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5707901 Easement, Aquatic LandsY f f-. r S 04 e ,,;OoValleye 08/18/2008 10 18 51 AM 5707901 Recording Fee $68 00 Page 1 of 27 Easement GOVERNMENT, CITY OF SPOKANE VALLEY Spokane County Washington 11111111111111111111111 IN 11111111111111111 IN 111111111111111111111111 IN 11707 E Sprague Ave • Suite 106 • Spokane Valley WA 99206 509 921 1000 • Fax 509 921 1008 • cityhall@spokanevalley org July 10, 2008 Return Address City of Spokane Valley 11707 E Sprague Avenue, Suite 106 Spokane Valley, WA 99206 PLEASE TYPE OR PRINT NEATLY AND CLEARLY ALL INFORMATION Document Title(s) AQUATIC LANDS EASEMENT Reference Numbers of Related Documents • AQUATIC LANDS EASEMENT NO 51-081557,19 Pages • DNR LEASE SITE, 1 Page • EXHIBIT B-PLAN OF OPERATIONS AND MAINTENANCE, 6 Pages Grantor(s) (Last Name, First and Middle Initial) • STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES Grantee(s) (Last Name, First and Middle Initial) • CITY OF SPOKANE VALLEY Legal Description (i a Section/Township/Range/1/4 Section - Abbreviated form is acceptable) • Unplatted first class shorelands and bedlands of Spokane River being a portion of the NW QTR of the SW QTR of Section 8, and portions of the East half of Section 7, according to US Government subdivision procedures, all in Township 25 N/Range 45 EM M /Spokane County, WA lying between ordinary high water lines of the Spokane River within the following description o Commencing at the East QTR comer of said Section 7, thence S03'1 8'03"E, along the East line of said Section 7,5 50 feet to the POB, thence the following seven courses 1) S71'28'44"E, 32 32 feet to the east right of way line of Barker Road, 2) S03'1 8'03"E, along said right of way line, 388 83 feet, 3) N70'22'47"W, 32 57 feet to a point on said East Section line, 4) N70'22'47°W, 28 72 feet, 5) N83'08'35"W, 28 34 feet to the west right of way line of said Road, 6) N04'56'32"W, along said right of way line, 398 47 feet, 7) S71'28'44"E, 70 83 feet to the POB Containing 0 80 Acres Assessor's Tax Parcel ID Number 55082 1603 (index only) The county Auditor will rely on the information provided on this form The Staff will not read the document to verify the accuracy or completeness of the indexing information provide herein Sign below only if your document is Non-Standard. I am requesting an emergency non-standard recording for an additional fee as provided in RCW 3618 010 1 understand that the recording processing requirements may cover up or otherwise obscure some parts of the text of the original document Fee for non-standard processing is $50 Signature of Requesting Party R E xL,se Tax Exempt D e L~ 206 Sp„ Ou Treas By F f /x STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES DOUG SUTHERLAND, Commissioner of Public Lands AQUATIC LANDS EASEMENT AQUATIC LANDS EASEMENT NO 51-081557 THIS EASEMENT is made by and between the STATE OF WASHINGTON, acting through the Department of Natural Resources ("State"), and CITY OF SPOKANE VALLEY, a government agency/entity ("Grantee") SECTION 1 GRANT AND LOCATION OF EASEMENT 1.1 Easement Property. State grants and conveys to Grantee a nonexclusive easement for a term of years (the "Easement") over, upon, and under the property described in Exhibit A (the "Easement Property") 1.2 Construction and Access. To the extent it can do so without violating any other contract or lease, State hereby also grants a nonexclusive easement on State-owned land and water on either side of the Easement Property, if any exists, for ingress and egress to gain access to the Easement Property and to construct improvements on and maintain and repair the Easement Property 1.3 Right of Third Parties. This Easement is subject to all valid interests of third parties noted in the records of Spokane County, or on file in the office of the Commissioner of Public Lands, Olympia, Washington, rights of the public under the Public Trust Doctrine or the federal navigation servitude, and treaty rights of Indian Tribes Not included in this Easement are any right to harvest, collect or damage any natural resource, including aquatic life or living plants, any water rights, or any mineral rights, including any right to excavate or withdraw sand, gravel or other valuable materials State makes no representations regarding access to the Easement Property Form Date May, 2005 R F rise Tax Eztmpt 1 Easement No 51-081557 Da 14 200 Sp Cou "I=. I T 64 N 1.4 Surveys, Maps, and Plans. In executing this Easement, State is relying upon the surveys, plats, diagrams, and/or legal descriptions provided by Grantee Grantee is not relying upon and State is not making any representations about any surveys, plats, diagrams, and/or legal descriptions provided by State SECTION 2 PURPOSE OF EASEMENT This Easement is granted for the Barker Road Bridge and is limited to installing, operating, maintaining, repairing and replacing The present bridge was constructed in the 1950's and will be demolished in 2008 and replaced with a new bridge that meets the Washington State Department of Transportation 50 year plan design standards for current bridge construction ("Permitted Use") SECTION 3 TERM 3.1 Term. The term of this Easement is fifty-five (55) years, beginning on the 1 st day of October, 2007 (the "Commencement Date"), and ending on the 30th day of September, 2062 (the "Termination Date"), unless terminated sooner under the terms of this Easement SECTION 4 USE FEE 4.1 Fee. Pursuant to RCW 79 110 230 and RCW 79 110 240, so long as the Permitted Use is consistent with the purposes of RCW 79 105 010 through RCW 79 105 210 and does not obstruct navigation or other public uses of Spokane River and its surrounding waters, this use is Granted