to subsequent years and added to the next
and subsequent years' rental increases until the full amount of the increase
is lawfully implemented.
4.5 Rent Adjustment Procedures.
(a) Notice of Rent Adjustment.
Notice of any adjustments to the Annual Rent that are allowed by
Subsection 4.4 (b) shall be provided to Tenant in writing no later than
ninety (90) days after the anniversary date of the Lease.
(b)Procedures on Failure to make Timely Adjustment.
In the event the State fails to provide the notice required in Subsection 4.5
(a), it shall be prohibited from collecting any adjustments to rent only for
the year in which it failed to provide notice. No failure by State to adjust
Annual Rent pursuant to Subsection 4.5 (a) shall affect the State's right to
establish Annual Rent for a subsequent lease year as if the missed or
waived adjustment had been implemented.The State may adjust, bill, and
collect Annual Rent prospectively as if any missed or waived adjustments
had actually been implemented.This includes the implementation of any
inflation adjustment and any rent revaluations that would have been
authorized for previous lease years.
Form Date:07/2003 4 Agreement No.22-076960
SECTION 5 OTHER EXPENSES
During the Term,Tenant shall pay the following additional expenses:
5.1 Utilities.Tenant shall pay all fees charged for utilities in connection with the use
and occupancy of the Property,including but not limited to electricity,water,gas,and
telephone service.
5.2 Taxes and Assessments.Tenant shall pay all taxes (including leasehold excise
taxes),assessments,and other governmental charges,of any kind whatsoever,applicable
or attributable to the Property,Tenant's leasehold interest,the improvements,or Tenant's
use and enjoyment ofthe Property.
5.3 Right to Contest.Tenant may,in good faith,contest any tax or assessment at its
sole cost and expense.At the request of State,Tenant shall furnish reasonable protection
in the form of a bond or other security,satisfactory to State,against any loss or liability
by reason of such contest.
5.4 Proof of Payment.Tenant shall,if required by State,furnish to State receipts or
other appropriate evidence establishing the payment of any amounts required to be paid
under the terms of this Lease.
5.5 Failure to Pay.If Tenant fails to pay any of the amounts due under this Lease,
State may pay the amount due, and recover its cost in accordance with the provisions of
Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Late Charge.If any rental payment is not received by State within ten (10)days
of the date due,Tenant 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 incident to the delay.
6.2 Interest Penalty for Past Due Rent and Other Sums Owed.Ifrent is not paid
within thirty (30) days of the date due,then Tenant shall, in addition to paying the late
charges determined under Subsection 6.1,above,pay interest on the amount outstanding
at the rate of one percent (1 %)per month until paid.If State pays or advances any
amounts for or on behalf of Tenant,including but not limited to leasehold taxes,taxes,
assessments,insurance premiums,costs of removal and disposal of unauthorized
materials pursuant to Section 2 above,costs of removal and disposal of improvements
pursuant to Section 7 below,or other amounts not paid when due,Tenant 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 Tenant ofthe payment or
advance.
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6.3 No Accord and Satisfaction.If Tenant pays, or State otherwise receives, an
amount less than the full amount then due, State may apply such payment as it elects.In
the absence of an election, the payment or receipt shall be applied first to accrued taxes
which State has advanced or may be obligated to pay, then to other amounts advanced by
State, then to late charges and accrued interest, and then to the earliest rent due. State
may accept any payment in any amount without prejudice to State's right to recover the
balance of the rent or pursue any other right or remedy. No endorsement or statement on
any check, any payment, or any letter accompanying any check or payment shall
constitute or be construed as accord and satisfaction.
6.4 No Counterclaim,Setoff,or Abatement of Rent.Except as expressly set forth
elsewhere in this Lease, rent and all other sums payable by Tenant pursuant to this Lease
shall be paid without the requirement that State provide prior notice or demand, and shall
not be subject to any counterclaim, setoff, deduction, defense or abatement.
SECTION 7 IMPROVEMENTS
7.1 Existing Improvements.On the Commencement Date, the following
improvements are located on the Property: A portion of two boat ramps and a portion of
three supporting access docks and pilings. The improvements are not owned by State
"Existing Improvements."
7.2 Tenant-Owned Improvements.So long as this Lease remains in effect,Tenant
shall retain ownership of all Existing Improvements,and all authorized improvements
and trade fixtures it may place on the Property (collectively "Tenant-Owned
Improvements").Tenant-Owned Improvements shall not include any construction,
reconstruction,alteration, or addition to any Unauthorized Improvements as defined in
Subsection 7.5 below. No Tenant-Owned Improvemeuts shall be placed on the property
without State's prior written consent.
7.3 Construction.Prior to any construction, alteration,replacement,removal or
major repair of any improvements (whether State-Owned or Tenant-Owned),Tenant
shall submit to State plans and specifications which describe the proposed activity.
Construction shall not commence until State has approved those plans and specifications
in writing and Tenant has obtained a performance and payment bond in an amount equal
to 125%of the estimated cost of construction. The performance and payment bond shall
be maintained until the costs of construction,including all laborers and material persons,
have been paid in full. State shall have sixty (60) days in which to review the proposed
plans and specifications. The plans and specifications shall be deemed approved and the
requirement for State's written consent shall be treated as waived, unless State notifies
Tenant otherwise within the sixty (60) days.Upon completion of construction,Tenant
shall promptly provide State with as-built plans and specifications.State's consent and
approval shall not be required for any routine maintenance or repair of improvements
made by the Tenant pursuant to its obligation to maintain the Property in good order and
repair that does not result in the construction, alteration,replacement,removal, or major
repair of any improvements on the Property.
Form Date:07/2003 6 Agreement No.22-076960 .
7.4 Removal.Tenant-Owned hnprovements shall be removed by Tenant by the
Termination Date unless State notifies Tenant that the Tenant-Owned hnprovements may
remain.If the State elects for the Tenant-Owned hnprovements to remain on the
Property after the Termination Date,they shall become the property of State without
payment by State (if the provisions ofRCW 79.94.320 or RCW 79.95.040 apply,Tenant
shall be entitled to the rights provided in the statute).To the extent that Tenant-Owned
hnprovements include items of personal property which may be removed from the
leasehold premises without harming the Property,or diminishing the value of the
Property or the improvements,the State asserts no ownership interest in these
improvements unless the parties agree otherwise in writing upon termination of this
Lease.Any Tenant-Owned hnprovements specifically identified as personal property in
Exhibit A or B shall be treated in accordance with this provision.Tenant shall notify
State at least one hundred eighty (180) days before the Termination Date ifit intends to
leave the Tenant-Owned hnprovements on the Property. State shall then have ninety (90)
days in which to notify Tenant that it wishes to have the Tenant-Owned hnprovements
removed or elects to have them remain.Failure to notify Tenant shall be deemed an
election by State that the Tenant-Owned hnprovements will remain on the Property.If
the Tenant-Owned hnprovements remain on the 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 Tenant shall pay the costs ofremoval and disposal
upon State's demand..
