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HomeMy WebLinkAboutDepartment of Natural Resources (DNR) David Black - Land Use License Water Rights #53-28876P(A)LAND USE LICENSE ("Liccuse") THIS LICENSE is between the CITY OF PASCO, WASHINGTON, hereinaflerreferred to as "Licensee", and PASCO ROAD 68, LLC, hereinafter referred to as "Licensor" dated as of )4!&Y ,�!, 20_,. Upon approval of the State of Washingon, acting by and through the State Department of Natural Resources, hereinafter referred to as "Stow, ll. boyince. 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 rile applicable terms and conditions herein. 2. Permitted Uses and Aetivities. Application of 1 r igstiga Water. Licensee is hereby permitted to irrigate the Premises with water authorized under Surface Water Permit S3- 28876P(A) and conduct the following relented activities, 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 a9 alfalfa The permitted uses and activities of this License shall not interfere with Licensor and State land management activities, not 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 Liccase 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. Probi§jjS¢ Ute. and Activities. The Licensee will not engage in the following activities on State lands while perforating 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; S. Construction of new roads; C. Camping; D. Lighting any type of campfire, coakfire, or any other fire; and, E. Recreational activities. The preceding list ofprohibited activities is not intended to be exhaustive, but is provided to illustrate the types of activities not permitted by this License. Land Use License- t 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. In consideration 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 "Permit[W 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 Rep resentative. 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. geaiorstion orPremises. Licemet assumes responsibility forrtstoradon ofprcrnises 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 repairing ground disturbance, re-seeding and revegetating, repairing facilities or improvements, cleaning up litter, filling test pits, and removing debris. All restoration is subject to the approve.) ofthe Region Representative, which will not be unreasonably withheld. 14. Llcepse Inspection. A copy ofthis License must be available on the Premises at all times for inspection by the Slate or an authorized law enforcement agency during licensed activity. IS. 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 penning on or encumbering the Premises. Licensee's rights herein are subject to all matters of public record, and to all prior unrecorded easements, permits. Ieases and agreements affecting the Premises that arc Filed with the Department ofNatural Resources in Olympia, Washington and with its Region offices (copies of which will be provided upon request). 16. Comnllance with Laws. Licensee shall comply with all applicable laws, Including but not limited to all State (Depad ment of Natural Resources) regulations, county and municipal laws, ordinances, or regulations. 17. Required Permits and Licenses. Licensee shall obtain and be in possessian ofali permits and licenses required for the permitted use, and shall provide proof of such permits and licenses upon request by Licensor and State. 18. flan of Operations. The permitted uses and activities under this License shall be governed by a plan ofoperations ("Plan a fOpenttionel agreed to by the Region Reprensentative 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 material breach of the Plan of Operations will be considered a material breach of this License. 14. Fire Prevention. Licensee shall take all reasonable measures to prevent and minimize the start and spread of Eire an or adjacent to Premises. Measures shall include ensuring all A, ehicles carry a fire extinguisher of at least a 5 B/C rating and a serviceable shovel, following State safety operating procedures which include compliance with Washinglon Administrative Code (WAC} 332-274-301 (Industrial restrictions) and WAC 332-24-405 (Spark emitting requirements) as now written or later amended. Both Licensor and State shall have the right, but not the duty, to notify Licensee of fire hazards created by Licensee activities that need to be controlled on the Premises and adjacent State Land Use License - 3 land As soon as possible but no later then iwo weeks unless otherwise agreed upon, Licensee steal l remediate the fire hazard created by Licensee, or provide an acceptable plan for such fire hazard remediation. 20. Rands. Roads may not be used when excessive damage due to weather or other conditions will result. During operations under this License, tate Licensee shall take such precautions as necessary to minimize insofar as possible soil erosion, soil stream delivery, and damage to thesoil as required under Washington State Forest Practices. Licensee shal l not obstruct mads or take action that restricts the flow of traffic or use on roads without State's written permission. 23. Main Licensee shall repair damage to the roads, trails or facilities arisingaut of its use to a condition equal to or better than their condition immediately prior to such use with the exception of damage caused through normal and prudent usage. 