064-19 - State of Washington DNR - ContractHILARY S. FRANZ
COMMISSION:40PURL11C LAND$
WATERWAY PERMIT
Permit No. 20-1112074
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 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 this Agreement under Chapter 43.12, Chapter 43.30 and Title 79 RCW.
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.
(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.
Waterway Permit (June 2019) Pagel of 32 Permit No. 20-B 12074
(d) This License shall not be 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 the Property description provided in Exhibit A is a true and
accurate description of the Permit boundaries and the improvements to be
constructed or already existing on the Property. 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 a public use and access pier, catwalk,
ramp and moorage floats. Public use and access shall be managed and operated in conformance to
WAC 332-30-131, (the "Permitted Use"), and for no other purpose. This is a water -dependent use.
Exhibit B describes the Permitted Use in detail. The Permitted Use is subject to additional
obligations in Exhibit B. 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.
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.
(a) Licensee shall not cause or permit:
(1) Damage to natural resources,
(2) Waste, or
(3) Deposit of material, unless approved by State in writing. This prohibition
includes deposit of fill, rock, earth, ballast, wood waste, refuse, garbage,
waste matter, pollutants of any type, or other matter.
(b) The Permitted Use and Licensee's operations are subject to Washington
Administrative Code (WAC) 332-30-117, as amended.
Waterway Permit (June 2019) Page 2 of 32 Permit No. 20-B 12074
(c)
(d)
(e)
(fl
(g)
(h)
(i)
State may take any steps reasonably necessary to remedy any failure of Licensee to
comply with the limitations and requirements under this Paragraph 2.3. Upon
demand by State, Licensee shall pay all remedial costs and natural resources
damages.
Residential uses, as defined by WAC 332-30-106(62), are not permitted on the
Property.
Licensee shall not cause or permit grounding, scour, or damage to aquatic land and
vegetation. This prohibition includes the following limitations:
(1) 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:
(i) 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.
(ii) 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.
(iii) 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.
(2) Licensee shall avoid damage caused by propeller wash from vessels.
(3) Licensee shall not allow moorage or anchorage of vessels in water more
shallow than six (6) feet at the extreme low tide and shall not allow vessels
to come into contact with underlying bedlands ("ground out") at any time.
Licensee shall not install fixed breakwaters.
Licensee shall not construct or install new covered moorage or boat houses.
Nothing in this License shall be interpreted as an authorization to dredge the
Property. Licensee may submit an application in writing to State for authorization to
dredge the Property. Except as permitted under the terms of a separate written
authorization issued by State pursuant to Licensee's application, Licensee shall not
cause or permit dredging on the Property. State will not approve an application for
dredging unless:
(1) Required for flood control, maintenance of existing vessel traffic lanes, or
maintenance of water intakes;
(2) Consistent with State's management plans, if any; and
(3) State determines the dredging proposal is otherwise in the best interest of
the State. Licensee shall maintain authorized dredge basins in a manner that
prevents internal deeper pockets.
Licensee shall incorporate best management practices to prevent release of
chemical contaminants, wastewater, garbage, and other pollutants, as set forth in
Pollution Prevention for Washington State Marinas, available at
https://wsg.washington.edu/wordpress/wp-content/uploads/marina-handbook.pdf.
Waterway Permit (June 2019) Page 3 of 32 Permit No. 20-B 12074
Licensee shall comply with any revisions to these best management practices that
occur after the effective date of this permit. If Department of Natural Resources,
Department of Ecology, or any other regulatory agency 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 (the "Term"), beginning on the 1 st
day of October, 2019 (the "Commencement Date"), and ending on the 30th day of September,
2024 (the "Termination Date"), unless revoked, cancelled, or terminated sooner under the terms of
this 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) Upon the revocation, expiration, cancellation, or termination of this Permit
(hereafter collectively referred to in this Permit as "termination of this Permit"),
Licensee shall remove Improvements in accordance with Section 7, vacate the
Property, and restore the Property to the same or better condition like its natural
state before Licensee's use of the Property, reasonable wear and tear excepted.
(b) Definition of Reasonable Wear and Tear.
