HomeMy WebLinkAboutDavid Black, ROAD 68, LLC - Land Use License Parcel #117-500-118LAND USE LICENSE ("License")
T141S LICENSE is between the CITY OF PASCO, WASHINGTON, hereinaiierreferred to
as "Licensee", and PASCO ROAD 68, LLC, hereinafter referred to as "Licensor' dated as of
) AY- .-:�i 20_1.15 . Upon approval of the State of Washingon, actino by and through the
State Department of'Natura3 Resources, hereinafter referred to as "Stale;'
1, liquarice. For valuable consideration, the receipt of which is hereby acknowledged,
Licensor hereby issues to Licensee a non-exclusive, revocable license ("License") over a parcel of
land Franklin County legally described as set forth in Exhibit A, ("Premises") subject to the
applicable terms and conditions herein.
2. Permitted Uses and Activities. Annlicalion of Irrigation Water. Licensee is
hereby permitted to irrigate the Premises with water authorized under Surface Water Permit S3-
28876P(A) and conduct the following rcleated nctivities
A. Install necessary irrigation system consisting of mainline, electrical system
and associated above ground sprinklers such as a center pivot, and
B. Grow and harvest an irrigated crop such as alfalfa.
The permitted uses and activities orthis License shall not interfere with Licensor and state
land management activities, nor be changed or modified without the prior written consent of
Licensor and State, which shall be at its sole discretion. Any unauthorized use of the License may
result in immediate suspension of the License followed by termination if the unauthorized use is not
resolved to the satisfaction of Licensor and State.
3. Prohibited Uses and Activities. The Licensee will not engage in the following
activities on Stott lands while performing work under this License except that these activities shall
be allowed only when necessary to complete the permitted uses and activities listed above:
A. Clearing;
B. Construction of new roads;
C. Camping;
D. Lighting any type of campfire, eookftre, or any other fim; and,
E. Recreational activities.
The preceding list ofprohibited nctivities is not intended to be exhaustive, but is provided to
illustrate the types of activities not permined by this License.
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4. Access. Provisions for the use of rights of way across State land, including the
Premises and adjacent land are as follows:
A, Licensee may use the existing access roads on the Premises shown on
the Plan of Operations and authorized by the Region Representative.
5. Condition of Premises. Licensee accepts the Premises in its present condition. The
State and Licensor have no obligation to make any repairs, additions, or improvements thereto and
expressly disclaims any warranty that the Premises are suitable for the intended use.
6. Term. This License is valid from May 1, 2018 through December 31, 2019.
7. Revocation. This License may be revoked and this Agreement shall be terminated
upon thirty (30) days written notice from Licensor without cause. Should Licensor choose to give
notice prior to May 1, 2019 to terminate this Agreement, consideration provided for in this
Agreement shall be foregone.
8. Consideration. Inconsideration for this License, the City of Pasco as Licensee shall
waive water and sewer capital expansion/replacement "system fees" for this parcel required under
PMC 13.22 and PMC 13.42, respectively, in the event of future commercial development by
Licensor upon this parcel. Such fees are estimated at approximately $9,000.00.
9. Permittees. Licensee may permit its respective employees, agents, contractors, sub-
contractors, licensees, and their agents, herein individually referred to as "Permittee" and collectively
referred to as "Permittees", to exercise the rights granted herein. Acts or omissions of the Permittees
operating under this License shall be deemed an act of the Licensee. Restrictions or requirements
placed on the Licensee herein shall apply equally to the Permittees.
10. State Representative. State shall designate a representative from each applicable
DNR Region who will authorize plans of operation, provide Licensee with the records or information
referenced in this License, and resolve issues arising from this License (hereafter "Region
Representative"). State may change the Region Representative by providing written notice to both
the Licensee and Licensor under this License.
11. Licensee Representative. Licensee shall designate a representative who will have
the authority to take any actions necessary to administer this License, to include executing a plan of
operations and resolving issues arising from this License (hereafter "Project Representative"). The
Licensee may change its Project Representative by providing written notice to both Licensor and
State.