22. Road Mainton n nee. During periods when a road, or portion thereof, is being used by the Licensee, that portion of the road so used shall be maintained by said party at its own expense and, at the termination ofeach period ofsuch use, shall be left in a condition equal to or better than the condition of the road immediately prior to said use. 23. Survcv Marrs. 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 written npprm%] from Licensorand 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, tmderihe direction ofs Profes sional Land Surveyor licensed in Washington, in accordance with all applicable state law in effect at the time of construction. including but not limited to RCW 5824, and all state regulations pertaining to preservation ofsuch monuments and reference points. 24. ]Protection of Naturisl Resources and_linumv_erocnts. Licensee shall take all reasonable precautions to prevent or minimize damage to natural resources (e.g., vegetdtion, 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 79.02010), in addition to coal, minerals, oil orgas, not disturb orremove any cukaural, historical or paleontological (fossil) resources, without the prior written consent of the State. All ground disturbance shall be kept within the Premises unless otherwise approved by State in advance. Survey and transportation equipment shall be set back from the stream, lake, pond and wetland bank so surveying activities %rill not damage or encroach on riparian or wetland areas. 25. %Paste. Licensee shall not cause or permit any filling activity to occur in or on the Premises, except as approved by Licensor and Stone. Licensee shall not deposit rethse, 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 Premise.; except in accordance with all applicable laws. Land Use License - 4 Tice tern hazanious substance means any substance or malerial as those teres acre now oraare hereafter defined or regulated under any federal, state, or local law including but not limited to the Comprehensive Envimnmental Response. Compensation and Liability Act (CERCLA 47 USC 4501 et .wq,) as administered by the V.S. Environmental protection Agency, or the Washington Model Toxic Control Act (MICA RCW 70.10513) as administered by the State Department. of Ecology. Licensee shad) 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 federal, state and local lanes, regulations, or policies. B. After emergency response agency notifications are completed, notify Licensor rand State (Department of Natural Resources) ofatl 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 state worst days and "next available business day" notification for weekends and holidays. C. At Licensee's sole expense, conduct all actions necessary to mitigate the spill release. Mitigation response actions may include, but are not necessarily Iimited 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 charaacte:ization investigations, feasibility studies, site cleanup and eonl`ttntation sampling, and groundwater monitoring) conducted on State lands, in coordination with regulatory agencies and State. E. Obtain and understand all nemssmy hazardous substance spill release notification eW response Wfigadon requirements, in advance of conducting Licensee opeoaations on State Land 26. Clean Water Act. Licensee is subject to the federal Clean Water Act (CWA) enforced by the Washington State Department of Ecology (DDE) through its delegated authority. Licensee shall perform its activities on State lands in a manner In prevent entry, or spillage ofsolid matter, contaminants, debris, and other pollutants and wastes into ]towing water, dry watercourses, takes, ponds, and underground water sources. Activities neaarstreams or other bodies of water shall Land Use License • 5 not cause the water turbidity to exceed Slate DOE water quality standards for the stream. Licensee shall not block or divert ►tinter courses unless by permit. When State is aware of actual or potential noncompliance with applicable CIYA requirements by Licensee that affect water quality,State will notify 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. Noxious Weed K:.QntroL Licenseeshali control, at its own cost, nil nonlous weeds on any portion of the Premises where Licensee's activities may have caused oraggravated 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 ormaterials. Licensee is responsible for notifying State of noxious weed problems and mitigating noxious weed problems attributable to Licensee's activities. 