HomeMy WebLinkAbout045-25 - State of WA Dept of Natural Resources - Contract Waterway PermitDocusign Envelope ID: 98161569-OE15-4B26-8476-EF854BE7B532
DAVE UPTHEGROVE
COMMISSIONER OF PUBLIC LANDS
WATERWAY PERMIT
Permit No. 20-C12074
THIS AGREEMENT is made by and between the STATE OF WASHINGTON, acting in its
proprietary capacity through the Department of Natural Resources ("State"), and CITY OF
PORT ORCHARD, a government entity ("Licensee").
BACKGROUND
Licensee desires to use a portion of the aquatic lands commonly known as Dekalb Waterway,
which is a waterway located in Kitsap County, Washington, from State, and State desires to
authorize the Licensee's use of the Property pursuant to the terms and conditions of this Permit.
State has authority to enter into this Permit under Chapter 43.12, Chapter 43.30 and Title 79
RCW.
The Permitted Use was previously authorized under Permit No. 20-B 12074 and will continue
with this Permit. Permit No. 20-B 12074 terminated on September 30th, 2024. Licensee warrants
that its use of the Property between September 30th, 2024, and the Commencement Date
complied with the terms of this Permit. Licensee's use of the Property, and liabilities and
obligations relating to its use of the Property between September 30th, 2024, and the
Commencement Date shall be on the same terms and conditions of this Permit.
THEREFORE, the Parties agree as follows:
SECTION 1 GRANT OF PERMISSION
1.1 Permission.
(a) Subject to the terms and conditions set forth below, State hereby grants Licensee a
revocable, nonexclusive, and nonpossessory license to use the real property
described in Exhibit A (the "Property"). In this agreement, the term "Permit"
means this agreement and the privileges granted herein. State may revoke this
permission in accordance with Paragraph 3.4.
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(b) This License is subject to all valid interests of third parties noted in the records of
Kitsap County, or on file in the Office of the Commissioner of Public Lands,
Olympia, Washington. Licensee is responsible for obtaining approvals from other
persons, if any, who have an interest in the Property. This License is subject to the
rights of the public under the Public Trust Doctrine or federal navigation servitude
and treaty rights of Indian Tribes.
(c) This Permit does not include a right to harvest, collect, or damage natural
resources, including aquatic life or living plants; water rights; mineral rights; or a
right to excavate or withdraw sand, gravel, or other valuable materials.
(d) This License is not exclusive. State may grant easements and other land uses on
the Property to others when such easements or other land uses will not
unreasonably interfere with the Permitted Use. Nothing in this provision shall
limit State's right to revoke this Permit under Paragraph 3.4 of this Permit.
1.2 Survey and Property Descriptions.
(a) Licensee warrants that Exhibit A includes a true and accurate description of the
Property boundaries. Licensee's obligation to provide a true and accurate
description of the Property boundaries is a material term of this Permit.
(b) Licensee's use of any state-owned aquatic lands outside the Property boundaries
is a material breach of this Permit and State may seek remedies under Section 14
of this Permit in addition to any other remedies afforded by law or equity or
otherwise.
1.3 Inspection. State makes no representation regarding the condition of the Property,
Improvements located on the Property, the suitability of the Property for Licensee's Permitted
Use, compliance with governmental laws and regulations, availability of utility rights, access to
the Property, or the existence of hazardous substances on the Property.
SECTION 2 USE OF PROPERTY
2.1 Licensee's Interest in the Property. State grants Licensee only a license to use the
Property for the purposes set forth in Paragraph 2.2 below. State does not grant Licensee a
possessory interest or estate in the Property.
2.2 Permitted Use. Licensee shall use the Property for:
Public Use and Access pier and moorage facility
(the "Permitted Use"), and for no other purpose. Exhibit B includes additional details about the
Permitted Use, the Property, and Improvements, and includes additional obligations on Licensee.
The Permitted Use of this Permit shall not be changed or modified without the written consent of
State, which shall be at State's sole discretion.
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2.3 Restrictions on Permitted Use and Operations. The following limitations and
requirements apply to the Property and adjacent state-owned aquatic land. Licensee's compliance
with the following does not limit Licensee's liability under any other provision of this Permit or
the law.
(a) Licensee shall not cause or permit:
(1) Damage to land or natural resources,
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes, but is not limited to, deposit of fill, rock, earth, ballast, wood
waste, refuse, garbage, waste matter, pollutants of any type, or other
matter.
(b) Nothing in this License shall be interpreted as an authorization to dredge the
Property.
(c) Residential Uses prohibited. Residential uses, as defined by WAC 332-30-
106(62), are not permitted on the Property.
(d) If pressure washing or cleaning any equipment, machinery, or floating or fixed
structures within the boundaries of the Property or on any adjacent state-owned
aquatic land, Licensee shall avoid scouring the substrate and damaging any
aquatic land and vegetation. Licensee shall also comply with the following
limitations:
(1) If equipment contains or is covered with petroleum based products: (1)
Licensee shall not pressure wash such equipment in or over the water
and (2) all wash water must be contained and taken to an approved
treatment facility.
(2) Licensee shall collect or sweep up non -organic debris accumulations on
structures resulting from pressure washing and properly dispose of
such debris in an upland location.
(3) Licensee shall pressure wash using only clean water. Licensee shall not
use or add to the pressure washing unit any detergents or other
cleaning agents.
(4) Licensee shall pressure wash painted structures using appropriate filter
fabric to control and contain paint particles generated by the pressure
washing.
(e) Licensee shall avoid damage caused by propeller wash from vessels.
(f) Licensee shall not allow moorage or anchorage of vessels in water more shallow
than seven (7) feet at the extreme low tide and shall not allow vessels to come into
contact with underlying tidelands or bedlands (commonly referred to as
"grounding out") at any time.
(g) Licensee shall not allow floating structures to come in contact with underlying
tidelands or bedlands (commonly referred to as "grounding out"). Licensee must
either (1) locate all floating structures in water too deep to permit grounding out
or (2) install stoppers sufficient to prevent grounding, keeping the bottom of the
structure above the level of the substrate.
(h) Licensee shall not install fixed breakwaters.
(i) Licensee shall not construct or install new covered moorage or boat houses.
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(j) Licensee shall incorporate current best management practices for marinas to
prevent release of chemical contaminants, wastewater, garbage, and other
pollutants. As of the Commencement Date, current best management practices for
marinas are set forth in Pollution Prevention for Washington State Marinas,
available at https://wsa.washington.edu/wordpress/wp-content/uploads/marina-
handbook.pdf. If this Permit, the Department of Natural Resources, Department of
Ecology, or any other governmental entity establishes different standards,
Licensee shall meet the most protective standard.
2.4 Conformance with Laws. Licensee shall, at all times, keep current and comply with all
conditions and terms of permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding Licensee's use of the Property.
2.5 Liens and Encumbrances. Licensee shall keep the Property free and clear of liens or
encumbrances arising from the Permitted Use or Licensee's use of the Property.
2.6. Interference with Other Uses. Licensee shall use the Property 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 Property or surrounding lands and water.
2.7. Permittees. Licensee may permit its employees, agents, contractors, invitees, or licensees
(collectively referred to as "Permittees,") to exercise the rights granted herein. Acts or omissions
of Permittees entering or using the Property under this License shall be deemed an act of the
Licensee. Restrictions and requirements placed on the Licensee herein shall apply equally to
Permittees.
SECTION 3 TERM
3.1 Term Defined. The term of this Permit is five (5) years beginning on the V day of June
2025 (the "Commencement Date") and ending on the 301h day of April 2030 (the "Termination
Date"), unless revoked, cancelled, or terminated sooner under the terms of this Permit (the
"Term"). Whenever the phrase "termination of this Permit" or "termination of the Permit" is
used in this Permit, it shall refer to the ending, termination, cancellation, revocation, or
expiration of the Permit.
3.2 No Right of Renewal. This Permit does not provide a right of renewal. Licensee may
apply for a new Permit, which State has discretion to grant. Licensee must apply for a new
Permit at least one (1) year prior to the Termination Date.