12. Advertising. Licensee shall ensure any advertising related to the use of this License
does not imply the endorsement by or affiliation with the Washington State Department of Natural
Land Use License -2
the State's designated representative, prior to the publication of the advertising, to review for
compliance with this requirement.
13. RotorationofPremises. Licensee assumesresponslbilityfor restoration ofPremises
to a condition equal to or better than its condition immediately prior to Licensee's use. Such
restoration shall be completed prior to expiration of this License, Restoration includes rcpnidng
ground disturbance, re -seeding and revegetating, repairing facilities or improvements, clewing up
litter, filling test pits, and removing debris. All restoration is subject to the approval of the Region
Representative, which will not be unreasonably withheld.
14. License Inspection. A copy ofthis License must be available on the Premises at all
times for inspection by the State or an authorized law enforcement agency during licensed activity.
15. Prior Rights. This License is subject to any rights and valid claims previously
granted or conveyed by State, and to any rights and valid claims pending on or encumbering the
Premises. Licensee's rights herein are subject to all matters of public record, and to all prior
unrecorded easements, permits, leases and agreements affecting the Premises that are filed with the
Department ofNatuml Resources in Olympia, Washington and with its Region offices (copies of
which will be provided upon request).
16. Compliance with Laws. Licensee shall comply with all applicable laws, including
but not limited to all Stott: (Department of Natural Resources) regulations, county and municipal
laws, ordinances, or regulations.
17. Required Permits and Licenses. Licensee shall obtain and be in possession ofall
permits and licenses required for the permitted use, and shall provide proof oFsuch permits and
licenses upon request by Licensor and State.
18. Plan of Operations. The permitted uses and activities under this License shall be
governed by a plan oroperations ("Plan ofOperations") agreed to by the Region Reprensentalive and
Licensee. State, at its sole discretion, may place restrictions on Licensee's use of the Premises that
ensures protection of the Premises and other uses. Any materint breach of the Pion ofoperutions
will be considered a material breach of this License.
19. Fire Prevention. Licensee shall take all reasonable measures to prevent and
minimize the start and spread of fire on or adjacent to Premises. Measures shall include ensuring all
vehicles carry a fire extinguisher oFat least a 5 BIC rating and a serviceable shovel, following State
safety operating procedures which include compliance with Washinglon Administrative Code
( WAC) 332-24-301 (Industrial restrictions) and WAC 332-24405 (Spark emitting requirements) as
now written or later amended
Both Licensor and Stale shall have the right, but not the duty, to notify Licensee of fire
hazards created by Licensee activities that need to be controlled on the Premises and adjacent State
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land As soon as possible but no later then two weeks unless otherwise agreed upon, Licensee shall
remediate the fire hazard created by Licensee, or provide an acceptable plan for such fire hazard
remediation.
20. Roads, Roads may not be used when excessive damage due to weather or other
conditions will result. During operations under t his License, the Licensee shall take such precautions
as necessary to minimize insofar as possible soil erosion, soil stream delivery, and damage to the soil
as required under Washington State ForestPmcticcs. Licensee shall not obstruct roads ortake action
that restricts the Flow of traffic or use on roods without State's written permission.
21. Rfpairs. Licensee shall repair damage to the roads, trails or facilities arising out of
its use to a condition equal to or betterthan their condition immediately prior to such use with the
exception of damage caused through normal and prudent usage.
22. RoadMaintengncc. Duringperiodswhen aroad, orport ion thereof, isbeing used by
the Licensee, that portion of the road so used shall be maintained by said party at its own expense
and, at the lemnination of each period of such use, shall be left in a condition equal to or better Than
the condition of the road immediately prior to said use.
23. Survey Markers. Licensee shall not destroy any land survey comer monuments or
reference points (including but not limited to comer markers, witness objects, or line markers)
without prior wrinen approval from License rand State, which shall not be unreasonably withheld.
