HomeMy WebLinkAbout3461 ResolutionRESOLUTION NO. 3+\0
A Resolution approving a sublease for the Pasco Boat Basin.
WHEREAS, since 1978, the City has leased from the US Army Corps of Engineers a
portion of the McNary Levy Project on the Columbia River near 4t' Avenue South in Pasco, said
area being designed to provide a park and marina and commonly referred to as the Pasco Boat
Basin; and
WHEREAS, the City has continually subleased the marina portion of the boat basin area
to private operators for the provision of boat moorage and related services to the Pasco
community; and
WHEREAS, City staff has negotiated a new sublease involving a new marina operator
and expected improvements to the marina intended to expand and enhance the boating services
available to the Pasco community; and
WHEREAS, the US Army Corps of Engineers has given its approval; NOW
THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DOES
RESOLVE AS FOLLOWS:
Section 1. That the City Council hereby approves the sublease attached hereto as Exhibit 1.
Section 2. That the City Manager is hereby authorized to execute the sublease and carryout
administrative responsibilities to ensure its implementation and fulfillment of lease
obligations.
PASSED by the City Council of the City of Pasco, Washington, at its regular meeting on
the 4th day of March, 2013.
Matt Watkins, Mayor
Aft t Appr to Form:
-0� )a J 0 0 //�
Debra L. Clark, City Clerk Leland B. Kerr, Attorney
Exhibit 1
BOAT BASIN SUBLEASE AGREEMENT
THIS AGREEMENT is effective on the day of March, 2013, by and between the
City of Pasco, a Municipal Corporation of the State of Washington, hereinafter referred to as the
"City ", and JT &T. LLC, a Washington Limited Liability Company, doing business as Columbia
Marine Center, hereinafter referred to as "Columbia."
WHEREAS, the City has leased from the United States Department of the Army Corps
of Engineers Lease to Non -State Governmental Agencies for Public Park and Recreational
Purposes (Lease No. W912EF- 1 -04-13) for that property generally referred to as the Pasco Boat
Basin and more legally described on Exhibit A; and
WHEREAS, the City has for a number of years maintained the boat basin as a
recreational marina facility, for the benefit of the citizens of Pasco; and
WHEREAS, the City has adopted a Boat Basin and Marine Terminal Plan for the
improvement and enhancement of the boat basin and surrounding properties including
improvements consistent with the Tri- Cities Rivershore Master Plan and the Port of Pasco
Improvements of Osprey Pointe; and
WHEREAS, the City has sought a request for proposal for the operation and
improvement of the boat basin to which Columbia has responded with a proposal that is
acceptable to the City to be implemented by this Sublease. NOW; THEREFORE,
IN CONSIDERATION of the mutual covenants contained herein, the parties agree as
follows:
ARTICLE 1- LEASE OF PREMISES
1.1 Lease of Premises. The City hereby leases to Columbia and Columbia leases
from the City, for the purpose of developing, operating, and providing a manna at the Pasco Boat
Basin on the real property more particularly described in Exhibit A which is attached hereto and
included by this reference. The premises include:
A. Boat basin marina consisting of approximately two acres, a building,
docks, slips and other improvements (hereinafter "Improvements ") as more particularly
on the Premises Inventory attached as Exhibit B.
The real property and the improvements are collectively referred to as 'Premises."
ARTICLE 2 - INCORPORATION OF UNDERLYING LEASE
2.1
Columbia acknowledges
that the City
is subject to
an underlying lease on the
Premises
from the Department of Army
designated as
Department of
the Army Lease to the City
of Pasco,
Washington, for Public Park
and Recreational Purposes,
Levee 12 -1, the Pasco Boat
Boat Basin Sublease Agreement - 1
Basin, designated as Lease No. W9- 12EF- 1- 04 -13, and amendments thereto ( "underlying
Lease "), and further acknowledges that this Sublease is expressly made subject to all the terms,
conditions, and limitations contained in the underlying Lease.
Columbia shall perform and comply with all obligations and performance required of the
City, as Lessee thereunder, including the Annual Management Plan (AMP) as provided in
Section 5 thereof, requiring submission by January 1 of each year during the term of this Lease,
an AMP acceptable to the City and the underlying Lessor's District Engineer. The underlying
Lease is attached as Exhibit C, and incorporated by this reference. Any breach of the terms of
the underlying Lease by Columbia shall also constitute a material breach of this Sublease. In the
event the terms of this Sublease conflict with the terms of the underlying Lease, the terms of the
underlying Lease shall control. Columbia acknowledges that this Sublease is contingent upon
approval by the underlying Lessor.
ARTICLE 3 - TERM
3.1 Initial Term. This Sublease shall commence on the 15th day of December, 2012,
and shall end at midnight on December 31, 2022, unless extended as hereinafter provided or
unless earlier terminated.
3.2. Option to Extend Terms. Columbia is given the option to extend the term of this
Sublease for two (2) consecutive periods of ten (10) years upon the expiration of the initial term
by giving notice of the exercise of the option to the City at least twelve (12) months prior to
expiration of the initial term or any extended term. In no event, however, shall Columbia be
entitled to renew a term hereof, even though such notice was timely given, unless Columbia shall
have timely performed all of its obligations hereunder, and shall not be in default in the
performance of any payments, duties, or responsibilities required under this Sublease or the
underlying Lease on the date the expiration of the initial term, or extended term, of this Sublease.
3.3 Option of City to Terminate Sublease. Notwithstanding any other provision of
this Sublease regarding termination, if the City acquires ownership of the Premises, the City shall
have the right to terminate this Sublease after the initial term, by giving Columbia at least twelve
(12) months prior written notice of its intent to terminate this Sublease.
A. Within 30 days of City's notice, the parties shall agree upon an early
termination fee, including the remaining unamortized value (calculated on a straight -line
basis) of capital improvements made to the Premises by Columbia.
B. City shall pay the early termination fee to Columbia in one lump sum
within sixty (60) days of the date of early termination of this Sublease.
C. City may withhold from the early termination fee an amount equal to any
outstanding sums due from Columbia to City.
Boat Basin Sublease Agreement - 2
3.4 If the parties are unable to agree upon an early termination fee, they shall proceed
to establish the fee as a purchase price by arbitration as provided in Section 15.4, Dispute
Resolution.
ARTICLE 4 - RENT
4.1 Rent Accrual. Rent accrual shall begin on the effective date of this Sublease. The
first month's rent shall be prorated and thereafter, full rental payments shall be due on the first
day of each month. Rent shall be payable to the City without demand and without deduction,
setoff, or counter claim.
4.2 Rent. Commencing on January 1, 2013, the monthly rental amount shall be One
Thousand Two Hundred Dollars ($1,200.00); commencing on January 1, 2014, the monthly
rental amount shall be One Thousand Three Hundred Dollars ($1,300.00); commencing on
January 1, 2015, the monthly rental amount shall be One Thousand Four Hundred Dollars
($1,400.00); and beginning on January 1, 2016, the monthly rental amount shall be increased,
and shall thereafter increase each year, including any period of extension, on the first day of
January of each year in an amount equal to the greater of. a) 18% of the total rental income of all
moorage and boat storage revenues or, b) an amount equal to 105% of the previous rental rate.
4.3. Late Char ¢e. In any installment of rent or payment due from Columbia not
received prior to or on the date when due, Columbia shall pay to the City an additional sum equal
to 15% of the overdue portion of the rent as late charge. Notice of late payment is not required,
but may be provided by the City to Columbia. The unpaid rent together with the late charge
shall accrue interest at the rate of 12% per annum until paid in full. Acceptance of any late
charge shall not constitute a waiver of Columbia's default with respect to the overdue payment or
prevent the City from exercising any of the other rights and remedies available to it.
4.4 Security Deposit. Upon execution of this Sublease, Columbia shall deposit Three
Thousand Six Hundred Dollars ($3,600.00) with the City as a security deposit. This sum shall
guarantee Columbia's performance of its obligations hereunder. If Columbia fails to perform any
of its obligations hereunder, the City may apply the appropriate portion of the security deposit to
cure the default or to compensate the City for damage it has sustained as a result of Columbia's
default, including attorney fees and administrative costs, including notices, which shall be
reimbursed at the rate of $100.00 per each such notice provided to Columbia,
If any portion of the deposit is so used, Columbia shall, upon demand, deposit sufficient
cash with the City to restore the security deposit to its original amount.
If Columbia fully performs its obligations under this Sublease, the security deposit or any
balance thereof shall be retumed to Columbia at the expiration of this Sublease, or after
Columbia has vacated the Premises, whichever last occurs.
Boat Basin Sublease Agreement - 3
ARTICLE 5 - REMEDIATION AND CAPITAL DEVELOPMENT PLAN
5.1 In addition to the AMP, as well as the Recreation, Development and Management
Plan as required under the underlying Lease, Columbia shall immediately implement and comply
with the Remediation Plan providing for the timely removal of derelict docks, flotation material,
overgrown and dead vegetation, and other waste and debris upon the Premises which is attached
hereto and incorporated as Exhibit D.
5.2 Columbia shall immediately initiate and implement the Capital Development Plan
in a timely manner as provided in Exhibit E, attached hereto and incorporated by this reference.
5.3 The Remediation Plan and the Capital Development Plan are material conditions
of this Sublease, and failure to timely comply with such terms shall constitute a materially breach
of the Sublease. Such Plans may only be modified in writing signed by both parties.
ARTICLE 6 - INDEMNIFICATION
6.1 The City shall not be liable for any loss, injury, death or damage to persons or
property which at any time may be suffered or sustained by Columbia or by any person
whomsoever may at any time be using or occupying or visiting the Premises, whether such loss,
injury, death or damage shall be caused by or in any way result from or arise out of any act,
omission, or negligence of Columbia or any of its occupants, subtenants, invitees, or other users
of any portion of the Premises. Columbia shall indemnify the City against all claims, liability,
loss, or damage whatsoever on the account of any such loss, injury, death or damage. Columbia
shall defend, indemnify and hold the City harmless in any action at law or equity, the City, its
officers, employees, agents and elected officials and appointive boards from any and all claims,
losses, damages, including property damage, personal injury, including death, and liability of
every kind, nature and description arising from or connected with the use or occupancy of the
Premises by Columbia or the performance of this Sublease by Columbia or any person directly
its control.
ARTICLE 7 - INSURANCE
7.1. Liability Insurance. Supplement to those requirements under Section 19
"Insurance" of the underlying Lease, Columbia shall secure, maintain and pay for general
liability insurance coverage in the amount of One Million Dollars ($1,000,000.00) per
occurrence, with a general aggregate limit of Two Million Dollars ($2,000,000.00) including
coverage for environmental liability in an amount of One Million Dollars ($1,000,000.00) per
occurrence, with a general aggregate limit of $2,000,000.00, at all times during the term or
extended term of this Sublease, insuring Columbia and naming the City as an additional named
insured. Columbia shall provide the City a certificate of insurance and a copy of the insurance
policy prior to taking possession of the premises, and annually thereafter. Such policies shall
provide that no cancellation, major change in coverage, or nonrenewal by the insurance company
will be made during the term of this Sublease, without 30 days written notice to the City prior to
the effective date of such cancellation, nomenewal, or change in coverage.
Boat Basin Sublease Agreement - 4
7.2. Fire and Casualty Insurance. Columbia, as an operating expense, shall maintain
and keep on all of its personal property, improvements, and alterations in, on or about the
Premises, including, but not limited to, buildings, docks, boat slips, and other improvements, a
policy of standard fire, casualty, and extended or other coverage insurance to the extent of 100%
of their full replacement value, without reduction for depreciation of Columbia's improvements
or alterations if damaged, with the loss payable to the City and Columbia as their interest may
appear.
7.3. Workers' Compensation Insurance. Full workers' compensation insurance
necessary in connection with the performance of this Sublease to protect Columbia and its
employees under the Workers' Compensation Act. Such insurance shall relieve the City from
any all responsibility therefore. However, in no event, shall any employee of Columbia be
construed to be an employee or "loaned" servant of the City.
7A Payment. Payment of policy premiums required under this Article shall be
construed as additional rent subject to timely payment by Columbia.