3.3 End of Term.
(a) Removal of Improvements and Personal Property. Upon the termination of this
Permit, Licensee shall remove Improvements and Personal Property in accordance
with Section 7.
(b) Restoration of Property:
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(1) Prior to the termination of this Permit, Licensee shall restore the Property
to its condition before the installation of any Improvements on the
Property.
(2) This restoration is to be done at Licensee's expense and to the satisfaction
of State. Restoration of the Property is considered to be Work, as
described in Section 7 of the Permit. Licensee's plans for restoring the
Property shall be submitted to State for prior approval in accordance with
Section 7 of this Permit.
(3) If Licensee fails to restore the condition of the Property as required by this
Paragraph, State may take steps reasonably necessary to remedy
Licensee's failure. Upon demand by State, Licensee shall pay all costs of
State's remedy, including but not limited to the costs of removing and
disposing of material deposited on the Property, lost revenue resulting
from the condition of the Property, and administrative costs associated
with State's remedy.
(c) Vacation of Property: Upon the termination of this Permit, Licensee shall cease
all operations on and use of the Property and surrender the Property to State.
3.4 Revocation of Permit by State. State may revoke or cancel this Permit upon 90 days'
notice if the Property is needed for a higher priority use as defined in WAC 332-30-117. To the
extent such revocation is not prohibited by WAC 332-30-117, State may also revoke or cancel
this permit without cause upon 90 days' notice if State determines revocation or cancellation is
in the best interest of the State of Washington. If State revokes or cancels this Permit under this
Paragraph, the revocation or cancellation shall be a termination and Licensee shall take all
actions required of Licensee upon termination of this Permit. If State revokes or cancels this
Permit under this Paragraph, Licensee is entitled to a refund of the pre -paid fees attributable to
the period beyond the date of revocation. Termination for breach is governed by Section 14.
SECTION 4 FEES
4.1 Fees
(a) The Annual Fee is based on the use classification of Licensee's Permitted Use of
the Property and the square footage of each use classification, as set forth in
Exhibit A.
(b) Until adjusted as set forth below, Licensee shall pay to State an annual fee of Zero
Dollars ($0.00), consisting of Zero Dollars ($0.00) related to water -dependent
fees.
(b) The fee is due and payable in full on or before the Commencement Date. The
annual fee, as it currently exists or as adjusted or modified (the "Annual Fee"), is
due and payable in full on or before the Commencement Date and on or before
the same date of each year thereafter. Any payment not paid by State's close of
business on the date due is past due.
(c) Under WAC 332-30-117, waterway fees are to be determined on the same basis
as required for similar types of uses on state-owned aquatic lands. State's
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determination of the fees in this Permit are based on the statutes and rules
governing rent valuation for leases on state-owned aquatic land and Licensee's
Permitted Use of the Property. State's basis for determining fees under this Permit
should not be interpreted or construed as State giving the Licensee a lease for the
Property.
(d) Public Use and Access. This Permit allows for free or reduced fees for areas that
meet the requirements of RCW 79.105.230 and WAC 332-30-131. If Licensee's
use of these areas cease to meet the requirements for free or reduced fees in RCW
79.105.230 and WAC 332-30-131, State will charge Licensee a fee for using
these areas based on water -dependent fees.
4.2 Payment Place. Licensee shall make payment to Financial Management Division, 1111
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
4.3 Adjustment Based on Change in Use Classification. Neither the use classification nor
the square footage of a use classification shall be changed without the prior written consent of
State. If the use classification or the square footage of a use classification is changed, the Annual
Rent shall be adjusted based on the revised use classification or square footage of each use
classification.
4.4 Annual Fee Adjustment Procedures.
(a) Notice of Fee Adjustment. State shall provide notice of adjustments to the Annual
Fee allowed under Paragraphs 4.5 to Licensee in writing no later than ninety (90)
days after the anniversary of the Commencement Date.
(b) Procedures on Failure to make Timely Adjustment. If State fails to provide the
notice required in Paragraph 4.4(a), State shall not collect the adjustment amount
for the year in which State failed to provide notice. Upon providing notice of
adjustment, State may adjust and prospectively bill Annual Fee as if missed or
waived adjustments had been implemented at the proper interval. This includes
the implementation of any inflation adjustment.
4.5 Inflation Adjustments for Water -Dependent Uses. State shall adjust the
water -dependent fees annually for inflation. This adjustment will be effective on the anniversary
of the Commencement Date.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Licensee shall pay all fees charged for utilities required or needed by the
Permitted Use.
5.2 Taxes and Assessments. Licensee shall pay all taxes (including leasehold excise taxes,
as defined by RCW 82.29A.020(1) or other applicable statute), assessments, and other
governmental charges, applicable or attributable to the Property, the Improvements, or
Licensee's use and enjoyment of the Property.
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5.3 Right to Contest. If in good faith, Licensee may contest any tax or assessment at its sole
cost and expense. At the request of State, Licensee shall furnish reasonable protection in the
form of a bond or other security, satisfactory to State, against loss or liability resulting from such
contest.
5.4 Proof of Payment. If required by State, Licensee shall furnish to State receipts or other
appropriate evidence establishing the payment of amounts this Permit requires Licensee to pay.
5.5 Failure to Pay. If Licensee fails to pay any of the amounts due under this Permit, 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 Fee. If Licensee fails to pay fees when due under this Permit, State may
seek remedies under Section 14 as well as late charges and interest as provided in this Section 6.
6.2 Late Charge. If State does not receive full fee payment within ten (10) days of the date
due, Licensee shall pay to State a late charge equal to four percent (4%) of the unpaid amount 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) Licensee shall pay interest on the past due fees at the rate of one percent (1%) per
month until paid, in addition to paying the late charges determined under
Paragraph 6.2. Fees not paid by the close of business 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 Licensee, Licensee 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
Licensee of the payment or advance. This includes, but is not limited to, State's
payment of taxes, assessments, insurance premiums, costs of removal and
disposal of materials or Improvements under any provision of this Permit, or other
amounts not paid when due.
6.4 Referral to Collection Agency and Collection Agency Fees. If State does not receive
full 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,
Licensee shall pay collection agency fees in addition to the unpaid amount.
6.5 No Accord and Satisfaction. If Licensee pays, or State otherwise receives, an amount
less than the full amount then due, State may apply such payment as it elects. State may accept
payment in any amount without prejudice to State's right to recover the balance of the fees or
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pursue any other right or remedy. No endorsement or statement on any check, any payment, or
any letter accompanying any check or payment constitutes accord and satisfaction.
6.6 No Counterclaim, Setoff, or Abatement of Fees. Except as expressly set forth
elsewhere in this Permit, Licensee shall pay fees and all other sums payable by Licensee without
the requirement that State provide prior notice or demand. Licensee's payment is not subject to
counterclaim, setoff, deduction, defense or abatement.
SECTION 7 IMPROVEMENTS, PERSONAL PROPERTY, AND WORK
7.1 Improvements and Personal Property Defined.
(a) "Improvements," consistent with RCW 79.105 through 79.145, are additions
within, upon, or attached to the land. Improvements include, but are not limited
to, structures and fixtures.
(b) "Personal Property" means items that can be removed from the Property without
(1) injury to the Property, adjacent state-owned aquatic lands, or Improvements or
(2) diminishing the value or utility of the Property, adjacent state-owned aquatic
lands, or Improvements.
(c) "State -Owned Improvements" are Improvements made or owned by the State of
Washington. State -Owned Improvements include any construction, alteration, or
addition to State -Owned Improvements made by Licensee.
(d) "Licensee -Owned Improvements" are Improvements authorized by State and (1)
made by Licensee, (2) acquired by Licensee from a previous occupant of the
Property, (3) made by a sublicensee on the Property, or (4) acquired by a
sublicensee from a Licensee or a prior sublicensee or licensee.
(e) "Unauthorized Improvements" are Improvements made on the Property without
State's prior consent or Improvements made by Licensee that do not conform to
plans submitted to and approved by State.