7.5 Unauthorized Improvements.hnprovements made on the Property without
State's prior consent pursuant to Subsection 7.3 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 ofUnauthorizedhnprovements,State may, at its option,require Tenant to
sever,remove,and dispose of them,charge Tenant rent for the use of them, or both.If
Tenant fails to remove an Unauthorized hnprovement upon request,State may remove it
and charge Tenant for the cost of removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
.8.1 Definltlon."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
70.105D.01O et seq.
8.2 Use of Hazardous Substances.Tenant 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 Property,except in accordance with all
applicable laws.
Form Date:0712003 7 Agreement No.22-076960
8.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate.
(a) State makes no representation about the condition of the Property.
Hazardous Substances may exist in, on, under, or above the Property.
With regard to any Hazardous Substances that may exist in, on,under,or
above the 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 Tenant.
(b)Tenant shall exercise the utmost care with respect to both Hazardous
Substances in, on, under, or above the Property as of the Commencement
Date, and any Hazardous Substances that come to be located in, on, under,
or above the Property during the Term oftbis agreement, along with the
foreseeable acts or omissions of third parties affecting those Hazardous
Substances,and the foreseeable consequences of those acts or omissions.
The obligation to exercise utmost care under this Subsection 8.3 includes,
but is not limited to, the following requirements:
(1)Tenant shall not undertake activities that will cause,contribute to,
or exacerbate contamination ofthe Property;
(2)Tenant shall not undertake activities that damage or interfere with
the operation of remedial or restoration activities on the Property
or undertake activities that result in human or environmental
exposure to contaminated sediments on the Property;
(3)Tenant shall not undertake any activities that result in the
mechanical or chemical disturbance of on-site habitat mitigation;
(4)If requested,Tenant shall allow reasonable access to the Property
by employees and authorized agents ofthe Environmental
Protection Agency, the Washington State Department of Ecology,
or other similar environmental agencies; and
(5)Ifrequested,Tenant 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 Property.Tenant'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 Tenant's obligation to gather sufficient information concerning
the Property and the existence,scope, and location of any Hazardous
Substances on the Property,or adjoining the Property, that allows Tenant
to effectively meet its obligations under this lease.
FormDate:07/2003 8 Agreement No.22-076960
8.4 Notification and Reporting.
(a) Tenant shall immediately notify State if Tenant becomes aware of any of
the following:
(1) A release or threatened release of Hazardous Substances in, on,
under, or above the Property, any adjoining property, or any other
property subject to use by Tenant in conjunction with its use of the
Property;
(2) Any problem or liability related to, or derived from, the presence
.of any Hazardous Substance in, on, under, or above the Property,
any adjoining property, or any other property subject to use by
Tenant in conjunction with its use of the 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 Property, any adjoining
property, or any other property subject to use by Tenant in
conjunction with its use of the 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 Property.
(b)Upon request,Tenant shall provide State with copies of any and all
reports, studies, or audits which pertain to environmental issues or
concerns associated with the Property, and which were prepared for
Tenant 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 Pollution Discharge and Elimination
System Permit, any Army Corps of Engineers permit, any State
Hydraulics permit, any State Water Quality certification,or any
Substantial Development permit.
8.5 Indemnification.
(a)Tenant 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
Form Date:07/2003 9 Agreement No.22-076960
(including attorneys' fees and disbursements),that arise out of, or are in
anyway related to:
(1) The use, storage, generation,processing,transportation,handling,
or disposal of any Hazardous Substance by Tenant, its subtenants,
contractors,agents, employees, guests, invitees, or affiliates in, on,
under, or above the Property,any adjoining property, or any other
property subject to use by Tenant in conjunction with its use of the
Property, during the Term of this Lease or during any time when
Tenant occupies or occupied the 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 Property, any adjoining property, or any
other property subject to use by Tenant in conjunction with its use
of the Property,which release,threatened release, or exacerbation
occurs or occurred during the Term of this Lease or during any
time when Tenant occupies or occupied the Property or any such
other property,and as a result of:
(i)Any act or omission of Tenant,its subtenants,contractors,
agents, employees, guests,invitees,or affiliates; or,
(ii) Any foreseeable act or omission of a third party unless
Tenant 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 8.5(a),Tenant
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 anyway related to Tenant's breach of the obligations of Subsection
8.3(b). This obligation is not intended to duplicate the indemnity provided
in Subsection 8.5(a) and applies only to damages,liabilities,costs, or
expenses that are associated with a breach of Subsection 8.3(b) and which
are not characterized as a release,threatened release, or exacerbation of
Hazardous Substances.
8.6 Cleanup.If a release of Hazardous Substances occurs in, on, under, or above the
Property,or other State-owned property, arising out of any action,inaction,or event
described orreferred to in Subsection 8.5, above,Tenant 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.Tenant's obligation to undertake a cleanup under this Subsection 8.6 shall
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be limited to those instances where the Hazardous Substances exist in amounts that
exceed the threshold limits of any applicable regulatory cleanup standards.Tenant 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 8.5, above.Tenant 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)Tenant must not be in breach of this lease.
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 Lease.
8.7 Sampling by State,Reimbursement,and Split Samples.
(a) State may conduct sampling,tests, audits, surveys, or investigations
("Tests")of the Property at any time to determine the existence,scope, or
effects of Hazardous Substances on the Property, any adjoining property,
any other property subject to use by Tenant in conjunction with its use of
the 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 8.5, above,Tenant 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 Tenant 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)Tenant shall be entitled to obtain split samples of any Test samples
obtained by State, but only if Tenant provides State with written notice
requesting such samples within twenty (20)calendar days of the date
Tenant 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 Tenant. Any additional costs State incurs by virtue of
Tenant's split sampling shall be reimbursed to State within thirty (30)
calendar days after a bill with documentation for such costs is sent to
Tenant.
Within thirty (30)calendar days of a written request (unless otherwise required pursuant
to Subsection 8A(b ),above), either party to this Lease 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 Property performed by or on behalf of State
Form Date:07/2003 11 Agreement No.22-076960
or Tenant.There is no obligation to provide any analytical sunnnaries or expert opinion
work product.
8.8 Reservation of Rights.The parties have agreed to allocate certain environmental
risks,liabilities,and responsibilities by the terms of Section 8.With respect to those
environmental liabilities covered by the indemnification provisions of Subsection 8.5,
that subsection shall exclusively govern the allocation of those liabilities.With respect to
any environmental risks,liabilities,or responsibilities not covered by Subsection 8.5,the
parties expressly reserve and do not waive or relinquish any rights,claims,immunities,
causes of action,or defenses relating to the presence,release, or threatened release of
Hazardous Substances in, on, under, or above the Property,any adjoining property,or
any other property subject to use by Tenant in conjunction with its use of the 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 Lease and the
parties expressly reserve all such rights, claims,immunities,and defenses.The
allocations of risks,liabilities,and responsibilities set forth above do not release either
party from, or affect either party's liability for, claims or actions by federal, state; or local
regulatory agencies concerning Hazardous Substances.
