HomeMy WebLinkAboutCity Council Committees - Public Works/Planning - 05/05/2014 1
Public Works Committee Agenda
40 A. Councilmembers: Brenda Fincher • Dana Ralph • Dennis Higgins, Chair
�� KENT
WASHINGTON
MaY 5, 2014
4:00 P.m.
Item Description Action Speaker Time Page
1. Approval of Meeting Minutes for April 21, 2014 YES None 03 03
2. Consultant Services Agreement with Geo YES Todd 5 05
Engineers for Low Impact Development Hunsdorfer
3. Aquatic Lands Easement - Sanitary Sewer and YES Kelly Peterson 05 23
Pedestrian Bridges
4. Information Only - Litter Reduction Campaign NO Gina Hungerford 05 77
TeamUp2CleanUp Event May 17, 2014
5. Information Only - Briefing on Upcoming Metro NO Monica Whitman 20 79
Service Cuts
6. Information Only - 2121h/2281h Railroad Grade NO Chad Bieren 20 81
Separation Funding Options
7. Information Only/Transportation Funding NO Tim LaPorte 20 83
Options:
- Solid Waste Utility Franchise
- Transportation Benefit District
8. Information Only - Desimone Levee Repair NO Ken Langholz 05 93
Schedule
9. Information Only - Parking Zones Amendment NO Ben Wolters 15 97
Unless otherwise noted, the Public Works Committee meets at 4:00 p.m. on the 1"& 3rd Mondays of each
month. Council Chambers East, Kent City Hall, 220 4th Avenue South, Kent, 98032-5895. For information
please contact Public Works Administration (253) 856-5500.
Any person requiring a disability accommodation should contact the City Clerk's Office at
(253) 856-5725 in advance.
For TDD relay service call the Washington Telecommunications Relay Service at 1-800-833-6388.
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Public Works Committee Minutes
April 21, 2014.
COMMITTEE MEMBERS PRESENT:
Committee Chair, Dennis Higgins and Committee members Dana Ralph and Brenda Fincher were
present. The meeting was called to order at 4:02 p.m.
Committee Chair, Higgins said a few words in memory of Mark Prothero, prominent local attorney
who passed away over the weekend.
Item 1 — Approval of Meeting Minutes Dated April 7, 2014:
Committee member Fincher MOVED to approve the minutes of April 7, 2014. The
motion was SECONDED by Committee member Ralph and PASSED 3-0.
Item 2 —Telecommunications Franchise with tw telecom of washington Ilc:
Chad Bieren, City Engineer, noted that tw telecom of washington Ilc is a telecommunications
company that wishes to install and operate telecommunications equipment in the city's streets.
This equipment will be used to provide data, dedicated internet access, and local and long
distance voice services. tw telecom has requested that the City grant them a franchise laying out
the terms and conditions under which this equipment is installed and the services provided.
Bieren noted that the City has the authority to grant non-exclusive franchises for use of public
streets and other rights-of-way. This franchise does not grant tw telecom authority to install any
facilities without first obtaining appropriate permits, leases, easements, or other approvals as
req u i red.
Committee member Ralph MOVED to recommend Council authorize the Mayor to sign an
ordinance granting tw telecom of washington Ilc a franchise to install and maintain
facilities for a telecommunications network within the public rights-of-way of the City,
subject to final terms and conditions acceptable to the City Attorney and Public Works
Director. The motion was SECONDED by Committee member Fincher and PASSED 3-0.
Item 3 — Puget Sound Energy Conversion — Schedule 74 Design Agreement for State
Route 516 to S. 231" Way/Russell Road Upper Levee-James Street & Russell Road
Intersection South Reach Levee:
Toby Hallock, Environmental Engineer II, presented pictures of the Russell Road Upper Levee
and portions of the SR 516 to S. 231s' Way Levee along the James Street and Russell Road
intersection. Hallock noted repairs are required in order to meet federal levee safety standards.
Existing overhead electrical power and other utilities at this location will need to be relocated
underground as part of the project improvements.
The schedule 74 underground conversation design agreement with Puget Sound Energy (PSE)
allows PSE to prepare designs to relocate their overhead power facilities to underground. Costs to
convert the power lines to underground would be part of the levee reconstruction project, which
would be completed under an agreement with the King County Flood Control District.
PSE has estimated the cost to design the underground conversion to be $21,000. The design
costs include engineering, management, and overhead costs.
4
Public Works Committee Minutes
April 21, 2014.
The conversion with PSE is governed by Schedule 74 Tariff G, administered by the Washington
Utilities and Transportation Commission. Pursuant to the tariff PSE will pay 60% of the conversion
and the city pays 40%. The city also provides the trench and backfill.
Committee member Fincher MOVED to recommend Council authorize the Mayor to sign
a Project Design Agreement with Puget Sound Energy for the Upper Russell Road Levee
in an amount not to exceed $21,000 subject to final terms and conditions acceptable to
the City Attorney and Public Works Director. The motion was SECONDED by Committee
member Ralph and PASSED 3-0.
Item 4 — Information Only/Safe Routes to School Grant Funding — Local Match:
Monica Whitman, Sr. Transportation Planner and Sara Wood, Kent Police, Grant Research and
Development Analyst explained that there are three elements to each Safe Routes to School
program. Whitman went over those elements and then gave a brief description of the three
schools and the estimated project cost for each school.
• Meridian Elementary is located near the intersection of SE 2561h Street and 1401h Avenue
SE. Increased development in the area has resulted in heavy traffic around the school.
The proposed project is estimated to cost $448,000 and will provide a traffic signal and
asphalt walkway adjacent to the signal to assist crossing guards, parents, students, and
motorists.
• Daniel Elementary is located near SE 2481h Street and 1161h Avenue SE. The proposed
project is estimated to cost $100,000 and will relocate an existing crosswalk and overhead
crosswalk sign to provide improved access for students walking to and from school. This
project will also improve traffic flow through this segment of SE 2481h Street.
• Neely O'Brien Elementary is located near 641h Avenue South and South 2361h Street. The
proposed project is estimated to cost $350,000 and will include installation of a new traffic
signal and pedestrian crosswalk at the intersection of 641h Avenue South and South 2361h
Street. This project also includes the relocation and installation of traffic enforcement
cameras.
Whitman further noted that the level of funding for this grant cycle is significantly less than in
previous years, making it particularly competitive. Currently $8 million is anticipated, statewide,
for both the Pedestrian and Bicycle Program and the Safe Routes to School Program for the 2015-
2017; whereas, $30 million was awarded in the 2013-2015 cycle. No match is required. However,
preference is given to projects that provide a local match. Public Works engineering staff
analyzed the amount of local matching funds successful jurisdictions have provided in recent
years for similar projects. The majority of the projects that were awarded funding provided a
local match in the range of 5 -15%.
Information Only/No Motion Required
The meeting was adjourned at 4:27 p.m.
Cheryl Viseth
Council Committee Recorder
5
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: April 29, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Todd Hunsdorfer, Conservation Coordinator - NPDES
Through: Mike Mactutis P.E., Environmental Engineering Manager
Chad Bieren P.E., City Engineer
Subject: Consultant Services Agreement with GeoEngineers, for the Mill
Creek Neighborhood Low Impact Development Project
Item - 2
Motion: Move to recommend Council authorize the Mayor to sign a
Consultant Services Agreement with GeoEngineers in an amount not to
exceed $52,186.00 to provide geotechnical engineering services for the
Mill Creek Neighborhood Low Impact Development Project, subject to final
terms and conditions acceptable to the City Attorney and Public Works
Director.
Summary:
In 2012, the City of Kent received Washington State Department of Ecology grant
funds for the planning and design of a low impact development project. Low impact
development is an emerging strategy for managing stormwater, and it relies heavily
on understanding the existing hydrology and geology. The grant provides up to
$120,000 for this effort.
Geotechnical analyses of soil borings will be used to determine if low impact
development construction is suitable in this area. In general, infiltration of stormwater
is a major component of low impact methods.
The results will be used by city design staff to layout alternatives for capturing and
treating stormwater before it is discharged to Mill Creek.
Budget Impact:
This contract will be 100% grant funded by the Washington State Department of
Ecology 2013-2015 Biennial Municipal Stormwater Capacity Grant.
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7
KENT
CONSULTANT SERVICES AGREEMENT
between the City of Kent and
GeoEngineers, Inc.
THIS AGREEMENT is made between the City of Kent, a Washington municipal corporation
(hereinafter the "City"), and GeoEngineers, Inc. organized under the laws of the State of
Washington, located and doing business at 1101 S. Fawcett Ave., Suite 200, Tacoma, WA
98402, Phone: (253) 383-4940/Fax: (253) 383-4923, Contact: Lyle Stone (hereinafter the
"Consultant").
I. DESCRIPTION OF WORK.
Consultant shall perform the following services for the City in accordance with the
following described plans and/or specifications:
The Consultant shall provide site suitability assessment, geotechnical engineering
and hydrology support for the design of Low Impact Development improvements for
a Mill Creek Neighborhood. For a description, see the Consultant's Scope of Work
which is attached as Exhibit A and incorporated by this reference.
Consultant further represents that the services furnished under this Agreement will be
performed in accordance with generally accepted professional practices within the Puget Sound
region in effect at the time those services are performed.
II. TIME OF COMPLETION. The parties agree that work will begin on the tasks
described in Section I above immediately upon the effective date of this Agreement. Consultant
shall complete the work described in Section I by January 31, 2015.
III. COMPENSATION.
A. The City shall pay the Consultant, based on time and materials, an amount not to
exceed Fifty Two Thousand, One Hundred Eighty Six Dollars ($52,186.00), for the
services described in this Agreement. This is the maximum amount to be paid
under this Agreement for the work described in Section I above, and shall not be
exceeded without the prior written authorization of the City in the form of a
negotiated and executed amendment to this agreement. The Consultant agrees
that the hourly or flat rate charged by it for its services contracted for herein shall
remain locked at the negotiated rate(s) for a period of one (1) year from the
effective date of this Agreement. The Consultant's billing rates shall be as
delineated in Exhibit B.