7.5 Subrogation. Notwithstanding any other provision of this Lease to the contrary,
and without limitation of the provisions of this Article 7, whenever (a) any loss, cost, damage or
expense resulting from fire, explosion or any other casualty or occurrence is incurred by either of
the parties hereto, or anyone claiming by, through, or under it in connection with the Premises,
and (b) such party then is covered in whole or in part by insurance with respect to such loss, cost,
damage or expense or is required under this Lease to be so insured, then the party so insured (or
so required) hereby waives any claims against and releases the other party from any liability said
other party may have on account of such loss, cost, damage or expense to the extent of any
amount recovered by reason of such insurance (or which could have been recovered had such
insurance been carried as so required). The parties agree to furnish to each insurance company
which has or will issue policies of casualty insurance on the Improvements, written notice of said
waivers and to have the insurance policies properly endorsed, if necessary, to acknowledge such
subrogation waivers. Such release of liability and waiver of the right of subrogation shall not be
operative in any case where the effect thereof is to invalidate such insurance coverage or increase
the cost thereof (except that in the case of increased cost, the other party shall have the right,
within thirty (30) days following written notice, to pay such increased cost, thereby keeping such
release and waiver in full force and effect).
ARTICLE 8 - TAXES AND UTILITIES
8.1 Taxes. Columbia shall promptly pay when due, and before delinquency, all taxes,
including leasehold excise tax, assessments, rates, charges, license fees, liens, levies which may
be levied, assessed, charged or imposed or upon which may become liens or charged upon or
against the Premises. Columbia shall have full right of contest of validity or amount of any tax,
assessment, levy, or other governmental charge that may be required to pay under the terns of
this Sublease.
Boat Basin Sublease Agreement - 5
8.2 Utilities. Columbia shall promptly pay, when due and before delinquency, all
water, sewer, gas, heat, light, power, telephone service, garbage removal and all other utility
services of any kind and nature whatsoever supplied to, for the benefit of, or used on the
Premises by Columbia.
ARTICLE 9 - USE OF THE PREMISES
9.1 The Premises shall be used solely for the purpose of providing quality marina
services and products to the public including providing moorage services, boat sales and service,
watercraft sales and service, and all other uses incident to, accessory to, or necessary for marina
services. These uses shall include the development, construction, and improvements on
structures, docks, and fueling facilities, and improvements as provided in the Capital
Improvement Plan and the May 18, 2010, Army Corps of Engineers Permit for the installation of
additional ramps, docks and marina improvements.
9.2 Any other uses not prohibited by the underlying Lease and proposed by Columbia
shall be reviewed and approved by the City and the United States Army Corps of Engineers
District Engineer. Approvals must be obtained prior to Columbia proceeding with the
implementation of any such additional uses.
9.3 Columbia shall comply with and conform with all laws and regulations relating to
the condition, use or occupancy of the Premises as required by Federal, State, County or City
laws, ordinances or regulations.
9.4 Columbia shall have full right and authority to rent slip, moorage and dryland
storage of boats for periods not exceeding one (1) year with all revenues therefrom belonging to
Columbia. Columbia shall be entitled to all revenues generated by its operations, sales and
services upon the Premises.
9.5 Columbia shall maintain the Premises in a clean and orderly condition and shall
not cause nor permit litter, garbage, or other refuse or debris to accumulate on the Premises and
shall, at its own expense, control or eliminate any pests, insects, overgrown or dead vegetation
and noxious weeds.
9.6 Columbia shall not cause or permit any Hazardous Substance, including
petroleum products or sewage that may be spilled, leaked, disposed of, or otherwise released on
or under the Premises or its adjoining waters. Columbia may use or otherwise handle on the
Premises only those Hazardous Substances typically sold or used in the prudent and safe
operation of a marina. Columbia may store such Hazardous Substances on the Premises only in
such quantities necessary to satisfy Columbia's reasonably anticipated needs. Columbia shall
comply with all Environmental Laws and exercise the highest degree of care in the use, handling,
and storage of Hazardous Substances, and shall take all practical measures to minimize the
quantity and toxicity of Hazardous Substances used, handled, or stored on the Premises. Upon
the expiration or termination of this Sublease, Columbia shall remove all Hazardous Substances
from the Premises. The term "Environmental Law" shall mean any Federal, State or local
Boat Basin Sublease Agreement - 6
statute, regulation, or ordinance, or any judicial or other governmental order pertaining to the
protection of health, safety, or the environment. The term "Hazardous Substance" shall mean
any hazardous, toxic, infectious, or radioactive substance, waste, and material as defined or listed
by any environmental laws and shall include, without limitation, petroleum, oil, or their
constituents.
9.7 Notwithstanding anything in the Article 9 to the contrary, Columbia shall not be
liable and the City shall fully indemnify and hold Columbia harmless from and against any and
all liabilities, damages, expenses, costs and losses arising from, or as a result of, any use and
occupancy of the Premises prior to the Commencement Date, including any violation of any
Environmental Laws attributable to the period prior to the Commencement Date, and from, or as
a result of, any breach of the City's obligations under this Lease.
9.8 Columbia will not limit or exclude public use of the existing boat launch ramp or
the park portions of the marina.
9.9 Columbia shall not discriminate against any person as set forth in Section 22 of
the underlying Lease.
9.10 Columbia agrees to cooperate and assist as is reasonable in any agreement
between the City of Pasco and the Port of Pasco for the improvement of adjacent properties
owned by the Port as well as the properties included in this sublease (Exhibit A).
ARTICLE 10 - REPAIR AND MAINTENANCE
10.1 Columbia's Repair and Maintenance Obligation. Except for the maintenance and
repair obligations specifically assumed herein by the City, Columbia shall, at its expense, keep
and maintain the Premises, including but not limited to, the Marina components identified in
Exhibit B and such other buildings, structures, improvements, fixtures, trade fixtures, equipment
and utility systems which may now or hereafter exist on the Premises, in good, operable, usable
and sanitary order, appearance, repair and in a good, safe, operating and attractive condition
throughout the term of this Sublease, timely providing for such repairs, replacement, rebuilding
and restoration as may be required to comply with the requirements of this Sublease. Such
maintenance and repair shall include all roadways, parking areas, common areas, walkways,
utility service and lines, shorelines and trees, shrubbery, grass and vegetation on the entire
Premises; and maintenance and repair of the existing sales and service building, all interior
repairs including ordinary electrical and HVAC maintenance, all interior and exterior doors,
windows, flooring or restrooms, equipment, and fixtures.
A. Should Columbia fail to perform such maintenance or repair within thirty
(30) days of written notice fiorn the City, the City may enter upon the Premises and
perform the required maintenance for repair, unless, such lack of maintenance and repair
creates an unsafe or hazardous condition for which the City may immediately enter the
premises to accomplish such repairs as necessary. Columbia shall reimburse the City of
all costs incurred in effectuating such maintenance or repair.
Boat Basin Sublease Agreement • 7
10.2 City's Obligation for Maintenance Repairs and Improvements. The City shall be
responsible for maintaining the major structural components of the existing sales and service
building including:
A. Repairs of the roof and gutters, exterior walls (not including painting),
bearing walls, structural members, floor slabs, and foundation.
B. Repair of exterior water, sewer and electrical services up to the point of
entry to the Premises.
C. Repair of the heating and air conditioning components, other than ordinary
maintenance.
D. City shall not, however, be responsible for any repairs necessitated by the
negligence of or improper maintenance by Columbia, its agents, employees or invitees.
Such repair shall be the responsibility of Columbia.
E. To facilitate prompt repair and minimize the affect upon Columbia's
business, the City may authorize Columbia, or its subcontractors, to perform the
maintenance and repair as provided above with the City promptly reimbursing Columbia
for the actual costs of such maintenance, repairs and any improvements authorized.
103 Inspection. The City shall have the right to enter the Premises upon 24 -hour
notice during regular business hours, or such time as mutually agreed between the parties, for
inspection of the Premises to determine Columbia's compliance with this Sublease, to make
necessary repairs to the building or to the Premises, and to fulfill its obligations under the
underlying Lease.
ARTICLE 11 -ASSIGNMENT AND SUBLETTING
11.1 Other than short term slip rental and boat storage, no part of the Premises may be
assigned, mortgaged, subleased, nor may a right of use of any portion of the Premises be
conferred on any third person without the prior written consent of the City. This shall include
the sale or transfer of any interest exceeding 25% in the ownership of Columbia.
ARTICLE 12 - CONSTRUCTION OR MODIFICATION OF MARINA FACILITY
12.1 Prior to Columbia's construction, modification, alteration or renovation of any
new or existing building, structure or improvement, Columbia shall provide the following:
A. Plans and Specifications. Columbia shall at Columbia's sole expense,
prepare plans and specifications for any new building, structure or improvement the cost
of which is in excess of $25,000.00, to be erected on the premises. Such plans and
specifications shall be submitted to the City and the Corps of Engineers for the prior
Boat Basin Sublease Agreement - 8
written approval of, or any revisions required by the City and the Corps of Engineers.
The City and the Corps of Engineers shall not unreasonably withhold such approval, and
in the event of disapproval, the City and the Corps of Engineers shall give to Columbia
an itemized statement of reasons therefore within sixty (60) days after the same are
submitted to them. Prior to the commencement of any such work, the City may require
Columbia to furnish the City with a good and sufficient surety bond guaranteeing the
completion of such building, structure or improvement and the payment of all bills
therefore.
B. Alterations Improvements and Changes Permitted. Columbia shall have
the right to make such alterations, improvements and changes to any building, structure
or improvement which may from time to time be on the premises as Columbia may deem
necessary, or to replace any such building, structure or improvement with a new one of at
least equal value, provided that prior to making any structural alterations, improvements
or changes, or to replacing any such building, structure or improvement, Columbia shall
obtain written approval of plans and specifications therefore from the City and the Corps
of Engineers, which approval the City nor the Corps of Engineers shall not unreasonably
withhold, provided that the value of the building, structure or improvement shall not be
diminished and the structural integrity of the building, structure or improvement shall not
be adversely affected by any such alterations, improvements or changes, or that any
proposed new building, structure or improvement is at least equal in value to the one
which it is to replace, as the case may be. In the event of disapproval, the City and the
Corps of Engineers shall give to Columbia an itemized statement of reasons therefore.
Columbia will in no event make any alterations, improvements or other changes of any
kind to any building, structure or improvement on the premises that will decrease the
value of such building, structure or improvement or that will adversely affect the
structural integrity of the building, structure or improvement. Prior to commencing any
work that will cost in excess of Twenty -Five Thousand Dollars ($25,000.00), the City
may require Columbia to furnish the City and the Corps of Engineers, on demand, with a
good and sufficient surety bond insuring the completion of such work and the payment of
all bills therefore.
C. Restoration and Replacement of Currently Existing Structure. Columbia
shall have no obligation to restore or replace at the expiration or other termination of the
Lease, the buildings located on the land hereby demised at the commencement of the
term hereof, except that, prior to the time Columbia may demolish such building,
Columbia shall keep and maintain the same in a condition comparable to its condition
when delivered to Columbia.
D. Disposition of New Improvements. Any new building, structure or
improvement constructed by Columbia on the premises, and all alterations,
improvements, changes or additions made in or to such premises, shall be the property of
City, and Columbia shall have only a leasehold interest therein, subject to the terms
hereof.
Boat Basin Sublease Agreement - 9
E. Improvements and alterations installed by Columbia shall, at Columbia's
option, be removed by Columbia and the Premises restored unless the applicable
Columbia's consent specifically provides otherwise. Existing improvement to buildings
and grounds may not be removed without the prior written consent of the City.
ARTICLE 13 - DEFAULT
13.1. The City may, at its option and without limiting the City in the exercise of any
other right or remedy it may have on account of a default or breach by Columbia, exercise the
rights and remedies specified herein if
A. Columbia defaults in the payment of any money agreed to be paid by
Columbia to City for rent or to be paid for taxes, utilities, insurance or for any other
purposes under this Sublease, and if such default continues for ten (10) days after the date
due.
