HomeMy WebLinkAbout072516_ra02Department of Public Works
O Consent Agenda
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Jefferson County
Board of Commissioners
Agenda Request
To: Board of Commissioners
Philip Morley, County Administrator
From: Monte Reinders, P.E., County Engineer/Public Works Director
Agenda Date: July 25, 2016
Subject: Easement granted by Washington State Department of Natural
Resources, for Undie Road Emergency Relocation Project No.
18020070.
Statement of Issue: The attached Easement Agreement No. 50-093964 with the
Washington State Department of Natural Resources (DNR) is needed in order to construct
and provide long-term maintenance for the newly relocated portion of Undie Road,
County Road No. 150009.
Analysis/Strategic Goals/Pro's Et Con's:
The proposed Easement is for the realignment, construction, and maintenance of a
portion of the Undie Road, which provides public access to DNR lands, commercial
timberlands and private rural residental parcels. The present location of the road is
threatened by slide activity and Bogachiel River encroachment. A permanent re-route
has been identified that would use an existing timber harvest spur road and include a
small portion of new construction across the subject DNR parcel connecting with the
existing roadway.
Fiscal Impact/Cost Benefit Analysis: The total cost for this easement is $210,000.00 and
is funded through County Road Fund.
Recommendation: The Board is requested to accept and sign the attached DNR
Easement No. 093964 (1 original), and return to Public Works for further processing. The
Board will be provided with a copy of the fully executed easement document once
recorded.
Department Contact: Monte Reinders, P.E., Public Works Director/County Engineer, 385-
9242.
Reviewed By:
4_( fi
Philip Morley, Cqbnty Administrator Date
When recorded return to:
Washington State Department of Natural Resources
Olympic Region
Attn.: Cathy Baker
411 Tillicum Lane
Forks, WA 98331
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
PETER GOLDMARK, Commissioner of Public Lands
COUNTY ROAD EASEMENT
Grantor(s): Washington State, Department of Natural Resources
Grantee(s): Jefferson County
Legal Description: Ptns of SE 1/4 of Section 35 and S1/2 of Section 36 Township 28 North, Range 13 West
.Assessor's Property Tax Parcel or Account Number: 132835430000, 132835440000, 132836000000
Cross Reference: AFN 2016-1336788
DNR Easement No. 50-093964
This Easement is between JEFFERSON COUNTY, a political subdivision of the State of
Washington herein called "Grantee" and the STATE OF WASHINGTON, acting by and
through the Department of Natural Resources, herein called "State" dated as of
"Effective Date".
Conveyance. State for and in consideration of the terms and conditions specified herein,
hereby grants and conveys to the Grantee:
A non-exclusive easement in gross for the sole purpose of construction, operation, use, and
maintenance of a public road over and across portions of the SW 1/4SE1/4 and the
SE1/4SE1/4 of Section 36, Township 28 North, Range 13 West, W.M. more specifically
described on that Record of Survey, recorded in Clallam County, Washington on July 12,
2016 under Auditor File Number 2016-1336788 and by this reference made a part hereof, and
over and across an existing road sixty (60) feet in width lying thirty (30) feet in width each
side of the existing centerline of said road lying within portions of the S 1/2 SE 1/4 of Section
35 and the SWI/4 and the SEI/4 of Section 36 all in Township 28 North, Range 13 West,
W.M.; as shown approximately on Exhibit A (hereinafter "Road" and "Easement Area").
1 of 15 Easement No. 50-093964
State hereby conveys to Grantee that timber described in Forest Practices Application No.
2614345. No other timber is conveyed with this easement.
Consideration. The consideration paid by the Grantee to State is as follows: Two Hundred
Ten Thousand Dollars and 00/100 ($210,000.00).
Term. The term of this Easement shall be perpetual unless vacated as provided by law.
Assignment. Neither this Easement, nor any of the rights granted herein, shall be assigned
without prior written consent of State, at State's sole discretion.
Reservations. State reserves the right to access the Easement Area using existing Road
access points. State also reserves the right to use the Road for commercial forest management
activities including timber hauling subject to Grantee weight and weather restrictions.
Compliance with Laws. Grantee shall, at its own expense, conform to all applicable laws,
regulations, permits, or requirements of any public authority affecting the Easement Area and
the use thereof. Upon request, Grantee shall supply State with copies of permits or orders.