(1) Reasonable wear and tear is deterioration resulting from the Permitted Use
that has occurred without neglect, negligence, carelessness, accident, or
abuse of the Property by Licensee or any other person on the premises with
the permission of Licensee.
Waterway Permit (June 2019) Page 4 of 32 Permit No. 20-B 12074
(2) Reasonable wear and tear does not include unauthorized deposit of material
prohibited under Paragraph 2.3 regardless of whether the deposit is
incidental to or the byproduct of the Permitted Use.
(3) Reasonable wear and tear does not include any damage to the Property or
natural resources that results from Licensee's failure to comply with the
restrictions, limitations, and requirements set forth in this Permit.
(c) If Property is in worse condition on the date of termination of this Permit than
before Licensee's use of the Property, excepting for reasonable wear and tear, the
following provisions apply.
(1) State shall provide Licensee a reasonable time to take all steps necessary to
remedy the condition of the Property. State may require Licensee to enter
into a right -of -entry or other use authorization prior to the Licensee entering
the Property if the Permit has terminated.
(2) If Licensee fails to remedy the condition of the Property in a timely manner,
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 any
material deposited improperly on the Property, lost revenue resulting from
the condition of the Property, and administrative costs associated with
State's remedy.
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, as amended, 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 State. 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) For the Term, Licensee shall pay to State a fee of Zero Dollars ($0.00).
(b) The fee is due and payable in full on or before the Commencement Date. 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
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.
Waterway Permit (June 2019) Page 5 of 32 Permit No. 20-B 12074
(d) Public Use and Access. This Permit allows for free or reduced fees for areas that
meet the public use and access requirements of WAC 332-30-131. If Licensee's use
of these areas cease to meet the requirements for free or reduced fees in WAC 332-
30-131, State will charge Licensee a fee for using this area based on water -
dependent use.
4.2 Payment Place. Licensee shall make payment to Financial Management Division, I I I I
Washington St SE, PO Box 47041, Olympia, WA 98504-7041.
4.3 Adjustment Based on Use. The fee is based on the designation of Licensee's Permitted
Use of the Property and the square footage of each designation, as described in Section 2 above. If
Licensee's Permitted Use designation or the square footage of a designation changes, the fee shall
be adjusted as appropriate for the changed use. The Permitted Use designation or the square
footage of a use designation shall not be changed or modified without the written consent of State,
which shall be at State's sole discretion.
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.
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 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. Failure to pay fees is a breach by the Licensee. State may seek
remedies under Section 14 as well as late charges and interest as provided in this Section 6.
Waterway Permit (June 2019) Page 6 of 32 Permit No. 20-B 12074
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 of any kind, 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
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. This includes, but is not limited to, structures
and fixtures.
(b) "Personal Property" means items that can be removed from the Property without (1)
injury to the Property, or Improvements or (2) diminishing the value or utility of the
Property, or Improvements.
Waterway Permit (June 2019) Page 7 of 32 Permit No. 20-B 12074
(c) "State -Owned Improvements" are Improvements made or owned by State. State -
Owned Improvements includes any construction, alteration, or addition to State -
Owned Improvements made by Licensee.
(d) "Licensee -Owned Improvements" are Improvements authorized by State and (1)
made by Licensee or (2) acquired by Licensee from a previous occupant of the
Property.
(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 the State.
(f) "Improvements Owned by Others" are Improvements made by Others with a right
to occupy or use the Property or adjacent state-owned lands.
7.2 Existing Improvements. On the Commencement Date, the following Improvements are
located on the Property: One pier, one (1) 90 foot long by 5 foot wide catwalk with six (6) 12-
inch diameter steel piles; one (1) 80 foot long by 5 foot wide grated gangway; 260 feet of 9 foot
wide moorage floats; one (1) 16 foot long by 12 foot wide landing float; and fourteen (14) 18-
inch diameter steel pilings. The Improvements are Licensee -Owned Improvements. 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"). Restoration of the
Property to a condition like its natural state before Licensee's use of the Property
is also considered to be Work.
(b) All Work must conform to requirements under Paragraph 7.4. Paragraph 11.3,
which applies to routine maintenance and minor repair, also applies to all Work
under this Paragraph 7.3.