to government owned public utilities for the cost of administrative fees associated with the processing of the application and document, plus the cost of admuustrative fees associated with the processing of any future application made with respect to this easement for the term specified in Section 3 1 (Term Defined) The use fee specified pursuant to RCW 79 110 240 shall be paid upon execution of this easement Any administrative fees shall be paid within thirty (30) days after a bill is submitted to Grantee Notlung in this subsection shall preclude State's ability to charge Grantee a fee for any impacts to natural resources on or adjacent to the Easement Property that are directly or indirectly associated with the Permitted Use or Grantee's use or occupation of the Easement Property 4.2 Late Charges and Interest. If any use fee is not received by State within ten (10) days of the date due, Grantee shall pay to State a late charge equal to four percent (4%) of the amount of the payment or Fifty Dollars ($50), whichever is greater, to defray the overhead expenses of State as a result of the delay If any use fee is not paid within thirty (30) days of the date due, then Grantee shall, in addition to paying the late charges established above, pay interest on the amount outstanding at the rate of one percent (1 per month until paid 4.3 Non-Waiver. State's acceptance of a use fee shall not be construed to be a waiver of any preceding or existing breach other than the failure to pay the particular use fee that was accepted Form Date May, 2005 2 Easement No 51-081557 l . 7 SECTION 5 NOTIFICATION OF ACTIVITIES Except in the case of an emergency, Grantee shall provide State with written notice of any construction or other sigruficant activity on the Easement Property at least thirty (30) days in advance In cases of emergency, Grantee shall notify State of such activity no later than five (5) days after such activity commences "Significant activity" means any activity that might affect State's or public's use or enjoyment of Easement Property and any surrounding state-owned aquatic lands or the waters SECTION 6 MAINTENANCE AND REPAIR OF EASEMENT AND IMPROVEMENTS 6.1 Grantee's Activities. Grantee shall promptly repair, at its sole cost, all damages to any improvements on the Easement Property, to the Easement Property, or to any natural resources which are caused by Grantee's activities All work performed by Grantee shall be completed in a careful and worker like manner to State's satisfaction, free of any claims or liens Upon completion of any work performed by Grantee, Grantee shall remove all debris and restore the Easement Property, as nearly as possible, to the condition it was in prior to commencement of the work 6.2 Restrictions on Use. Grantee shall not cause or permit any damage to natural resources on the Easement Property Grantee shall also not cause or permit any filling activity to occur on the Easement Property This prohibition includes any deposit of rock, earth, ballast, refuse, garbage, waste matter (including chemical, biological or toxic wastes), hydrocarbons, any other pollutants, or other matter in or on the Easement Property, except as approved in writing by State Grantee shall neither commit nor allow waste to be committed to or on the Easement Property If Grantee fails to comply with all or any of the restrictions in use set out in this Subsection 6 2, State may take any steps reasonably necessary to remedy such failure Upon demand by State, Grantee shall pay all costs of such remedial action, including, but not limited to, the costs of removing and disposing of any material deposited improperly on the Easement Property This section shall not in any way limit Grantee's liability under Section 9, below The prohibitions in this section against damage to natural resources, filling, deposition of any unapproved materials, and waste, shall also apply to protect state-owned aquatic lands adjacent to the Property from any of Grantee's activities related to Grantee's occupation of the Property All obligations imposed by this section on Grantee to cure any violation of the prohibited activities in this section shall also extend to state-owned aquatic lands adjacent to the Property when the violation arose from Grantee's activities related to Grantee's occupation of the Property SECTION 7 INTERFERENCE WITH OTHER USES OF EASEMENT PROPERTY Grantee shall exercise its rights under this Easement so as to minimize and avoid, to the fullest extent reasonably possible, interference with State's use of the Easement Property or with the public's right to use Spokane River for purposes of recreation, navigation, or commerce including rights under the Public Trust Doctrine Any improvements constructed by Grantee on the Easement Property shall be placed and constructed so as to allow, to the fullest extent Form Date May, 2005 3 Easement No 51-081557 It r 0 1 reasonably possible, unobstructed movement through the water column in the Easement Property SECTION 8 COMPLIANCE WITH LAWS Grantee shall, at its own expense, conform to all applicable laws, regulations, permits, orders, or requirements of any public authority affecting the Easement Property and the Permitted Use Upon request, Grantee shall supply State with copies of permits or orders SECTION 9 ENVIRONMENTAL LIABILITY/RISK ALLOCATION 9.1 Definition. "Hazardous Substance" means any substance which now or in the future becomes regulated or defined under any federal, state, or local statute, ordinance, rule, regulation, or other law relating to human health, environmental protection, contamination or cleanup, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U S C 9601 et seq , and Washington's