HomeMy WebLinkAbout201307160464When recorded, return to:
City of Bremerton, Public Works
3027 Olympus Drive
Bremerton, WA 98310
BREMERTON CITY OF 201307160464
07 / 16 /2013 8 10 -50 AM 9800
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WASHINGTON STATE DEPARTMENT OF
Natural Resources
Peter Goldmark -Commissioner of Public Lands
AQUATIC LANDS EASEMENT
Easement No. 51- 089890
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Bremerton
Legal Description: SE '/4 of the SE '/4 of Section 11 and the SW 1 /4 of the SW '/a of Section 12,
Township 24 North, Range 1 East, W.M.
Assessor's Property Tax Parcel or Account Number: Not Applicable
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Easement: Not Applicable
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources ( "State "), and the CITY OF BREMERTON, a government
agency /entity ( "Grantee "). State has authority to enter into this Easement under Chapter 43.12
RCW, Chapter 43.30 RCW, and Title 79 of the Revised Code of Washington (RCW).
THE Parties agree as follows:
SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) State grants and conveys to Grantee a nonexclusive easement, subject to the terms
and conditions of this agreement, over, upon, and under the real property at Port
Narrows, Puget Sound: described in Exhibit A. In this agreement, the term
"Easement" means this agreement and the rights granted; the term "Easement
Property" means the real property subject to the easement.
Aquatic Lands Easement Page 1 of 26 Easement No. 51- 089890
When recorded, return to:
City of Bremerton, Public Works
3027 Olympus Drive
Bremerton, WA 98310
v
WASHINGTON STATE DEPARTMENT OF
Natural Resources
Peter Goldmark. Commissioner of Public Lands
AQUATIC LANDS EASEMENT
Easement No. 51- 089890
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Bremerton
Legal Description: Sections 1 I and 12, Township 24 North, Range 1 East, W.M.
Assessor's Property Tax Parcel or Account Number: Not Applicable
Assessor's Property Tax Parcel or Account Number for Upland parcel used in conjunction with
this Easement: Not Applicable
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting through
the Department of Natural Resources ( "State "), and the CITY OF BREMERTON, a government
agency /entity ( "Grantee "). State has authority to enter into this Easement under Chapter 43.12
RCW, Chapter 43.30 RCW, and Title 79 of the Revised Code of Washington (RCW).
THE Parties agree as follows:
'EXCISE TAX EXEMPT J11N 2 5 2013
SECTION 1 GRANT OF EASEMENT
1.1 Easement Defined.
(a) State grants and conveys to Grantee a nonexclusive easement, subject to the terms
and conditions of this agreement, over, upon, and under the real property at Port
Narrows, Puget Sound: described in Exhibit A. In this agreement, the term
"Easement" means this agreement and the rights granted; the term "Easement
Property" means the real property subject to the easement.
Aquatic Lands Easement Page 1 of 26 Easement No. 51- 089890
(b) This Easement is subject to all valid interests of third parties noted in the records
of Kitsap County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
federal navigation servitude; and treaty rights of Indian Tribes.
(c) This Easement does not include any right to harvest, collect or damage any
natural resource, including aquatic life or living plants, any water rights, or any
mineral rights, including any right to excavate or withdraw sand, gravel, or other
valuable materials.
(d) This Easement does not include the right to grant easements and franchises to
third parties. State reserves the right to reasonably grant, condition, or approve all
third party easements and franchises regardless of whether the third party's use is
incidental to the Easement. State shall not unreasonably condition or deny third -
party easements or franchises necessary for continuation of utilities, including
communication systems.
1.2 Survey and Easement Property Descriptions.
(a) Grantee prepared Exhibit A, which describes the Easement Property. Grantee
represents that Exhibit A is a true and accurate description of the Easement
boundaries and the improvements to be constructed or already existing in the
Easement area. Grantee's obligation to provide a true and accurate description of
the Easement Property boundaries is a material term of this Easement.
(b) State's acceptance of Exhibit A does not constitute agreement that Grantee's
property description accurately reflects the actual amount of land used by
Grantee. State reserves the right to retroactively adjust fees if at any time during
the Term State discovers a discrepancy between Grantee's property description
and the area actually used by Grantee.
1.3 Condition of Easement Property. State makes no representation regarding the
condition of the Easement Property, improvements located on the Easement Property, the
suitability of the Easement Property for Grantee's Permitted Use, compliance with governmental
laws and regulations, availability of utility rights, access to the Easement Property, or the
existence of hazardous substances on the Easement Property.
SECTION 2 USE
2.1 Permitted Use. Grantee shall use the Easement Property for: sewer force main (the
"Permitted Use "), and for no other purpose, including utilities unless specifically identified as
part of the Permitted Use. The Permitted Use is described or shown in detail in Exhibit B.
2.2 Restrictions on Use.
(a) The limitations in this Paragraph 2.2 apply to the Property and adjacent state -
owned aquatic land. Grantee's compliance with this Paragraph 2.2 does not limit
Grantee's liability under any other provision of this Easement.
(b) Grantee shall not cause or permit:
(1) Damage to natural resources,
Aquatic Lands Easement Page 2 of 26 Easement No. 51- 089890
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage,
waste matter, pollutants of any type, or other matter.
2.3 Conformance with Laws. Grantee shall keep current and comply with all conditions
and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding Grantee's use of the Easement Property.
2.4 Liens and Encumbrances. Grantee shall keep the Easement Property free and clear of
any liens and encumbrances arising out of or relating to its use of the Easement Property, unless
expressly authorized by State in writing.
2.5 Interference with Other Uses.
(a) Grantee shall exercise Grantee's rights under this Easement in a manner that
minimizes or avoids interference with the rights of State, the public or others with
valid right to use or occupy the Easement Property or surrounding lands and water.
(b) To the fullest extent reasonably possible, Grantee shall place and construct
Improvements in a manner that allows unobstructed movement in and on the waters
above and around the Easement Property.
(c) Except in an emergency, Grantee shall provide State with written notice of
construction or other significant activity on Easement Property at least thirty (30)
days in advance. "Significant Activity" means any activity that may affect use or
enjoyment by the State, public, or others with valid rights to use or occupy the
Easement Property or surrounding lands and water.
(d) Grantee shall mark the location of any hazards associated with the Permitted Use
and any Improvements in a manner that ensures reasonable notice to the public.
SECTION 3 TERM
3.1 Term Defined. The term of this Easement is Thirty (30) years (the "Term "), beginning
on the 0 day of June, 2013 (the "Commencement Date "), and ending on the 31 day of May
2043 (the "Termination Date "), unless terminated sooner under the terms of this Easement.
