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HomeMy WebLinkAbout120712-ADL 108047 PD final atm D public easementSTATE OF ALASKA DEPARTMENT OF NATURAL RESOURCES DIVISION OF MINING, LAND & WATER, SOUTHEAST REGION 400 Willoughby Ave., P.O. Box 111020 Juneau, Alaska 99811-1020 PUBLIC EASEMENT ADL 108047 THIS AGREEMENT made and entered into this XX day of Month, 20XX by and between the STATE OF ALASKA, acting by and through the Department of Natural Resources, Division of Mining, Land & Water, hereinafter referred to as Grantor, and XXXXXXXX, hereinafter referred to as Grantee. WITNESSETH, that in accordance with the provisions of Sec. 38.05.850, A.S. and the rules and regulations promulgated thereunder, Grantee having filed an application for an easement for XXXXX Project, STP-XXXX, in XXXXX with the Division together with a map showing the definite location thereon of the line of easement which Grantee has adopted and agrees to be the specific and definite location of the aforesaid easement, and WHEREAS, it is understood and agreed by Grantee herein that, as a condition to the granting of the easement applied for, the land covered by said easement shall be used for no purpose other than the location, construction, operation and maintenance of the said easement over and across the following described State lands, to wit: use the following for parcels The easement areas depicted on the easement diagrams for ADL XXXXXX are attached hereto as Attachment `A'. The easement is located within Section 36, Township 61 South, Range 81 East, Copper River Meridian. The said combined easement area contains xxx acres, more or less. OR, use the following for linear easement The easement is depicted on the easement diagram for ADL XXXXXX, attached hereto as Attachment `A'. The easement is located within Section 36, Township 61 South, Range 81 East, Copper River Meridian. The said easement extends xxxx feet in length and XXXX feet in width and contains xxxx acres, more or less. Public Easement (Rev. 5/2009) ADL108047 Page 1 of 6 Attachment "D" OR, use the following for an engineering plat file Engineering Plat File , located within Section Township _ South, Range ,_ East, Copper River Meridian and contains acres more or less according to the engineering plat recorded in the Recording District on , 20XX as Plat # TO HAVE AND TO HOLD the same until the above described land shall no longer be used for the above -mentioned purpose and subject to conditions and reservations elsewhere set forth herein and any "Special Conditions". In the event that the easement herein granted shall in any manner conflict with or overlap a previously granted right-of-way or easement, Grantee herein shall use this easement in such a manner as not to interfere with the peaceful use and enjoyment of the previously issued right-of- way or easement and no improvements shall be constructed by Grantee herein upon the overlapping area unless the consent therefore has first been obtained from Grantee under the pre-existing right-of-way or easement. Grantee in the exercise of the rights and privileges granted by this indenture shall comply with all regulations now in effect or as hereafter established by the Division of Mining, Land & Water and all other Federal, State or Municipal laws, regulations or ordinances applicable to the area herein granted. SPECIAL CONDITIONS 1. Grantor reserves the right to allow other like or compatible uses of the easement and the right to require such users to enter into an equitable maintenance agreement with the holder of this easement. The equitableness of any such agreement shall be determined by Grantor. 2. Grantor assumes no responsibility for maintenance of improvements constructed within public easements on state land, nor liability for injuries or damages attributable to that construction. Grantor also makes no warranty that dedicated lands are suitable for the existing use. 3. Public access shall not be precluded by activities or structures allowed by this right-of- way/easement. All operations must be conducted in a manner that will ensure minimum conflict with other users of the area. Grantee shall not close landing areas or trails or otherwise prevent overland access commonly used by the public. The interests served by the public trust doctrine, specifically the right of the public to use navigable waterways and the land beneath them for navigation, commerce, fishing, hunting, protection of the areas for ecological study, and other purposes, will be protected. Interference with the rights of the public to use a public easement is an actionable cause at law. 4. Grantee assumes all responsibility, risk and liability for all activities of Grantee, its Public Easement (Rev. 5/2009) ADLI08047 Page 2 of $ Attachment "D" employees, agents, invitees, contractors, subcontractors, or licensees directly or indirectly conducted in connection with this easement, including environmental and hazardous substance risks and liabilities, whether accruing during or after the term of this easement. Grantee shall defend, indemnify, and hold harmless the State of Alaska, its employees, and agents from and against any and all suits, claims, actions, losses, costs, penalties, and damages of whatever kind or nature, including all attorney's fees and litigation costs, arising out of, in connection with, or incident to any act or omission by Grantee, its employees, agents, invitees, contractors, subcontractors, or licensees, unless the sole proximate cause of the injury or damage is the negligence or willful misconduct of the State or anyone acting on the State's behalf. Within 15 days Grantee shall accept any such cause or action or proceeding upon tender by the State. This indemnification shall survive the termination of the easement. 