Model Toxics Control Act ("MTCA"), RCW 70 105D 010 et seq 9.2 Use of Hazardous Substances. Grantee covenants and agrees that Hazardous Substances will not be used, stored, generated, processed, transported, handled, released, or disposed of in, on, under, or above the Easement Property, except in accordance with all applicable laws 9.3 Current Conditions, Duty of Utmost Care, and Duty to Investigate. (a) With regard to any Hazardous Substances that may exist in, on, under, or above the Easement Property, State disclaims any and all responsibility to conduct investigations, to review any State records, documents or files, or to obtain or supply any information to Grantee (b) Grantee shall exercise the utmost care with respect to both Hazardous Substances in, on, under, or above the Easement Property as of the Commencement Date, and any Hazardous Substances that come to be located in, on, under, or above the Easement Property during the Term of this agreement, along with the foreseeable acts or omissions of third parties affecting those Hazardous Substances, and the foreseeable consequences of those acts or omissions The obligation to exercise utmost care under this Subsection 9 3 includes, but is not limited to, the following requirements (1) Grantee shall not undertake activities that will cause, contribute to, or exacerbate contamination of the Easement Property, (2) Grantee shall not undertake activities that damage or interfere with the operation of remedial or restoration activities on the Easement Property or undertake activities that result in human or environmental exposure to contaminated sediments on the Easement Property except as required for Form Date May, 2005 4 Easement No 51-081557 the Permitted Use provided that any such exposure required by the Permitted Use is in compliance with all applicable health, safety and environmental laws and regulations, (3) Grantee shall not undertake any activities that result in the mechanical or chemical disturbance of on-site habitat mitigation, (4) If requested, Grantee shall allow reasonable access to the Easement Property by employees and authorized agents of the Environmental Protection Agency, the Washington State Department of Ecology, or other similar environmental agencies, and (5) If requested, Grantee shall allow reasonable access to potentially liable or responsible parties who are the subject of an order or consent decree which requires access to the Easement Property Grantee's obligation to provide access to potentially liable or responsible parties may be conditioned upon the negotiation of an access agreement with such parties, provided that such agreement shall not be unreasonably withheld (c) It shall be Grantee's obligation to gather sufficient information concerning the Easement Property and the existence, scope, and location of any Hazardous Substances on the Easement Property, or adjoining the Easement Property, that allows Grantee to effectively meet its obligations under this Easement 9.4 Notification and Reporting. (a) Grantee shall immediately notify State if Grantee becomes aware of any of the following (1) A release or threatened release of Hazardous Substances in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, (2) Any problem or liability related to, or derived from, the presence of any Hazardous Substance in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, (3) Any actual or alleged violation of any federal, state, or local statute, ordinance, rule, regulation, or other law pertaining to Hazardous Substances with respect to the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, (4) Any lien or action with respect to any of the foregoing, or, Form Date May, 2005 5 Easement No 51-081557 (5) Any notification from the US Environmental Protection Agency (EPA) or the Washington State Department of Ecology (DOE) that remediation or removal of Hazardous Substances is or may be required at the Easement Property (b) Grantee shall, at State's request, provide State with copies of any and all reports, studies or audits which pertain to environmental issues or concerns and to the Easement Property, and which were prepared for Grantee and submitted to any federal, state or local authorities pursuant to any federal, state or local permit, license or law These permits include, but are not limited to, any National Pollution Discharge Elimination System Permit, any Army Corps of Engineers permit, any state Hydraulics Project Approval, any state Water Quality Certification, or any Local Shoreline permit 9.5 Indemnification. (a) Grantee shall fully indemnify, defend, and hold State harmless from and against any and all claims, demands, damages, natural resource damages, response costs, remedial costs, cleanup costs, losses, liens, liabilities, penalties, fines, lawsuits, other proceedings, costs, and expenses (including attorneys' fees and disbursements), that arise out of, or are in any way related to (1) The use, storage, generation, processing, transportation, handling, or disposal of any Hazardous Substance by Grantee, its subgrantees, contractors, agents, employees, guests, invitees, or affiliates in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, during the Term of this Easement or during any time when Grantee occupies or occupied the Easement Property or any such other property, (2) The release or threatened release of any Hazardous Substance, or the exacerbation of any Hazardous Substance contamination, in, on, under, or above the Easement Property, any adjoining property, or any other property subject to use by Grantee in conjunction with its use of the Easement Property, which release, threatened release, or exacerbation occurs or occurred during the