B. Columbia abandons the Premises for a period of thirty (30) days.
C. Columbia defaults in the performance of any of its agreements, conditions
or covenants, other than the payment of rent or additional rent, and any such default
continues for thirty (30) days from the date of notice. However, not withstanding any
other provisions herein, the thirty (30) day notice shall be required for the first default
only; the second default shall require a ten (10) day notice period; and the third such
default shall require no notice which shall constitute an automatic termination of the
Sublease. The purpose of this provision is to prevent habitual defaults and performances
required under this Sublease. If two or more years have passed since the date of the last
default, Columbia shall be entitled to reinstatement of the notice feature provided above
with first such default allowed up to thirty (30) days to cure. If, any such delay in the
performance of the cure of any default by Columbia is the direct result of reasons or
matters beyond the control of Columbia, such period may be extended for such
reasonable period as is necessary to cure the default.
D. The levy of a writ of attachment or execution or lien on this Sublease or
any other property of the Subleasee located on the Premises which is not released or
terminated within thirty (30) days.
E. A general assignment by Columbia for the benefit of its creditors, or an
attempted assignment or transfer of any of the rights provided under this Sublease.
The filing by or against Columbia of a petition for relief in bankruptcy.
G. Failure of Columbia to timely fulfill or comply with the Corps of
Engineers AMP, or the Remediation Plan or Capital Development Plan as provided in
Article 5 of this Sublease.
Boat Basin Sublease Agreement - 10
H.
Columbia's
failure to perform
any material provision of this Sublease or
the underlying
Lease.
ARTICLE 14 - REMEDIES
14.1 Remedies. In the event of Columbia's default hereunder, and in addition to any
other rights or remedies the City may have under this Sublease or under law, City may elect:
A. To immediate terminate this Sublease and Columbia's right to possession
of the Premises by giving written notice to Columbia and (1) to recover from Columbia
an award of damages equal to the sum of the unpaid rental which had been earned at the
time of termination; (2) to recover any other amount necessary to compensate City for all
the detriment either proximately caused by Columbia's failure to perform Columbia's
obligations under this Sublease or which in the ordinary course of things would be likely
to result therefrom; and (3) to recover all such other amounts in addition or in lieu of the
foregoing as may be permitted from time to time under applicable law.
B. To have this Sublease continue in effect for so long as City does not
terminate this Sublease and Columbia's right to possession of the Premises, in which
event City shall have the right to enforce all of the rights and remedies provided by this
Sublease and by law, including the right to recover the rental and other charges payable
by Columbia under this Sublease as they become due.
C. To have a receiver appointed to collect rent and conduct Columbia's
business. Neither the filing or a petition for the appointment of a receiver nor the
appointment itself shall constitute an election by City to terminate this Lease.
D. To exercise any or all of the remedies set forth in this Sublease.
E. In the event of a reentry, the City shall have the right to take over
management of the Marina including, but not limited to, communications with slip rental
tenants and boat storage customer, and collection of rents and other payments due for the
use of the Marina. To facilitate the transfer of management, Columbia shall immediate
provide to the City with its most current customer contact information and rental payment
ledger.
14.2 Riaht of Entry and Expenses of Columbia's Default. If Columbia shall default in
the performance of any obligation on Columbia's part to be performed under this Sublease, City
may, following reasonable notice to Columbia, enter the premises and perform the same for
Columbia's account with City personnel and equipment or with the services of a private
contractor. If City at any time is compelled or elects to pay or incur any cost or expense
(including, but limited to, reasonable attorneys' fees) by reason of Columbia's default, Columbia
shall, upon demand, pay to City as additional rental the amount of such costs and expenses,
together with interest at the maximum rate set forth in this Sublease from and after the date paid
or incurred.
Boat Basin Sublease Agreement - I 1
14.3 City's Default. In the event City fails to perform any covenant, condition, or
agreement contained in this Sublease within thirty (30) days after written notice from Columbia
specifying such default or, where City's default cannot reasonably be cured within thirty (30)
days and City fails to commence to cure within that period, then City shall be liable to Columbia
for any damages sustained by Columbia as a result of City's breach. Columbia shall not have the
right to terminate this Sublease or to withhold, reduce or offset any amount against any payments
of rents or charges due and payable under this Sublease, except as may be specifically provided
herein. Columbia shall not have, and hereby waives, any claim against City for money damages
arising by reason of any refusal, withholding or delay by City in giving any consent, approval or
statement of satisfaction. City will not unreasonably withhold any such consent, approval or
statement of satisfaction. Columbia's only remedies for any such refusal, withholding or delay
shall be an action for specific performance, injunction or declaratory judgment.
ARTICLE 15 - GENERAL PROVISIONS
15.1 Time is of the essence. For the purpose of this agreement, time is of the essence
for the prompt performance of all terms and conditions of this Sublease.
15.2 Nonwaiver. Waiver by either party of the strict performance of any provision of
this Sublease shall not be a waiver of nor prejudice the party's rights to require strict performance
of the same provision in the future or of any other provision.
15.3. Notice. Any notice, demand, request, consent, approval or communication that
either party desires or is required to give to the other party, shall be in writing and either served
personally or transmitted by electronic mail, or prepaid certified mail, effective as of the date of
posting. Notices shall be addressed to the parties as follows:
The City of Pasco
Rick Terway, Director
Administrative & Community Services
CITY OF PASCO
PO Box 293
Pasco WA 99301
JT &T, LLC
d/b /a Columbia Marine Center
1315 S. 4 "' Ave
Pasco WA 99301
Either party may change its address by notifying the other of the change of address in
writing.
15.4 Dispute Resolution. Except for disputes involving the payment of rent, or those
Boat Basin Sublease Agreement - 12
disputes required under Section 30 of the underlying Lease to be resolved under the Contract
Dispute Act of 1978, in the event of a dispute in regards to the enforcement, interpretation or
breach of this Sublease, the parties shall first meet in a good faith attempt to resolve the dispute.
In the event the dispute cannot be resolved by agreement of the parties either with or without the
assistance of mediation, said dispute shall be resolved by arbitration pursuant to RCW 7.04A, as
amended, with both parties waiving the right of a jury trial upon trial de novo, with venue placed
in Pasco, Franklin County, Washington. The substantially prevailing party shall be entitled to its
reasonable attorney fees and costs as additional award and judgment against the other.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date first
above written.
CITY OF PASCO
Gary Crutchfield, City Manager
APPROVED AS TO FORM:
Leland B. Kerr, City Attorney
Boat Basin Sublease Agreement - 13
JT &T, LLC
dfb /a Columbia Marine Center
STATE OF WASHINGTON)
:ss
County of Franklin )
On this day personally appeared before me GARY CRUTCHFIELD, City Manager for
the City of Pasco, Washington, described in and who executed the within and foregoing
instrument, and acknowledged that he signed the same as his free and voluntary act and deed for
the uses and purposes therein mentioned.
GIVEN under my hand and official seal this day of March, 2013.
Notary Public in and for the State of Washington
Residing at
My Commission Expires
STATE OF WASHINGTON)
:ss
County of Franklin )
On this day personally appeared before me JT &T,
LLC, d/b /a Columbia Marina Center, described in and who executed the within and foregoing
instrument, and acknowledged that he signed the same as his free and voluntary act and deed for
the uses and purposes therein mentioned.
GIVEN under my hand and official seal this day of March, 2013.
Notary Public in and for the State of Washington
Residing at
My Commission Expires
Boat Basin Sublease Agreement - 14
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II
EXHIBIT "B"
Inventory
1) Main Building - 40xl90
2) 40 Slip Covered Dock
3) 30 Slip Covered Dock
4) East Concrete Dock
5) Star Dock
6) Small Dock located west of 40 Slip Covered Dock
7) Small Storage Shed (East End)
8) Sign Structure on Levee by Entrance to the Bay
Cr DEPARTMENT
n DISTRICT, CORPS OF ENGINEER�
201 NORTH THIRD AVENUE
WALLA WALLA WA 99362-1876
APPLY TO
AMNTIONOF
..:. '.m
�.
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
March 29, 2004
Real Estate Division
Mr, Gary Crutchfield, City Manager
City of Pasco
PO Box 293
Pasco, Wa 99301
Dear Mr. Crutchfield:
EXHIBIT "C'n
Enclosed for the records of the City of Pasco is a fully executed copy of
Department of the Army Lease No, W912EF- 1- 04 -13. The term of the lease is 50 years
and the consideration is the operation and maintenance of the premises for the benefit
of the United States and the general public in accordance with the lease conditions.
Lease No. DACW68- 1 -98 -30 has been terminated effective this date as required
by condition 40., TERMINATION OF PRIOR LEASE.
If there are any questions on the lease, you can call me at 509 - 527 -7324 or
contact me bye -mail at Paul.S.Shampine @usace.army.mil.
Sincerely,
v�
Paul Shampine
Real Estate Specialist
Enclosure
NO. W912EF =1 -04 -13
DEPARTMENT OF THE ARMY
LEASE TO THE CITY OF PASCO, WASHINGTON
FOR PUBLIC PARK AND RECREATIONAL PURPOSES
Levee 12 -1, The Pasco Boat Basin
rlf
McNary Lock and Dam Project
Franklin County, Washington
N0. W912 EF-1 -04-13
DEPARTMENT OF THE ARMY
LEASE TO THE CITY OF PASCO, WASHINGTON
FOR PUBLIC PARK AND RECREATIONAL PURPOSES
Levee 12 -1, The Pasco Boat Basin
on
McNary Lock and Dam Project
Franklin County, Washington
THIS LEASE is made on behalf
of the United States
and
the
SECRETARY OF
THE ARMY, hereinafter referred to
as the Secretary,
and
the
City of Pasco,
Washington, a municipal corporation,
hereinafter referred
to as
the
Lessee,
WITNESSETH:
That the Secretary, by authority of Title 16, United States Code, Section 4604,
and for the consideration hereinafter set forth, hereby leases to the Lessee, the property
identified in Exhibits A and B, attached hereto and made a part hereof, hereinafter
referred to as the premises, for public park and recreational purposes.
THIS LEASE is granted subject to the following conditions:
1. TERM
Said
premises
are hereby leased
for a term of 50 years, beginning on the date
this lease is
executed
by the government
and ending 50 years from said date.
2. CONSIDERATION
The consideration for this lease is the operation and maintenance of the
premises by the Lessee for the benefit of the United States and the general public in
accordance with the conditions herein set forth.
3. NOTICES
All correspondence and notices to be given pursuant to this lease shall be
addressed, if to the Lessee to the City Manger, City of Pasco; P.O. Box 293; Pasco,
Washington 99301 and if to the United States, to the District Engineer, ATTN: Chief,
Real Estate Division; Walla Walla District; 201 North 3`d; Walla Walla, Washington
99362 -1876 or as may from time to time otherwise by directed by the parties. Notice
shall be deemed to have been duly given if and when enclosed in a properly sealed
envelope, or wrapper, addressed as aforesaid, and deposited, postage prepaid, in a
post office regularly maintained by the United States Postal Service.
4, AUTHORIZED REPRESENTATIVES
Except as otherwise specifically provided, any reference herein to "Secretary of
the Army," "District Engineer," "said officer" or "Lessor" shall include their duly
authorized representatives. Any reference to "Lessee" shall include sublessees,
assignees, transferees, concessionaires, and its duly authorized representatives.
5. DEVELOPMENT PLANS
The Lessee shall be guided by an Annual Management Plan (AMP) in
furtherance of the Lessee's implementing Plan of Recreation Development and
Management (Development Plan) attached as Exhibit C which shows the facilities and
services necessary to meet the current and potential public demand and the
management and development activities to be undertaken by the Lessee and any
sublessees. No later than January 1 of each year the Lessee will submit the AMP to be
mutually agreed on between the Lessee and the District Engineer. Such AMP shall
include but is not limited to the following:
a. Plans for management, maintenance and development activities to be
undertaken by the Lessee and any sublessees.
b. Report of the management, maintenance and development
accomplishments of the Lessee for the preceding year.
c. Report on any significant modification of policies or procedures which are
planned for the following year as well as those implemented in the preceding year.
2
d. Minor modifications to the Development Plan. Major modifications are to be
accomplished by amendment to the Plan before proceeding to implement any changes
in the development or management of the leased premises.
e. Budget of the Lessee for carrying out all activities for the upcoming year.
C Personnel to be used in the management of the leased premises.
g. Annual certification that all water and sanitary systems on the premises have
been inspected and comply with Federal, state and local standards. Lessee will also
provide a statement of compliance with the Rehabilitation Act and the Americans with
Disabilities Act, as required in the condition on NON - DISCRIMINATION, noting any
deficiencies and providing a schedule for correction.
