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HomeMy WebLinkAboutRayonier 615 Sheridan Street Port Townsend, WA 98368 JeeAson www.JeffersonCountyPublicHealth.org Consent Agenda Public Healt JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of County Commissioners Mark McCauley, Interim County Administrator FROM: Vicki Kirkpatrick, Environmental PH &WQ Director Michael Dawson, Water Quality Manager DATE: SUBJECT: Agenda Item — Right of Entry Permit and License Agreement with Rayonier Operating Company LLC granting right to enter premises in Jefferson County controlled by Rayonier; Septemberl, 2021 — December 31, 2023 STATEMENT OF ISSUE: Jefferson County Public Health is requesting Board approval of the Right of Entry Permit and License Agreement with Rayonier Operating Company LLC ("ROC"), allowing access to the beach in the Thorndyke area for Foundational Monitoring and Pollution Identification and Correction Project; September 1, 2021 — December 31, 2023. ANALYSIS/STRATEGIC GOALS/PRO'S and CON'S: This access agreement will allow for more efficient use of staff time to meet shoreline water quality monitoring goals. The alternative is to access this stretch of shoreline by boat, which requires more staff and travel time than accessing it from the road. The purpose of shoreline monitoring is to protect shellfish beds, and the shellfish company that leases this tract from Rayonier is interested in having Jefferson County Public Health perform this essential function. FISCAL IMPACT/COST BENEFIT ANALYSIS: There is no financial component to this agreement. RECOMMENDATION: JCPH management requests Board approval of the Right of Entry Permit and License Agreement with ROC, allowing access to the beach in the Thorndyke area; September 1, 2021 — December 31, 2023. REVIEWED BY: 9/1(//7 Mark McCauley, Int im County Administra 1"d• Date Community Health Developmental Disabilities Environmental Public Health 360-385-9400 360-385-9444 360-385-9401 (f) (f) 360-379-4487 Always working for a safer and healthier community EH-21-045 Doc# Rayonier tress RIGHT OF ENTRY PERMIT AND LICENSE AGREEMENT 2021 ANE00361 THIS RIGHT OF ENTRY PERMIT AND LICENSE AGREEMENT ("Agreement") is between RAYONIER OPERATING COMPANY LLC ("ROC"), a Delaware limited liability company, representing and acting on behalf of the owner(s) and/or Lessee(s) of the land, , with a local business address of 3033 Ingram Street, Hoquiam, WA 98550, (ROC and the owner(s) and/or Lessee(s) of the land are collectively "Licensor") , and JEFFERSON COUNTY PUBLIC HEALTH, whose address is 615 Sheridan Street, Port Townsend, WA 98368, ("Licensee")dated as of September 1, 2021, ("Effective Date"). A. Rights Granted and Premises. Licensor hereby grants to Licensee the non-exclusive right and privilege to enter and be upon tracts of land situated in Jefferson County, Washington, as depicted on the map attached hereto and identified as Exhibit(s) A, incorporated herein by reference ("Premises") specifically and solely for the purpose of accessing the beach in the Thorndyke area for the Foundational Monitoring and Pollution Identification and Correction (PIC) Project, during the herein started Term and subject to the terms and conditions specified herein. B. Term. The Term of this Agreement begins on the Effective Date and shall expire on December 31, 2023 ("Term"). Licensor shall, however, have the right to cancel this Agreement at its sole discretion for no reason or as a result of the violation of any condition hereof. If so canceled, Licensee shall immediately cease operations hereunder and quit the Premises and remove or cause to be removed all equipment, property and personnel present thereon. Licensee shall exercise the rights of entry granted herein in the least obtrusive manner possible and in a manner so as to not unreasonably disturb or interfere with any of the owners, tenant, or occupants of adjacent property, and/or any of the tenants or occupants of the Premises. In the event Licensor sells the Premises, which are subject to this Agreement, this Agreement will terminate immediately and be of no further force or effect. C. Consideration. In consideration for the rights granted hereunder, Licensee shall pay to Licensor the sum of Zero and Zero/100 Dollars ($0.00). Payment is due and payable upon execution of this Agreement by Licensee. Additional Consideration. As additional consideration for the rights granted hereunder,NA D. Insurance (Select applicable one). E Prior to commencing work or entering Premises or facilities of Licensor, Licensee shall secure such insurance as required in "Exhibit B" issued by a carrier with an A.M. Best rating of A—, VII or better on an "Occurrence" basis. Any insurance deductible or retention will be paid by Licensee and is not a reimbursable expense