Monuments or reference points that must necessarily be disturbed or destroyed during road
construction or maintenance activities must be adequately referenced and replaced, at Licensee's
cost, underthe direction ofs Professional Land Surveyorliccesed in Washington, in accordance with
sit applicable state law in effeci at The time orconstruction, including but not limited to RMV58.24,
end all slate regulations pertaining to preservation of such monuments and reference points.
24. Protection of Natural Resources and Impr—Zr va meats. Licensee shall take all
reasonable precautions to prevent or minimize damage to natural resources (e.g., vegettition, wildlife,
soil, water)and improvements (crops, buildings, roads, etc.) within the Premises. Licensee shall cut
no State timber, remove no State-owned valuable materials (as defined in RCW 79.020{0), in
addition to coal, minerals, oil orgas, not disturber remove any cultural, historical or paleontological
(fossil) resources, without the prior written consent of the State. All ground disturbance shall be kept
within the Premises unless otherwise approved by State in advance. Survey and transportation
equipment shall be set back from the stream, Jake, pond and wetland bank so surveying activities
will not damage or encroach on riparian or wetland areas.
25. Waste. Licensee shall not cause or permit any rill ing activity to occur in or on the
Premises, except as approved by Licensor and State. Licensee shall not deposit refuse, garbage, or
other waste matter or use, store, generate, process, transport, handle, release, or dispose of any
hazardous substance, or other pollutants in or on the PfemlSea except in accordance with all
applicable laws.
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The term hazardous substance means any substance or material as those terms are now or are
hcreafler defined or regulated under any federal, state, or local law including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA 42 USC 9601
e1 seg.) as administered by the U.S. Environmental protection Agency, or the Washington Model
Toxic Carmol Act (MICA RC W 70.105D) as administered by the State Department. of Ecology.
Licensee shall immediately assume responsibility for a hazardous substance release (spill)
caused by Licensee or its Permittees on or adjoining the Premises.
As responsible party, Licensee shall:
A. Immediately notify all necessary emergency response agencies, as required
under fedcml, slate and local laws, regulations, or policies.
B. After emergency response agencynotificalionsarecompleted,notify Licensor
and State (Department ofNatural Resources) ofall spill releases, Licensee actions completed
for spill reporting, and actions planned or completed toward spill cleanup. Notification
requirements are "same business day" notification for normal slate work days and "next
available business day" notification for weekends and holidays.
C. At Licensec'ssole expense, conduct nil actions necessary to mitigate the spill
release. Mitigation response actions may include, but are not necessarily limited to, initial
release containment, follow-up site cleanup and monitoring actions, and continued contact
and coordination with regulators and State, as defined under the aforementioned laws,
regulations, policies and this License.
D. Other than performing initial emergency response cleanup/containment
actions, obtain approvals in advance of all site cleanup actions (e.g. site characterization
investigations, feasibility studies, site cleanup and confirmation sampling, and groundwater
monitoring) conducted on Stale lands, in coordination with regulatory agencies and State.
E. Obtain and understand all necessary hazardous substance spill release
notification and response mitigation requirements, in advance of conducting Licensee
operations on Slate Land,
26. Clean Water Act. Licensee is subject to the federal Clean Water Act (CWA)
enforced by the Washington State Department of Ecology (DOE) through its delegated authority
Licensee shall perform its activities on State lands in a manner to prevent entry, or spillage ofsolid
matter, comamiriants, debris, and other pollutants and wastes into flowing water, dry watercourses,
lakes, ponds, and underground water sources. Activities near streams or other bodies ofwnter shall
Land Use License - 5
not cause the water turbidity to exceed Slate DOL water quality standards for the stream. Licensee
shall not block or divert nater courses unless by permit. When State is aware of actual or potential
noncompliance with applicable CWA requirements by Licensee that aflect waterquality, Stale will
noti fy Licensee and DOE. Licensee shall work with DOE and notify State ofanyremedlal actions or
mitigation measures required by DOE or Licensee to cure the problem,
27. Noxinu3 Weed Cpatrol. Licensee shall control, at its own cast, nil noxious woods on
any portion of the Premises where Licensee's activities may have caused or aggravated an infestation
of noxious weeds, unless otherwise agreed upon. Licensee shall be responsible for its proportional
cost for noxious weed control where Licensee's activities may have caused or aggravated an
infestation of noxious weeds on adjacent land. Payment for noxious weed control may include in-
kind services or materials. Licensee is responsible for notifying State of noxious weed problems and
mitigating noxious weed problems atiributable to Licensee's activities.