The use and occupation of the premises shall be subject to the general
supervision and approval of the District Engineer.
During the term of the lease, the District Engineer will notify the Lessee of any
updates to the existing project Master Plan affecting the premises and the Lessee may
provide comments.
6. STRUCTURES AND EQUIPMENT
The Lessee shall have the right, during the term of the lease, to erect such
structures and to provide such equipment upon the premises as may be necessary to
furnish the facilities and services authorized. Those structures and equipment shall be
and remain the property of the Lessee, except as otherwise provided in the Condition
on RESTORATION (Paragraph 20). However, no structures may be erected or altered
upon the premises unless and until the type of use, design, and proposed location or
alteration thereof shall have been approved in writing by the District Engineer. The
District Engineer may require the Lessee, upon the completion of each of the proposed
developments to furnish complete "as built' construction plans for all facilities.
7. APPLICABLE LAWS AND REGULATIONS
The Lessee shall comply with all applicable Federal laws and regulations and
with all applicable laws, ordinances, and regulations of the state, county, and
municipality wherein the premises are located, including, but not limited to, those
regarding construction, health, safety, food service, water supply, sanitation, use of
pesticides, and licenses or permits to do business. The Lessee shall make and enforce
such regulations as are necessary and within its legal authority in exercising the
privileges granted in this lease, provided that such regulations are not inconsistent with
those issued by the Secretary of the Army or with the provisions of 16 U.S.C. § 460d.
3
8. CONDITION OF PREMISES
a. The Lessee acknowledges that it has inspected the premises, knows its
condition, and understands that the same is leased without any representations or
warranties whatsoever and without obligation on the part of the United States to make
any alterations, repairs, or additions thereto.
b. As of the date of this lease, an inventory and condition report of all personal
property and improvements of the United States included in this lease shall be made by
the District Engineer and the Lessee to reflect the condition of said property and said
improvements. A copy of said report, when complete, shall be attached hereto as
Exhibit D and made a part hereof. Upon the expiration, revocation, or termination of
this lease, another inventory and condition report shall be similarly prepared. This
report shall constitute the basis for settlement for property damaged or destroyed. Any
such property must be either replaced or restored to the condition required by the
Condition on PROTECTION OF PROPERTY 6Para4raph f6).
9. FACILITIES AND SERVICES
The Lessee shall provide the facilities and services as agreed upon in the
Development Plan referred to in the Condition on DEVELOPMENT PLANS Para ra h
55). either directly or through subleases or concession agreements that have been
reviewed and accepted by the District Engineer. These subleases or agreements shall
state: (1) that they are granted subject to the provisions of this lease; and (2) that the
agreement will not be effective until the third party activities have been approved by the
District Engineer. The Lessee will not allow any third party activities with a rental to the
Lessee or prices to the public which would give the third party an undue economic
advantage or circumvent the intent of the Development Plan. The rates and prices
charged by the Lessee or its sub - lessees or concessionaires shall be reasonable and
comparable to rates charged for similar goods and services by others in the area. The
use of sub - lessees and concessionaires will not relieve the Lessee from the primary
responsibility for ensuring compliance with all of the terms and conditions of this lease.
10. MAINTAIN THE LEVEE CREST
The Lessee will be responsible for the maintenance of the levee crest for any
levee on the premises. This maintenance includes the repair of damage and erosion
caused by the operation of the facilities constructed on the levee. The Lessee shall
keep the premises clean and free from trash. No trees or shrubs will be allowed to be
planted directly in the levee. Any tree or shrub planted on the levee will be in containers
or fully enclosed planter boxes. An irrigation system on the levee is prohibited, unless
the design and intended use of the irrigation system is first approved, in writing, by the
District Engineer.
E
11. STOCKPILING AND /OR DISPOSAL OF LEVEE MATERIALS
The riprap removed from lowering any levee will be stockpiled by the Lessee, at
the Lessee's own expense, on Government lands, or elsewhere, as determined by the
District Engineer. This riprap will be stored for use by the Government. All excess fill
material will be, at the discretion of the District Engineer, disposed of off -site at no cost
to the Government. The Government will not retain ownership of any disposed fill
material.
12. HOLD HARMLESS
The United States shall not be responsible for damages to property or injuries to
persons which may arise from any modification, alteration or lowering of any levee by
Lessee, regardless of when such modification, alteration or lowering occurred, and the
Lessee shall hold the United States harmless from any and all such claims, except
damages or injuries caused by the negligence of the United States or its contractors.
13. TRANSFERS, ASSIGNMENTS, SUBLEASES
a. Without prior written approval of the District Engineer, the Lessee shall
neither transfer nor assign this lease nor sublet the premises or any part thereof, nor
grant any interest, privilege, or license whatsoever in connection with this lease.
b. The Lessee will not sponsor or participate in timeshare ownership of any
structures, facilities, accommodations, or personal property on the premises. The
Lessee will not subdivide nor develop the premises into private residential development.
14. FEES
Fees may be charged by the Lessee for the entrance to or use of the premises or
any facilities, however, no user fees may be charged by the Lessee or its sub - lessees
for use of facilities developed in whole or part with federal funds if a user charge by the
Corps of Engineers for the facility would be prohibited under law.
15. ACCOUNTS, RECORDS AND RECEIPTS
All monies received by the Lessee from operations conducted on the premises,
including, but not limited to, entrance, admission and user fees and rental or other
consideration received from its concessionaires, may be utilized by the Lessee for the
administration, maintenance, operation and development of the premises. Beginning 5
years from the date of this lease and continuing at 5 -year intervals, any such monies not
so utilized or programmed for utilization within a reasonable time shall be paid to the
District Engineer. The Lessee shall establish and maintain accurate records and
accounts and provide an annual statement of receipts and expenditures to the District
Engineer. Annual or weekly entrance fees not collected on the Project, which also are
5
honored at other recreational areas operated by the Lessee, are excluded from this
requirement. The District Engineer shall have the right to perform audits or to require
the Lessee to audit the records and accounts of the Lessee, third parry concessionaires
and sub - lessees, in accordance with auditing standards and procedures promulgated by
the American Institute of Certified Public Accountants or by the state, and furnish the
District Engineer with the results of such an audit.
16. PROTECTION OF PROPERTY
The Lessee shall be responsible for any damage that may be caused to property
of the United States by the activities of the Lessee under this lease and shall exercise
due diligence in the protection of all property located on the premises against fire or
damage from any and all other causes. Any property of the United States damaged or
destroyed by the Lessee incident to the exercise of the privileges herein granted shall
be promptly repaired or replaced by the Lessee to the satisfaction of the District
Engineer, or, at the election of the District Engineer, reimbursement may be made
therefore by the Lessee in an amount necessary to restore or replace the property to a
condition satisfactory to the District Engineer.
17. RIGHT TO ENTER AND FLOOD
The right is reserved to the United States, its officers, agents, and employees to
enter upon the premises at any time and for any purpose necessary or convenient in
connection with navigation, hydropower or flood control purposes; to make inspections;
to flood the premises to the Standard Project Flood Elevation; to manipulate the level of
the lake or pool in any manner whatsoever; and the Lessee shall have no claim for
damages on account thereof against the United States or any officer, agent, or
employee thereof.
18. LIGHTS, SIGNALS AND NAVIGATION
There shall be no unreasonable interference with navigation by the exercise of
the privileges granted by this lease. If the display of lights and signals on any work
hereby authorized is not otherwise provided for by law, such lights and signals as may
be prescribed by the Coast Guard or by the District Engineer shall be installed and
maintained by and at the expense of the Lessee.
19. INSURANCE
a. At the commencement of this lease, the Lessee, unless self- insured, and its
sub - lessees and concessionaires at the commencement of operating under the terms of
this lease as third parties, shall obtain from a reputable insurance company or
companies contracts of liability insurance. The insurance shall provide an amount not
less than that which is prudent, reasonable and consistent with sound business
practices for any number of persons or claims arising from any one incident with respect
6
to bodily injuries or death resulting therefrom, property damage, or both, suffered or
alleged to have been suffered by any person or persons, resulting from the operations
of the Lessee, sub - lessees and concessionaires under the terms of this lease. The.
Lessee, unless self- insured, shall require its insurance company, and any sub - lessee
and concessionaire, to furnish to the District Engineer a copy of the policy or policies or,
if acceptable to the District Engineer, certificates of insurance evidencing the purchase
of such insurance.
b. The insurance policy or policies shall specifically provide protection
appropriate for the types of facilities, services and products involved; and shall provide
that the District Engineer be given thirty (30) days notice of any cancellation or change
in such insurance.
c. In the event the Lessee is self- insured, the Lessee shall certify such self -
insurance in writing in the minimum amount specified above to the District Engineer.
The Lessee's insurance status shall not eliminate the requirement for its sub - lessees
and concessionaires to have insurance from a reputable insurance carrier as set out
above.
d. The District Engineer may require closure of any or all of the premises during
any period for which the Lessee and /or its sub - lessees and concessionaires do not
have the required insurance coverage.
20. RESTORATION
a. On or before the expiration of this lease or its termination by the Lessee, the
Lessee shall vacate the premises, remove the property of the Lessee, and restore the
premises to a condition satisfactory to the District Engineer. If, however, this lease is
revoked, the Lessee shall vacate the premises, remove said property therefrom, and
restore the premises to the aforesaid condition within such time as the District Engineer
may designate. In either event, if the Lessee shall fail or neglect to remove said
property and restore the premises, then, at the option of the District Engineer, said
property shall either become the property of the United States without compensation
therefore, or the District Engineer may cause the property to be removed and no claim
for damages against the United States or its officers or agents shall be created by or
made on account of such removal and restoration work. The Lessee shall also pay the
United States on demand any sum which may be expended by the United States after
the expiration, revocation or termination of this lease in restoring the premises.
b. Lessee shall not be required to remove any of Lessee's property, upon
expiration, termination or revocation of this Lease, if such property is integral to and a
necessary part of a third party activity, which is continued through a direct commercial
concession lease, pursuant to the Condition on CONTINUATION OF THIRD PARTY
ACTIVITIES (Paragraph 21).
7
21. CONTINUATION OF THIRD PARTY ACTIVITIES
In order to protect the investment of sublessees, the District Engineer is
authorized to approve subleases which require the Government to continue the
subleased activities upon termination of the parent lease by expiration, relinquishment
or revocation. To continue its subleased activities, the sublessee must: (a) be in
compliance with the terms and conditions of both the sublease and the parent lease;
and (b) accept a direct commercial concession lease with the Government utilizing the
Government's approved form for such purposes.
22. NON - DISCRIMINATION
a. The Lessee shall not discriminate against any person or persons or exclude
them from participation in the Lessee's operations, programs or activities conducted on
the leased premises, because of race, color, religion, sex, age, handicap, or national
origin. The Lessee will comply with the Americans with Disabilities Act and attendant
Americans with Disabilities Act Accessibility Guidelines (ADAAG) published by the
Architectural And Transportation Barriers Compliance Board.
b. The Lessee, by acceptance of this lease, is receiving a type of Federal
assistance and, therefore, hereby gives assurance that it will comply with the provisions
of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Age
Discrimination Act of 1975 (42 U.S.C. § 6102); the Rehabilitation Act of 1973, as
amended (29 U.S.C. § 794); and all requirements imposed by or pursuant to the
Directive of the Department of Defense (32 CFR Part 195) issued as Department of
Defense Directive 5500.11 and 1020.1, and Army Regulation 600 -7. This assurance
shall be binding on the Lessee, its agents, successors, transferees, sub - lessees and
assigns.
23. SUBJECT TO EASEMENTS
This lease is subject to all existing easements, easements subsequently granted,
and established access routes for roadways and utilities located, or to be located, on
the premises, provided that the proposed grant of any new easement or route will be
coordinated with the Lessee, and easements will not be granted which will, in the
opinion of the District Engineer, interfere with developments, present or proposed, by
the Lessee. The Lessee will not close any established access routes without written
permission of the District Engineer.
24, SUBJECT TO MINERAL INTERESTS
This lease is subject to all outstanding mineral interests. As to federally owned
mineral interests, it is understood that they may be included in present or future mineral
leases issued by the Bureau of Land Management (BLM), which has responsibility for
mineral development on Federal lands. The Secretary will provide lease stipulations to
8
BLM for inclusion in.such mineral leases that are designed to protect the premises from
activities that would interfere with the Lessee's operations or would be contrary to local
laws.