3.2 Renewal of the Easement. This Easement does not provide a right of renewal. Grantee
may apply for a new Easement, which State has discretion to grant. Grantee must apply for a
new Easement at least one (1) year prior to Termination Date. State shall notify Grantee within
ninety (90) days of its intent to approve or deny a new Easement.
3.3 End of Term.
(a) Upon the expiration or termination of this Easement, Grantee shall remove
Improvements in accordance with Section 7, Improvements, and surrender the
Easement Property to State in the same or better condition as on the
Commencement Date, reasonable wear and tear excepted.
Aquatic Lands Easement Page 3 of 26 Easement No. 51- 089890
(b) Definition of Reasonable Wear and Tear.
(1) Reasonable wear and tear is deterioration resulting from the Permitted Use
that has occurred without neglect, negligence, carelessness, accident, or
abuse by Grantee or Grantee's contractors, agents, invitees, guests,
employees, affiliates, licensees, or permittees.
(2) Reasonable wear and tear does not include any deposit of material
prohibited under Paragraph 2.2(b) unless expressly permitted by State in
writing and regardless of whether the deposit is incidental to or the
byproduct of the Permitted Use.
(c) If Easement Property is in worse condition, excepting for reasonable wear and tear,
on the surrender date than on the Commencement Date, the following provisions
apply.
(1) State shall provide Grantee a reasonable time to take all steps necessary to
remedy the condition of the Easement Property. State may require Grantee
to enter into a right -of -entry or other use authorization prior to the Grantee
entering the Easement Property to remedy any breach of this Paragraph 3.3.
(2) If Grantee fails to remedy the condition of the Easement Property in a timely
manner, State may take any steps reasonably necessary to remedy Grantee's
failure. Upon demand by State, Grantee shall pay all costs of such remedial
action, including but not limited to the costs of removing and disposing of
any material deposited improperly on the Easement Property, lost revenue
resulting from the condition of the Easement Property prior to and during
remedial action, and any administrative costs associated with the remedial
action.
SECTION 4 FEES
4.1 Fee. For the Term, Grantee shall pay to State a use fee of Zero Dollars ($0.00) and an
administrative fee calculated in accordance with RCW 79.110.240(4) payable on or before the
Commencement Date. Any payment not paid by State's close of business on the date due is past
due.
4.2 Payment Place. Grantee shall make payment to Financial Management Division, 111 1
Washington St SE, PO Box 47041, Olympia, WA 98504 -7041.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Grantee shall pay all fees charged for utilities required or needed by the
Permitted Use.
5.2 Taxes and Assessments. Grantee shall pay all taxes, assessments, and other governmental
charges, of any kind whatsoever, applicable or attributable to the Easement and the Permitted Use.
Aquatic Lands Easement Page 4 of 26 Easement No. 51- 089890
5.3 Failure to Pay. If Grantee fails to pay any of the amounts due under this Easement,
State may pay the amount due, and recover its cost in accordance with Section 6.
SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Failure to Pay. Failure to pay any fees or other expenses is a default by Grantee. State
may seek remedies in Section 14 as well as late charges and interest as provided in this Section 6.
6.2 Late Charge. If State does not receive any payment within ten (10) days of the date due,
Grantee shall pay to State a late charge equal to four percent (4 %) of the unpaid or Fifty Dollars
($50), whichever is greater, to defray the overhead expenses of State incident to the delay.
6.3 Interest Penalty for Past Due Fees and Other Sums Owed.
(a) Grantee shall pay interest on the past due fee at the rate of one percent (1 %) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Fee not paid by the close of business day on the due date will
begin accruing interest the day after the due date.
(b) If State pays or advances any amounts for or on behalf of Grantee, Grantee shal I
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent (I%) per month from the date State notifies
Grantee of the payment or advance. This includes, but is not limited to taxes,
assessments, insurance premiums, costs of removal and disposal of unauthorized
materials pursuant to Paragraph 2.2 above, costs of removal and disposal of
improvements pursuant to Section 7 below, or other amounts not paid when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
payment within thirty (30) days of the due date, State may refer the unpaid amount to a
collection agency as provided by RCW 19.16.500 or other applicable law. Upon referral, Grantee
shall pay collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Grantee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. No endorsement
or statement on any check, any payment, or any letter accompanying any check or payment
constitutes accord and satisfaction.
SECTION 7 IMPROVEMENTS
7.1 Improvements Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.145, are additions
within, upon, or attached to the land. This includes, but is not limited to,
structures and fixtures.
Aquatic Lands Easement Page 5 of 26 Easement No. 51- 089890
(b) "Personal Property" means items that can be removed from the Easement
Property without (1) injury to the Easement Property, adjacent state -owned lands
or Improvements or (2) diminishing the value or utility of the Easement Property,
adjacent state -owned lands or Improvements.
(c) "State -Owned Improvements" are Improvements made or owned by State. State -
Owned Improvements includes any construction, alteration, or addition to State -
Owned Improvements made by Grantee.
(d) "Grantee -Owned Improvements" are Improvements made by Grantee with State's
consent.
(e) "Unauthorized Improvements" are Improvements made on the Easement Property
without State's prior consent or Improvements made by Grantee that do not
conform with plans submitted to and approved by the State.
(f) "Improvements Owned by Others" are Improvements made by Others with a right
to occupy or use the Easement Property or adjacent state -owned lands.
7.2 Existing Improvements. On the Commencement Date, the following Improvements are
located on the Easement Property: 20" sewer pipe as described in Exhibit B to this Easement.
This 20" sewer pipe is an Unauthorized Improvement. The exposed portion of this pipe shall be
removed in accordance with the TECHNICAL MEMORANDUM — MITIGATION PLAN —
EASTSIDE BEACH MAIN REPLACEMENT PROJECT prepared by Parametrix, dated
February 25, 2013, Project Number: 233 -1896 -110. The buried portion of this pipe shall be
addressed by the Grantee in accordance with Paragraph 7.5.1. .
7.3 Construction, Major Repair, Modification, and Demolition.
(a) This Paragraph 7.3 governs construction, alteration, replacement, major repair,
modification alteration, demolition and deconstruction of Improvements
( "Work "). Section 11 governs routine maintenance and minor repair of
Improvements and Easement Property.
(b) All Work must conform with State's standards for Improvements current at the
time Grantee submits plans and specifications for State's approval.