5. Authorized representatives of the State of Alaska shall at all times have the right to enter on official business and inspect the easement area, including Grantee's improvements. 5. Grantee shall utilize the lands herein granted consistent with the purposes of the proposed use, as revealed by the application therefore, and shall maintain the premises in a neat and orderly manner and shall adopt and apply such safety measures as shall be necessary, proper and prudent with respect to the use to which the land is subjected. 7. Grantee shall take all reasonable precaution to prevent and suppress brush and forest fires. No material shall be disposed of by burning in open fire during the closed season unless a permit therefore has first been obtained from the agency empowered by law to issue such permits. Advisory: In the event that the necessity for the easement shall no longer exist, or Grantee should abandon or fail to use the same, then this easement shall terminate. 8.. Upon abandonment, termination, revocation or cancellation of this indenture, Grantee shall, within 90 days, remove all structures and improvements from the area herein granted, except those owned by Grantor, and shall restore the area to the same or similar condition as the same was upon the issuance of this easement. Should Grantee fail or refuse to remove the structures or improvements, within the time allotted, they shall be subject to removal by the State. However, Grantee shall not be relieved of the cost of the removal of the structures, improvements and/or the cost of restoring the area ADVISORY: Any lands included in this easement which are sold under a contract to purchase shall be subject to this easement. Upon issuance of title to the purchaser, this easement shall remain in effect until its date of expiration. The State of Alaska shall be forever wholly absolved from any liability for damages which might result to Grantee herein on account of this easement having been canceled, forfeited, or terminated prior to the expiration of the full term for which it was issued. NOW THEREFORE, in accordance with the provisions of Sec. 38A5.850, A.S. and the rules and regulations promulgated thereunder and in accordance with the conditions heretofore set forth or attached hereto and made a part hereof, Grantee herein is hereby authorized to Public Easement (Rev. 5/2009) ADLI08047 Page 3 of 6 Attachment "D" locate, construct, operate and maintain said easement over and across the lands herein described. IN WITNESS WHEREOF, the said grantor has caused these presents to be signed in duplicate and Grantee herein has hereunto affixed his signature on the day and year first above written. GRANTOR: STATE OF ALASKA DEPARTMENT OF NATURAL RESOURCES By: Southeast Regional Manager STATE OF ALASKA Division of Mining, Land & Water } ) ss FIRST JUDICIAL DISTRICT ] This is to certify that on the day of , before me, the undersigned Notary Public in and for the State of Alaska, personally appeared David L. Kelley known to me and known by me to be the Southeast Regional Mana er Land Office Division of Minin Land & Water AK. Department of Natural Resources, and who acknowledged to me that _he signed and executed the same freely and voluntarily for the uses and purposes stated therein. Notary Public for the State of Alaska. My Commission expires Public Easement (Rev. 5/2009) ADL108047 Page 4 of 6 Attachment "D" GRANTOR: STATE OF ALASKA DEPARTMENT OF NATURAL RESOURCES By: Southeast Regional Manager STATE OF ALASKA Division of Mining, Land & Water ] ss FIRST JUDICIAL DISTRICT This is to certify that on the day of , before me, the undersigned Notary Public in and for the State of Alaska, personally appeared David L. Kelley known to me and known by me to be the Southeast Regional Manager ,Land Office, Division of Mining, Land & Water AK. Department of Natural Resources, and who acknowledged to me that _he signed and executed the same freely and voluntarily for the uses and purposes stated therein. Notary Public for the State of Alaska. My Commission expires Public Easement (Rev. 5/2009) ADL108047 Page 5 of 6 Attachment "D" GRANTEE: STATE OF ALASKA ) ss FIRST JUDICIAL DISTRICT GRANTEE NAME By: Title: This is to certify that on the day of , before me the undersigned Notary Public in and for the State of Alaska, personally appeared , known to me to be (TITLE) , and who acknowledged to me that _he executed the same for and on behalf of GRANTEE NAME, and that _he is fully authorized to do so, and _he acknowledged to me that _he signed and executed the same freely and voluntarily for the uses and purposes stated therein. Notary