HomeMy WebLinkAboutIL057 Interlocal Agreement INTERLOCAL AGREEMENT
Regarding
FIDALGO BAY HABITAT SITE
BETWEEN
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THE PORT OF ANACORTES,
a municipal corporation of the State of Washington,
and
THE CITY OF ANACORTES,
a municipal corporation of the State of Washington.
1NTERLOCAL AGREEMENT
FIDALGO BAY HABITAT MITIGATION SITE
THIS INTERLOCAL AGREEMENT (the "Agreement"), dated this 14th day of January,
2008, is made pursuant to Ch. 39.34 RCW, by and between THE PORT OF ANACORTES (the
"Port"), a Washington municipal corporation; and THE CITY OF ANACORTES (the "City"), a
Washington municipal corporation (collectively, the "Parties").
WHEREAS, the Port is in the process of modernizing and upgrading the public
infrastructure on Port marine terminal properties along the south side of Guemes Channel in
Anacortes, Washington; and
WHEREAS, the Port is implementing Project Pier 1, which will improve the Port's upland
marine terminal capacity.currently used as a shipyard and modify the public waterway to
increase operational flexibility and capacity of the Pier 1 shipyard; and
WHEREAS, dredging for Project Pier 1 will affect intertidal and subtidal habitat;
therefore, aquatic mitigation is a necessary component of Project Pier 1; and
WHEREAS, to mitigate impacts on aquatic habitat(specifically eelgrass), the Port will
construct and maintain an eelgrass mitigation site located on six (6) acres in Fidalgo Bay (the
"Mitigation Project"); and
WHEREAS, the State of Washington acting by and through the Department of Natural
Resources (the "DNR") is the owner of the aquatic lands known as Fidalgo Bay; and
WHEREAS, the City intends to enter into an Aquatic Lands Commercial Lease (the
"Lease") with DNR (the "Department") for the lease of the Fidalgo Bay aquatic lands; and
WHEREAS, the Port and the City agree to work together so that the Port may use all of
the Fidalgo Bay aquatic lands leased by the City from DNR to construct and maintain the
Mitigation Project.
NOW THEREFORE, for and in consideration of the mutual terms and conditions
contained herein, the Parties hereby agree as follows:
1. Purpose. The purpose of this Agreement is to establish the rights and understandings of the
Parties with regard to Port's sublease of state owned aquatic lands at Fidalgo Bay for the
Mitigation Project.
1.1. The Mitigation Project is a water dependent use as the term is defined in WAC 332-30-
106 (71) and is a "Permitted Use" as the term is defined in the Lease.
2. Lease. Attached hereto as Exhibit "A" is the Lease between the City and DNR. This
Agreement shall act as an exclusive sublease of all of the leasehold described in the Lease (the
"Mitigation Project Area"). This Agreement shall be subject to all the terms and conditions of the
Lease. In the event that a term or condition of this Agreement conflicts with a term or condition
of the Lease, the Lease shall control.
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2.1. Modification of the Lease_ The City shall not agree to any modification, renewal
or other change in the terms or conditions of the Lease without the written consent of the Port,
which consent shall not be unreasonably withheld.
3. Term. The term of this Agreement shall commence upon the occurrence of both of the
following events: (1) when the Agreement is executed by the Port and the City; and (2) when
the City enters into the Lease with DNR. The term of this Agreement shall be for a period of
thirty (30) years and terminate at the same time as the Lease terminates either by expiration or
otherwise.
4. Lease Payments. The Port shall reimburse the City for its annual lease payment to DNR as
follows:
(i) The City will provide to the Port a copy of the annual DNR lease payment invoice,
upon which the Port will issue a check to the City for the exact amount of the invoice. The lease
payment amount may vary each year (the 2006 amount was $2,678.95 and the 2007 amount
was $2,803.20) and is based on the DNR valuation of the aquatic lease area. The payment is
indexed every year based on the Producer Price Index (a marker of inflation). Every fourth year
the lease area is re-valued based on nearby upland property valuation by the Skagit County
Assessor, which is then discounted 70 percent. The first re-valuation will be in 2010.
5. Port Responsibilities. The Port shalt:
(i) construct and operate the Mitigation Project at the sole expense of the Port; and
(ii) not take any action or omit to take any action that would cause a default under the
terms and conditions of the Lease; and
(iii) provide, within three (3) days of receipt by the Port, copies of all notices or
correspondence received from DNR concerning the Lease.
5.1. Funding_ The Mitigation Project will be funded by a grant received by the Port in
2005 from Skagit County's Economic Development Public Facilities Distressed/Rural County
Sales and Use Tax.
5.2. Removal of Mitigation Project Improvements Upon Lease Termination. The
nature of the Mitigation Project Improvements is such that it will become appurtenant to the real
property and therefore shall not be removed at the conclusion of the Lease unless requested to
do so by the Department under the terms of the Aquatic Lands Commercial Lease.
6. City Responsibility. The City shall:
(i) promptly pay when due all rents and charges owed to DNR under the terms and
conditions of the Lease; and
(ii) not take any action or omit to take any action that would cause a default under the
terms and conditions of the Lease; and
(iii) provide, within three (3) days of receipt by the City, copies of all notices provided
by the City or by DNR under the Lease or correspondence from the City to DNR or from DNR to
the City concerning the Lease; and
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(iv) keep the Port reasonably apprised of any actions undertaken by the City with
regard to the Lease or to cure any default under the Lease.
7. City Support with Regulatory Agencies. The City will cooperate and support the
application of the Port with regulatory agencies to permit the construction and operation of the
Mitigation Project.
8. City Indemnification. To the extent permitted by law, the City shall save, defend and hold
the Port, its elected officials, employees and agents harmless from any claims, demands,
damages, fines or losses arising from any act or omission by the City, its elected officials,
employees or agents related to the Lease or the Mitigation Project. Without limiting the
foregoing, the City shall save, defend and hold the Port harmless from any claims, demands,
damages or losses arising from a default by the City of the Lease. In the case where the claim,
demand, damage or loss of the Port is caused by the concurrent or joint negligence or
intentional conduct of the City its elected officials, employees or agents and the concurrent or
joint negligence or intentional conduct of the Port its elected officials, employees or agents then
the responsibility for such claim, demand, damage or loss shall be apportioned on the basis of
fault.
9. Port Indemnification. To the extent permitted by law, the Port shall save, defend and hold
the City, its elected officials, employees and agents harmless from any claims, demands,
damages, fines or losses arising from any act or omission by the Port, its elected officials,
employees or agents related to the Lease or the Mitigation Project. Without limiting the
foregoing, the Port shall save, defend and hold the City harmless from any claims, demands,
damages or losses arising from a violation of any term or provision of the Lease by the Port. In
the case where the claim, demand, damage or loss of the City is caused by the concurrent or
joint negligence or intentional conduct of the City its elected officials, employees or agents and
the concurrent or joint negligence or intentional conduct of the Port its elected officials,
employees or agents then the responsibility for such claim, demand, damage or loss shall be
apportioned on the basis of fault.
9.1. Lease Indemnification. To the extent permitted by law and without limiting the
foregoing indemnification the Port and the City shall each save defend and hold the other
harmless for any claims, demands, damages, fines or losses asserted by DNR under Section 8
or Section 10 of the Lease to the extent and in proportion that such claim, demand, damage,
fine or loss is caused the negligent or willful act of the indemnifying party, its elected officials,
employees and agents.
10. No Privity Between the Port and DNR. The Parties recognized and agree that there is no
privity of contract between the Port and DNR and that this Agreement does not create such
contractual privity.
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11. Insurance. The Port shall obtain and maintain the insurance required under the Lease
naming the City as an additional insured under such policies of insurance. The Port shall
provide the City and DNR with evidence of such insurance coverage.
12. Survivability. All covenants, promises and performance which are not fully performed as
of the date of termination shall survive termination as binding obligations.
13. Notices. All notices, demands, requests, consents and approvals which may, or are
required to be given by any party to any other party hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally, sent by facsimile, sent by a nationally
recognized overnight delivery service, or if deposited in the United States mail and sent by
registered or certified mail, return receipt requested, postage prepaid to:
The Port: Port of Anacortes
ATTN: R.W. Hyde, Executive Director
P.O. Box 297
Anacortes, WA 98221-0297
The City: City of Anacortes
ATTN: Dean Maxwell, Mayor
P.O. Box 547
Anacortes, WA 98221
or to such other address as the foregoing parties hereto may from time-to-time designate in
writing and deliver in a like manner. All notices shall be deemed complete upon actual receipt
or refusal to accept delivery. Facsimile transmission of any signed original document, and
retransmission of any signed facsimile transmission shall be the same as delivery of an original
document.
14. Waiver. No failure by any of the foregoing parties to insist upon the strict performance of
any covenant, duty, agreement, or condition of this Agreement or to exercise any right or
remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or any
other covenant, agreement, term or condition. Any party hereto, by notice, and only by notice
as provided herein may, but shall be under no obligation to, waive any of its rights or any
conditions to its obligations hereunder, or any duty, obligation or covenant of any other party
hereto. No waiver shall affect or alter this Agreement, and each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof.
15. Captions. The captions of this Agreement are for convenience and reference only and in
no way define, limit, or describe the scope or intent of this Agreement.
16. Severability. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never been contained
herein.
17. Neutral Authorship. Each of the provisions of this Agreement has been reviewed and
negotiated, and represents the combined work product of all parties hereto. No presumption or
other rules of construction which would interpret the provisions of this Agreement in favor of or
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against the party preparing the same shall be applicable in connection with the construction or
interpretation of any of the provisions of this Agreement.
18. Amendment. No modification, termination or amendment of this Agreement may be made
except by written agreement signed by all the Parties, except as provided herein.
19. Additional Acts. The Port and the City recognize and expect that additional acts will be
required to achieve the intent of this Agreement. Therefore, the Port and the City shall take
whatever additional acts which may be reasonably required to achieve the purposes of this
Agreement.
19.1. DNR Approval. The City shall obtain DNR's written approval of this Agreement
and provide a copy of the written approval to the Port. The Port will cooperate with the City in
obtaining this approval.
20. Governing Law. This Agreement and the rights of the Parties hereto shall be governed by
and construed in accordance with the laws of the State of Washington and the Parties agree
that in any such action, venue shall lie exclusively in Skagit County, Washington.
21. Entire Agreement. The entire agreement between the Port and the City hereto is
contained in this Agreement, and this Agreement supersedes all of the previous understandings
and agreements, written or oral, between the Parties with respect to the subject matter of this
Agreement.
22. Execution. The persons signing below represent and warrant that they have the requisite
authority to bind the Party on whose behalf they are signing.
IN WITNESS HEREOF, the Port and the City have caused this Agreement to be
executed in their names and to be attested by their duly authorized officers this 14th day of
January, 2008.
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PORT OF ANACORTES
By:
R. _ Hyde, Executiv Director
Date: l— l S-a8
State of Washington )
County of Skagit
Signed and attested to before me on Jit - , 2008 by R.W. Hyde.
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CITY OF ANACORTES
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H. Dean Maxwell, Mayor
Date: 1 (? 1 0
State of Washington )
County of Skagit
Signed and attested to before me on j CtrUkci O , 2008 by H. Dean Maxwell.