(c) Except in an emergency, Grantee shall not conduct any Work without State's
prior written consent, as follows:
(1) State may deny consent if State determines that denial is in the best
interests of the State. State may impose additional conditions reasonably
intended to protect and preserve the Easement Property. If Work is for
removal of Improvements at End of Term, State may waive removal of
some or all Improvements.
(2) Except in an emergency, Grantee shall submit to State plans and
specifications describing the proposed Work at least sixty (60) days before
submitting permit applications to regulatory authorities unless Grantee and
State otherwise agree to coordinate permit applications. At a minimum, or
if no permits are necessary, Grantee shall submit plans and specifications
at least ninety (90) days before commencement of Work.
(3) State waives the requirement for consent if State does not notify Grantee
of its grant or denial of consent within sixty (60) days of submittal.
Aquatic Lands Easement Page 6 of 26 Easement No. 51- 089890
(d) Grantee shall notify State of emergency Work within five (5) business days of the
start of such Work. Upon State's request, Grantee shall provide State with plans
and specifications or as- builts of emergency Work.
(e) Grantee shall not commence or authorize Work until Grantee has:
(1) Obtained a performance and payment bond in an amount equal to one
hundred percent (100 %) of the estimated cost of construction. Grantee
shall maintain the performance and payment bond until Grantee pays in
full the costs of the Work, including all laborers and material persons.
(2) Obtained all required permits.
(3) Provided notice of Significant Activity in accordance with Paragraph 2.5(c).
(f) Grantee shall preserve and protect Improvements Owned by Others, if any.
(g) Grantee shall preserve all legal land subdivision survey markers and witness
objects ( "Markers. ") If disturbance of a Marker will be a necessary consequence
of Grantee's construction, Grantee shall reference and /or replace the Marker in
accordance with all applicable laws and regulations current at the time, including,
but not limited to Chapter 58.24 RCW. At Grantee's expense, Grantee shall
retain a registered professional engineer or licensed land surveyor to reestablish
destroyed or disturbed Markers in accordance with U.S. General Land Office
standards.
(h) Before completing Work, Grantee shall remove all debris and restore the
Easement Property, as nearly as possible, to the condition prior to the
commencement of Work. If Work is intended for removal of Improvements at
End of Term, Grantee shall restore the Easement Property in accordance with
Paragraph 3.3, End of Term.
(i) Upon completing work, Grantee shall promptly provide State with as -built plans
and specifications. The as -built plans shall include a depiction of the location of
the buried portions of the 20" sewer pipe that remain on the Easement Property.
(j) State shall not charge rent for authorized Improvements installed by Grantee
during this Term of this Easement, but State may charge rent for such
Improvements when and if the Grantee or successor obtains a subsequent use
authorization for the Easement Property and State has waived the requirement for
Improvements to be removed as provided in Paragraph 7.4.
7.4 Grantee -Owned Improvements at End of Easement.
(a) Disposition.
(1) Grantee shall remove Grantee -Owned Improvements in accordance with
Paragraph 7.3 upon the expiration, termination, or cancellation of the
Easement unless State waives the requirement for removal.
(2) Grantee -Owned Improvements remaining on the Easement Property on the
expiration, termination, or cancellation date become State -Owned
Improvements without payment by State, unless State elects otherwise.
State may refuse or waive ownership.
(3) If Grantee -Owned Improvements remain on the Easement Property after
the expiration, termination, or cancellation date without State's consent,
State may remove all Improvements and Grantee shall pay the costs of
removal and disposal.
Aquatic Lands Easement Page 7 of 26 Easement No. 51- 089890
(b) Conditions Under Which State May Waive Removal of Grantee -Owned
Improvements.
(1) State may waive removal of any or all Grantee -Owned Improvements
whenever State determines that it is in the best interests of the State.
(2) If Grantee renews the Easement or enters into a new Easement, State may
waive requirement to remove Grantee -Owned Improvements. State also
may consent to Grantee's continued ownership of Grantee -Owned
Improvements.
(3) If Grantee does not renew the Easement or enter into a new Easement,
State may waive requirement to remove Grantee -Owned Improvements
upon consideration of a timely request from Grantee, as follows:
(i) Grantee must notify State at least one (1) year before the
Termination Date of its request to leave Grantee -Owned
Improvements.
(ii) State, within ninety (90) days, will notify Grantee whether State
consents to any or all Grantee -Owned Improvements remaining.
State has no obligation to grant consent.
(iii) State's failure to respond to Grantee's request to leave
Improvements within ninety (90) days is a denial of the request.
(c) Grantee's Obligations if State Waives Removal.
(1) Grantee shall not remove Improvements if State waives the requirement
for removal of any or all Grantee -Owned Improvements.
(2) Grantee shall maintain such Improvements in accordance with this
Easement until the expiration, termination, or cancellation date. Grantee
is liable to State for cost of repair if Grantee causes or allows damage to
Improvements State has designated to remain.
7.5 Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements, other than the existing 20" sewer pipe which
belongs to, and shall continue to belong to, the Grantee belong to State, unless
State elects otherwise.
(b) State may either:
(1) Consent to Grantee ownership of the Improvements, or
(2) Charge use and occupancy fee in accordance with RCW 79.105.200 of the
Improvements from the time of installation or construction and
(i) Require Grantee to remove the Improvements in accordance with
Paragraph 7.3, in which case Grantee shall pay use and occupancy
fee for the Improvements until removal,
(ii) Consent to Improvements remaining and Grantee shall pay use and
occupancy fee for the use of the Improvements, or
(iii) Remove Improvements and Grantee shall pay for the cost of
removal and disposal, in which case Grantee shall pay use and
occupancy fee for use of the Improvements until removal and
disposal.
Aquatic Lands Easement Page 8 of 26 Easement No. 51- 089890
7.5.1 Disposition of the Buried Portion of the Existing 20" Sewer Pipe.
(a) Notwithstanding any other provision of this Easement to the contrary, Grantee shall
remove the buried portion of the existing 20" sewer pipe within eight years of the
Commencement Date of this Easement unless DNR, in its discretion, determines
after further environmental review that there is less environmental risk for the
pipe to remain in place. If DNR makes such a determination, the Grantee shall
take any steps required by DNR to mitigate any remaining environmental risk
relating to this pipe.
7.6 Disposition of Personal Property.
(a) Grantee retains ownership of Personal Property unless Grantee and State agree
otherwise in writing.
(b) Grantee shall remove Personal Property from the Easement Property by the
Termination Date. Grantee is liable for any damage to the Easement Property and
to any Improvements that may result from removal of Personal Property.