(f) "Improvements Owned by Others" are Improvements owned by others (not
including a Licensee or sublicensee) with a right to occupy or use the Property.
7.2 Existing Improvements. On the Commencement Date, the following Licensee -Owned
Improvements are located on the Property: Entry pier, gangway, and floating moorage dock
secured with 14 pilings. Licensee warrants that all Licensee -Owned Improvements are capable of
ready removal.
7.3 Construction, Major Repair, Modification, and Other Work.
(a) This Paragraph 7.3 governs construction, alteration, replacement, major repair,
modification, and removal of Improvements, ("Work").
(b) Except in an emergency, Licensee shall not conduct Work without State's prior
written consent. Licensee shall obtain State's prior written consent as follows:
(1) Licensee shall submit to State plans and specifications describing the
proposed Work at least sixty (60) days before submitting permit
applications to regulatory authorities unless Licensee and State otherwise
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agree to coordinate permit applications. At a minimum, or if no permits
are necessary, Licensee shall submit plans and specifications at least
ninety (90) days before commencement of Work.
(2) State may deny consent if State determines that denial is in the best
interest of the State of Washington or if the proposed Work does not
comply with Paragraphs 7.4 and 11.3. State may impose additional
conditions intended to protect and preserve the Property or adjacent state-
owned aquatic lands.
(3) State will not approve plans to construct new Improvements or expand
existing Improvements in or over habitats designated by State as important
habitat, including, but not limited to: native aquatic vegetation,
commercial geoduck tracts, forage fish spawning areas, and salmon
critical habitat. Licensee shall confirm location of important habitat on
Property, if any, with State before submitting plans and specifications in
accordance with Paragraph 7.3.
(c) Licensee shall immediately notify State of emergency Work. Upon State's
request, Licensee shall provide State with as -built plans and specifications of
emergency Work.
(d) Licensee shall not commence or authorize Work until Licensee or Licensee's
contractor has:
(1) Obtained a performance and payment bond in an amount equal to one
hundred twenty-five percent (125%) of the estimated cost of construction.
Licensee or Licensee's contractor shall maintain the performance and
payment bond until the costs of the Work, including all laborers and
material persons, are paid in full.
(2) Obtained all required permits.
(e) Before completing Work, Licensee shall remove all debris and restore the
Property to an orderly and safe condition. If Work is for removal of
Improvements at End of Term, Licensee shall restore the Property in accordance
with Paragraph 3.3, End of Term.
(f) Upon completing Work, Licensee shall promptly provide State with as -built plans
and specifications. State may also require Licensee to obtain an updated record of
survey showing the Property boundaries and the as -built location of all
Improvements on the Property
(g) State shall not charge fees for authorized Improvements installed by Licensee on
the Property during the Term , but State may charge fees for such Improvements
when and if the Licensee obtains a subsequent use authorization for the Property
and State has waived the requirement for removal of Improvements as provided in
Paragraph 7.5.
7.4 Standards for Work. The following Standards of Work apply to all Work conducted on
the Property:
(a) Licensee shall not install skirting on any overwater structure.
(b) Licensee shall only conduct in -water Work during time periods authorized for
such work under WAC 220-660-330, Authorized Work Times in Saltwater Areas,
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or as otherwise directed by the Washington Department of Fish and Wildlife
(WDFW), United States Fish and Wildlife Service (USFWS), and National
Marine Fisheries Service (NMFS).
(d) Licensee shall not provide anchorage or moorage in water more shallow than
seven (7) feet (2.1 meters) at the extreme low tide or water.
(e) Licensee shall use embedded anchors and midline floats on all anchored
structures and buoys.
(f) Licensee shall install grating on new floats, fingers, docks, decks, and/or
gangways as follows: For floats, fingers, and docks, Licensee shall install
unobstructed grating on at least fifty percent (50%) of the surface area; grating
material must have at least sixty percent (60%) functional open space or forty
percent (40%) or greater multi -directional open space. For gangways and decks,
Licensee shall install grating on one hundred percent (100%) of the surface area;
grating material must have at least sixty (60) percent functional open space or
forty percent (40%) or greater multi -directional open space.
(g) Where Work is in or within 200 feet of spawning habitat for Surf Smelt
(Hypomesus pretiosus, Licensee shall construct all new or expansions to existing
Improvements to avoid: (1) removal of shoreline vegetation within the Property
that provides shading to the upper intertidal zone, (2) changes in typical spawning
behavior, (3) destruction or disturbance of spawning substrate or aquatic
vegetation used for spawning, and (4) interruption of existing sediment transport
mechanisms such as longshore current or wave energy.
(h) Licensee shall orient and shield lighting fixtures attached to overwater structures
in a manner that minimizes the amount of light shining directly on the water,
minimizes the amount of glare on the water, and minimizes the amount of light
broadcasting into the night sky. Licensee shall implement the following measures
to achieve this requirement:
(i) Licensee shall direct light to walkways,
(ii) Licensee shall use light shields which prevent light from being emitted
upward and prevent glare on the water,
(iii) Licensee shall use fixtures that do not emit light upward,
(iv) Licensee shall use lights that are "warm -white" or filtered.
7.5 Licensee -Owned Improvements at Termination of Permit.
(a) Removal of Licensee -Owned Improvements.
(1) Licensee shall remove Licensee -Owned Improvements in accordance with
Paragraph 7.3 upon the termination of this Permit unless State waives the
requirement for removal.
(2) Licensee -Owned Improvements remaining on the Property after the
termination of this Permit shall become State -Owned Improvements
without payment by State, unless State elects otherwise. State may refuse
or waive ownership.
(3) If Licensee -Owned Improvements remain on the Property after the
termination of this Permit without State's consent, State may remove all
Improvements and Licensee shall pay State's costs.
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(b) Conditions Under Which State May Waive Removal of Licensee -Owned
Improvements.
(1) State may waive removal of any Licensee -Owned Improvements
whenever State determines that it is in the best interests of the State of
Washington and regardless of whether Licensee enters into a new Permit.
(2) If Licensee enters into a new Permit, State may waive requirement to
remove Licensee -Owned Improvements. State also may consent to
Licensee's continued ownership of Licensee -Owned Improvements.
(3) If Licensee does not enter into a new Permit, State may waive requirement
to remove Licensee -Owned Improvements upon consideration of a timely
request from Licensee, as follows:
(i) Licensee shall submit its request to leave Licensee -Owned
Improvements to State at least one (1) year before the Termination
Date.
(ii) State, within ninety (90) days of receiving Licensee's request, will
notify Licensee whether State consents to any Licensee -Owned
Improvements remaining. State has no obligation to grant consent.
(iii) State's failure to respond to Licensee's request to leave
Improvements within ninety (90) days is a denial of the request.
(c) Licensee's Obligations if State Waives Removal.
(1) For any Licensee -Owned Improvements that State has waived the
requirement for removal, Licensee shall not remove such Licensee -Owned
Improvements.
(2) For any Licensee -Owned Improvements that State has waived the
requirement for removal, Licensee shall maintain such Licensee -Owned
Improvements in accordance with this Permit until the termination of this
Permit. Licensee is liable to State for cost of repair if Licensee causes or
allows damage to Improvements State has designated to remain.
7.6 Unauthorized Improvements.
(a) Unauthorized Improvements belong to State, unless State elects otherwise.
(b) The placement of Unauthorized Improvements is a breach of this License.
(c) State may require immediate removal of Unauthorized Improvements. If State
requires removal of Unauthorized Improvements and Licensee fails to remove the
Unauthorized Improvements, State may remove the Unauthorized Improvements
and Licensee shall pay for the cost of removal and disposal.
(d) In addition to requiring removal of Unauthorized Improvements, State may
charge Licensee a use fee that is sixty percent (60%) higher than the full market
value of the use of the land for the Unauthorized Improvements from the time of
installation or construction until the time the Unauthorized Improvements are
removed.