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EXHIBIT "A"
DEPARTMENT OF NATURAL RESOURCES
AQUATIC LAND COMMERCIAL LEASE
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•
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS LEASE
TABLE OF CONTENTS
SECTION PAGE
1. PROPERTY 1
1.1 Property Defined 1
1.2 Survey and Property Descriptions 2
1.3 Inspection 2
2. USE 2
2.1 Permitted Use 2
2.2 Restrictions on Use 2
2.3 Conformance with Laws 3
2.4 Liens and Encumbrances 3
3. TERM 3
3.1 Term Defined 3
3.2 Renewal of the Lease 3
3.3 End of Term 3
3.4 Hold Over 4
3.5 Adjustment of Term Resulting front Tenant's Possession 5
4. RENT 5
4.1 Annual Rent 5
4.2 Payment Place 5 •
4.3 Adjustment Based on Use 5
4.4 Rent Adjustment Procedures 5
4.5 Rent Adjustments for Water-Dependent Uses 6
5. OTHER EXPENSES 6
5.1 Utilities 6
5.2 Taxes and Assessments 6
5.3 Right to Contest 6
5.4 Proof of Payment 6
5.5 Failure to Pay 6
6. LATE PAYMENTS AND OTHER CHARGES 7
6.1 Late Charge 7
6.2 interest Penalty for Past Due Rent and Other Sums Owed 7
6.4 No Accord and Satisfaction 7
6.5 No Counterclaim, Setoff, or Abatement of Rent 7
7. IMPROVEMENTS 8
7.1 Improvements Defined 8
7.2 Existing Improvements 8
7.3 Construction,Alteration, Replacement, and Modification 8
7.4 Disposition and Removal of Tenant-Owned Improvements at End of Lease 9
7.5 Disposition of Unauthorized Improvements 11
Fonn Date: 06/2006 t Aquatic I.ands Lease
No.20-076615
Tenant's Initials
7.6 Disposition of Personal Properly 11
8. ENVIRONMENTAL LIABILITY/RISK ALLOCATION 12
8.1 Definitions 12
8.2 General Conditions 12
8.3 Current Conditions and Duty to Investigate 12
8.4 Use of Hazardous Substances 13
8.5 Management of Contamination 13
8.6 Notification and Reporting 13
8.7 Indemnification 14
8.8 Reservation of Rights 15
8.9 Cleanup 15
8.10 Sampling by State, Reimbursement, and Split Samples 16
9. ASSIGNMENT AND SUBLETTING 17
9.1 State Consent Required 17
9.2 Rent Payments Following Assignment 17
9.3 Terms of Subleases 17
9.4 Short-Term Subleases of Moorage Slips 18
10. INDEMNITY, FINANCIAL SECURITY, INSURANCE 18
10.1 Indemnity 18
10.2 Insurance Terms 19
10.3 Insurance Types and Limits 21
10.4 Financial Security 22
11. MAINTENANCE AND REPAIR 23
11.1 State's Repairs 23
11.2 Tenant's Repairs,Alteration, Maintenance and Replacement 23
12. DAMAGE OR DESTRUCTION 24
12.1 Notice and Repair 24
12.2 State's Waiver of Claim 24
12.3 Insurance Proceeds 24
12.4 Rent in the Event of Damage or Destruction 24
12.5 Default at the Time of Damage or Destruction 24
13. CONDEMNATION 24
13.1 Definitions 24
13.2 Effect of Taking 25
13.3 Allocation of Award 25
14. DEFAULT AND REMEDIES 25
14.1 Default Defined 25
14.2 Tenant's Right to Cure 25
14.3 Remedies 26
15. ENTRY BY STATE 26
16. DISCLAIMER OF QUIET ENJOYMENT 26
16.1 No Guaranty or Warranty 26
16.2 In the Event of Eviction by Third Party 27
I7. NOTICE 27
18. MISCELLANEOUS 27
18.1 Authority 27
Form Date: 06/2006 ii Aquatic Lands Lease
No. 20-076615
Tenant's Initials
18 2 Successors and Assigns 28
18.3 Headings 28
18.4 Entire Agreement 28
18.5 Waiver 28
18.6 Cumulative Remedies 28
18.7 Time is of the Essence 28
18.8 Language 28
18.9 Invalidity 28
18.10 Applicable Law and Venue 28
18.11 Recordation 28
18.12 Modification 29
18.13 Survival 29
Form Date. 06/2006 iii Aquatic Lands Lease
No. 20-076615
Tenant's Initials
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
DOUG SUTHERLAND, Commissioner of Public Lands
AQUATIC LANDS LEASE
AQUATIC LANDS LEASE NO. 20-076615
THIS LEASE is made by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources ("State"), and CITY OF ANCORTES, a
government agency/entity, ("Tenant").
BACKGROUND
Tenant desires to lease the aquatic lands commonly known as Fidalgo Bay, which are bedlands located
in Skagit County, Washington, from State, and State desires to lease the property to Tenant pursuant to
the terms and conditions of this Lease.
THEREFORE, the parties agree as follows:
SECTION ] PROPERTY
1.1 Property Defined.
(a) State leases to Tenant and Tenant leases from State the real property described in
Exhibit A together with all the rights of State, if any, to improvements on and
easements benefiting the Property, but subject to the exceptions and restrictions set
forth in this Lease (collectively the `Property").
(b) This Lease is subject to all valid interests of third parties noted in the records of Skagit
County, or on file in the office of the Commissioner of Public Lands, Olympia,
Washington; rights of the public under the Public Trust Doctrine or federal navigation
servitude; and treaty rights of Indian Tribes.
(c) Not included in this Lease are any right to harvest, collect or damage any natural
resource, including aquatic life or living plants, any water rights, or any mineral rights,
including any right to excavate or withdraw sand, gravel, or other valuable materials.
(d) State reserves the right to grant easements and other land uses on the Property to others
when the easement or other land uses will not unreasonably interfere with Tenant's
Permitted Use.
Form Date: 06/2006 1 Aquatic Lands Lease
No.20-076615
Tenant's Initials
1.2 Survey and Property Descriptions.
(a) Tenant prepared Exhibit A, which describes the Property. Tenant warrants that Exhibit
A is a true and accurate description of the Lease boundaries and the improvements to be
constructed or already existing in the Lease area.
(b) Tenant shall not rely on any written legal descriptions, surveys, plats, or diagrams
("property description") provided by State. Tenant shall not rely on State's approval or
acceptance of Exhibit A or any other Tenant-provided property description as
affirmation or agreement that Exhibit A or other property description is true and
accurate. Tenant's obligation to provide a true and accurate description of the Property
boundaries shall be a material term of this Lease.
1.3 Inspection. State makes no representation regarding the condition of the Property,
improvements located on the Property, the suitability of the Property for Tenant'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. Tenant has inspected the Property
and accepts it "AS IS."
SECTION 2 USE
2.1 Permitted Use. Tenant shall use the Property for the establishment of a 6-acre eelgrass
mitigation site to be accomplished by filling in 6.6 acres of otherwise un-vegetated bedlands in Fidalgo
Bay and transplanting eelgrass (the "Permitted Use"), and for no other purpose. The Permitted Use is
described or shown in greater detail in Exhibit B, the terms and conditions of which are incorporated
by reference and made a part of this Lease. This is a water-dependent use.
2.2 Restrictions on Use.
(a) Tenant shall not cause or permit any damage to natural resources on the Property,
except to the extent such damage is expressly permitted under the mitigation plan
incorporated in Exhibit B.
(b) Tenant shall also not cause or permit any filling activity to occur on the Property or
adjacent state-owned aquatic land, except to the extent such damage is expressly
permitted under the mitigation plan incorporated in Exhibit B. This prohibition
includes any deposit of rock, earth, ballast, wood waste, refuse, garbage, waste matter
(including chemical, biological, or toxic wastes), hydrocarbons, any other pollutants, or
other matter in or on the Property, except as approved in writing by State.
(c) Tenant shall neither commit nor allow waste to be committed to or on the Property or
adjacent state-owned aquatic land_
(d) Failure to Comply with Restrictions on Use.
(1) If State gains actual knowledge of Tenant's failure to comply with any of the
restrictions set out in this Subsection 2.2, State may notify Tenant and provide
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No. 20-076615
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Tenant a reasonable time to take all steps necessary to remedy the failure and
restore the Property to the condition before the failure occurred.
(2) If Tenant fails to restore the Property in a timely manner, then State may take
any steps reasonably necessary to restore the Property. Upon demand by State,
Tenant shall pay all costs of any remedial action, including but not limited to the
costs of removing and disposing of any material deposited improperly on the
Property.
(e) State's failure to notify Tenant of Tenant's failure to comply with all or any of the
restrictions set out in this Subsection 2.2 does not constitute a waiver of any remedies
available to State.
(f) This section shall not in any way limit Tenant's liability under Section 8, below.
2.3 Conformance with Laws. Tenant shall, at all times, keep current and comply with all
conditions and terms of any permits, licenses, certificates, regulations, ordinances, statutes, and other
government rules and regulations regarding its use or occupancy of the Property.
2.4 Liens and Encumbrances. Tenant shall keep the Property free and clear of any liens and
encumbrances arising out of or relating to its use or occupancy of the Property.
SECTION 3 TERM
3.1 Term Defined. The term of this Lease is Thirty (30) years (the "Term"), beginning on the I st
day of September 2006 (the "Commencement Date"), and ending on the 31s1 day of August 2036 (the
"Termination Date"), unless terminated sooner under the terms of this Lease.
3.2 Renewal of the Lease. Tenant shall have no right to renew this lease. The initial Term of this
Lease, and all renewal terms, shall not exceed thirty years (30) years in the aggregate. Tenant may file
a request to renew this Lease by providing written notice of Tenant's request to renew at least ninety
days prior to the Termination.Date of the initial term or any renewal terms of this Lease. Tenant shall
not be allowed to renew if in default under the terms o.f this Lease at the time Tenant's request is filed
with the State. The terms and conditions of any renewal term shall be the same as set forth in this
Lease, except that rent shall be recalculated, the required amount of financial security may be revised,
and the provisions dealing with hazardous waste or impacts to natural resources may be changed at the
time of the renewal. Renewal of the Lease by State does not constitute a waiver of any action for
breaches under a previous lease or a succession of previous leases.
3.3 End of Term.
(a) Upon the expiration or termination of this Lease, Tenant shall surrender the Property to
State in the same or better condition as on the Commencement Date, reasonable wear
and tear excepted.
(b) Definition of Reasonable Wear and Tear.
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No. 20-076615
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(1) Reasonable wear and tear is defined as deterioration resulting from the intended
use of the leasehold that has occurred without neglect, negligence, carelessness,
accident, or abuse of the premises by Tenant or any other person on the premises
with the permission of Tenant.
(2) Reasonable wear and tear shall not include any deposit of rock, earth, ballast,
wood waste, refuse, garbage, waste matter (including chemical, biological or
toxic wastes), hydrocarbons, any other pollutants, or other matter in or on the
Property that State has not expressly approved of in writing regardless of
whether the deposit is incidental to or the byproduct of the intended use of the
leasehold.
(c) If Property is in worse condition, excepting for reasonable wear and tear, on the
surrender date than on the Commencement Date, the following provisions apply.
(1) State shall provide Tenant a reasonable time to take all steps necessary to
' remedy the condition of the Property. State, at its option, may require Tenant to
enter into a right-of-entry or other use authorization prior to the Tenant entering
the Property to remedy any breach of this Subsection 3.3.
(2) If Tenant fails to remedy the condition of the Property in a timely manner, then
State may take any steps reasonably necessary to remedy Tenant's failure.
Upon demand by State, Tenant shall pay all costs of such remedial action,
including but not limited to the costs of removing and disposing of any material
deposited improperly on the Property, lost rent resulting from the condition of
the Property prior to and during remedial action, and any administrative costs
associated with the remedial action.
3.4 Holdover.
(a) If Tenant remains in possession of the Property after the Termination Date, the
occupancy shall not be an extension or renewal of the Term. The occupancy shall be a
month-to-month tenancy, on terms identical to the terms of this Lease, which may be
terminated by either party on thirty (30) days written notice.
(1) The monthly rent during the holdover shall be the same rent that would be due if
the annual rent under Lease were pro rated per month and as if the Lease were
still in effect and all adjustments in rent were made in accordance with its terms.
(2) Payment of more than the monthly rent shall not be construed to create a
periodic tenancy longer than month-to-month. If Tenant pays more than the
monthly rent and State provides notice to vacate the property, State shall refund
the amount of excess payment remaining after the Tenant ceases occupation of
the Property.
(b) If State provides a notice to vacate the Property in anticipation of the termination of this
Lease or at any time after the Termination Date and Tenant fails to do so within the
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No, 20-076615
Tenant's Initials
time set forth in the notice,then Tenant shall be a trespasser and shall owe the State all
amounts due under RCW 79.02.300 or other applicable law.
3.5 Adjustment of Term Resulting from Tenant's Possession.
(a) lf, for any reason whatsoever, State cannot deliver possession of the Property to Tenant
on the Commencement Date, this Lease shall not be void or voidable, nor shall State be
liable to Tenant for any loss or damage resulting from the delay in delivery of
possession. In such event, the date of delivery of possession shall be the
Commencement Date for all purposes, including the payment of rent.
(b) In the event Tenant takes possession before the Commencement Date, the date of
possession shall be the Commencement Date for all purposes, including the payment of
rent. if the Lease Term commences earlier or later than the scheduled Commencement
Date, the Termination Date shall be adjusted accordingly.