Export Restrictions. Any export restricted timber originating from state land under this
Easement shall not be exported until processed. Grantee shall comply with all applicable
requirements of WAC 240-15-015 (relating to the prohibitions on export and substitution),
WAC 240-15-025 (relating to reporting requirements), and WAC 240-15-030 (relating to
enforcement). All export restricted timber from state lands shall be painted and branded in
compliance with WAC 240-15-030(2). If Grantee knowingly violates any of the prohibitions
in WAC 240-15-015, Grantee shall be barred from bidding on or purchasing export restricted
timber as provided. Grantee shall comply with the Export Administration Act of 1979 (50
U.S.C. App. Subsection 2406(1)) which prohibits the export of unprocessed western cedar logs
harvested from state lands.
Compliance with Habitat Conservation Plan. The Easement Area is located within an area
that is subject to the State's Habitat Conservation Plan adopted in connection with Incidental
Take Permit No. PRT -812521 as supplemented by Permit No. 1168 (collectively "ITP"). As
long as the Habitat Conservation Plan remains in effect, Grantee and all contractors,
subcontractors, invitees, agents, employees, licensees, or permittees acting under Grantee shall
comply with the terms and conditions set forth in Exhibit No. B while operating on the
Easement Area.
Indemnity. Grantee shall indemnify, defend with counsel acceptable to State, and hold
harmless State, its employees, officers, and agents from any and all liability, damages,
2 of 15 Easement No. 50-093964
expenses, causes of action, suits, claims, costs, fees (including attorney's fees), penalties, or
judgments, of any nature whatsoever, arising out of the use, occupation, or control of the
Easement Area by Grantee, its contractors, subcontractors, invitees, agents, employees,
licensees, or permittees, including but not limited to the use, storage, generation, processing,
transportation, handling, disposal, release, or threatened release of any hazardous substance or
materials. To the extent that RCW 4.24.115 applies, Grantee shall not be required to
indemnify State from State's sole or concurrent negligence. This indemnification shall survive
the expiration or termination of the Easement. Grantee waives its immunity under Title 51
RCW and under RCW 36.75.300 to the extent required to indemnify State.
Insurance. Before using any of said rights granted herein and at its own expense, the Grantee
shall obtain and keep in force during the term of this Easement and require its contractors,
sub -contractors, or agents to obtain while operating on the Easement Area, the following
liability insurance policies, insuring Grantee against liability arising out of its operations,
including use of vehicles. Failure to buy and maintain the required insurance may result in the
termination of the Easement at State's option. The limits of insurance, which may be
increased by State, as deemed necessary, shall not be less than as follows:
(a) Commercial General Liability (CGL) insurance with a limit of not less than
$1,000,000 per each occurrence. If such CGL insurance contains aggregate
limits, the general aggregate limits shall be at least twice the "each occurrence"
limit, and the products -completed operations aggregate limit shall be at least
twice the "each occurrence" limit.
(b) Employer's liability ("Stop Gap") insurance, and if necessary, commercial
umbrella liability insurance with limits not less than $1,000,000 each accident
for bodily injury by accident or $1,000,000 each employee for bodily injury by
disease.
(c) Business Auto Policy (BAP) insurance, and if necessary, commercial umbrella
liability insurance with a limit of not less than $1,000,000 per accident, with
such insurance covering liability arising out of "Any Auto". Business auto
coverage shall be written on ISO form CA 00 01, or substitute liability form
providing equivalent coverage. If necessary the policy shall be endorsed to
provide contractual liability coverage and cover a "covered pollution cost or
expense" as provided in the 1990 or later versions of CA 00 01. Grantee
waives all rights against State for the recovery of damages to the extent they
are covered by business auto liability or commercial umbrella liability
insurance.
3 of 15 Easement No. 50-093964
(d) Grantee shall comply with all State of Washington workers' compensation
statutes and regulations. Workers' compensation coverage shall be provided
for all employees of Grantee and employees of any contractors, sub -contractors
or other permittees. Except as prohibited by law, Grantee(s) waives all rights
of subrogation against State for recovery of damages to the extent they are
covered by workers compensation, employer's liability. commercial general
liability or commercial umbrella liability insurance.
All insurance must be purchased on an occurrence basis and should be issued by companies
admitted to do business within the State of Washington and have a rating of A- or better in the
most recently published edition of Best's Reports. Any exception shall be reviewed and
approved in advance by the Risk Manager for the Department of Natural Resources. If an
insurer is not admitted, all insurance policies and procedures for issuing the insurance policies
must comply with Chapter 48.15 RCW and Chapter 284-15 WAC.