25. COMPLIANCE, CLOSURE, REVOCATION AND RELINQUISHMENT
a. The Lessee and /or any sub - lessees or licensees are charged at all times
with full knowledge of all the limitations and requirements of this lease, and the
necessity for correction of deficiencies, and with compliance with reasonable requests
by the District Engineer. This lease may be revoked in the event that the Lessee
violates any of the terms and conditions and continues and persists in such non-
compliance, or fails to obtain correction of deficiencies by sub - lessees or licensees.
The Lessee will be notified of any non - compliance, which notice shall be in writing or
shall be confirmed in writing, giving a period of time in which to correct the con -
compliance. Failure to satisfactorily correct any substantial or persistent non-
compliance within the specified time is grounds for closure of all or part of the premises,
temporary suspension of operation, or revocation of the lease, after notice in writing of
such intent. Future requests by the Lessee to extend the lease, expand the premises,
modify authorized activities, or assign the lease shall take into consideration the
Lessee's past performance and compliance with the lease terms.
b. This lease may be relinquished by the Lessee by giving one (1) year prior
written notice to the District Engineer in the manner prescribed in the Condition on
NOTICES (Paragraph 3),
26, HEALTH AND SAFETY
a. The Lessee shall keep the premises in good order and in a clean, sanitary,
and safe condition and shall have the primary responsibility for ensuring that any sub-
lessees and concessionaires operate and maintain the premises in such a manner.
b. In addition to the rights of revocation for non - compliance, the District
Engineer, upon discovery of any hazardous conditions on the premises that present an
immediate threat to health and /or danger to life or property, will so notify the Lessee and
will require that the affected part or all of the premises be closed to the public until such
condition is corrected and the danger to the public eliminated. If the condition is not
corrected within the time specified, the District Engineer will have the option to revoke
the lease. The Lessee and its assignees or sub - lessees shall have no claim for
damages against the United States, or any officer, agent, or employee thereof on
account of action taken pursuant to this condition.
27. PUBLIC USE
No attempt shall be made by the Lessee, or any of its sub - lessees or
concessionaires) to forbid the full use by the public of the premises and of the water
9
areas of the project, subject, however, to the authority and responsibility of the Lessee
to manage the premises and provide safety and security to the visiting public.
28. PROHIBITED USES
a. The Lessee shall not permit gambling on the premises. Specifically
prohibited is the use of gambling devices, such as slot machines, video gambling
machines, or other casino type devices that would detract from the family atmosphere.
District Engineer may allow the sale of state lottery tickets, in accordance with state and
local laws and regulations, as long as the sale of tickets constitutes a collateral activity,
rather than primary activity, of the Lessee. The Lessee shall not. install or operate, or
permit to be installed or operated thereon, any device which is illegal; or use the
premises or permit them to be used for any illegal business or purpose. There shall not
be conducted on or permitted upon the premises any activity which would constitute a
nuisance.
b. As an exception, some games of chance, such as raffles, games and
sporting events, may be conducted by nonprofit organizations under special permits
issued in conjunction with special events, if permissible by state and local law. Any
request to conduct such activities must be submitted in writing to the District Engineer.
c. In accordance with state and local laws and regulations, the Lessee may
sell, store, or dispense or permit the sale, storage, or dispensing of beer, malt
beverages, light wines or other intoxicating beverages on the premises in those facilities
where such service is customarily found. Bar facilities will only be permitted if offered in
connection with other approved activities. Advertising of such beverages outside of
buildings is not permitted. Carry out package sales of hard liquor is prohibited.
29. NATURAL RESOURCES
The Lessee shall cut no timber, conduct no mining operations, remove no sand,
gravel, or kindred substances from the ground, commit no waste of any kind, nor in any
manner substantially change the contour or condition of the premises, except as may be
authorized under and pursuant to the Development Plan described in the Condition on
DEVELOPMENT PLANS (Paragraph 5) herein. The Lessee may salvage fallen or
dead timber; however, no commercial use shall be made of such timber. Except for
timber salvaged by the Lessee when in the way of construction of improvements or
other facilities, all sales of forest products will be conducted by the United States and
the proceeds therefrom shall not be available to the Lessee under the provisions of this
lease.
10
30. DISPUTES CLAUSE
a. Except as provided in the Contract Disputes Act of 1978 (41 U.S.C. § 601-
613) (the Act), all disputes arising under or relating to this lease shall be resolved under
this clause and the provisions of the Act.
b. "Claim," as used in this clause, means a written demand or written assertion
by the Lessee seeking, as a matter of right, the payment of money in a sum certain, the
adjustment of interpretation of lease terms, or other relief arising under or relating to this
lease. A claim arising under this lease, unlike a claim relating to the lease, is a claim
that can be resolved under a lease clause that provides for the relief sought by the
Lessee. However, a written demand or written assertion by the Lessee seeking the
payment of money exceeding $100,000 is not a claim under the Act until certified as
required by subparagraph c.(2) below.
C, (1) A claim by the Lessee shall be made in writing and submitted to the said
officer for a written decision. A claim by the Government against the Lessee shall be
subject to written decision by the said officer.
(2) For Lessee claims exceeding $100,000, the Lessee shall submit with the
claim a certification that:
(i) The claim is made in good faith;
(ii) Supporting data are accurate and complete to the best of the
Lessee's knowledge and belief;
(iii) and the amount requested accurately reflects the lease adjustment
for which the Lessee believes the Government is liable.
(3) If the Lessee is an individual, the certificate shall be executed by that
individual. If the Lessee is not an individual, the certification shall be executed by:
(i) A senior company official in charge at the Lessee's location involved; or
(ii) An officer or general partner of the Lessee having overall responsibility
of the conduct of the lessee's affairs.
d. For Lessee claims of $100,000 or less, the said officer must, if requested in
writing by the Lessee, render a decision within 60 days of the request. For Lessee -
certified claims over $100,000, the said officer must, within 60 days, decide the claim or
notify the Lessee of the date by which the decision will be made.
e. The said officer's decision shall be final unless the Lessee appeals or files as
suit as provided in the Act.
11
f. At the time a claim by the lessee is submitted to the said officer or a claim by
the Government is presented to the Lessee, the parties, by mutual consent, may agree
to use alternative means of dispute resolution. When using alternate dispute resolution
procedures, any claim, regardless of amount, shall be accompanied by the certificate
described in paragraph c.(2) of this clause, and executed in accordance with paragraph
c.(3) of this clause.
g. The Government shall pay interest on the amount found due and unpaid by
the Government from (1) the date the said officer received the claim (properly certified if
required), or (2) the date payment otherwise would be due, if that date is later, until the
date of payment. Simple interest on claims shall be paid at the rate, fixed by the
Secretary of the Treasury as provided in the Act, which is applicable to the period during
which the said officer receives the claim and then at the rate applicable for each 6-
month period as fixed by the Treasury Secretary during the pendency of the claim.
h. The Lessee shall proceed diligently with the performance of the lease,
pending final resolution of any request for relief, claim, appeal or action arising under
the lease, and comply with any decision of the said officer.
31. ENVIRONMENTAL PROTECTION
a. Within the limits of their respective legal powers, the parties to this lease
shall protect the project against pollution of its air, ground, and water. The Lessee shall
comply promptly with any laws, regulations, conditions or instructions affecting the
activity hereby authorized, if and when issued by the Environmental Protection Agency,
or any Federal, state, interstate or local governmental agency having jurisdiction to
abate or prevent pollution. The disposal of any toxic or hazardous materials within the
leased area is specifically prohibited. Such regulations, conditions, or instructions in
effect or prescribed by the Environmental Protection Agency, or any Federal, state,
interstate or local governmental agency, are hereby made a condition of this lease. The
Lessee shall require all sanitation facilities on boats moored at the Lessee's facilities,
including rental boats, to be sealed against any discharge into the lake. Services for
waste disposal, include sewage pump -out of watercraft, shall be provided by the Lessee
as appropriate. The Lessee shall not discharge waste or effluent from the premises in
such a manner that the discharge will contaminate streams or other bodies of water or
otherwise become a public nuisance.
b. The Lessee will use all reasonable means available to protect the
environment and natural resources, and where damage nonetheless occurs from the
Lessee's activities, the Lessee shall be liable to restore the damaged resources.
c. The Lessee must obtain approval in writing from the District Engineer before
any pesticides or herbicides are applied to the premises.
12
32. ENVIRONMENTAL BASELINE STUDY
An Environmental Baseline Study (EBS) documenting the known history of the
property with regard to the storage, release or disposal of hazardous substances
thereon is attached hereto and made a part hereof as Exhibit E. Upon expiration,
revocation or termination of this lease, another EBS shall be prepared which will
document the environmental condition of the property at that time. A comparison of the
two assessments will assist the District Engineer in determining any environmental
restoration requirements. Any such requirements will be completed by the Lessee in
accordance with the condition on RESTORATION (Paragraph 20).
33, HISTORIC PRESERVATION
a. The Lessee shall not remove or disturb, or cause or permit to be removed or
disturbed, any historical, archaeological, architectural or other cultural artifacts, relics,
remains, or objects of antiquity. In the event such items are discovered on the
premises, the Lessee shall immediately notify the District Engineer and protect the site
and the material from further disturbance until the District Engineer gives clearance to
proceed.
b. The Lessee shall not engage in any construction, alteration, demolition, or
ground disturbing activities on the premises, including activities engaged in pursuant to
a Development Plan, unless such activities have been reviewed and approved by the
District Engineer in accordance with the requirements of the National Historic
Preservation Act of 1966 (16 USC 4703 et seq.). The Lessee shall be responsible for all
costs, and any actions directed or required by the District Engineer, which are
associated with the National Historic Preservation Act review process, or other
applicable law.
34. SOIL AND WATER CONSERVATION
The Lessee shall maintain, in a manner satisfactory to the District Engineer, all
soil and water conservation structures that may be in existence upon said premises at
the beginning of, or that may be constructed by the Lessee during the term of, this
lease, and the Lessee shall take appropriate measures to prevent or control soil erosion
within the premises. Any soil erosion occurring outside the premises resulting from the
activities of the Lessee shall be corrected by the Lessee as directed by the District
Engineer.
35, TRANSIENT USE
a. Camping, including transient trailers or recreational vehicles, at one or more
campsites for a period longer than thirty (30) days during any sixty (60) consecutive day
period is prohibited. The Lessee will maintain a ledger and reservation system for the
use of any such campsites.
13
b. Occupying any lands, buildings, vessels or other facilities within the premises
for the purpose of maintaining a full- or part-time residence is prohibited, except for
employees residing on the premises for security purposes, if authorized the District
Engineer.
36, COVENANT AGAINST CONTINGENT FEES
The Lessee warrants that no person or selling agency has been employed or
retained to solicit or secure this lease upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting bona fide employees
or bona fide established commercial or selling agencies maintained by the Lessee for
the purpose of securing business. For breach or violation of this warranty, the United
States shall have the right to annul this lease without liability or, in its discretion, to
require the Lessee to pay, in addition to the lease rental or consideration, the full
amount of such commission, percentage, brokerage, or contingent fee.
37. OFFICIALS NOT TO BENEFIT
No Member of or Delegate to Congress or Resident Commissioner shall be
admitted to any share or part of this lease or to any benefits to arise therefrom.
However, nothing herein contained shall be construed to extend to any incorporated
company if the lease be for the general benefit of such corporation or company.
38. MODIFICATIONS
This lease contains the entire agreement between the parties hereto, and no
modification of this agreement, or waiver, or consent hereunder shall be valid unless the
same be in writing, signed by the parties to be bound or by a duly authorized
representative; and this provision shall apply to this clause as well as all other
conditions of this lease.
39. DISCLAIMER
This lease is effective only insofar as the rights of the United States in the
premises are concerned; and the Lessee shall obtain such permission as may be
required on account of any other existing rights. It is understood that the granting of this
lease does not eliminate the necessity of obtaining any Department of the Army permit
which may be required pursuant to the provisions of Section 10 of the Rivers and
Harbors Act of 3 March 1899 (30 Stat.1151; 33 U.S.C. § 403); or Section 404 of the
Clean Water Act (33 U.S.C. § 1344).