under this Agreement. Licensee will provide a Certificate of Insurance evidencing the policies in effect for the duration of the Agreement with the applicable endorsements attached. Failure to provide evidence of insurance, as required by contract, shall not relieve Licensee of its obligations. The limits required in "Exhibit B" may be satisfied with a combination of primary and excess (umbrella) liability insurance policies that follow form. The policy(ies) shall (a) name Rayonier Inc., its subsidiaries and subsidiaries thereof as an additional insured; (b) waive all rights of subrogation as listed in "Exhibit B" against Licensor; (c) provide that the policy(ies) not be cancelled or materially changed without thirty (30) days advance written notice to Licensor; (d) be primary and non-contributory. Licensee shall ensure that all contractors or subcontractors entering Premises or facilities of Licensor are in compliance with all insurance provisions of this section and "Exhibit B". If Licensee uses the Premises as way of ingress and egress to and from a timber harvest operation, said insurance certification must also include Loggers Broad Form endorsement with not less than $1,000,000 of coverage. Page 1 of 8 Rev.04/29/2019 EH-21-045 OR n Federal Government/Tribal Insurance. Licensee shall self-insure its general liability. To the extent permitted by federal law, including the Federal Tort Claims Act (28 U.S.C. Section 2672, et seq.) Licensee agrees to indemnify and hold Licensor and its affiliated or related companies harmless against all loss or liability in any way arising out of injury or death of persons or damage to property, including Licensee's property, in any way arising in or about, or in connection with or as a result of Licensee's use of the above-described roads and land, or other operations conducted on or about said roads or land, or any condition of said roads and land, during the term of this Agreement. Nothing in this Agreement shall constitute an obligation of funds of the United States in advance of an appropriation thereof. OR [1 State of Washington—all state agencies. A. Licensee is part of the State of Washington ("State"). The State, including all its agencies and departments, are self-insured for all exposures to tort liability, general liability, property liability and vehicle liability, as provided in statute, but only as respects the negligence of the State. B. The State shall require its contractors and assignees to obtain and maintain and keep in force while operating on the Premises, the following insurance: The limits of insurance shall not be less than: 1. Commercial General Liability(CGL) insurance with a limits of not less than $1,000,000 per each occurrence or Personal Liability insurance, as applicable, under a personal liability policy, commercial liability insurance policy, or package property and liability insurance policy. If such CFL 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. 2. 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. 3. 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." 4. All contractors, subcontractors, or other licensees of State must comply with all State of Washington workers' compensation statutes and regulations. All insurance should 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 to these requirements shall be reviewed and approved by Licensor. If an insurer is not admitted, all insurance policies and procedures for issuing the insurance policies must comply with Chapter 48.15 RCW and 284-15 WAC. The State shall furnish, upon request, a certificate of insurance showing compliance with the insurance requirements specified above. Contractors, sub-contractors and licensees of the State must comply with all insurance requirements stated herein. Failure of contractors, sub-contractors and licensees to comply with Licensor's insurance requirements does not limit State's liability or responsibility. Page 2 of 8 Rev.04/29/2019 State shall require its contractors to provide certificates of insurance to the State and require sub- contractors and licensees to be insured under the contractor's policy or have in its possession separate certificates of insurance and endorsements. State shall furnish upon request certificates of insurance and endorsements for any or all contractors and licensees. N Counties: Licensee is a county and political subdivision of the State of Washington ("State"). Licensee, including all past and present employees, elected and appointed officials, and volunteers, whether or not compensated, while acting, or in good faith purporting to act, within the scope of their official duties for Licensee , or on its behalf, including, but not limited to, all commissions, agencies, districts, authorities, boards (including the governing board) or similar entities which operate under Licensee 's supervision or control, is coverd by a Memorandum of Liability Agreement with the Washington Counties Risk Pool for all exposures to tort liability, general liability, property damage liability and vehicle liability, as provided in statute, but only as respects the negligence of Licensee . Licensee shall require its agents and contractors to obtain and keep in force while operating on the Landowner's property, the following insurance. 