28. Insumnca. Before using any of said rights granted hercin and at its own expense, the
Licensee shall obtain and keep in force during the term of this License and require its contractors and
sub -contractors, to obtain while operating on the Premises, the fallowing liability insurance policies,
insuring Licensee against liability arising out of its operations, including use of vehicles.
Additionally, insurance must cover permittees far claims arising out of orresuldrig from the event or
activity. Failure to buy and maintain the required insurance shall result in the termination of the
License. The limits orinsurance, which may be increased by State, as deemed necessary, shall not he
less than as follows:
A. Commercial General Liability (CGL) insurance with a limit of not less than
51,000,000. llsuch CGL insurance contains aggregate limits, the general aggregate limits
shrill be at least rice the "each occurrence" limit, and the products -completed operations
aggregate limit shall be at least twice the "each occurrence" limit.
B. Business AutoPolicv(BAP)insuinner,andifnecessary,commercialumbrella
liability insurance with a limit of not less than 51,000,000 with such insurance covering
liability arising out of "Any Aum". Business auto coverage shall be written on ISO fornCA
DOM, orsubstituie liability form providing equivalent coverage. If necessary the policy shall
be endorsed to provide contractual liability coverage and covera "covered pollution cost or
expense" as provided in the 1990 or later versions of CA 00 01. Licensee waives all rights
against State far the recovery of damages to die extent they are covered by business auto
liability or comnicreinl umbrella liability insurance.
C. Emnlover's liability ("Stop Gen") insurance, and if necessary, commercial
umbrella liability insurance with limits not less than 51,000,000 each accident for bodily
injury by accident or 51,000,000 each employee far bodily injury by disease.
D. Licensee shall comply with oil State of Washington workers compensation
statutes and regulations. Workers compensation coverage shall be provided for all
volunteers, employees of Licensee and employees of any contractors or sub -contractors.
Lend Use License .6
Except as prohibited by law, Licensee waives all rights ofsubrogmion against Licensorand
State for recovery or damages to the extent they are covered by workers compensation,
employer's liability, commercial general I inbi lity or commercial umbrella liability insurance.
All insurance most be purchased an an occurrence basis and must be issued by companies
admitted to do business within the State of Washington and have a rating of A- or bener in the most
recently published edition of Best's Reports. Any exception shalIbereviewed rind approved, atthe
State's sole discretion, in advance by the Risk Manager for the Department of Natural Resources. If
an insurer is not admitted, all insurance polices and procedures for issuing the Insurance policies
must comply with Chapler48.15 RCW and Chapter 284-15 WAC.
The State of Washington, Department of Natural Resources, its elected and appointed
officials, agents and employees and Licensor shall be named as additional insureds on all general
liability, excess, and umbrella insurance policies.
Before using any said rights granted herein, Licensee shall furnish Licensor and State with a
certificate(s) of insurance, executed by a duly authorized representative Creech insurer, showing
compliance with the insurance requirements specified above. CertiFicole(s) must reference the
State's Land Use License number.
Licensor and State shall be provided written notice before cancellation or nonrenewal orany
insurance referred to herein, as prescribed in statute (Chapter48.18 RCW orChapter48.15 RCW).
Licensee shall include all contractors, sub-contractorsand other Fcnni liecs as insureds under
all required insurance policies, or shall famish separate certificates of insurance and endorsements
for each. Contractors and sub -contractors must comply with all insurance requirements staled
herein. Failure of contractors, sub- contmoors tocomplywithinsurnneerequirements does not limit
Licensee's liability or responsibility.
All insimince provided in compliance with this License shall be primary as to any other
insurance or self-insurance programs afforded to or maintained by State. Licensee waives all rights
against Licensor and State for recovery of damages to the extent these damages are covered by
general liability or umbrella insurance maintained pursuant to this License.