SECTION 4 RENT
4.1 Annual Rent.
(a) Until adjusted as set forth below,Tenant shall pay to State an annual rent consisting of
Two Thousand Six Hundred Seventy Eight Dollars 95/100 ($2,678.95) related to the
water-dependent use. The annual rent, as it currently exists or as adjusted or modified
(the "Annual Rent"), shall be due and payable in full on or before the Commencement
Date and on or before the same date of each year thereafter.
(b) The annual rent, as it currently exists or as adjusted or modified (the "Annual Rent"),
shall be due and payable in full on or before the Commencement Date and on or before
the same date of each year thereafter.
4.2 Payment Place. Payment is to be made to Financial Management Division, 1 1 11 Washington
St SE, PO Box 47041, Olympia, WA 98504-7041.
4.3 Adjustment Based on Use. Annual Rent is based on Tenant's Permitted Use of the Property,
as described in Section 2 above. if Tenant's Permitted Use changes, the Annual Rent shall be adjusted
as appropriate for the changed use.
4.4 Rent Adjustment Proeedures.
(a) Notice of Rent Adjustment. Notice of any adjustments to the Annual Rent that are
allowed by Paragraphs 4.5(b) shall be provided to Tenant in writing no later than ninety
(90) days after the anniversary date of the Lease.
(b) Procedures on Failure to make Timely Adjustment. In the event the State fails to
provide the notice required in Paragraph 4.4(a), it shall be prohibited from collecting
any adjustments to rent only for the year in which it failed to provide notice. No failure
by State to adjust Annual Rent pursuant to Paragraph 4.4(a) shall affect the State's right
to establish Annual Rent for a subsequent lease year as if the missed or waived
adjustment had been implemented. The State may adjust, bill, and collect Annual Rent
Form Date: 06/2006 5 Aquatic Lands Lease
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prospectively as if any missed or waived adjustments had actually been implemented.
This includes the implementation of any inflation adjustment and any rent revaluations
that would have been authorized for previous lease years.
4.5 Rent Adjustments for Water-Dependent Uses.
(a) Inflation Adjustment. State shall adjust water-dependent rent annually pursuant to
RCW 79.105.200-.360, except in those years in which the rent is revalued under
Paragraph 4.5(b) below. This adjustment shall be effective on the anniversary of the
Commencement Date.
(b) Revaluation of Rent. At the end of the first four-year period of the Term, and at the end
of each subsequent four-year period, State shall revalue the water-dependent Annual
Rent in accordance with RCW 79.105.200-.360.
(c) Rent Cap_ After the initial year's rent is determined under Subsection 4.1, rent may
increase by operation of Paragraph 4.5(a) or 4.5(b). If application of the statutory rent
formula for water-dependent uses would result in an increase in the rent attributable to
such uses of more than fifty percent(50%) in any one year,the actual increase
implemented in such year shall be limited to fifty percent (50%) of the then-existing
rent, in accordance with RCW 79.105.260. The balance of the increase determined by
the formula shall be deferred to subsequent years and added to the next and subsequent
years' rental increases until the full amount of the increase is lawfully implemented.
SECTION 5 OTHER EXPENSES
5.1 Utilities. Tenant shall pay all fees charged for utilities in connection with the use and
occupancy of the Property, including but not limited to electricity,water, gas, and telephone service.
5.2 Taxes and Assessments. Tenant shall pay all taxes (including leasehold excise taxes),
assessments, and other governmental charges, of any kind whatsoever, applicable or attributable to the
Property, Tenant's leasehold interest,the improvements, or Tenant's use and enjoyment of the
Property.
5.3 Right to Contest. Tenant may, in good faith, contest any tax or assessment at its sole cost and
expense. At the request of State, Tenant shall furnish reasonable protection in the form of a bond or
other security, satisfactory to State, against any Ioss or liability by reason of such contest.
5.4 Proof of Payment. If required by State, Tenant shall furnish to State receipts or other
appropriate evidence establishing the payment of any amounts required to be paid under the terms of
this Lease.
5.5 Failure to Pay. If Tenant fails to pay any of the amounts due under this Lease, State may pay
the amount due, and recover its cost in accordance with the provisions of Section 6.
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SECTION 6 LATE PAYMENTS AND OTHER CHARGES
6.1 Late Charge. If State does not receive any rental payment within ten (10) days of the date due,
Tenant shall pay to State a late charge equal to four percent (4%) of the amount of the payment or Fifty
Dollars ($50), whichever is greater, to defray the overhead expenses of State incident to the delay.
Failure to pay rent constitutes a default by the Tenant and State may seek remedies under Section 14 as
well as late charges and interest as provided in this section.
6.2 Interest Penalty for Past-Due Rent and Other Sums Owed.
(a) If State does not receive rent within thirty (30) days of the date due, then Tenant shall
pay interest on the amount outstanding at the rate of one percent (1%)per month until
paid, in addition to paying the late charges determined under Subsection 6.1, above.
(b) If State pays or advances any amounts for or on behalf of Tenant, including but not
limited to leasehold taxes, taxes, assessments, insurance premiums, costs of removal
and disposal of unauthorized materials pursuant to Subsection 2.2 above, costs of
removal and disposal of improvements pursuant to Section 7 below, or other amounts
not paid when due, Tenant 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 Tenant of the payment or advance.
6.3 Referral to Collection Agency and Collection Agency Fees. If State does not receive
payment within thirty (30) days of the due date, State has discretion to refer the unpaid amount to a
collection agency, to the extent applicable, as provided by RCW 19.16.500 or other applicable law.
Upon referral, Tenant shall pay collection agency fees in addition to the unpaid amount. Under
RCW 19.16.500, a collection agency fee of up to fifty percent (50%) of the first One Hundred
Thousand Dollars ($100,000) of unpaid debt and up to thirty-five percent (35%) of unpaid debt over
One Hundred Thousand Dollars ($100,000) is reasonable.
6.4 No Accord and Satisfaction. If Tenant pays, or State otherwise receives, an amount less than
the full amount then due, State may apply such payment as it elects. In the absence of an election, the
payment or receipt shall be applied first to accrued taxes which State has advanced or may be obligated
to pay, then to other amounts advanced by State, then to late charges and accrued interest, and then to
the earliest rent due. State may accept any payment in any amount without prejudice to State's right to
recover the balance of the rent or pursue any other right or remedy. No endorsement or statement on
any check, any payment, or any letter accompanying any check or payment shall constitute or be
construed as accord and satisfaction.
6.5 No Counterclaim, Setoff, or Abatement of Rent. Except as expressly set forth elsewhere in
this Lease, rent and all other sums payable by Tenant pursuant to this Lease shall be paid without the
requirement that State provide prior notice or demand, and shall not be subject to any counterclaim,
setoff, deduction, defense or abatement.
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SECTION 7 IMPROVEMENTS
7.1 Improvements Defined.
(a) Improvements. Consistent with RCW 79.105 through 79.145,Improvements are
additions within, upon, or attached to the land_ This includes, but is not limited to,fill,
structures, bulkheads, docks, pilings, and other fixtures.
(b) Personal Property. Personal property is defined as 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.
(c) State-Owned Improvements. 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 Tenant
(d) Tenant-Owned Improvements. Tenant-Owned Improvements are Improvements made
by Tenant with State's consent or acquired by Tenant from former tenant in accordance
with RCW 79.125.300 or 79.130.040.
(e) Unauthorized Improvements. Unauthorized Improvements are Improvements made on
the Property without State's prior consent or Improvements made by Tenant that are not
in conformance with plans submitted to and approved by the State.
7.2 Existing Improvements. As of the Commencement Date, there are no existing improvements
on the Property. As provided in Exhibit B, attached, State authorizes installation of the following
Improvements on the Property: Approximately 60,000 cubic yards of clean fill from the Swinomish
Channel. The Improvements are Tenant Owned Improvements.
7.3 Construction,Alteration, Replacement, and Modification.
(a) Tenant shall not place, construct,remove, or demolish Improvements without State's
prior written consent. State may deny consent if State determines that denial is in the
best interests of the State. State's consent is not required for routine maintenance or
repair to Improvements made by the Tenant pursuant to its obligation to maintain the
Property in good order and repair. Routine maintenance or repair does not include
alteration, replacement, removal, or major repair of any Improvements on the Property.
Subsection 7.4 shall govern removal of Improvements at end of Lease.
(b) Prior to any placement, construction, alteration, replacement, removal, or major repair
of any Improvements (whether State-Owned or Tenant-Owned), Tenant shall submit to
State plans and specifications that describe the proposed activity. If State does not
notify Tenant of its grant or denial of consent within sixty (60) days of submittal, State
waives the requirement for State's written consent with regards to Tenant's proposed
plans or activity.
(c) Construction shall not commence until Tenant or Tenant's contractor has obtained a
performance and payment bond in an amount equal to one hundred twenty-five percent
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(125%). The performance and payment bond shall be maintained until the costs of
construction, including all laborers and material persons,have been paid in full.
(d) Upon completion of construction,Tenant shall promptly provide State with as-built
plans and specifications.
(e) State shall not charge rent for the authorized Fill. With respect to other authorized
Improvements installed by Tenant during this Lease, but State may charge rent for such
Improvements when and if the Tenant or successor obtains a subsequent use
authorization for the Property and State has waived the requirement for Improvements
to be removed as provided in Subsection 7.4.
7.4 Disposition and Removal of Tenant-Owned Improvements at End of Lease.
(a) Disposition
(1) Unless removal is required under Subsection 7.4(c)(5), the Fill shall remain on
the Property upon expiration termination, or cancellation of the Lease.
(2) Tenant shall remove all other Tenant-Owned Improvements upon the expiration,
termination, or cancellation of the Lease unless State waives the requirement for
removal.
(3) Tenant-Owned improvements remaining on the Property on the expiration,
termination or cancellation date shall become State-Owned Improvements
without payment by State,unless State elects otherwise. State may refuse or
waive ownership
(4) If Tenant-Owned Improvements remain on the Property after the expiration,
termination,or cancellation date without State's actual or deemed consent,
Tenant-Owned improvements, State may remove all Improvements and Tenant
shall pay the costs of removal and disposal.
(b) Conditions Under Which State May Waive Removal of Tenant-Owned Improvements.
(I) Except for the Fill, State has option to waive removal of any other Tenant-
Owned Improvements whenever State determines that it is in the best interests
of the State and regardless of whether Tenant re-leases the Property.
(2) If Tenant re-leases the Property, State may waive requirement remove Tenant-
Owned Improvements. State also may consent to Tenant's continued ownership
of Tenant-Owned Improvements.
(3) If Tenant does not re-lease the Property, State has option to waive requirement
to remove Tenant-Owned Improvements upon consideration of a timely request
from Tenant, as follows:
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(i) Tenant must notify State at least one (1) year before the Termination
Date of its request to leave Tenant-Owned Improvements.
(ii) State, within ninety (90) days, shall notify Tenant whether State consents
to any or all Tenant-Owned Improvements remaining. State has no
obligation to grant consent.
(iii) State's failure to respond to Tenant's request to leave Improvements
within ninety (90) days shall be deemed a denial of the request.
(c) Removal.
(1) "Tenant shall not remove or demolish Tenant-Owned Improvements without
State's prior written consent.
(2) At least ninety (90) days prior to planned removal and/or demolition, Tenant
shall submit to State plans and specifications that describe the proposed activity.
if regulatory permits are required for removal and/or demolition of
Improvements,Tenant shall submit plans and specifications at least sixty (60)
days before submitting permit applications to the regulatory agencies unless
Tenant and State otherwise agree to coordinate permit applications.
(3) Within sixty (60) days of receiving Tenant's plans and specifications, State shall
notify Tenant that States grants consent for removal and/or demolition as
proposed. State may impose additional conditions reasonably intended to
protect and preserve the Property. State also may waive removal of any or all
Improvements.
(4) State's failure to respond to Tenant's submittal within sixty (60) days shall be a
waiver of the requirement for State's consent and Tenant may commence with
the proposed activity.
(5) This Subsection shall govern removal of Fill. Tenant shall only be required to
remove Fill if an appropriate regulatory agency deems removal necessary to
(i) Restore, preserve or enhance ecological function of the Property;
(ii) Restore, preserve, or enhance fish and wildlife;
(iii) Protect human health;
(iv) Facilitate navigation.