(e) If State consents to Unauthorized Improvements remaining on the Property, upon
State's consent, the Unauthorized Improvements will be treated as Licensee -
Owned Improvements and the removal and ownership of such Improvements
shall be governed by Paragraph 7.5. If State consents to the Unauthorized
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Improvements remaining on the Property, State may charge a use fee that is sixty
percent (60%) higher than the full market value of the use of the land for the
Unauthorized Improvements from the time of installation or construction until
State consents.
7.7 Personal Property.
(a) Licensee retains ownership of Personal Property unless Licensee and State agree
otherwise in writing.
(b) Licensee shall remove Personal Property from the Property by the termination of
this Permit. Licensee is liable for damage to the Property and any Improvements
that may result from removal of Personal Property.
(c) State may sell or dispose of all Personal Property left on the Property after the
termination of this Permit.
(1) If State conducts a sale of Personal Property, State shall first apply
proceeds to State's costs of removing the Personal Property, State's costs
in conducting the sale, and any other payment due from Licensee to State.
State shall pay the remainder, if any, to the Licensee. Licensee shall be
liable for any costs of removing the Personal Property and conducting the
sale that exceed the proceeds received by State.
(2) If State disposes of Personal Property, Licensee 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 utmost care required under RCW 70A.305.040(3)(a)(iii) of the Washington
State Model Toxics Control Act
(d) "Licensee and affiliates" when used in this Section 8 means Licensee or
Licensee's contractors, agents, employees, guests, invitees, licensees,
sublicensees, affiliates, or any person on the Property with the Licensee'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.
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(a) Licensee's obligations under this Section 8 extend to the area in, on, under, or
above:
(1) The Property and
(2) Adjacent state-owned aquatic lands if affected by a release of Hazardous
Substances that occurs as a result of the Permitted Use.
(b) Standard of Care.
(1) Licensee shall exercise the utmost care with respect to Hazardous
Substances.
(2) Licensee 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 Property or adjacent
state-owned aquatic lands. Hazardous Substances may exist in, on, under, or
above the Property or adjacent state-owned aquatic lands.
(b) This Permit does not impose a duty on State to conduct investigations or supply
information to Licensee about Hazardous Substances.
(c) Licensee 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 Licensee to meet Licensee's
obligations under this Permit and utilize the Property for the Permitted Use.
8.4 Use of Hazardous Substances.
(a) Licensee and affiliates shall not use, store, generate, process, transport, handle,
release, or dispose of Hazardous Substances, except in accordance with all
applicable laws.
(b) Licensee shall not undertake, or allow others to undertake by Licensee'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 or Licensee's use of
the Property results in violation of law:
(1) Licensee shall submit to State any plans for remedying the violations, and
(2) Licensee shall implement any remedial measures to restore the Property or
natural resources that State may require in addition to remedial measures
required by regulatory authorities.
(d) At a minimum, Licensee and affiliates shall observe the following Hazardous
Substances operational standards. If the Washington Department of Ecology,
United States Environmental Protection Agency (EPA) or other regulatory agency
establishes different standards applicable to Licensee's activities under the
Permitted Use, Licensee shall meet the standard that provides greater protection to
the environment.
(1) Licensee shall not allow work on overwater structures or vessels without
protective measures to prevent discharge of toxins to the water, including:
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(i) Licensee shall not cause or allow underwater hull scraping and
other underwater removal of paints.
(ii) Licensee shall not cause or allow underwater refinishing work
from boats or temporary floats unless permitted by an industrial
National Pollutant Discharge Elimination System (NPDES) permit.
(iii) Licensee shall not cause or allow above the waterline boat repairs
or refinishing in -water except if limited to decks and
superstructures and less than 25 percent (25%) of a boat is repaired
or refinished in -water per year.
(iv) Licensee shall use and require others to use tarps and other dust,
drip and spill containment measures when repairing or refinishing
boats in water.
(2) Licensee shall not store or allow others to store fuel tanks, petroleum
products, hydraulic fluid, machinery coolants, lubricants and chemicals
not in use in locations above the water surface.
(3) Licensee shall maintain a supply of oil spill containment materials
adequate to contain a spill from the largest vessel in use on the Property.
(4) Licensee shall inspect all equipment using petroleum products, hydraulic
fluids, machinery coolants, chemicals, or other toxic or deleterious
materials on a monthly basis and immediately make all repairs necessary
to stop leakage. Licensee shall document the monthly inspections and
repairs and keep such documentation for the duration of the Permit.
Within thirty (30) days of a request by State, Licensee shall make any
requested documentation of monthly inspections available to State.
8.5 Management of Contamination, if any.
(a) Licensee 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, Licensee shall allow reasonable access to:
(1) Employees and authorized agents of the EPA, 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 Property. Licensee may
negotiate an access agreement with such parties, but Licensee may not
unreasonably withhold such agreement.
8.6 Notification and Reporting.
(a) Licensee shall immediately notify State if Licensee becomes aware of any of the
following:
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(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 EPA or the Washington State Department of
Ecology that remediation or removal of Hazardous Substances is or may
be required at the Property.
(b) Licensee'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 Licensee in conjunction with
the Property if a release of Hazardous Substances on the other property could
affect the Property.
(c) Licensee shall provide State with copies of all documents Licensee submits to any
federal, state, or local authorities concerning environmental impacts or proposals
relative to the Property. Documents subject to this requirement include, but are
not limited to, applications, reports, studies, or audits for National Pollutant
Discharge Elimination System Permits; United States Army Corps of Engineers
Permits; State Hydraulic Project Approvals (HPA); State Water Quality
Certifications; Shoreline Substantial Development permits; and any reporting
necessary for the existence, location, and storage of Hazardous Substances on the
Property.
8.7 Indemnification.
(a) Licensee shall fully indemnify, defend, and hold harmless State 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 Licensee and affiliates occurring
whenever Licensee occupies or has occupied the Property;
(2) The release or threatened release of any Hazardous Substance resulting
from any act or omission of Licensee and affiliates occurring whenever
Licensee occupies or has occupied the Property.
(b) Licensee shall fully indemnify, defend, and hold harmless State for any Liabilities
that arise out of or relate to Licensee's breach of obligations under Paragraph 8.5.
(c) If Licensee fails to exercise care as described in Paragraph 8.2(b)(2), Licensee
shall fully indemnify, defend, and hold harmless State from and against Liabilities
arising from the acts or omissions of third parties in relation to the release or
threatened release of Hazardous Substances.
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.
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(b) The Parties expressly reserve all rights, claims, immunities, and defenses that
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 Licensee'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, Licensee shall, at Licensee's sole expense,
promptly take all actions necessary or advisable to clean up the Hazardous
Substances in accordance with applicable law.
(b) If a cleanup is eligible for the Washington State Department of Ecology's
Voluntary Cleanup Program, Licensee may undertake a cleanup of the Property
pursuant to the Washington State Department of Ecology's Voluntary Cleanup
Program, provided that Licensee cooperates with the Department of Natural
Resources in development of cleanup plans. Licensee 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 Permit. Licensee's completion of a Voluntary
Cleanup is not a release from or waiver of any obligation for Hazardous
Substances under this Permit.
8.10 Sampling by State, Reimbursement, and Split Samples.
(a) If State conducts any sampling, tests, audits, surveys, or investigations ("Tests")
on the Property, and such Tests, along with any other information, demonstrate a
breach of Licensee's obligations regarding Hazardous Substances under this
Permit, Licensee shall promptly reimburse State for all costs associated with the
Tests, provided State gave Licensee thirty (30) days' advance notice in
nonemergencies and reasonably practical notice in emergencies.
(b) 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) days of a written request by
the other Party, unless Tests are part of a submittal under Paragraph 8.6(c) in
which case Licensee shall submit data and information to State without State's
written request. Neither Party is obligated to provide any analytical summaries or
the work product of experts.
8.11 Closeout Assessment.
(a) State may require Licensee to conduct a Closeout Environmental Assessment
("Closeout Assessment") prior to the Termination Date, or after a valid notice of
revocation, cancellation, or early termination, according to the procedures set
forth in (b)-O) below.