By requiring insurance herein, Licensor and State does not represent that coverage and limits
will be adequate to protect Licensee and such coverage and limits shall not limit Licensee's liability
under the indemnities and reimbursements granted to Licensor and State in this License.
If Licensee is self-insured, evidence ofits status as o self-insured entity shall be provided to
Licensor and State. Ifrequested by State, Licensee must describe its financial condition and the self-
insured funding mechanism.
land Use License • 7
29. Indemnification.
A. Licensee shall indemnify,defend, and hold harmless Licensor, its employees,
officers and agents from any and all liability and damages (including, but limited to personal
injury and damage to land and other natural resources) expenses, causes of action, suits,
claims, costs, fees (including, but limited to attorneys' fees), penalties, orjudgments, of any
nature whatsoever, arising out of the use or occupation of the Premises by Licensee, its
Permittees, contractors, concessionaires, agents, employees, guests, invitees, customers or
affriiiates, except as may arise out ofthe negligent or willful act of Licensor, or its officers,
members, employees, or agents.
B. Licensee shall Indemnify, defend (with counsel acceptable m State) and hold
harmless State, its employees, officers and agents from any and all liahility, damages
(including, but not limited to, personal injury and damages to land and other natural
resources), expenses, causes of action, suits, claims, costs, fees (including, but not limited to,
anomeys' fees), penalties, or judgments, of any nature whatsoever, arising out of the use or
occupation of the Premises by Licensee, its Permitic s, contractors, concessionaires, agents,
employees, guests, invitees, customers or affiliates, except as may arise solely out of the
willful net of State orSlatcselected officials, employees, oragents. To the extent that RCW
434.115 applies, Licensee shall not be required to indemnify, defend, and hold State
harmless from State's sole or concurrent negligence.
30. Notice. Unless otherwise specified herein, any notices required or permitted under
this License maybe delivered personally, sent by facsimile machine, emailed with acknowledgment
of receipt, or mailed certified, return receipt requested, to the following addresses or to such other
place as the parties hereafter direct. Notice will be deemed given upon dcliccry or upon
confimtation of facsimile, whichever is applicable.
To Licensee
Mr. Dave Zabell, City Manager
City of Pasco
525 North 3`a Avenue
Pasco WA 99301
(509) 545-3404
zubOldTu}oasco-wa.a ov
To Licensor.
Mr. David Black, CEO
Pasco Road 68, LLC
107 South Howard Street, Suite 600
Spokane WA 99201
(509) 623-1000
Land Use License • 8
To State:
Southwest Region
Department of Natural Resources
713 Bowers Road
Ellensbure WA 98926
(509)925.8510
Southeast.regicm dnr.wa.gov
31. Temporary Markers. Unless otherwise agreed upon, State shall not be responsible
for preserving any temporary markers such as stakes, flags, paint, tugs or signs used by Licensee for
purposes consistent with this License ("Temporary Markers"). State shall lake reasonable
precaudons to avoid damage to Temporary Markers placed by Licensee, but State is not liable for
third party damage in same. Prior to placing Temporary Markers onPremiscs,Licensee shall inform
Slate in writing of location and provide a general description of such Temporary Markers. Licensee
shall remove all Temporary Markers from Premises upon completion of operation or tettninntion of
License, whichever occurs first.
32. Integrated Agreement, Modifteation. This License, including appendices and
attachments, constitutes the entire agreement and understanding of the parties with respect to the
subject matter of the License and supersedes all prior negotiations and representations. This License
may not be modified except in writing signed by the parties. The parties agree to execute any
odditional documents reasonably necessary to effectuate the provisions and purposes ofthis License.
33. Sgverabilitv If any provision of this License is held to be invalid or unenforceable,
this provision shall not affect or invalidate the remainder of this License, and to this end, the
provisions of this License are declared to be severable. If any such invalidity becomes known ar
apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to amend
such provision as nearly as possible to be consistent with the intent of this License.