Public for the State of Alaska. My Commission expires Attachments: A- EASEMENT DIAGRAM State business, no charge: the recording fee for this document has been paid by the applicant. After recording in the XXXXXX Recording District, return this document to the Division of Mining, Land and Water, 400 Willoughby Ave., P.O. Box 111020, Juneau, Alaska MI1-1020. Public Easement (Rev, 5/2009) ADL108047 Page 6 of 6 Attachment " D" ATTACHMENT B SPECIAL STIPULATIONS ADL 108047 Authorized Officer. The Authorized Officer (AO) for the Department of Natural Resources is the Southeast Regional Manager (or designee) of the Division of Mining, Land and Water. The AO may be contacted at 400 Willoughby Avenue, Suite 400, P.O. Box 111020, Juneau, Alaska 99811-1020. The AO reserves the right to modify these stipulations or use additional stipulations as deemed necessary. The AO has the authority to suspend all or any construction, operation or maintenance activities suspected to be in violation of the conditions/special stipulations. Such a suspension shall remain in force until corrective action is taken. If corrective action is not taken within thirty (30) days after receipt of written notice, the authorization may be terminated. The AO has the right but not the obligation, to undertake corrective action at the expense of the Grantee by moving against the performance bond, when such action is necessitated by neglect on the part of the Grantee to take corrective action. 2. Alaska Historic Preservation Act. The grantee shall consult the Alaska Heritage Resources Survey (907) 269-8718 so known historic, archaeological and paleontological sites may be avoided. The Alaska Historic Preservation Act (AS 41.35.200) prohibits the appropriation, excavation, removal, injury, or destruction of any state-owned historic, prehistoric (paleontological) or archaeological site without a permit from the commissioner. Should any sites be discovered within the authorization area, activities that may damage the site will cease and the Office of History and Archaeology in the Division of Parks and Outdoor Recreation shall be notified immediately at (907) 269-8720. 3, Valid Existing Rights. This authorization is subject to all valid existing rights in and to the land under this authorization. The State of Alaska makes no representations or warranties whatsoever, either expressed or implied, as to the existence, number or nature of such valid existing rights. 4. Public Trust Doctrine. Public access shall not be precluded by activities or structures allowed by this authorization. All operations must be conducted in a manner that will ensure minimum conflict with other users of the area_ Grantee shall not close landing areas or trails or otherwise prevent overland access commonly used by the public. The interests served by the public trust doctrine, specifically the right of the public to use navigable waterways and the land beneath them for navigation, commerce, fishing, hunting, protection of the areas for ecological study, and other purposes, will be protected. Repair. The Grantee will, at its own expense, during the term of the authorization: a. maintain the authorization area and any authorized improvements in good repair; b. promptly repair or remedy any damage to the authorization area; and c. promptly compensate the owner for any damage to or destruction of property within the authorization area for which the grantee is liable. 6. Authorized Use. Only those uses and temporary improvements depicted on Attachment A are allowed, unless prior Division approval is obtained for additional improvements. Use of the site for any unapproved purpose is prohibited. Grantee, its agents and employees are responsible for accurately siting authorized uses and structures within the authorization area. Any unauthorized use of State lands, either by Grantee or by its agents or employees, is strictly prohibited. The storage of fuel within the easement shall occur only when maintenance activities requiring its use is being conducted. To ensure future use of public lands as well as tide and submerged lands, fuel use and storage shall occur in a manner that avoids toxic discharge and run-off. Grantee is responsible for preventing spillage and contamination of contiguous land and water as well as cleaning up any oil or other pollutants which result from actives associated with this easement. 8. Containers which exceed a total combined capacity of 110 gallons must be stored within an impermeable diked area or portable impermeable containment structure capable of containing 110 percent capacity of the largest independent container. All containers must be clearly marked with the contents and the Grantee's name. Drip pans and materials, such as sorbent pads, must be on hand to contain and clean up spills from any transfer or handling of fuel. All fuel storage containers and associated materials must be removed by the permit expiration date. (a) Container marking. All independent fuel and hazardous substance containers shall be marked with the contents and the Grantee's name using paint or a permanent label. (b) Fuel or hazardous substance transfers. Secondary containment or a surface liner must be placed