HomeMy WebLinkAboutDept of Natural Resources - Land Use License No. 60-096687HILARY S. FRANZ
COMMISSIONER OF PUBLIC LANDS
LAND USE LICENSE ("License")
License No. 60-096687
THIS LICENSE is between the CITY OF PASCO, a political subdivision of the State of
Washington, herein called the "Licensee" and the STATE OF WASHINGTON, acting by and
through the Department of Natural Resources, herein called the "State" dated as of
3,20le .
Issuance. State, for and inconsideration of Five Hundred and No/100 Dollars ($500.00), hereby
issues to Licensee a non-exclusive, revocable license (hereafter "License") over a parcel of land
in Franklin County legally described as set forth in Exhibit A, (collectively referred to as
"Premises") subject to the applicable terms and conditions herein.
Permitted Uses and Activities. Entry onto the Premises for all non -ground disturbing activities
preliminary to a potential grant of easement for wastewater pipelines from State. Activities may
include:
a. Traversing the Premises on foot;
b. Cadastral Surveying;
c. Field reconnaissance and data collection in support of environmental, cultural,
vegetation, wildlife, appraisal and engineering assessments;
d. Small shovel test holes for cultural resource surveys; and
e. Temporary marking with stakes, paint or flagging in a manner that will allow
removal leaving little or no trace.
The permitted uses and activities of this License shall not interfere with State land management
activities, nor be changed or modified without the prior written consent of State, which shall be
at its sole discretion. Any unauthorized use of the License may result in immediate suspension of
the License followed by termination if the unauthorized use is not resolved to the satisfaction of
State.
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Prohibited Uses and Activities.
Licensee will not engage in the following activities on State lands while performing work under
this License:
a. Operation of heavy equipment;
b. Operation of vehicles off of existing roads;
c. Clearing;
d. Construction of new roads;
e. Camping;
f. Lighting any type of campfire, cookfire, or any other fire; and,
g. Recreational activities.
The preceding list of prohibited activities is not intended to be exhaustive, but is provided to
illustrate the types of activities not permitted by this License.
Access. Provisions for the use of rights of way across State land, including the Premises and
adjacent land are as follows:
a. Access to the Premises is via public roads that reach the Premises.
Condition of Premises. Licensee accepts the Premises in its present condition. The State has no
obligation to make any repairs, additions, or improvements thereto and expressly disclaims any
warranty that the Premises are suitable for the intended use.
Term. This License is valid from the Effective Date through June 30, 2018.
Revocation. This License may be revoked by State at will or upon material breach of any of the
conditions herein. State may suspend but shall not revoke this License without providing
Licensee prior notice and a reasonable opportunity to satisfy State's concern(s); provided
however, State shall retain sole discretion over the decision to revoke this License.
Permittees. Licensee may permit its respective employees, agents, contractors, sub -contractors,
licensees, and their agents, herein individually referred to as "Permittee" and collectively referred
to as "Permittees", to exercise the rights granted herein. Acts or omissions of the Permittees
operating under this License shall be deemed an act of the Licensee. Restrictions or requirements
placed on the Licensee herein shall apply equally to the Permittees.
State Representative. State shall designate a representative from each applicable DNR Region
who will authorize plans of operation, provide Licensee with the records or information
referenced in this License, and resolve issues arising from this License (hereafter "Region
Representative"). State may change the Region Representative by providing written notice to the
Licensee.
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Licensee Representative. Licensee shall designate a representative who will have the authority
to take any actions necessary to administer this License, to include executing a plan of operations
and resolving issues arising from this License (hereafter "Project Representative"). The Licensee
may change its Project Representative by providing written notice to State.
Advertising. Licensee shall ensure any advertising related to the use of this License does not
imply the endorsement by or affiliation with the Washington State Department of Natural
Resources, the state or any other state entity. Licensee shall submit copies of all such advertising
to the State's designated representative, prior to the publication of the advertising, to review for
compliance with this requirement.
Timber and Reproduction. "Timber" is defined as merchantable trees at least 6 inches in
diameter (measured at 4.5 feet from ground level). "Reproduction" is defined as a tree less than 6
inches in diameter that may be planted or naturally grown. Licensee shall not remove or damage
timber or reproduction within or outside of the Premises without written prior approval from
State. Licensee shall pay State the appraised value of Timber damaged or cut, and Five and
No/100 Dollars ($5.00) for reproduction damaged or cut.
Restoration of Premises. Licensee assumes responsibility for restoration of Premises to a
condition equal to or better than its condition immediately prior to Licensee's use. Such
restoration shall be completed prior to expiration of this License. Test pit excavations will be
refilled promptly after examination. Restoration includes repairing ground disturbance, re-
seeding and revegetating, repairing facilities or improvements, cleaning up litter, filling test pits,
and removing debris. All restoration is subject to the approval of the Region Representative,
which will not be unreasonably withheld.
