HomeMy WebLinkAbout0347 - WA State - Agreement - Aquatic Lands Outfall Easement,'
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND,Commissioner of Public Lands
AQUATIC LANDS OUTFALL EASEMENT
AQUATIC LANDS EASEMENT NO.51-077970
THIS EASEMENT is made by and between the STATE OF WASHINGTON,acting through the
Department of Natural Resources (State), and CITY OF MARYSVILLE,a govemment entity
(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 Rights of Third Parties.This Easement 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 the federal
navigation servitude;and treaty rights of Indian Tribes. Not included in this Easement are any
right to harvest or collect 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
Easement Property to others when the easement or other land uses will not unreasonably
interfere with Grantee's Permitted Use.
1.3 Inspection.State makes no representation regarding the condition of the Easement
Property,improvements located on the Easement Property, the suitability of the Easement
Property for Grantee's Permitted Use,compliance with govemmentallaws and regulations,
availability of utility rights, access to the Easement Property or the existence of hazardous
Form Date: May, 2005 I Agreement No.51-077970
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substances on the Easement Property.Grantee has inspected the Easement Property and accepts
it "AS IS."
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.
SECTION 2 USE OFEASEMENT
2.1 Permitted Use.This Easement is granted for the purpose of and is limited to
constructing,installing,operating,maintaining,and repairing the outfall pipeline shown in
Exhibit A ("Permitted Use")and Exhibit B,("Plan of Operations").No modification to the
permitted use shall be allowed without State's prior written consent.Any modification to the
improvements approved under this subsection shall only be undertaken after complying with
Sections 6 and 13.The outfall,and associated facilities that make use of the outfall,shall be
constructed and operated in accordance with the provisions of the Plan of Operations contained
in Exhibit B.
2.2 Restrictions on Use.Grantee shall not cause or permit any damage to natural resources
on or adjacent to the Easement Property.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, on, or adjacent to the Easement Property,
except as approved in writing by State or pursuant to discharges made in full compliance with a
valid NPDES permit.Grantee shall neither commit nor allow waste to be committed to, on, or
adjacent to the Easement Property.If Grantee fails to comply with all or any ofthe restrictions
on use set out in this Subsection 2.2, State may terminate this Easement in accordance with
Section 12 and, at State's discretion,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 in, on, or
adjacent to the Easement Property.This section shall not in any way limit Grantee's liability
under Section 8, below.
The prohibitions in this section against damage to natural resources,filling,deposition of any
unapproved materials,and waste, shall also apply to protect state-owned aquatic lands adjacent
to the Property from any of Grantee's activities related to Grantee's occupation of the Property.
All obligations imposed by this section on Grantee to cure any violation of the prohibited
activities in this section shall also extend to state-owned aquatic lands adjacent to the Property
when the violation arose from Grantee's activities related to Grantee's occupation of the
Property.
2.3 Conformance with Laws.Grantee shall, at all times,keep current and comply with all
conditions and terms of any permits,licenses,certificates,regulations,ordinances,statutes,and
other government rules and regulations regarding its use or occupancy of the Easement Property.
Form Date: May, 2005 2 Agreement No.51-077970
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This includes,but is not lirnited to, all state and federal laws,regulations,order or permits
governing the construction,operation,repair and maintenance ofthe outfall pipeline shown in
Exhibit A.
2.4 Liens and Encumbrances.Grantee shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use or occupancy of the Easement
Property.
2.5 Amendment upon Change of Permit Status.This Easement is granted in reliance upon
Grantee's agreement to operate an outfall in substantially the same manner as described in the
regulatory permits it has obtained as of the date this Easement was executed,and in full
compliance with those permits.State reserves the right to amend the terms and conditions ofthis
easement in those cases where any regulatory permit (including,but not limited to, any National
Pollutant Discharge Elimination Systems (NPDES)Permit,Hydraulic Project Approval,U.S.
Army Corps of Engineers Section 404 Permit, or Shoreline Substantial Development Permit)is
modified in any manner that affects the performance of any obligation or covenant under this
Easement.This right to amend the Easement shall expressly include those circumstances where
the permit is modified to allow for a change in the manner in which the outfall is operated,or a
change in the type, quality, or quantity of effluent being discharged. State similarly reserves the
right to amend this Easement where Grantee fails to operate in conformance with its permits and
where such failure could affect the lands and natural resources associated with the Easement area
and any adjacent state lands or natural resources.This right to amend the Easement shall operate
independent of any right to terminate the Easement pursuant to Section 12 or any other provision
of this Easement.In the event that Grantee disagrees with any amendments that are required by
State under this Subsection,Grantee's sole option shall be to request that the Easement be
terminated upon sixty days written notice.In the event that the Easement is terminated under
these circumstances,Grantee shall be allowed a pro rata reduction in any fees paid under
Subsection 4.1 for the remaining unused Term,with the exception that no refund of any fees
shall be provided if the outfall is allowed to remain in place pursuant to the provisions of
Subsection 13.4.
SECTION 3 TERM
3.1 Term Defined.The term of this Easement is Thirty (30) years (the "Term"),beginning
on the 1st day of July,2004 (the "Commencement Date"),and ending on the 30th day of June,
2034, (the "Termination Date"),unless renewed pursuant to subsection 3.2 or terminated sooner
under the terms of this Easement.
3.2 Renewal of the Easement.No interim renewals are contemplated.Grantee may apply
for a new easement prior to, or upon expiration of this easement. Any renewal application will
be evaluated using the statutes,guidelines and policies utilized by State at the time the
application is being reviewed in conjunction with the provisions of Subsection 3.3.
3.3 Development of Disposal Alternatives.Grantee acknowledges that it is State's goal to
reduce the reliance on the receiving waters of Washington State for the disposal of waste
Form Date: May, 2005 3 Agreement No.51-077970
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effluent,stormwater and other discharges,and to promote water re-use.Any renewal of this
easement shall be dependent upon Grantee's satisfactory progress towards the implementation of
reasonably practical disposal alternatives that abate the effect of the pollution constituents on
state-owned aquatic lands and their associated biological communities.To assure that such
progress is made during the Term of this Easement,Grantee shall submit a written report at the
time of application to renew the NPDES Permit,or every five (5) years,whichever is sooner.