(c) State may sell or dispose of all Personal Property left on the Easement Property
after the Termination Date.
(1) If State conducts a sale of Personal Property, State shall apply proceeds
first to the State's administrative costs in conducting the sale, second to
payment of amount that then may be due from the Grantee to the State,
and State shall pay the remainder, if any, to the Grantee.
(2) If State disposes of Personal Property, Grantee shall pay for the cost of
removal and disposal.
SECTION 8 ENVIRONMENTAL LIABILITY/RISK ALLOCATION
8.1 Definitions.
(a) "Hazardous Substance" means any substance that now or in the future becomes
regulated or defined under any federal, state, or local statute, ordinance, rule,
regulation, or other law relating to human health, environmental protection,
contamination, pollution, or cleanup.
(b) "Release or threatened release of Hazardous Substance" means a release or
threatened release as defined under any law described in Paragraph 8.1(a).
(c) "Utmost care" means such a degree of care as would be exercised by a very
careful, prudent, and competent person under the same or similar circumstances;
the standard of care applicable under the Washington State Model Toxics Control
Act ( "MTCA "), Chapter 70.105 RCW, as amended.
(d) "Grantee and affiliates" when used in this Section 8 means Grantee or Grantee's
subgrantees, contractors, agents, employees, guests, invitees, licensees, affiliates,
or any person on the Easement Property with the Grantee's permission.
(e) "Liabilities" as used in this Section 8 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
Aquatic Lands Easement Page 9 of 26 Easement No. 51- 089890
8.2 General Conditions.
(a) Grantee's obligations under this Section 8 extend to the area in, on, under, or above:
(1) The Easement Property and
(2) Adjacent state -owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
(1) Grantee shall exercise the utmost care with respect to Hazardous Substances.
(2) As relates to the Permitted Use, Grantee shall exercise utmost care for the
foreseeable acts or omissions of third parties with respect to Hazardous
Substances, and the foreseeable consequences of those acts or omissions, to
the extent required to establish a viable, third -party defense under the law.
8.3 Current Conditions and Duty to Investigate.
(a) State makes no representation about the condition of the Easement Property.
Hazardous Substances may exist in, on, under, or above the Easement Property.
(b) This Easement does not impose a duty on State to conduct investigations or
supply information to Grantee about Hazardous Substances.
(c) Grantee is responsible for conducting all appropriate inquiry and gathering
sufficient information about the existence, scope, and location of Hazardous
Substances on or near the Property necessary for Grantee to meet Grantee's
obligations under this Easement and utilize the Property for the Permitted Use.
8.4 Use of Hazardous Substances.
(a) Grantee and affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws.
(b) Grantee shall not undertake, or allow others to undertake by Grantee's
permission, acquiescence, or failure to act, activities that result in a release or
threatened release of Hazardous Substances.
(c) If use of Hazardous Substances related to the Permitted Use results in a violation
of law:
(1) Grantee shall submit to State any plans for remedying the violations, and
(2) Grantee shall implement any measures to restore the Easement Property or
natural resources that State may require in addition to remedial measures
required by regulatory authorities.
8.5 Management of Contamination, if any.
(a) Grantee and affiliates shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration
activities, if any;
(2) Result in human or environmental exposure to contaminated sediments, if
any;
(3) Result in the mechanical or chemical disturbance of on -site habitat
mitigation, if any.
(b) If requested, Grantee shall allow reasonable access to:
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(1) Employees and authorized agents of the Environmental Protection
Agency, the Washington State Department of Ecology, health department,
or other similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the Easement Property. Grantee
may negotiate an access agreement with such parties, but Grantee may not
unreasonably withhold such agreement.
8.6 Notification and Reporting.
(a) Grantee shall immediately notify State if Grantee becomes aware of any of the
following:
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of Hazardous Substances;
(3) Any lien or action arising from Hazardous substances;
(4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous Substances;
(5) Any notification from the US Environmental Protection Agency (EPA) or
the Washington State Department of Ecology (DOE) that remediation or
removal of Hazardous Substances is or may be required at the Easement
Property.
(b) Grantee's duty to report under Paragraph 8.6(a) extends to lands described in
Paragraph 8.2(a) and to any other property used by Grantee in conjunction with
the Easement Property if a release of Hazardous Substances on the other property
could affect the Easement Property.
(c) Grantee shall provide State with copies of all documents Grantee submits to any
federal, state, or local authorities concerning environmental impacts or proposals
relative to the Easement Property. Documents subject to this requirement include,
but are not limited to, applications, reports, studies, or audits for National
Pollution Discharge and Elimination System Permits; Army Corps of Engineers
permits; State Hydraulic Project Approvals (HPA); State Water Quality
certification; Substantial Development permit; and any reporting necessary for the
existence, location, and storage of Hazardous Substances on the Property.
8.7 Indemnification.
(a) Grantee shall fully indemnify, defend, and hold State harmless from and against
Liabilities that arise out of, or relate to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by Grantee and affiliates occurring
whenever Grantee uses or has used the Easement Property;
(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Grantee and affiliates occurring whenever
Grantee uses or has used the Easement Property.
(3) The existing 20" sewer pipe.
(b) Grantee shall fully indemnify, defend, and hold State harmless for any Liabilities
that arise out of or relate to Grantee's breach of obligations under Paragraph 8.5.
Aquatic Lands Easement Page 11 of 26 Easement No. 51- 089890
(c) Except as provided under Paragraph 8.7 (a)(3), Grantee has no duty to indemnify
State for acts or omissions of third parties unless and only if an administrative or
legal proceeding arising from a release or threatened release of Hazardous
Substances finds or holds that Grantee failed to exercise care as described in
Paragraph 8.2(b)(2). In such case, Grantee shall fully indemnify, defend, and hold
State harmless from and against Liabilities arising from the acts or omissions of
third parties in relation to the release or threatened release of Hazardous Substances.
This includes Liabilities arising before the finding or holding in the proceeding.
8.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 8.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes
of action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all rights, claims, immunities, and defenses either
Party may have against third parties. Nothing in this Section 8 benefits or creates
rights for third parties.
(c) The allocations of risks, Liabilities, and responsibilities set forth in this Section 8
do not release either Party from or affect the liability of either Party for Hazardous
Substances claims or actions by regulatory agencies.