SECTION 9 ASSIGNMENT AND SUBLETTING
9.1 State Consent Required.Tenant shall not sell, convey,mortgage,assign,
pledge,sublet,or otherwise transfer or encumber all or any part of Tenant's interest in
this Lease or the Property without State's prior written consent,which shall not be
unreasonably conditioned or withheld.
(a)In determining whether to consent,State may consider,among other
items,the proposed transferee's financial condition,business reputation
and experience,the nature of the proposed transferee's business,the then-
current value of the Property,and such other factors as may reasonably
bear upon the suitability of the transferee as a tenant of the Property.
Tenant shall submit information regarding any proposed transferee to
State at least thirty (30) days prior to the date of the proposed transfer.
(b)State reserves the right to condition its consent upon:(l)changes in the
terms and conditions of this Lease,including the Annual Rent and other
terms;and/or (2) the agreement of Tenant or transferee to conduct Tests
for Hazardous Substances on the Property or on other property owned or
occupied by Tenant or the transferee.
(c)Each permitted transferee shall assume all obligations under this Lease,
including the payment of rent. No assignment,sublet,or transfer shall
release,discharge,or otherwise affect the liability of Tenant.
Form Date:07/2003 12 Agreement No.22-076960
9.2 Event of Assignment.lfTenant is a corporation,a dissolution of the corporation
or a transfer (by one or more transactions)of a majority of the voting stock of Tenant
shall be deemed to be an assignment of this Lease.lfTenant is a partnership,a
dissolution of the partnership or a transfer (by one or more transactions)of the controlling
interest in Tenant shall be deemed an assignment of this Lease.
9.3 Rent Payments Following Assignment.The acceptance by State of the payment
of rent following an assignment or other transfer shall not constitute consent to any
assignment or transfer.
9.4 Terms of Subleases.All subleases shall be submitted to State for approval and
shall meet the following requirements:
(a) The sublease shall be consistent with and subject to all the terms and
conditions of this Lease;
(b) The sublease shall confirm that if the terms of the sublease conflict with
the terms of this Lease, this Lease shall control;
(c) The term of the sublease (including any period of time covered by a
renewal option) shall end before the Termination Date ofthe initial Term
or any renewal term;
(d) The sublease shall terminate if this Lease terminates,whether upon
expiration ofthe Term, failure to exercise an option to renew,cancellation
by State,surrender or for any other reason;
(e) The subtenant shall receive and acknowledge receipt of a copy of this
Lease;
(f) The sublease shall prohibit the prepayment to Tenant by the subtenant of
more than one month's rent;
(g) The sublease shall identify the rental amount to be paid to Tenant by the
subtenant;
(h)The sublease shall confirm that there is no privity of contract between the
subtenant and State;
(i)The sublease shall require removal of the subtenant's improvements and
trade fixtures upon termination of the sublease; and,
G)The subtenant's permitted use shall be within the Permitted Use authorized
by this Lease.
FormDate:07/2003 13 Agreement No.22-076960
9.5 Routine Subleasing of Moorage Slips.In the case of routine subleasing of
moorage slips to recreational and commercial vessel owners for a term of one year or
less,Tenant shall not be required to obtain State's written consent or approval pursuant to .
Subsection 9.1 or Subsection 9.4.Tenant shall be obligated to ensure that these moorage
agreements conform to the sublease requirements in Subsection 9.4.
SECTION 10 INDEMNITY,FINANCIAL SECURITY,INSURANCE
10.1 Indemnity.Tenant shall indemnif'y,defend,and hold harmless State,its
employees, officers, and agents from any and all liability, damages (including bodily
injury,personal injury and damages to land, aquatic life, and other natural resources),
expenses,causes of action, suits,claims,costs, fees (including attorneys' fees),penalties,
or judgments,of any nature whatsoever,arising out of the use, occupation, or control of
the Property by Tenant, its subtenants,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,Tenant
shall not be required to indemnif'y,defend, and hold State harmless from State's sole or
concurrent negligence.Tenant'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 8.
10.2 Financial Security.
(a) At its own expense,Tenant shall procure and maintain a corporate surety
bond or provide other financial security satisfactory to State (the "Bond")
in an amount equal to Zero Dollars ($0.00),which shall secure Tenant's
full performance of its obligations under this Lease, with the exception of
the obligations under Section 8 (Envirorunental Liability/Risk Allocation)
above. The Bond shall be ina form and issued by a surety company
acceptable to State.State may require an adjustment in the amount of the
Bond:
(1)At the same time as revaluation of the Annual Rent;
(2) As a condition of approval of assigrunent or sublease of this Lease;
(3)Upon a material change in the condition of any improvements;or,
(4)Upon a change in the Permitted Use.
A new or modified Bond shall be delivered to State within thirty (30)days
after adjustment of the amount of the Bond has been required by State.
(b)Upon any default by Tenant in its obligations under this Lease, State may
collect on the Bond to offset the liability of Tenant to State.Collection on
the Bond shall not relieve Tenant of liability, shall not limit any of State's
Form Date:07/2003 14 Agreement No.22-076960
other remedies,and shall not reinstate or cure the default or prevent
termination ofthe Lease because of the default.
10.3 Insurance.At its own expense,Tenant shall procure and maintain during the
Term of this Lease,the insurance coverages and limits described in Subsections 1O.3(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 ofB+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.
(l)Commercial General Liability Insurance.Tenant shall procure and
maintain Commercial General Liability insurance and,if
applicable,Marina Operators Legal Liability insurance covering
claims for bodily injury,personal injury,or property damage
arising on the Property and/or arising out of Tenant'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
General Aggregate Limit
$1,000,000
$2,000,000
State may impose changes in the limits ofliability:
(i) As a condition of approval of assignment or sublease ofthis
Lease;
(ii)Upon any breach of Section 8, above;
(iii)Upon a material change in the condition of the Property or
any improvements;or,
(iv)Upon a change in the Permitted Use.
New or modified insurance coverage shall be in place within thirty (30)
days after changes in the limits ofliability are required by State.
(2)Property Insurance.Tenant shall procure and maintain property
insurance covering all real property located on or constituting a
part ofthe Property in an amount equal to the replacement value of
Form Date:07/2003 15 Agreement No.22-076960
all improvements on the Property.Such insurance may have
commercially reasonable deductibles.
(3)Worker's Compensation/Employer's Liability Insurance.Tenant
shall procure and maintain:
(i)State of Washington Worker's Compensation coverage,as
applicable,with respect to any work by Tenant's employees
on or about the Property and on any improvements;
Employers Liability or "Stop Gap"insurance coverage with limits not less
than those specified below.Insurance must include bodily injury coverage
with limits not less than those specified below:
Each Employee
By Accident
$1,000,000
By Disease
$1,000,000
Policy Limit
By Disease
$1,000,000
Longshore and Harbor Worker's Act and Jones Act coverage,as
applicable,with respect to any work by Tenant's employees on or about
the Property and on any improvements.