License Inspection. A copy of this License must be available on the Premises at all times for
inspection by the State or an authorized law enforcement agency during licensed activity.
Prior Rights. This License is subject to any rights and valid claims previously granted or
conveyed by State, and to any rights and valid claims pending on or encumbering the Premises.
Licensee's rights herein are subject to all matters of public record, and to all prior unrecorded
easements, permits, leases and agreements affecting the Premises that are filed with the
Department of Natural Resources in Olympia, Washington and with its Region offices (copies of
which will be provided upon request).
Compliance with Laws. Licensee shall comply with all applicable laws, including but not
limited to all State (Department of Natural Resources) regulations, county and municipal laws,
ordinances, or regulations.
Required Permits and Licenses. Licensee shall obtain and be in possession of all permits and
licenses required for the permitted use, and shall provide proof of such permits and licenses upon
request by State.
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Plan of Operations. For each applicable DNR Region, Licensee shall meet with the Region
Representative and agree in writing to a plan of operations ("Plan of Operations") at least thirty
(30) days prior to commencement of the activity on the Premises, including use of roads. State, at
its sole discretion, may place restrictions on Licensee's use of the Premises that ensures
protection of the Premises and other uses. Any material breach of the Plan of Operations will be
considered a material breach of this License.
Fire Prevention. Licensee shall take all reasonable measures to prevent and minimize the start
and spread of fire on or adjacent to Premises. Measures shall include ensuring all vehicles carry
a fire extinguisher of at least a 5 B/C rating and a serviceable shovel, following State safety
operating procedures which include compliance with Washington Administrative Code (WAC)
332-24-301 (Industrial restrictions) and WAC 332-24-405 (Spark emitting requirements) as now
written or later amended.
State shall have the right, but not the duty, to notify Licensee of fire hazards created by Licensee
activities that need to be controlled on the Premises and adjacent State land. As soon as possible
but no later than two weeks unless otherwise agreed upon, Licensee shall remediate the fire
hazard created by Licensee, or provide an acceptable plan for such fire hazard remediation.
Roads. Roads may not be used when excessive damage due to weather or other conditions will
result. During operations under this License, the Licensee shall take such precautions as
necessary to minimize insofar as possible soil erosion, soil stream delivery, and damage to the
soil as required under Washington State Forest Practices. Licensee shall not obstruct roads or
take action that restricts the flow of traffic or use on roads without State's written permission.
Parking. Licensee shall display a copy of this License on the vehicle dashboard when parking
on State lands. Licensee shall park so as to not obstruct roads, turnouts on active haul routes, or
the operation of gates.
Repairs. Licensee shall repair damage to the roads, trails or facilities arising out of its use to a
condition equal to or better than their condition immediately prior to such use with the exception
of damage caused through normal and prudent usage.
Road Maintenance. During periods when a road, or portion thereof, is being used by the
Licensee, that portion of the road so used shall be maintained by said party at its own expense
and, at the termination of each period of such use, shall be left in a condition equal to or better
than the condition of the road immediately prior to said use.
Survey Markers. Licensee shall not destroy any land survey comer monuments 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 Licensee's cost, under the
direction of a Professional Land Surveyor licensed in Washington, in accordance with all
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applicable state law in effect at the time of construction, including but not limited to RCW 58.24,
and all state regulations pertaining to preservation of such monuments and reference points.
Protection of Natural Resources and Improvements. Licensee shall take all reasonable
precautions to prevent or minimize damage to natural resources (e.g., vegetation, wildlife, soil,
water) and improvements (crops, buildings, roads, etc.) within the Premises. Licensee shall cut
no State timber, remove no State-owned valuable materials (as defined in RCW 79.02.010), in
addition to coal, minerals, oil or gas, not disturb or remove any cultural, historical or
paleontological (fossil) resources, without the prior written consent of the State. All ground
disturbance shall be kept within the Premises unless otherwise approved by State in advance.
Survey and transportation equipment shall be set back from the stream, lake, pond and wetland
bank so surveying activities will not damage or encroach on riparian or wetland areas.
Waste. Licensee shall not cause or permit any filling activity to occur in or on the Premises,
except as approved by State. Licensee 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 Premises 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 U.S. Environmental Protection Agency, or the
Washington Model Toxic Control Act (MTCA RCW 70.105D) as administered by the State
Department. of Ecology.
Licensee shall immediately assume responsibility for a hazardous substance release (spill) caused
by Licensee or its Permittees on or adjoining the Premises.
As responsible party, Licensee shall:
• Immediately notify all necessary emergency response agencies, as required under federal,
state and local laws, regulations, or policies.
• After emergency response agency notifications are completed, notify State (Department
of Natural Resources) of all spill releases, Licensee 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 Licensee's 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 License.
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• 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 Licensee operations on State
Land.