The report will identify:(1)activities undertaken since the previous report to reduce discharges
as well as efforts to decrease chemical,biological and physical impacts to state-owned aquatic
lands and their associated biological communities;and (2)current and future plans,including
funding,for reducing discharges and decreasing chemical,biological and physical impacts to
state-owned aquatic lands and their associated biological communities.In any request for
renewal,if Grantee has not provided evidence satisfactory to State, that it is making progress
towards disposal alternatives that abate pollution impacts,the State may require Grantee to
undertake a thorough investigation and analysis of reasonably practical disposal alternatives to
the Permitted Use.If such review is required,it shall be completed prior to any renewal of this
Easement.In the alternative,State may rely on its own alternatives analysis in accordance with
WAC 332-30-122 and such other regulations as State has or may promulgate.Grantee
acknowledges that the processing of any renewal application is contingent upon compliance with
this Subsection 3.3, and that State is under no obligation to issue a new Easement.Grantee
further acknowledges that a failure to anticipate and conduct the disposal alternatives
investigation and analysis may delay or prevent renewal of this Easement.
3.4 Delay in Delivery of Possession.If State, for any reason whatsoever,cannot
deliver possession of the Easement Property to Grantee on the Commencement Date,this
Easement shall not be void or voidable,nor shall State be liable to Grantee 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 any Use
Fee.In the event Grantee takes possession before the Commencement Date,the date of
possession shall be the Commencement Date for all purposes,including the payment of any Use
Fee.If the Easement Term commences earlier or later than the scheduled Commencement Date,
the Termination Date shall be adjusted accordingly,
3.5 End of Term.Upon the expira.tion or termination of this Easement,Grantee shall
surrender the Easement Property to State in the same or better condition as on the
Commencement Date.
SECTION 4 USE FEE
4.1 Fee.Pursuant to RCW 79.90.470 and RCW 79.90.575,so long as the Permitted Use is
consistent with the purposes ofRCW 79.90.450 through RCW 79.90.460 and does not obstruct
navigation or other public uses of Steamboat Slough and its surrounding waters,this use is
Granted to government owned public utilities for the cost of administrative fees associated with
_the processing of the application and document,plus the cost of administrative fees associated
with the processing of any future application made with respect to this easement for the term
specified in Section 3.1 (Term Defined).The use fee specified pursuant to RCW 79.90.575 shall
Form Date: May, 2005 4 Agreement No.51-077970
be paid upon execution of this easement.Any administrative fees shall be paid within thirty (30)
days after a bill is submitted to Grantee.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 ofthe Easement Property.
4.2 Payment Place.Payment for any annual Use Fee or other sum payable to State under
the terms ofthis agreement is to be made to State at the following address:
DEPARTMENT OF NATURAL RESOURCES
Financial Management Division
1111 Washington St SE
POBox 47041
Olympia,WA 98504-7041
4.3 Late Charges and Interest.If any Use Fee or sum payable to State under the terms of
this Easement 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 ofthe payment or Fifty Dollars
($50),whichever is greater,to defray the overhead expenses of State as a result ofthe 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 (I %)per month until paid.
4.4 No Accord and Satisfaction.If Grantee pays, or State otherwise receives,an amount
less than the full amount then due, State may apply such payment as it elects.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 Use Fee due.State may accept any payment
in any amount without prejudice to State's right to recover the balance of the Use Fee 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.
4.5 No Counterclaim, Setoff, or Abatement of Use Fee.Except as expressly set forth
elsewhere in this Easement,the Use Fee and all other sums payable by Grantee pursuant to this
Easement 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 5 COORDINATION OF ACTIVITIES
Grantee shall coordinate the dates of its construction and other major activities on the Easement
Property with State.Except in the case of an emergency,Grantee shall provide State with
written notice of its intent to enter upon the Easement Property at least five (5) days prior to
entry.
Form Date: May, 2005 5 Agreement No. 51-077970
SECTION 6 MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS
During the term of this Easement,Grantee shall maintain the outfall pipeline,and any other
Improvements on the Easement Property,in good condition and working order.Subject to the
limitations in Section 13,Grantee shall promptly repair, at its sole cost, all damages to any
improvements on the Easement Property,or to any natural resources on or adjacent to the
Easement Property,which are caused by Grantee's activities. All work performed by Grantee
shall be completed in a careful and workmanlike 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.Pursuant to Section 13 of this Easement,State's prior written
consent and approval shall be required prior to undertaking any significant work within the
Easement Property,but shall not be required for any routine maintenance or repair of
improvements made by the Grantee pursuant to its obligation to maintain the Easement Property
in good order and repair.Exhibit B describes the routine maintenance that does not require
State's prior consent.In the event of an Emergency,Grantee may take reasonable steps to abate
the emergent event, but shall promptly notify State in writing of the actions it has taken and that
it proposes to take thereafter. Once the immediate emergency is under control, any further work
shall require State's prior written consent in accordance with the provisions of this Easement.
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 ofthe Easement Property or with the
public's right to use Steamboat Slough and its associated waters 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.Grantee shall also mark or record the location of the Permitted Use and any
related improvements in such locations and with such publications as are necessary to give
reasonable notice to the public of the existence of any hazards associated with the improvements,
and the location and limitations,if any,of the improvements.The signs and notices shall
identify the type of installation (e.g., an outfall pipe) and shall identify Grantee as the person
responsible for the Permitted Use and its maintenance.
SECTION 8 ENVIRONMENTAL LIABILITYIRISK ALLOCATION
8.1 Definition."Hazardous Substance"means any substance which now or in the future
becomes defined or regulated 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.l05D.01O et seq.
Form Date: May, 2005 6 Agreement No.51-077970
8.2 Use of Hazardous Substances.Grantee covenants and agrees that Hazardous
Substances will not be used, stored, generated,processed,transported,handled,released,or
disposed of on, in, under, or above the Easement Property, except in accordance and compliance
with all applicable laws,permits or licenses.
