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HomeMy WebLinkAboutResolution_DNR Easement_Dickey Creek BridgeKITTITAS COUNTY DEPARTMENT OF PUBLIC WORKS 2022 AGENDA STAFF REPORT AGENDA DATE: March 15, 2022 ACTION REQUESTED: Request to Approve a Resolution Authorizing the Board's Signature on the Department of Natural Resources Easement Supporting the Dickey Creek Bridge Replacement Project BACKGROUND: During the summer of 2018, Public Works (PW) was noticed of a Federal Lands Access Program grant ($3,190,898) supporting the replacement of the Dickey Creek Bridge on Teanaway Road. The grant was accepted by the Board with Resolution 2019-119 (07/16/19). Following grant acceptance, PW lobbied Western Federal Lands to expand the project scope allowing for realignment of the bridge approach. An amended funding agreement was signed by the Director in July of 2020 increasing the project value to $7,915,000. PW has negotiated an easement with Washington State Department of Natural Resources (DNR) supporting the required road realignment. The easement is now ready for Board signature. Once signed, the project will begin construction in 2022. INTERACTION: Public Works. RECOMMENDATION: Approve the Resolution Authorizing the Board's signature on the DNR easement. HANDLING: Return one original to Public Works. ATTACHMENTS: Resolution. LEAD STAFF: Mark R. Cook, Director. BOARD OF COUNTY COMMISSIONERS COUNTY OF KITTITAS STATE OF WASHINGTON RESOLUTION M AUTHORIZING THE BOARD OF COUNTY COMMISSIONERS SIGNATURE ON THE WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES EASEMENT REALIGNING A PORTION OF TEANAWAY ROAD AT DICKEY CREEK BRIDGE WHEREAS: The Board of County Commissioners accepted a Federal Lands Access Program grant with Resolution 2019-119 replacing the Dickey Creek Bridge on Teanaway Road; and WHEREAS: The funding agreement was amended in July 2020 expanding the project allowing for the realignment of Teanaway Road over and across Washington State Department of Natural Resources land; and WHEREAS: Public Works has negotiated an easement acceptable to all parties in the bridge replacement project; and WHEREAS: The project is ready to go to construction following execution of the easement by the Board of County Commissioners. NOW, THEREFORE BE IT RESOLVED: The Board of County Commissioners, after due consideration, does hereby authorize the Board's signature on the Washington State Department of Natural Resources easement realigning a portion of Teanaway Road. DATED this 15`x' day of March 2022, at Ellensburg, Washington. Attest: ❑ Clerk of the Board- Julie Kjorsvik ❑ Deputy Clerk of the Board- Mandy Buchholz BOARD OF COUNTY COMMISSIONERS KITTITAS COUNTY, WASHINGTON Laura Osiadacz, Chairman Cory Wright, Vice -Chairman Brett Wachsmith, Commissioner When recorded return to: Department of Natural Resources Southeast Region Office 713 Bowers Rd Ellensburg, WA 98926 �,asx�r+rsroM 0 e � a Y Gf N4LY0.'� WASHINGTON STATE DEPARTMENT OF nATURAL RESOURCES HILARY S. FRANZ I COMMISSIONER OF PUBLIC LANDS COUNTY ROAD EASEMENT Grantor(s): STATE OF WASHINGTON, DEPARTMENT OF NATURAL RESOURCES Grantee(s): KITTITAS COUNTY Legal Description: NEIA Section 29 & SEI/4 Section 20, Township 21N. Range 16E, W.M., Kittitas Cty. WA. DNR Easement No. 50-103249 This Easement is between KITTITAS COUNTY PUBLIC WORKS, 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 public road over and across portions of SEI/4 Sec. 20, NEI/4 Sec. 29, Township 21N., Range 16E., W.M. legally described on Exhibit A and shown approximately on Exhibit B as "Easement Area" (hereafter "Easement Area"). Timber. All timber located within the Easement Area and timber subsequently grown within the Easement Area shall belong to State but may be removed by Grantee subject to the Danger Tree Removal clause herein. Consideration. In exchange for the mutual promises and covenants herein contained, and other good and valuable consideration, the mutual receipt and sufficiency of which is hereby acknowledged, the State agrees to the following terms and conditions. 1 of 17 Easement No. 50-103249 Relinquishment. As additional consideration, Grantee hereby relinquishes and quitclaims all rights and interest in and to the approximately 1.23 acres where the county road is to be abandoned on those parcels legally described on Exhibit A and as shown approximately on Exhibit C as "Relinquished Easement Area" (hereafter "Relinquished Easement Area"). Grantee shall remove all improvements and abandon the existing service road in the Relinquished Easement Area. Construction and Access. State grants to Grantee a nonexclusive easement, for construction purposes only, over the Relinquished Easement Area as shown in Exhibit C, which includes the Easement Area and such additional easement area as is reasonably necessary for construction on the Easement Area. This construction Easement shall terminate upon completion of construction by Grantee, and will meet the requirements as specified in Exhibit D (Reclamation and Abandonment Requirements). Term. The term of this Easement shall be perpetual unless vacated as provided by law. As -built Survey. Grantee shall file a Record of Survey acceptable to the State with the KITTITAS County Auditor within ninety (90) days of the completion of construction of the Road. The Record of Survey shall clearly indicate the "as built' location of all improvements and facilities constructed or installed by Grantee within the Easement Area. Any changes to the location of the Easement Area as shown on Exhibit A requires prior approval of State, which may be contingent upon Grantee acquiring written approval from entities with prior rights in title. Upon recording, the specific location of the Easement Area shall be deemed to be as shown on the Record of Survey, which shall supersede and replace Exhibits A and B. Assignment. Neither this Easement, nor any of the rights granted herein, shall be assigned without prior written consent of State. 