Term of this Easement or during any time when Grantee occupies or occupied the Easement Property or any such other property and as a result of (i) Any act or omission of Grantee, its subgrantees, contractors, agents, employees, guests, invitees, or affiliates, or, (ii) Any foreseeable act or omission of a third party unless Grantee exercised the utmost care with respect to the foreseeable acts or Form Date May, 2005 6 Easement No 51-081557 omissions of the third party and the foreseeable consequences of those acts or omissions (b) In addition to the indemnifications provided in Subsection 9 5(a), Grantee shall fully indemnify State for any and all damages, liabilities, costs or expenses (including attorneys' fees and disbursements) that anse out of or are in any way related to Grantee's breach of the obligations of Subsection 9 3(b) This obligation is not intended to duplicate the indemnity provided in Subsection 9 5(a) and applies only to damages, liabilities, costs or expenses that are associated with a breach of Subsection 9 3(b) and which are not characterized as a release, threatened release, or exacerbation of Hazardous Substances 9.6 Cleanup. If a release of Hazardous Substances occurs in, on, under, or above the Easement Property or other State-owned property ansing out of any action, inaction, or event described or referred to in Subsection 9 5, above, Grantee shall, at its sole expense, promptly take all actions necessary or advisable to clean up the Hazardous Substances Cleanup actions shall include, without limitation, removal, containment and remedial actions and shall be performed in accordance with all applicable laws, rules, ordinances, and permits Grantee's obligation to undertake a cleanup of the Easement Property under this Subsection 9 6 shall be limited to those instances where the Hazardous Substances exist in amounts that exceed the threshold limits of any applicable regulatory cleanup standards Grantee shall also be solely responsible for all cleanup, administrative, and enforcement costs of governmental agencies, including natural resource damage claims, ansing out of any action, inaction, or event described or referred to in Subsection 9 5, above Grantee may undertake a cleanup pursuant to the Washington State Department of Ecology's Voluntary Cleanup Program, provided that (1) Any cleanup plans shall be submitted to State (DNR) for review and comment at least thirty (30) days prior to implementation (except in emergency situations), and (2) Grantee must not be in breach of this Easement Nothing in the operation of this provision shall be construed as an agreement by State that the voluntary cleanup complies with any laws or with the provisions of this Easement 9.7 Sampling by State, Reimbursement, and Split Samples. (a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of the Easement Property at any time to determine the existence, scope, or effects of Hazardous Substances on the Easement Property, any adjoining property, any other property subject to use by Grantee in conjunction with its use of the Easement Property, or any natural resources If such Tests, along with any other information, demonstrates the existence, release or threatened release of Hazardous Substances ansing out of any action, inaction, or event described or referred to in Subsection 9 5, above, Grantee shall promptly reimburse State for all costs associated with such Tests (b) State's ability to seek reimbursement for any Tests under this Subsection shall be conditioned upon State providing Grantee written notice of its intent to conduct any Tests at least thirty (30) calendar days prior to undertaking such Tests, unless Form Date May, 2005 7 Easement No 51-081557 such Tests are performed in response to an emergency situation in which case State shall only be required to give such notice as is reasonably practical (c) Grantee shall be entitled to obtain split samples of any Test samples obtained by State, but only if Grantee provides State with written notice requesting such samples within twenty (20) calendar days of the date Grantee is deemed to have received notice of State's intent to conduct any non-emergency Tests The additional cost, if any, of split samples shall be borne solely by Grantee Any additional costs State incurs by virtue of Grantee's split sampling shall be reimbursed to State within thirty (30) calendar days after a bill with documentation for such costs is sent to Grantee (d) Within thirty (30) calendar days of a written request (unless otherwise required pursuant to Subsection 9 4(b), above), either party to this Easement shall provide the other party with validated final data, quality assurance/quality control information, and chain of custody information, associated with any Tests of the Easement Property performed by, or on behalf of, State or Grantee There is no obligation to provide any analytical summaries or expert opinion work product 9.8 Reservation of Rights. The parties have agreed to allocate certain environmental risks, liabilities, and responsibilities by the terms of Section 9 With respect to those environmental liabilities covered by the indemnification provisions of Subsection 9 5, that subsection shall exclusively govern the allocation of those liabilities With respect to any environmental risks, liabilities, or responsibilities not covered by Subsection 9 5, the parties expressly reserve and do not waive or relinquish any rights, claims, immunities, causes of action or defenses relating to the presence, release, or threatened release of Hazardous Substances in, on, under, or above the Easement Property, any adjoining property or any other property subject to use by Grantee in conjunction with