8.3 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 8.3 includes, but is not limited to, the following
requirements:
(I)Grantee shall not undertake activities that will cause,contribute to, or
exacerbate contamination ofthe 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)Ifrequested,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
(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.
Form Date: May, 2005 7 Agreement No.51-077970
(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. The
standard of care required of Grantee by this Subsection 8.3 shall be that required
of a person with actual knowledge of the presence of Hazardous Substances,
whether or not Grantee had such actual knowledge.
8.4 Notification and Reporting.
(a) Grantee shall immediately notify State if Grantee becomes aware of any of the
following:.
(I)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 Tenant 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.
8.5 Indemnification and Burden of Proof.
(a)Notwithstanding any NPDES permit or other permit or license that authorizes the
discharge or release of Hazardous Substances or other deleterious substances,
Grantee shall fully indenmify, 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:
Form Date: May, 2005 8 Agreement No.51-077970
(1) The use,storage,generation,processing,transportation,handling,or
disposal of any Hazardous Substance by Grantee,its sub grantees,
contractors,agents,employees,guests,invitees,or affiliates in, on,under,
or above the Easement Property or any adjoining property during the term
of this Easement or during any time when Grantee occupies or occupied
the Easement Property or any adjoining property;
(2) The release or threatened release of any Hazardous Substance in, on,
under,or above the Easement Property or any adjoining property,which
release or threatened release occurs or occurred during the term of this
Easement or during any time when Grantee occupies or occupied the
Easement Property or adjoining property and as a result of:
(i)Any act or omission of Grantee,its sub grantees,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.
(3) A breach of the obligations of Subsection 8.3,above,by Grantee,its
subgrantees,contractors,agents,employees,guests,invitees,or affiliates.
(b)Grantee will have use of and access to the Easement Property.Accordingly,if
State seeks to impose liability under Subsection 8.5(a),State will have the initial
burden of proving by a preponderance of the evidence the existence,release,or
threatened release of Hazardous Substances in, on, under, or above the Easement
Property or any adjoining property.Grantee shall then have the burden of proving
by a preponderance of the evidence that none of the indemnification provisions
apply.
8.6 Cleanup. If a release of Hazardous Substances occurs on, in,under,or above the
Easement Property or other State-owned property arising out of any action or inaction described
or referred to in Subsection 8.5 above,Grantee shall, at its sole expense,promptly take all
actions necessary or advisable to clean up the Hazardous Substances.These 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 shall also be solely
responsible for all cleanup,administrative,and enforcement costs of governmental agencies,
including natural resource damage claims.Any cleanup shall be performed in a manner
approved in advance in writing by State,except that in emergency situations Grantee may take
reasonable and appropriate actions without advance approval.
Form Date: May, 2005 9 Agreement No.51-077970
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8.7 Sampling.
(a) As a condition of State entering into this Easement,Grantee agrees to promptly
conduct the environmental investigation specified in Exhibit B (Section 8)of this
document.The investigation specified in Exhibit B will be conducted in
accordance with generally accepted scientific methods and principles.State shall
be provided the opportunity to review and approve the sampling and analysis
plan.
(b)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 8.5, above,Grantee shall promptly reimburse State for
all costs associated with such Tests.
(c)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.
(d)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.
(e)Within thirty (30)calendar days of a written request (unless otherwise required
pursuant to Subsection 8A(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 sununaries or expert opinion work product.
8.8 SedimentInvestigation.
(a)If State has reason to believe that a release or threatened release of Hazardous
Substances has occurred on the Easement Property during Grantee's occupancy,
Form Date: May, 2005 10 Agreement No.51-077970
State may require Grantee to conduct a Closeout Environmental Assessment
(Closeout Assessment)by providing Grantee with written notice of this
requirement no later than one hundred eighty (180)calendar days prior to the
Termination Date, or within ninety (90) days of any valid notice to terminate the
easement earlier than originally agreed. The purpose of the Closeout Assessment
shall be to determine the existence,scope, or effects of any Hazardous Substances
on the Easement Property and any associated natural resources.If the initial
results of the Closeout Assessment disclose the existence of Hazardous
Substances that may have migrated to other property,State may require additional
Closeout Assessment work to determine the existence,scope, and effect of any
Hazardous Substances on adjoining property,any other property subject to use by
Grantee in conjunction with its use ofthe Easement Property,or on any associated
natural resources. The Closeout Assessment may include Sediment Sampling.
Any Sediment Sampling must include those sample locations and parameters
reported in Grantee's Sediment Investigation Report completed at the initiation of
this Easement as well as any additional testing requirements State may require
based on changes in scientific,statutory, or regulatory standards for information
concerning the activities of Grantee, its subgrantees,contractors,agents,
employees,guests, invitees, or affiliates.
(b)Prior to undertaking the Closeout Assessment,Grantee shall submit a proposed
plan in writing for State's approval. The plan shall be provided to State within
sixty (60) days of the State's notice requiring the Closeout Assessment.If State
fails to respond in writing, either approving or disapproving of the proposed plan,
within sixty (60) days of its receipt, the proposed plan shall be deemed approved.
Grantee shall be responsible for all costs required to complete planning,sampling,
analyzing,and reporting associated with the Closeout Assessment.
8.9 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
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:
Form Date: May, 2005 11 Agreement No.51-077970
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SECTION 9 NATURAL RESOURCE DAMAGES
9.1 Impacts to Natural Resources.In accordance with Subsection 2.2, Grantee's use or
occupation ofthe Easement Property must be undertaken in a manner that will not result in any
damage to natural resources on or adjacent to the Easement Property, In the event that Grantee's
use or occupation of the Easement Property results in damage to natural resources,Grantee shall
be in default of this Easement agreement and State may exercise its right to terminate the
Easement pursuant to Section 12 ofthis agreement in addition to any other remedies available to
State under Sections 8 and 9 of this agreement or at law or in equity.