(4)Builder's Risk Insurance.As applicable,Tenant shall procure and
maintain builder's risk insurance in an amount reasonably
satisfactory to State during construction,replacement,or material
alteration of the Property or improvements on the 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,Tenant shall
procure and maintain a business auto policy.The insurance must
include liability coverage with limits not less than those specified
below:
Description
Bodily Injury and Property Damage
Each Accident
$1,000,000
(b)Terms of Insurance.The policies required under Subsection 10.3 shall
name the State of Washington,Department ofNatural 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 Subsectionl0.3 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;
Form Date:07/2003 16 Agreement No.22-076960
(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 Tenant;
(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. Tenant shall furnish evidence of insurance in the form
of a Certificate of Insurance satisfactory to the State accompanied by a
checklist of coverages provided by State, executed by a duly authorized
representative of each insurer showing compliance with the insurance
requirements described in section 10, and,if requested, copies of policies
to State. The Certificate of Insurance shall reference the State of
Washington,Department of Natural Resources and the lease number.
Receipt of such certificates or policies by State does not constitute
approval by State of the terms of such policies; Tenant acknowledges that
the coverage requirements set forth herein are the minimum limits of
insurance the Tenant 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 Tenant from liability for losses and settlement expenses greater than
these amounts.
lOA State's Acquisition oflnsurance.If Tenant fails to procure and maintain the
insurance described above within fifteen (15) days after Tenant receives a notice to
comply from State, State shall have the right to procure and maintain comparable
substitute insurance and to pay the premiums.Tenant shall pay to State upon demand the
full amount paid by State,together with interest at the rate provided in Subsection 6.2
from the date of State's notice of the expenditure until Tenant's repayment.
10.5 Self Insurance.Tenant warrants that it has the capacity to self insure for the risks
and coverages specified in Subsection 10.3. Tenant-es obligations under Subsection 10.3
may be met by providing evidence of self insurance that is acceptable to State. Any
acceptance of Tenant-s proof of self insurance by State must be obtained in writing. The
decision to accept, or reject,Tenant-s proof of self insurance is within the sole discretion
of State. Tenant 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.Tenant
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.IfTenant elects to
Form Date:07/2003 17 Agreement No.22-076960
discontinue its program of self insurance,or if State provides written notice withdrawing
its acceptance of Tenantes proof of self insurance, Tenant shall be subject to the
requirements of Subsections 10.3 and 10.4. Tenant shall be in compliance with the
requirements of Subsection 10.3 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 Subsection 10.3
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 Property, or any part thereof, during the
Term.
11.2 Tenant's Repairs,Alteration,Maintenance and Replacement.
(a)Tenant shall, at its sole cost and expense, keep and maintain the Property
and all improvements (regardless of ownership) in good order and repair,
in a clean, attractive, and safe condition.
(b)Tenant shall, at its sole cost and expense, make any and all additions,
repairs,alterations,maintenance,replacements, or changes to the Property
or to any improvements on the Property which may be required by any
public authority.
(c) All additions, repairs, alterations,replacements or changes to the Property
and to any improvements on the Property shall be made in accordance
with, and ownership shall be governed by, Section 7, above.
SECTION 12 DAMAGE OR DESTRUCTION
(a)In the event of any damage to or destruction ofthe Property or any
improvements,Tenant shall promptly give written notice to State. Unless
otherwise agreed in writing,Tenant shall promptly reconstruct,repair, or
replace the Property and any improvements as nearly as possible to its
condition immediately prior to the damage or destruction.
(b)Tenant's duty to reconstruct,repair, or replace any damage or destruction
of the Property or any improvements on the Property shall not be
conditioned upon the availability of any insurance proceeds to Tenant
from which the cost of repairs may be paid.
(c)Unless this Lease is terminated by mutual agreement, there shall be no
abatement or reduction in rent during such reconstruction,repair, and
replacement.
Form Date:0712003 18 Agreement No.22-076960
(d) Any insurance proceeds payable by reason of damage or destruction shall
be first used to restore the real property covered by this Lease,then to pay
the cost of the reconstruction,then to pay the State any sums in arrears,
and then to Tenant.
(e)In the event Tenant is in default under the terms of this Lease at the time
damage or destruction occurs, State may elect to terminate the Lease and
State shall then have the right to retain any and all insurance proceeds
payable as a result of the damage or destruction.
SECTION 13 CONDEMNATION
13.1 Definitions.
(a) Taking. The term "taking,"as used in this Lease, means the taking of all
or any portion ofthe Property and any improvements thereon under the
power of eminent domain, either by judgment or settlement in lieu of
judgment.Taking also means the taking of all or a portion of the Property
and any improvements thereon to the extent that the Permitted Use is
prevented or, in the judgment of State, the Property is rendered impractical
for the Permitted Use. A total taking occurs when the entire Property is
taken. A partial taking occurs when the taking does not constitute a total
taking as defined above.
(b)Voluntary Conveyance. The terms "total taking" and "partial taking"shall
include a voluntary conveyance, in lieu of formal court proceedings,to
any agency, authority,public utility, person, or corporate entity
empowered to condemn property.
(c) Date of Taking. The term "date of taking"shall mean the date upon which
title to the Property or a portion of the Propertypasses to and vests in the
condemnor or the effective date of any order for possession if issued prior
to the date title vests in the condemnor.
13.2 Effect of Taking.If during the Term there shall be a total taking,the leasehold
estate of Tenant in the Property shall terminate as of the date of taking.If this Lease is
terminated,in whole or in part, all rentals and other charges payable by Tenant to State
and attributable to the Property taken shall be paid by Tenant up to the date of taking.If
Tenant has pre-paid rent, Tenant will be entitled to a refund ofthe pro rata share of the
pre-paid rent attributable to the period after the date of taking.In the event of a partial
taking, there shall be a partial abatement of rent from the date of taking in a percentage
equal to the percentage of Property taken.
13.3 Allocation of Award.State and Tenant agree that in the event of any
condemnation,the award shall be allocated between State and Tenant based upon the
ratio of the fair market value of Tenant's leasehold estate and Tenant-Owned
FormDate:07/2003 19 Agreement No. 22-076960
Improvements on the Property and State's interest (a) in the Property, (b) in the
reversionary interest in Tenant-Owned Improvements,and (c) in State-Owned
Improvements.In the event of a partial taking,this ratio will be computed on the basis of
the portion of Property or improvements taken.If Tenant and State are unable to agree
on the allocation,it shall be submitted to binding arbitration in accordance with the rules
of the American Arbitration Association.