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(b) The purpose of the Closeout Assessment is to determine the existence, scope, or
effects of Hazardous Substances on the Property and any associated natural
resources. The Closeout Assessment may include sediment sampling. Sediment
sampling includes the sample locations and parameters reported in Exhibit C as
well as any additional testing State may require.
(c) No later than one hundred eighty (180) days prior to the Termination Date, or
within ninety (90) days of a valid notice of revocation, cancellation, or
termination, State may provide Licensee with written notice that State requires a
Closeout Assessment.
(d) Within sixty (60) days of State's notice that Closeout Assessment is required and
before commencing assessment activities, Licensee shall submit a proposed plan
for conducting the Closeout Assessment in writing for State's approval.
(e) If State fails to approve or disapprove of the plan in writing within sixty (60) days
of its receipt, State waives requirement for approval.
(f) Licensee shall be responsible for all costs required to complete planning,
sampling, analyzing, and reporting associated with the Closeout Assessment.
(g) If the Permit has terminated, State may require Licensee to enter into a right -of -
entry or other use authorization prior to the Licensee entering the Property for any
Closeout Assessment work required by this Paragraph 8.11.
(h) Licensee shall submit Closeout Assessment to State upon completion.
(i) As required by law, Licensee shall report to the appropriate regulatory authorities
if the Closeout Assessment discloses a release or threatened release of Hazardous
Substances.
(j) If the initial results of the Closeout Assessment disclose that Hazardous
Substances may have migrated to other property, State may require Licensee to
conduct additional Closeout Assessment work to determine the existence, scope,
and effect of Hazardous Substances on adjacent property, any other property
subject to use by Licensee in conjunction with its use of the Property, or on
associated natural resources. Licensee shall submit additional Closeout
Assessment work to State upon completion. As required by law, Licensee shall
report to the appropriate regulatory authorities if the additional Closeout
Assessment work discloses a release or threatened release of Hazardous
Substances.
SECTION 9 ASSIGNMENTS AND SUBLICENSES
9.1 No Assignments. Except as set forth in Paragraph 9.2 (Sublicenses) and Paragraph 9.3
(Change in Control), Licensee shall not sell, convey, mortgage, assign, pledge, or otherwise
transfer or encumber all or any part of Licensee's use rights in this Permit or the Property.
9.2 Sublicenses.
(a) Licensee shall submit the terms of all sublicenses to State for prior approval,
which shall be at state's sole discretion. State's consent under this Paragraph
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9.2(a) does not constitute a waiver of any claims against Licensee for the violation
of any term of this Permit.
(b) In determining whether to consent, State may consider, among other items, the
proposed sublicensee's financial condition, business reputation, and experience;
the nature of the proposed sublicensee's business; the current value of the
Property; and such other factors as may reasonably bear upon the suitability of the
sublicensee as a sublicensee of the Property. Licensee shall submit information
regarding any proposed sublicensee to State at least thirty (30) days prior to the
date of the proposed sublicense.
(c) State reserves the right to condition its consent upon:
(1) Changes in the terms and conditions of this Permit, including, but not
limited to, the Annual Fee; and/or
(2) The agreement of Licensee or sublicensee to conduct Tests for Hazardous
Substances on the Property or on other property owned or occupied by
Licensee or the sublicensee.
(d) No sublicensee shall release, discharge, or otherwise affect the liability of
Licensee. Licensee shall remain liable for the full and complete performance,
satisfaction, and compliance with the terms of this Permit.
(e) Licensee shall incorporate the following requirements in all sublicenses:
(1) The sublicense must be consistent with and subject to all the terms and
conditions of this Permit;
(2) The sublicense must provide that this Permit controls if the terms of the
sublicense conflicts with the terms of this Permit;
(3) The term of the sublicense must end before the Termination Date;
(4) The sublicense must terminate if this Permit terminates for any reason;
(5) The sublicense must include an acknowledgement that the sublicensee has
received a copy of this Permit;
(6) The sublicense must prohibit the prepayment to Licensee by the
sublicensee of more than one year of fees
(7) The sublicense must identify the fee sublicensee is to pay to Licensee;
(8) The sublicense must provide that there is no privity of contract between
the sublicensee and State;
(9) The sublicense must require removal of the sublicensee's Improvements
and Personal Property upon termination of the sublicense;
(10) The sublicensee's permitted use must be within the scope of the Permitted
Use;
(11) The sublicense must require the sublicensee to indemnify, defend, and
hold harmless State to the same extent Licensee is required to indemnify,
defend, and hold harmless State under this Permit;
(12) The sublicense must require the sublicensee to meet the Insurance
requirements under Section 10, unless State agrees in writing to exempt a
sublicensee from this requirement;
(13) The sublicense must require the sublicensee to comply with the Financial
Security requirements under Section 10 unless State agrees in writing to
exempt a sublicensee from this requirement; and
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(14) If the sublicense includes moorage of a vessel, the sublicense must require
the sublicensee to procure marine insurance as set forth in Paragraph
10.2(c)(4) of this Permit.
(f) Short-term sublicensing of moorage slips for a term of one year or less does not
require State's prior approval pursuant to Paragraph 9.2(a); however, such
sublicenses are subject to the provisions in Paragraph 9.2(d), and Licensee shall
conform such moorage sublicense agreements to the sublicense requirements in
Paragraph 9.2(e).
9.3. Change in Control. In order for Licensee to continue operating under this Permit, the
following changes in control require State's prior approval, which shall be at state's sole
discretion: (1) If Licensee is a corporation, dissolution of the corporation or a transfer (by one or
more transactions) of a majority of the voting stock of Licensee; (2) If Licensee is a partnership,
dissolution of the partnership or a transfer (by one or more transactions) of the controlling
interest in Licensee; and (3) If Licensee is a limited liability company, conveyance of an
economic interest of greater than fifty percent (50%). State's consent under this Paragraph 9.3
does not constitute a waiver of any claims against Licensee for the violation of any term of this
Permit. State reserves the right to condition its consent upon: (1) changes in the terms and
conditions of this Permit, including, but not limited to, the Annual Fee; and/or (2) the agreement
of Licensee to conduct Tests for Hazardous Substances on the Property or on other property
owned or occupied by Licensee.
SECTION 10 INDEMNITY, INSURANCE, FINANCIAL SECURITY
10.1 Indemnity.
(a) Licensee shall indemnify, defend, and hold harmless State, its employees,
officials, officers, and agents from any Claim arising out of the Permitted Use,
any Claim arising out of activities related to the Permitted Use, and any Claim
arising out of the use, occupation, or control of the Property by Licensee, its
sublicensees, contractors, agents, invitees, guests, employees, affiliates, licensees,
or permittees to the fullest extent permitted by law and subject to the limitations
provided below.
(b) "Claim" as used in this Paragraph 10.1 means any financial loss, claim, suit,
action, damages, expenses, costs, fees (including attorneys' fees), fines, penalties,
or judgments attributable to: bodily injury, sickness, disease, death, and damages
to tangible property, including, but not limited to, land, aquatic life, and other
natural resources. "Damages to tangible property" includes, but is not limited to,
physical injury to tangible property, diminution in value of tangible property,
damages resulting from loss of use of tangible property, and loss or diminution of
natural resource values.
(c) State shall not require Licensee to indemnify, defend, and hold harmless State, its
employees, officials, officers, and agents for a Claim caused solely by or resulting
solely from the negligence or willful act of State, its employees, officials, officers,
or agents.
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(d) Licensee specifically and expressly waives any immunity that may be granted
under the Washington State Industrial Insurance Act, Title 51 RCW in connection
with its obligation to indemnify, defend, and hold harmless State and its
employees, officials, officers, and agents. Further, Licensee's obligation under
this Permit to indemnify, defend, and hold harmless State and its employees,
officials, officers, and agents shall not be limited in any way by any limitation on
amount or type of damages, compensation, or benefits payable to or for any third
party under the worker's compensation acts.