Tenant shall otherwise comply with the requirements for removal under this
Subsection except that State's consent to shall not be required to remove Fill
(d) Tenant's Obligations if State Waives Removal.
(1) Tenant shall not remove Improvements if State waives the requirement for removal
of any or all Tenant-Owned Improvements.
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(2) Tenant shall maintain such Improvements in accordance with this Lease until the
expiration, termination, or cancellation date. Tenant shall be liable to State for cost
of repair if Tenant causes or allows damage to Improvements State has designated
to remain.
7.5 Disposition of Unauthorized Improvements.
(a) Unauthorized Improvements shall be the property of State, unless State elects
otherwise.
(b) State, al its option, may either:
(1) Consent to Tenant ownership of the Improvements, or
(2) Charge rent for use of the Improvements from the time of installation or
construction and
(i) Require Tenant to remove the Improvements, in which case Tenant shall
pay rent for the Improvements until removal,
(ii) Consent to Improvements remaining and Tenant shall pay rent for the
use of the Improvements, or
(iii) Remove Improvements and Tenant shall pay for the cost of removal and
disposal, in which case Tenant shall pay rent for use of the
Improvements until removal and disposal.
7.6 Disposition of Personal Property.
(a) Tenant retains ownership of Personal Property unless Tenant and State agree otherwise
in writing.
(b) Tenant shall remove Personal Property from the Property by the Termination Date.
Tenant shall be liable for any and all damage to the Property and any Improvements that
may result from removal of Personal Property_
(c) State, at its option, may sell or dispose of all Personal Property left on the Property after
the Termination Date.
(1) If State conducts a sale of Personal Property, State shall apply proceeds first to
the State's administrative costs in conducting the sale, second to payment of
amount that then may be due from the Tenant to the State, and State shall pay
the remainder, if any, to the Tenant.
(2) If State disposes of Personal Property, Tenant shall pay for the cost of removal
and disposal.
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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, including, but not limited to, the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. 6901 et. seq., as amended; Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. 9601 et seq.,as amended; Washington's Model Toxics Control Act ("MICA"),
Chapter 70.105 RCW, as amended; and Washington's Sediment Management
Standards, WAC Chapter I73-204.
(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)or any similar event
defined under any such law.
(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 established under MTCA, RCW 70.105D.040.
8.2 General Conditions.
(a) Tenant'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 where a release or the presence of
Hazardous Substances arises from Tenant's use of the Property.
(b) Standard of Care.
(1) Tenant shall exercise the utmost care with respect to Hazardous Substances.
(2) Tenant shall exercise utmost care for the foreseeable acts or omissions of third
parties affecting 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, including—but not limited to—RCW 70.105D.040.
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 Lease does not impose a duty on State to conduct investigations or supply
information to Tenant about Hazardous Substances.
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(c) Tenant is responsible for conducting all appropriate inquiry and gathering sufficient
information concerning the Property and the existence, scope, and location of any
Hazardous Substances on the Property, or adjacent to the Property, that allows Tenant
to meet Tenant's obligations under this Lease.
8.4 Use of Hazardous Substances.
(a) Tenant, its subtenants, contractors, agents, employees, guests, invitees, or affiliates shall
not use, store, generate, process, transport, handle, release, or dispose of Hazardous
Substances, except in accordance with all applicable laws.
(b) Tenant shall not undertake, or allow others to undertake by Tenant's permission,
acquiescence, or failure to act, activities that
(1) Result in a release or threatened release of Hazardous Substances, or
(2) Cause, contribute to, or exacerbate any contamination exceeding regulatory
cleanup standards whether the regulatory authority requires cleanup before,
during, or after Tenant's occupancy of the Property.
8.5 Management of Contamination.
(a) Tenant shall not undertake activities that:
(1) Damage or interfere with the operation of remedial or restoration activities;
(2) Result in human or environmental exposure to contaminated sediments;
(3) Result in the mechanical or chemical disturbance of on-site habitat mitigation.
(b) If requested, Tenant 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. Tenant may negotiate an
access agreement with such parties, but Tenant may not unreasonably withhold
such agreement.
8.6 Notification and Reporting.
(a) Tenant shall immediately notify State if Tenant becomes aware of any of the following:
(1) A release or threatened release of Hazardous Substances;
(2) Any new discovery of or new information about a problem or liability related to,
or derived from, the presence of any Hazardous Substance;
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(3) Any lien or action arising from the foregoing;
(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) Tenant's duty to report under Paragraph 8.6(a) extends to the Property, adjacent state-
owned aquatic lands where a release or the presence of Hazardous Substances could
arise from the Tenant's use of the Property, and any other property used by Tenant in
conjunction with Tenant's use of the Property where a release or the presence of
Hazardous Substances on the other property would affect the Property.
(c) Tenant shall provide State with copies of all documents concerning environmental
issues associated with the Property, and submitted by Tenant to any federal, state or
local authorities. Documents subject to this requirement include, but are not limited to,
applications, reports, studies, or audits for National Pollution Discharge and Elimination
System Permits; Anny 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) "Liabilities" as used in this Subsection 8.7 means any claims, demands, proceedings,
lawsuits, damages, costs, expenses, fees (including attorneys' fees and disbursements),
penalties, or judgments.
(b) Tenant shall fully indemnify, defend, and hold State harmless from and against any
liabilities that arise out of, or are related to:
(1) The use, storage, generation, processing, transportation, handling, or disposal of
any Hazardous Substance by Tenant, its subtenants, contractors, agents, invitees,
guests, employees, affiliates, licensees, or permittees regardless of whether the
act occurs before, during, or after the Term of this Lease;
(2) The release or threatened release of any Hazardous Substance, or the
exacerbation of any Hazardous Substance contamination resulting from any act
or omission of Tenant, its subtenants, contractors, agents, employees, guests,
invitees, or affiliates regardless of whether the release, threatened release,or
exacerbation occurs before, during, or after the Term of this Lease.
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(c) Tenant shall fully indemnify, defend, and hold State harmless for any and all liabilities
that arise out of or are in any way related to Tenant's breach of obligations under
Subsection 8.5.
(d) Third Parties.
(1) Tenant has no duty to indemnify State for acts or omissions of third parties
unless Tenant fails to exercise utmost care with respect to the foreseeable acts or
omissions of the third party and the foreseeable consequences of those acts or
omissions to the extent required to establish a viable third-party defense under
the law, including—but not limited to—RCW 70.105D.040. Tenant's third-
party indemnification duty arises under the conditions described in
Subparagraph 8.7(d)(2).
(2) If an administrative or legal proceeding arising from a release or threatened
release of Hazardous Substances finds or holds that Tenant failed to exercise
care as described in Subparagraph 8.7(d)(1),Tenant shall fully indemnify,
defend, and hold State harmless from and against any liabilities arising from the
acts or omissions of third parties in relation to the release or threatened release
of Hazardous Substances. This shall include any liabilities arising before the
finding or holding in the proceeding.
8.8 Reservation of Rights.
(a) For any environmental liabilities not covered by the indemnification provisions of
Subsection 8.7, the parties expressly reserve and do not waive or relinquish any rights,
claims, immunities, causes of action, or defenses relating to the presence, release, or
threatened release of Hazardous Substances that either party may have against the other
under federal, state, or local laws, including, but not limited to, CERCLA, MTCA, and
the common law.
(b) This Lease affects no right, claim, immunity, or defense either party may have against
third parties, and the parties expressly reserve all such rights, claims, immunities, and
defenses.
(c) The provisions under this Section 8 do not benefit, or create rights for, third parties.
(d) The allocations of risks, liabilities, and responsibilities set forth above do not release
either party from, or affect the liability of either party for, claims or actions by federal,
state, or local regulatory agencies concerning Hazardous Substances.
8.9 Cleanup.
(a) If Tenant's act, omission, or breach of obligation under Subsection 8.4 results in a
release of Hazardous Substances, Tenant shall, at Tenant's sole expense,promptly take
all actions necessary or advisable to clean up the Hazardous Substances in accordance
with applicable law. Cleanup actions shall include, without limitation, removal,
containment, and remedial actions.
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(b) Tenant's obligation to undertake a cleanup under Section 8 shall be limited to those
instances where the Hazardous Substances exist in amounts that exceed the threshold
limits of any applicable regulatory cleanup standards.
(c) At the State's discretion, Tenant may undertake a cleanup of the Property pursuant to
the Washington State Department of Ecology's Voluntary Cleanup Program, provided
that Tenant cooperates with State (DNR) in development of cleanup plans. Tenant shall
not proceed with Voluntary Cleanup without State (DNR) approval of final plans.
Nothing in the operation of this provision shall be construed as an agreement by State
(DNR) that the Voluntary Cleanup complies with any laws or with the provisions of this
Lease. Tenant's completion of a Voluntary CIeanup shall not be a release from or
waiver of any obligation for Hazardous Substances under this Lease.
8.10 Sampling by State,Reimbursement, and Split Samples.
(a) State may conduct sampling, tests, audits, surveys, or investigations ("Tests") of the
Property at any time to determine the existence,scope, or effects of Hazardous
Substances.
(b) If such Tests, along with any other information, demonstrate the existence,release, or
threatened release of Hazardous Substances arising out of any action,inaction, or event
described or referred to in Subsection 8.4, above, Tenant shall promptly reimburse State
for all costs associated with such Tests.
(c) State shall not seek reimbursement for any Tests under this Subsection 8.10 unless State
provides Tenant written notice of its intent to conduct any Tests at least thirty (30)
calendar days prior to undertaking such Tests, except when such Tests are in response
to an emergency. Tenant shall reimburse State for Tests performed in response to an
emergency if State has provided such notice as is reasonably practical.
(d) Tenant shall be entitled to obtain split samples of any Test samples obtained by State,
but only if Tenant provides State with written notice requesting such samples within
twenty(20)calendar days of the date Tenant is deemed to have received notice of
State's intent to conduct any non-emergency Tests. Tenant solely shall bear the
additional cost, if any, of split samples. Tenant shall reimburse State for any additional
costs caused by split sampling within thirty (30) calendar days after State sends Tenant
a bill with documentation for such costs.
(e) Within sixty (60) calendar days of a written request (unless otherwise required pursuant
to Paragraph 8.6(c), above), either party to this Lease shall provide the other party with
validated final data, quality assuraneelquality control information, and chain of custody
information, associated with any Tests of the Property performed by or on behalf of
State or Tenant. There is no obligation to provide any analytical summaries or expert
opinion work product.
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SECTION 9 ASSIGNMENT AND SUBLETTING
9.1 State Consent Required. Tenant shall not sell, convey,mortgage, assign, pledge, sublet, or
otherwise transfer or encumber all or any part of Tenant's interest in this Lease or the Property without
State's prior written consent, which shall not be unreasonably conditioned or withheld.
(a) In determining whether to consent, State may consider, among other items, the
proposed transferee's financial condition, business reputation and experience, the nature
of the proposed transferee's business, the then-current value of the Property, and such
other factors as may reasonably bear upon the suitability of the transferee as a tenant of
the Property. State may refuse its consent to any sale, conveyance, mortgage,
assignment,pledge, sublet, or other transfer or encumbrance if said transfer will result
in a subdivision of the leasehold. Tenant shall submit information regarding any
proposed transferee to State at least thirty (30)days prior to the date of the proposed
transfer.
(b) State reserves the right to condition its consent upon:
(1) changes in the terms and conditions of this Lease, including, but not limited to,
the Annual Rent; and/or
(2) the agreement of Tenant or transferee to conduct Tests for Hazardous
Substances on the Property or on other property owned or occupied by Tenant or
the transferee.
(c) Each permitted transferee shall assume all obligations under this Lease, including the
payment of rent_ No assignment, sublet, or transfer shall release, discharge, or
otherwise affect the liability of Tenant.
(d) State's consent under this Subsection 9.1 does not constitute a waiver of any claims
against Tenant for the violation of any term of this Lease.
9.2 Rent Payments Following Assignment. The acceptance by State of the payment of rent
following an assignment or other transfer shall not constitute consent to any assignment or transfer.
9.3 Terms of Subleases.
(a) Tenant shall submit the terms of all subleases to State for approval.