5EI
40. TERMINATION OF PRIOR LEASE
Execution of this Lease is intended to replace, and effectively terminate, Lease
No. DACW68- 1- 98 -30, which was previously entered into by the parties on August 25,
1998.
41. CULTURAL RESOURCE STIPULATIONS
Cultural Resources Stipulations ( "Stipulations ") are attached to this Lease as
Exhibit F and incorporated herein by reference. Lessee's cultural resources roles and
responsibilities under this Lease shall be governed by the Stipulations and applicable
laws or regulations. The Stipulations may be amended by the District Engineer, after
consultation with Lessee, if necessary to comply with applicable laws or regulations.
42. PESTICIDES
a. The use of any pesticides (insecticide, herbicide, fungicide or rodenticide) on
outgranted lands or waters shall be in accordance with all applicable Federal, state and
local laws, rules and regulations. The Lessee must obtain approval from the District
Engineer before any pesticides are applied to the premises. The Lessee shall report
actual usage of pesticides in the previous year and anticipated usage of pesticides in
the upcoming year on the Pest Control Plan attached as Exhibit G -1 and G -2. The
reports will be forwarded not later than January 10 of each year to the address identified
below. Usage reports will be reviewed by the District Pesticide Coordinator and shall be
considered approved unless the Lessee is notified otherwise. The form may be
reproduced as needed.
b. The Lessee shall be responsible for the control of all noxious weeds within the
outgranted area in accordance with all applicable Federal, state county and local laws,
rules and regulations. Within seven (7) days after each application or treatment with
any approved pesticide, the Lessee shall complete a pesticide application record (NPW
Form 178). A copy of NPW Form 178 is attached as Exhibit H and may be reproduced
when needed, Said form shall be mailed or delivered to:
Resources Manager
Ice Harbor Lock and Dam Project
2763 Monument Drive
Burbank, Washington 99323
15
IN WITNESS WHEREOF I Ih4ve hereunto s�f my hand by authority /direction of
the Secretary of the Army this �! day of _i ' , 2004.
EDWARD J. KE�tI l V, JR.ir
Lieutenant Colonel, Corps of Engineers
District Commander
Walla Walla District
IS ASE is also executed by the Lessee this day of
2004.
11 a
�IL
MICHAEL L. GARRISON
Mayor
City of Pasco, Washington
IN
ACKNOWLEDGEMENT
STATE OF WASHINGTON
ss
COUNTY OF WALLA WALLA
On this day personally appeared before me 1leM 1-d J, I'ler h 5 , J/^, to me
known to be the Commander, Walla Walla District, Corps of Engineers, who executed
the within and foregoing instrument, and acknowledged that he signed the same in the
capacity above stated by authority of the Secretary of the Army and for the uses and
purposes therein mentioned.
Given under my hand and official seal this k�day of ��t �`- 2004.
(SEAL)
PAP F
�SStox fop' 6`
►+ jot
Q PUBOOAS�
A O
O9b
74-141 OF WA
Notary Public in and for
residing at �CE�
My commission expires
17
<�u /-?
the State of Washington,
c GCS
on / C
CERTIFICATE OF AUTHORITY
I, Gary Crutchfield, certify that I am the City Manager of THE CITY OF PASCO,
WASHINGTON, that Michael L. Garrison, who signed the foregoing instrument on
behalf of the grantee, was then Mayor of THE CITY OF PASCO. I further certify that
the said officer was acting within the scope of powers delegated to this officer by the
governing body of the grantee in executing said instrument.
Date
�_
Clerk or App opriate fficer
THIS INSTRUMENT PREPARED BY:
PAUL SHAMPINE, Realty Specialist
U.S. Army Corps of Engineers
Walla Walla District
201 North 3`d
Walla Walla, WA 99362 -1876
509 - 527 -7324
REVIEWED FOR LEGAL SUFFICIENCY BY:
#ROBERT D. ESKILDSEN, Attorney
509 - 527 -7322
AMENDMENT NO, 1, DEPARTMENT OF THE ARMY
LEASE NO. W912EF- 1 -04 -13
TO THE CITY OF PASCO, WASHINGTON
FOR PUBLIC PARK AND RECREATIONAL PURPOSES
Levee 124, The Pasco Boat Basin
T.
McNary Lock and Dam Project
Franklin County, Washington
WHEREAS, on March 26, 2004, the City of Pasco, Washington, grantee,
leased a continuous land area in Franklin County on the McNary Lock and Dam
Project including portions of premises Tracts XX -3457 and XX -3461 and all of
premises Tracts XX -3458 and XX -3459, known collectively as the Levee 12 -1
Pond, for Public Park and Recreation purposes; and
WHEREAS, in a letter dated November 5, 2004, a copy of which is
attached as Exhibit I, the grantee requested that the lease be amended to
remove the 12 -1 Pond from the leased premises due to management of the
pond's odor and acknowledged that if its use or improvement is desired in the
future, that an additional amendment will be required; and
WHEREAS, the requested amendment to the lease will not conflict or
interfere with nor adversely affect the operation of the McNary Lock and Dam
project for its authorized purposes;
NOW THEREFORE, effective on the date of execution of this amendment
by the Chief, Real Estate Division, Walla Walla District, Corps of Engineers,
Department of the Army Lease W912EF- 1 -04 -13 is hereby modified in the
following particulars, but in no others:
1. Waters and lands of the Levee 12 -1 Pond, at and below normal surface
elevation 330.5 feet mean sea level, National Geodetic Vertical Datum of 1929,
as shown in Exhibit J, are hereby removed from the lease area.
2. Removal of the pond from the lease shall in no way relieve the grantee from
any responsibility for operation and maintenance of the recently installed 470
linear feet of 78 -inch perforated pipe and its appurtenances that discharge into
the Levee 12 -1 pond.
In all other respects, the covenants, provisions and conditions of said lease shall
remain in full force and effect.
IN WITNESS WHEREOF I have h reunto set my hand by authority of the
Secretary of the Army this day of 2005.
RICHARD CARLTON
Chief, Real Estate Division
Walla Walla District, Corps of Engineers
This amendment to Department of the Army Lease No W 12EF- 1 -04 -13 is also
executed by the grantee this Z� --day of ✓ , 2005.
CITY OF PASCO
B
6 1 LA
Title:
STATE OF WASHINGTON )
ss.
County of Franklin
On this day personally appeared before me MICHAEL L. GARRISON, Mayor of the City of
Pasco, Washington, to be known to be the individual described in and who executed the within and
foregoing instrument, and acknowledged that he signed the same as his free and voluntary act and deed
for the uses and purposes therein mentioned. II��
EN under my hand and official seal this 34day f CX�vvr , 2005.
NOTARY %1C i nd for the State of Washington
v� Nn' S Residing at: 2 6 0
• My Commission Expires: O
P( tt lZ
STATE OF WASHINGTON )
ss.
County of
On this day personally appeared before me Richard Carlton, Chief, Real Estate Division, Walla
Walla District Corps of Engineers, to be known to be the individual described in and who executed the
within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary act
and deed for the uses and proposes therein mentioned.
GIVEN under my hand and official seal this 2 day of P[K, 2005.
4• PFTF NOTARY PUB C i and fo th Late of Washin ton
P� �SStOil 9S Residing at: Gi U
0 My Commission Expires: l �64-
�tyTAgy ✓'
A '°UBLtG 2
\� \AF✓'N to 20 °�O�O
Or 1MASot'�
CERTIFICATE OF AUTHORITY
I, Webster Jackson , certify that 1 am the (,i ty c7 ark of
that Michael L. Garrison v who signed the foregoing
instrument on behalf of the grantee, was then Mayor of
the City of Pasco .
I further certify that the said officer was acting within the scope of powers
delegated to this officer by the governing body of the grantee in executing said
instrument.
Date October 3. 2005 e
(signatur )
CITY V' NACER (509) 545 -3404 / Scan 726 -3404 / Fax
P.O. Box 293 (525 North 3rd Avenue) Pasco, Washington 99301
Richard Carlton, Chief
Real Estate Division
Walla Walla District, Corps of Engineers
201 North Third Ave.
Walla Walla WA 99362 -1876
Re: Lease No. W912EF- 1 -04 -13
Dear Mr. Carlton:
November 5, 2004
The City of Pasco hereby requests an amendment to the referenced lease to delete the 12 -1 pond
(see attached) from said lease.
Prior to the execution of the lease, when the city received complaints from citizens regarding the
unpleasant odor emanating from the pond (presumably due to unchecked growth of algae), the
Corps responded with efforts to mitigate the nuisance.
Throughout the several years of discussion regarding the potential conveyance of the Tri- Cities
levee to local jurisdictions, Corps officials made it very clear to all of us involved that the Corps
would retain entire control over the drainage system associated with the levee. Indeed, WRDA
96 stipulated as much.
When we forwarded citizen complaints about the pond odors this surniner, we were surprised to
learn the Corps' position was that the lease placed responsibility for the pond in the hands of the
city. While the lease is apparently silent on the specific duties of the lessee and lessor with
respect to the pond, the city had maintained throughout lease negotiations the same
understandings of Corps responsibility for the drainage system that had permeated all discussions
prior to that time.
As a consequence, key city staff met with Corps personnel at the pond on September 23 to view
and discuss the relevant circumstances. The conclusion of that discussion was the best way to
deal with the conflict would be to amend the lease to delete the pond; that amendment would
clarifv that it is not included within the property leased by the city. We understand that, if the
city desires to improve or use the pond in the future, we will need to amend the lease to add the
pond.
Richard Carlton, Chief, Real Estate Division
November 5, 2004
RE: Lease No. W912EF- 1 -04 -13
Page 2
Please initiate the process necessary to formally amend the lease to reflect the "meeting of the
minds" arrived at during the on -site discussion with Corps personnel on September 23.
GC /tlz
cc: City Council
Stan Strebel, Admnnstrative and Community Services Director
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AMENDMENT NO, 2, DEPARTMENT OF THE ARMY
IN ;FaF9Q L'[6]%§'kJV44ZiIIJI5k3
TO THE CITY OF PASCO, WASHINGTON
FOR PUBLIC PARK AND RECREATIONAL PURPOSES
Levee 12 -1, The Pasco Boat Basin
on
McNary Lock and Dam Project
Franklin County, Washington
WHEREAS, on March 26, 2004, the City of Pasco, Washington, Lessee,
leased the premises indicated in Exhibit B of said lease for public park and
recreation purposes; and
WHEREAS, on October 7, 2005, Amendment No. 1 of the lease removed the
12 -1 pond from the premises; and
WHEREAS, the City of Pasco has requested an addition to the premises
including Tracts XX -3452, XX -3451 and the remainder of Tract XX -3460, said
remainder not included in the premises of the original lease; and
WHEREAS, the requested amendment to the lease will not conflict or
interfere with nor adversely affect the operation of the McNary Lock and Dam
Project for its authorized purposes;
NOW THEREFORE, effective on the date of execution of this Amendment by
the Acting Chief, Real Estate Division, Walla Walla District, Corps of Engineers,
Department of the Army Lease W912EF- 1 -04 -13 is hereby modified in the
following particulars, but in no others:
1. Exhibit K and Exhibit L, attached hereto and made a part hereof, show the
area added to the premises by Amendment No. 2.
2. The Lessee's plans for lowering the portion of Levpe 12 -1 passing through
the premises are approved as of December 14, MO.' Luring construction, the
Lessee shall ensure that the project area is watered as needed to control dust,
storm water barriers are present and all rip -rap reused on the levee is placed, not
dumped.
3. The Lessee will
provide
information on any proposed interpretive signing on
the premises to the
District
Engineer
for review and comment. The information
will,
at a minimum,
include
proposed
location, wording and sign design.
In all other respects, the covenants, provisions and conditions of said lease shall
remain in full force and effect.
IN WITNESS WHEREOF I have hereunto set my hand by authority of the
Secretary of the Army this S day of )74"t4 6-k—, 2008.
J . BRINLEE
Acting Chief, Real Estate Division
Walla Walla District, Corps of Engineers
This Amendment to Department of the Army Lease No. W912EF- 1 -04 -13 is also
executed by the Lessee this _ M day of %n�r , 2008.