(e) Only to the extent RCW 4.24.115 applies and requires such a limitation, if a
Claim is caused by or results from the concurrent negligence of (a) State or
State's employees, officials, officers, or agents, and (b) the Licensee or Licensee's
sublicensees, agents, or employees, these indemnity provisions shall be valid and
enforceable only to the extent of the negligence of the Licensee and those acting
on its behalf.
(f) Section 8, Environmental Liability/Risk Allocation, exclusively shall govern
Licensee's liability to State for Hazardous Substances and its obligation to
indemnify, defend, and hold harmless State for Hazardous Substances.
10.2 Insurance Terms.
(a) Insurance Required.
(1) At its own expense, Licensee, or Licensee's contractor(s) where permitted
in Paragraph 10.3, shall procure and maintain during the Term, the
insurance coverages and limits described in this Paragraph 10.2 and in
Paragraph 10.3, Insurance Types and Limits. State may terminate this
Permit if Licensee fails to maintain required insurance.
(2) Unless State agrees to an exception, Licensee shall provide insurance
issued by an insurance company or companies admitted to do business in
the State of Washington and have a rating of A- or better by the most
recently published edition of A.M. Best's Insurance Reports. Licensee
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 shall comply with Chapter 48.15 RCW and 284-15 WAC.
(3) All general liability, excess, umbrella, and pollution legal liability
insurance policies must name the State of Washington, the Department of
Natural Resources, its elected and appointed officials, officers, agents, and
employees as an additional insured by way of endorsement.
(4) All property insurance, builder's risk insurance, and equipment breakdown
insurance must name the State of Washington, the Department of Natural
Resources, its elected and appointed officials, officers, agents, and
employees as a loss payee.
(5) All insurance provided in compliance with this Permit must be primary as
to any other insurance or self-insurance programs afforded to or
maintained by State.
(b) Waiver.
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(1) Licensee waives all rights against State for recovery of damages to the
extent insurance maintained pursuant to this Permit covers these damages.
(2) Except as prohibited by law, Licensee waives all rights of subrogation
against State for recovery of damages to the extent that they are covered
by insurance maintained pursuant to this Permit.
(c) Proof of Insurance.
(1) Licensee shall provide State with a certificate(s) and endorsement(s) of
insurance executed by a duly authorized representative of each insurer,
showing compliance with insurance requirements specified in this Permit
and, if requested, copies of policies to State.
(2) The certificate(s) of insurance must reference the Permit number.
(3) Receipt of such certificates, endorsements, or policies by State does not
constitute approval by State of the terms of such policies.
(4) For all moorage agreements issued by the Licensee that are entered into or
renewed after June 12, 2014, Licensee shall require all vessels except
transient vessels to provide proof of marine insurance that provides
coverage at liability limits of at least three hundred thousand dollars
($300,000) per occurrence and includes, at a minimum, general liability,
legal liability, and pollution liability coverage. To the extent not already
included in the general, legal, and pollution liability coverage of a vessel
owner, Licensee shall also require the vessel owner to provide proof of
coverage for fuel spills, hull damage, wreck removal, salvage, and injuries
to passengers and crew of the vessel. Failure to comply with the insurance
requirements as outlined in RCW 88.26.030 shall cause Licensee to
assume secondary liability under RCW 79.100.060 for any derelict or
abandoned vessel as defined in RCW 79.100.010 located on the Property.
(d) State must receive written notice before cancellation or non -renewal of any
insurance required by this Permit, 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 twenty (20) 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) Licensee shall secure new or modified insurance coverage within thirty
(30) days after State requires changes in the limits of liability.
(f) If Licensee fails to procure and maintain the insurance required within fifteen
(15) days after Licensee receives a notice to comply from State, State may either:
(1) Terminate this Permit, or
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(2) Procure and maintain comparable substitute insurance and pay the
premiums. Upon demand, Licensee shall pay to State the full amount paid
by State, together with interest at the rate provided in Paragraph 6.3 from
the date of State's notice of the expenditure until Licensee's repayment.
(g) General Terms.
(1) State does not represent that coverage and limits required under this
Permit are adequate to protect Licensee.
(2) Coverage and limits do not limit Licensee's liability for indemnification
and reimbursements granted to State under this Permit.
(3) The Parties shall use any insurance proceeds payable by reason of damage
or destruction to property first to restore the real property covered by this
Permit, then to pay the cost of the reconstruction, then to pay State any
sums in arrears, and then to Licensee.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Licensee 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 Property, arising out of the
Permitted Use, and/or arising out of Licensee's use of the Property, 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) Licensee shall comply with all State of Washington workers'
compensation statutes and regulations. Licensee shall provide
workers' compensation coverage for all employees of Licensee.
Coverage must include bodily injury (including death) by accident
or disease, which arises out of Licensee's use of the Property and
the Permitted Use or related activities.
(ii) If Licensee fails to comply with all State of Washington workers'
compensation statutes and regulations and State incurs fines or is
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required by law to provide benefits to or obtain coverage for such
employees, Licensee shall indemnify State. Indemnity shall
include all fines; payment of benefits to Licensee, 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 30104) may require Licensee to provide insurance
coverage in some circumstances. Licensee shall ascertain if such
insurance is required and, if required, shall maintain insurance in
compliance with law. Licensee is responsible for all civil and criminal
liability arising from failure to maintain such coverage.
(c) Employers' Liability Insurance. Licensee 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 and One Million Dollars ($1,000,000) each employee for bodily injury
by disease.
(d) Property Insurance.
(1) Licensee shall buy and maintain property insurance covering all real
property and fixtures, equipment, improvements and betterments
(regardless of whether owned by Licensee or State). Such insurance must
be written on an all risks basis and, at minimum, cover the perils insured
under ISO Special Causes of Loss Form CP 10 30, and cover the full
replacement cost of the property insured. Such insurance may have
commercially reasonable deductibles. Any coinsurance requirement in the
policy must be waived..
(2) Licensee shall buy and maintain equipment breakdown insurance covering
all real property and fixtures, equipment, improvements and betterments
(regardless of whether owned by Licensee or State) from loss or damage
caused by the explosion of equipment, fired or unfired vessels, electric or
steam generators, electrical arcing or pipes.
(3) In the event of any loss, damage, or casualty that is covered by one or
more of the types of insurance described above, the Parties shall proceed
cooperatively to settle the loss and collect the proceeds of such insurance,
which State shall hold in trust, including interest earned by State on such
proceeds, for use according to the terms of this Permit. The Parties shall
use insurance proceeds in accordance with Paragraph 10.2(g)(3).
(4) When sufficient funds are available, using insurance proceeds described
above, the Parties shall continue with reasonable diligence to prepare
plans and specifications for, and thereafter carry out, all work necessary
to:
(i) Repair and restore damaged building(s) and/or Improvements to
their former condition, or
(ii) Replace and restore damaged building(s) and/or Improvements
with a new building(s) and/or Improvements on the Property of a
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quality and usefulness at least equivalent to or more suitable than,
damaged building(s) and/or Improvements.
(e) Builder's Risk Insurance.
(1) Licensee shall procure and maintain in force, or require its contractor(s) to
procure and maintain in force, builder's risk insurance on the entire work
during the period construction is in progress and until completion of the
project and acceptance by State. Such insurance must be written on a
completed form and in an amount equal to the value of the completed
building and/or Improvements, subject to subsequent modifications to the
sum. The insurance must be written on a replacement cost basis. The
insurance must name Licensee, all contractors, and all subcontractors in
the work as insured.
(2) Insurance described above must cover or include the following:
(i)
All risks of physical loss except those specifically excluded in the
policy, including loss or damage caused by collapse;
(ii)
The entire work on the Property, including reasonable
compensation for architect's services and expenses made necessary
by an insured loss;
(iii)
Portions of the work located away from the Property but intended
for use at the Property, and portions of the work in transit;
(iv)
Scaffolding, falsework, and temporary buildings located on the
Property; and
(v)
The cost of removing debris, including all demolition as made
legally necessary by the operation of any law, ordinance, or
regulation.