8.9 Cleanup.
(a) If Grantee's act, omission, or breach of obligation under Paragraph 8.4 results in a
release of Hazardous Substances that exceeds the threshold limits of any applicable
regulatory standard, Grantee shall, at Grantee's sole expense, promptly take all
actions necessary or advisable to clean up the Hazardous Substances in accordance
with applicable law.
(b) Grantee may undertake a cleanup of the Property pursuant to the Washington State
Department of Ecology's Voluntary Cleanup Program, provided that Grantee
cooperates with the Department of Natural Resources in development of cleanup
plans. Grantee shall not proceed with Voluntary Cleanup without the Department
of Natural Resources approval of final plans. Nothing in the operation of this
provision is an agreement by the Department of Natural Resources that the
Voluntary Cleanup complies with any laws or with the provisions of this Easement.
Grantee's completion of a Voluntary Cleanup is not a release from or waiver of any
obligation for Hazardous Substances under this Easement.
8.10 Sampling by State, Reimbursement, and Split Samples.
(a) State may conduct sampling, tests, audits, surveys, or investigations ( "Tests ") of
the Easement Property at any time to determine the existence, scope, or effects of
Hazardous Substances.
(b) If such Tests, along with any other information, demonstrate a breach of Grantee's
obligations regarding Hazardous Substances under this Easement, Grantee shall
promptly reimburse State for all costs associated with the Tests, provided State gave
Grantee thirty (30) calendar days advance notice in non - emergencies and
reasonably practical notice in emergencies.
Aquatic Lands Easement Page 12 of 26 Easement No. 51- 089890
(c) In non - emergencies, Grantee is entitled to obtain split samples of Test samples,
provided Grantee gives State written notice requesting split samples at least ten
(10) calendar days before State conducts Tests. Upon demand, Grantee shall
promptly reimburse State for additional cost, if any, of split samples.
(d) If either Party conducts Tests on the Property, the conducting Party shall provide
the other with validated final data and quality assurance /quality control /chain of
custody information about the Tests within sixty (60) calendar days of a written
request by the other party, unless Tests are part of a submittal under Paragraph
8.6(c) in which case Grantee shall submit data and information to State without
written request by State. Neither party is obligated to provide any analytical
summaries or the work product of experts.
SECTION 9 ASSIGNMENT
Grantee shall not assign any part of Grantee's interest in this Easement or the Easement Property
or grant any rights or franchises to third parties without State's prior written consent, which State
shall not unreasonably condition or withhold. State reserves the right to reasonably change the
terms and conditions of this Easement upon State's consent to assignment.
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
10.1 Indemnity.
(a) Grantee shall indemnify, defend, and hold State, its employees, officers, and
agents harmless from any Claims arising out of the Permitted Use or activities
related to the Permitted Use by Grantee, its contractors, agents, invitees, guests,
employees, affiliates, licensees, or permittees.
(b) "Claim" as used in this Paragraph 10.1 means any financial loss, claim, suit,
action, damages, expenses, fees (including attorneys' fees), penalties, or
judgments attributable to bodily injury, sickness, disease, death, and damages to
tangible property, including, but not limited to, land, aquatic life, and other
natural resources. "Damages to tangible property" includes, but is not limited to,
physical injury to the Easement Property and damages resulting from loss of use
of the Easement Property.
(c) State shall not require Grantee to indemnify, defend, and hold State harmless for
claims that arise solely out of the willful or negligent act of State or State's
elected officials, employees, or agents.
(d) Grantee waives its immunity under Title 51 RCW to the extent it is required to
indemnify, defend, and hold State and its agencies, officials, agents, or employees
harmless.
(e) Section 8, Environmental Liability /Risk Allocation, exclusively governs
Grantee's liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold State harmless for Hazardous Substances.
Aquatic Lands Easement Page 13 of 26 Easement No. 51- 089890
10.1 Indemnity. Each Party is responsible for the actions and inactions of itself and its own
officers, employees, and agents acting within the scope of their authority.
10.2 Insurance Terms.
(a) Insurance Required.
(1) Grantee certifies that it is self - insured for all the liability exposures, its self -
insurance plan satisfies all State requirements, and its self - insurance plan
provides coverage equal to that required in this Paragraph 10.2 and by
Paragraph 10.3, Insurance Types and Limits. Grantee shall provide to State
evidence of its status as a self - insured entity. Upon request by State,
Grantee shall provide a written description of its financial condition and /or
the self - insured funding mechanism. Grantee shall provide State with at
least thirty (30) days' written notice prior to any material changes to
Grantee's self - insured funding mechanism.
(2) Unless State agrees to an exception, Grantee shall provide insurance issued
by an insurance company or companies admitted to do business in the State
of Washington and have a rating of A- or better by the most recently
published edition of Best's Reports. Grantee may submit a request to the
risk manager for the Department of Natural Resources to approve an
exception to this requirement. If an insurer is not admitted, the insurance
policies and procedures for issuing the insurance policies must comply with
Chapter 48.15 RCW and 284 -15 WAC.
(3) All general liability, excess, umbrella, property, builder's risk, and pollution
legal liability insurance policies must name the State of Washington, the
Department of Natural Resources, its elected and appointed officials, agents,
and employees as an additional insured.
(4) All insurance provided in compliance with this Easement must be primary
as to any other insurance or self - insurance programs afforded to or
maintained by State.
(b) Waiver.
(1) Grantee waives all rights against State for recovery of damages to the extent
insurance maintained pursuant to this Easement covers these damages.
(2) Except as prohibited by law, Grantee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered by
insurance maintained pursuant to this Easement.
(c) Proof of Insurance.
(1) Grantee shall provide State with a certificate(s) of insurance executed by a
duly authorized representative of each insurer, showing compliance with
insurance requirements specified in this Easement and, if requested, copies
of policies to State.
(2) The certificate(s) of insurance must reference additional insureds and the
Easement number.
(3) Receipt of such certificates or policies by State does not constitute approval
by State of the terms of such policies.
(d) State must receive written notice before cancellation or non - renewal of any
insurance required by this Easement, as follows:
Aquatic Lands Easement Page 14 of 26 Easement No. 51- 089890
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non - payment of premium, provide
State ten (10) days' advance notice of cancellation; otherwise, provide State
forty -five (45) days' advance notice of cancellation or non - renewal.
(2) Insurers subject to RCW 48.15 (surplus lines): If cancellation is due to non-
payment of premium, provide State ten (10) days' advance notice of
cancellation; otherwise, provide State thirty (30) days' advance notice of
cancellation or non - renewal.
(e) Adjustments in Insurance Coverage.
(1) State may impose changes in the limits of liability for all types of insurance
as State deems necessary.