(c) Except in an emergency, Licensee shall not conduct Work without State's prior
written consent, as follows:
(1) State may deny consent if State determines that denial is in the best
interests of the State or if proposed Work does not comply with Paragraph
7.4 and 11.3. State may impose additional conditions reasonably intended
to protect and preserve the Property. If Work is for removal of
Improvements at End of Term, State may waive removal of some or all
Improvements.
(2) Except in an emergency, 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 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.
(3) State will not approve plans to construct new Improvements on the
Property that are not capable of ready removal.
(4) State will not approve plans to construct new Improvements or expand
existing Improvements in or over habitats designated by State as important
habitat. Licensee shall confirm location of important habitat on Property,
Waterway Permit (June 2019) Page 8 of 32 Permit No. 20-B 12074
if any, with State before submitting plans and specifications in accordance
with Paragraph 7.3.
(d) Licensee shall notify State of emergency Work within five (5) business days of the
start of such Work. Upon State's request, Licensee shall provide State with plans
and specifications or as-builts of emergency Work.
(e) 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 are paid in full, including all
laborers and material persons.
(2) Obtained all required permits.
(f) Before completing Work, Licensee shall remove all debris and restore the Property
to an orderly and safe condition. If Work is intended for removal of Improvements
at End of Term, Licensee shall restore the Property in accordance with Paragraph
3.3, End of Term.
(g) Upon completing work, Licensee shall promptly provide State with as -built plans
and specifications.
(h) State shall not charge fees for authorized Improvements installed by Licensee
during this Terns of this Permit, 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 Improvements to be removed 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, as
amended, or as otherwise directed by the Washington Department of Fish and
Wildlife (WDFW), United States Fish and Wildlife Service (USFWS), or National
Marine Fisheries Service (NMFS).
(c) Licensee shall not provide anchorage or moorage in water more shallow than six (6)
feet (1.8 meters) at the extreme low tide.
(d) 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 (50) percent of the surface area; grating material must have at least
sixty (60) percent functional open space or forty (40) percent or greater multi-
directional open space. For gangways and decks, Licensee shall install grating on
one hundred (100) percent of the surface area; grating material must have at least
sixty (60) percent functional open space or forty (40) percent or greater multi-
directional open space.
Waterway Permit (June 2019) Page 9 of 32 Permit No. 20-B 12074
7.5 Licensee -Owned Improvements at Termination of Permit.
(a) Disposition.
(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 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.
(b) Conditions Under Which State May Waive Removal of Licensee -Owned
Improvements.
(1) State may waive removal of some or all Licensee -Owned Improvements
whenever State determines that it is in the best interests of the State 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:
(1) Licensee must notify State at least one (1) year before the
Termination Date of its request to leave Licensee -Owned
Improvements.
(ii) State, within ninety (90) days of receiving Licensee's notification,
will notify Licensee whether State consents to some or all 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) Licensee shall not remove Improvements if State waives the requirement for
removal of some or all Licensee -Owned Improvements.
(2) Licensee shall maintain such 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 Disposition of 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 Licensee
fails to remove the Unauthorized Improvements, State may remove the
Unauthorized Improvements and Licensee shall pay for the cost of removal and
Waterway Permit (June 2019) Page 10 of 32 Permit No. 20-B 12074
disposal. If State requires removal, 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
removal.
(d) 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 disposition of such improvements shall be governed by
Paragraph 7.5. If State consents to the Unauthorized 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 Disposition of 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 to any Improvements
resulting 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 apply proceeds first
to the State's costs in removing the Personal Property and conducting the
sale, second to payment of any amount that then may be due from the
Licensee to the State, and 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
standard of care applicable under the Washington State Model Toxics Control Act
("MTCA"), Chapter 70.1051) RCW, as amended.
(d) "Licensee and affiliates" when used in this Section 8 means Licensee or Licensee's
contractors, agents, employees, guests, invitees, licensees, affiliates, or any person
on the Property with the Licensee's permission.
Waterway Permit (June 2019) Page 11 of 32 Permit No. 20-B 12074
(e) "Liabilities" as used in this Section 8 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and
disbursements), penalties, or judgments.