(h) All subleases shall meet the following requirements:
(1) The sublease shall be consistent with and subject to all the terms and conditions
of this Lease;
(2) The sublease shall confirm that this Lease shall control if the terms of the
sublease conflict with the terms of this Lease;
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(3) The term of the sublease (including any period of time covered by a renewal
option) shall end before the Termination Date of the initial Term or any renewal
term;
(4) The sublease shall terminate if this Lease terminates, whether upon expiration of
the Term, failure to exercise an option to renew, cancellation by State, surrender,
or for any other reason;
(5) The subtenant shall receive and acknowledge receipt of a copy of this Lease;
(6) The sublease may permit the payment of more than the annual rent by Tenant to
subtenant;
(7) The sublease shall identify the rental amount to be paid to Tenant by the
subtenant;
(8) The sublease shall confirm that there is no privity of contract between the
subtenant and State;
(9) The subtenant's permitted use shall be within the Permitted Use authorized by
this Lease; and
(10) The sublease shall require the subtenant to meet all obligations of Tenant under
Section l0, Indemnification and Insurance.
9.4 Short-Term Subleases of Moorage Slips. Short-term subleasing of moorage slips for a term
of less than one year does not require State's written consent or approval pursuant to Subsections 9.1
or 9.3. Tenant shall conform moorage sublease agreements to the sublease requirements in
Subsection 9.3.
SECTION 10 INDEMNITY, FINANCIAL SECURITY, INSURANCE
10.1 Indemnity.
(a) Tenant shall indemnify, defend, and hold State, its employees, officers, and agents
harmless from any and all claims arising out of the use, occupation, or control of the
Property by Tenant, its subtenants, contractors, agents, invitees, guests, employees,
affiliates, Iicensees, or permittees.
(b) "Claim" as used in this Subsection 10.1 means any financial loss, claim, suit, action,
damages, expenses, fees (including attorneys' fees), penalties, or judgments attributable
to bodily injury, sickness, disease, death, and damages to tangible properly, 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 and damages
resulting from loss of use of the Property.
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(c) State shall not require Tenant to indemnify, defend, and hold State harmless for claims
that arise solely out of the willful or negligent act of State or State's elected officials,
employees, or agents.
(d) Tenant waives its immunity under Title 51 RCW to the extent it is required to
indemnify, defend, and hold State and its agencies, officials, agents, or employees
harmless.
(e) Section 8, Environmental Liability/Risk Allocation, exclusively shall govern Tenant'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, Tenant shall procure and maintain during the Term of this
Lease, the insurance coverages and limits described in this Subsection 10.2 and
in Subsection 10.3, Insurance Types and Limits. Failure to maintain the
required insurance may result in termination of this Lease at the State's option.
(2) All insurance should be 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. State's risk manager shall
review and approve any exception before acceptance by State. 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) The State of Washington, the Department of Natural Resources, its elected and
appointed officials, agents, and employees shall be named as an additional
insured on all general liability, excess, umbrella, property, builder's risk, and
pollution legal liability insurance policies.
(4) All insurance provided in compliance with this Lease shall be primary as to any
other insurance or self-insurance programs afforded to or maintained by State.
(b) Waiver.
(1) Tenant waives all rights against State for recovery of damages to the extent
insurance maintained pursuant to this Lease covers these damages.
(2) Except as prohibited by law, Tenant waives all rights of subrogation against
State for recovery of damages to the extent that they are covered by insurance
maintained pursuant to this lease.
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(c) Proof of Insurance.
(1) Tenant shall provide State with a certificate(s) of insurance executed by a duly
authorized representative of each insurer, showing compliance with insurance
requirements specified in this Lease and, if requested, copies of policies to State.
(2) The certificate(s) of insurance shall reference additional insureds and the Lease
number.
(3) Receipt of such certificates or policies by State does not constitute approval by
State of the terms of such policies.
(d) State shall be provided written notice before cancellation or non-renewal of any
insurance required by this Lease, in accordance with the following:
(1) Insurers subject to RCW 48.18 (admitted and regulated by the Insurance
Commissioner): If cancellation is due to non-payment of premium, State shall
be given ten(10) days' advance notice of cancellation; otherwise, State shall be
provided 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, State shall be given ten(10) days' advance notice of
cancellation; otherwise, State shall be provided forty-five (45) 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 it
deems necessary.
(2) New or modified insurance coverage shall be in place within thirty (30) days
after State requires changes in the limits of liability.
(f) If Tenant fails to procure and maintain the insurance described above within fifteen (15)
days after Tenant receives a notice to comply from State, at its option, State shall either:
(1) Deem the failure an Event of Default under Section 14, or
(2) State shall have the right to procure and maintain comparable substitute
insurance and to pay the premiums. Upon demand, Tenant shall pay to State the
full amount paid by State, together with interest at the rate provided in
Subsection 6.2 fromthc date of State's notice of the expenditure until Tenant's
repayment.
(g) General Terms.
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(1) State does not represent that coverage and limits required under this Lease will
be adequate to protect Tenant.
(2) Coverage and limits shall not limit Tenant's liability for indemnification and
reimbursements granted to State under this Lease.
(3) Any insurance proceeds payable by reason of damage or destruction to property
shall be first used to restore the real property covered by this Lease, then to pay
the cost of the reconstruction, then to pay the State any sums in arrears, and then
to Tenant.
10.3 Insurance Types and Limits.
(a) General Liability Insurance.
(1) Tenant 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 Tenant's use,
occupation, or control of the Property 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 shall be at least twice the "each occurrence" limit. CGL
or MGL insurance shall have products-completed operations aggregate limit of
at least two times the "each occurrence" limit.
(2) CGL insurance shall be written on Insurance Services Office (ISO) Occurrence
Form CG 00 01 (or a substitute form providing equivalent coverage). All
insurance shall 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 shall have no exclusions for non-owned watercraft.
(b) Workers' Compensation.
(1) State of Washington Workers' Compensation.
(i) Tenant shall comply with all State of Washington workers'
compensation statutes and regulations. Workers' compensation coverage
shall be provided for all employees of Tenant. Coverage shall include
bodily injury (including death) by accident or disease, which arises out
of or in connection with Tenant's use, occupation, and control of the
Property.
(ii) If Tenant 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
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employees, Tenant shall indemnify State. Indemnity shall include all
fines; payment of benefits to Tenant, employees, or their heirs or legal
representatives; and the cost of effecting coverage on behalf of such
employees.
(2) Longshore and Harbor Worker's Act. Certain work or services under this Lease
may require insurance coverage for longshore and harbor workers other than
seaman as provided in the Longshore and Harbor Worker's Compensation Act
(33 U.S.C. Section 901 et. seq.). Failure to obtain coverage in the amount
required by law may result in civil and criminal liabilities. Tenant is fully
responsible for ascertaining if such insurance is required and shall maintain
insurance in compliance with this Act. Tenant is responsible for all civil and
criminal liability arising from failure to maintain such coverage.
(3) Jones Act. Certain work or services under this Lease may require insurance
coverage for seamen injured during employment resulting from negligence of
the owner, master, or fellow crew members as provided in 46 U.S.C. Section
688. Failure to obtain coverage in the amount required by law may result in
civil and criminal liabilities. Tenant is fully responsible for ascertaining if such
insurance is required and shall maintain insurance in compliance with this Act.
Tenant is responsible for all civil and criminal liability arising from failure to
maintain such coverage.
(c) Employer's Liability Insurance. Tenant shall procure employer's liability insurance,
and, if necessary, commercial umbrella liability insurance with limits not less than One
Million Dollars ($1_,000,000) each accident for bodily injury by accident or One Million
Dollars ($1,000,000) each employee for bodily injury by disease.
10.4 Financial Security.
(a) At its own expense, Tenant shall procure and maintain during the Term of this Lease a
corporate security bond or provide other financial security that State, at its option, may
approve ("Security"). The Security shall be in an amount equal to Ten Thousand
Dollars($10,000), which is consistent with RCW 79.105.330, and shall secure Tenant's
performance of its obligations under this Lease, with the exception of the obligations
under Section 8, Environmental Liability/Risk Allocation. Tenant's failure to maintain
the Security in the required amount in force at all times during the Term of this Lease
shall constitute a breach of this Lease.
(b) All Security shall be in a form acceptable to the State.
(1) Bonds should 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. State's risk manager shall review and
approve any exception before acceptance by State.
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(2) Letters of credit, if approved by State, shall 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, shall allow State to draw
funds at will.
(c) Adjustment in Amount of Security.
(1) State may require an adjustment in the amount of Security:
(i) At the same time as revaluation of the Annual Rent,
(ii) As a condition of approval of assignment or sublease of this Lease,
(iii) Upon a material change in the condition or disposition of any
Improvements, or
(iv) Upon a change in the Permitted Use.
(2) Tenant shall deliver a new or modified form of Security to State within thirty
(30) days after State has required adjustment of the amount of the Security.
(d) Upon any default by Tenant in its obligations under this Lease, State may collect on the
Security to offset the liability of Tenant to State. Collection on the Security shall not
relieve Tenant of liability, shall not limit any of State's other remedies, and shall not
reinstate or cure the default or prevent termination of the Lease because of the default.
SECTION 11 MAINTENANCE AND REPAIR
11.1 State's Repairs. This Lease does not obligate State to make any alterations, maintenance,
replacements, or repairs in, on, or about the Property, or any part thereof, during the Term.
11.2 Tenant's Repairs, Alteration, Maintenance and Replacement.
(a) Tenant 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. Tenant's obligations under this Subsection 11.2 shall be in addition
to Tenant's obligations under Subsections 2.2 and 3.3 of this Lease.
(b) Tenant 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.
(c) Tenant shall make all additions, repairs, alterations, replacements, or changes to the
Property and to any improvements on the Property in accordance with Section 7,
Improvements, above. Section 7 shall govern ownership.
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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,
Tenant shall promptly give written notice to State. Unless otherwise agreed in writing,
Tenant shall promptly reconstruct, repair, or replace the Property and any
Improvements as nearly as possible to its condition immediately prior to the damage or
destruction.
(b) State shall not be deemed to have actual knowledge of the damage or destruction of the
Property or any Improvements without Tenant's written notice.
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 Tenant of each claim waived. No claim is waived
unless State waives with specificity.
12.3 Insurance Proceeds. Tenant's duty to reconstruct, repair, or replace any damage or destruction
of the Property or any Improvements on the Property shall not be conditioned upon the availability of
any insurance proceeds to Tenant from which the cost of repairs may be paid. The parties shall use
insurance proceeds in accordance with Subparagraph I0.2(g)(3).
12.4 Rent in the Event of Damage or Destruction. Unless this Lease is terminated by mutual
agreement, there shall be no abatement or reduction in rent during such reconstruction, repair, and
replacement.
12.5 Default at the Time of Damage or Destruction. In the event Tenant is in default under the
terms of this Lease at the time damage or destruction occurs, State may elect to terminate the Lease
and State shall then have the right to retain any and all insurance proceeds payable as a result of the
damage or destruction.
SECTION 13 CONDEMNATION
13.1 Definitions.
(a) Taking. The term "taking," as used in this Lease, means that an entity authorized by
law exercises the power of eminent domain, either by judgment or settlement in lieu of
judgment, over all or any portion of the Property and any Improvements. Taking
includes any exercise of eminent domain on any portion of the Property and
Improvements that, in the judgment of the State, prevents or renders impractical the
Permitted Usc. A total taking occurs when the entire Property is taken. A partial taking
occurs when the taking does not constitute a total taking as defined above.
(h) Voluntary Conveyance. The terms "total taking" and "partial taking" shall include a
voluntary conveyance, in lieu of formal court proceedings, to any agency, authority,
public utility, person, or corporate entity empowered to condemn property.
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(c) Date of Taking. The term "date of taking" shall mean the date upon which title to the
Property or a portion of the Property passes to and vests in the condemner or the
effective date of any order for possession if issued prior to the date title vests in the
condemner.
13.2 Effect of Taking. If during the Term there shall be a total taking,the leasehold estate of
Tenant in the Property shall terminate as of the date of taking. if this Lease is terminated, in whole or
in part, all rentals and other charges payable by Tenant to State and attributable to the Property taken
shall be paid by Tenant up to the date of taking. If Tenant has pre-paid rent, Tenant will be entitled to
a refund of the pro rata share of the pre-paid rent attributable to the period after the date of taking. In
the event of a partial taking, there shall be a partial abatement of rent from the date of taking in a
percentage equal to the percentage of Property taken.