1) Commercial General Liability Insurance with a limit of not less thank $1,000,000 per each occurrence and $2,000,000 for general aggregate limit. 2) Auto Liability Insurance with a limit not less thatn $1,000,000 per accident. Such insurance shall cover lability arising out of"any Auto." E. Special Conditions (Check all that apply): Ej In all instances Licensee will have a spill kit on site of operations that is adequately supplied to contain any materials used/stored on site. All mobile equipment must be serviced away from streams, ditches or drains. Oil or other contaminants removed during the servicing process must be contained, removed from the Premises immediately and disposed of properly. In addition to the cost of removal, a fee of $500.00 for petroleum products may be assessed per incident for failure to comply. El Licensor requires the use of citizen band radios and headlights at all times on Licensor roads. El All property corners shall be preserved. If corners are disturbed by Licensee's activities, they must be replaced at Licensee's expense and properly monumented by a surveyor registered in the state in which the Premises are located in compliance with current regulations. Corner information shall be recorded in the County Auditor's office and a duplicate copy furnished to Licensor's engineer. • Licensee agrees to keep all gates on Rayonier property closed at all times. Licensee may be fined $500 per incident if they are determined to be in violation of this condition. Exceptions: - A gate may remain open if another commercial vehicle will be passing through the gate within 15 minutes. - Gates will be hard locked after 4:30 P.M. - Other: • Licensee acknowledges and agrees to enter into any agreement with, and/or pay any deposits to, Licensor relating to keys to gates, or other access or security measures, on the Premises. Licensee shall comply with all Licensor rules and procedures regarding gates, keys, access or other security measures. M This Agreement may not be used for transporting heavy equipment, hauling of forest products or road construction materials. Page 3of8 Rev.04/29/2019 This Agreement is provided for the sole and exclusive purpose of accommodating Licensee's request for access to property owned by Licensee only. This Agreement applies only to Licensee and Licensee's immediate family (spouse and children). No commercial, residential or third party use is allowed hereunder. This Agreement shall not include either recreational access or third party access for any reason. n Other: F. During the Term the following person(s) shall be Licensor's point of contract and if required, shall be notified prior to entry or commencement and upon completion of any work conducted on the Premises: Name: Larissa Hall Title: Land Use Specialist Phone: (360) 538-4569 General Terms and Conditions 1. Licensee shall not have the right to conduct any other work or engage in any other activities beyond the scope described in this Agreement without prior written consent of Licensor. Licensee shall not take any actions or do anything, and shall not permit anyone accessing the Premises under this Agreement to take any action or do anything, which would cause any change in or constitute a breach or violation of any permit, license, order, rule or authorization of any governmental body, unit or authority now or hereafter in effect with respect to the Premises. 2. This Agreement shall not be used for access to any other roads on Licensor lands except the road(s) designated as the route on Exhibit(s) A . Any violation of this provision shall result in immediate termination of this Agreement. Licensor makes no guarantee as to the condition of its roads or associated structures and shall not be liable for any failure of any roads or structures therein. Licensee shall suspend use of roads whenever such use, due to weather conditions, will cause excessive damage to said roads. Licensor reserves the right to periodically close roads due to weather conditions, to prevent any adverse environmental impact, or for any other reason in Licensor's sole discretion. The parties hereto understand and agree that the road was built as a logging road to logging road standards and Licensor has no obligation to upgrade or maintain the road beyond logging road standards. Licensee's failure to comply with this provision will constitute a breach of this Agreement and a penalty of$500.00 may be assessed. 