8.2 General Conditions.
(a) 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. Hazardous
Substances may exist in, on, under, or above the Property.
(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 and/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, U.S.
Environmental Protection Agency 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.
Waterway Permit (June 2019) Page 12 of 32 Permit No. 20-B 12074
(1) Licensee shall not allow work on overwater structures or vessels without
protective measures to prevent discharge of toxins to the water, including:
(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 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 not use or allow use of a pressure washer at any location
above the water surface to clean any item that uses petroleum products.
(5) 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.
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 Environmental Protection Agency,
the Washington State Department of Ecology, health department, or other
similar environmental agencies; and
(2) Potentially liable or responsible parties who are the subject of an order or
consent decree that requires access to the 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:
Waterway Permit (June 2019) Page 13 of 32 Permit No. 20-B 12074
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability
related to, or derived from, the presence of Hazardous Substances;
(3) Any lien or action arising from Hazardous Substances;
(4) Any actual or alleged violation of any federal, state, or local statute,
ordinance, rule, regulation, or other law pertaining to Hazardous Substances;
(5) Any notification from the US Environmental Protection Agency (EPA) or
the Washington State Department of Ecology (DOE) that remediation or
removal of Hazardous Substances is or may be required at the 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 Pollution Discharge
and Elimination System Permits; Army Corps of Engineers permits; State
Hydraulic Project Approvals (HPA); State Water Quality certification; Substantial
Development permit; and any reporting necessary for the existence, location, and
storage of Hazardous Substances on the Property.
8.7 Indemnification.
(a) Licensee shall fully indemnify, defend, and hold State harmless from and against
Liabilities that arise out of, or relate to:
(1) The use, storage, generation, processing, transportation, handling, or
disposal of any Hazardous Substance by 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 State harmless 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 State harmless from and against Liabilities arising
from the acts or omissions of third parties in relation to the release or threatened
release of Hazardous Substances.
8.8 Reservation of Rights.
(a) For Liabilities not covered by the indemnification provisions of Paragraph 8.7, the
Parties expressly reserve and do not waive any rights, claims, immunities, causes of
action, or defenses relating to Hazardous Substances that either Party may have
against the other under law.
(b) The Parties expressly reserve all rights, claims, immunities, and defenses either
Party may have against third parties. Nothing in this Section 8 benefits, or creates
rights for third parties.
Waterway Permit (June 2019) Page 14 of 32 Permit No. 20-B 12074
(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) 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) calendar days advance notice in non -
emergencies 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) calendar days of a written
request by the other Party, unless Tests are part of a submittal under Paragraph
8.6(c) in which case 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.
SECTION 9 NO ASSIGNMENTS
This Permit is granted only to Licensee and is not transferable or assignable in whole or in part.
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
10.1 Indemnity.
(a) Licensee shall indemnify, defend, and hold State, its employees, officers, and
agents harmless from any and all Claims arising out of the Permitted Use and/or the
Waterway Permit (June 2019) Page 15 of 32 Permit No. 20-B 12074
use of the Property by Licensee, its 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 the Property, diminution in value, and/or damages resulting from loss of
use of the Property.
(c) State shall not require Licensee to indemnify, defend, and hold State harmless for
claims caused solely by or resulting solely from the negligence or willful act of the
State or State's elected officials, employees, or agents.
(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/or hold State and its agencies, officials, agents,
or employees harmless. Further, the indemnification obligation under this License
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,
suit, or action for injuries or damage is caused by or results from the concurrent
negligence of (a) the State or State's agents or employees and (b) the Licensee or
Licensee's 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 State harmless 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 of this
Permit, 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 Best's 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.
Waterway Permit (June 2019) Page 16 of 32 Permit No. 20-B 12074
(3) All general liability, excess, umbrella, builder's risk, and pollution legal
liability insurance policies must name the State of Washington, the
Department of Natural Resources, its elected and appointed officials,
agents, and employees as an additional insured by way of endorsement.
(4) All property insurance must name the State of Washington, the
Department of Natural Resources, its elected and appointed officials,
agents, and employees as loss payees.
(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.