CONSULTANT SERVICES AGREEMENT - 1
(Over$10,000)
8
B. The Consultant shall submit monthly payment invoices to the City for work
performed, and a final bill upon completion of all services described in this
Agreement. The City shall provide payment within forty-five (45) days of receipt of
an invoice. If the City objects to all or any portion of an invoice, it shall notify the
Consultant and reserves the option to only pay that portion of the invoice not in
dispute. In that event, the parties will immediately make every effort to settle the
disputed portion.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent
Contractor-Employer Relationship will be created by this Agreement. By their execution of this
Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following
representations:
A. The Consultant has the ability to control and direct the performance and
details of its work, the City being interested only in the results obtained
under this Agreement.
B. The Consultant maintains and pays for its own place of business from which
Consultant's services under this Agreement will be performed.
C. The Consultant has an established and independent business that is eligible
for a business deduction for federal income tax purposes that existed before
the City retained Consultant's services, or the Consultant is engaged in an
independently established trade, occupation, profession, or business of the
same nature as that involved under this Agreement.
D. The Consultant is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
E. The Consultant has registered its business and established an account with
the state Department of Revenue and other state agencies as may be
required by Consultant's business, and has obtained a Unified Business
Identifier (UBI) number from the State of Washington.
F. The Consultant maintains a set of books dedicated to the expenses and
earnings of its business.
V. TERMINATION. Either party may terminate this Agreement, with or without
cause, upon providing the other party thirty (30) days written notice at its address set forth on
the signature block of this Agreement. After termination, the City may take possession of all
records and data within the Consultant's possession pertaining to this project, which may be
used by the City without restriction. If the City's use of Consultant's records or data is not
related to this project, it shall be without liability or legal exposure to the Consultant.
VI. DISCRIMINATION. In the hiring of employees for the performance of work under
this Agreement or any subcontract, the Consultant, its subcontractors, or any person acting on
behalf of the Consultant or subcontractor shall not, by reason of race, religion, color, sex, age,
sexual orientation, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates. Consultant shall execute the attached City of Kent Equal Employment
CONSULTANT SERVICES AGREEMENT - 2
(Over$10,000)
9
Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion
of the contract work, file the attached Compliance Statement.
VII. INDEMNIFICATION. Consultant shall defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection with the Consultant's performance of this Agreement, except for that portion of the
injuries and damages caused by the City's negligence. For claims arising or alleged to arise from
Consultant's professional services only, Consultant's duty to defend and indemnify under this
paragraph shall be limited to claims, injuries, damages, losses or suits asserted on the basis of
negligence or willful misconduct.
The City's inspection or acceptance of any of Consultant's work when completed shall not
be grounds to avoid any of these covenants of indemnification.
Should a court of competent jurisdiction determine that this Agreement is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Consultant
and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability
hereunder shall be only to the extent of the Consultant's negligence.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF
IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF
THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
In the event Consultant refuses tender of defense in any suit or any claim, if that tender
was made pursuant to this indemnification clause, and if that refusal is subsequently determined
by a court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the
Consultant's part, then Consultant shall pay all the City's costs for defense, including all
reasonable expert witness fees and reasonable attorneys' fees, plus the City's legal costs and
fees incurred because there was a wrongful refusal on the Consultant's part.
The provisions of this section shall survive the expiration or termination of this
Agreement.
VIII. INSURANCE. The Consultant shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit C attached and
incorporated by this reference.
IX. EXCHANGE OF INFORMATION. The City will provide its best efforts to provide
reasonable accuracy of any information supplied by it to Consultant for the purpose of
completion of the work under this Agreement.
X. OWNERSHIP AND USE OF RECORDS AND DOCUMENTS. Original documents,
drawings, designs, reports, or any other records developed or created under this Agreement
shall belong to and become the property of the City. All records submitted by the City to the
Consultant will be safeguarded by the Consultant. Consultant shall make such data, documents,
and files available to the City upon the City's request. The City's use or reuse of any of the
documents, data and files created by Consultant for this project by anyone other than
Consultant on any other project shall be without liability or legal exposure to Consultant.
CONSULTANT SERVICES AGREEMENT - 3
(Over$10,000)
10
XI. CITY'S RIGHT OF INSPECTION. Even though Consultant is an independent
contractor with the authority to control and direct the performance and details of the work
authorized under this Agreement, the work must meet the approval of the City and shall be
subject to the City's general right of inspection to secure satisfactory completion.
XII. WORK PERFORMED AT CONSULTANT'S RISK. Consultant shall take all
necessary precautions and shall be responsible for the safety of its employees, and agents in the
performance of the contract work and shall utilize all protection necessary for that purpose and
shall cause any subcontractors hired by Consultant to be responsible for the safety of its
employees and agents. All work shall be done at Consultant's own risk, and Consultant shall be
responsible for any loss of or damage to materials, tools, or other articles used or held for use in
connection with the work.
XIII. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City
requires its contractors and consultants to use recycled and recyclable products whenever
practicable. A price preference may be available for any designated recycled product.
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of
any of the covenants and agreements contained in this Agreement, or to exercise any option
conferred by this Agreement in one or more instances shall not be construed to be a waiver or
relinquishment of those covenants, agreements or options, and the same shall be and remain in
full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. If the parties are unable
to settle any dispute, difference or claim arising from the parties' performance of this
Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by
filing suit exclusively under the venue, rules and jurisdiction of the King County Superior Court,
King County, Washington, unless the parties agree in writing to an alternative dispute resolution
process. In any claim or lawsuit for damages arising from the parties' performance of this
Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or
bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award
provided by law; provided, however, nothing in this paragraph shall be construed to limit the
City's right to indemnification under Section VII of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice hereunder shall become effective three (3) business days after the
date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to
the addressee at the address stated in this Agreement or such other address as may be
hereafter specified in writing.
E. Assignment. Any assignment of this Agreement by either party without the written
consent of the non-assigning party shall be void. If the non-assigning party gives its consent to
any assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
CONSULTANT SERVICES AGREEMENT - 4
(Over$10,000)
11
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
the City and Consultant.
G. Entire Agreement. The written provisions and terms of this Agreement, together
with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. All of the above
documents are hereby made a part of this Agreement. However, should any language in any of
the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail.
H. Compliance with Laws. The Consultant agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable
to Consultant's business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
I. City Business License Required. Prior to commencing the tasks described in Section
I, Contractor agrees to provide proof of a current city of Kent business license pursuant to
Chapter 5.01 of the Kent City Code.
J. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which will together constitute this one
Agreement.
IN WITNESS, the parties below execute this Agreement, which shall become
effective on the last date entered below.
CONSULTANT: CITY OF KENT:
By: By:
(signature) (signature)
Print Name: Print Name: Suzette Cooke
Its Its Mayor
(title)
DATE: DATE:
NOTICES TO BE SENT TO: NOTICES TO BE SENT TO:
CONSULTANT: CITY OF KENT:
Lyle Stone Timothy J. LaPorte, P.E.
GeoEngineers, Inc. City of Kent
1101 S. Fawcett Ave., Suite 200 220 Fourth Avenue South
Tacoma, WA 98402 Kent, WA 98032
(253) 383-4940 (telephone) (253) 856-5500 (telephone)
(253) 383-4923 (facsimile) (253) 856-6500 (facsimile)
CONSULTANT SERVICES AGREEMENT - 5
(Over$10,000)
12
APPROVED AS TO FORM:
Kent Law Department
GeoEnglneers-LID MITI Crk/Hunsdorter
CONSULTANT SERVICES AGREEMENT - 6
(Over$10,000)
13
DECLARATION
CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY
The City of Kent is committed to conform to Federal and State laws regarding equal opportunity.
As such all contractors, subcontractors and suppliers who perform work with relation to this
Agreement shall comply with the regulations of the City's equal employment opportunity
policies.
The following questions specifically identify the requirements the City deems necessary for any
contractor, subcontractor or supplier on this specific Agreement to adhere to. An affirmative
response is required on all of the following questions for this Agreement to be valid and binding.
If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the
directives outlines, it will be considered a breach of contract and it will be at the City's sole
determination regarding suspension or termination for all or part of the Agreement;
The questions are as follows:
1. I have read the attached City of Kent administrative policy number 1.2.
2. During the time of this Agreement I will not discriminate in employment on the basis of
sex, race, color, national origin, age, or the presence of all sensory, mental or physical
disability.
3. During the time of this Agreement the prime contractor will provide a written statement to
all new employees and subcontractors indicating commitment as an equal opportunity
employer.
4. During the time of the Agreement I, the prime contractor, will actively consider hiring and
promotion of women and minorities.
5. Before acceptance of this Agreement, an adherence statement will be signed by me, the
Prime Contractor, that the Prime Contractor complied with the requirements as set forth
above.
By signing below, I agree to fulfill the five requirements referenced above.
By:
Fo r:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 1
14
CITY OF KENT
ADMINISTRATIVE POLICY
NUMBER: 1.2 EFFECTIVE DATE: January 1, 1998
SUBJECT: MINORITY AND WOMEN SUPERSEDES: April 1, 1996
CONTRACTORS APPROVED BY Jim White, Mayor
POLICY:
Equal employment opportunity requirements for the City of Kent will conform to federal and
state laws. All contractors, subcontractors, consultants and suppliers of the City must guarantee
equal employment opportunity within their organization and, if holding Agreements with the City
amounting to $10,000 or more within any given year, must take the following affirmative steps:
1. Provide a written statement to all new employees and subcontractors indicating
commitment as an equal opportunity employer.
2. Actively consider for promotion and advancement available minorities and women.
Any contractor, subcontractor, consultant or supplier who willfully disregards the City's
nondiscrimination and equal opportunity requirements shall be considered in breach of contract
and subject to suspension or termination for all or part of the Agreement.
Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public
Works Departments to assume the following duties for their respective departments.