34. Mon -waiver. The waiver by Licensor and State of any breach or the failure of State
in require strict compliance with any term herein shall not be deemed a waiver of any subsequent
breach.
35. Assignment. This License, and any of the rights granted herein, shall not be
assigned.
36. Construction. The termsof(his License shall begiven theirordinary meaning unless
defined herein and shall not be presumed construed against the dmfler.
37. Exhibits. All exhibits referred to in this License are deemed to be incorporated in
this License in their entirety.
Land Use License• 9
38. Flendines. The headings in this License are for convenience only and are not
intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this License
nor the meaning of any of its provisions.
39. Survival, All obligations or Licensee to be performed prior to the expiration or
earlier termination shall not cease upon the termination or expiration of this License, and shall
continue as obligations until fully performed. All clauses of this License which require performance
beyond the termination or expiration date shall survive the termination or expiration date of this
License.
40. Counterparts. This License maybe executed in one or more counterparts, each of
which shall be deemed an original, and all of which counterparts together shall constitute the same
instrument which may be sufficiently evidenced by one counterpart. Execution of this License at
different times and places by the parties shall not affect its validity so long as both parties execute a
counterpart of this License.
CIn' OF PASCO:
BSDave
/� Dated:
ivlanager
PC:
B Dated:S— 30.Ir
EO
Approval for this AssienmenUSublease
STATE OF WASHINGTON
DEPART js'f♦A`T O NL RESOURCES
By: ��r�
ann Cramer, Division Manager
Lard Use Lrcen� - 10
Dated: S 25 Ig
EXHIBIT A
Tax Parcel No. 197500118
Pnrcct 4 of Binding Site Plan 2006-04
THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 16, TOWNSHIP 9 NORTH,
RANGE 29 EAST, W. M., PASCO, FRANKLIN COUNTY, WASHINGTON, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID NORTHEAST QUARTER OF
SECTION 16; THENCE N 89015'46" E ALONG THE?4ORT14 LINE OF SAID NORTHEAST
QUARTER FOR A DISTANCE OF 168.51 FEET;
THENCE S 00°44'18" E FOR A DISTANCE OF 40,00 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE N 89015'46" E PARALLEL WITII AND 40.00 FEET SOUTHERLY OF THE NORTH
LINE OF SAID NORTHEAST QUARTER, AS MEASURED AT RIGHT ANGLES TO SAIA
NORTH LINE, FOR A DISTANCE OF 548.00 FEET;
THENCE S 0D`45' 13" E FOR A DISTANCE OF 135.37 FEET TO A POINT OF TANGENCY
WITH A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 256.00 FEET;
THENCE SOUTHERLY AND EASTERLY ALONG SAID CURVE FOR AN ARC LENGTH
DISTANCE OF 64,71 FEET THROUGH A CENTRAL ANGLE- OF 14028'56'
THENCE S 15014'10" E FOR A DISTANCE OF 56.74 FEET;
THENCE S 00045'00" E FOR A DISTANCE OF 754.37 FEET TO INTERSECT THE
NORTHERLY RIGHT OF WAY LINE OF SR 182 ON A 2,070.00 FOOT RADIUS CURVE
CONCAVE TO THE NORTH FROM WHICH A RADIAL LINE FOR SAID CURVE BEARS N
16'49'06"E;
THENCE WESTERLY AND NORTHERLY ALONG SAID NORTHERLY RIGHT OF WAY
LINE AND CURVE FOR AN ARC LENGTH DISTANCE OF 183.18 FEET THROUGH A
CENTRAL ANGLE OF 05004'13";
THENCE N 70032'38" W ALONG SAID NORTHERLY RIGHT OF WAY LINE FOR A
DISTANCE OF 159.58 FEET;
THENCE N 67055'00" W ALONG SAID NORTHERLY RIGHT OF WAY LINE FOR A
DISTANCE OF 269.93 FEET;
THENCE N 00°44' I8" W FOR A DISTANCE OF 786.01 FEET TO THE TRUE POINT OF
BEGNNNING.
Lund Usc Liccnu. I I