3. Licensor reserves all rights not specifically granted herein. In the event Licensee shall fail to keep or perform any of the agreements to be kept or performed hereunder, Licensor may terminate this Agreement by giving written notice of such default to Licensee and the termination is effective fourteen (14) days after giving such notice if Licensee does not correct the default during the fourteen-day period. 4. If applicable, it is understood that Licensee shall submit to Licensor any reports published or unpublished resulting from data collected on the Premises. 5. Licensee, its personnel, contractors or subtractors must wear highly visible hard hats and clothing when outside of vehicles on the Premises. 6. Licensee shall conduct its operations on the Premises with all due care and caution for itself as well as for the health and viability of the trees and timber growing thereon and such other property of Licensor located thereon; Licensee further agrees that if damage or destruction of said trees or timber or other property results from Licensee's operations on the Premises it shall compensate Licensor for such damage or destruction and otherwise make Licensor or its affiliated or related companies whole for said damage or destruction. Furthermore, Licensee shall act in compliance with all applicable laws, statutes, ordinances, orders, rules and regulations of any Governmental Authority or agency having jurisdiction over the Premises. Page 4 of 8 Rev.04/29/2019 7. Licensee shall not (a) cut or uproot, or permit anyone accessing the Premises under this Agreement to cut or uproot, any living trees, underbrush or other vegetation situated on the Premises without the prior written consent of Licensor, which consent may be withheld or refused by Licensor in its absolute and exclusive discretion, or (b) disturb, or permit anyone accessing the Premises under this Agreement to disturb, any wetland or land subject to any ordinance in respect of environmentally sensitive land adopted by any applicable Governmental Authority. 8. Under no circumstances whatsoever will any carcinogenic, controlled, toxic or hazardous substance or material, or a container presently or formerly holding such substance(s), be permitted to drain or percolate on or into, or be stored, dumped, buried, or otherwise contaminate, taint, affect or be allowed on Licensor's land (the Premises itself or property adjacent thereto). Licensee shall be liable for any and all damages, losses, and expenses and will defend, indemnify and hold harmless Licensor and its affiliated or related companies against and from any discovery by any person or governmental entity, of hazardous wastes or materials generated, stored, or disposed of as a result of Licensee's use of the Premises. Licensee shall regularly remove all trash, cans, bottles, garbage, petroleum products, or materials of any kind left on the Premises, whether as a direct or indirect result of operations. Nor shall garbage be buried in slash or in the ground. It addition to the cost of removal, a fee of$250.00 for other garbage may be assessed per incident for failure to comply. 9. No fires may be set upon the Premises, nor shall any firearms, flammables or corrosive materials be brought upon the Premises by Licensee. 10. Licensee acknowledges that there are certain inherent risks associated with conducting its intended activities on the Premises due to the primitive/unimproved nature of the Premises. Licensee is put on notice that the Premises are in a remote location and neither the condition of the Premises nor the roads are guaranteed in any way by Licensor. Licensee acknowledges and agrees that Licensor and its affiliated or related companies shall bear no responsibility or liability to or for Licensee, its agents, invitees, contractors or contractor employees while they are on the Premises. Licensee further acknowledges that others have been given permission to enter the Premises including hunting club members who may be upon the Premises with guns to hunt and timber vendees who may be upon the Premises to harvest timber and other forest products with men and machinery. 