1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these
regulations are familiar with the regulations and the City's equal employment opportunity
policy.
2. Monitoring to assure adherence to federal, state and local laws, policies and guidelines.
EEO COMPLIANCE DOCUMENTS - 2
15
CITY OF KENT
EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE STATEMENT
This form shall be filled out AFTER COMPLETION of this project by the Contractor awarded the
Agreement.
I, the undersigned, a duly represented agent of
Company, hereby acknowledge and declare that the before-mentioned company was the prime
contractor for the Agreement known as that was entered
into on the (date), between the firm I represent and the City of
Kent.
I declare that I complied fully with all of the requirements and obligations as outlined in the City
of Kent Administrative Policy 1.2 and the Declaration City of Kent Equal Employment Opportunity
Policy that was part of the before-mentioned Agreement.
By:
Fo r:
Title:
Date:
EEO COMPLIANCE DOCUMENTS - 3
16
EXHIBIT A
GEOENGINEERS, INC.
LOW IMPACT DEVELOPMENT WATER QUALITY TREATMENT AND FLOW CONTROL
MILL CREEK NEIGHBORHOOD
GEOTECHNICAL AND HYDROLOGY SUPPORT
KENT, WASHINGTON
APRIL 25, 2014
FILE NO. 0410-190-00
INTRODUCTION
The purpose of the project is to improve stormwater runoff quality from the Mill Creek Neighborhood. This
neighborhood currently has no water treatment facilities and the City of Kent has identified the need for
water quality improvements in the area due to its proximity to Mill Creek. The City has received funding
from the Washington State Department of Ecology (Ecology) for the planning and design of Low Impact
Development(LID)facilities. We understand that bioswales are currently being considered as a stormwater
treatment method.
The site comprises roughly four city blocks to the east of Mill Creek. The site is generally bounded by East
James Street to the north, East Temperance Street to the south, Prospect Avenue North to the east, and
Clark Avenue to the west. Stormwater improvements are proposed for East Temperance, Prospect Avenue
North, Clark Avenue, and Cedar Street, encompassing approximately 3,300 feet of roadway.
The purpose of our services is to provide a site suitability assessment, geotechnical engineering and
hydrology support for the design of LID stormwater improvements. We understand thatthe City of Kent will
provide the civil design for the project including layout of stormwater improvements and associated
roadway and sidewalk improvements. The City will also develop plans and specifications for construction.
We anticipate that the project will be completed in the following phases:
uuuu Initial Site Evaluation (GeoEngineers with input from City of Kent).
uuuu Geotechnical Site Soils Evaluation (GeoEngineers).
uuuu Develop a baseline hydrology model to calculate road runoff under pre-developed conditions
(GeoEngineers).
uuuu Develop up to two preliminary concepts for options for improving stormwater quality. The
preliminary concepts will include general order of magnitude quantities for design elements such
as stormwater storage, quantity of treatment facilities (i.e., total required square footage of
bioswales), and anticipated stormwater runoff quantities for each concept (GeoEngineers).
uuuu Develop a preliminary layout plan based on one of the preliminary concepts with specific site
locations of each of the design elements (City of Kent).
uuuu Revise and iterate the final hydrology model based on the preferred layout(GeoEngineers).
uuuu Finalize Plans and Specifications(City of Kent with input from GeoEngineers).
17
army apr iRoa aiin��uu ,yau,t4 ;
SCOPE OF SERVICES
Our specific scope of services for the Mill Creek Neighborhood Low Impact Development Water Quality
Treatment and Flow Control project includes:
1. Attending one on-site meeting with the City of Kent. The purpose of this meeting will be to develop a
better understanding of project requirements and regulatory and physical site constraints.
2. Reviewing Ecology's Stormwater Management Manual for Western Washington with regard to project
specific criteria. We will also review the Ecology funding requirements for this City of Kent project to
determine additional technical requirements and Ecology's expectations for the project.
3. Coordinating subsurface explorations. We will mark exploration locations and contact the "One-Call"
utility locate service prior to beginning our explorations. The explorations will be completed on existing
City of Kent right-of-way(ROW). We understand permitting and site access coordination for explorations
will be completed as necessary by the City of Kent.
4. Installing four monitoring wells across the project site. The purpose of these wells is to evaluate the
regional groundwater level and gradient. We have based our budget on installing four piezometers to
20 feet below ground surface (bgs). Electronic data loggers will be installed in each well to monitor
groundwater levels for up to 1 year.
5. Performing shallow (less than 5 feet bgs) explorations on the shoulders of the road. The purpose of
these explorations is to identify areas suitable for low volume stormwater infiltration. We have
budgeted for about 30 shallow explorations to be completed over two days. The amount of subsurface
explorations completed will depend in part on site access and project requirements.
6. Performing laboratory testing of samples obtained from our explorations. We have budgeted for up to
30 sieve analyses (used to estimate infiltration rates) and up to 10 Cation Exchange Capacity (CEC)
tests (used to estimate water treatment potential).
7. Providing design infiltration rates based on the results of oursieve analyses in accordance with Ecology
guidelines.
8. Preparing a stormwater infiltration and treatment feasibility report presenting the results of our soils
investigation and our conclusions and recommendations.
9. Developing a baseline hydrologic model. We will develop a "without controls"stormwater model using
Western Washington Hydrology Model (2012 version). This model will be used to establish the flow
volumes generated from each roadway, and define the inputs for treatment options in later models.
This task includes basin delineation using topographic survey(provided by City)and/or Light Detection
and Ranging (LiDAR) data.
10. Performing preliminary hydrologic modeling of proposed conditions. Upon development of preliminary
design alternatives (City and GeoEngineers), we will develop preliminary models to evaluate the
potential effectiveness of each option (up to two)to treat stormwater runoff to the required criteria.
11. Preparing a preliminary design memorandum including the results of our baseline and preliminary
hydrologic model analysis.
12. Developing a final hydrologic model. After the selection of the preferred alternative and the City of Kent
completes the project layout,we will run multiple iterations of the hydrologic model to evaluate the final
GEOENGINEERS
18
city rpr IRS*a Alp i lilll 18,2014 1lar;a 3
project layout. If necessary, we will coordinate with the City of Kent to modify the final layout to meet
treatment criteria or to improve treatment to the extent practical.
13. Preparing a final stormwater design report for submittal to Ecology.
14. Reviewing plans and specifications prepared by the City of Kent.
Our scope of services does not include preparing construction plans and specifications or construction
observation and support.
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Attachment:
Exhibit B Fee Estimate
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EXHIBIT C
INSURANCE REQUIREMENTS FOR
CONSULTANT SERVICES AGREEMENTS
Insurance
The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which
may arise from or in connection with the performance of the work hereunder
by the Consultant, their agents, representatives, employees or
subcontractors.
A. Minimum Scope of Insurance
Consultant shall obtain insurance of the types described below:
1. Automobile Liability insurance covering all owned, non-owned,
hired and leased vehicles. Coverage shall be written on Insurance
Services Office (ISO) form CA 00 01 or a substitute form providing
equivalent liability coverage. If necessary, the policy shall be
endorsed to provide contractual liability coverage.
2. Commercial General Liability insurance shall be written on ISO
occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury, and liability
assumed under an insured contract. The City shall be named as an
insured under the Consultant's Commercial General Liability
insurance policy with respect to the work performed for the City
using ISO additional insured endorsement CG 20 10 11 85 or a
substitute endorsement providing equivalent coverage.
3. Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of Washington.
4. Professional Liability insurance appropriate to the Consultant's
profession.
B. Minimum Amounts of Insurance
Consultant shall maintain the following insurance limits:
1. Automobile Liability insurance with a minimum combined single
limit for bodily injury and property damage of $1,000,000 per
accident.
2. Commercial General Liability insurance shall be written with limits
no less than $2,000,000 each occurrence, $2,000,000 general
aggregate and a $1,000,000 products-completed operations
aggregate limit.
zi
EXHIBIT C (Continued)
3. Professional Liability insurance shall be written with limits no less
than $2,000,000 per claim and $2,000,000 policy aggregate limit.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Automobile Liability and Commercial General Liability
insurance:
1. The Consultant's insurance coverage shall be primary insurance as
respect the City. Any Insurance, self-insurance, or insurance pool
coverage maintained by the City shall be excess of the Consultant's
insurance and shall not contribute with it.
2. The Consultant's insurance shall be endorsed to state that coverage
shall not be cancelled by either party, except after thirty (30) days
prior written notice by certified mail, return receipt requested, has
been given to the City.
3. The City of Kent shall be named as an additional insured on all
policies (except Professional Liability) as respects work performed
by or on behalf of the Consultant and a copy of the endorsement
naming the City as additional insured shall be attached to the
Certificate of Insurance. The City reserves the right to receive a
certified copy of all required insurance policies. The Consultant's
Commercial General Liability insurance shall also contain a clause
stating that coverage shall apply separately to each insured against
whom claim is made or suit is brought, except with respects to the
limits of the insurer's liability.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not
less than ANII.
E. Verification of Coverage
Consultant shall furnish the City with original certificates and a copy of the
amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of
the Contractor before commencement of the work.
F. Subcontractors
Consultant shall include all subcontractors as insureds under its policies or
shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the same insurance
requirements as stated herein for the Consultant.
zz
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23
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte, P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: April 25, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Kelly Peterson, AICP, Special Projects Manager
Through: Chad Bieren, P.E., City Engineer
Subject: Aquatic Lands Easements — Sanitary Sewer & Pedestrian Bridge
Item - 3
Motion: Move to authorize the Mayor to sign Aquatic Lands Easements
from the Washington Department of Natural Resources for the exiting
sanitary sewer and pedestrian bridge crossing over the Green River
subject to terms and conditions acceptable to the Public Works Director
and City Attorney.
Summary:
In 2000, the City of Kent secured 12 year Aquatic Lands Easements from the
Washington Department of Natural Resources (WA DNR) for a sanitary sewer line
(Easement No. 51-A71747) and pedestrian bridge crossing (Easement No. 51-
A71513) over the Green River.