(3) Licensee or Licensee'(s) contractor(s) is responsible for paying any part of
any loss not covered because of application of a deductible contained in
the policy described above.
(4) Licensee or Licensee'(s) contractor shall buy and maintain equipment
breakdown insurance covering insured objects during installation and until
final acceptance by permitting authority. If testing is performed, such
insurance must cover such operations. The insurance must name Licensee,
all contractors, and all subcontractors in the work as insured.
(f) Protection and Indemnity Insurance (P&I). For each vessel owned, used, and/or
operated on the Property by Licensee or Licensee's contractor(s), Licensee or
Licensee's contractor(s) shall procure and maintain P&I insurance with limits of
liability not less than One Million Dollars ($1,000,000). The P&I insurance must
cover, at a minimum, all claims relating to injuries or damages to persons or
property, sustained in, on, or about the Property; fuel spills; wreck removal;
salvage; injuries to passengers and crew of the vessel; and damages to nets and
fishing lines.. If necessary, Licensee shall procure and maintain commercial
umbrella liability insurance covering claims for these risks.
(g) Hull Insurance. Licensee or Licensee's contractor(s) shall procure and
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maintain hull insurance for each vessel owned or operated by the Licensee or
Licensee's contractor(s) on the Property. The coverage amount of each hull
insurance policy must be equal to the value of the covered vessel.
10.4 Financial Security.
(a) On the Commencement Date of this Permit, Licensee is not required to procure
and maintain a corporate security bond or other financial security ("Security").
During the Term, State may require Licensee to procure and maintain Security
upon any of the events listed in Paragraph 10.4(c)(1). Licensee's failure to
maintain the Security in the required amount during the Term constitutes a breach
of this Permit.
(b) All Security must be in a form acceptable to 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 A.M. Best's Insurance Reports, unless
State approves an exception in writing. Licensee 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 of the Annual Fees, or
(ii) Upon a material change in the condition or disposition of any
Improvements, or
(iii) Upon a change in the Permitted Use, or
(iv) As a condition of approval of a sublicense.
(2) Licensee 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 breach by Licensee in its obligations under this Permit, State may
collect on the Security to offset the liability of Licensee to State. Collection on the
Security does not (1) relieve Licensee of liability, (2) limit any of State's other
remedies, (3) reinstate the License or cure the breach or (4) prevent termination of
the Permit because of the breach.
SECTION 11 MAINTENANCE AND REPAIR
11.1 State's Repairs. State shall not be required to make any alterations, maintenance,
replacements, or repairs in, on, or about the Property, or any part thereof, during the Term.
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11.2 Licensee's Repairs, Alteration, Maintenance and Replacement.
(a) Licensee shall, at its sole cost and expense, keep and maintain the Property and all
Improvements in good order and repair, in a clean, attractive, and safe condition.
(b) Licensee shall, at its sole cost and expense, make any and all additions, repairs,
alterations, maintenance, replacements, or changes to the Property or to any
Improvements on the Property that may be required by any public authority
having jurisdiction over the Property and requiring it for public health, safety
and welfare purposes.
(c) Except as provided in Paragraph 11.2(d), all additions, repairs, maintenance,
alterations, replacements or changes to the Property and to any Improvements
on the Property shall be made in accordance with, and ownership shall be
governed by, Section 7, above.
(d) 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 that does not require regulatory permits does not require
authorization from State pursuant to Section 7.
11.3 Limitations. The following limitations apply whenever Licensee conducts maintenance,
repair, replacement, alterations, or additions.
(a) Licensee shall not use or install treated wood on decks, pilings, or any other
structure at any location above or below water, except that Licensee may use
Ammoniacal Copper Zinc Arsenate (ACZA) treated wood for above water
structural framing. Licensee shall never use Chromated Copper Arsenate (CCA),
Alkaline Copper Quaternary (ACQ), or creosote -treated wood at any location.
(b) Licensee shall not use or install tires (for example, floatation or fenders) at any
location above or below water.
(c) Licensee shall install only floatation material encapsulated in a shell resistant to
ultraviolet radiation and abrasion. The shell must be capable of preventing
breakup and loss of floatation material into the water.
(d) Licensee shall orient night lighting to minimize the amount of light shining
directly on the water.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of any damage to or destruction of the Property or any Improvements,
Licensee shall immediately notify State, with subsequent written notice within
five (5) days.
(b) Licensee shall be solely responsible for the reconstruction, repair, or replacement
of any Improvements. If Licensee elects not to reconstruct, repair, or replace all or
a portion of any damaged Improvements, Licensee shall promptly remove any
damaged or destroyed Improvements and restore the Property to its condition
immediately preceding the damage or destruction. Where damage to state-owned
aquatic land or natural resources is attributable to the Permitted Use or related
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activities, Licensee shall promptly restore the lands or resources to the condition
immediately preceding the damage or destruction. All restoration, reconstruction,
repair, or replacement shall be performed in accordance with Paragraph 7.3.
12.2 State's Waiver of Claim. State does not waive any claims for damage or destruction of
the Property unless State provides written notice to Licensee of each specific claim waived.
12.3 Insurance Proceeds. Licensee's obligations in Paragraph 12(b) of this Permit are not
conditioned upon the availability of any insurance proceeds from which the cost of repairs,
reconstruction, replacement, removal, or restoration may be paid. The Parties shall use insurance
proceeds in accordance with Paragraph 10.2(g)(3).
12.4 Fees in the Event of Damage or Destruction. Unless the Parties agree to terminate this
Permit, there is no abatement or reduction in fees during such reconstruction, repair, and
replacement.
12.5 Breach at the Time of Damage or Destruction. If Licensee is in breach of the terms of
this Permit at the time damage or destruction occurs, State may elect to terminate the Permit
without giving Licensee an opportunity to cure the breach and State then shall have the right to
retain any insurance proceeds payable as a result of the damage or destruction.
SECTION 13 CONDEMNATION
In the event of condemnation, Licensee is not entitled to a condemnation award. The Permit does
not give Licensee any property right or interest and Licensee shall assert no claim of any interest
in this Permit or the underlying estate.
SECTION 14 TERMINATION
14.1 Termination for Breach. State may terminate this Permit upon Licensee's failure to cure
a breach of any of the terms and conditions of this Permit. State shall provide Licensee written
notice of breach. Unless expressly provided elsewhere in this Permit, Licensee shall have ten
(10) days after receiving notice to cure a breach relating to the payment of fees or other monetary
breaches and thirty (30) days after receiving notice to cure all other breaches. For nonmonetary
breaches, State may extend the cure period if a breach is not reasonably capable of cure within
thirty (30) days. The thirty (30) day cure period does not apply where State revokes the Permit
under Paragraph 3.4 or where State terminates this Permit under Paragraphs 10.2(f) or 12.5. The
remedies specified under this Paragraph 14.1 are not exclusive of any other remedies or means of
redress to which State is lawfully entitled for Licensee's breach or threatened breach of any
provision of this Permit.
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14.2 Termination by Licensee. Licensee may terminate this Permit upon providing State with
ninety (90) days written notice of intent to terminate. If Licensee terminates under this
Paragraph, Licensee shall take all actions required by Licensee upon termination of this Permit.
14.3 State's Right to Cure Licensee's breaches.
(a) If Licensee fails to cure a breach within the time provided in this Permit, State
may, without terminating this Permit, remedy the breach (in whole or in part) on
behalf of Licensee at Licensee's expense. Licensee shall pay State all costs,
expenses, fees, and damages incurred by State in connection therewith.
(b) If Licensee is in breach of the Permit, and State determines that such breach poses
an imminent threat of injury or damage to persons or property, State may take
actions to eliminate, mitigate, or remedy the imminent threat at Licensee expense.
On demand by State, Licensee shall pay State the amount of all costs, expenses,
and fees incurred by State in connection therewith.
(c) The rights given to State under Paragraph 14.3 shall neither impose a duty on
State nor excuse any failure on Licensee's part to comply with any term,
covenant, or condition of this Permit.