The State of Washington, Department of Natural Resources, its elected and appointed
officials, agents and employees shall be named as an additional insured on all general liability,
excess, and umbrella insurance policies.
Before using any said rights granted herein, Grantee shall furnish State with a certificate(s) of
insurance, executed by a duly authorized representative of each insurer, showing compliance
with the insurance requirements specified above. Certificate(s) must reference State's
easement number 50-093964.
State shall be provided written notice before cancellation or non -renewal of any insurance
referred to herein, as prescribed in statute (Chapter 48.18 RCW or Chapter 48.15 RCW).
Grantee shall include all contractors, sub -contractors and other permittees as insureds under
all required insurance policies, or shall furnish separate certificates of insurance and
endorsements for each. Contractors, sub -contractors and other permittees must comply with
all insurance requirements stated herein. Failure of contractors, sub -contractors and other
permittees to comply with insurance requirements does not limit Grantee's liability or
responsibility.
All insurance provided in compliance with this Easement shall be primary as to any other
insurance or self-insurance programs afforded to or maintained by State. Grantee waives all
rights against State for recovery of damages to the extent these damages are covered by
general liability or umbrella insurance maintained pursuant to this Easement.
By requiring insurance herein, State does not represent that coverage and limits will be
adequate to protect Grantee, and such coverage and limits shall not limit Grantee's liability
under the indemnities and reimbursements granted to State in this Easement.
4 of 15 Easement No. 50-093964
If Grantee is self-insured, evidence of its status as a self-insured entity shall be provided to
State. If requested by State, Grantee must describe its financial condition and the self-insured
funding mechanism.
Waste. Grantee shall not cause or permit any filling activity to occur in or on the Easement
Area, except as approved by State. Grantee shall not deposit refuse, garbage, or other waste
matter or use, store, generate, process, transport, handle, release, or dispose of any hazardous
substance, or other pollutants in or on the Easement Area except in accordance with all
applicable laws.
The term hazardous substance means any substance or material as those terms are now or are
hereafter defined or regulated under any federal, state, or local law including but not limited to
the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA 42
USC 9601 et seq.) as administered by the US Environmental Protection Agency, or the
Washington Model Toxic Control Act (MTCA RCW 70.105D) as administered by the State
Dept. of Ecology.
Grantee shall immediately assume responsibility for a hazardous substance release (spill)
caused by Grantee or its contractors, subcontractors, invitees, agents, licensees or permittees
on or adjoining the Easement Area.
As responsible party, Grantee shall:
• Immediately notify all necessary emergency response agencies, as required under
federal, state and local laws, regulations, or policies.
• Following emergency response agency notifications, notify State (Dept. of Natural
Resources) of all spill releases and Grantee actions completed for spill reporting and
actions planned or completed toward spill cleanup. State notification requirements are
"same business day" notification for normal state work days and "next available
business day' notification for weekends and holidays.
• At Grantees sole expense, conduct all actions necessary to mitigate the spill release.
Mitigation response actions may include, but are not necessarily limited to, initial
release containment, follow-up site cleanup and monitoring actions, and continued
contact and coordination with regulators and State, as defined under the
aforementioned laws, regulations, policies and this agreement.
• Other than performing initial emergency response cleanup/containment actions; obtain
approvals in advance of all site cleanup actions (e.g. site characterization
investigations, feasibility studies, site cleanup and confirmation sampling, and
5 of 15 Easement No. 50-093964
groundwater monitoring) conducted on State lands, in coordination with regulatory
agencies and State.
Obtain and understand all necessary hazardous substance spill release notification and
response mitigation requirements, in advance of conducting Grantee operations on
State land.
Survey Markers. Grantee shall not destroy any land survey corner monuments and/or
reference points (including but not limited to comer markers, witness objects, or line markers)
without prior written approval from State, which shall not be unreasonably withheld.
Monuments or reference points that must necessarily be disturbed or destroyed during road
construction or maintenance activities must be adequately referenced and replaced, at the
Grantee's cost, under the direction of a State of Washington Professional Land Surveyor, in
accordance with all applicable laws of the State of Washington in force at the time of
construction, including but not limited to RCW 58.24, and all Department of Natural
Resources regulations pertaining to preservation of such monuments and reference points.