9.2 Mitigation for Unanticipated or Excessive Natural Resource Damages.Grantee
agrees that if any natural resources are lost or damaged as a direct or indirect result of the
Permitted Use, then Grantee shall be required to undertake the following steps:
(a) Grantee shall be required to prepare and implement a written plan for eliminating
or minimizing any future impacts that is satisfactory to State;
(b) To the extent that it is not possible to avoid impacts, Grantee shall be required to
prepare and implement a plan for the replacement of any lost or damaged natural
resource values that is satisfactory to the State;
(c) Grantee shall be required to prepare and implement a written plan for monitoring
and reporting on the implementation of all actions required under Subsections
9.2(a) and (b)that is satisfactory to State.
(d) To the extent that lost resource values cannot be replaced, or continue to be
damaged, Grantee shall pay State for the value of the lost or damaged resource
values. In the event the parties to this Agreement cannot agree upon any measure
of damages, a three-member panel of appraisers shall be appointed,consisting of
natural resource economists. One member shall be appointed by and at the cost of
State, one member by and at the cost of Grantee, and the third member by mutual
agreement of the first two panel members with the cost to be borne equally by
State and Grantee. The decision of a majority of the members of the panel shall
be made based upon generally accepted valuation principles utilized by natural
resource damage trustees in Comprehensive Environmental Response,
Compensation,and Liability Act and Model Toxic Control Act proceedings.The
decision.shall be binding on the parties to this Agreement.
9.3 Indemnification.Notwithstanding any mitigation plan, any regulatory permits or licenses
authorizing discharges, or any other provision in this Agreement (including subsection 2.1),
Grantee shall indemnify,defend, and hold the State harmless from all claims for damages to, or
the loss of,natural resource values that are made against the State as a direct or indirect result of
Grantee's Permitted Use,including all resource claims brought by Indian tribes,other federal,
state, or local agencies, or members of the public. No damages or fees paid by Grantee to State
under any other provision of this Agreement shall be allowed as a setoff against Grantee's
Form Date: May, 2005 12 Agreement No.51-077970
obligations under this Subsection 9.5 to indemnify,defend, and hold the State harmless against
the claims of third parties.
SECTION 10 REPORTING
Grantee shall, at State's request,provide State with copies of all reports, studies, or audits which
pertain to environmental problems and concerns associated with the Easement Property,and
which are or were prepared by or for Grantee and submitted to any federal, state, or local
authorities as required by 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 Substantial Development Permit.
SECTION 11 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 U.S. General Land Office standards, at Grantee's own expense.
Corners andlor witness objects that must necessarily be disturbed or destroyed in the process of
construction of improvements must be adequately referenced andlor 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
andlor witness objects.
SECTION 12 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 sixty (60) days of State's notice.If the
breach is not reasonably capable of being cured within the sixty (60) days, Grantee shall
commence the cure within the sixty (60) 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 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 sixty (60) days written notice of its
intent to terminate the Easement,in a form satisfactory to State.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.
Form Dale: May, 2005 13 AgreemenINo.51-077970
SECTION 13 OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND
EQUIPMENT
13.1 Existing Improvements.On the Commencement Date, the following improvements are
located on the Easement Property;Twenty-eight inch diameter polyethylene effluent diffuser
pipeline.These improvements are not owned by State "Existing Improvements."
13.2 Grantee-Owned Improvements.So long as this Easement remains in effect,Grantee
shall retain ownership of all Existing Improvements,and all improvements and trade fixtures it
may place on the Easement Property in accordance with Subsection 2.1 (collectively
Grantee-Owned Improvements as more fully described in Exhibits A and B).Grantee-Owned
Improvements shall not include any construction,reconstruction,alteration,or addition to any
Unauthorized Improvements as defined in Subsection 13.5 below.No Grantee-Owned
Improvements shall be placed on the Easement Property without State's prior written consent.
13.3 Construction.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. A "major repair"or an "alteration"
shall be defined as any work performed within the Easement Property that substantially changes
the configuration or location of any Improvement or that may result in substantial adverse
impacts to the environment.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.Upon completion of construction,Grantee
shall promptly provide State with as-built plans and specifications.Routine maintenance and
emergency maintenance activities shall be undertaken in accordance with the provisions of
Section 6.
13.4 Removal.Upon the termination of this Easement without any renewal,Grantee shall
remove or retire any improvements located upon the Easement Property in accordance with the
provisions ofthis Subsection and shall restore the Easement Property to a condition substantially
similar to its natural state prior to the construction and operation of the outfall.
(a)Notification.Prior to, or within one hundred eighty (180) days after, the
Termination Date, State shall notify Grantee in writing whether it intends to
require the removal of the improvements or whether the improvements shall be
abandoned in place.In the event State fails to provide any notice of its intent,
Grantee shall remove the improvements in accordance with the provisions ofthis
Subsection.
(b)Removal.In those cases where the improvements shall be removed,Grantee
agrees to provide a written plan, to be approved in writing by State, for the
removal of the improvements and for the restoration of the Easement Property.
The plan shall identify a timeline for removal and restoration,shall identify any
impacts to the Easement Property,associated natural resources,or surrounding
lands and resources,and shall identify any measures needed to restore the
FormDate:May,2005 14 AgreemenINa.51-077970
Easement Property.In those cases where State determines that the proposed
removal would disrupt existing state lands or natural resources and would be
detrimental to the long term use and management ofthe state's lands and
resources,State may notify Grantee that the improvements must be abandoned in
place in accordance with the provisions of this Subsection.
(c)Abandonment.In those cases where the improvements shall be abandoned in
place, Grantee agrees to provide a written plan, to be approved in writing by
State, for abandonment and restoration. The plan shall identify a timeline for
abandonment and restoration,shall identify the location of the improvements,
shall propose a suitable means for plugging any abandoned pipelines,shall
identify the means for notifying the public of the existence of any abandoned
improvements,and shall identify any measures needed to restore the Easement
Property.In those cases where State determines that the proposed abandonment
would be detrimental to the long-term use and management ofthe state's lands
and resources,State may notify Grantee that the improvements must be removed
in accordance with the provisions of this Subsection.