Mayor V
City of Vasco, Washington
CERTIFICATE OF AUTHORITY
L CLArLie certify that I am the G ITti C(,F_Jtk- of
THE CITY OF PASCO, WASHINGTON, that _ Jb`ICC--
who signed the foregoing instrument on behalf of the grantee, was then
�tIAV OJL of CIT`t rA$Cb
I further certify that the said officer was acting within the scope of powers
delegated to this officer by the governing body of the Lessee in executing said
instrument.
Date d I `A' OE!> (signature)
ACKNOWLEDGMENT
STATE OF WASHINGTON )
ss
COUNTY OF WALLA WALLA)
On this day of MC N'C N , 01(2a, before me the
undersigned Notary Public, personally appeared JANA L. BRINLEE, Acting
Chief, Real Estate Division, U.S. Army Engineer District, Walla Walla,
Washington, known to me to be the person described in the foregoing
instrument, who acknowledged that he executed the same in the capacity therein
stated and for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
ejuu
Notary Public
My Commission Expires:
A
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42
ARMY AREAJAWtl_
— LOCATION OF PROJECT-
At an
O.W
AIRLINES --------------- __.
22 MILES NE DF_MCNARY_DAMSITE__
Zxq.n
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—_OF. PASCQ_________
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'
— DISPOSAL —
i
TOTAL ACRES DISPOSED OF ------ _,.
ACRES SOLD BY WAR DEPT.______.
ACRESTRANEFiO By WAR' DEPL'__._ -�
I,
xW19463
& it omewl A ua
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NOTES:
ACRES LEASES TIE RMINATII_��__ --
XX -3464
I 4., a when In
5JO
ACRES LEERER INTI&TERM
¢am Etter of 19 Daobe, IBM. No vanwm
xX -3464
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x.W
n
d nn bang a.. laea a area
-- LEGEND' —
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NOTES USE 5TM60LS:FROM FH�L -a0' M <P
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j
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approved SNOY1961.
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TRACED SY, C a o.
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S RM
0_ITTEI COLUMBIA - RIVER, OREGON 8 WASHINGTON' .
yna I r,_ AOUfgu 6 SEGMENT "X Xr,
— TRANSPORTATION FACILITIES—
.M;.`...,/
(Tyro _____ELNALX___
.
PROJECT MAP
AGENCY;_ DEPT. OF_THE ARAN _
ylI
STATE_WABHINOJQN ----------
STATE ROADS------------ - - - - --
OIVISION_NORTH PALffIL�_____�__
> SEWFNT
DISTRICT WALLA !oo_______ --
a 'W W'
as
42
ARMY AREAJAWtl_
— LOCATION OF PROJECT-
AIRLINES --------------- __.
22 MILES NE DF_MCNARY_DAMSITE__
nyeu
—_OF. PASCQ_________
1
Mma
GFME
TRACED SY, C a o.
OKEOKED en ^.. I MCNARY LOCK AND DAM
S RM
0_ITTEI COLUMBIA - RIVER, OREGON 8 WASHINGTON' .
yna I r,_ AOUfgu 6 SEGMENT "X Xr,
— TRANSPORTATION FACILITIES—
.M;.`...,/
RAILROADS --.M -P-t% --- ------ I_ _
ylI
STATE ROADS------------ - - - - --
1
irom
FEDERAL ING11 _____- _ - - - --
as
AIRLINES --------------- __.
nyeu
Mma
ACQUISITION -
/
TOTAL ACQUIRED_---- -
-
W6
ACRES FEE E — --- -
---
'
ACRES TRANSF'D TO WAR DEPT____ —.
ACRES LEASED WAR DEPT.
ACRES LESSER LESSER INTERESTS
'
— DISPOSAL —
i
TOTAL ACRES DISPOSED OF ------ _,.
ACRES SOLD BY WAR DEPT.______.
ACRESTRANEFiO By WAR' DEPL'__._ -�
I,
ACRES RETRANSFr 0 TO GOV'E AS&..__ _-
NOTES:
ACRES LEASES TIE RMINATII_��__ --
APflatoy 0omplated prior to ODE mapping
ACRES LEERER INTI&TERM
¢am Etter of 19 Daobe, IBM. No vanwm
Pl n d bwau, at unluallllable vpmW
n
d nn bang a.. laea a area
-- LEGEND' —
sA/Nntl4
lew Line al Oramary.xipb Any
..
dOGUR once ; an aNUOYm 5 Nat abeuz
NOTES USE 5TM60LS:FROM FH�L -a0' M <P
I,
trader pofls
IIEPT 11 5L FIELD MANUALI WDE6 &T02TMG
nnNneE Seim WaeNplan OmNinabe End",
one.
EXCEPT
geop ro Poam needed In W. B, Po9e 64. Na; RemKS
RESERVATION LINE - -'�-
trod Acelfbn Id panto razyNeE In Val, B, Pope, 34,
rods.
RESERVATION LINEDaIwl w3vaN -�6� -'
j
ac ncvdad in WI. By Pogo 61, Pont RwdrtlZ
approved SNOY1961.
DAM SIT E fty -
:Inp Line Aiprered' 11 March 1952
fine inmmlea we y P in names epelanng Paiaownpn.
NO" uxe} - -� �
RESERVOIR SITE
n9 Lill Approved s FebroaE 1954
CONTOUR LINER - +-r - -- --
l
-
Asper Tipp euTHOR ZATION
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I
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Exhibit L
AMENDMENT NO. 3, DEPARTMENT OF THE ARMY
LEASE NO. W912EF- 1 -04 -13
TO THE CITY OF PASCO, WASHINGTON
FOR PUBLIC PARK AND RECREATIONAL PURPOSES
Levee 12 -1, The Pasco Boat Basin
on
McNary Lock and Dam Project
Franklin County, Washington
WHEREAS, on March 26, 2004, the City of Pasco, Washington, Lessee,
leased the premises indicated in Exhibit B of said lease for public park and
recreation purposes; and
WHEREAS, on October 7, 2005, Amendment No. 1 of the lease removed the
12 -1 pond from the premises, and
WHEREAS, on March 5, 2008, Amendment No. 2 of the lease added Tracts
XX -3452, XX -3451 and the remainder of Tract XX -3460, said remainder not
included in the premises of the original lease; and
WHEREAS, the Lessee has requested an addition to the premises including
that portion of Tract XX -3478 not originally leased and Tracts XX -3479, XX -3481,
XX -3482, XX -3501, XX -3502, XX -3503, XX -3504. XX -3506, XX -3507, XX -3508,
XX -3509, XX -3511, XX -3512, XX -3513, XX -3514, XX -3516, XX -3517, XX -3518,
XX -3519, XX -3522, XX -3526, XX -3527, XX -3528, XX -3530, XX -3584 and
XX -3628; and
WHEREAS, the requested amendment to the lease will not conflict or
interfere with nor adversely affect the operation of the McNary Lock and Dam
Project for its authorized purposes;
NOW THEREFORE, effective on the date of execution of this Amendment by
the Acting Chief. Real Estate Division, Walla Walla District, Corps of Engineers,
Department of the Army Lease W912EF- 1 -04 -13 is hereby modified in the
following particulars, but in no others:
1. Exhibit M, attached hereto and made a part hereof, illustrates the area added
to the premises by Amendment No. 1
2. Exhibit N, the amended inventory and condition report, attached hereto and
made a part hereof, reflects addition of real property improvements at the Road
54 boat launch area.
3. In accordance with Financial Accounting Standard 13 (FAS 13), and by
accepting this lease amendment, the Lessee accepts financial accountability of
the following real property improvements: road, upper parking lot, lower parking
lot, boat dock and boat ramp. Financial documentation for the real property
improvements will be provided to the Lessee under separate cover at the time of
execution of this amendment by the government.
4. The Environmental Baseline Study for the additional area to be added to the
premises is attached hereto and made a part hereof as Exhibit O.
In all other respects, the covenants, provisions and conditions of said lease shall
remain in full force and effect.
IN WITNESS WHEREOF I have hereunto set my hand by authority of the l
Secretary of the Army this "t _.day of - I r , 2009.
TODD L. CZARNECKI
Chief, Real Estate'Plivision
Walla Walla District, Corps of Engineers
This Amendment to Department of the Army Lease No. W912EF- 1 -04 -13 is also
executed by the Lessee this. _ day of �, 2009.
JOYC O ON
Mayor
City of Pasco, Washington
CERTIFICATE OF AUTHORITY
I,Z 6R,A L CtnavC_, certify that Jam the CITE (7tEktcof
THE CITY OF PASCO, WASHINGTON, that Joyce C)cson ,
who signed the foregoing instrument on behalf of the grantee, was then
1'tA\Ace of Cl-T7 vE Pflsrr,
I further certify that the said officer was acting within the scope of powers
delegated to this officer by the governing body of the Lessee in executing said
instrument.
1
Date '?-60 (-_ )n.
(signature)"
ACKNOWLEDGMENT
STATE OF WASHINGTON
: ss
COUNTY OF WALLA WALLA)
On this �2941 day of :Ji,,4 ,C�wcl, before me the
undersigned Notary Public, personally appeared TODD L. CZARNECKI Chief,
Real Estate Division, U.S. Army Engineer District, Walla Walla, Washington,
known to me to be the person described in the foregoing instrument, who
acknowledged that he executed the same in the capacity therein stated and for
the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
PQ
Notary Public
My Commission Expires: jan. Id, �C,14t
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ExhibitM
AMENDED INVENTORY AND CONDITION REPORT
INSTRUMENT: Lease No. W912EF- 1 -04 -13
TERM: Fifty (50) Years, Expiring March 23, 2054
GRANTOR: Department of the Army, Corps of Engineers
GRANTEE: City of Pasco, Washington
This Amended Inventory and Condition Report which shall be attached to and
become a part of the above - described lease is agreeable to both parties hereto
as reflecting the condition of the listed property at the time custody was assumed
by the lessee and as covered by said lease.
GARY CRUTC 1EL
City Manager, asco, Washington
Date: &'l6 G
TODD LCZARNE ? KI
Chief, Real Estate Division
Walla Walla District
US Army Corps of Engineers
Date 2ft i"
Exhibit N
INVENTORI AND CONDITION REPORT
ROAD 54 TO ROAD 39
CITY OF PASCO LEASE NO. W912EF- 1 -04 -I3
QUANTITY ITEM .4ND DESCRIPTION
CONDITION
1 Boat Ramp Good
Two ramps, one on each side of the dock; each
is 16' by 1127; concrete; signs
1 Boat Dock Good
Consists of three sections; a) abutment and
walkway, 6' x 30', concrete; b) gangway, 4' x 36',
aluminum; c) dock, 8' x 90', polyethylene floor,
wood /polymer composite decking; signs; five piles
i Bike Path Good
20' x 5,280'; paved, with markings to separate
pedestrian traffic from other traffic; fence;
culverts; bollards; benches; trash receptacles
1 Road
30'x 275'; paved; curbing; signs
[11N 14CN "-
72183
12182
12187
Good 12184
I Lower Parking Lot Good
Paved; (3) vehicle- trailer parking spaces;
(12) vehicle parking spaces; (2) handicapped
vehicle parking spaces; signs, including an ADA
parking sign; curbs; storm water drainage system
] upper Parking Lot Goad
Paved; (1) vehicle parking space; (2) handicapped
vehicle parking spaces; curbing; storm water
drainage system; signs, including an ADA parking
sign. (Only a portion of this parking lot is on Corps
land; the remainder is on Franklin County land and
they retain ownership.)
1 Sanitary Sewer Good
170' of PVC pipe, runs under the road. with
cleaneut location (sewer service for future
restroom).
I2185
12186
12188
IN'VEN'TORY AND CONDITIONS REPORT (CONT)
ROAD 54 TO ROAD 39
CITY OF PASCO LEASE NO. W912EF- 1 -04 -13
QUANTITY ITEM AND DESCRIPTION
CONDITION 1Dk MCN-
Illumination System Good 12188
7 "hree metal light pales with electric 100
watt HPS luminary; wiring; 1.5" PVC conduit.
One pole is located in the upper parking lot and
the other two are located in the lower parking lot.
Irrigation System Good 12190
5,280' of PVC conduit; irrigation vault;
43,360' of PVC pipe; rotors; control panel
We, the undersigned, agree that at as of the date of this document the above listed
property is owned by the Government and is in the condition as indicated.