These facilities serve the Riverview neighborhood on the west side of the river. The
easements for these facilities have expired. Staff has worked with WA DNR to
develop 30-year Aquatic Lands Easements for these crossings.
The WA DNR manages state owned aquatic lands including navigable rivers such as
the Green River. The easements are a state requirement.
Budget Impact:
There is no unbudgeted fiscal impact.
P TWC@014105 05 2014.doc
24
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25
When recorded, return to:
City of Kent
220 Fourth Avenue South
Kent, WA98032
04r
INIVAI
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WASHINGTON STATE DEPARTMENT OF
Natural Resources
Peter Goldmark-Commissioner of Public Lands
AQUATIC LANDS EASEMENT
Easement No. 51-A71747
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Kent
Legal Description: Section 10, Township 22 North, Range 4 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 KENT, 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 the
Green River: described in Exhibit A. hi 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-A71747
26
(b) This Easement is subject to all valid interests of third parties noted in the records
of King County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
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: a 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:
Aquatic Lands Easement Page 2 of 26 Easement No. 51-A71747
27
(1) Damage to natural resources,
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage,
waste matter, pollutants of any type, or other matter.
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 15a' day of March, 2014 (the "Commencement Date"), and ending on the 14a' day of
March, 2044 (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.
Aquatic Lands Easement Page 3 of 26 Easement No. 51-A71747
2s
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.
(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 FEES
4.1 Fee. For the Term, Grantee shall pay to State a use fee of Zero Dollars (SO) 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, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
Aquatic Lands Easement Page 4 of 26 Easement No. 51-A71747
29
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.
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 shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent(1%)per month from the date State notifies
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.
Aquatic Lands Easement Page 5 of 26 Easement No. 51-A71747
30
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.
(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: City of Kent Pedestrian Bridge 51-071513 (Grantee Owned)
TCI Cablevision of Washington Fiber Optic Cable 51-071597 (Owned by Others)Puget Sound
Energy Powerline 51-071748 (Owned by Others) Qwest Corporation Fiber Optic Cable 51-
077142 (Owned by Others).
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
Aquatic Lands Easement Page 6 of 26 Easement No. 51-A71747
31
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.
(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 zero
percent(0%)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.
(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
Aquatic Lands Easement Page 7 of 26 Easement No. 51-A71747
32
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.
(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 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
Aquatic Lands Easement Page 8 of 26 Easement No. 51-A71747
33
(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.
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.
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
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(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.
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(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.
(c) 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.
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(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
nonemergencies and reasonably practical notice in emergencies.
(c) In nonemergencies, 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. 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
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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:
(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.
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(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 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
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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.
(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,
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(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.
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, Grantee shall promptly reconstruct, repair, or
replace any Improvements in accordance with Paragraph 7.3, Construction, Major
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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.
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
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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 OF KENT
220 Fourth Avenue South
Kent, WA98032
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.
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
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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 anew
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.
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
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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.
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16.14 Exhibits. All referenced exhibits are incorporated in this Easement unless expressly
identified as unincorporated.
CITY OF KENT
Dated: 120
By: SUZETTE COOKE
Title: Mayor
Address: 220 Fourth Avenue South
Kent, WA 98032
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Dated: 120
By: PETER GOLDMARK
Title: Commissioner of Public Lands
Address: Shoreline District Aquatics
950 Farman Avenue North
Enumclaw, WA 98022-9282
Approved as to form this
16 day of June 2010
Janis Snoey, Assistant Attorney General
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REPRESENTATIVE ACKNOWLEDGMENT
STATE OF )
ss
County of )
I certify that I know or have satisfactory evidence that SUZETTE COOKE 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 of the
CITY OF KENT to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
(Signature)
(Seal or stamp)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
Aquatic Lands Easement Page 23 of 26 Easement No. 51-A71747
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STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
COUNTY OF )
I certify that I know or have satisfactory evidence that PETER GOLDMARK 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:
(Signature)
(Seal or stamp)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
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EXHIBIT A
A STRIP OF LAND 1.83 FEET IN WIDTH OVER A PORTION OF GOVERNMENT LOT 3
IN SECTION 10, TOWNSHIP 22 NORTH, RANGE 4 EAST, W.M. AND IN KING COUNTY,
WASHINGTON, SAID STRIP BEING 0.915 FEET ON EACH SIDE OF THE FOLLOWING
DESCRIBED CENTERLINE:
COMMENCING AT THE SOUTH ONE QUARTER CORNER OF SAID SECTION 10;
THENCE S89039'21"E ALONG THE SOUTH LINE OF SAID SECTION 10, A DISTANCE
OF 1,543.72 FEET TO A POINT ON THE CENTERLINE OF FRAGER ROAD, SAID POINT
BEING ON A 2,400.00 FOOT RADIUS CIRCULAR CURVE TO THE RIGHT, THE CENTER
OF WHICH BEARS S65048'49"E; THENCE, NORTHEASTERLY, ALONG SAID CURVE
AND CENTERLINE, THROUGH A CENTRAL ANGLE OF 00004'17", AN ARC DISTANCE
OF 2.99 FEET TO A POINT OF TANGENCY WITH A 2,400,00 FOOT RADIUS CIRCULAR
CURVE TO THE LEFT; THENCE NORTHEASTERLY, ALONG SAID CURVE, THROUGH
A CENTRAL ANGLE OF 03034'52", AN ARC DISTANCE OF 150,00 FEET; THENCE
S70003'20"E 58.00 FEET, MORE OR LESS TO A POINT ON THE WESTERLY LINE OF
ORDINARY HIGH WATER OF THE GREEN RIVER AND THE TRUE POINT OF
BEGINNING OF THE HERIN DESCRIBED CENTERLINE; THENCE CONTINUING
S070003'20"E 95.00 FEET, MORE OR LESS, TO THE EASTERLY LINE OF ORDINARY
HIGH WATER OF THE GREEN RIVER AND THE TERMINUS OF SAID CENTERLINE.
THE SIDELINES OF THE ABOVE DESCRIBED STRIP OF LAND SHALL BE
LENGTHENED OR SHORTENED, AS REQUIRED, TO INTERSECT THE EASTERLY
AND WESTERLY LINES OF ORDINARY HIGH WATER OF SAID GREEN RIVER.
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EXHIBIT B
1. DESCRIPTION OF PERMITTED USE
A. Existing Facilities.
An 8" sewer force main enclosed in a 12" conduit, attached to the City of Kent
pedestrian bridge (easement no. 51-071513).
B. Proposed Facilities.
Grantee proposes no new facilities.
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When recorded, return to:
City of Kent
220 Fourth Avenue South
Kent, WA98032
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WASHINGTON STATE DEPARTMENT OF
Natural Resources
Peter Goldmark-Commissioner of Public Lands
AQUATIC LANDS EASEMENT
Easement No. 51-A71513
Grantor: Washington State Department of Natural Resources
Grantee(s): City of Kent
Legal Description: Section 10, Township 22 North, Range 4 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 KENT, 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 Green
River: described in Exhibit A. hi this agreement, the term "Easement"means this
agreement and the rights granted; the term "Easement Property"means the real
property subject to the easement.
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(b) This Easement is subject to all valid interests of third parties noted in the records
of King County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington; rights of the public under the Public Trust Doctrine or
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: a pedestrian bridge (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:
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(1) Damage to natural resources,
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage,
waste matter, pollutants of any type, or other matter.
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 15a' day of March, 2014 (the "Commencement Date"), and ending on the 14a' day of
March, 2044 (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.
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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.
(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 FEES
4.1 Fee. For the Term, Grantee shall pay to State a use fee of Zero Dollars (SO) 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, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
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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.
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 shall
reimburse State for the amount paid or advanced and shall pay interest on that
amount at the rate of one percent(1%)per month from the date State notifies
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.
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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.
(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: City of Kent Sewer Main 51-071747 (Grantee Owned),
TCI Cablevision of Washington Fiber Optic Cable 51-071597 (Owned by Others), Puget Sound
Energy Powerline 51-071748 (Owned by Others), Qwest Corporation Fiber Optic Cable 51-
077142 (Owned by Others).
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
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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.
(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 Zero
percent(0%)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.
(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
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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.
(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 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
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(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.
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.
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
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(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.
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(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.
(c) 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.
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(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
nonemergencies and reasonably practical notice in emergencies.
(c) In nonemergencies, 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. 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
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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:
(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.
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(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 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
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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.
(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,
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(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.
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.
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(b) Unless otherwise agreed in writing, 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.
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.
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(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 OF KENT
220 Fourth Avenue South
Kent, WA98032
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.
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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.
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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.
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.
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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.