its use of the Easement Property that either party may have against the other under federal, state or local laws, including but not limited to, CERCLA, MTCA, and the common law No right, claim, immunity, or defense either party may have against third parties is affected by this Easement and the parties expressly reserve all such rights, claims, immunities, and defenses The allocations of risks, liabilities, and responsibilities set forth above do not release either party from, or affect either party's liability for, claims or actions by federal, state, or local regulatory agencies concerning Hazardous Substances SECTION 10 PRESERVATION OF SURVEY CORNERS Grantee shall exercise the utmost care to ensure that all legal land subdivision survey corners and witness objects are preserved If any survey corners or witness objects are destroyed or disturbed, Grantee shall reestablish them by a registered professional engineer or licensed land surveyor in accordance with US General Land Office standards, at Grantee's own expense Corners and/or witness objects that must necessarily be disturbed or destroyed in the process of construction of improvements must be adequately referenced and/or replaced in accordance with all applicable laws and regulations in force at the time, including, but not limited to, Chapter 58 24 RCW The references must be approved by State prior to removal of the survey corners and/or witness objects Form Date May, 2005 8 Easement No 51-081557 SECTION 11 TERMINATION OF EASEMENT This Easement shall terminate if Grantee receives notice from State that Grantee is in breach of this Easement and Grantee fails to cure that breach witlun sixty (60) days of State's notice If the breach is not reasonably capable of being cured within the sixty (60) days, Grantee shall commence the cure within the sixty (60) day period and continue the cure with diligence until completion In addition to terminating this Easement, State shall have any other remedy available to it State's failure to exercise its right to terminate at any time shall not waive State's right to terminate for any future breach If Grantee ceases to use the Easement Property for the purposes set forth in this Easement for a period of five (5) successive years, tlus Easement shall terminate without further action by State and Grantee's rights shall revert to State This Easement may also terminate if Grantee provides State with sixty (60) days written notice of its intent to terminate the Easement, in a form satisfactory to State SECTION 12 OWNERSHIP AND REMOVAL OF IMPROVEMENTS AND EQUIPMENT 12.1 Existing Improvements. On the Commencement Date, the following improvements are located on the Easement Property The old bridge is a 478' 6-span, cast-in-place concrete haunched T-beam bridge and will be replaced with a 3-span superstructure, abutments, and a system of pre-stressed concrete girders supporting a cast-in-place concrete deck slab witlun the same road right-of-way The replacement bridge will be approximately 71 feet wide and 504 feet long The old bridge is an Existing Improvement 12.2 Grantee-Owned Improvements. So long as this Easement remains in effect, Grantee shall retain ownership of all existing improvements, and all improvements and trade fixtures it may place on the Easement Property (collectively "Grantee-Owned Improvements") Grantee- Owned Improvements shall not include any construction, reconstruction, alteration, or addition to any Unauthorized Improvements as defined in Subsection 12 7 below 12.3 Construction. No Grantee-Owned Improvements shall be placed on the Easement Property without State's prior written consent State's consent has been granted for the initial construction of any improvements identified in the Plan of Operations (Exhibit B) Prior to any construction, alteration, replacement, removal or mayor repair of any improvements (whether State-Owned or Grantee-Owned), Grantee shall submit to State plans and specifications which describe the proposed activity Except in the case of emergency repairs, such work shall not commence until State has approved those plans and specifications State shall have sixty (60) days in which to review the proposed plans and specifications The plans and specifications shall be deemed approved unless State notifies Grantee otherwise within the sixty (60) days In the case of emergency repairs, Grantee shall notify State within five (5) business days of the start of such repairs and shall provide State with the proposed plans and specifications for the repairs if requested Form Date May, 2005 9 Easement No 5 1-08 1 557 12.4 Performance Bond. Except in the case of emergency repairs, no construction work of any kind shall commence until Grantee has obtained a performance and payment bond in an amount equal to 100% of the estimated cost of construction State may require Grantee to obtain a performance and payment bond for emergency repair work that has been initiated The performance and payment bond shall be maintained until the costs of construction, including all laborers and material persons, have been paid in full 12.5 As Built Survey. Upon completion of construction, Grantee shall promptly provide State with as-built plans and specifications In those cases where new improvements are approved, or where the location of any improvements is changed, Grantee may be required to provide an as- built survey of the Easement Property 12.6 Removal. Upon the termination of this Easement, Grantee shall remove or retire any improvements located upon the Easement Property in accordance with the provisions of this Subsection and shall restore the Easement Property to a condition substantially similar to its natural state prior to the