SECTION 14 DEFAULT AND REMEDIES
(a)Tenant shall be in default ofthis Lease on the occurrence of any of the
following:
(1)Failure to pay Annual Rent or other expenses when due;
(2)Failure to comply with any law,regulation,policy, or order of any
lawful governmental authority;
(3)Failure to comply with any other provision ofthis Lease;
(4) Two or more defaults over a period oftime,or a single serious
default,that demonstrates a reasonable likelihood of future defaults
in the absence of corrective action by Tenant;or
(5)Proceedings are commenced by or against Tenant under any
bankruptcy act or for the appointment of a trustee or receiver of
Tenants'property.
(b) A default shall become an event of default ("Event of Default")if Tenant
fails to cure the default within sixty (60) days after State provides Tenant
with written notice of default,which specifies the nature of the default.
(c)Upon an Event of Default,State may terminate this Lease and remove
Tenant by summary proceedings or otherwise.State may also,without
terminating this Lease,relet the Property on any terms and conditions as
State in its sole discretion may decide are appropriate.If State elects to
relet,rent received by it shall be applied:(1) to the payment of any
indebtedness other than rent due from Tenant to State; (2) to the payment
of any cost of such reletting;(3) to the payment of the cost of any
alterations and repairs to the Property;and, (4) to the payment of rent and
leasehold excise tax due and unpaid under this Lease.Any balance shall
be held by State and applied to Tenant's future rent as it becomes due.
Tenant shall be responsible for any deficiency created by the reletting
during any month and shall pay the deficiency monthly. State's reentry or
repossession of the Property under this subsection shall not be construed
as an election to terminate this Lease or cause a forfeiture of rents or other
charges to be paid during the balance of the Term,unless State gives a
written notice of termination to Tenant or termination is decreed by legal
Form Date:07/2003 20 Agreement No.22-076960
proceedings.State may at any time after re1ettingelect to terminate this
Lease for the previous Event of Default.
SECTION 15 ENTRY BY STATE
State shall have the right to enter the Property at any reasonable hour to inspect for
compliance with the terms of this Lease.
SECTION 16 DISCLAIMER OF QUIET ENJOYMENT
As indicated in Section 1.1, this Lease is subject to all valid recorded interests of third
parties,as well as rights ofthe public under the Public Trust Doctrine or federal
navigation servitude,and treaty rights of Indian Tribes. State believes that its grant of the
Lease is consistent with the Public Trust Doctrine and that none ofthe identified interests
of third parties will materially and adversely affect Tenant's right of possession and use
of the Property as set forth herein,but makes no guaranty or warranty to that effect.
Tenant and State expressly agree that Tenant shall be responsible for determining the
extent ofits right to possession and for defending its leasehold interest.Consequently,
State expressly disclaims and Tenant expressly releases State from any claim for breach
of any implied covenant of quiet enjoyment with respect to the possession of the
Property.This disclaimer includes,but is not limited to,interference arising from or in
connection with access or other use rights of adjacent property owners or the public over
the water surface or in or under the water column,including rights under the Public Trust
Doctrine;rights held by Indian Tribes; and the general power and authority of State and
the United States with respect to aquatic lands,navigable waters,bedlands,tidelands,and
shorelands.In the event Tenant is evicted from the Property by reason of successful
assertion of any ofthese rights, this Leaseshall terminate as ofthe date of the eviction.
In the event of a partial eviction,Tenant's rent obligations shall abate as of the date of the
partial eviction,in direct proportion to the extent of the eviction,but in all other respects,
this Lease shall remain in full force and effect.
SECTION 17 NOTICE
Any notices required or permitted under this Lease 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:
Tenant:
DEPARTMENT OF NATURAL RESOURCES
Northwest Region
919 North Township Street
Sedro-Woolley,WA 98284
CITY OF MARYSVILLE
80 Columbia Ave
Marysville,WA 98270
Form Date:07/2003 21 Agreement No.22-076960
A notice shall be deemed given and delivered upon personal delivery, upon receipt of a
confmnation report if delivered by facsimile machine, or three (3) days after being
mailed as set forth above,whichever is applicable.
SECTION 18 MISCELLANEOUS
18.1 Authority.Tenant and the person or persons executing this Lease on behalf of
Tenant represent that Tenant is qualified to do business in the State of Washington,that
Tenant has full right and authority to enter into this Lease, and that each and every person
signing on behalf of Tenant is authorized to do so. Upon State's request,Tenant will
provide evidence satisfactory to State confirming these representations.This Lease is
entered into by State pursuant to the authority granted it in Chapters 79.90 to 79.96 RCW
and the Constitution of the State of Washington.
18.2 Successors and Assigns.This Lease shall be binding upon and inure to the
benefit of the parties,their successors and assigns.
18.3 Headings.The headings used in this Lease are for convenience only and in no
way define, limit, or extend the scope of this Lease or the intent of any provision.
18.4 Entire Agreement.This Lease, including the exhibits and addenda,if any,
contains the entire agreement of the parties. All prior and contemporaneous agreements,
promises,representations,and statements relating to this transaction or to the Property,if
any, are merged into this Lease.
18.5 Waiver.The waiver by State of any breach or default of any term,covenant,or
condition of this Lease shall not be deemed to be a waiver of such term,covenant,or
condition;of any subsequent breach or default of the same; or of any other term,
covenant,or condition of this Lease.State's acceptance of a rental payment shall not be
construed to be a waiver of any preceding or existing breach other than the failure to pay
the particular rental payment that was accepted.
18.6 Cumulative Remedies.The rights and remedies of State under this Lease are
cumulative and in addition to all other rights and remedies afforded to State by law or
equity or otherwise.
18.7 Time is ofthe Essence.TIME IS OF THE ESSENCE as to each and every
provision of this Lease.
18.8 Language.The word "Tenant"as used in this Lease shall be applicable to one or
more persons,as the case may be. The singnlar shall include the plural, and the neuter
shall include the masculine and feminine.If there is more than one Tenant,their
obligations shall be joint and several. The word 'persons,"whenever used, shall include
individuals,firms,associations,and corporations.
Form Date:0712003 22 Agreement No.22-076960
18.9 Invalidity.If any provision of this Lease shall prove to be invalid, void, or
illegal, it shall in no way affect, impair, or invalidate any other provision of this Lease.
18.10 Applicable Law and Venue.This Lease shall be interpreted and construed in
accordance with the laws ofthe 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 Lease shall be in the Superior Court
for Thurston County,Washington.
18.11 Recordation.Tenant shall record this Lease or a memorandum documenting the
existence of this Lease in the county in which the Property is located, at Tenant's sole
expense.The memorandum shall, at a minimum,contain the Property description,the
names of the parties to the Lease, the State's lease number, and the duration of the Lease.
Tenant shall provide State with recording information,including the date of recordation
and file number.Tenant shall have thirty (30) days from the date of delivery of the final
executed agreement to comply with the requirements of this subsection.If Tenant fails to
record this Lease, State may record it and Tenant shall pay the costs of recording upon
State's demand.