CITY OF KENT
Dated: 120
By: SUZETTE COOKE
Title: Mayor
Address: 220 Fourth Avenue South
Kent, WA 98032
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Dated: 120
By: PETER GOLDMARK
Title: Commissioner of Public Lands
Address: Shoreline District Aquatics
950 Farman Avenue North
Enumclaw, WA 98022-9282
Approved as to form this
16 day of June 2010
Janis Snoey, Assistant Attorney General
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REPRESENTATIVE ACKNOWLEDGMENT
STATE OF )
ss
County of )
I certify that I know or have satisfactory evidence that SUZETTE COOKE 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 of the
CITY OF KENT to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
Dated:
(Signature)
(Seal or stamp)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
Aquatic Lands Easement Page 23 of 26 Easement No. 51-A71513
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STATE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
COUNTY OF )
I certify that I know or have satisfactory evidence that PETER GOLDMARK 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:
(Signature)
(Seal or stamp)
(Print Name)
Notary Public in and for the State of
Washington, residing at
My appointment expires
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EXHIBIT A
Legal Description - Proposed Pedestrian Easement
A STRIP OF LAND 30.00 FEET IN WIDTH OVER A PORTION OF GOVERNMENT
LOT 3 IN SECTION 10, TOWNSHIP 22 NORTH, RANGE 4 EAST, W.M. AND IN KING
COUNTY, WASHINGTON, SAID STRIP BEING 15.00 FEET ON EACH SIDE OF THE
FOLLOWING DESCRIBED CENTERLINE:
COMMENCING AT THE SOUTH ONE QUARTER CORNER OF SAID SECTION 10;
THENCE S89039'21"E ALONG THE SOUTH LINE OF SAID SECTION 10, A
DISTANCE OF 1 ,543.72 FEET TO A POINT ON THE CENTERLINE OF FRAGER
ROAD, SAID POINT BEING ON A 2,400.00 FOOT RADIUS CIRCULAR CURVE TO
THE RIGHT, THE CENTER OF WHICH BEARS S65048'49"E; THENCE,
NORTHEASTERLY, ALONG SAID CURVE AND CENTERLINE, THROUGH A
CENTRAL ANGLE OF 00004" 7", AN ARC DISTANCE OF 2.99 FEET TO A POINT OF
TANGENCY WITH A 2,400,00 FOOT RADIUS CIRCULAR CURVE TO THE LEFT;
THENCE NORTHEASTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 03034'52", AN ARC DISTANCE OF 150,00 FEET; THENCE S70003'20"E 58.00
FEET, MORE OR LESS TO A POINT ON THE WESTERLY LINE OF ORDINARY
HIGH WATER OF THE GREEN RIVER AND THE TRUE POINT OF BEGINNING OF
THE HERIN DESCRIBED CENTERLINE; THENCE CONTINUING S070003'20"E 95.00
FEET, MORE OR LESS, TO THE EASTERLY LINE OF ORDINARY HIGH WATER OF
THE GREEN RIVER AND THE TERMINUS OF SAID CENTERLINE.
THE SIDELINES OF THE ABOVE DESCRIBED STRIP OF LAND SHALL BE
LENGTHENED OR SHORTENED, AS REQUIRED, TO INTERSECT THE EASTERLY
AND WESTERLY LINES OF ORDINARY HIGH WATER OF SAID GREEN RIVER.
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EXHIBIT B
1. DESCRIPTION OF PERMITTED USE
A. Existing Facilities.
A 180-foot pedestrian and utility bridge crossing the Green River at
approximately river mile 19 in Kent, WA.
Attached to the existing pedestrian bridge and under separate DNR agreements
are:
City of Kent Sewer Main 51-071747
TCI Cablevision of Washington Fiber Optic Cable 51-071597
Puget Sound Energy Powerline 5 1-07 1 748
Qwest Corporation Fiber Optic Cable 5 1-077 1 42
B. Proposed Facilities.
Grantee proposes no new facilities.
Aquatic Lands Easement Page 26 of 26 Easement No. 51-A71513
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PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: March 28, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Gina Hungerford, Conservation Coordinator
Through: Kelly Peterson, AICP, Special Projects Manager
Mike Mactutis, P.E., Environmental Engineering Manager
Chad Bieren, P.E., City Engineer
Subject: Information Only/City-wide TeamUp2CleanUp Event
Item - 4
Motion:
Information Item/No Motion Required
Summary:
On March 27, 2014 an in-house committee, joined by Barbara Smith from the
Downtown Partnership, Andrea Keikkala from the Kent Chamber of Commerce, John
Hines & Cynthia Tanis from Kent Station and Jeff Wagner from Republic Waste
Services, met to discuss ways to increase participation at the city-wide litter cleanup
event planned for Saturday, May 17, 8:00 am - Noon.
A second Press Release will be sent out along with ramping up the social media
campaign. In addition, flyers and posters will be distributed to promote the event.
Residents, businesses and organizations are invited to register now at
http://KentWA.clov/TalkinciTrash. To make participation easy, there will be three
Check-In/Supply Stations where volunteers can pick up bags and gloves on event
day:
Downtown — Kherson Park, 307 West Gowe Street
East Hill — Golden Steer Steak & Rib House parking lot, 23826 104th Ave SE
West Hill — Trinity Community Church parking lot, 3807 Reith Road
To make sure the event is not "all work and no play", we've incorporated a fun
Scavenger Hunt and a Photo Contest! For more information, visit the
aforementioned website, or call 253-856-5549.
Budget Impact:
None
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PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: March 29, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Monica Whitman, Senior Transportation Planner
Through: Chad Bieren, P.E., City Engineer
Subject: Information Only/Briefing on Upcoming Metro Service Cuts
Item - 5
Motion:
Information Item/No Motion Required
Summary:
With the failure of Proposition 1, a measure that would have charged $60 per year for vehicle
license fees and raised the sales tax 0.1 percent to help pay for Metro Transit bus service as
well as road projects in the county and cities within the county, King County Metro is faced
with making deep, system-wide cuts.
King County Metro funding is heavily reliant on sales tax and was greatly impacted by the
recession. Although the worst of the recession has passed and sales tax revenues are
slowly recovering, the economy has not recovered enough to generate the sustained sales
tax revenues needed to close this financial gap. Since 2009, Metro has undertaken a series
of actions to address the revenue shortfall, closing the financial gap by approximately $148
million annually. Despite this effort, Metro still has a revenue gap. Additionally, a temporary
Congestion Relief Charge ($20 Vehicle License Fee) is set to expire in June 2014.
To close the annual budget gap, Metro is proposing to reduce 550,000 annual hours of
transit service over the course of four service changes: September 2014, February 2015,
June 2015 and September 2015.
In Kent, 9 routes are proposed to be deleted (Routes: 152, 158, 159, 161, 173, 190, 192,
913 and 916), 4 routes are proposed to be revised or reduced (Routes: 157, 168, 197, and
914), and 8 routes remain unchanged.
The proposed phasing seeks to:
• Maximize and maintain as much ridership as possible throughout the transit system
• Distribute reductions geographically to the extent possible
• Consider staff attrition, coach replacement, and organizational capacity to implement
changes to the transit system
• Limit impacts on minority and low-income communities relative to the entire system
Local impacts will include fewer travel options for riders, longer waits at bus stops, more
transfers instead of direct connections, and more-crowded buses.
Budget Impact:
None
80
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81
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH
1NGTON Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: May 2, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Chad Bieren, P.E., City Engineer
Subject: Information Only/South 212th and South 228th Street Railroad
Grade Separation Funding Options
Item — 6
Information Only/No Motion Required
Summary:
The next Washington State Freight Mobility Strategic Investment Board (FMSIB)
quarterly meeting will be held in Vancouver on May 30, 2014. FMSIB is expecting the
city of Kent to provide a funding plan for completing the So. 228th/Union Pacific, So.
212th/Union Pacific and So. 212th/BNSF railroad grade separation projects. FMSIB
monies have been available for construction of these projects since 2002 (228th) and
2005 (212th). While we continue to pursue other grants to fund these projects, FMSIB
wants assurances their money will be spent in the near term. Accordingly, direction
from Council to move forward with formation of a Local Improvement District (LID) to
provide a funding match for the grants that we already have, would show FMSIB a good
faith effort to complete the projects. LIDs have been used successfully by the city to
build other projects over the past few decades.
The most recent successes of similar scale are LID 340 and LID 353. As shown on the
attached maps LID 340 ($21,516,000) helped pay for the So. 196th Street railroad
grade separation and LID 353 ($14,329,000) funded roughly 1/2 the cost of the So.
228th Street extension (Veterans Drive).
Several different methods are used to assess properties for the 'special benefit'
provided by the constructed improvements. In both LID 340 and LID 353 the values
were determined based on the distance from the new and improved roadways. The
closer the property is to the improvements, the more direct the special benefit and
greater the assessment. A similar method was used by a certified appraiser hired by
the city to explore the potential for a LID related to So. 212th and 228th Street Railroad
grade separations. The special benefit to properties surrounding the project would
nearly match the cost of construction. Therefore, Council could form a LID to help pay
for the projects. Final assessments would not be determined until construction contracts
are awarded and after we have presumably obtained other grants this would ultimately
lower the costs levied on benefitted properties.
82
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83
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH IN GTO N Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: May 2, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Chad Bieren, P.E., City Engineer
Subject: Information Only/Transportation Funding Options:
- Solid Waste Utility Franchise
- Transportation Benefit District
Item — 7
Motion:
Information Only/No Motion Required
Summary:
Staff have reviewed a number of options to finance transportation projects, including
Transportation Impact Fees (adopted 2010) Business License Fee (adopted 2012),
Bonds, Real Estate Excise Tax, Local Improvement Districts and a Transportation
Benefit District (TBD). Based on continuing needs, we will present the TBD again,
along with a another option - a franchise fee for the solid waste utility that operates
on city streets.
Transportation Benefit District:
In 2005 the Washington State Legislature passed legislation allowing municipalities
to form a TBD councilmanic approval that assesses an annual $20 fee per registered
vehicle. TBDs also allow several other revenue options subject to voter approval: a
property tax, 1-year excess levy or recurring excess levy, for capital purposes; up to
0.2% sales and use tax; and up to an annual $100 vehicle fee per vehicle registered
in the district.
Staff reviewed the $20 vehicle fee alternative several years ago. Using numbers
from the Washington State Vehicle Licensing Department staff estimated at that
time that there are approximately 72,000 vehicles licensed in the city of Kent.
Accordingly, a license tab fee would generate approximately $1,440,000 annually.
A tab fee authorized by the District may not be collected until six months after
approval by the Council the Council can authorize a tab fee up to $20 without a vote
or up to $100 with a community vote. There are a number of communities in
Washington that have already implemented vehicle license tab fees. A listing of
these cities and their corresponding fees is attached. The source of information is
from the Association of Washington Cities, the Washington State Department of
84
Licensing, and the Municipal Research and Services Center of Washington. This
proposal was last reviewed by Council on July 20, 2012.