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SECTION 15 ENTRY BY STATE
State retains full possessory rights in the Property, including the right to access and enter the
Property at any time and for all purposes. Licensee grants State permission to enter upon or cross
Licensee's Improvements
SECTION 16 DISCLAIMERS AND RELEASES
16.1 No Quiet Enjoyment. This Permit grants no possessory rights to Licensee. State
expressly disclaims and Licensee expressly releases State from any claim for breach of any
covenant of quiet enjoyment with respect to use and occupation of the Property.
16.2 Structures Beyond Federal Pierhead Line or In Waterway Where No Pierhead Line.
Some or all of the Licensee -Owned Improvements are constructed in the waterway beyond the
federal pierhead line or in a waterway where there is no pierhead line. If a court with competent
jurisdiction over this matter determines that this Permit, the placement of the Improvements,
and/or the use of the Property by Licensee violates the prohibition against sale or lease of
waterways contained in RCW 79.120.010, this License shall terminate and Licensee shall take all
actions required of Licensee upon termination of this Permit. Licensee releases State ftom any
claims Licensee may have arising from any such decision or early termination, except for a
refund of fees as provided in this Paragraph. If Licensee has prepaid any fees, Licensee will be
entitled to a refund of the pre -paid fees attributable to the period following such early
termination.
SECTION 17 NOTICE AND SUBMITTALS
Following are the locations for delivery of notice and submittals required or permitted under this
Permit. Any Party may change the place of delivery upon ten (10) days' written notice to the
other.
State: DEPARTMENT OF NATURAL RESOURCES
Shoreline District
950 Farman Avenue North
Enumclaw, WA 98022
Licensee: CITY OF PORT ORCHARD
Public Works Department
216 Prospect Street
Port Orchard, WA 98366
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
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notices must identify the Permit 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 18 MISCELLANEOUS
18.1 Authority. Licensee and the person or persons executing this Permit on behalf of
Licensee represent that Licensee is qualified to do business in the State of Washington, that
Licensee has full right and authority to enter into this Permit, and that each and every person
signing on behalf of Licensee is authorized to do so. Upon State's request, Licensee shall provide
evidence satisfactory to State confirming these representations.
18.2 Headings. The headings used in this Permit are for convenience only and in no way
define, limit, or extend the scope of this Permit or the intent of any provision.
18.3 Entire Agreement. This Permit, including the exhibits, attachments, and addenda, if any,
contains the entire agreement of the Parties. This Permit merges all prior and contemporaneous
agreements, promises, representations, and statements relating to this transaction or to the
Property.
18.4 Waiver.
(a) The waiver of any breach of any term, covenant, or condition of this Permit is not
a waiver of such term, covenant, or condition; of any subsequent breach of the
same; or of any other term, covenant, or condition of this Permit. State's
acceptance of a 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 issuance of a new Permit to Licensee does not waive State's ability to pursue
any rights or remedies under the Permit.
18.5 Cumulative Remedies. The rights and remedies of State under this Permit are
cumulative and in addition to all other rights and remedies afforded by law or equity or
otherwise.
18.6 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of
this Permit.
18.7 Language. The word "Licensee" as used in this Permit applies to one or more persons
and regardless of gender, as the case may be. If there is more than one Licensee, their obligations
are joint and several. The word "persons," whenever used, shall include individuals, firms,
associations, and corporations. The word "Parties" means State and Licensee in the collective.
The word "Party" means either or both State and Licensee, depending on the context.
18.8 Invalidity. The invalidity, voidness, or illegality of any provision of this Permit does not
affect, impair, or invalidate any other provision of this Permit.
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18.9 Applicable Law and Venue. This Permit is to be interpreted and construed in
accordance with the laws of the State of Washington. Venue for any action arising out of or in
connection with this Permit is in the Superior Court for Thurston County, Washington.
18.10 Statutory Reference. Any reference to a statute or rule means that statute or rule as
presently enacted or hereafter amended or superseded.
18.11 Modification. No modification of this Permit is effective unless in writing and signed by
both Parties. Oral representations or statements do not bind either Party.
18.12 Survival. Any obligations of Licensee not fully performed upon termination of this
Permit do not cease, but continue as obligations of the Licensee until fully performed.
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18.13 Exhibits and Attachments. All referenced exhibits and attachments are incorporated in
the Permit 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 PORT ORCHARD
Dated: 6/4/2025 20 r6bGi r4aoVAQU ,
By: ROBERT BRYAN PUTAANSUU
Title: Mayor
Address: 216 Prospect Street,
Port Orchard, WA 98366
Phone: 360-876-4407
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
6/4/2025 741wav- �o2rwas
Dated: , 20
By: THOMAS GORMAN
Title: Aquatic Resources Division
Manager
Address: 950 Farman Street N
Enumclaw, WA 98022
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY & USE CLASSIFICATIONS
Agreement Number 20-C12074
1. LEGAL DESCRIPTION OF THE PROPERTY:
"THOSE PORTIONS OF STATE-OWNED AQUATIC LANDS MANAGED BY THE
DEPARTMENT OF NATURAL RECOURCES LOCATED WITHIN THE DEKALB
STREET WATERWAY AND THE AREA DEFINED AS "PUBLIC PLACE" ADJACENT
TO SAID WATERWAY AS SHOWN ON THE "PORT ORCHARD HARBOR" SURVEY
RECORDED FEBRUARY 12, 2002 UNDER AUDITORS FILE NUMBER 200202120130
FILED IN BOOK 57 OF SURVEYS PAGE(S) 59-63 RECORDS OF KITSAP COUNTY,
WASHINGTON."
2. SQUARE FOOTAGE OF EACH USE CLASSIFICATION:
Water -dependent
K
Water -dependent
that is public use and access 120,226
Nonwater-dependent 0
Water -oriented subject to water -dependent
rental rates 0
Water -oriented subject to nonwater-
dependent rental rates 0
Total Square Feet
120,226
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EXHIBIT B
1. DESCRIPTION OF PERMITTED USE
A. Existing Facilities. The Dekalb Pier is located on the southern shore of Sinclair Inlet in
Port Orchard. Surrounding land use includes residential and commercial facilities. The
adjacent properties are Sinclair Inlet Marina, authorized under Aquatic Land Lease No.
22-AO2730 and Port Orchard Railway Marina, authorized under Aquatic Land Lease No.
22-A74729.
The Dekalb Pier and dock have been in place since approximately 1988, and it operates
as first -come first -served public use and access moorage. The facility provides transient
daytime moorage for up to ten vessels. This pier does not allow for residential uses.
Moorage is permitted for a maximum of six (6) hours two (2) days per week between the
hours of 6:00 a.m. and 11:00 p.m. The Pier was first renovated in 2013 under agreement
No. 20-012074. The remainder of the improvements were installed in 2016 under
agreement No. 20-A 12074.
Improvements on the Property include approximately 90 feet of a portion of a 168-foot
pier that widens to a 30-foot by 18-foot viewing area with security gate at the terminus.
The pier has 100% grated surface, metal guardrails, and steel cross members. The pier is
upheld by creosote pilings. There is 275 feet of a steel entry pier with fiberglass grated
decking upheld by 3 concrete piling structures, an 80-foot steel gangway with fiberglass
grated decking, and a 260-foot floating moorage dock with aluminum framing and
fiberglass grated decking secured with 14 steel pilings. Improvements are fully grated
with Micromesh which provides 44% unidirectional open space and does not comply
with the requirements in Section 7.4(b). However, a determination was made to allow the
existing grating material to remain in place until the time of next replacement. The
moorage dock is supported with polytub floatation and HDPE rub strips on float framing.
There is no water or electric service on the dock, and no pumpout or fueling facilities are
present.
B. Proposed Work.
Licensee proposes no new facilities or Work.
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2. ADDITIONAL OBLIGATIONS
A. By June 1", 2026, Licensee shall post visible signage on the moorage float that includes
all national and state emergency reporting numbers for oil and chemical spills.
B. By June 1", 2026, Licensee shall post visible signage indicating the location of the
nearest upland restroom facility and sewage pumpout facility.
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