construction and operation of the improvements (a) Notification Prior to, or within one hundred eighty (180) days after, the Termination Date, Grantor shall notify Grantee in writing whether it intends to require the removal of the improvements or whether the improvements shall be abandoned in place In the event Grantor fails to provide any notice of its intent, Grantee shall remove the improvements in accordance with the provisions of this Subsection (b) Removal In those cases where the improvements shall be removed, Grantee agrees to provide a written plan, to be approved in writing by Grantor, for the removal of the improvements and for the restoration of the Easement Property The plan shall identify a timeline for removal and restoration, shall identify any impacts to the Easement Property, associated natural resources, or surrounding lands and resources, and shall identify any measures needed to restore the Easement Property In those cases where Grantor determines that the proposed removal would disrupt existing state-owned lands or natural resources and would be detrimental to the long term use and management of the state's lands and resources, Grantor may notify Grantee that the improvements must be abandoned in place in accordance with the provisions of this Subsection (c) Abandonment In those cases where the improvements shall be abandoned in place, Grantee agrees to provide a written plan, to be approved in writing by Grantor, for abandonment and restoration The plan shall identify a timeline for abandonment and restoration, shall identify the location of the improvements, shall propose a suitable means for plugging any abandoned pipelines, shall identify the means for notifying the public of the existence of any abandoned improvements, and shall identify any measures needed to restore the Easement Property In those cases where Grantor determines that the proposed abandonment would be detrimental to the long-term use and management of the Form Date May, 2005 10 Easement No 51-081557 state's lands and resources, Grantor may notify Grantee that the improvements must be removed in accordance with the provisions of this Subsection (d) Plans for Removal or Abandonment Grantee shall provide the plan for removal or abandonment within ninety (90) days after the actual or deemed notification of Grantor's removal or abandonment requirement is provided Grantor shall then have ninety (90) days in which to approve or reject the plan Grantor's failure to respond within the time allowed shall be deemed an approval of the plan (e) Costs to Remove or Abandon, and to Restore Grantee agrees to undertake the removal and disposal of the improvements, or the abandonment of the improvements, and the restoration of the Easement Property, at its sole cost and expense Grantee agrees to perform any removal and restoration activities in a prompt and expeditious manner upon approval of any plans If Grantee fails to timely meet its obligations under this Subsection, Grantor may perform Grantee's obligations and seek reimbursement (fj Ownership of Abandoned Improvements Any improvements that are allowed to be abandoned in place shall become the property of Grantor without any payment by Grantor To the extent that Grantee-Owned Improvements include items of personal property which may be removed from the Easement Property without harming the Easement Property, or diminishing the value of the Easement Property or the improvements, Grantor asserts no ownership interest in these improvements unless the parties agree otherwise in writing upon termination of this Easement Any Grantee-Owned Improvements specifically identified as personal property in Exhibit A or B shall be treated in accordance with this provision 12.7 Unauthorized Improvements. Improvements made on the Easement Property without State's prior written consent or which are not in conformance with the plans submitted to and approved by State ("Unauthorized Improvements") shall immediately become the property of State, unless State elects otherwise Regardless of ownership of Unauthorized Improvements, State may, at its option, require Grantee to sever, remove, and dispose of them, charge Grantee rent for the use of them, or both If Grantee fails to remove an Unauthorized Improvement upon request, State may remove it and charge Grantee for the cost of removal and disposal SECTION 13 INDEMNITY Grantee shall indemnify, defend, and hold harmless State, its employees, officers, and agents from any and all liability, damages (including damages to land, aquatic life, and other natural resources), expenses, causes of action, suits, claims, costs, fees (including attorneys fees), penalties, or judgments, of any nature whatsoever, ansing out of the use, occupation, or control of the Easement Property by Grantee, its contractors, subcontractors, invitees, agents, employees, licensees, or permittees, except as may anse solely out of the willful or negligent act of State or State's elected officials, employees, or agents To the extent that RCW 4 24 115 applies, Grantee shall not be required to indemnify, defend, and hold State harmless from State's sole or Form Date May, 2005 11 Easement No 51-081557 concurrent negligence Grantee's liability and indemnification to State for hazardous substances under this Easement, and any obligation to indemnify, defend, and hold the State harmless for hazardous substances, shall be governed exclusively by Section 9 SECTION 14 FINANCIAL SECURITY AND INSURANCE 14.1 Financial Security. Except as provided in Section 12 4 above, no financial security will be required for this easement 14.2 Insurance. At its own expense, Grantee shall procure and maintain during the Term of this Easement, the