(d) Plans for Removal or Abandonment.Grantee shall provide the plan for removal
or abandonment within ninety (90) days after the actual or deemed notification of
state's removal or abandonment requirement is provided. State shall then have
ninety (90) days in which to approve or reject the plan.State's failure to respond
within the time allowed shall be deemed an approval of the plan.
(e) Costs to Remove or Abandon,and to Restore. Grantee agrees to undertake the
removal and disposal of the improvements,or the abandonment of the
improvements,and the restoration of the Easement Property, at its sole cost and
expense. Grantee agrees to perform any removal and restoration activities in a
prompt and expeditious manner upon approval of any plans.If Grantee fails to
timely meet its obligations under this Subsection State may perform Grantee's
obligations and seek reimbursement.
(f)Ownership of Abandoned Improvements.Any improvements that are allowed to
be abandoned in place shall become the property of State without any payment by
State.
To the extent that Grantee-Owned Improvements include items of personal property which may
be removed from the Easement Property without harming the Property,or diminishing the value
of the 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.
13.5 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
Form Date: May, 2005 15 Agreement No.51-077970
approved by State in Exhibit A (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 a Use Fee 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.
SECTION 14 INDEMNITY
Grantee shall indemnify,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 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. This section shall not in any way limit
Grantee's liability under Section 8 or Section 9, above.
SECTION 15 INSURANCE
15.1 Financial Secnrity.
(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 8 (Environmental LiabilitylRisk 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 ofthe 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.
15.2 Insurance.At its own expense, Grantee shall procure and maintain during the Term of
this Easement,the insurance coverages and limits described in Subsections 15. 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.
Form Date: May, 2005 16 Agreement No.51-077970
(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 Property
and/or arising out of Grantee's operations.Ifnecessary,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 of this Easement;
(ii)Upon any breach of Section 8, above;
(iii)Upon a material change in the condition of the Property or any
improvements;or,
(v)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 CompensationlEmployer'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 with limits
not less than those specified below.Insurance must include bodily
injury coverage with limits not less than those specified below:
Form Date: May, 2005 17 Agreement No.51-077970
Each Employee
By Accident
$1,000,000
By Disease
$1,000,000
Policy Limit
By Disease
$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
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:
Description
Bodily Injury and Property Damage
Each Accident
$1,000,000
(6)Contractor's Pollution Liability.Grantee shall obtain procure and
maintain contractor's pollution legal liability,including investigation and
defense costs, for bodily injury and property damage,including loss of use
of damaged property or ofproperty that has been physically damaged or
destroyed.Such coverage must provide for both on-site and off-site clean-
up costs,cover gradual and sudden pollution,and includes in its scope of
coverage natural resource damage claims.Coverage shall be maintained
in an amount of at least:
1.$1,000,000 each occurrence for contractor's operations at the site(s)identified
above; and
2.If the policy contains a general aggregate limit or policy limit, it shall be at least
$2,000,000.
Such insurance may be provided on an occurrence or claims-made basis.If such coverage is
obtained as an endorsement to the CGL and is provided on a claims-made basis, the following
additional conditions must be met:
(i) The Insurance Certificate must state that the insurer is covering
hazardous substance removal.
Form Date: May, 2005 18 Agreement No.51-077970
(ii)The policy must contain no retroactive date, or the retroactive date
must precede abatement services.
(iii)Coverage must be continuously maintained with the same
insurance carrier through the official completion of any work on
the Easement Property.
(iv)The extended reporting period (tail)must be purchased to cover a
minimum of thirty six (36)months beyond completion of work.
(b)Terms of Insurance.The policies required under Subsection 15.2 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 15.2 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)With the exception of Contractor's Pollution Liability (governed by the
provisions of Subsection 15.2(a)(6)),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 checklist of
coverages provided by State,executed by a duly authorized representative of each
insurer showing compliance with the insurance requirements described in Section
15, 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
Form Date: May, 2005 19 Agreement No.51-077970
expenses.Purchase of these limits of coverage does not relieve the Grantee from
liability for losses and settlement expenses greater than these amounts.
15.3 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 4.3 from the date of State's notice of the expenditure
until Grantee's repayment.
15.4 Self-Insurance.Grantee warrants that it has the capacity to self insure for the risks and
coverages specified in Subsection 15.2.Grantee's obligations under Subsection 15.2 maybe met
by providing evidence of self-insurance that is acceptable to the State.Any evidence of
Grantee's proof of self insurance by State must be obtained in writing. The decision to accept, or
reject,Grantee's proof of self-insurance is within the sole discretion of State. Grantee 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. Grantee shall also provide State with written notice
within seven (7) days of any material change in it ability to self insure, or to its program of self-
insurance.If Grantee elects to discontinue its program of self-insurance,or if State provides
written notice withdrawing its acceptance of Grantee's proof of self-insurance,Grantee shall be
.subject to the requirements of Subsections 15.2 and 15.3. Grantee shall be in compliance with
the requirements of Subsection 15.2 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.
SECTION 16 TAXES AND ASSESSMENTS
Grantee shall promptly pay all taxes, assessments and other governmental charges of any kind
whatsoever levied as a result ofthis Easement or relating to Grantee's improvements constructed
pursuant to this Easement.
SECTION 17 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 18 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:
Form Dale: May, 2005 20 AgreemenINo.51-077970
To State:
To Grantee:
DEPARTMENT OF NATURAL RESOURCES
Northwest Region Office
919 N.Township Street
Sedro-Woolley,WA 98284
CITY OF MARYSVILLE
80 Columbia Avenue
Marysville,WA 98270
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 19 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 20 SUCCESSORS AND ASSIGNS
This Easement shall be binding upon and inure to the benefit of the parties,their successors and
assigns,
SECTION 21 TIME IS OF THE ESSENCE
TIME IS OF THE ESSENCE as to each and every provision ofthis Easement.