(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 additional insureds and the
Permit number.
(3) Receipt of such certificates, endorsement or policies by State does not
constitute approval by State of the terms of such policies.
(d) State must receive written notice before cancellation or non -renewal of any
insurance required by this 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 described above within
fifteen (15) days after Licensee receives a notice to comply from State, State may
either:
(1) Terminate this Permit, or
Waterway Permit (June 2019) Page 17 of 32 Permit No. 20-B 12074
(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 6.2 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 the 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 and/or arising out of the
Permitted Use and, if necessary, commercial umbrella insurance with a
limit of not less than One Million Dollars ($1,000,000) per each
occurrence. If such CGL or MGL insurance contains aggregate limits, the
general aggregate limit must be at least twice the "each occurrence" limit.
CGL or MGL insurance must have products -completed operations
aggregate limit of at least two times the "each occurrence" limit.
(2) CGL insurance must be written on Insurance Services Office (ISO)
Occurrence Form CG 00 01 (or a substitute form providing equivalent
coverage). All insurance must cover liability arising out of premises,
operations, independent contractors, products completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract (including the tort liability of another party assumed in a
business contract) and contain separation of insured (cross -liability)
condition.
(3) MGL insurance must have no exclusions for non -owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) 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 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
required by law to provide benefits to or obtain coverage for such
employees, Licensee shall indemnify State. Indemnity shall
Waterway Permit (June 2019) Page 18 of 32 Permit No. 20-B 12074
(c)
(d)
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 688) 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.
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.
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. The
policy must include State as a loss payee.
(2) Licensee shall buy and maintain equipment breakdown insurance required
by contract documents or by law, 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
arching or pipes.
(3) In the event of any loss, damage, or casualty which is covered by one or
more of the types of insurance described above, the Parties to this Permit
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:
(1) 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 quality
and usefulness at least equivalent to or more suitable than, damaged
building(s) and/or Improvements.
Waterway Permit (June 2019) Page 19 of 32 Permit No. 20-B 12074
(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 subcontractors in the
work as insured. State must be named additional insured as required by
Paragraph 10.2(a)(3).
(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 required by contract documents or by law, 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
subcontractors in the work as insured. State must be named additional
insured as required by Paragraph 10.2(a)(3).
(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.
Waterway Permit (June 2019) Page 20 of 32 Permit No. 20-B 12074
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 of this Permit, 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 the State.
(1) Bonds must be issued by companies admitted to do business within the
State of Washington and have a rating of A-, Class VII or better, in the
most recently published edition of Best's Reports, unless State approves
an exception. 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
(1) 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.
(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 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.
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 (regardless of ownership) in good order and repair, in a clean,
attractive, and safe condition.
Waterway Permit (June 2019) Page 21 of 32 Permit No. 20-B 12074
(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 which 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 Section 11.2(d), all additions, repairs, 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 or replacement.
(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 flotation material into the water.
(d) Licensee shall orient night lighting to minimize the amount of light shining
directly on the water.
(e) Licensee shall not allow new floating structures to come in contact with
underlying bedlands ("ground out"). Licensee must either (1) locate all new
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.
SECTION 12 DAMAGE OR DESTRUCTION
12.1 Notice and Repair.
(a) In the event of damage to or destruction of the Property or Improvements, Licensee
shall promptly give written notice to State. State does not have actual knowledge of
the damage or destruction without Licensee's written notice.
(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
Waterway Permit (June 2019) Page 22 of 32 Permit No. 20-B 12074
aquatic land or natural resources is attributable to the Permitted Use or related
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 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 Paragraph 10.2(f) or 12.4. The
remedies specified under this Paragraph 14.1 are not exclusive of any other remedies or means of
redress to which the State is lawfully entitled for Licensee's breach or threatened breach of any
provision of this Permit.
Waterway Permit (June 2019) Page 23 of 32 Permit No. 20-B 12074
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.
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 cross Licensee's
upland and aquatic land property to access the Property.
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 from 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 Ave. North
Enumclaw, WA 98022
Licensee: CITY OF PORT ORCHARD
Public Works Department
216 Prospect Street
Port Orchard, WA 98366
Waterway Permit (June 2019) Page 24 of 32 Permit No. 20-B 12074
The Parties may deliver any notice in person, by facsimile machine, or by certified mail.