Form Date:07/2003 23 Agreement Nn.22-076960
18.12 Modification.Any modification of this Lease must be in writing and signed by
the parties. State shall not be bound by any oral representations or statements.
THIS AGREEMENT requires the signature of all parties and is executed as of the date of
the last signature below.
CITY OF MARYSVILLE,
a government entity
Dennis Kendall
Title:Mayor
Address: 80 Columbia Ave
Marysville, WA 98270
STATE OF WASHINGTON
DEPARTMENT OF NATURAL
RESOURCES
Dated:_,20_
DOUG SUTHERLAND
Title:Commissioner of Public Lands
Address: 1111 Washington St SE
Olympia, WA 98504-7027
Standard Commercial Lease
Approved as to Form July,2003
by Mike Grossmann
Assistant Attorney General
State of Washington
Form Date:07/2003 24 Agreement No.22-076960
REPRESENTATNEACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
COUNTY OF )
I certify that.I know or have satisfactory evidence that Dennis Kendall is the person who
appeared before me, and said person acknowledged that he signed this instrument,on
oath stated that was authorized to execute the instrument, and acknowledged it as the
Mayor ofthe City ofMarysville to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
DATED:J!.A.AA.E 'Y-,YJoS
Notary PIlbIic
State of Washington
LILLIELEIN
IIi'f COMMISSION EXPIRES
Julv 1.2005
.(Type/Print Name)
Notary Public in and for the State of Washington,
residing at:l11a "'ysv;//e...
My Commission Expires:07 -OI-oS
STATE ACKNOWLEDGMENT
STATE OF WASHJNGTON )
)ss
County of )
On this day of ,20_,personally
appeared before me DOUG SUTHERLAND,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 ofPublic Lands for the State of Washington.
IN WITNESS WHEREOF,I have hereunto set my hand and seal the day and year
first above written.
Dated:~_
(Type/Print Name)
Notary Public in and for the State of Washington,
residing at ~__--,-.
My appointment expires ~--e-__
FormDate:07/2003 25 Agreement No.22-076960
·.-'
.....
.....
SE'R\I!F:NT ESTATE
ASSESSOR NOS.300533002008 AND 3OO5330020tO AND 005S1100900~
PARCEl A,PROPOSED
ALl lHAT.POR!1ON OF GOVERNMENT LOT 1,SECTION 33,TO'fflllSHIP 30 NOR1H,RANGE 5 EAST,'MLLAMETTE I.C~DIAN
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER of LOT 12 SLOCK 7 MAR't'S\I1LlE ACCOROING TO mE PLAT THEREOf FOUND IN
VOLUME-l Of PLATS,PAGE 29 RECORDS OF'SNOHOIAISH COUNTY,WASHINGTON;
lHENa;:SCUlH 88'34'08'EAST ALONG THE NORTH RIGHT-OF-WAY OF FIRST STREET 4S.94-FEET TO lHE MONUMENT
UNE 20.00 FEET WEST OF 1HE EASTRIGHT-OF-WAY OF'cELTA AVENUE ACCORDING TO THE CORREC1l0N OF D,A..
QUINN'S FIRST AOOll1ON TO MAR'i'Sw.LE ACCORDING TO THEPLAT THEREOFI"OUNO IN VOLUME S OF PLATS,PAGE is
RECORDS Of SNOHOMISH COUNTY,WASHINGTON;
THENCE SOUTH OJ' 29' 23'~ST ALONG SAIO MONUMENT LINE·20.00 FEET TO ne FIRST STREET MONUMENT UNE,nus
INTERSECTION OF MONUMENT UNES BEARS NORlH 88·34'OS'~4-25.40 FEET FROM TIiE MONUMENT IN CASE AT THE
lNTERSECllON OF'THEMONUMENT UNES,AT FIRST STREET AND .STATE A~UE,ANDIT ALSO 'BEARS SOUTH 01' 29· 23"
WEST 1005.30 FEET FROM THE MONUMENT IN CASE AT THE:INTERSEC!10N OF'THE MONUMENT LINES AT THE
INTE.RStOl1ON OF FOtJRlH STREET.AND DELTA AVENUE;
THENCE CONTINUE SQU'TH01'29'238 WEST 48.00 FEET;
ll-lENCE NORTH SS'34'OS'WEST PARALLEL \101m THE MONUMENT LINE ON FIRST STREET 10.00 FEET;
THENCE scum 01'29'23'WEST 7.00 FEET TO A POINT 30.00 FEET ~OF THE NORTHWEST CORNER OF LOT7
BLOCK 9 ACCORDlNG TO 'THE COAAEC!1ON'OF 0,A.QUINN'S F"IRST AOOmON TO MARYSVlUE;
lHENCE SOUTH 02'53'07'WEST 59.91 FEET;
lHENCE SOUTH oe-27'42"WEST 29.17 FEET TO THE "TRUE POINT or BEGINNING;
lHENCE CONTINUE scura OS' 27'4-2"WEST 35.B3 FEET:
THENCE SOUTH 16'23'53'WEST sasc FEET:
lHENCE NORTH sa'27'32'"WEST 13.00 FEET;
THENCE.SOUTH 12'15' 17''I£ST 52S.87 FEET TO 'THE SOLJTHERLY LINE OF,GOVERNMENT LOT 1 BEING lHE MEANDER
UNE OF nlE RIGHTBANK Of'ESEY'SLOUGH:
lHENCE SOUTH 55'0\'24·EAST ALONGSAlO SOUTHERLY UNE FOR 199.07 FEU TO lHE EAST LINE OF GOVERNMENT
LOT 1 OF SAIQ SEC1ION 33:
THENCE NORTH 01'14'58"EAST ALONG SAID EAST UNE 870.36 FEET TO A POINT140.00 FEET SOUlH OF lliE SOUTH
UNE OFAAST STREET ACCORDING TO THE CORRECTION OF D.A.QUINN'S FIRST AOOmON TO MARYSVILLE:
THENCE NORTH SS'34'OS·WEST PARALLEL v.lTH FIRST STREET 32.03 FEET TO A POINT ON A UNE 35.00 FEET WEST OF
AND PARAUEL WllH.lHE WEST UNE OF LOT 7,BLOCK 9 ACCORDING TO 'THE CORRECTION OF O.A.QUINN'S HRST
ADomON TO MARYSVILLE;
THENCE NORTH 01· 29'23·EAST ALONG SAIO LINE 51.16 FEET TO THE POlNT.Of BEGINNING.
PARct:L B,PROPOSED,NO CHANGE
THAT PORTION Of THE NORTHEAST QUAR!tR OF THE NORTHWEST QUAR'TE1t AND GOVERNMENT LOT2 OF SECnDN 33,
TO'fflIISHIP 30 NORTH,RANG.E_5 EAST.W,M.LYING SOUTHERLY or D. A.QUINN'S FIRST ADDITION TO MARYSVlUE,ACCORDING
TO THE PLAT THEREOF RECORDED IN VOLUME 1 OF PLATS,PAGE 69,RECORDS OF SNOHOMISH COUNTY,WASllINGTON,
AND LYING WESTERLY Of'PRIMARY STATE HIGHWAY NO.1 AND NORTHERLY OF EeEY SLOUGH.