SECTION 22 APPLICABLE LAW AND VENUE
This Easement shall be interpreted and construed in accordance with 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 RECORDATION
Grantee shall record this Easement in the county in which the Easement Property is located,at
Grantee's sole expense.Grantee shall provide State with recording information,including the
date of recordation and file number.Grantee shall have thirty (30) days from the
Commencement Date to comply with the requirements ofthis subsection.If Grantee fails to
record this Easement,State may record it and Grantee shall pay the costs of recording upon
State's demand.
Form Date: May, 2005 21 Agreement No.51-077970
SECTION 24 MODIFICATION
Any modification ofthis Easement must be in writing and signed by the parties. State shall not
be bound by any oral representations or statements.
SECTION 25 MISCELLANEOUS
25.1 Authority.Grantee and the person or persons executing this Easement on behalf of
Grantee represent that Grantee is qualified to do business in the State of Washington, that
Grantee has full right and authority to enter into this Easement, and that each and every person
signing on behalf of Grantee is authorized to do so. Upon State's request, Grantee will provide
evidence satisfactory to State confirming these representations. This Easement 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.
25.2 Headings.The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
25.3 Entire Agreement.This Easement, including the exhibits and addenda,if any, contains
the entire agreement ofthe parties. All prior and contemporaneous agreements,promises,
representations,and statements relating to this transaction or to the Easement Property,if any,
are merged into this Easement.
25.4 Waiver.The waiver by State of any breach or default of any term, covenant, or
condition of this Easement 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 ofthis Easement.
25.5 Cnmulative Remedies.The rights and remedies of State under this Easement are
cumulative and in addition to all other rights and remedies afforded to State by law or equity or
otherwise.
25.6 Language.The word "Grantee"as used in this Easement 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.Ifthere is more than one Grantee, their obligations shall be
joint and several. The word "persons,"whenever used, shall include individuals, firms,
associations, and corporations.
Form Date: May, 2005 22 Agreement No.51-077970
25.7 Invalidity.If any provision ofthis Easement shall prove to be invalid,void,or illegal,it
shall in no way affect,impair,or invalidate any other provision ofthis Easement.
THIS EASEMENT requires the signature of all parties and is executed as ofthe date of the last
signature below.
CITY OF MARYSVILLE,
a government entity
Dated:
•
By:,;::;:V4du:cDENNIS~
Title:Mayor Of~
Address:80 Columbia Avenue
Marysville,WA 98270
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
/
Title:Commissioner of Public Lands
Address: 1111 Washington Street SE
Olympia,WA 98504~7027
Approved as to Form in
by Joe Panesko
Assistant Attorney General
State of Washington
Dated:-----~4_-""----
FonnDate:May, 2005 23 Agreement No.51-077970
STATEOF WGtS~}V\')~)
) ss
County of SYlO~~S h.)
Jon he hr,'",~,;;'x:
I certify that I know or have satisfactory evidence that BE1'fNi3 KENDA:L is the person who
appeared before me, and said person acknowledged that he signed this instru~~l'on oatb_stated
that he was authorized to execute the instrument and acknowledged itllff{f{';;'ithecity of
Marysville to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated:0 S -1'-'=5'--...:::0.."'0:>"------_
(Seal or stamp)
STATE OF WASHINGTON)
) ss
County of ThLlr ;:.-toYl )
(Signature)
[//1'e.L",,r VI
(Print Name)
Notary Public in and for the State of Washington,
residing at I11tir '15 v /1/e.
My appointment expires ,p 7-0/-&'1
I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who
appeared before me, and said person acknowledged that he signed this instrument,on oath stated
that he was authorized to execute the instrument and acknowledged it as the Commissioner of
Public Lands, and ex officio administrator of the Department of Natural Resources of the State of
Washington to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Dated:4 /L{/Dip
(Signaluf)')
t.:Jf)f)I +a.
(print Name)
No~~pUbli~e.$tateof Washington,
residing at 4
My appointment expires 5-/q -ott
Form Date: May, 2005 2 Agreement No.51-077970
EASEMENT OESCRIP]ON
AN EASEMENT 70 FEET IN WIOlH ACROSS TI1E FlRST ClASS 110ElANDS AND
BED OF THE NAVIGABLE WATERS OYMED BY THE STAT( Of WASHINGTON
SITUATED IN AND FRONTING ON GO~MENT LOTS 5 AND 6 IN SECllON JJ.
TaMlSHI?.:50 NORTH,RANGE 5 EAST,W.M ..KNOWN AS STEAMBOAT SLOUGH,
SAID EASEMENT BEING 55 fEET SOUltl£ASlERlY AND 15 fEET
NORTH~Y Of 1HE FOLLOWING OESCRIBED UNE:
COMMENCING AT A CONCRETE MONUt.tENT WITH BRASS CAP AT THE EAST
QUARTER CORNER OF SECTION 33,lOlmSHlP 30 NORTH,RANGE 5 EAST W.M.,
FROM WHICH lHE NORTHEAST CORNER OF SAID SECTION SEARS NORlH 00'4;5'
50"EAST 2573.73 FEET;
lHENCE SOUTH 00'33'34"WEST 2739.88 FEET TO lHE SOUTHEAST CORNER
OF SAID SECTION 33;
THENCE NORlH 87'52';J7"WEST A DISTANCE Of 2713.54 FEET TO THE
SOUTH QUARTER CORNER Of SAID SEC110N 33;
THENCE CONTINUE NORTH 87' 52'37»WEST A DISTANCE OF27.90 FEET TO A
POINT HEREIN 'KNOWN AS POINTA AND THE TRUE POINT OF BEGINNING OF
SAID UNE;
TliEtlCE NOR1l1 39"20'52"EAST 62.94 FEETTO "THE UNE Of ORDINARY HIGH
WAlER ON lHE RIGHT BANK OF STEAMBOAT SLOUGH AND lHE TERMINUS OF
SAlD uNE.
ALSO,
BEGINNING AT SAID POINT A:
lliENCE soun-39'20' 52"WEST 346.35 FEET TO THE TERMINUS OF SAID
UNE.
lliE SlOELINESOF SAID EASEMENT SHORlEN1NG AND lENGlliENING SO /OS
TO TERMINATE AT THE ORDINARY HIGH WATER LINE.