13.3 Allocation of Award.
(a) In the event of any condemnation,the award shall be allocated between State and
Tenant based upon the ratio of the fair market value of(1) Tenant's leasehold estate and
Tenant-Owned Improvements on the Property and(2) State's interest in the Property;
the reversionary interest in Tenant-Owned Improvements, if any; and State-Owned
Improvements.
(b) In the event of a partial taking, this ratio will be computed on the basis of the portion of
Property or improvements taken.
(c) If Tenant and State are unable to agree on the allocation, it shall be submitted to binding
arbitration in accordance with the rules of the American Arbitration Association.
SECTION 14 DEFAULT AND REMEDIES
14.1 Default Defined. Tenant shall be in default of this Lease on the occurrence of any of the
following:
(a) Failure to pay Annual Rent or other expenses when due;
(b) Failure to comply with any law, regulation,policy, or order of any lawful governmental
authority;
(c) Failure to comply with any other provision of this Lease;
(d) Proceedings are commenced by or against Tenant under any bankruptcy act or for the
appointment of a trustee or receiver of Tenant's property.
14.2 Tenant's Right to Cure.
(a) A default shall become an event of default ("Event of Default")if Tenant fails to cure
the default within the applicable cure period after State provides Tenant with written
notice of default, which specifies the nature of the default.
(b) The cure period shall be sixty (60) days_
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(c) State may elect to deem a default by Tenant as an Event of Default if the default occurs
within six (6) months after a default by Tenant for which State has provided notice and
opportunity to cure. This Paragraph 14.2 is effective regardless of whether the first and
subsequent defaults are of the same nature.
14.3 Remedies.
(a) Upon an Event of Default, State may terminate this Lease and remove Tenant by
summary proceedings or otherwise.
(b) Without terminating this Lease, State may also relet the Property on any terms and
conditions as State in its sole discretion may decide are appropriate.
(1) if State elects to relet, rent received by it shall be applied: (1)to the payment of
any indebtedness other than rent due from Tenant to State; (2) to the payment of
any cost of such reletting; (3)to the payment of the cost of any alterations and
repairs to the Property; and (4)to the payment of rent and leasehold excise tax
due and unpaid under this Lease. State shall hold and apply any balance to
Tenant's future rent as it becomes due.
(2) Tenant shall be responsible for any deficiency created by the reletting during
any month and shall pay the deficiency monthly.
(3) At any time after reletting, State may elect to terminate this Lease for the
previous Event of Default.
(c) State's reentry or repossession of the Property under Paragraph 14.3(b) shall not be
construed as an election to terminate this Lease or cause a forfeiture of rents or other
charges to be paid during the balance of the Term, unless State gives a written notice of
termination to Tenant or termination is decreed by legal proceedings.
SECTION 15 ENTRY BY STATE
State shall have the right to enter the Property at any reasonable hour to inspect for compliance with
the terms of this Lease. State's failure to inspect the Property shall not constitute a waiver of any
rights or remedies under this Lease.
SECTION 16 DISCLAIMER OF QUIET ENJOYMENT
16.1 No Guaranty or Warranty.
(a) State believes that this Lease is consistent with the Public Trust Doctrine and that none
of the third-party interests identified in Paragraph 1.1(b) will materially or adversely
affect Tenant's right of possession and use of the Property, hut State makes no guaranty
or warranty to that effect.
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(b) State disclaims and Tenant releases State from any claim for breach of any implied
covenant of quiet enjoyment. This disclaimer and release includes, but is not limited to,
interference arising from exercise of rights under the Public Trust Doctrine; Treaty
rights held by Indian Tribes; and the general power and authority of State and the
United States with respect to aquatic lands and navigable waters.
(c) Tenant shall be responsible for determining the extent of its right to possession and for
defending its leasehold interest.
16.2 In the Event of Eviction by Third Party. In the event Tenant is evicted from the Property by
reason of successful assertion of any of the rights of any third party, this Lease shall terminate as of the
date of the eviction. In the event of a partial eviction, Tenant's rent obligations shall abate as of the
date of the partial eviction, in direct proportion to the extent of the eviction, but in all other respects,
this Lease shall remain in full force and effect.
SECTION 17 NOTICE
Any notices required or permitted under this Lease may be personally delivered, delivered by facsimile
machine, or mailed by certified mail, return receipt requested, to the following addresses or to such
other places as the parties may direct in writing from time to time:
State: DEPARTMENT OF NATURAL RESOURCES
NW Region
919 North Township Street
Sedro Woolley, WA 98284
Tenant: CITY OF ANACORTES
PO Box 547
Anacortes, WA 98221
A notice shall be deemed given and delivered upon personal delivery, upon receipt of a confirmation
report if delivered by facsimile machine, or three (3) days after being mailed as set forth above,
whichever is applicable. All notices must identify the lease number to which the notice pertains.
Notices transmitted by facsimile machine shall state the number of pages contained in the notice,
including the transmittal page, if any.
SECTION 18 MISCELLANEOUS
18.1 Authority. Tenant and the person or persons executing this Lease on behalf of Tenant
represent that Tenant is qualified to do business in the State of Washington, that Tenant has full right
and authority to enter into this Lease, and that each and every person signing on behalf of Tenant is
authorized to do so. Upon State's request, Tenant will provide evidence satisfactory to State
confirming these representations. This Lease is entered into by State pursuant to the authority granted
it in Chapters 79.105 to 79.135 RCW and the Constitution of the State of Washington.
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18.2 Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the
parties, their successors, and assigns.
18.3 Headings. The headings used in this Lease are for convenience only and in no way define,
limit, or extend the scope of this Lease or the intent of any provision.
18.4 Entire Agreement. This Lease, including the exhibits and addenda, if any, contains the entire
agreement of the parties. All prior and contemporaneous agreements, promises, representations, and
statements relating to this transaction or to the Property, if any, are merged into this Lease.
18.5 Waiver.
(a) The waiver by State of any breach or default of any term, covenant, or condition of this
Lease shall not be deemed a waiver of such term, covenant,or condition; of any
subsequent breach or default of the same; or of any other term, covenant, or condition
of this Lease. State's acceptance of a rental payment shall not be construed to be a
waiver of any preceding or existing breach other than the failure to pay the particular
rental payment that was accepted.
(b) The renewal of the Lease, extension of the Lease, or the issuance of a new lease to
Tenant, shall not constitute waiver of State's ability to pursue any rights or remedies
under the Lease.
18.6 Cumulative Remedies. The rights and remedies of State under this Lease are cumulative and
in addition to all other rights and remedies afforded to State by law or equity or otherwise.
18.7 Time is of the Essence. TIME IS OF THE ESSENCE as to each and every provision of this
Lease.
18.8 Language. The word "Tenant"as used in this Lease shall be applicable to one or more
persons, as the case may be. The singular shall include the plural, and the neuter shall include the
masculine and feminine. If there is more than one Tenant,their obligations shall be joint and several.
The word"persons," whenever used, shall include individuals, firms, associations, and corporations,
18.9 Invalidity. If any provision of this Lease shall prove to be invalid, void, or illegal, it shall in
no way affect, impair, or invalidate any other provision of this Lease.
18.10 Applicable Law and Venue. This Lease shall be interpreted and construed in accordance with
the laws of the State of Washington. Any reference to a statute shall mean that statute as presently
enacted or hereafter amended or superseded. Venue for any action arising out of or in connection with
this Lease shall be in the Superior Court for Thurston County, Washington.
18.11 Recordation. Tenant shall record this Lease or a memorandum documenting the existence of
this Lease in the county in which the Property is located, at Tenant's sole expense. The memorandum
shall contain, at a minimum,the Property description, the names of the parties to the Lease, the State's
lease number, and the duration of the Lease. Tenant shall provide State with recording information,
including the date of recordation and file number. Tenant shall have thirty(30) days from the date of
Form Date: 0612006 28 Aquatic Lands Lease
No.20-076615
Tenant's Initials
delivery of the final executed agreement to comply with the requirements of this Subsection 18.11. If
Tenant fails to record this Lease, State may record it and Tenant shall pay the costs of recording upon
State's demand.
18.12 Modification. Any modification of this Lease must be in writing and signed by the parties.
Oral representations or statements shall not bind either party.
18.13 Survival. Any obligations of Tenant which are not fully performed upon termination of this
Lease shall not cease, but shall continue as obligations until fully performed.
THIS AGREEMENT requires the signature of all parties and is executed as of the date of the last
signature below.
CITY OF ANACORTES,
a government entity
Dated: 12) iO By: 66t,:744,51jAA/94
DEAN MAXWELL
Title: Mayor of Anacortes
Address: PO Box 547
Anacortes, WA 98221
STATE OF WASHINGTON
DEPARTMENT OF NATU RESOURCES
Dated: /p p By:
OUG THE LAND
Title: Commissioner of Public Lands
Address: PO Box 47027
Olympia, WA 98504-7027
Modified Standard Aquatic Lands Lease '{aw= O,�
Approved as to Form on June 7, 2006 ter - "d
By: Christa Thompson fj �
+ `r"ti°A
Assistant Attorney General �...
State of Washington
Form Date: 06/2006 29 Aquatic Lands Lease
No.20-076615
Tenant's Initials
REPRESENTATIVE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss.
County of Skagit )
I certify that I know or have satisfactory evidence that DEAN MAXWELL is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument, and acknowledged it as the Mayor of Anacortes to be the free
and voluntary act of such party for the uses and purposes entioned in the 'ns rument.
DATED: 14/V°A � tiL
(Sinatiiiire)
{Seal or stam �t�� i Aei ll C.
- rr
k1hcd
I 11r (Print Name)
Notary Public in and for the pate of Washington,
C,1 e;. M N/jI !. p/ Mat/Lit• , .. ,` S'S, ` residing at: r► C t €iinQf
i - E� r':
My Commission Expires: O—fc r/d
,A'r ltlrL`
Farm Date: 06/2006 30 Aquatic Lands Lease
No. 20-076615
Tenant's Initials
STATE OF WASHINGTON )
) ss.
County of
ihtAY5
I certify that I know or have satisfactory evidence that DOUG SUTHERLAND the person who
appeared before me, and said person acknowledged that he signed this instrument, on oath stated that
he was authorized to execute the instrument, and acknowledged it as the Commissioner of Public
Lands, and ex officio administrator of the Department of Natural Resources of the State of Washington
to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: 10 D - 0LPCD-611-k-ta
(Signatur
(Seal or stamp) ,,,����� C��`t t-f"�- I t LL
pi, R ,ty. (Print Name)
0N4vsNoN gyp, „1 f Notary Public ' and forcthe State of Washington,
to e lio-ck `? Of', residing at:
t 09
My Commission xpires: 5_ ��
5-19-uz
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No.20-Q76615
Tenant's initials
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e18nFaCA1E Nn,100*0 ETAIr-_ .._ 3 e U.,RA, .n.,xx0 FIELD 0DOK_NEEL 803 SOUTH FIRST ST.,IEOISNT VERNON.WA R8273(366�.}3F-5761 4'
Exhibit B
Fidalgo Bay Habitat Site Operations and Monitoring Plan
Prepared by Grette Associates
for the Port of Anacortes
June 30, 2006
INTRODUCTION
This Lease is by and between the STATE OF WASHINGTON, acting through the
Department of Natural Resources (State) and the City of Anacortes (Tenant). The Port of
Anacortes (Port)is the sub tenant to the City of Anacortes.
The Port of Anacortes proposes to modernize Pier 1 and the Dakota Creek Shipyard Site
(within their Port Management Agreement with DNR) to meet their current and future
operational needs. This Port's proposed project will eliminate eelgrass beds and in order
to offset the unavoidable adverse impacts, the Port is implementing this Fidalgo Bay
Eelgrass Project (authorized by this lease) within an area that had been pre-selected for
this type of a project by the City under the Fidalgo Bay Wide Plan. DNR had issued a
Right of Entry to the City for a portion of this site under agreement No, 20-013623. By
signing this Lease, Tenant acknowledges the expiration of the Right of Entry NO 20-
013623.
The Port of Anacortes proposes to construct an approximately 6-acre eelgrass bed in an
otherwise unvegetated portion of Fidalgo Bay. This would be accomplished by placing
clean fill material in a portion of the bay that is currently too deep to support eelgrass.
Based on observations in other portions of the bay, it is expected that all habitat above
elevation —7 ft Mean Lower Low Water (MLLW) will support eelgrass growth.