Clean Water Act. Licensee is subject to the federal Clean Water Act (CWA) enforced by the
Washington State Department of Ecology (DOE) through its delegated authority. Licensee shall
perform its activities on State lands in a manner to prevent entry, or spillage of solid matter,
contaminants, debris, and other pollutants and wastes into flowing water, dry watercourses, lakes,
ponds, and underground water sources. Activities near streams or other bodies of water shall not
cause the water turbidity to exceed State DOE water quality standards for the stream. Licensee
shall not block or divert water courses unless by permit. When State is aware of actual or
potential noncompliance with applicable CWA requirements by Licensee that affect water
quality, State will notify Licensee and DOE. Licensee shall work with DOE and notify State of
any remedial actions or mitigation measures required by DOE or Licensee to cure the problem.
Noxious Weed Control. Licensee shall control, at its own cost, all noxious weeds on any
portion of the Premises where Licensee's activities may have caused or aggravated an infestation
of noxious weeds, unless otherwise agreed upon. Licensee shall be responsible for its
proportional cost for noxious weed control where Licensee's activities may have caused or
aggravated an infestation of noxious weeds on adjacent land. Payment for noxious weed control
may include in-kind services or materials. Licensee is responsible for notifying State of noxious
weed problems and mitigating noxious weed problems attributable to Licensee's activities.
Insurance. Before using any of said rights granted herein and at its own expense, the Licensee
shall obtain and keep in force during the term of this License and require its contractors and sub-
contractors, to obtain while operating on the Premises, the following liability insurance policies,
insuring Licensee against liability arising out of its operations, including use of vehicles.
Additionally, insurance must cover permittees for claims arising out of or resulting from the
event or activity. Failure to buy and maintain the required insurance shall result in the
termination of the License. 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. 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) Business Auto Policy (BAP) insurance, and if necessary, commercial umbrella
liability insurance with a limit of not less than $1,000,000 with such insurance
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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. Licensee 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.
(c) Employer's liability ("Ston 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.
(d) Licensee shall comply with all State of Washington workers compensation
statutes and regulations. Workers compensation coverage shall be provided for all
volunteers, employees of Licensee and employees of any contractors or sub-
contractors. Except as prohibited by law, Licensee 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 must 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, at the State's sole discretion, 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 additional insureds on all general
liability, excess, and umbrella insurance policies.
Before using any said rights granted herein, Licensee 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 the State's Land Use License 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).
Licensee 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 and sub -contractors must comply with all
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insurance requirements stated herein. Failure of contractors, sub -contractors to comply
with insurance requirements does not limit Licensee's liability or responsibility.
All insurance provided in compliance with this License shall be primary as to any other
insurance or self-insurance programs afforded to or maintained by State. Licensee 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 License.
By requiring insurance herein, State does not represent that coverage and limits will be
adequate to protect Licensee and such coverage and limits shall not limit Licensee's
liability under the indemnities and reimbursements granted to State in this License.
If Licensee is self-insured, evidence of its status as a self-insured entity shall be provided
to State. If requested by State, Licensee must describe its financial condition and the self-
insured funding mechanism.
Indemnification. Licensee shall indemnify, defend (with counsel acceptable to State) and hold
harmless State, its employees, officers and agents from any and all liability, damages (including,
but not limited to, personal injury and damages to land and other natural resources), expenses,
causes of action, suits, claims, costs, fees (including, but not limited to, attorneys' fees), penalties,
or judgments, of any nature whatsoever, arising out of the use or occupation of the Premises by
Licensee, its Permittees, contractors, concessionaires, agents, employees, guests, invitees,
customers or affiliates, except as may arise solely out of the willful act of State or State's elected
officials, employees, or agents. To the extent that RCW 4.24.115 applies, Licensee shall not be
required to indemnify, defend, and hold State harmless from State's sole or concurrent
negligence.
Notice. Unless otherwise specified herein, any notices required or permitted under this License
may be delivered personally, sent by facsimile machine, emailed with acknowledgment of
receipt, or mailed certified, return receipt requested, to the following addresses or to such other
place as the parties hereafter direct. Notice will be deemed given upon delivery or upon
confirmation of facsimile, whichever is applicable.
To State:
Southeast Region
Department of Natural Resources
713 Bowers Rd
Ellensburg, WA 98926
Matt Fromherz
Phone: 509-925-8510
Fax: 509-925-8522
matt.fromherz@dnr.wa.gov
To Licensee:
City of Pasco
P.O. Box 293
Pasco, WA 99301
Dan Ford, City Engineer
Phone: 509-544-3080
Fax: 509-545-3403
Fordd@pasco-wa.gov
Temporary Markers. Unless otherwise agreed upon, State shall not be responsible for
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preserving any temporary markers such as stakes, flags, paint, tags or signs used by Licensee for
purposes consistent with this License ("Temporary Markers"). State shall take reasonable
precautions to avoid damage to Temporary Markers placed by Licensee, but State is not liable for
third party damage to same. Prior to placing Temporary Markers on Premises, Licensee shall
inform State in writing of location and provide a general description of such Temporary Markers.