insurance coverages and limits described in Subsections 14 2 (a) and (b) below This insurance shall be issued by an insurance company or companies admitted and licensed by the Insurance Commissioner to do business in the State of Washington Insurers must have a rating of B+ or better by "Best's Insurance Reports," or a comparable rating by another rating company acceptable to State If non-admitted or non-rated carvers are used, the policies must comply with Chapter 48 15 RCW (a) Types of Required Insurance (1) Commercial General Liability Insurance Grantee shall procure and maintain Commercial General Liability insurance covering claims for bodily injury, personal injury, or property damage ansing on the Easement Property and/or ansing out of Grantee's operations If necessary, commercial umbrella insurance covering claims for these risks shall be procured and maintained Insurance must include liability coverage with limits not less than those specified below Description Each Occurrence $2,000,000 General Aggregate Limit $5,0005000 State may impose changes in the limits of liability (i) As a condition of approval of assignment or sublease of this Easement, (u) Upon any breach of Section 9, above, (111) Upon a material change in the condition of the Easement Property or any improvements, or, (iv) Upon a change in the Permitted Use New or modified insurance coverage shall be in place within thirty (30) days after changes in the limits of liability are required by State (2) Property Insurance Grantee shall procure and maintain property insurance covering all real property located on or constituting a part of the Form Date May, 2005 12 Easement No 51-081557 Easement Property in an amount equal to the replacement value of all improvements on the Easement Property Such insurance may have commercially reasonable deductibles (3) Worker's Compensation/Employer's Liability Insurance Grantee shall procure and maintain (i) State of Washington Worker's Compensation coverage, as applicable, with respect to any work by Grantee's employees on or about the Easement Property and on any improvements, (ii) Employers Liability or "Stop Gap" insurance coverage, as applicable, with limits not less than those specified below Insurance must include bodily injury coverage with limits not less than those specified below Each Employee Policy Limit By Accident By Disease By Disease $1,000,000 $1,000,000 $1,000,000 (iii) Longshore and Harbor Worker's Act and Jones Act coverage, as applicable, with respect to any work by Grantee's employees on or about the Easement Property and on any improvements (4) Builder's Risk Insurance As applicable, Grantee shall procure and maintain builder's risk insurance in an amount reasonably satisfactory to State during construction, replacement, or material alteration of the Easement Property or improvements on the Easement Property Coverage shall be in place until such work is completed and evidence of completion is provided to State (5) Business Auto Policy Insurance As applicable, Grantee shall procure and maintain a business auto policy The insurance must include liability coverage with limits not less than those specified below Description Each Accident Bodily Injury and Property Damage $1,000,000 (b) Terms of Insurance The policies required under Subsection 14 2 shall name the State of Washington, Department of Natural Resources as an additional insured (except for State of Washington Worker's Compensation coverage, and Federal Jones Act and Longshore and Harbor Worker's Act coverages) Furthermore, all policies of insurance described in Subsection 14 2 shall meet the following requirements Form Date May, 2005 13 Easement No 51-081557 (1) Policies shall be written as primary policies not contributing with and not in excess of coverage that State may carry, (2) Policies shall expressly provide that such insurance may not be canceled or nonrenewed with respect to State except upon forty-five (45) days prior written notice from the insurance company to State, (3) To the extent of State's insurable interest, property coverage shall expressly provide that all proceeds shall be paid jointly to State and Grantee, (4) All liability policies must provide coverage on an occurrence basis, and (5) Liability policies shall not include exclusions for cross liability (c) Proof of Insurance Grantee shall furnish evidence of insurance in the form of a Certificate of Insurance satisfactory to the State accompanied by a check list of coverages provided by State, executed by a duly authorized representative of each insurer showing compliance with the insurance requirements described in Section 14, and, if requested, copies of policies to State The Certificate of Insurance shall reference the State of Waslungton, Department of Natural Resources and the Easement number Receipt of such certificates or policies by State does not constitute approval by State of the terms of such policies Grantee acknowledges that the coverage requirements set forth herein are the minimum limits of insurance the Grantee must purchase to enter into this agreement These limits may not be sufficient to cover all liability losses and related claim settlement expenses Purchase of these limits of coverage does not relieve the Grantee from liability for losses and settlement expenses greater than these amounts 14.3 State's Acquisition of Insurance. If Grantee fails to procure and maintain the insurance described above within fifteen (15) days after Grantee receives a notice to comply from State, State shall have the right to procure and maintain comparable substitute insurance and to pay the premiums Grantee shall pay to State upon demand the full amount paid by State, together