Solid Waste Franchise:
The Solid Waste Utility is owned by the city of Kent, operates on city streets and
covers the entire city. The city has mandatory garbage collection service. The city
maintains 320 centerline miles of streets, over half of which are residential. All of
these streets are affected by the Solid Waste Utility. On residential streets the
weekly garbage pickup and weekly recycling or yard waste pickup requires the
heaviest vehicles these streets will carry. Using numbers from the American
Association of State Highway and Transportation Officials (AASHTO) institute, one
garbage truck produces the wear and tear of 1,500 cars. This takes into account the
aluminum composition used for these trucks.
We have analyzed this option and produced a table showing what the effect would
be if a franchise fee was included as a percent of the waste hauler's gross income.
Because of complexity, the comparison was made using a standard 32-gallon cart
for residential service. Staff have also researched which other cities have a franchise
fee and will present that data. Currently the city contracts with Republic Services for
the entire city with a contract covering the time period of April 1, 2011 to March 31,
2018.
If Council desires further analysis, discussions would also need to take place with
our current service provider, Republic Services.
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87
Franchise Fee as an increase per customer
Sm=6% 2m=12% 3m=18% 4m=24°%
Monthly Rates for Garbage Pick Up 2014
Increase Increase Increase Increase
Residential Monthly Fees
Weekly One 13-gallon Micro-Cart $ 5.14 $ 5.45 $ 5.76 $ 6.07 $ 6.37 -.
Residential One 20 gallon Mini-Can $ 10.27 $ 10.89 $ 11.50 $ 12.12 $ 12.73
Curbside Service 132-gallon Garbage Cart $ 17.09 $ 18.12 $ 1914 $ 20.17 $ 21,19
145-gallon Garbage Cart $ 24.76 $ 26.25 $ 27.73 $ 29.22 $ 30.70
164-gallon Garbage Cart $ 37.47 $ 39.72 $ 41.97 $ 44.21 $ 46.46
1 96-gallon Garbage Cart $ 56.20 $ 59.57 $ 62.94 $ 66.32 $ 69.69
Multifamily Monthly Fees
Weekly 132-gallon Garbage Cart $ 13.18 $ 13.97 $ 14.76 $ 15.55 $ 16.34
Multifamily Cart 145-gallon Garbage Cart $ 19.08 $ 20.22 $ 21.37 $ 22.51 $ 23.66
164-gallon Garbage Cart $ 28.86 $ 30.59 $ 32.32 $ 34.05 $ 35.79
1-96 gallon Garbage Cart $ 43.28 $ 45.88 $ 48.47 $ 51.07 $ 53.67
Multifamily 1 Cubicyard,1 pickup/week $ 63.29 $ 67.09 $ 70.88 $ 74.68 $ 78.48
Detachable 1 Cubic yard,2 pickups/week $ 126.59 $ 134.18 $ 141.78 $ 149.37 $ 156.97
Container 1 Cubic yard,3 pickupsMeek $ 189.88 $ : 201.27 $ 212,66 $ 224.05 $ 235.45
1 Cubic yard,4 pickups/week $ 253.17 $ 268.36 $ 283.55 $ 298,74 $ 313.93
1 Cubic yard,5 pickups/week $ 316A6 $ 335A5 $ 354.44 $ 373,42 $ 392.41
1.5 Cubic Yard, 1 pickup/week $ 87.73 $ 92.99 $ 98.25 $ 103.52 $ 108.78
1,5 Cubic Yard,2 pickups/week $ 175.44 $ 185.97 $. 196.49 $ 207,02 $ 217.55
1.5 Cubic Yard,3 pickups/week $ 263.16 $ 278.95 $ 294.74 $ 310.53 $ 326.32
1,5 Cubic Yard,4 pickups/week $ 350.88 $ 371.93 $ 392.98 $ 414.04 $ 435,09 1.
1.5 Cubic Yard,5 pickups/week $ 438.60 $ 464.92 $ 491.24 $ 517.55 $ 543.87
2 Cubic Yard,1 pickuptweek $ 112.15 $ 119.88 $ 125.61 $ 132.34 $ 139.07
2 Cubic Yard,2 pickups/week $ 224.29 $ 237.75 $ 251.21 $ 264,66 $ 278.12
2 Cubic Yard,3 pickups/week $ 336.44 $ 356.63 $ 376.82 $ 397.00 $ 417.19
2 Cubic Yard,4 pickups/week $ 448.60 $ 475.51 $ 502.43 $ 529.34 $ 556.26
2 Cubic Yard 5 pickups/week $ 560.74 $ 594.38 $ 62803 $ 661.67 $ 695.31
3 Cubic Yard 1pickup/week S 161.01 $ 170.67 $ 180.33 $ 189.99 $ 199.65
3 Cubic Yard,2 pickups/week $ 322.01 $ 341.33 $ 360,65 $ 379.97 $ 399.29
3 Cubic Yard,3 pickupslweek $ 483.00 $ 511.98 $ 540.96 $ 569.94 $ 598.92
3 Cubic Yard 4pickups/week $ 644.01 $ 68265 $.. 721.29 $ 759,93 $ 798.57
3 Cubic Yard,5 pickups/week $ 806.01 $ 8S3.31 $ 901.61 $ 949.91 $ 998.21
4 Cubic Yard, 1 pickup/week $ 209.86 $ . 222.45 $ 235.04 $ 247,63 $ 260.22
4 Cubic Yard,2 pickupstweek $ 419.71 $ 444.90 $ 470.08 $ 495.26 $ 520.45
4 Cubic Yard,3 pickupstweek $ 629.57 $ 667.34 $ 705.12 $ 742.89 $ 780.67
4 Cubic Yard,4 pickups/week $ 839.43 $ 889.79 $ 940.16 $ 990.53 $ 1,040.89
4 Cubic Yard,5 pickups/week $ 1,049.28 $ 1,112.24 $ 1,175.20 '$ 1,238,16 $ 1,301A1
6 Cubic Yard, 1 pickup/week $ 307.56 $ 326.02 $ 344.47 $ 362.92 $ 381.38
6 Cubic Yard,2 pickupsMeek $ 616.12 $ 652.03 $ 688.94 $ 725,85 $ 762.75
6 Cubic Yard,3 pickups/week $ 922.70 $ 978.06 $ 1,033.42 $ 1,088.78 $ 1,144.15
6 Cubic Yard,4 pickups/week $ 1,230.26 $ 1,304.08 $ 1,377,89 $ 1,451,71 $ 1,525 52
6 Cubic Yard, 5 pickups/week $ 1,537.82 $ 1,630.09 $ 1,722.36 $ 1,814.63 $ 1,906.90
8 Cubic Yard,1 pickupMeek. $ 405.27 $ 429.58 $ 453.90 $ 478.22 $ 502,53
8 Cubic Yard,2 pickups/week $ 810.55 $ 859.18 $ 907.81 $ 956,44 $ 1,005.08
'8 Cubic Yard,3 pickups/week $ 1,215,81 $ 1,288,76 $ r 1,361.71 $ 1,434,66 $ 1,50761
8 Cubic Yard,4 pickups/week $ 1,621,09 $ 1,718.36 $ 1,815.62 $ 1,912.89 $ 2,010.15
8 Cubic Yard,5 pickups/week $ 2,026.36 $ 2,147,94 $ 2,269.52 $ 2,391.11 $ 2,512 69'..
ReWsed41112014
88
lm=6% 2m=12% 3m=18% 4m=24%
Monthly Rates for Garbage Pick Up 2014 Increase Increase Increase Increase
Commercial Monthly Fees
Weekly 1 32-gallon Garbage Cart $ 13.18 $ 13.97 $ 14,76 $ 15,55 $ 16.34
Commercial Cart 1 45-gallon Garbage Cart $ 19.08 $ 20.23 $ 21.37 $ 22.52 $ 23.66
1 64-gallon Garbage Cart $ 26.86 $ 30.59 $ 32,32 $ 34.05 $ 35,78
1 96-gallon Garbage Cart $ 43,28 $ 45.88 $ 48.48 $ 51.07 $ 53.67
Weekly 1 Cubic Yard Container $ 237.60 $ 251.85 $ 266.11 $ 280,36 $ 294.62
Commercial 1.5 Cubic Yard Container $ 295.92 $ 313.68 $ 331.43 $ 349.19 $ 366.94
Detachable 2 Cubic Yard Container $ 386.21 $ 40938 $ 432,56 $ 455,73 $ 478.90
Container, 3 Cubic Yard Container $ 496.36 $ 526.15 $ 555.93 $ 585.71 $ 615.49
Compacted 4 Cubic Yard Container. $ 596,04 $ 631.80 $ 667.57 $ 703,33 $ 739,09
6 Cubic Yard Container $ 770.08 $ 816.28 $ 862.49 $ 908.69 $ 954.90
Commercial 1 Cubic yard,1 pickup/week $ 63.29 $ 67.09 $ 70.88 '.$ 74.68 $ 78.48
Detachable 1 Cubic yard,2 pickups/week $ 126.59 $ 134.18 $ 141.78 $ 149.37 $ 156.97
Container,Loose 1 Cubic yard,3 pickups/week $ 189.88 $ 201.27 $ 212,66 $ 224.05 $ 235.45