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(i)) which prohibits the export of unprocessed western cedar logs harvested from state lands. 2 of 17 Easement No. 50-103249 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, 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 other permittees (with the exclusion of the Public Permittees) 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 17 Easement No. 50-103249 (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. 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 (with the exclusion of the Public 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 (with the exclusion of the Public Permittees) must comply with all insurance requirements stated herein. Failure of contractors, sub -contractors and other permittees (with the exclusion of the Public 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. If Grantee is self-insured, evidence of its status as a self-insured entity shall be provided to 4 of 17 Easement No. 50-103249 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 other than regular and routine maintenance, 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 as approved by State. The tern 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 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 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. 5 of 17 Easement No. 50-103249 Survey Markers. Grantee shall not destroy any land survey corner monuments and/or reference points (including but not limited to corner 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 not associated with regular and/or routine road maintenance. 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. 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. 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 Southeast Region Office 713 Bowers Rd Ellensburg, WA 98926 To Grantee: Kittitas County 6 of 17 Easement No. 50-103249 411 N. Ruby St., Suite Ellensburg, WA 98926 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. Danger Tree Removal. Individual trees located within Easement Area and within the Easement Area which shall be dangerous to the operation and use of the Easement Area, may be removed subject to the following: 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. State 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 forty-five (45) days following receipt of said notice, State, acting by and through its Region Manager at; Ellensburg, 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. 7 of 17 Easement No. 50-103249 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. 8 of 17 Easement No. 50-103249 IN WITNESS WHEREOF, the parties hereto have executed this instrument, in duplicate, as of the day and year first above written. Dated: , 20_. Dated: 20. Dated: 20. Dated: 20 Approved as to form October 18, 2002 by Mike Rollinger Assistant Attorney General for the State of Washington BOARD OF COUNTY COMMISSIONERS 205 West 5th Street, Room 109 Ellensburg, WA 98926 (509) 962-7508 Laura Osiadacz Commissioner Cory Wright Commissioner Brett Wachsmith Commissioner STATE OF WASHINGTON DEPARTMENT OF NATURAL RESOURCES ANGUS W. BRODIE Deputy Supervisor for State Uplands P.O. Box 7000 1111 Washington Street SE Olympia WA 98504-7000 9 of 17 Easement No. 50-103249 REPRESENTATIVE ACKNOWLEDGMENT State of Washington County of I certify that I know or have satisfactory evidence that are the individuals who appeared before me, and said individuals acknowledged that they signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the County Commissioners of County 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 10 of 17 Easement No. 50-103249 STATE ACKNOWLEDGEMENT State of Washington County of Thurston I certify that I know or have satisfactory evidence that ANGUS W. BRODIE 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 Deputy Supervisor for State Uplands of the Department of Natural Resources of the State of Washington to he 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 17 Easement No. 50-103249 EXHIBIT A EASEMENT AREA Portions of Sections 20 & 29, Township 21 North, Range 16 East, W.M., Kittitas County, Washington. Those portions of land as county road (North Fork Teanaway Road), located in the Northeast 1/4 of Section 29 and the Southeast 1/4 of Section 20, all in Township 21 North, Range 16 East, W.M., Kittitas County, Washington 14 of 17 Easement No. 50-103249 EXHIBIT B EASEMENT AREA EASEMENT AREA Map Created 03/01/2022 N - STATE Easement Area Approx. 3537.00 Feet in length Approx. 50.00 Feet in Width Approx. 4.87 Ayes 0.13 025 0.5 Miles 15 of 17 Easement No. 50-103249 EXHIBIT C RELINQUISHED EASEMENT AREA USEMN r AREA Map Created 03(0112022 N +� RELINQUISHED EAS=.MEM AREA S AVL 0.13 0.25 0.5 Miles 16 of 17 Easement No. 50-103249 EXHIBIT D RECLAMATION AND ABANDONMENT REQUIREMENTS • In restoring the land, Grantee shall remove from State Land all asphalt and contaminated material in the area being vacated and abandoned. The reclaimed area shall be reshaped to match existing topography and ripped to a depth of 24 inches. Grantee shall seed and ensure successful establishment of vegetation over all areas made void of natural cover by operations herein with a certified weed -free grass seed mixture native to the area as approved by State. 17 of 17 Easement No. 50-103249