under all container or vehicle fuel tank inlet and outlet points, hose connections, and hose ends during fuel or hazardous substance transfers. Appropriate spill response equipment must be on hand during any transfer or handling of fuel or hazardous substances to respond to a spill of up to five gallons. Transfer operations shall be attended by trained personnel at all times. Vehicle refueling shall not occur within the annual floodplain or tidelands. This restriction does not apply to water -borne vessels provided no more than 30 gallons of fuel are transferred at any given time. (c) No storage within 100 feet of waterbodies. Containers with a total capacity larger than 55 gallons which contain fuel or hazardous substances shall not be stored within 100 feet of a waterbody. Advisory. Grantor may under unique or special circumstances grant exceptions to this stipulation on a case -by -case basis. Requests for exceptions should be made to Grantor. (d) Definitions. "Containers" means any item which is used to hold fuel or hazardous substances. This includes tanks, drums, double -walled tanks, portable testing facilities, fuel tanks on small equipment such as light plants and generators, flow test holding tanks, slop oil tanks, bladders, and bags. Manifolded tanks or any tanks in a series must be considered as single independent containers. Vehicles, including mobile seismic tanks, are not intended to be included under this definition. 2. "Hazardous substances" are defined under AS 46.03.826(5) as (a) an element or compound which, when it enters the atmosphere, water, or land, presents an imminent and substantial danger to the public health or welfare, including fish, animals, or vegetation; (b) oil; or (c) a substance defined as a hazardous substance under 42 U.S.C. 9601(14). 3. "Secondary containment" means an impermeable diked area or portable impermeable containment structure capable of containing 110 percent of the volume of the largest independent container. Double -walled tanks do not qualify as secondary containment unless an exception is granted for a particular tank. 4. "Surface liner" means any safe, non -permeable container (e.g., drip pans, folding tanks, etc.) designed to catch and hold fluids for the purpose of preventing spills. Surface liners should be of adequate size and volume based on worst -case spill risk. Grantee shall immediately notify the Department of Environmental Conservation (DEC) by telephone, and immediately afterwards send DEC a written notice by facsimile, hand delivery, or first class mail, informing DEC of: any unauthorized discharges of oil to water, any discharge of hazardous substances other than oil; and any discharge or cumulative discharge of oil greater than 55 gallons solely to land and outside an impermeable containment area. If a discharge, including a cumulative discharge, of oil is greater than 10 gallons but less than 55 gallons, or a discharge of oil greater than 55 gallons is made to an impermeable secondary containment area, Grantee shall report the discharge within 48 hours, and immediately afterwards send DEC a written notice by facsimile, hand delivery, or first class mail. Any discharge of oil, including a cumulative discharge, solely to land greater than one gallon up to 10 gallons must be reported in writing on a monthly basis. The posting of information requirements of 18 AAC75.305 shall be met. Scope and Duration of Initial Response Actions (18 AAC 75.310) and reporting requirements of 18 AAC 75, Article 3 also apply. Grantee shall supply DEC with all follow-up incident reports. Notification of a discharge must be made to the nearest DEC Area Response Team during working hours: Anchorage (907) 269-3063, fax (907) 269-7648; Fairbanks (907) 451-2121, fax (907) 451- 2362; Juneau (907) 465-5340, fax (907) 465-2237. The DEC oil spill report number outside normal business hours is (800) 478-9300. 10. Other Authorizations. The issuance of this authorization does not alleviate the necessity of the grantee to obtain authorizations required by other agencies for this activity. Failure to obtain said authorizations shall constitute grounds for termination of this authorization, Violations. This authorization is revocable immediately upon violation of any of its terms, conditions, stipulations, nonpayment of fees, or upon failure to comply with any other applicable laws, statutes and regulations (federal and state). Should any unlawful discharge, leakage, spillage, emission, or pollution of any type occur due to grantee's, or its employees', agents', contractors', subcontractors', licensees', or invitees' act or omission, grantee, at its expense, shall be obligated to clean the area to the reasonable satisfaction of the State of Alaska. 12. Assignment. This authorization may he transferred or assigned only with prior written approval from the Authorized Officer. 13. Change of Address. Grantee shall maintain a current, valid, mailing address on file with ❑MLW at all times. The latest mailing address on file with the division is the address that will be used for official communications, notifications, and service of legal process. Grantee must notify DMLW, in writing, of a change of address.