(2) Grantee shall secure new or modified insurance coverage within thirty
(30) days after State requires changes in the limits of liability.
(f) If Grantee fails to procure and maintain the insurance described above within fifteen
(15) days after Grantee receives a notice to comply from State, State may either:
(1) Deem the failure an Event of Default under Section 14, or
(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Grantee shall pay to State the full amount paid
by State, together with interest at the rate provided in Paragraph 6.2 from
the date of State's notice of the expenditure until Grantee's repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this
Easement are adequate to protect Grantee.
(2) Coverage and limits do not limit Grantee's liability for indemnification
and reimbursements granted to State under this Easement.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to Easement Property first to restore the Easement Property,
then to pay the cost of the reconstruction, then to pay the State any sums in
arrears, and then to Grantee.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Grantee shall maintain commercial general liability insurance (CGL) or
marine general liability (MGL) covering claims for bodily injury, personal
injury, or property damage arising on the Easement Property and /or arising
out of the Permitted Use and, if necessary, commercial umbrella insurance
with a limit of not less than One Million Dollars ($1,000,000) per each
occurrence. If such CGL or MGL insurance contains aggregate limits, the
general aggregate limit must be at least twice the "each occurrence" limit.
CGL or MGL insurance must have products - completed operations aggregate
limit of at least two times the "each occurrence" limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations, personal
Aquatic Lands Easement Page 15 of 26 Easement No. 51- 089890
injury and advertising injury, and liability assumed under an insured contract
(including the tort liability of another party assumed in a business contract)
and contain separation of insured (cross - liability) condition.
(3) MGL insurance must have no exclusions for non -owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) Grantee shall comply with all State of Washington workers'
compensation statutes and regulations. Grantee shall provide
workers' compensation coverage for all employees of Grantee.
Coverage must include bodily injury (including death) by accident or
disease, which arises out of or in connection with the Permitted Use
or related activities.
(ii) If Grantee fails to comply with all State of Washington workers'
compensation statutes and regulations and State incurs fines or is
required by law to provide benefits to or obtain coverage for such
employees, Grantee shall indemnify State. Indemnity includes all
fines; payment of benefits to Grantee, employees, or their heirs or
legal representatives; and the cost of effecting coverage on behalf of
such employees.
(2) Longshore and Harbor Workers' and Jones Acts. Longshore and Harbor
Workers' Act (33 U.S.C. Section 901 et seq.) and /or the Jones Act (46
U.S.C. Section 688) may require Grantee to provide insurance coverage in
some circumstances. Grantee shall ascertain if such insurance is required
and, if required, shall maintain insurance in compliance with law. Grantee
is responsible for all civil and criminal liability arising from failure to
maintain such coverage.
(c) Employers' Liability Insurance. Grantee shall procure employers' liability insurance,
and, if necessary, commercial umbrella liability insurance with limits not less than
One Million Dollars ($1,000,000) each accident for bodily injury by accident or One
Million Dollars ($1,000,000) each employee for bodily injury by disease.
10.4 Financial Security.
(a) At its own expense, Grantee shall procure and maintain during the Term of this
Easement a corporate security bond or provide other financial security that State
may approve ( "Security "). Grantee shall provide Security in an amount equal to
Zero Dollars ($0), which is consistent with RCW 79.105.330, and secures Grantee's
performance of its obligations under this Easement, with the exception of the
obligations under Section 8, Environmental Liability /Risk Allocation. Grantee's
failure to maintain the Security in the required amount during the Term constitutes a
breach of this Easement.
(b) All Security must be in a form acceptable to the State.
(1) Bonds must be issued by companies admitted to do business within the State
of Washington and have a rating of A -, Class VII or better, in the most
recently published edition of Best's Reports, unless State approves an
exception. Grantee may submit a request to the Risk Manager for the
Department of Natural Resources for an exception to this requirement.
Aquatic Lands Easement Page 16 of 26 Easement No. 51- 089890
(2) Letters of credit, if approved by State, must be irrevocable, allow State to
draw funds at will, provide for automatic renewal, and comply with
RCW 62A.5 -101, et. seq.
(3) Savings account assignments, if approved by State, must allow State to
draw funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the Security amount:
(i) At the same time as revaluation, if any,
(ii) As a condition of approval of assignment of this Easement,
(iii) Upon a material change in the condition or disposition of any
Improvements, or
(iv) Upon a change in the Permitted Use.
(2) Grantee shall deliver a new or modified form of Security to State within
thirty (30) days after State has required adjustment of the amount of the
Security.
(d) Upon any default by Grantee in its obligations under this Easement, State may
collect on the Security to offset the liability of Grantee to State. Collection on the
Security does not (1) relieve Grantee of liability, (2) limit any of State's other
remedies, (3) reinstate or cure the default or (4) prevent termination of the
Easement because of the default.
SECTION 11 ROUTINE MAINTENANCE AND REPAIR
11.1 State's Repairs. This Easement does not obligate State to make any alterations,
maintenance, replacements, or repairs in, on, or about the Easement Property, during the Term.
11.2 Grantee's Repairs and Maintenance.
(a) Routine maintenance and repair are acts intended to prevent a decline, lapse or,
cessation of the Permitted Use and associated Improvements. Routine
maintenance or repair is the type of work that does not require regulatory permits.
(b) At Grantee's sole expense, Grantee shall keep and maintain all Grantee -Owned
Improvements and the Easement Property as it relates to the Permitted Use in
good order and repair and in a safe condition. State's consent is not required for
routine maintenance or repair.
(c) At Grantee's own expense, Grantee shall make any additions, repairs, alterations,
maintenance, replacements, or changes to the Easement Property or to any
Improvements on the Easement Property that any public authority requires
because of the Permitted Use.
(d) Upon completion of maintenance activities, Grantee shall remove all debris and
restore the Easement Property, as nearly as possible, to the condition prior to the
commencement of work.
Aquatic Lands Easement Page 17 of 26 Easement No. 51- 089890
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of any known damage to or destruction of the Easement Property or
any Improvements, Grantee shall promptly give written notice to State. State
does not have actual knowledge of the damage or destruction of the Easement
Property or any Improvements without Grantee's written notice.
(b) Unless otherwise agreed in writing, and except as required under Paragraph 7.5.1,
Grantee shall promptly reconstruct, repair, or replace any Improvements in
accordance with Paragraph 7.3, Construction, Major Repair, Modification, and
Demolition, as nearly as possible to its condition immediately prior to the damage
or destruction. Where damage to state -owned aquatic land or natural resources is
attributable to the Permitted Use or related activities, Grantee shall promptly
restore the lands or resources to the condition preceding the damage in accordance
with Paragraph 7.3 unless otherwise agreed in writing.