Depending on the method of delivery, notice is effective upon personal delivery, upon receipt of a
confirmation report if delivered by facsimile machine, or three (3) days after mailing. All notices
must identify the 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.
Waterway Permit (June 2019) Page 25 of 32 Permit No. 20-B 12074
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.
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.
Dated: =1} 14� _. 1. , 20 I
CITY OF PORT ORCHARD
By: ROBIC
BRYAN PUTAANSUU
Title: Mayor
Address: 216 Prospect Street
Port Orchard, WA 98366
Phone: 360-876-4407
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Dated: , 200 i4w�
By: KRISTI SWENDDAL
Title: Aquatics Division Supervisor
Address: 950 Farman Ave. North
Enumclaw, WA 98022
Master Approved as to form
14`h day of June 2019
Jennifer Clement, Assistant Attorney General
Waterway Permit (June 2019) Page 26 of 32 Permit No. 20-B 12074
EXHIBIT A
Global Positioning System Data Site Diagram
Agreement Number 20-B12074
Diagram of GPS
Control /
No Scale
-rcl
?-s^st�x qr
GPS Control Point Positions
(M&M)
& nwtan
Air N-57413.6D6 E-355049141
Ome
N-61753.961 E»364304.156
Rom
N-61-1.118 E-364677A24
.apu
N-619NA29 E-3W75.333
Amy
N-6W-3.AS8 E-365517.770
NM 61(04.612 E-364085,799
@tot
N.a61(M 525 E.-364863.094
rk,g Old
N-8.3296.456 E-3639D0.280
Hsc1
N-60877.786 E-362901.30S
Ferl
N«61921 340 E-364269. 170
SKi
N-616AM E-164278.841
Tv
N«+61609.757 E-36182'.499
4's 002A
N-61536,043 E-1Q650.687
Exktrlf .wNwing
On, tv PdaT ORrx4RD
I.,w Yumbprs 2v-Aim:,
orn�a :.
Ikkalh.Ar"tWatertEr.Y 1
Sham and rkkkluds ofSWlxap
>nwfrw
part— vj Gontmvknd L bb 2 and
�varcirnrc
Z6-T+ranship 2i .Vvrtk-Raagc r East W.V.
'NafV'!R{ber S 2m
Ward4'4
Mld3i L Nwn[�fer
x� �Awu�WiW
m�naex'ax
E""went and hn¢dv
xr 7'dxslsiir8e, ELW :r A MO —§ Up..
ph —,Le - Thr_ ,,fti ,i pew*- 4 —v h kx
' - "'m1::hr FKf—O fen&"& <a ,A
X is A—A-v %—bid mW 3pxAkA n Ftv —.q
CPS L* eve 900x-4 T-11,-p ri venous S E3 up4l,d
A,"1, F969 im C—p i::, t7K6rr, 1 S—w ,C.Fxsxs Tien
xeae inaSe txy reki &axwe. r�.��,�e. »r�ra�.,>•.t
lax�s aer l:irsnl FAx+r„em hiuwns Yaiaxti.
L S �,
No Scale
& +qp, *.d.p C—,A a S.O..— NvsN
7 rNA175I{*Y8,G dDM.iosed*—CbW
P.wi�wc5 rGPSinatn!{sqA Azeavzy R.mr. as
\nmr! �2tARY1 Cnera! Ss:xa du:# Mmdn.
Ferlsp k'.h 3'' i.' i; 6@sex -r 4x�hewe C :d
:Sr<nw k s .d�Coax _umem :n "s�dma
xod *t
S
►la
- � �'r�i
7{
�
' rS
w
dais• of
� �:��
e
�.
i fI+
(Aners.n.ws Fwxl II Lio.rsirarLatF
�
1 E
�!