Licensee shall remove all Temporary Markers from Premises upon completion of operation or
termination of License, whichever occurs first.
Billing and Payment. When Licensee is required to pay State under this License, State shall use
its standard billing practices and invoice Licensee with reference to the State License number and
Licensee Lead Tract Number. The invoice shall include an explanation for the billing, how the
costs were calculated and any supporting documentation. Licensee shall pay State any
undisputed amount within thirty (30) days receipt of a proper invoice or pay interest at a rate of
one percent per month until such time as the amount due is paid in full.
Integrated Agreement; Modification. This License, including appendices and attachments,
constitutes the entire agreement and understanding of the parties with respect to the subject
matter of the License and supersedes all prior negotiations and representations. This License
may not be modified except in writing signed by the parties. The parties agree to execute any
additional documents reasonably necessary to effectuate the provisions and purposes of this
License.
Severability. If any provision of this License is held to be invalid or unenforceable, this
provision shall not affect or invalidate the remainder of this License, and to this end, the
provisions of this License are declared to be severable. If any such invalidity becomes known or
apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to
amend such provision as nearly as possible to be consistent with the intent of this License.
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.
Assignment. This License, and any of the rights granted herein, shall not be assigned.
Construction. The terms of this License shall be given their ordinary meaning unless defined
herein and shall not be presumed construed against the drafter.
Exhibits. All exhibits referred to in this License are deemed to be incorporated in this License in
their entirety.
Headings. The headings in this License 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 License nor the
meaning of any of its provisions.
Land Use License Page 9 of 13 License No. 60-096687
Survival. All obligations of Licensee to be performed prior to the expiration or earlier
termination shall not cease upon the termination or expiration of this License, and shall continue
as obligations until fully performed. All clauses of this License which require performance
beyond the termination or expiration date shall survive the termination or expiration date of this
License.
Counterparts. This License may be executed in one or more counterparts, each of which shall
be deemed an original, and all of which counterparts together shall constitute the same
instrument which may be sufficiently evidenced by one counterpart. Execution of this License at
different times and places by the parties shall not affect its validity so long as both parties
execute a counterpart of this License.
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WITNESS WHEREOF, the parties hereto have caused this License to be executed as below
subscribed.
CITY OF PASCO
Dated: 207.
Dave Za 1, anager
Dated: ��(��f Ud/y 3 20/9 .
Approved as to form
May 25, 2016
by Mike Rollinger
Assistant Attorney General
for the State of Washington
Address: P.O. Box 293
Pasco, WA 99301
Phone: 509-545-3404
STATE OF WASHINGTON
DEPARTMENT OF NATURAL RESOURCES
Todd Welker, Southeast Region Manager
Address: 713 Bowers Rd
Ellensburg, WA 98926
Phone: 509-925-8510
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Exhibit A
Legal Description of Premises
The west sixty (60) feet and the south sixty (60) feet of Section 16, Township 9 North, Range 30
East, W.M., Franklin County, Washington, Except that portion within the SE1/4 SE1/4 thereof.
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Exhibit B
Map
• • • • • 0 • Premises: 60' in width.
Land Use License Page 13 of 13 License No. 60-096687
January 3, 2018
Dan Ford, City Engineer
City of Pasco
525 N. 3`d Ave.
Pasco, WA 99301
E "'i
RECL
JAN 0 8 2018
PUMUC WORKS NO. 1
DEPARTMENT OF
NATURAL RESOURCES
SOUTHEAST REGION
713 BOWERS ROAD
ELLENSBURG, WA 98926
509-925-8510
TRS 711
SOUTHEAST. REGION@DNR. W A.GOV
WWW.DNR.WA.GOV
Subject: DNR License 60-096687; Kahlotus Hwy Sewer Force Main Project
Dear Mr. Ford:
I am enclosing one fully executed copy of the license which was granted to you by the State of
Washington, Department of Natural Resources, over and across parts of Section 16, Township 9
North, Range 30 East, W.M.
This license authorizes activities that are preliminary to or in support of your anticipated request
for easement over the subject state parcel. This license does not authorize any construction
activities nor does it guarantee a grant of easement. Any offer for easement stemming from
these activities will be subject to final approval by the Commissioner of Public Lands.
Please ensure that this office is included in and kept apprised of any SEPA and NEPA
environmental review processes regarding this proposed pipeline.
Please contact me with any questions at (509) 925-0965 or matt. fromherz@dnr.wa.gov.
Sincerely,
Matthew Fromherz
Right of Way Specialist
Enclosure
c: File 60-096687