PARCEL C,PROPOSED
ALL lHAT PORTION OF GOVERNMENT LOT " AND A POR'TlONOF 'THE NORTHEAST QUARTER 01"THE NORlHWEST·QUARTER
OF Sl:':C110N 33,TO\\tlSHIP 30 NORlH,RANCE 5 EAST,W1l.1.AMEm MERIDIAN DESCRIBED AS fOLLOWS:
COMMENGING AT THE SOU,lHEAST CORNER OF LOT 12 BLOCK 7 MARYSVILlE ACCOROING TO THE PLAT THEREa'"FQtJND IN
VOLUME lOP PLATS,PAGE 29 RECORDS OF SNOHOMISH COllNTY,WASHINGTON;
~~~~.ggUFTJ::T~i'~frH~~A:i9~gH~~~c:~~~GtJ~Lir-A~U~A~~~k~~~~-:""c~CWOJH~f ?~"'ENT
QUINN'S FIRST ADDmoN TO MARYSVILLE ACCORDING TO lHE PLAT lHEREOF FOUND IN VOLUME 6 Of PLATS,PAGE 19
RECORDS OF SNOHOMISH COUNTY.WASHINGTON;
lHENC[SOUll-!or as'23"\YEST ALONG SAID MONUMENT UNE 20.00 FEET TO tHE FIRST SlREET MONUMENT UNE,THIS
INTERSECTION OF MONUMENT LINES BEARS NORlH 68'34'088 WEST 425.40 FEET FROM THE MONUMENT IN CASE AT THE
INTERSECTION OF THE MONUMENT LINES AT FIRST STREET AND STATE A~UE,AND IT ALSO BEARS SOUTH 01' 29'23"
WEST 10OS.30 FEET FROM lHE MONUMENT IN CASE AT THE INTERSECTION·OF 1I1E MONUMENT UNESAT THE
JNTERSEC!1ON OF FQURlHSTREET AND DELTA AVENUE:
lHENCE CQN!1NUE SOUTH 01'29'2J.WEST 46.00 fEET:.
THENCE NORTH 88·34-'08"WEST PARALLEL 111m THE MONUMENT UNE ON f1RST SlREE:T 10.00 FEET:
THENCE sours ot-29'·23"WEST 7.00 FEETTO A POINT 30.00 FEET WEST OF lHE NORTHWEST CORNER or LOT7
BLOCK 9 ACCORDING TO THE CORREC'TlON OF O. A.QUINN'S FIRST AD0lT10N TO MARYSVILLE AND THE TRUE POINT OF
BEGINNING;
THENCE SOUTH 02·53'07"WEST 59.91 FEET:
tHENCE:SOOTH 06' 27'42"WEST 29,17 FEET TO A POINT ON A UNE 35.00 FEET WE$T OF AND PARAllEL w'1H THE
WEST UNE OF LOT 7,BLOC!(9 ACCORDING TO THE CORRECTION or D. A.QUINN'S FIRST APOmON TO MARYSVILlE;
THENCE:SOOTH 01'29'2J'WEST ALONG SAID LINE "'1.16 FEET TO A POINT140.00 FEET SOUTH OF'THE SOOTH LINE
OF'fiRST STREET ACCORDING TO THE CORREC"T1ON OF D.A.QUINN'S FIRST ADDITION TO tdAR'i'SVlLLE:
THENCE SOUTH 88'34'08'"EAST PARALLEL WITH f1RST·STREET 32.03 FEET TO A POINT ON THE EAST UNE:OF SAID
GO'ta'NMENT LOT 1:
THENCE NORTH 01'14'.5B·EAST AJ.ONG SAID EAST UNE 20.00 F£ET AN INTERSECTION YtlTH nlE SOUTH LINE OF'BLOCK
9 OF lHE CORRECTION OF D.A.QUINN'S f1RST ADDITION TO MARYSVILLE EXTENDED WESTER\.Y:
lHENCE SOU1H ee-34'08'"EAST ALONG SAID EXTa-lSION J.05 FEET TO THE SOU'THWEST CORNER OF SA1D BLOC!<9;
THENCE NORTH 01'29'23"EAST 120.00 FEET TO THE NOR1HWEST CORNER OF SAID 8LOCK 9:
THENCE NORTH ee-34'08"\EST PARALLEL WITH THE t.lONUMENT LINE ON FIRST STREET TO A POINT 3<1.00 FEET YIEST
OF lHE NOR1HWEST CORNER Of'LOT7 BLOCK 9 ACCORtlING TO THE CORREC!10N QF O.A.QUINN'S FIRST AfJDlTION TO
MARYSVILLE AND,THE PQlNT OF BEGIN!'lING
PARCEL 0,PROPOSED,NO CHAliGE,ASSESSOR NO.005511009006
LOT 6 EXCEPT _THE EAST HALF TH'EREOF AND All.Of'LOT 7,BLOc<9, 0,A.QUINN'S FlRST APOITION TO MARYSVIlLE,
ACCORDING TO THE PLAT RECORDED IN VOlUME 1 OF PLATS,·PAGE 69,RECORQS Of'SNOHOMISH COUNTY.AlL S1TUAiE
IN 'THE COUNTY OF SNOHOMISH,STATE.Of WASHINGTON.
..,.,'
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,
LAND SIIR\ltYORS CERTIfiCATE
EQUIPMENT AND pROCEDURES .''.
ALL MEASUREMENTS WERE MADE ~TH AN aI!:ClRO~·~O(jldll;.e;I'IITH A ONE SE~QNO HORIZONTAL AND VERTICAL
DISPLAY AND MANU~AC1lJRERS STANDARD POlNJIOO OEVlAJIbN OF 7HR$.s~ONDS AIJ,O AN ELECTRONIC
DISTANCE MEASURING DEVICE:'MlH A STANDAAC1 OEVlA!1pa OF SMt.t.~·!;PPht::
FIELD TRA'ta'SE METHOD IN COMPUAl'lCE 'MTH W,A.c.¥2-130-.~0 .-.;••••"...
ALL POINTS INDICATED FOUND I'I£RE vsmn IN 8-97 ~NLESS OiHERYtlSE NOlED..: '.
::
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THIS MAP CORRECTlY REPRESENTS A SURVEY MADE BY ME"IQS.UNDm ......'l'•• '•• '
DIRECTION IN'CONFORMANCE WITH TIiE REQUIREMENTS OF 1HE-S[.IIffl:'(......'
RECOR01NG ACJr AT 'THE REQUEST OF CITY OF MARYS-,u IN A~I 2~g>.•."""».i'f.d.•'•.p""~~,',£,,~TI""·;!,,~,,~::if.~,,;;"'~-,r..''".-v..