1
E
,+-I I f4'ti4,+
�ftM Bl Bb
Waterway Permit (June 2019) Page 27 of 32 Permit No. 20-B 12074
Waterway Permit (June 2019) Page 28 of 32 Permit No. 20-B 12074
Exhibit Showing
CITY OF PORT ORCHARD
Lease Ni anbers 20-A12074
tasted rA
Dekalb Street Waterauy
heiuy a;—b-
Shore and T4M, ands of Sidne y
f-61W
porti,ow of f;mwmnent Lots 2 aaef
Section 26-Trrfnaship 2, North -Range
XaVemfvr 5, 2013
Scale 1 -10y'
a2nxv k"d ran 9ysWw
valfizae.vauszFtycdMW4�, 171dmt
affezrmr tAasMrrN"Jsr fFf(i:a°!c�l�tk,tra�:y
Netark ARFilXWCkul2d9stla3e!5 tta'bxk
\
pmd^Ykwug4Nfr25'S3-E!w¢ fk
5awifm3 C1RtlCt} Qi1.1t9S :b @tdklxA�fffi CtBSIR
od26.
jf
k
V,
sue- _�-
Str
166
\,; SCR - zEi�$rreta Job 6ES6
As shown on that unrecorded Exhibit for the City of Port Orchard Lease Number
20-A12074, dated November 5, 2013, by Ward C. Muller PLS, of Ward C. Muller
and Associates. On file at the Washington State Department of Natural Resources
Title and Records Office under DNR File 20-B 12074.
Waterway Permit (June 2019) Page 29 of 32 Permit No. 20-B 12074
1. SQUARE FOOTAGE OF EACH USE CLASSIFICATION:
Water -dependent
Water -dependent use
that is Public Use and Access
Nonwater-dependent
Total Square Feet
A
83,073 SF
Q
83,073 SF
Waterway Permit (June 2019) Page 30 of 32 Permit No. 20-B 12074
PLAN OF OPERATIONS
EXHIBIT B
1. DESCRIPTION OF PERMITTED USE
A. Existing Facilities. Licensee owns and operates the Dekalb Pier as a public access
facility within the Dekalb Waterway, Sinclair Inlet. The facility includes:
One (1) Pier which is 168 feet long by 10 feet wide. The pier widens to a 30
foot x 18 foot viewing area at the terminus. The pier was renovated in 2013
as Phase 1 of a facility renovation. The pier renovations included replacing
the treated wood decking with a 100% grated surface, metal guardrails and
replacement of treated wood cross members with steel. The city evaluated
the creosote support piling prior to replacing the decking and found the
pilings to be structurally sound. The original creosote pilings were retained
during the 2013 renovation.
• One (1) 90 foot long by 5 foot wide catwalk supported by six (6) 12-inch
diameter steel piles;
• One (1) 80 foot long by 5 foot wide grated gangway;
• One (1) 16 ft. long by 12 ft. wide landing float;
• Two Hundred Sixty (260) feet of 9 foot wide moorage floats; and
• Fourteen (14) 18-inch diameter steel pilings.
The pier is operated as first -come first -served public use and access moorage. No
residential uses, overnight moorage or commercial uses are allowed at the moorage
floats. The pier was renovated in 2013 under agreement 20-012074. The rest of the
improvements were installed in 2016 under agreement 20-A12074.
B. Proposed Work.
Licensee proposes no new facilities or Work.
2. ADDITIONAL OBLIGATIONS
State has not authorized Licensee to conduct any Work on the Property. Where Work will need to
be conducted to meet the Additional Obligations below, Licensee shall obtain State's prior written
consent in accordance with Section 7.3 of this License and obtain all necessary regulatory permits
prior to commencing such Work.
a. Licensee shall post clearly all national and state oil and chemical spill hotlines.
Waterway Permit (June 2019) Page 31 of 32 Permit No. 20-B 12074
b. Licensee shall post clearly the location of the nearest upland restroom facility and
sewage pumpout facility.
Licensee shall post the Property with no -wake advisories.
d. Licensee shall orient and shield lighting fixtures attached to overwater structures in
a manner which 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:
(1) 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, and
(iv) Licensee shall use lights that are "warm -white" or filtered.
Master approved as to form this
14th day of June 2019
Jennifer Clements, Assistant Attorney General
Waterway Permit (June 2019) Page 32 of 32 Permit No. 20-B 12074