with interest at the rate provided in Subsection 4 2 from the date of State's notice of the expenditure until Grantee's repayment SECTION 15 TAXES AND ASSESSMENTS Grantee shall promptly pay all taxes, assessments and other governmental charges of any kind whatsoever levied as a result of this Easement or relating to Grantee's improvements constructed pursuant to this Easement Form Date May, 2005 14 Easement No 51-081557 SECTION 16 ADVANCE BY STATE If State advances or pays any costs or expenses for or on behalf of Grantee, including but not limited to taxes, assessments, insurance prerrnums, costs of removal and disposal of unauthorized materials, costs of removal and disposal of improvements, or other amounts not paid when due, Grantee shall reimburse State the amount paid and shall pay interest on such amount at the rate of one percent (1 per month from the date State notifies Grantee of the advance or payment SECTION 17 NOTICE Any notices required or permitted under this Easement may be personally delivered, delivered by facsirrule machine, or mailed by certified mail, return receipt requested, to the following addresses or to such other places as the parties may direct in writing from time to time State DEPARTMENT OF NATURAL RESOURCES Aquatic Region/Rivers District PO Box 280 Castle Rock, WA 98611 Grantee CITY OF SPOKANE VALLEY Public Works Department 11707 E Sprague Avenue, Suite 106 Spokane Valley, WA 99206 A notice shall be deemed given and delivered upon personal delivery, upon receipt of a confirmation report if delivered by facsimile machine, or three (3) days after being mailed as set forth above, whichever is applicable SECTION 18 ASSIGNMENT Grantee shall not assign its rights in the Easement or grant any rights or franchises to third parties, without State's prior written consent State reserves the right to change the terms and conditions of this Easement upon its consent to any assignment SECTION 19 SUCCESSORS AND ASSIGNS This Easement shall be binding upon and inure to the benefit of the parties, their successors and assigns and shall be a covenant running with the land SECTION 20 TIME IS OF THE ESSENCE TIME IS OF THE ESSENCE as to each and every provision of this Easement Form Date May, 2005 15 Easement No 51-081557 SECTION 21 RECORDATION Grantee shall record this Easement or a memorandum documenting the existence of this Easement in the county in which the Easement Property is located, at Grantee's sole expense The memorandum shall, at a minimum, contain the Easement Property description, the names of the parties to the Easement, the State's easement number, and the duration of the Easement Grantee shall provide State with recording information, including the date of recordation and file number Grantee shall have thirty (30) days from the date of delivery of the final executed agreement to comply with the requirements of this section If Grantee fails to record this Easement, State may record it and Grantee shall pay the costs of recording, including interest, upon State's demand SECTION 22 APPLICABLE LAW AND VENUE This Easement shall be interpreted and construed in accordance with and shall be subject to the laws of the State of Washington Any reference to a statute shall mean that statute as presently enacted or hereafter amended or superseded Venue for any action ansing out of or in connection with this Easement shall be in the Superior Court for Thurston County, Washington SECTION 23 MODIFICATION Any modification of this Easement must be in writing and signed by the parties State shall not be bound by any oral representations or statements SECTION 24 SURVIVAL Any obligations of Grantee which are not fully performed upon termination of this Easement shall not cease, but shall continue as obligations until fully performed Form Date May, 2005 16 Easement No 51-081557 SECTION 25 INVALIDITY If any provision of this Easement shall prove to be invalid, void, or illegal, it shall in no way affect, impair, or invalidate any other provision of this Easement THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last signature below Dated Dated ~ /tV Approved as to Form in May, 2005 by Joe Panesko Assistant Attorney General State of Washington CITY POKANE VALLEY By DAVID MERCIER Title City Manager Address 11707 E Sprague Avenue, Suite 106 Spokane Valley, WA 99206 STATE OF JW~SHINGTON/ DEPARTM OF NA'L[JB~AL RESOURCES By 0 G S HERLANI~' - ' Title omm stoner of Public Lands Address 1111 Washington Street Olympia, WA 98504 O ~e Y° o ,3 0 +o ~s \Y' t Form Date May, 2005 17 Easement No 51-081557 ti . n REPRESENTATIVE ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss County of SPole". ) I certify that I know or have satisfactory evidence that DAVID MERCIER is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as the City Manager of City of Spokane Valley to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument Dated 5 62) (Seal or stamp) /i ; le V 01 i .20 ///I OF WA45\-\N 11\\\\\~ i (Signature) not Name) Notary Public in and for the State of W T ngton, residin t Kul. My appointment expires Form Date May, 2005 18 Easement No 51-081557 STATE ACKNOWLEDGMENT STATE OF WASHINGTON ) ) ss County of Thurston ) I certify that I know or have satisfactory evidence that DOUG SUTHERLAND is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Commissioner of Public Lands, and ex officio administrator of the Department of Natural Resources of the State of Washington to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument Dated (fl- (Seal d or stamp) a"'~ '~Lu (Signature) 6 URt-~ Q L (Print Name) Notary Public in and for the State of Was ngton, residing at %.1 U My appointment expires 5-19-09 Form Date May, 2005 19 Easement No 51-081557