11. Indemnification. (Must select applicable one) ® Licensee agrees to pay and to indemnify, protect, save, defend and hold forever harmless Licensor and its affiliated or related companies, and their directors, officers, employees, agents and independent contractors (hereinafter "Indemnitees") from and against any and all actions or causes of action, obligations, claims, demands, liabilities, loss, damage,judgments, awards, penalties or cost or expense of whatsoever kind of nature, including, without limitation, (a) court costs, expert witness fees and attorneys' fees and expenses at trial and on appeals and(b) any costs and expenses resulting from the imposition of additional conditions or requirements by governmental or quasi-governmental bodies, authorities or agencies or by utility providers, which the Indemnitees, or any of them, may incur, suffer or sustain, or for which the Indemnitees, or any of them, may become obligated or liable by reason of: (i) any breach or violation by Licensee or anyone entering the Premises under this Agreement, of the provisions of this Agreement; (ii) any injury to or death of persons or loss of or damage to property in connection with, or as a result of, any entry or entries upon, or use of, the Premises by Licensee or anyone entering the Premises under this Agreement, or any of them; and (iii) any labor or services performed or any materials furnished by or for the account or benefit, or at the sufferance of, Licensee in respect of the Premises. OR n (Federal and/or Tribal Agencies). Licensee shall self-insure its general liability. To the extent permitted by federal law, including the Federal Tort Claims Act (28 U.S.C. Section 2672, et seq.), Licensee Page 5 of 8 Rev.04/29/2019 agrees to indemnify and hold Licensor and its affiliated or related companies harmless against all loss or liability in any way arising out of injury or death of persons or damage to property, including LICENSEE's property, in any way arising in or about, or in connection with or as a result of Licensee's use of the above described roads and land, or other operations conducted on or about said roads and lands, or any conditions of said roads and land, during the term of this Agreement. Nothing in this Agreement shall constitute an obligation of funds of the United States in advance of an appropriation thereof. Licensee 's Liability. Licensee shall be liable to all terms addressed in Sections 12, 14 and 18 of this Agreement, subject to the limitations in the Federal Tort Claims Act(28 U.S.C. §§ 2671-2680). OR ❑ (Wash. State Agencies). State shall defend, indemnify and hold harmless Licensor from all claims that arise out of the negligence of the State or its licensees in their use of the permit. A "claim" as used in this section means any financial loss, claim, suit, action, damage, or expense, including but not limited to attorneys' fees, attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible property including the resulting loss of use. Notwithstanding the foregoing, State's obligation to defend, indemnify, and hold harmless Licensor from any judgment, decree or arbitration award shall extend only to the percentage of negligence of State and its licensee/contractor in contribution to such claim. State waives its immunity under Title 51 RCW only to the extent it is required to indemnify, defend and hold harmless Licensor and its licensee. This indemnification shall survive the expiration or termination of this Agreement. OR (l Tribal Waiver of Sovereign Immunity. Licensee hereby waives its sovereign immunity with respect to obligations of Licensee under this Agreement. LICENSEE agrees to provide a copy of the Tribal Council's Resolution acknowledging its waiver of sovereign immunity within sixty (60) days of execution of this Agreement. 12. In case any action, suit or proceeding is brought against any of the Indemnitees referenced in paragraph 11 above, by reason or on account of any of the occurrences referenced in this Agreement, Licensee shall, at its own expense, resist and defend and cause to be resisted and defended, such action, suit or proceeding, by legal counsel engaged by the Indemnitee after consultation with, but not subject to the approval of Licensee. The obligations of Licensee under Paragraph D, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19 and 23 shall survive the termination or expiration of the rights of entry granted under this Agreement. 13. To the extent permitted by the laws of the State of in which the Premises are situated, Licensee, for and on behalf of itself and anyone entering the Premises pursuant to this Agreement, hereby waives all rights and claims by Licensee or anyone entering the Premises pursuant to this Agreement may have against the Indemnitees for damages or injury incurred or sustained, resulting from or in connection with any negligent or willful act or omission done or suffered by any Person associated with Licensor. 14. The validity, interpretation and performance of this Agreement shall be governed and construed in accordance with the laws of the state in which the Premises are situated without regard to its choice-of-law provisions. 15. Licensee agrees and bind itself at its own cost and expense to promptly correct any hazardous or potentially hazardous conditions (leaning trees, trees cut and downed across roads, etc.) caused by Licensee while on said Premises. 