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6 <br />FIRST AMENDMENT <br />TO JOINT USE AGREEMENT <br />(CITY ASSUMPTION OF CONTROL OF JOINT USE FACILITIES) <br />This First Amendment to Joint Use Agreement (this "Amendment") is dated as of <br />'2015 by and between the City of Everett, a municipal corporation of the State of <br />Washington (the "City") and Kimberly-Clark Worldwide, Inc., a Delaware corporation, an affiliate and <br />successor of Kimberly-Clark Tissue Company and Scott Paper Company with respect to their interests in the <br />Joint Use Facilities and the site generally known as the Everett Mill ("K -C"). <br />RECITALS <br />A. The City and K -C are parties to the Port Gardner Bay Outfall Replacement Agreement dated <br />June 2, 1999 by and between the City and K -C (the "Joint Use Agreement"). K -C owns real property in <br />Everett, Washington, on which it operated a mill and associated facilities, which property is legally described <br />in Exhibit A to this Amendment (the "K -C Mill Property"). Terms used but not defined in tlus Amendment <br />shall have the meanings ascribed to them in the Joint Use Agreement unless otherwise provided in this <br />Amendment. <br />B. Under the Joint Use Agreement, K -C owns the Joint Use Facilities and has the obligation, as <br />set forth in the Joint Use Agreement, to operate and maintain the Joint Use Facilities. K -C owns 50.5% of <br />the Capacity of the Joint Use Facilities, while the City owns 49.5% of the Capacity of the Joint Use <br />Facilities. The Capacity of Joint Use Facilities is approximately 90 million gallons per day. <br />C. Besides the Joint Use Agreement, the City and K -C have other agreements regarding the <br />Joint Use Facilities (the "Third Party Agreements") which include, without limitation: <br />• K -C, the City, and the Port of Everett are parties to the Port Gardner Outfall Replacement <br />and Project Agreement, dated June 5, 2003 (the "Tri -Party Agreement"). <br />• The Port of Everett granted K -C and the City an easement for the Joint Use Facilities, <br />recorded in Snohomish County on November 18, 2004 under file number 200411180634 <br />(the "Port Easement"). <br />The State of Washington, acting through the Department of Natural Resources, granted K -C <br />and the City Aquatic Lands Outfall Easement No. 51-072799 for the Joint Use Facilities, <br />dated April 28, 2003 and recorded in Snohomish County on May 13, 2003 under file number <br />200305131822 and re-recorded under 2004111806333), as amended by the "Aquatic Lands <br />Easement Agreement" and the "Notice and Consent to Assigmnent of Easement'' dated <br />(the "DNR Easement"). <br />Burlington Northern and Santa Fe Railway Company granted K -C a License dated <br />January 20, 2004, in connection with the Joint Use Facilities (the "BNSF License"). <br />• The City assigned the right to use 10 million gallons per day of Capacity to City of <br />Marysville ("Marysville") pursuant to the Agreement for Conveyance and Discharge of <br />Treated Wastewater (undated) between Marysville and the City (the "City Marysville <br />Capacity Agreement"). <br />• K -C assigned the right to use 10 million gallons per day of Capacity to Marysville pursuant <br />to the Contract for Capacity in the Port Gardner Outfall (Outfall 100) dated November 30, <br />2004 (the "K C Marysville Capacity Agreement"). <br />26 <br />