LANQ SURVEYORS CER]F1CATE
THIS MAP CORRECTI.Y REPRESENTS A SURVEY MADE BY ME OR UNDER MY
DIRECTION IN CONfORMANCE WITH THE REQUIREMENTS OF THE SURVEY
RECORDING ACT AT THE REQUEST Of CITY Of MARYSVlLLE,2005.
1:-:tid b'.L;..7L
T CERTlflCA'W'NO.15023
EQUIPMENT AND PROCEPURES
ALL MEASUREMENTS WERE MADE WIlli AN ELECTRONIC THEODOl..ITE WITH
A ONE SE~D HORIZONTAL AND VERTICAL DISPLAY AND MANUFACTURERS
STANDARD POINllNG DE'VlATlON OF lHR£E SECONDS AND AN ELECTRONIC
DISTANCE MEASUft!NG DEVICE WItH A STANDARDDE\I1ATlON OF 5MM :!:5PPM
nan TRAVERSE METHOD IN COMPLIANCE WITH WAC.332-130-090
ALL pOINTS INOlCA1£O FOUND 'l.£RE VISITED IN MAY.2005 UNl.£SS
OtHERWISE NOTED.
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CONFORMEO COpy2006011050093PGS
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0550004
SHEET Of
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DRAWING NO.
51-077970
EXHIBIT A-l
EASEMENT APPUCAllON NO.
STEAMBOAT SLOUGH
ONR EASEMENT EXHIBIT
FOR
CITY OF MARYSVILLE
PIN:SH 1/4 se 1/4 ole SE 1/4 SH 1/~SEC.JJ.T30N.R5E.W.M.
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(206)632-2664 {5lI')662-1761 (509)826-56/i1 (253)472·199:
HAMMOND COLLIER~.•..~
WADE LIVINGSTONE ~p;'
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1lAlf:I'llIHlED 11/15/05
GENERAL NOTESIl1IREVISIONS
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JOB NO.
0550004
DRAwfr'lG NO.
fSiIffi
51-077970
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EXHIBIT A-2
THEOREllCAL QUARTER OR SECTION CORNERS
EXISTING QUARTtR OR SECTION CORNERS
MC '"MEANOER CORN~we =WITNESS CORNER
GLO =GOVERNMENT LAND OFACE
CH =CHAINS
SCALE IN FEET
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EASEMENT APPLICATION NO,
STEAMBOAT SLOUGH
ONR EASEMENT EXHIBIT
FOR
CITY OF MARYSVILLE
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G£NERAL NOTES,<:II RE\I\SIONS
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FOUND MON.iN CASE 1969~CASED PIPE (2-19-1969)
29 28 N_~8"32'33~W N 88'.}5'34-W Jf'27
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SET CONe FOUND CASED MON.1969 /
15 CH =990' GLO 1872 MON.IN 1969.:fOUND CONe MONUMENT 19S9.../
987.41 PROPORTIONED AS w.e.23.36 ~•
AGAINST S.BANK M C.~Os~o~c.tJ b
G.L 1 .£'lj"!I
SINGlE PROPOR110NED N 71'01'24"W ~Ig:I
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1872 MC."OBU1ERA1ED"!~CALC POSIllON SINGlE <,--./N 55'Ol'2f W
ACCEf>iED POINTFOUND AND ~I PROPORllON 1903 ale I "870.87
USED BY HOWARD SEIVERS IN 'FOR EST Of SW COR Wi ...
1938 SURVEY FOR CANYON LU NE 1/4 NW 1/4-~.\.-1-c:L 2 •
CREEK LOGGING CO. (ON 1'1L.£•SET CONe MON IN 1969 1;5 ~~~I~
AT SNO.COUNTY ENGRS OFFICE)ill AS we.32116 S OF •to '0.'i>l'",'!D"•0 ~~pia>I~~M.C.posmON s ~'1,',,"'..""~
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SINGlE PROPORTION 1903 GLot I·1~AT INTERSECllON OF FENCES IN 1969
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PROPORTIONED N-S POSltlON""",,-.615.05'STEAMBOAT SLOUG'H "">;_683.39'2.24CH '"147.84 '\¥ACC£PTED FENCE (OCCUPATION) E 131769i744
............32 "-,SINGLE PROPORTION FOR SECTION UNE FOUND STONE WITH CHlSELEO
__.N 87'52'37"W I \36 CHAlfIIS ..~376'FUll.toIR,E 148.78 2.500'S OF O'TR CORNER 1969 CROSS MARCH 1992C:>.___•______2442.18'N 87'52'37 W ~34 ~
5 2713.54 --,----N 8rs2'3~7~"~WL__~
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:S 89' E l'l eA..:.L-~8:.£-LB3'E \2A2O'"(:INGlE PROPORTION
--792.00;----'369.60'600.60'264.QCr-~.$9'
BASIS Of BEARING:NAD 83(91 <'>;;<,~.
WASHINGTON STATE PLANE COORDINATES _NORTH ZONE 0'".9 ~SEE SHEET 3 OF 3
CONTROL POINTS USED:~,:?'f'
MONUMENT 10 NORTHING AGENCY O-'\..
0121 409430.57 SNOHOMISH CQUN1Y
CITY Of MARYSVlll.E
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JOB NO.
0550004
SHEET
DRAWINGNO.
51-077970t.A~I:.Mt:NT APPUCAnoN NO.
STEAMBOAT SLOUGH
ONR EASEMENT EXHIBIT
FOR
CITY OF MARYSVILLE
EXHIBIT A-3
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GENERAL NOTES
VERTICAL DATUM -NGW 1929
SUPPLEMENTAL ADJUSTMENT
OF 1947
TIDAL 8M J7 406 (E~RETT)
&;8M I 7 (MARYSVILLE)
ORDINARY
HIGH WAlER
LINE
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EXHIBITB
City of Marysville
Aquatic Lands Outfall Easement
Plan of Operations
Easement No.51-077970
SITE DESCRIPTION AND PRESENT USE
This easement is used by the City of Marysville discharging final effluent through an
outfall line to the Steamboat Slough tributary ofthe Snohomish River. The site is shown
in greater detail on Exhibit A of Easement No.5l-077970.