16. Licensee, its agents, contractors, invitees, and employees agree to abide by applicable law, federal, state or local statutes, rules and regulations, Licensor's ground rules as posted or verbally communicated including, but not limited to, those pertaining to Social Security, Worker's Compensation, Unemployment Compensation, Fair Labor Standards Act of 1938, as amended, Equal Opportunity, and requirements for licensing or certification of equipment or operators. Licensee shall be responsible for insuring that all licenses are valid and shall assume all costs incurred and shall obtain at its own cost and expense all permits required by any governmental agency having jurisdiction. Licensee agrees to immediately notify Licensor in the event of any unusual occurrences or Page 6of8 Rev.04/29/2019 in the event it locates upon the Premises any controlled or regulated or hazardous substances, including but not limited to marijuana, or discarded refuse/or goods. 17. Licensee waives all rights to seek restitution or compensation from Licensor, its affiliated or related companies, business invitees, contractors, agents or assigns, for any damage occurring to Licensee's property upon the Premises that may result from logging, forestry, or road maintenance activities, or other activities conducted on or adjacent to the Premises by Licensor, its agents, assigns, invitees, contractors, affiliated companies or trespassers. 18. This Agreement and grant of License is by and in the nature of a quit-claim, Licensor warranting to Licensee only the corporate authority of its execution, and granting unto Licensee only such rights hereunder as is consistent with its record title in and to the Premises. 19. This Agreement is subject to all existing easements, licenses, exceptions, and other encumbrances. The permission granted to Licensee in this Agreement is limited to lands owned by Licensor. Licensor makes no representation or warranty as to its ownership rights in the Premises or the interpretation by any third party of any laws, regulations, or government policies, or the existence or interpretation of any encumbrances or Indian treaties. "Licensee" includes Licensee's employees, agents and contractors. 20. Exclusive use of the Premises is NOT hereby granted to Licensee, and Licensor retains the right to use the Premises for any and all purposes; further, it retains the right to grant to others nonexclusive use of the Premises for any lawful purpose not inconsistent with Licensee's use. Moreover, Licensor herein specifically advises Licensee that it has granted rights to utilize the Premises to others including hunting clubs and business invitees who have purchased timber from Licensor. 21. Licensee shall remove from the Premises all fixtures and personal property it constructed or brought upon the Premises during the term hereof and restore the Premises to its original, above-grade condition at or prior to the expiration of this Agreement. In case of the breach of this covenant, Licensor shall have the privilege of removing all fixtures and personal property and restoring the Premises to its original condition and Licensee shall be liable to Licensor for any and all expenses including attorney's fees and court costs incurred by Licensor in securing performance of this covenant. 22. Licensee shall not assign this Agreement without the prior written approval of Licensor. This Agreement shall not be recorded in the public records of any county. 23. This Agreement embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties. 24. This Agreement may be executed in any number of counterparts either in original copies or by facsimile, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. [SIGNATURES REQUIRED ON NEXT PAGE] Page 7 of 8 Rev.04/29/2019 IN WITNESS whereof, the parties have executed this Agreement as of the Effective Date. LICENSOR LICENSEE By: (Sign) JEFFERSON COUNTY WASHINGTON (Print) (Print) Board of County Commissioners As Its: (Title) Jefferson County, Washington Its: (Title) By: Kate Dean, Chair Date SEAL: ATTEST: Carolyn Galloway Date Clerk of the Board Approved as to form only: 'f/JJ��jf (]/ ` P Y i � ...� September 8, 2021 Philip C.Hunsucker Date Chief Civil Deputy Prosecuting Attorney Page8of8 Rev.04/29/2019 Exhibit A:2021ANE00361 Jefferson Count , Washington Forest:Poulsbo (48) Right of Entry Permit s �: °gyp 3 I, * F 1-27N01 W 'j [Y p 0- 1-27N01E 19 0 0 �0 JrI>` IA 4 IT Iv 10 10 10 0. z U akr TRS: T27N R01 E S19/T27N RO 1 W S24 vz ANE ANE Type: Right of Entry Permit 06/02/2021 GIS Acres: 3.6 Status: Not Sent Comments: ROE to Jefferson County Ra yonier. N Pub Health for Shellfish 0 187.5 375 750 Survey Feet 1 inch=399 feet 2021 ANE00361