211. Iasnranea Before using any ofsaid rights granted herein and at its own expense, the Licensee shall obtain and keep in farce 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 forclaims wising out ofor resulting fromtheevent or activity. Failure to buy and maintain the required Insurance shall result in the termination of the License. The limits of insurance, which may be increased by State, as deemed necessary, shall not be less than as follows: A. Commercial Ganeml Liability (COL) insurance with a limit of not less than s1,000,000. Efsuch ca insurance contains aggregate limits, the general aggregate limits shall be at least twice the "each occurrence" limit, and the products -completed operations aggregate limit shall be al least twice the "each occurrence" limit. E. Business Auto Policy (SRI insurance, and ifnecessary, commercial umbrella liability insurance with a limit of not less than 51,000,000 with such insurance covering liability arising out of"Any Auto". Business auto coverage shall be written on ISO form CA 00 01, or substitute liability farm providing equivalent coverage. Ifnecessary, the policy shall be endorsed to provide contractual liability coverage and cover a "covered pollution cost or expense" as provided in the 1990 or later versions ofCA 00 01. Licensee waives all tights against State far the recovery of damages to the extent they are covered by business auto liability or commercial umbrella liability insurance. C. Employer's liability ("Stow Gap") insurance, and if necessary, commercial umbrella liability insurance with limits not less than 51,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease. D. Licensee shall comply with all State of Washington workers compensation statutes and regulations. Workers compensation coverage shall be provided for all volunteers, employees of Licensee and employees of any contractors or sub -contractors. Land Use License - 6 Except as prohibited by law, Licensee ;ways all rights ofsubragation against Licensorand State far recovery of damages to the extent they are covered by workers compensation, employer's liability, commercial general linbilityorcornmercial umbrella liability insurance. All insurance must 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 better in the most recently published edition of Best's Reports. Any exception shall be reviewed and approved, at the State's sole discretion, in advance by the Risk Managerfor the Department of Natural Resources. If an insurer is not admitted, all insurance polices and procedures for issuing the insumnec policies must comply with Chapter 48.15 RCW and Chapter 294-15 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 an all general liability, excess, and umbrella insurance policies. Before using any said rights granted herein, Licensee shall fumish Licensor and State with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements specified above. Certificate(s) must refercrice the State's Land Use License number. Licensor and State sbal I be provided written notice before cancellation or non -renewal of any Insurance referred to herein, as prescribed in statute (Chapter48.18 RCW` or Chapter48.15 RCW). Licensee shall include all contractors, sub -contractors and other Pcrmi ttecs as insureds under al I required insurance policies, or shall furnish separate cartiiicales of insurance and endorsements for each. Contractors and sub -contractors must comply with all insurance requirements stated herein. Failure of contractor% sub -contractors tocomply With insurance requirements does not limit Licensee's liability or responsibility. All insurance provided in compliance with this License shall be primary as to any other insurance or self-insurance programs afforded to or maintained by State. Licensee waives all rights against 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, Licensorand State does not represent that coverage MA limits will be adequate to protect Licensee and such coverageand limits shall not limit Licensee's liability under the indemnities and reimbursements granted to Licensor and State in this License. if Licensec is self insured, evidence of its status as a self-insured entity shall be provided to Licensorand State. Ifrequested by State, Licensee must describe its financial condition and theself- insured funding mechanism. Land Use ucensc - 7 29. indemnification. A. Licensee shall indemnify, defend, and hold ham less 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 statural resources) expenses, causes of action, sults, claims, costs, fees (including, but limited to attorneys' fees), penalties, or judgments, of any nature whatsoever, arising out of the use or occupation of the Premises by Licensee, its Permittees, contractors, concessionaires, agents, employees, guests, invitees, customers or alliiliintes, except as may arise out of the negligent or willful act of Licensor, or its officers, members, employees, or agents. B. Licensee shall Indemnify. defend (with counsel acceptable to State) and hold harmless State, its employees, officers and agents from any and all liability, damages (including, but not limited to, personal injury and damages to land and other natural resources), expenses, causes of action, suits, claims, costs, fees (including, but not limited to, attorneys' fees), penalties, or judgments, of any nature whatsoever, arising out of the use or occupation of the Premises by Licensee, its Permittecs, contractors, concessionaires, agents, employees, guests, invitees, customers or affiliates, except as may arise solely out of the wilifulactofState orSlates alectedoffcials.employees, oragents. To theextentthatRCW 4.24.115 applies, Licensee shall not be required to indemnify, defend, MW hold State harmless from State's sole or concurrent negligence. 