However, because existing elevations in this portion of Fidalgo Bay range from between
approximately —8 and—10 ft MLLW, the footprint of the site will be slightly larger than 6
acres. Assuming that the side slopes of the site will be stable at approximately 4H:1V, the
footprint of the site will be approximately 6.6 acres.
CONSTRUCTION
The Project involves placing approximately 3 feet of fill material to achieve a post-
project bottom elevation of approximately —5 ft MLLW. The project would involve
using a barge to place clean fill material at the Habitat Site. When completed, the Project
will have elevated approximately 6 acres of habitat to an elevation appropriate for
colonization by eelgrass. To provide a point of reference for the barges during
construction, nine temporary buoys may be placed along the margins of the Habitat Site.
The Habitat Site will be constructed with sand to silty sand dredged material (up to
60,000 cubic yards) from the Swinomish Channel Mouth Maintenance Dredging Project
This material has been tested in accordance with DMMP guidelines and is suitable for
Fidalgo Bay Habitat Site 1
Operations and Monitoring Plan
beneficial use. Under this agreement DNR has agreed not to pursue payment for the
dredge materials, however,.DNR staff believe the regulatory framework established by
state and federal agencies make it appropriate for a public or private entity to pay for the
use of dredged materials in compensatory mitigation projects. DNR does not believe that
RCW 79.140.110, which authorizes the free use of dredged materials by local
government for public purposes, applies to the use of dredged materials in compensatory
mitigation projects. By making this decision, State does not intend to set a precedent in
other situations and reserves the right to seek compensation for use of State-owned
dredge material used in compensatory mitigation projects at other sites.
In addition, it is understood that the details of any "mitigation credits" associated with
this project are yet to be determined by the Washington State Department of Fish and
Wildlife (perhaps in conjunction with the Army of Corps of Engineers). "If any
mitigation credits remain to be distributed after that process, Tenant in any future project
may use those credits for public purposes. If Tenant elects to sell any remaining
mitigation credits to a public or private entity, the City shall first negotiate an appropriate
fee with the State to compensate the State for the value of the fill before any credits may
be sold.
Spill and Pollution Prevention Measures
Federal, state, and local permits contain conditions that are intended to reduce the
potential for short-term effects from in-water construction activities. These provisions
comprise a list of conservation measures that are applied to projects in or near marine and
estuarine waters. In addition to these provisions, the Port will require that additional Best
Management Practices (BMPs) be implemented during construction to further limit the
potential for release of hazardous materials to the marine environment. The following is
a list of permit conditions and BMPs that will be conservation measures for the Project.
• All fill material used during Habitat Site construction will be DMMP suitable.
• Water quality standards and procedures that limit the impact of turbidity to a defined
mixing zone.
• Corrective measures that must be implemented if temporary water quality standards
are exceeded outside of a defined mixing zone
• Fill placement operations shall be conducted in a manner that minimizes the
disturbance or siltation of adjacent waters and prevents the accidental discharge of
petroleum products, chemicals or other toxic deleterious substances into waters of the
state (401 Certification, Short-Term Modification to the Water Quality Standards).
• Any discharge of oil, fuel or chemicals into state waters is prohibited (401
Certification, Short-Term Modification to.the Water Quality Standards).
• Fuel hoses, oil drums, oil or fuel transfer valves and fittings, etc., shall be checked
regularly for drips or leaks, and shall be maintained and stored properly to prevent
spills into state waters. Proper security shall also be maintained to prevent vandalism
(401 Certification, Short-Term Modification to the Water Quality Standards).
Fidalgo Bay Habitat Site 2
Operations and Monitoring Plan.
• The contractor will have oil-absorbent materials on site to be used in the event of a
spill or if any oil product is observed in the water (BMP).
• The contractor is responsible for the preparation of a Spill Prevention, Control, and
Countermeasures (SPCC) plan to be used for the duration of the Project. The plan
shall be submitted to the Project engineer prior to the commencement of any
construction activities. A copy of the plan with any updates will be maintained at the
work site by the contractor (BMP).
The SPCC plan will identify construction planning elements and recognize potential spill
sources at the site. The plan will outline the response actions in the event of a spill or
release and shall identify notification and reporting procedures. The plan will also
outline contractor management elements such as personal responsibilities, project site
security, site inspections, and training.
The plan will outline what measures shall be taken by the contractor to prevent the
release or spread of hazardous materials, either found on site and encountered during
construction but not identified in contract documents, or any hazardous materials that the
contractor stores, uses, or generates on the construction site during construction activities.
These items include but are not limited to gasoline, oils, and chemicals. Hazardous
materials are defined in RC W 70.105.010.
Construction Schedule
Habitat Site construction would occur during the period approved for in-water
construction in Fidalgo Bay (expected to be July 16 through January 31). Overall, the
Habitat Site will take approximately 6 weeks to complete. Given the current status of
permit applications, it is expected that Project construction would occur during the 2006
in-water construction season.
EELGRASS ESTABLISHMENT
Following fill placement, eelgrass transplanting will be conducted to initiate and
accelerate colonization. The eelgrass planting program will be initiated in the spring or
early summer following completion of the Habitat Site (based on the schedule above, the
first year of eelgrass transplanting would occur in 2007). Donor material will likely be
harvested from within the DCI slips. Alternative donor sites include eelgrass beds within
Cap Sante Boat Haven or other Port-owned properties or privately or publicly owned
eelgrass beds in Fidalgo Bay. It is appropriate to note that eelgrass harvested from state-
owned,DNR managed aquatic lands will be purchased by the Port.
Transplanting will be completed using the staple method outlined in Guidelines for
Conservation and Restoration of Seagrasses in the United States and Adjacent Waters
(Fonseca et al. 1998) and utilized at the Drayton Harbor site. For each planting year,
eelgrass transplanting will be performed at the Habitat Site by planting between five and
fifteen 15m x 15m transplant plots (each transplant plot will initially contain
approximately 1,000 turions). Each transplant plot will consist of individual Planting
Fidalgo Bay Habitat Site 3
Operations and Monitoring Plan
Units (PUs — each containing between 4 and 5 turions) planted in a grid pattern with lm
on center spacing.
Plant spacing and plot size have been specifically designed based on the goals and
timeline for the Project and the physical conditions at the Habitat Site. Specifically, low
to moderate current speeds in Fidalgo Bay make large, widely spaced transplant plots
more feasible than in a higher energy environment, as is the case at the Port of
Bellingham's large scale mitigation site in Drayton Harbor. Post-project monitoring in
Drayton Harbor indicates that transplant plots increase both in size and density, but that
the transplant plots filled-in quickly, creating a high-density patch by the end of the
second growing seasons (PIE 2001a, 2001b, and 2002, Grette Associates 2003a and
2003b). This was desirable at the Drayton Harbor Site due to the protection that a high-
density bed provides to each individual shoot. However, the lower energy environment
in Fidalgo Bay is conducive to a lower initial planting density which in turn will allow for
a greater degree of infilling through asexual vegetative growth of the rhizomes and
associated lateral shoots.
MONITORING
Overview
The purpose of long-term monitoring is to document changes in physical and biological
attributes of the mitigation actions and to test or compare those attributes against
established performance standards (Table 1).
Monitoring at the Fidalgo Bay Habitat Site will be conducted over a 10-year period,
unless terminated earlier by consensus of the permitting agencies and the Port. Physical
monitoring will commence after construction is complete to evaluate the "as-built"
acreage and elevation of mitigation habitats. Biological sampling will begin later to
allow for the development of salmon-supporting biota.
This schedule of monitoring at the Fidalgo Bay llabitat Site will be dependent upon
construction schedules. Monitoring activities will commence the year that construction
activities on the site are completed (Year 0).
The monitoring at the Fidalgo Bay Habitat Site is included in Grette Associates' Project
Pier 1 Mitigation Plan that is under review at the United States Army Corps of Engineers.
The Port contact for the mitigation area monitoring program is Bob Elsner, Director of
Projects and Environmental Affairs, 360-299-1822.
Performance Standards
Performance standards provide a clear means of evaluating the success of the mitigation
sites. Performance standards also assist in the identification of problem areas regarding
site performance so that contingency actions can be implemented in a timely and efficient
manner. The functional objectives and performance standards for the mitigation actions
at the cnd of the monitoring programs for the Fidalgo Bay Habitat Site (10-year program)
Fidalgo Bay Habitat Site 4
Operations and Monitoring Plan
are listed in Table 1. Monitoring activities proposed to address the functional objectives
and performance standards are described below in the next section.
Table I. Objectives and Performance Standards for Fidalgo Bay.
Objectives Mitigation Sites Performance Standards
• Replace the acreage of intertidal and •
shallow subtidal habitat(non-eelgrass
covered)that was converted to subtidal
habitat with eelgrass habitat.
• Provide a portion of the mitigation
actions in a less developed area 1. Provide approx. 140,000 eelgrass
(Fidalgo Bay) by restoring historic Fidalgo Bay Habitat Site turions at the Fidalgo Bay Habitat
native eelgrass beds. Site.
• Replace the acreage of eelgrass
habitat at a rate of 1.5:1.
• Replace the number of eelgrass
turions at a rate of 1.5:1.
Note: The results of a new record survey of the DCI ship basin may increase the mitigation (acreage
and/or turion number) to be assigned to the Port of Anacortes's Project Pier I. The Port is committed to
providing at least the number shown in the table above.
2 The entire 6-acre Fidalgo Bay Habitat Site is available to achieve the target shoot requirement. 2.30 acres
of the Fidalgo Bay Habitat Site will be assigned to this Project; however,the acreage credit assigned for the
Project is not a distinct geographic unit within the Fidalgo Bay Habitat Site, but represents 2.30 acres of the
entire 6 acres available.
Physical Monitoring
The purpose of the physical monitoring program at the Fidalgo Bay Habitat Site is to
document acreage and changes in the elevation of the site in relation to established
reference points.
Physical monitoring will include "as-built" (Year 0) and post-construction surveys (Years
2, 3, 6 and 10). An "as-built" survey that will occur immediately after construction will
document the final constructed configuration (Table 2). Year 0 (see Table 3) will be the
year in which construction is completed. Post-construction surveys will be conducted in
subsequent years to monitor changes in acreage and elevation at the mitigation site. The
"as-built'' survey will be coordinated with the contractors' survey to avoid repetition of
effort.
"As-built" and post-construction bathymetric surveys at the Fidalgo Bay Habitat Site will
be conducted on the schedule specified in Tables 2 and 3. Post-construction physical
monitoring will be used to calculate acreage within the target range of elevations for the
entire 6-acre Fidalgo Bay Habitat Site (-7 feet MLLW and shallower) and measure subtle
changes to site contours that may result from wave action.
Fidalgo Bay Habitat Site 5
Operations and Monitoring Plan
Table 2. Fidalgo Bay Habitat Site monitoring program overview.
Sampling
Replicate Samples Per Period
Activity locations Sampled ,. Parameter Location Per-Year `Sampling Season
"As-built" N/A Bathymetric survey N/A N/A Within several
survey months of
completion
Post- N/A Bathymetric survey N/A
construction Summer
survey
Eelgrass 1)Transplant Plots 1
establishment a. Pre-coalescence 1)a,PU' survival,turion 1)a. 10 transplant plots;
count,areal coverage, 90 PUs/transplant plot
•
canopy volume,
condition, occurrence of
reproductive turions
b. Post-coalescence 1)b.Areal coverage,density, 1) b. 10 transplant plots;
canopy volume, 10 points/transplant
condition,occurrence of plot; Late Summer
(Late July to
reproductive turions 3 replicates/point Early September)
2)Transects (natural 2)Areal extent, density, 2) Count all 1
colonization) condition, occurrence of
reproductive turions
3)Reference sites 3)Areal coverage, density, 3)2 reference sites; 1
condition 10 points/reference
site;
3 replicates/point
A planting unit (PU) of eelgrass consists of the bare root material to be transplanted. A minimum of 4
turions will constitute one PU.
Table 3. Fidalgo Bay Habitat Site monitoring program schedule.