1 Cubic yard,4 pickups/week $ 253,17 $ 268.36 $ 283.55 $ 298.74 $ 313.93
1 Cubic yard,5 pickups/week $ 316.46 $ 335.45 $ 354.44 $ 373.42 $ 392,41
1.5 Cubic Yard, 1 pickup/week $ 87.73 $ 92.99 $ 98.25 $ 103.52 $ 108.78
1.5 Cubic Yard,2pickups/week $ 175.44 $ 185.97 $ 196.49 $ 207.02 $ 217.55
1.5 Cubic Yard,3 pickups/week $ 263.16 $ 278.95 $ 294.74 $ 310.53 $ 326.32
1.5 Cubic Yard,4 p ckupstweek $ 350.88 $ 371.93 $ 392,98 $ 414.04 $ 435.09
1.5 Cubic Yard,5 pickups/week $ 438.60 $ 464.92 $ 491,24 $ 517.55 $ 543.87
2 Cubic Yard 1 pickup/week $ 112.15 $ 118.88 $ 125.61 $ 132.34 $ 139.07
2 Cubic Yard,2 pickups/week $ 224.29 $ 237.75 $ 251,21 $ 264.66 $ 278.12
2 Cubic Yard,3 pickups/week $ 336.44 $ 356.63 $ 376.82 $ 397,00 $ 417.19
2 Cubic Yard,4 pickups/week $ 448.60 $ 475.51 $ 502.43 $ 529.34 $ 556.26
2 Cubic Yard,5 pickupstweek $ 560.74 $ 594.38 $ 628.03 $ 661,67 $ 695.31
3 Cubic Yard, 1 pickup/week $ 161.01 $ 170.67 $ 180.33 $ 189.99 $ 199.65
3 Cubic Yard,2 pickups/week $ 322,01 $ 34133 $ 360,65 $ 379,97 $ 399.29
3 Cubic Yard 3 pickups/week $ 483.00 $ 511.98 $ 540.96 $ 569.94 $ 598.92
3 Cubic Yard,4 pickups/week. $ 644.01 $ 682.65 $ 721.29 $ 759,93 $ 798.57
3 Cubic Yard,5 pickups/week $ 805.01 $ 853.31 $ 901.61 $ 949.91 $ 998.21
4 Cubic Yard, 1 pickup/week $ 209.86 $ 222,45 $ 235,04 $ 247.63 $ 260,22
4 Cubic Yard,2 pickups/week $ 419.71 $ 444.90 $ 470.08 $ 495.26 $ 520.45
4 Cubic Yard,3 pickups/week $ 629.57 $ 667.34 $ 705,12 $ 742.89 $ 780.67 !.
4 Cubic Yard,4 pickups/week $ 839.43 $ 889.79 $ 940.16 $ 990.53 $ 1,040.89
4 Cubic Yard,5 pickups/week $ 1,049.28 $ 1,112,24 $ 1,175.20 $ 1,23816 $ 1,301,11
6 Cubic Yard, 1 pickup/week $ 307.56 $ 326.02 $ 344.47 $ 362.92 $ 381.38
6 Cubic Yard,2 pickups/week $ .615.12 $ 652,03 $ 688.94 $ 725.85 $ 762,75
6 Cubic Yard 3 pickups/week $ 922.70 $ 978.06 $ 1,033.42 $ 1,088.78 $ 1,144.15
6 Cubic Yard,4 pickups/week $ 1,230.26 $ 1,304,08 $ 1,377.89 $ 1,451.71 $ 1,525.52 i
6 Cubic Yard,5 pickups/week $ 1,537.82 $ 1,630.09 $ 1,722.36 $ 1,814.63 $ 1,906.90
8 Cubic Yard, 1 pickup/week $ 405.27 $ 429.58 $ 453,90 $ 47&22 $ 502.53
8 Cubic Yard,2 pickups/week $ 810.55 $ 859.18 $ 907.81 $ 956.44 $ 1,005.08
8 Cubic Yard,3 pickups/week $ 1,215.81 $. . 1,288.76 $ . 1,361.71 $ 1,434,66 $ 1,507.61 1
8 Cubic Yard,4 pickups/week $ 1,621.09 $ 1,718.36 $ 1,815.62 $ 1,912.89 $ 2,010.15
8 Cubic Yard,5 pickupshveek $ 2,026.36 $. 2,147 94 $ 2,269,52 ,$ 2,391,11 $ 2,512,69
Franchise Fee as a percent of Revenue
Month Acutals 1 million 2 million 3 million 4 million
January 2014 $ 1,381,320.21 6% 12% 18% 24%
February 2014 $ 1,273,377.84 7% 13% 20% 26%
Expected Montly 1/12 split $ 83,333.33 $ 166,666.67 $ 250,000.00 $ 333,333.33
Month Acutals 1 million 2 million 3 million 4 million
January 2014 $ 1,381,320.21 $ 82,879.21 $ 165,758.43 $ 248,637.64 $ 331,516.85
February 2014 $ 1,273,377.84 $ 76,402.67 $ 152,805.34 $ 229,208.01, $ 305,610.68
Based entirely on percentage 6.0% 12% 18% 24%
Revised41112014
89
Transportation Benefit District Fee Effective date
(Tabs expiring on or after...)
Bainbridge Island $20 1-Aug-13
Bremerton
$20 1-Jul-12
Buckley $20 1-Feb-14
Burien No. 1
$10 1-Feb-11
Carbonado
$20 1-Nov-13
Des Moines
$20 1-Sep-09
DuPont
$20 1-Sep-13
Edgewood
$20 1-Jul-14
East Wenatchee
$20 1-Aug-13
Eatonville
$20 1-Mar-13
Electric City
$20 1-May-13
Edmonds
$20 1-Sep-09
Enumclaw
$20 1-Sep-14
Grandview
$20 1-Feb-12
Kalama
$20 1-Oct-13
Kelso
$20 1-Jul-13
Kenmore
$20 1-Jun-13
Kittitas
$20 1-Dec-12
Lake Forest Park
$20 1-Sep-09
Lynnwood
$20 1-Jul-11
Mabton
$20 1-Dec-11
Maple Valley
$20 1-Jul-13
90
Mountlake Terrace
$20 1-Aug-12
Olympia $20 1-Oct-09
Orting February 1, 2013-
31-Jan-15
$20 (Fee applies to all renewals with these
registration dates, including renewals
paid after Feb. 1, 2015.)
Prosser
$20 1-Nov-09
Royal City
$20 1-Nov-12
Seattle
$20 1-May-11
Shoreline
$20 1-Feb-10
Snoqualmie
$20 1-Mar-11
Soap Lake
$20 1-Nov-13
Spokane
$20 1-Sep-11
Tacoma
$20 1-Jun-13
Toppenish
$20 1-Dec-12
Wapato
$20 1-Apr-13
Wenatchee
$20 1-Aug-12
Zillah
$20 1-Jul-12
Transportation Benefit District Salex Tax
Aberdeen
$0.0013 sales tax (passed, election
02/12/2013) effective 07/01/2013
Arlington $0.002 sales tax (passed, election
8/2013)
Marysville Sales tax on April 2014 ballot
91
Transportation Benefit District Salex Tax
Castle Rock
$0.002 sales tax (passed, election
11/06/2012) effective 04/01/2013
Lynden
$0.002 sales tax (passed, election
11/06/2012) effective 04/01/2013
Stanwood
$0.002 sales tax (passed, election
02/12/2013) effective 07/01/2013
Waitsburg $0.002 sales tax (passed, election
04/17/2012)
Ferndale $0.002 sales tax (passed, election
02/14/2012)
Northbend $0.002 sales tax (passed, election
11/08/2011
Walla Walla $0.002 sales tax (passed, election
02/14/2012)
Bellingham $0.002 sales tax (04/01/2011)
Leavenworth $0.002 sales tax (04/01/2011)
Snohomish $0.002 sales tax (passed 08/16/2011)
Ridgefield Sales tax repealed effective
10/01/2012 - $0.002 sales tax
Sequim $0.002 sales tax (04/01/2010)
92
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93
PUBLIC WORKS DEPARTMENT
Timothy J. LaPorte P.E., Public Works Director
Phone: 253-856-5500
KEN T Fax: 253-856-6500
WASH
1NGTON Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: May 2, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Chad Bieren, P.E., City Engineer
Subject: Information Only/Desimone Levee Repair Schedule
Item — 8
Information Only/No Motion Required
Summary:
The Briscoe Levee is located in Kent, while the Desimone Levee is in Tukwila. Work on
these levees was approved concurrently by the King County Flood Control District;
however, work on the Desimone section requires permits from the City of Tukwila.
Construction of a sheet pile flood wall is underway on the Briscoe Levee and we
anticipate most of the work needed for levee certification to be completed before the
next flood season begins in November. To that end, we expect sheet piles to arrive the
middle of this month and the contractor will be able to install them along the river at
the rate of 50 feet per day. This type of sheet pile takes about 3 and a half months
after they are ordered to arrive from the manufacturer.
In Tukwila, the Desimone levee was damaged in the same period of time as the Oso
landslide in Snohomish County, which struck at the end of our normal flood season. The
interlocal agreement with Tukwila was signed in March and it enables Kent to move
ahead with the levee work at the earliest opportunity. Kent staff is expediting design
work. It is also necessary to obtain right of way and/or easements from two properties
in Tukwila. Staff has met with property owners to negotiate necessary details. A
Shoreline Management permit will still be needed from the City of Tukwila. Other
significant permits including Fisheries, discussions with the Muckleshoot Nation and
SEPA have already been concluded or obtained.
Because of the new damage noted at the end of March staff will present some
intentions such as bidding and ordering the steel sheet piles in advance to enable the
repair work to progress as rapidly as possible. Please see the attached map for a
depiction of the Briscoe and Desimone levee reaches.
Budget Impact:
None
94
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97
ECONOMIC &COMMUNITY DEVELOPMENT
Ben Wolters, Director
PLANNING DIVISION
Fred Satterstrom, AICP, Director
Charlene Anderson, AICP, Manager
KENT
WASH,vGro„ Phone: 253-856-5454
Fax: 253-856-6454
Address: 220 Fourth Avenue S.
Kent, WA 98032-5895
Date: April 30, 2014
To: Chair Dennis Higgins and Public Works Committee Members
PW Committee Meeting Date: May 5, 2014
From: Ben Wolters, Economic & Community Development Director
Subject: Parking Zones Amendment
MOTION:
Information Only/No Motion Required
Summary:
Several months ago, a collaboration of the Kent Downtown Partnership City
Economic & Community Development and Police Departments determined changes
were needed to parking zones within the City to better align with customer and
employee parking needs and provide clear enforcement parameters in downtown.
The parking zone change was put on hold because around the same time the
Downtown Subarea Action Plan (DSAP) was to be updated and the City received
approval from King County Metro for a pilot project to assess parking code
amendments and parking management strategies for the downtown. The project
included an inventory of existing on-street and off-street stalls. A consultant team
identified parking challenges and barriers in the downtown and recommended
solutions to those challenges. One of the recommended solutions is to better
manage parking supply to assure customers get priority access to downtown
businesses.