Construction/Reconstruction. Sixty (60) days prior to any construction or reconstruction by
Grantee on the Easement Area, Grantee shall submit a written plan of construction to State
outlining the construction or activity for State's approval, which shall not be unreasonably
withheld. In the event of an emergency requiring immediate action to protect person or
property, Grantee may take reasonable corrective action without prior notice to State. All
construction or reconstruction shall comply with applicable state or local laws.
Maintenance, Repair, and Improvements. Grantee shall have sole responsibility for the
maintenance, repair and improvement of the Road to county road standards. During the time
the Road is classified as a primitive county road, Grantee is required to maintain, repair, and
improve the Road as if it were a forest road under Chapter 222-24 WAC. This provision
applies even though forest road requirements would not ordinarily apply to Grantee.
Sign Plan. Grantee shall mark the Road with safety signs and reflectors. The signs shall
include, but not be limited to: primitive road (if so designated), speed limit 15 mph, corners,
logging activity, gates, potential hazards, and inform the public of potential congestion,
pullouts, turn -around areas, and closures. Within thirty (30) days of sign and reflector
placement along the Road, an as -built sign plan shall be provided to State. Signs shall be
maintained to ensure public safety during use.
Future Use. Grantee shall complete a traffic count analysis every five years to determine if
the average annual daily traffic count is greater than one hundred (100) vehicles. If so,
Grantee shall upgrade and re-classify the Road to a non -primitive county road standard.
6 of 15 Easement No. 50-093964
Weed Control/Pesticides. The Grantee shall control at its own cost, all noxious weeds on
any portion of the Easement Area herein granted. Such weed control shall comply with
county noxious weed control board rules and regulations established under the Uniform
Noxious Weed Control Statute (Chapter 17.10 RCW). The Grantee shall be responsible for,
or shall immediately reimburse State any weed control cost incurred as a result of the
Grantee's failure to control weeds on the Easement Area.
All ground methods of chemical weed control shall be approved in writing by State prior to
beginning such activities
The aerial application of pesticides is not permitted.
Notice. Any notices or submittals required or permitted under this Easement may be
delivered personally, sent by facsimile machine or mailed first class, return receipt requested,
to the following addresses or to such other place as the parties hereafter direct. Notice will be
deemed given upon delivery, confirmation of facsimile, or three days after being mailed,
whichever is applicable.
To State:
Department of Natural Resources
Rights of Way Program
Olympic Region
411 Tillicum Way
Forks, WA 98331
Fax: 360-374-5446
To Grantee:
Jefferson County Public Works
Rights of Way Program
623 Sheridan Street
Port Townsend, WA 98368
Fax: 360-385-9234
Recording. Grantee shall record this Easement in the county in which the Easement Property
is located, at Grantee's sole expense. Grantee shall provide State with a copy of the recorded
Easement. Grantee shall have thirty (30) days from the date of delivery of the final executed
agreement to comply with the requirements of this section. If Grantee fails to record this
Easement, State may record it and Grantee shall pay the costs of recording, including interest,
upon State's demand.
7 of 15 Easement No. 50-093964
Danger Tree Removal. Individual trees located outside of the Easement Area and within the
Easement Area which shall be dangerous to the operation and maintenance of the Road in the
Easement Area, may be removed subject to the following:
1. Grantee shall mark the trees.
2. Grantee shall timber cruise the trees.
3. Grantee shall notify DNR in writing of their request to remove the danger trees
and include the cruise and a map showing the location of the trees.
4. State will determine the fair market value of the trees it authorizes to be
removed.
5. State will approve the removal of danger trees contingent upon payment in full
by Grantee prior to removal.
In the event of an emergency requiring immediate action to protect person or property,
Grantee shall:
1. Fall and/or remove the necessary danger tree(s) without advance authorization
from State.
2. Cruise the felled and/or removed tree(s).
3. Grantee shall notify State in writing of the tree(s) felled and/or removed and
include a map of the location and a cruise within fourteen (14) days after
felling.
4. DNR will determine the fair market value of the tree(s) felled and/or removed
and bill the Grantee.
5. Grantee shall pay for the tree(s) within thirty (30) days of receipt of the billing
notice.
Abandonment. In the event any portion of the Road is abandoned, the Grantee shall take the
necessary legal action to vacate such portions and shall immediately restore the land within all
vacated portions to natural conditions as may be directed by State. In restoring the land, all
asphalt shall be removed from the vacated portion; the asphalt shall not be deposited on the
adjacent State land. In addition, the land surface shall be scarified to blend with the adjoining
landscape.