•
Habitat Attribute Monitoring Year After Construction •
0 l 2 3 4 5 6 lU
Post-construction physical X' Xz XZ XZ X3
monitoring
Eelgrass Monitoring X X2 X2 X2 X2 X3
The"as-built" survey will be submitted within 3 months of the closure of the Port's construction contract
`Preliminary comparison to performance standards
3 Final comparison to performance standards
Bathymetric surveys will be conducted using a precision acoustic system capable of
differentiating between eelgrass and true bottom elevations. The survey will use a
differential global positioning system (dGPS) to determine positions. At a minimum, the
bathymetric survey will yield a map with 1-foot bottom contours with transect spacing of
a minimum of 30 meters (m). The survey benchmark will be tied to state plane
coordinates and elevations referenced to the Corps' datum for MLLW. All survey points
measured will include both the coordinates and elevation.
Fidalgo Bay Habitat Site 6
Operations and Monitoring Plan
The data collected during all bathymetric surveys will be converted into maps presented
with that year's monitoring report. A general discussion of any subsequent erosion or
accretion at the site will be included in the report.
Biological Monitoring
The purpose of the long-term biological monitoring program at Fidalgo Bay Habitat Site
is to document changes in eelgrass presence at the mitigation site and to compare the
conditions to performance standards.
Eelgrass Monitoring. Eelgrass colonization will be monitored on the schedule presented
in Table 3 for the Fidalgo Bay Habitat Site. Eelgrass parameters will be assessed during
the period of peak biomass in late summer (late July to early September). Diver
observations will be made at each of the transplant plots and along a minimum of three
transects within the mitigation site to measure natural colonization. The combined total
of eelgrass colonization at the Fidalgo Bay Habitat Site within transplanted areas and
resulting natural colonization (volunteer eelgrass establishment) will be used to assess the
success of the Fidalgo Bay Habitat Site relative to the performance standards.
Additionally, two reference sites within Fidalgo Bay will be monitored for comparison to
the Fidalgo Bay Habitat Site; one area encompassing eelgrass with a relatively high
density, and one area encompassing eelgrass with a relatively low density. The location
of these two reference sites will be determined during the first monitoring year. The
purpose of these reference sites is to have local information on eelgrass variability at
locations outside of the mitigation site. The techniques described below are consistent
with that outlined in Fonseca et al. (1998) and WDFW's (1996) Intensive
Eelgrass/Macroalgae Habitat Survey Guidelines._
Due to the high costs associated with monitoring eelgrass bed functions, direct function-
based parameters (i.c., epibcnthic prey, fish use) have not been included as part of the
monitoring program. However, because many habitat functions (i.e., animal abundance,
taxonomic composition, complexity of the eelgrass canopy, macroalgae abundance) are
directly related to eelgrass coverage (Fonseca ct al. 1998), eelgrass coverage is used as a
surrogate for such functions.
Transplant Plots. The Port will plant 10 50- by 50-foot transplant plots within the
Fidalgo Bay Habitat Site (for a total area planted of 25,000 sf or 0.57 acre).
Based on the current plan to plant up to approximately 30,000 turions, or 7,500
planting units (PUs1), 750 PUs will be planted 2-foot on-center within each of the
10 transplant plots In the early stages of transplant plot monitoring, parameters to
be measured will include PU survival, turion count per PU, and areal coverage per
PU. After PUs begin to coalesce and the PU from which turions originated can no
longer be discerned, areal coverage and turion density data will be recorded and
counts on a PU basis discontinued.
Prior to the start of monitoring, 10 PUs will be randomly selected within each of
the transplant plots (random points will be selected using the random number
' A planting unit (PU) of eelgrass consists of the bare root material to be transplanted. A minimum of 4
turions will constitute one PU.
Fidalgo Bay Habitat Site 7
Operations and Monitoring Plan
table such as that presented in Zar 1998). Each of the 10 randomly selected PUs,
in addition to the 8 PUs adjacent to the randomly selected PU, will comprise a
"sampling plot", for a total of 9 PUs per sampling plot (i.e., a 3-PU by 3-PU grid).
To ensure a representative sample, sampling plots that overlap previously selected
random points will be discarded and redrawn. This monitoring approach allows
for 12 percent of the PUs planted (7,500 PUs) to be monitored (i.e., 900 PUs will
be sampled; 10 transplant plots x 10 sampling plots per transplant plots x 9 PUs
per sampling plot). This sampling intensity is consistent with Fonseca et al.
(1998) guidance regarding the number of replicates suggested for a planting
project of the scale presented herein.
Monitoring will begin by locating the corners of each of the transplant plots using
a dGPS. Divers will then locate two rebar stakes at the two northernmost corners
of the planting grid. Measuring tapes will then be attached to each of the rebar
stakes, and used to triangulate the location of each sampling plot.
At each sampling plot, divers will record the following information: (1) survival
of individual PUs, (2) the number of turions per PU, (3) PU area, (4) general
condition, and (5) presence of reproductive turions. General observations of
epiphyte growth, new turion growth, macroalgae coverage, blade length and signs
of physical or biological disturbance will also be noted. PU area will be
determined by recording the average of two width measurements of the PU over
the bottom (Fonseca et al. 1998). This number will then be divided by two,
squared and multiplied by m (i.e., m x r2) to compute the area of an individual PU.
The number of surviving PUs will then be multiplied by the average area per PU
to determine the area covered within each transplant plot.
At the point when a transplant plot has coalesced and divers can no longer
identify individual PUs, areal coverage and turion density will be measured using
the following techniques. Areal coverage of each of the transplant plots, after
coalescence, will be measured by performing a diver based eelgrass delineation
survey. Methods used for eelgrass delineation will be a modification of
guidelines established by WDFW (1996). Divers will begin by surveying
transects through the transplant plots. The edge of the patches will be located and
marked with temporary buoys. The delineated edge will then be recorded with a
dGPS.
Divers will locate ten randomly selected points within each of the ten transplant
plots (sec above). Turion density will be measured by placing a 0.25 m2 quadrat
at the 2, 6 and 10 o'clock position relative to north. The number of turions within
the quadrat while in each of the three positions will be recorded, noting the
general condition, approximate blade length and presence of reproductive turions.
Zero counts will be included in the data collected from the Fidalgo Bay Habitat
Site; that is, in the case that a sampling location results in an average turion count
of zero, the data will be recorded. This method is different than that employed
during the baseline eelgrass survey in DC1, where zero counts were excluded in
Fidalgo Bay Habitat Site 8
Operations and Aloniroring Plan
•
order to minimize variability by more accurately representing the data expected
from an eelgrass delineation excluding bare areas. The inclusion of zero counts in
the Fidalgo Bay Habitat Site surveys in conjunction with the exclusion of zero
counts in the baseline DCI survey will result in a conservative comparison, as the
impact in the DCI ship basin is likely overestimated by these methods, and the
amount of new eelgrass at the Fidalgo Bay Habitat Site will likely be
underestimated by these methods.
Total turion count will be determined by multiplying average density by area
(acres) of eelgrass.
Data collected during the eelgrass survey will be transferred to AutoCAD to
produce a site map illustrating the distribution of eelgrass within the Fidalgo Bay
Habitat Site.
Volunteer Eelgrass Establishment. In addition, divers will swim along a
minimum of three transects to measure the presence or absence of volunteer
eelgrass colonization within the mitigation sites. Additional transects may be
added as needed to provide a representative estimate of cover at the mitigation
sites. Transect surveys will be accomplished with a two diver team swimming
parallel along each of the transects. Each diver will record individual eelgrass
turions or patches within 2 m of the transect line (each diver will be responsible
for one side of the transect). Location along the transect, patch size, density,
condition, and the occurrence of reproductive turions will also be recorded for all
volunteer eelgrass encountered along each of the transects. General observations
of epiphyte growth, and the occurrence of seedlings and macroalgae will also be
noted for all eelgrass encountered along each of the transects. If volunteer
eelgrass is encountered at a frequency where it is no longer practicable to record
the size and density of every volunteer patch, size and density classes will be
assigned to volunteer patches and their location noted along the transect.
Reference Site Monitoring. The goal of monitoring two reference sites is to
determine whether there is a trend in eelgrass abundance within Fidalgo Bay,
outside of the Fidalgo Bay Habitat Site. The two reference sites will each range
from 0.5 to 1.0 acre in area. As measured within the transplant plots after they
coalesce, turion density within the reference sites will be measured using the
following techniques. Divers will locate ten randomly selected points within each
of the two reference sites. Turion density will be measured by placing a 0.25 m2
quadrat at the 2, 6 and 10 o'clock position relative to north. The number of
turions within the quadrat while in each of the three positions will be recorded,
noting the general condition, approximate blade length and presence of
reproductive turions. As described above for the transplant plots, zero counts will
be included in the data collected from the reference sites.
Total turion count within the reference sites will be determined by multiplying
average density by area (acres) of eelgrass.
Fidalgo Bay Habitat Site 9
Operations:and Monitoring Plan
Reporting Requirements
Data obtained during the bathymetric survey and diver surveys will be mapped using
Auto CAD mapping software and presented with that year's monitoring report. The
report will also include a tabular and/or graphical analysis of the progression of eelgrass
transplant plot size, density and total turion count, as well as average turion density
within the two reference sites. This information will then be used to track eelgrass
colonization throughout the Fidalgo Bay Habitat Site and measure the success of
transplant plots. Reports will include a discussion of the general condition of eelgrass
throughout the Fidalgo Bay Habitat Site, including the occurrence of reproductive and
volunteer turions, epiphytes and macroalgae.
Reports presenting the monitoring activities outlined in this Mitigation Plan will be
submitted to the Corps and WDFW. The "as-built" report will be submitted within 6
months of completion of construction of the Fidalgo Bay Habitat Site. Post-Project
monitoring reports will also be submitted within 6 months of completion of that year's
monitoring activities. Overall, the Port will submit a monitoring report every year after
permit issuance describing the monitoring that has occurred and pertinent information
from the site. Consequently, some reports may convey that no monitoring activity
occurred during that year.
Adaptive Management Plan
An adaptive management and/or contingency plan will be developed during the
environmental permit review process. That plan will provide a framework for adapting
the planting program in the event that eelgrass transplant plots or natural colonization are
not proceeding at an adequate pace. The following are examples of actions that may be
implemented if monitoring results indicate that the Habitat Site is not colonizing with
eelgrass.
• Replanting within existing eelgrass transplant plots (subject to donor site limitations).
• Modification of PU spacing at subsequent transplant plots (i.e., PUs spacing may be
adjusted to 0.5 m2 centers).
• Modification of transplant plot size or location within the Habitat Site.
• Increase in transplanting program intensity (subject to donor site limitations).
• Addition of bioturbation exclusion devices (fencing, cages, etc.).
• Selection of an alternative or additional source of donor material.
Fidalgo Bay Habitat itat Site 10
Operations and Monitoring Plan
REFERENCES
Fonseca, Mark S., W.J. Kenworthy and G.W. Thayer. 1998. Guidelines for the
Conservation and Restoration of Seagrasses in the United States and Adjacent
Waters. NOAA Coastal Ocean Program Decision Analysis Series No. 12 NOAA
Coastal Ocean Office, Silver Springs, MD. 222 pp.
Grette Associates. 2003a. Blaine Harbor Moorage Expansion and Dredging Project, Post-
Project Mitigation Site Monitoring Report 2002. Prepared for the Port of
Bellingham. March 2003.
Grette Associates. 2003b. Blaine Harbor Moorage Expansion and Dredging Project, Post-
Project Mitigation Site Monitoring Report 2003. Prepared for the Port of
Bellingham. October 2003.
Grette Associates, Inc. In Preparation. Project Pier 1 Mitigation Plan. Prepared for the
Port of Anacortes. In preparation.
Pacific International Engineering (PIE). 2001 a. Blaine Harbor Moorage Expansion and
Dredging Project, Post-Project Mitigation Site Monitoring Report 2000. Prepared
for the Port of.Bellingham. November 2001.
Pacific International Engineering (PIE). 200Ib. Technical Memorandum, Blaine Harbor
Moorage Expansion and Dredging Project,Eelgrass Planting and Year 2001 Post-
Project Mitigation Site M onitori Report. Prepared for the Port of Bellingham.
December 2001.
Washington Department of Fish and Wildlife (WDFW). 1996. Eelgrass/MacroaIgae
Habitat Survey Guidelines. Olympia, WA. January I2, 1996.
Zar, Jerrold H. 1998. Biostatistical Analysis 4th Edition. Prentice-IIall, Inc. biological
sciences series, Englewood Cliffs, N.J. October 8, 1998.
Fidalgo Bay flabitat Site II
Operations and Monitoring Plan