12.2 State's Waiver of Claim. State does not waive any claims for damage or destruction of the
Easement Property unless State provides written notice to Grantee of each specific claim waived.
12.3 Insurance Proceeds. Grantee's duty to reconstruct, repair, or replace any damage or
destruction of the Easement Property or any Improvements on the Easement Property is not
conditioned upon the availability of any insurance proceeds to Grantee from which the cost of
repairs may be paid. The Parties shall use insurance proceeds in accordance with
Paragraph. 10.2(g)(3).
SECTION 13 CONDEMNATION
In the event of condemnation, the Parties shall allocate the award between State and Grantee based
upon the ratio of the fair market value of (1) Grantee's rights in the Easement Property and
Grantee -Owned Improvements and (2) State's interest in the Easement Property; the reversionary
interest in Grantee -Owned Improvements, if any; and State -Owned Improvements. In the event of
a partial taking, the Parties shall compute the ratio based on the portion of Easement Property or
Improvements taken. If Grantee and State are unable to agree on the allocation, the Parties shall
submit the dispute to binding arbitration in accordance with the rules of the American Arbitration
Association.
SECTION 14 REMEDIES AND TERMINATION
14.1 Breach.
(a) State may terminate this Easement upon Grantee's failure to cure a breach of its
terms within sixty (60) days of State's written notice of breach.
(b) For nonmonetary breach not capable of cure within sixty (60) days, State will not
unreasonably withhold approval of a reasonable alternative cure schedule.
Aquatic Lands Easement Page 18 of 26 Easement No. 51- 089890
Grantee must submit a cure schedule within thirty (30) days of a notice of breach.
State shall not terminate if State approves the schedule and Grantee works
diligently and in good faith to execute the cure. State may terminate if Grantee
fails to timely submit a schedule or fails to cure in accordance with an approved
schedule.
(c) If breach arises from Grantee's failure to comply with restrictions on Permitted use
under Paragraph 2.2, State may, without terminating this Easement, restore the
natural resources or Property and charge Grantee restoration costs and /or charge
Grantee damages. On demand by State, Grantee shall pay all costs and /or damages.
14.2 Termination by Nonuse. If Grantee does not use the Easement Property for a period of
three (3) successive years, this Easement terminates without further action by State. Grantee's
rights revert to State upon Termination by Nonuse.
14.3 Termination by Grantee. Grantee may terminate this Easement upon providing State with
sixty (60) days written notice of intent to terminate. Grantee shall comply with Paragraph 3.3, End
of Term.
14.4 Remedies Not Exclusive. The remedies specified under this Section 14 are not exclusive
of any other remedies or means of redress to which the State is lawfully entitled for Grantee's
breach or threatened breach of any provision of this Easement.
SECTION 15 NOTICE AND SUBMITTALS
Following are the locations for delivery of notice and submittals required or permitted under this
Easement. Any Party may change the place of delivery upon ten (10) days written notice to the
other.
State: DEPARTMENT OF NATURAL RESOURCES
Shoreline District Aquatics
950 Farman Avenue North
Enumclaw, WA 98022 -9282
Grantee: CITY BREMERTON PUBLIC WORKS
345 6th Street
Bremerton, WA 98337
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery, notice is effective upon personal delivery, upon receipt of a
confirmation report if delivered by facsimile machine, or three (3) days after mailing. All notices
must identify the Easement number. On notices transmitted by facsimile machine, the Parties shall
state the number of pages contained in the notice, including the transmittal page, if any.
Aquatic Lands Easement Page 19 of 26 Easement No. 51- 089890
SECTION 16 MISCELLANEOUS
16.1 Authority. Grantee and the person or persons executing this Easement on behalf of
Grantee represent that Grantee is qualified to do business in the State of Washington, that
Grantee has full right and authority to enter into this Easement, and that each and every person
signing on behalf of Grantee is authorized to do so. Upon State's request, Grantee shall provide
evidence satisfactory to State confirming these representations.
16.2 Successors and Assigns. This Easement binds and inures to the benefit of the Parties,
their successors, and assigns.
16.3 Headings. The headings used in this Easement are for convenience only and in no way
define, limit, or extend the scope of this Easement or the intent of any provision.
16.4 Entire Agreement. This Easement, including the exhibits and addenda, if any, contains the
entire agreement of the Parties. This Easement merges all prior and contemporaneous agreements,
promises, representations, and statements relating to this transaction or to the Easement Property.
16.5 Waiver.
(a) The waiver of any breach or default of any term, covenant, or condition of this
Easement is not a waiver of such term, covenant, or condition; of any subsequent
breach or default of the same; or of any other term, covenant, or condition of this
Easement. State's acceptance of payment is not a waiver of any preceding or
existing breach other than the failure to pay the particular payment that was
accepted.
(b) The renewal of the Easement, extension of the Easement, or the issuance of a new
Easement to Grantee, does not waive State's ability to pursue any rights or
remedies under the Easement.
16.6 Cumulative Remedies. The rights and remedies of State under this Easement are
cumulative and in addition to all other rights and remedies afforded by law or equity or
otherwise.
16.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Easement.
16.8 Language. The word "Grantee" as used in this Easement applies to one or more persons,
as the case may be. The singular includes the plural, and the neuter includes the masculine and
feminine. If there is more than one Grantee, their obligations are joint and several. The word
"persons," whenever used, includes individuals, firms, associations, and corporations. The word
"Parties" means State and Grantee in the collective. The word "Party" means either or both State
and Grantee, depending on context.
16.9 Invalidity. The invalidity, voidness, or illegality of any provision of this Easement does
not affect, impair, or invalidate any other provision of this Easement.
Aquatic Lands Easement Page 20 of 26 Easement No. 51- 089890
16.10 Applicable Law and Venue. This Easement is to be interpreted and construed in
accordance with the laws of the State of Washington. Any reference to a statute means that
statute as presently enacted or hereafter amended or superseded. Venue for any action arising
out of or in connection with this Easement is in the Superior Court for Thurston County,
Washington.
16.11 Recordation. At Grantee's expense and no later than thirty (30) days after receiving the
fully- executed Easement, Grantee shall record this Easement in the county in which the Property
is located. Grantee shall include the parcel number of the upland property used in conjunction
with the Property, if any. Grantee shall provide State with recording information, including the
date of recordation and file number.