Richardhard 7erway-
Admin. B Comm. Services Director
Date: (} — S-0 c?
Corps of Engineers)
Paul S. Shampine
Realty Specialist
Date: JA".�..1�I;.cyt
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ENVIRONMENTAL BASELINE STUDY
FOR
PROPERTY INSPECTION AND RECORDS EXAMINATION
(EBS)
RECOMMENDATIONS:
ACQUIRE /DISPOSE /TRANSFER /OUTGRANT PROPERTY AS IS
ACQUIRE /DISPOSETFRANSFER/OUTGRANT PROPERTY WITH
CLEANUP OF SOLID WASTE
ACQUIRE /DISPOSETRANSFER /OUTGRANT PROPERTY WITH
CLEANUP OF HAZARDOUS MATERIAL
OBTAIN PHASE I /PHASE II ENVIRONMENTAL AUDIT
Exhibit 0
PROPERTY INSPECTION CHECK LIST
FOR
ENVIRONMENTAL BASELINE STUDY
(EBS)
Project Name: McNary Lock and Dam Project
Site Name: Franklin County WRDA Lease No. W912EF- 1.04 -12, Road 54 to Road 39 &
Road 39 to US 395 Bridge
Legal Description: Portion of Sections 25, 26 and 27, Township 9 North, Range 29 East.
Government Tract Nos,: XX -3479, XX -3482, XX -3481, XX -3501, XX -3602, XX -3503, XX -3504,
XX -3606, XX -3507, XX -3608, XX -3509, XX -3511, XX -3512, XX -3613, XX -3514, XX -3516,
XX -3518, XX -3617, XX -3519, XX -3522, XX -3526, XX -3527, XX -3528, XX -3628, XX•3530,
XX -3564, XX -3529
I
Environmental Conditions Observed:
NO YES
a
X
SuspecVUnusual Odors
b.
X )
Discolored Soil or Waste
C.
X
Discoloration of Water
d
I X
Distressed /Dead/Unusual Lack of Vegetation
e.
X
Abnormal Mounding
I
X
Area(s) of Depression
g
X
Other:
a
b
c.
d
e
f
9
h.
q
r,
Other Observed Features:
NO YES
I X Building /Structures (Active or Abandoned)
X Suspected Asbestos
X Above Ground or Underground Storage Tanks
X Landfills
X Surface Impoundments
X Underground Injection Wells
X Drums /Containers /Hazardous Material Storage Areas
X Lagoons (Wastewater or Hazardous Waste)
X Incinerator
X I Waste Piles /Disposal Sites /Pools of Liquid
X Oil -filled Electrical EquipmenYTransformers
X I Standpipes, Vent Pipes, Etc., Coming out of the Ground
X Unexploded Ordnance
X IndustriallCommercial Facilities
X I Wastewater Treatment Plant
j X Discharges to Surface Waters or Drainage Ditches
Type: See further explanations, page 6.
X Potential Environmental/Agricultural Problems on Adjacent Lend
X Access (road, trails, etc.)
X Telephone /Power /Pipe Lines
X I Mining /Logging /Grazing Activity
X I Sick or Dead Wildlife or Domestic Animals
X I Other:
PROPERTY INSPECTION CHECKLIST- PAGE 2:
Site Name: Franklin County WRDA Lease No, W912EF- 1,04 -12, Road 64 to Road 39 8
Road 39 to US 395 Bridge
Further Explanations Shall Be Noted on Exhibit "A" if Items under I and II are Checked yes.
Prior Owners Name
Date
Deed bk, pi e _
-�
Tract XX3479, Harry Linden, at ux
March 6, 1952
Vol. 76, Pg. 121, Records of
Franklin County, WA
rTrott XX -3482, Glenn C. Lee, at ux
September 22,
Exchange
1964
I Tract XX -3481, Glenn C. Lee, at ux
April 18, 1955
Civil 606
Tract XX -3501, Harold S. Foaks% at ux
June 29, 1953
Vol. 78, Pg, 162, Records of
_
Franklin County, WA _
-
Tract XX -3602, John Horriean, at ux
December 10,
Vol. 76, Page 464, Records of
1951
Franklin County, WA
Tract Xr X -3503, Wallace W. Preston, et
April 18, 1965
_
Civil 606
I ux
Tract XX -3504 Glenn C.
Loa, at ux
Aril 16, 1955
j Civil 606
Tract XX -3506, J.E. Saylor, at ux
May 8, 1962
Vol, 78, Pg. 171, Records of
Franklin County, WA
!Tract XX -3507, Harold E. Olsen at ux
June 20, 1952
Vol. 781 Pg. 401, Records of
Franklin County, WA
_
Tract XX -3508, Ursula Williams
June 24, 1952
Vol. 78, Pg, 392, Records of
Franklin County, WA
Tract XX -3509, I.G. McCarthy, at at
April 18, 1966
Civil 606 _
__
4 Tract XX -35111 L. C. Havatad et ux
A ril 18, 1955
Civil 606
Tract XX -3612, Fred C. Klopfenstieln, et
October 15,
Civil 693
' ux
1 1953 _
_
Tract XX -3513, J.C. galls, at ux
June 24, 1956
Civil 693
Tract XX -3514, K.W. Casey, at ux
November 30,
Vol. 76, Pg. 417, Records of
1961
Franklin County, WA
Tract 7(X -3516 Lon D. Leeper, at ux
A r1118, 1956
Civil 606
I Tract XX -3618, J. David Clancy, at ux
December 20,
Vol. 76, Pg. 506, Recortls. of
1951
Franklin County, WA
Tract XX -3517, William F. Lohman, at ux
December 3,
Vol. 76, Pg. 421, Records of
L.____,_
1961
Franklin County, WA
--
Tract XX -3519, J. David Clancy, at ux
December 20,
Vol. 76, Pg. 506, Records of
1051
Franklin County, WA
Tract XX -3522, Josephine Wade, at at ;Aril
18, 1955
Civil 606
Tract XX -3526, Lloyd Johnson, at ux I
December 3,
Vol. 76, Pg. 427, Records of
1
1951
Franklin County WA
_ -
_
Vol. 77, Pg.186, Records of
_
Tract XX -3527, Floyd D. Wager, at at
March 5, 1954
Franklin County, WA -
Tract XX -3528, Georae C. Swenson
January 3, 1952
Doc. No. 141971, Records of
Franklin Coun , WA
rTract XX-3628, Charles H. Miller, at ux�arch
12, 1966
Vol. 129, Pg. 12, Records of
Franklin County, WA
Tract XX -3530, Christine J. Erwen
January 25,
Vol. 126, Pg. 264, Records of
_ _
Tract XX -3584, Christine J. Erwen
1866
Franklin Coun , WA_
Vol. 128, 0g. 254, Recortls o1
January 26,
1966
Franklin County, WA
. Tract XX -3529. Grover G. Russell, etux I
A 1�r1118, 1965 _.
Clvll 806
PROPERTY INSPECTION CHECKLIST - PAGE 3:
III. Previous Contamination Found:
Petroleum Products
Degreaser /Solvents
Pesticides
Herbicides
Radioactive
Heavy Metals
Organic Chemicals
Ammunition
Underground Storage Tanks
aJone)
Other
Explanation and Date of Any Remedial Action
Taken:
Has an EA or EIS Been Performed /Prepared? YES or NO
Reconnaissance Sources
Site Visit: FEBRUARY 20, 2009
Public Records MARCH 2, 2009
Interviews (owner, residents, local, State, and Federal Govt., )
Aerial Photos, (USGS, SCS, Tax Office,
Internal District Records
NO YES
a.
Permits
b.
Contracts
c.
Leases
d.
Easements
e.
Deeds X
f.
Licenses
g.
Other
Maps
Other
Note: Discuss Relevant Former Uses on Exhibit'B"
PROPERTY INSPECTION CHECKLIST — PAGE 4:
RECORD EXAMINATION
Based on a record examination, no apparent environmental contamination as referenced in the Code
of Federal Regulations C1 F.R.) was present which would indicate that hazardous, toxic, or radiological
waste had been stored, released, or disposed of on the property as of
(`4wtk
(Date)
Paul Shampine Signed.
Realty Specialist Date. h,,,,�'ypll
PROPERTY INSPECTION
Based on the attached Property Inspection Checklist, including surface observations only. by the
undersigned, no apparent environmental contamination as referenced in the Code of Federal
Regulations C( F.R.) was present which would indicate that hazardous toxic, or radiological waste had
been stored, released, or disposed of on the property as of 1. ".-
(Date)
Heather Humphreys Signed
Environmental Compliance Date: >� l
Coordinator -
PaulShampine Signed: irxW.`S 6nrja.l _
Realty Specialist Date:
Real Estate Division 1
Tim Fife Signed: -�
Franklin County, WA Date: ,',•. ,_ , .'¢��
County Engineer
REVIEW
Based on the attached Property Inspection Checklist, no apparent environmental contamination as
referenced in the Code of Federal Regulations C.F.R. ) was present which would indicate that
hazardous, toxic, or radiological waste had been stored, released, or disposed of on the property as of
' (Date)
Rodney Huffman Signed Chief, Management Management and Disposal Date: /y� /G9
Real Estate Division
APPROVAL
Based on the attached Property Inspection Checklist, no apparent environmental contamination as
referenced in the Code of Federal Regulations C( F.R.) was present which would indicate that
hazardous, toxic, or radiological waste had been stored, released, or disposed of on the property as of
(Date)
Don Redman Signed: — r,,,A.r'. 1l't
Walla Walla District Environmental Date: - i
Compliance Coordinator - �l
PROPERTY INSPECTION CHECKLIST — PAGE 5:
r+ x+ x+ r+ rxrxxw+ xxwr+ nxx+ wawnxxxrxnwn+ x+ nwnw+ xx++ xxxn+ nnxwrrx+ nx+ x+ xr+++++ x++ +n +xnxx +nwwxr + ++«xxrxw +rxr +n++x
SUBJECT: Request for Additional Baseline
Based on the attached Property Inspection Checklist, possible environmental
contamination as referenced in the Code of Federal Regulations C.F.R. may exist on the
inspected property. Request that additional Environmental Baseline Study and /or other
documentation be provided.
GRANTEE:
I acknowledge receipt of this Environmental Baseline Study (EBS) and I agree [hat should I
not concur with the findings contained herein I will document my objections and substantiate
the reasons within 30 days of this day of ,
Name:
Title: J Date:
OR
I acknowledge the condition of this property as reflected in this Environmental Baseline Study
(EBS) this _ /4rA day of
Name: Tit, )T
Signed.
Title: /� Date:
PROPERTY INSPECTION CHECKLIST — PAGE 6:
FURTHER EXPLANATIONS FOR ITEMS I AND 11
I.d.: Felled tree present at private dock near Road 39.
ll.a.: Boat ramp, dock, parking lot, trail, benches, concrete pads, private permitted
docks present.
Il.p.; Surface Waters or Drainage Ditches Type: Stormwater drain at top of boat ramp.
Il.r.: Access roads for ingresslegress present.
Il.s.: Light poles, electrical lines, irrigation system present.
EXHIBIT "D"
Renovation and Cleanup Plan
1) Remove dead and storm damaged trees by 2/1/2013
2) Remove trees that are growing into and through fences by 2/1/2013
3) Trim tree to allow fire trucks access to the east end of the manna by 2/1/2013
4) Cleanup all parking areas by 3/1/2013
5) Remove or replace dock located west of the main covered dock by 5/1/2013
6) Repair fence between parking area and moorage docks by 5/1/2013
7) Repair and refloat main 40 slip dock by 7/1/2013
8) Repair and stabilize east long dock by 6/1/2013
9) Cleanup or remove old dock sections and debris along shore line by 6/1/2013
10) Cleanup east end parking area and shed by 5/1/2013
EXHIBIT "E"
Capital Improvement Plan
1) Install 30 slip dock obtained from Clover Island by 3/1/2013
2) Install access ramp as required by permit by 3/1/2013
3) Refloat dock with approved materials as required by permit by 6/1/2013
4) Replace roof sections as required by permit to allow light to penetrate to water surface by
12/1/2013
5) Add additional moorage slips as allowed by permit by 3/1/2016
6) Will provide supplies such as parts, accessories and vending normally available at a
marine center. In addition during the initial lease period, food service should be provided
during peak season.