FUTURE USE AND CONDITIONS
The City of Marysville intends to continue operating its Wastewater Treatment Plant
(WWTP)professionally using the Best Management Practices recommended by
Washington Department of Ecology, while keeping the public's interest and the river's
water quality in mind.
EASEMENT TERMS AND CONDITIONS
Permitted Use
The City is authorized to continue to utilize the existing 28"diameter high-density
polyethylene (HDPE)outfall pipe and diffuser to discharge treated sewage effluent into
Steamboat Slough from November 1to June 30 annually in accordance with DOE
NPDES Discharge Permit No. WA-002249-7.
Conformance with Laws
The City of Marysville will provide State with copies of all renewals,modifications,or
appeals of any regulatory permits,approvals, or authorizations relating to City's activities
on the Property.
Amendment upon Change of Permit Status
This Easement is issued based on the assumption that the City activities are not likely to
jeopardize the continued existence oflisted species, and/or that City has consulted with
the relevant agencies and is mitigating the impacts of its activities in accordance with
recommendations from those relevant agencies.If it is shown that City activities on the
I
g:/sh/eng/#S0004WWTP2/DNR Easement outfall operation plan
Property have an unmitigated negative impact on those species, The City of Marysville
and the State will utilize the Adaptive Management Section of this document to remedy
the harm. State reserves the right to amend the terms and conditions of this easement to
reflect remedies so identified.
Development of Disposal Alternatives
Grantee will provide updated reports to the State at each renewal of the NPDES permit for
the project addressing the progress made toward reducing the reliance on the receiving
waters of the state for the disposal of waste effluent and to promote water re-use.Progress
also includes but is not limited to:
·Reduction of inflow and infiltration (I&I)
•Groundwater recharge
·Stream augmentation,industrial process supply,and//or agricultural application
·Water conservation programs
•Other water re-use projects
MAINTENANCE AND REPAIR OF EASEMENT AND
IMPROVEMENTS
Maintenance Defined
Washington DNR defines maintenance as those usual acts designed to prevent a decline,
lapse, or cessation of the approved use and associated improvement/so Maintenance does
not include any expansion of the permitted use nor does it result in any substantive
change from the City of Marysville granted use and associated improvement/so
Maintenance Schedule,Methods and Remedies
The City of Marysville Public Works staff once per month inspects the easement area.
Visual inspection is used to confirm accessibility and ground stability above and around
the outfall line. Any sign of deterioration will be immediately reported to the City's
Wastewater Treatment Plant Supervisor where a damage assessment and action plan is
developed.Washington DNR and DOE will be notified should this occur.
Outfall Evaluation
The City ofMarysville shall inspect the submerged portion of the Steamboat Slough
outfall line and diffuser to document its integrity and continued function.If conditions
allow for a photographic verification,it shall be included in a report. The inspection
report will be submitted to the Department of Ecology by December 2009 along with the
application for DOE NPDES Waste Discharge Permit renewal.
2
g:/sh/eng/#S0004WWTP2/DNR Easement outfall operation plan
,;
ENVIRONMENTAL LIABILITY/RISK ALLOCATION
The State will allow Grantee to adhere to a sediment-sampling schedule determined by
Ecology through the National Pollutant Discharge Elimination System (NPDES) permit.In
the event that Ecology does not require sediment sampling or sampling that is satisfactory to
the State, Grantee may be notified by State to conduct the above-mentioned sediment
sampling. Grantee agrees to comply with any notification by State or Ecology to conduct
initial, baseline, or continued sediment sampling.If Grantee has previously conducted
sediment sampling that may meet the baseline or initial sampling requirements the data
report must be submitted to State in a written report and to the Department of Ecology in
electronic SEDQUAL format",
REPORTING
Permits
In addition to providing a copy of the current regulatory permit, the City of Marysville
agrees to notify Washington DNR in writing of the renewal, modification, rescission, or
appeal of any regulatory permits relating to the City activities on the Easement Property.
General Reporting
The City of Marysville agrees to notify the appropriate WA DNR Land Manager within a
reasonable amount of time during any of the following occurrences:
• Effluent Exceedances- All discharges that exceed the National Pollutant
Discharge Elimination System (NPDES) permit, or otherwise violate the
NPDES permit.
• Outfall Malfunctions- Any and all malfunctions in the authorized structure
(i.e.-breaks in the pipe).
OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND
EQUIPMENT
All construction permits were acquired prior to construction of the diffuser modifications.
1 Ecology 2003.Sediment Sampling and Analysis Plan Appendix:Guidance ou the Development of
Sediment Sampling and Analysis Plans Meeting the Requirements of the Sediment Management
Standards (Chapter 173-204 WAC).Revised April 2003.
,Ecology 1995.Sediment Management Standards,Chapter 173-204.Amended December 1995.
3 http://www.ecy.wa.gov/programs/tcp/smulsediment.html
4 Sediment Quality Information System www.ecy.wa.gov/programs/tcp/smulsedqualfrrst.htm
3
g:/sh/eng/#S0004WWTP2/DNR Easement outfall operation plan
NOTICE
Personnel changes related to the Plant Operator shall be conveyed to Washington DNR at
the time they occur.Should either party deem it necessary,the change may lead to a
meeting whereby the terms and conditions of this contract may be discussed.
Operations Contact WA DNR Contact
Name:
Title:
Address:
Phone:
E-mail:
Larry Larson
Public Works Superintendent
City of Marysville Public Works
80 Columbia Avenue
Marysville,WA 98270
360-363-8119
llarson@ci.marvsville.wa.us
4
Chad Unland
Land Manager
DNR
919 N.Township St.
Sedro Woolley, WA 98284
360-856-3500
chad.unland@wadnr.gov
g:/sh/eng/#S0004WWTP2/DNR Easement outfall operation plan