AUDITORS CERTIELCATE A.F.NO.oZOO!5o;J!.3 $"¢h • '.I
FILED FOR RECORD lHISAAY OF:4h,;J •20~T~N"...........
BOOK _OF SURVEYS,PAGE-AT THE REQUEST OF HAMMOND,:,;..-,
COLUER,&:WADE -UVINGSTONE ASSOClAiES,INC.~• • ••••••."'&t,PRlrZ/IJ~"&maP &e'~"'"
COUNTY Mi6iTOR DEPUlY AUDITOR :."
.'
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22-076960
'JOB NO,
99-16-606
"".....
REVlS10NS GENERAL NOTES
LEASE APPUCA TION NO,
WATERFRONT PARK
DNR LEASE EXHIBIT
FOR
CITY OF MARYSVIlLE
SHEET or
".........
P1It;tlE1/4 &;N\IIl/4 OF /tWIN.S[C,33;TJ_ON.RSE,WJ.t
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a •
JOB NO.
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DRAWING NO.
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22-076960
·SET NAIL clc
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I len,
WATERFRONT PARK
DNR LEASE EXHIBIT
FOR
CITY OF MARYSVILLE
pm NE1/4 &NWl/4,CF NWl/4.SEC.JJ,T3CN.ROE.WJ,l.
R..1l06.00
L..:;64.32'
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•LEASE APPLICATION NO•
POUNDPlPE:lNCI.S£1H,I,J.I..£Y
IlE'lYI'<aI 2NDok JAn S'lR£nS {2/I9lI'}
1/18 CQR -SEt CE:l,\lI.SIlaT 3'O>-¢-'~~!'I
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SNOHOMiSH COu1TY
AGENCY
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OS "0._ __sET I'K NAll.WfSHiKER
..I.NlIB?4''l4"W __-i
OATt.iM,NAVO ae
GENERAL NOTES
SET 1/2·REBAR WjCAP 11502J
P PLAT
MERIDIAN:NAO 8ij91
EAS1lNG
1333216.74
1312718.80
cENTUlU<£llIJRlJNGT(Itl
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REVISIONS
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rOuND CONe MONUMENT 196V
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•SHEEr
22-D76960
1000..
SCALE IN FEET
250 500o
2542.13'
1\-'3
FOUND STONE WITH CHISELED
CROSS MARCH 1992
N 87'52'37"W
LEASE APPLICATION NO.
WATERFRONT PARK
DNR LEASE EXHIBIT
FOR
CITY OF MARYSVILLE
CAlC POSll10N
PlN,NE1/4."~/"'Ql'tIWI/4,SEC.33,noN.RSE.W.l.l.
GX/i\.1 bIf.
..rACCEPTED F'£NCE (OCCUPATION)
./FOR SECTION UNE
2,500'S Of'QTR CORNER 1969
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SET CONe MON.WITH BRASS CAP
AT INlERSECl10N OF FENCES IN 1969
N 89"06'29"W
2689.93'
AD..R.JSTED RIGHT BANK
MEANDER UNE OF 1872
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GENERAL NOTES.:li~il'r.KE
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a .......)".,'.1342.65'-,<N 55"01'24"W870.87'
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AREA \:*"C.L.2
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SCRIBED "US'"19@ '..•:".....'1........
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S 01"28'39"W
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PROPOR .........I:~~
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----'~
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OF''sHEET
Jo8 NO.
99-16-608
DRAWING NO.
22-076960
NE 1/4 NW 1/4
DETAIL
NO scALE
.~."Y N 88'35'34"W
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• AS REFERENCE TO DaTA AVE
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DNR LEASE EXHIBIT
FOR
CITY OF MARYSVILLE
~)<:h.,brt f'.,~'f
LEASE APPUCA TlON NO.
.MARYSVlll£
WATERFRONT
PARK
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r --,u :rPROPORllONED DISTANCE FROMS88"33'iK E:5 .60' 1ST TO 6TH STREE1S
-4;10.75 ~EAS.-469-'1-:53.50
430.73 CALC PLAT BASED
ON nCORRECTED"PLAT OF
H.B.MEYERS ADDITION f"Ol.IND IINVOLUME.3 OF PLATS.!!l
PAGS;n(735'R/WOTHE:I w::J
I N.UNE OF 6TH &:DELTA •:t.
ij &.66.94'OF R/W 0 THE N.::1 1~
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Ebey Slough Watelfront Park
City of Marysville,Applicant
f
:~hoYJlIRF.'r ,.,..•••!:.:0
I·
f WAR 212005,
Exhibit "Bf 'to Harbor Area Lease No.22-07~960
L_._...._...
Plan of Operation/Maintenance,and Development
A) The planning and funding of the project started in the late 1990's.Final design
.and permitting of the projectstarted in 2001 immediately following adoption by
the City Council of the Master Plan.Construction commenced in August 2004
with construction completion scheduled for August,2005.Maintenance of
landscaping,utilities,storm sewerwill be performed by Marysville Parks and
Public Works as necessary on weeklyor monthly basis.
B) No phasing of the projectwill occur.
C)Operation of the parkfor public use will be administered by the Marysville
Department of Parks and Recreation.Boat launch fees will be conducted viaa
self-service ticket dispenser,with annual passes available for purchase at City
Hall in lieu of single use tickets.
D) The privately.iand in some cases,publldy owned watercraftwill carry flammable
fuel and minortoxic and corrosive materials (e.g. battery acid)typical of
recreational boating.Monitoring of recreational boat launching operations will be
the responsibility of Marysville Parks &Recreation,with law enforcement and
emergency services provided by Marysville Police &Fire andSheriff.
E)Boats to be launched are not expected to exceed 30'in length. The boat ramp
will be maintained by removing sediment by hand laborand appropriate power
equipment such as loader/backhoes.Maintenance of wetland restoration areas
should be limitedto hand and pruning weeding.
F) No authorized waste charges will be allowed eitherin the DNR lease area or
remainderof the park.
G)Best ManagementPractices includetreatingthe sitestormwater runoff through a
bloflltratlon swale priorto discharge into Ebey Slough.The parking lot will be
sweptby Public Works Road Maintenance onaregular basis.The illicit
discharged of any hazardous materials will be handled through established
emergency procedures.
H)Regulatory agencies have requested aquatic resources features consistent with
the conditions of permits enclosed in the Application for Authorization to Use
state-owned Aquatic Lands.
I)The federal andstateregulatory agencies have required the restoration ofthe
shoreline by demolishing an existing timber bulkhead,grading the horizontal
alignmentto natural meander,excavating the grade to a miniumum3:1
sideslope,the installation of wetland and wetland buffer plantings,all to mitigate
the impacts of existing wetlands displaced by construction of the boat ramp.
G:\shared\eng\P9405\Aquatic land lease Exh B.doc