16.12 Modification. No modification of this Easement is effective unless in writing and signed
by the Parties. Oral representations or statements do not bind either Party.
16.13 Survival. Any obligations of Grantee not fully performed upon termination of this
Easement do not cease, but continue as obligations of the Grantee until fully performed.
Aquatic Lands Easement Page 21 of 26 Easement No. 51- 089890
16.14 Exhibits. All referenced exhibits are incorporated in this Easement unless expressly
identified as unincorporated.
THIS AGREEMENT requires the signature of all Parties and is effective on the date of the last
signature below.
Dated: ��i; 20 0
Dated:
Address: 345 6th Street
Bremerton, WA 98337
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
By: ER JOLDMARK
Title: Commissioner of Public Lands
Address: Shoreline District Aquatics
950 Farman Avenue North
Enumclaw, WA 98022 -9282
Approved as to form this
6 day of June 2013
Edward D. Callow, Assistant Attorney General
Aquatic Lands Easement Page 22 of 26 Easement No. 51- 089890
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON )
ss
COUNTY OF
I certify that I know or have satisfactory evidence that PATTY LENT is the person who
appeared before me, and said person acknowledged that she signed this instrument, on oath
stated that she was authorized to execute the instrument and acknowledged it as the MAYOR
the CITY OF BREMERTON to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument. I
Dated:
( )gntu
(Seal or stamp)
(Print-�&me)
Notary Public in and for the State of
Washington, residing at
My appointment expires "\
Aquatic Lands Easement Page 23 of 26 Easement No. 51-089890
STATE ACKNOWLEDGMENT
STATE OF WASHINGTON)
C OUNTYOF lftkfSTat
LL i o
(Print Name) I
Aquatic Lands Easement Page 24 of 26 Easement No. 51- 089890
EXHIBIT A
Agreement Number: 51- 089890
Recording number of final DNR approved survey in Kitsap County: 201305150079
Legal description of the Property:
THAT PORTION OF THE TIDELANDS FRONTING GOVERNMENT LOT 5, SECTION 11,
TOWNSHIP 24 NORTH, RANGE 1 EAST., W.M., KITSAP COUNTY, WASHINGTON AND
GOVERNMENT LOT 1, SECTION 12, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M.,
KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
A 35.00 FOOT WIDE STRIP, THE CENTERLINE OF WHICH IS DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 11; THENCE
SOUTH 01 °45'35" WEST ALONG THE EAST LINE THEREOF 2651.91 FEET TO THE
EAST QUARTER CORNER OF SAID SECTION 11 AND ALSO BEING THE NE CORNER
OF SAID GOVERNMENT LOT 5; THENCE NORTH 88 0 38'03" WEST ALONG THE
NORTH LINE OF SAID GOVERNMENT LOT 5 1325.82 FEET TO THE NORTHWEST
CORNER OF SAID GOVERNMENT LOT 5; THENCE SOUTH 01 °43'49" WEST ALONG
THE WEST LINE THEREOF 1056.98 FEET TO ITS INTERSECTION WITH THE
GOVERNMENT MEANDER LINE; THENCE SOUTH 04 0 46'27" WEST 51.24 FEET TO THE
POINT OF BEGINNING OF THIS CENTERLINE; THENCE SOUTH 85 0 49'54" EAST 92.72
FEET; THENCE NORTH 89 0 09'02" EAST 99.58 FEET; THENCE NORTH 85 0 55'30" EAST
125.17 FEET; THENCE SOUTH 83 °11'01" EAST 195.61 FEET; THENCE SOUTH 66 0 15'04"
EAST 261.86 FEET; THENCE SOUTH 72 °21'53" EAST 60.84 FEET; THENCE SOUTH
80 0 36'32" EAST 67.90 FEET; THENCE SOUTH 73 0 08'59" EAST 224.10 FEET; THENCE
SOUTH 69 0 41'06" EAST 188.35 FEET; THENCE SOUTH 64 °32'34" EAST 187.83 FEET;
THENCE SOUTH 59 °14'51" EAST 180.95 FEET; THENCE SOUTH 60 0 28'10" EAST 216.30
FEET; THENCE SOUTH 53 0 50'30" EAST 159.06 FEET AND THE POINT OF
TERMINATION OF THIS CENTERLINE;
EXCEPT ANY PORTION OF THE ABOVE DESCRIBED 35.00 WIDE STRIP LYING
UPLAND OF THE GOVERNMENT MEANDER LINE;
AND
EXCEPT ANY PORTION LYING ABOVE THE MEAN HIGH WATER LINE;
AND
EXCEPT ANY PORTION LYING WITHIN THE TIDELANDS FRONTING LOTS 1 AND 2,
BLOCK 28 AND LOTS 12, 13, 14 AND 19, BLOCK 29 OF THE PLAT OF UNITED STATES
NAVY YARD ADDITION TO BREMERTON AS RECORDED IN VOLUME 3 OF PLATS,
PAGE 63, RECORDS OF KITSAP COUNTY, WASHINGTON.
CONTAINING 45,412 SQUARE FEET.
Aquatic Lands Easement Page 25 of 26 Easement No. 51- 089890
EXHIBIT B
I. DESCRIPTION OF PERMITTED USE
A. Existing Facilities.
An active 20" partially buried asbestos cement sewer pipe exists on site. This pipe
is owned by The City of Bremerton. The buried portion of this pipe will be
addressed as required under Paragraph 7.5.1 of the Easement. The exposed
portion of this pipe will be removed in conjunction with the installation of the
new 24 -inch sewer main.
B. Proposed Facilities.
Installation of a new 24 -inch sewer main.
Grantee has secured the following permits:
Washington Department of Fish and Wildlife, Hydraulic Project Approval
Control No. 129224 -1, May 13` 2013
US Army Corps of Engineers, Nationwide permit 12, NWS- 2012 -1308,
May 7` 2013
2. ADDITIONAL OBLIGATIONS
A. Grantee shall comply with the TECHNICAL MEMORANDUM — MITIGATION
PLAN — EASTSIDE BEACH MAIN REPLACEMENT PROJECT prepared by
Parametrix, dated February 25, 2013, Project Number: 233 - 1896 -110, including
the removal of the currently exposed existing sewer pipe. A violation of this
Mitigation Plan is a violation of this Easement. A copy of this Mitigation Plan is
on file in Olympia; copies available upon request.
B. No in -water work or construction is allowed.
Aquatic Lands Easement Page 26 of 26 Easement No. 51- 089890