Noncompliance. State shall notify the Grantee of any instance of noncompliance by the
Grantee, its contractors, subcontractors, invitees, agents, employees, licensees, or permittees
with any of the terms and conditions hereof. Such notice will specifically identify the manner
of noncompliance herewith.
In the event the Grantee does not undertake, or cause to be undertaken, remedial action within
fifteen (15) days following receipt of said notice, State, acting by and through its Region
8 of 15 Easement No. 50-093964
Manager at Forks, Washington, may suspend the Grantee's operations until such time as
effective remedial action is taken.
Construction. The terms of this Easement shall be given their ordinary meaning unless
defined herein and shall not be presumed construed against the drafter.
Effective Date. The Effective Date of this Easement shall be the date on which the last party
executes this Easement. The Effective Date will be inserted on the first page of the Easement
when such date is determined.
Exhibits. All exhibits referenced in this Easement are incorporated as part of the Easement.
Headings. The headings in this Easement are for convenience only and are not intended to,
and shall not be construed to, limit, enlarge, or affect the scope or intent of this Easement nor
the meaning of any of its provisions.
Modification. Any modification of the Easement must be in writing and signed by the
parties. State shall not be bound by any oral representations or statements.
Non -waiver. The waiver by State of any breach or the failure of State to require strict
compliance with any term herein shall not be deemed a waiver of any subsequent breach.
Severability. If any provision of this Easement shall be held invalid, it shall not affect the
validity of any other provision herein.
9 of 15 Easement No. 50-093964
IN WITNESS WHEREOF, the parties hereto have executed this instrument, in duplicate, as
of the day and year first above written.
APPROVED:
Seal
Approved as to form only this
Attest:
Jefferson County Clerk of the Board
COUNTY OF JEFFERSON
BOARD OF COMMISSIONERS
Kathleen Kler, Chair
Phil Johnson, Member
David W. Sullivan, Member
day of , 20_
qty Prosecuting Attorney
10 of 15 Easement No. 50-093964
Dated: , 20_. By:
PETER GOLDMARK
Commissioner of Public Lands
P.O. Box 7000/
1111 Washington Street SE
Affix the Seal of the Commissioner of Public Lands
Approved as to form
July 21, 2016
by Christa Thompson
Assistant Attorney General
for the State of Washington
11 of 15 Easement No. 50-093964
State of Washington)
ss
County of Jefferson )
COUNTY ACKNOWLEDGMENT
On this day of , 20__, before me personally appeared Phil
Johnson to me known to be Jefferson County District No. 1 Commissioner of
Jefferson County, David Sullivan to me known to be Jefferson County District No. 2
Commissioner of Jefferson County, and Kathleen Kler to me known to be Jefferson
County District No. 3 Commissioner of Jefferson County and they executed the within
and foregoing , and acknowledged that the was signed as
their free and voluntary act for the uses and purposes therein mentioned, and on oath
stated that they is authorized to execute said
Dated:
(Seal or stamp)
(Signature)
(Print Name)
Notary Public in and for the State of Washington,
residing at
My appointment expires
12 of 15 Easement No. 50-093964
STATE ACKNOWLEDGMENT
State of Washington)
:ss
County of Thurston)
I certify that I know or have satisfactory evidence that PETER GOLDMARK 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
Commissioner of Public Lands, and 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:
(Seal or stamp)
(Signature)
(Print Name)
Notary Public in and for the State of Washington,
residing at
My appointment expires
13 of 15 Easement No. 50-093964
Exhibit A
Easement Area
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14 of 15 Easement No. 50-093964
EXHIBIT B
HCP REQUIREMENTS
1) Grantee shall immediately notify State of the following:
a) That Grantee has discovered locations of any species listed by the U.S. Department of
Fish and Wildlife as threatened or endangered species (listed species) under the
Endangered Species Act as such list may be updated from time to time; and
b) That Grantee has located any live, dead, injured, or sick specimens of any listed
species.
2) Notification required in subsection 1) must in all circumstances occur as soon as practicable but
in any event within 24 hours.
3) Grantee may be required to take certain actions to help State safeguard the well-
being of any live, injured or sick specimen of any listed species until the proper
disposition of such specimen can be determined by State.
4) Any application for a Forest Practices Permit submitted by Grantee for activities on the
State Easement Area must identify that the State Easement Area is covered by the HCP.
15 of 15 Easement No. 50-093964