Background:
The DSAP represents the community's vision for the urban center and serves as a
basis for development in the center by providing a framework for project-level
planning. The DSAP focuses on actions to implement the objectives and ideas
presented in the vision. These recommended actions include regulatory measures,
capital investments, and public programs.
Policy T-2 of the DSAP states, Take actions to ensure that adequate public parking
is available to support existing uses and facilitate future development in the Urban
98
Center. This includes efficient management of on-street spaces and future
development and enhancement of structured, off-street parking.
As a member of the team supporting the pilot project, Rick Williams Consulting
identified challenges and barriers for downtown parking strategies to address.
These challenges included consistent information of parking expectations to
businesses, employees, and customers; support of a long-term goal of assuring
that customers get priority to on-street/curb access to downtown businesses;
specifically dedicated employee parking; and focused enforcement of parking
policies. Recommended solutions to the parking challenges include creating distinct
parking areas to reduce conflicts between visitors and employees, and initiating
limited parking enforcement activities in the downtown to assure existing time
zones are honored and system utilization/turnover is operating as intended.
The proposed changes to the on-street parking zones in the downtown support
surrounding businesses by promoting appropriate turnover of parking stalls,
accommodate enforcement efforts by limiting the number of different parking
zones, and accommodate employee parking in areas removed from customer
prioritized areas.
CA:BW/pm
S:\Perm it\PI a n\COM P_PLAN_AM EN DM ENTS\2012\C PA-2012-1
Downtown\Parking\05052014_P WMemo_Parki ng_Ordi nance.doc
Att: Map of changes to parking zones; Ordinance
cc: Ben Wolters, ECD Director
Fred Satterstrom, AICP, Planning Director
Charlene Anderson,AICP, Planning Manager
99
ORDINANCE NO.
AN ORDINANCE of the City Council.4f the
City of Kent, Washington, amending Section
9.38.060 of the Kent City Code, entitled "Two -(2)
hour parking zones," increasing the parking to (4)
four hour parking zones.
RECITALS
A. Right Size Parking (RSP) is a three year grant project funded
by the Federal Highway Administration's Value Pricing Pilot Program and
managed by King County Metro- The overarching goal of the project is to
foster livable communities by optimizing the allocation of parking
resources.
B. The amount of parking is optimized, i.e., right sized, when it
strikes a balance between supply and demand, and the challenge lies in
determining the correct balance with confidence.
C. King County Metro approved the Kent Policy Demonstration
Project to provide for the implementation of a pilot project supporting
jurisdictional parking policy change that enables priced and 'right-sized'
parking in downtown Kent. The overall objective of this Project is to
1 Amend KCC 9.38
Downtown Parking
Ordinance
100
ensure parking is managed for livability and economic development within
the downtown area through right-sizing the parking supply.
D. With support from King County Metro and the City of Kent,
Rick Williams Consulting (RWC) conducted a comprehensive study of
parking occupancy and utilization in downtown Kent. Information derived
from this study was used to (a) develop a better understanding of the
actual use dynamics of parking within the downtown on a 'typical day,' (b)
provide a foundation of objective data upon which meaningful parking
management strategies can be established and implemented and, (c)
assist the community in taking advantage of opportunities that will
strengthen Kent's downtown and adjoining commercial areas. Strategies
developed will result in better management of on-street parking to support
smart growth for multifamily development as it is integrated into the
downtown. Right-sizing will also minimize the impact of off-street parking
on land use and support a more compact urban form that is well connected
to transit and other alternative mode systems (e.g., bike, walk, rideshare).
E. The consultant" team identified challenges and barriers for
downtown parking strategies to address, including among other strategies,
consistent information. of parking expectations to businesses, employees,
and customers; support of a long-term goal of assuring that customers get
priority to 'on-street/curb access to downtown businesses; specifically
dedicated employee; parking; and focused enforcement of parking policies.
F. Recommended near-term strategies for solving the parking
challenges in downtown include creating distinct parking areas to reduce
conflicts between visitors and employees, and initiating limited parking
enforcement activities in the downtown to assure existing time zones are
honored and system utilization/turnover is operating as intended.
2 Amend KCC 9.38
Downtown Parking
Ordinance
101
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. -Amendment. Section 9.38 of the Kent City
Code, entitled, "Parking," is hereby amended as follows:
Sec. 9.38.060. Two (2) hour parking zones.
A. Except for KCC 9.38.070 and permits issued by the city facilities
manager under KCC 9.38.170, at such times as the director of public
works or designee shall place the appropriate sign, it shall be illegal to
park any motor or other vehicle for an uninterrupted period in excess of
two (2) hours between the hours of 9:00 a.m. and 6:00 p.m. on either
side of, unless otherwise indicated, the following streets, public parking
lots, public parking garages,: or portions thereof:
1. Centennial Parking ,Garage: that portion of the first floor as
posted.
2. City; Hall parking lot between City Hall and the Centennial
Building: all parking` stalls unless otherwise posted.
3. East Pioneer Street: from Central Avenue North easterly
approximately one hundred fifty (150) feet to the alley east of Central
Avenue North, south side only.
3 Amend KCC 9.38
Downtown Parking
Ordinance
102
4. First Avenue North and First Avenue South: from a point two
hundred (200) feet north of West Meeker Street to West Titus Street.
5. Railroad Avenue North and Railroad Avenue South: from East
James Street to East Plee'EeFSmith Street, east side only; and from East
,ekerSmith Street to East Gowe Street.
6. Ramsay Way: from two hundred thirty._(230) feet east of 4th
Avenue North to three hundred fifty (350) feet east of 4th Avenue North.
7. Ramsay Way: from four hundred forty (440) feet ,east of 4th
Avenue North to five hundred twenty (520):feet east of 4th Avenue North,
south side only.
S. Ramsay Way: from four hundred eighty�(480) feet east of 4th
Avenue North to five hundred twenty (520) feet east of 4th Avenue North,
north side only.
9. Ramsay Way: from thirty (30) feet north of West Temperance
Street to one hundred fifty (150) feet north of West Temperance Street.
10. i Second Avenue North and Second Avenue South: from West
Harrison Street to West Titus Streetand the two (2) nqaFlEed paFlEing stalls
en the east side ef West Titus StFeet.
11. State Avenue North and State Avenue South: from East Smith
Street to East ,TeekerGowe Street.
12. West Gowe Street and East Gowe Street: from Fourth Avenue
South to Central Avenue South.
4 Amend KCC 9.38
Downtown Parking
Ordinance
103
13. West Meeker Street and East Meeker Street: from Fourth
Avenue to State Avenue.
14. West Harrison Street: from Fourth Avenue North to Second
Avenue North.
15. West Titus Street: from Second Aven[ae'South to First Avenue
South, north side only.
Provided, that this section shall not apply on Sundays or holidays,
B. Penalty. Any violation of the provisions .of this section shall be an
infraction punishable by a monetary penalty of thirtydollars ($30).
Vehicles parked in violation of this section are subject to impoundment as
provided by law.
Sec. 9.38.065. Four (4) hour garkina zones.
A. Except for KCC 9.38.070 and permits issued by the city facilities
manager under KCC 9.38.170, at such times as the director of public
works or designee shall place the appropriate sign, it shall be illegal to
park any motor :or other vehicle for an uninterrupted period in excess of
four (4) hours between the hours of 9:00 a.m. and 6:00 p.m. on either
side of, unless otherwise indicated, the following streets, public parking
lots, public parking garages, or portions thereof:
1. Railroad Avenue North and Railroad Avenue South: from East
Smith Street to East Gowe Street.
5 Amend KCC 9.38
Downtown Parking
Ordinance
104
Provided, that this section shall not apply on Sundays or holidays.
B. Penalty. Any violation of the provisions of this section shall be an
infraction punishable by a monetary penalty of thirty dollars ($30).
Vehicles parked in violation of this section are subiect to impoundment as
provided by law.
Sec. 9.38.070 Holiday parking — Penalty.,
A. From the day after Thanksgiving until January 2nd of.the following
year, all two (2) hour parking zones shall be considered three (3) hour
parking zones, and it shall be illegal to park any motor or other vehicle for
an uninterrupted period in excess of three (3) hours between the hours of
9:00 a.m. and 6:00 p.m. on the roadways designated ;in KCC 9.38.060 as
two (2) hour parking zones. There shall be no enforcement of limited
duration parking restrictions, in those zones designated for two (2) hour
parking, on Saturdays during the period from the day after Thanksgiving
until January 2nd of!the following year.
B. A violation of--this section shall be an infraction and punishable by a
monetary penalty of fifty dollars ($50). Vehicles parked in violation of this
section are subject to impoundment as provided by law.
SECTION 2;' Corrections by City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering;
or references to other local, state or federal laws, codes, rules, or
regulations.
6 Amend KCC 9.38
Downtown Parking
Ordinance
105
SECTION 3, — SeverabilitY. If any one or more section, subsection,
or sentence of this ordinance is held to be unconstitutional or invalid, that
decision shall not affect the validity of the remaining portion of this
ordinance and that remaining portion shall maintain its full force and
effect.
SECTION 4, — Effective Date. This ordinance shall take effect and
be in force thirty (30) days from and after its passage and publication, as
provided by law.
SUZETTt COOKE," MAYOR
ATTEST:
RONALD F. MOORE, CITY CLERK
APPROVED AS TO FORM:
ARTHUR"FITZPATRICK, ACTING CITY ATTORNEY
PASSED: day of 2014.
APPROVED: day of 2014.
PUBLISHED: day of 2014.
I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
7 Amend KCC 9.38
Downtown Parking
Ordinance
106
(SEAL)
RONALD F. MOORE, CITY CLERK
F AOvilAO,d nznre\Fzh n9 H¢9 09 060.do,
8 Amend KCC 9.38
Downtown Parking
Ordinance
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