30. Notice. Unless otherwise specified herein, any notices required or permitted under this License may be delivered personally, sent by facsimile machine, emailed with acknowledgment of receipt, or mailed certificd, return receipt requested, to the following, addresses or to such other glace as the parties hereafter direct. Notice will be deemed given upon delivery or upon confirmation of facsimile, whichever is applicable. t 1 M Mr. Dave Zebell, City Manager City of Pasco 535 North 3r4 Avenue Pasco WA 99301 (509) 545-3404 zobelad rrir Wco-wa.eov To Licen Mr. David Black. CEO Pasco Road 69, LLC 107 South Howard Street, Suite 600 Spokane WA 99201 (509) 0-3-1000 Land U3c Licum . 8 To State. Southwest Region Department ofNatural Resources 713 Bowers Road Ellensbure WA 98926 (509) }35-8510 Southent.region@dnr.-.Ya.gov ava.gov 31. Towl2orarr. Markers. Unless otherwise agreed upon, State shall not be responsible for preserving any temporary markers such as stakes, flags, paint, tags orsigns used by Licensee for purposes consistent with this License ("Temporary Markers"). State shall take reasonable precautions to avoid damage to Tetnpotary lkdarkers placed by Licensee, but State is not liable for third party damage in same, Prior to placingTemporary Markers on Premises, Licensee shall inform State in writing of location and provide a general description ofsuch Temporary Markers. Licensee shall remove all Temporary Markers from Premises upon completion of operation or termination of License, whichever occurs first. 32. In e{Mted Aarecmeat: Medilicalion. This License, including appendices and altachments, constitutes the entire agreement and understanding of the parties with respect to the subject matter ofthelicense end supersedes all prior negotiations and representations. This License may not be modified except in writing signed by the parties. The parties agree to execute any additional documents reasonably necessary to effecivate the provisions and purposes ofthis License. 33. Severabiifty. lfany provision ofthis 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 ofthis License are declared to be severable. If any such invalidity becomes known or apparent to the parties. the parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be cornsisient with the Intent ofthis License. 34. Non-w-eiver. The waiver by Licensor and State of any breach or the failure of Siate to require strict compliance with any term herein shall not be deemed a waiver of any subsequent breach. 35. AssiEumenf. This License, and any of the rights granted herein, shall not be assigned. 35. Construction. The terms ofthis License shall be given theirordinary meaning unless defined herein and shall not be presumed construed against the drafter. 37. Exhibits. All exhibits referred to in this License arc deemed to be incorporated in this License in their entirety. Land Use License - 9 38. Hendlups. The headings in this License are for convenience only and are not intended to, and shat! not be construed to, limit, enlarge, or affect the scope or intent ofthis License nor the meaning of any of its provisions. 39. Survival. All obligations of Licensee to be perfomed prior to the expiration or earlier termination shall not cease upon the termination or expiration of this License, and shall continue as obligations until Bally performed. All clauses of this License tivhiclz require performance beyond the termination or expiration date shall survive the termination or expiration date of this License. 48. Counter 1) arts. This License may be executed in one or more counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute the same instrument which may besufficiently iciently 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. CrrY OF PASCO: I� a=68., Manager PASCO: Black, Dated: -57- - 3 1 — I JV Dated: ' 347 Arm royal for this Assi rimendSublease STATE OF WASHINGTON DEPART NTO NA RESOURCES By: ` t-- ann Crumcr, Division Manager Land Use tseeme - 10 Dated: 5' Z5 61 EXHIBIT A Tax Parcel No. 117500118 Parcel 4 of Binding Site Plan 2046-04 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 89°15'46" E ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER FOR A DISTANCE OF 168.51 FEET; THENCE S 00°44'1$" E FOR A DISTANCE OF 40.00 FEET TO THE TRUE POII�IT OF BEGINNING; THENCE N 9901 5'46" E PARALLEL. WITH AND 40.00 FEET SOUTHERLY OF THE NORTH LINE OF SAID NORTHEAST QUARTER. AS MEASURED AT RIGHT ANGLES TO SAIA NORTH LME, FOR A DISTANCE OF S48.00 FEET-, THENCE S 00015' 13" E FOR A DISTANCE OF 13537 FEET TO A POINT OF TANGENCY WITH A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 256.W FEET; THENCE SOUTFIERLY AND EASTERLY ALONG SAID CURVE FOR AN ARC LENGTH DISTANCE OF 64.71 FEET THROUGH A CENTRAL ANGLE OF 141 28'56"; THENCE S 15014'1 V'L FOR A DISTANCE OF 56.74 FFMT 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 EINE FOR SAID CURVE BEARS N 16049'06' 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 05°04' 13"; THENCE N 70°32'38" W ALONG SAID :NORTHERLY RIGHT OF WAY LINE FOR A DISTANCE OF 159M FEET; THENCE N 67055200" W ALONG SAID NORTHERLY RIG14T OF WAY LINE FOR A DISTANCE OF 269.93 FEET; THENCE N 00°44' 18" W FOR A DISTANCE OF 786.01 FEET TO THE TRUE POINT OF BEGINNING. Land Use license- I I