Loading...
HomeMy WebLinkAboutKidwell Farms, Inc - 2020 Farming Services Agreement for DNR PropertyCITY OF PASCO INFORMATIONAL COVER SHEET FOR DOCUMENTS REQUIRING CITY MANAGER SIGNATURE (Print on Blue Paper when completed.) Project Name: Farming Services Agreement Vendor Name: Kidwell Farms, Inc. Contract Number: Amount seeking approval for: $ 59,300.00 Date: 4/20/2020 G/L Account #:411.41.510-54.4544 CONTRACT OVER 100,000 ❑ DIVISION: ❑ Administration ❑ Engineering ❑ Operations ❑ Sewer ® Water ❑ Irrigation ❑ Treatment Plants ❑ Reuse ❑ Other AGREEMENT TOPIC & BACKGROUND: Kidwell Farming Services Agreement — DNR Property This is a one-year agreement with the same terms as the previous agreement between Pasco and Kidwell Farms for the irrigation of the DNR Property north of I-182. The purpose of the agreement is to place as much water as possible on the DNR property for beneficial use to assist in the perfection of water rights purchased from DNR. CONTRACT SELECTION PROCESS: ❑ Consultant Roster ❑ RFQ ❑ Formal Bid ❑ Small Works Roster ❑ Negotiated Z N/A or Other. BUDGET/FINANCIAL IMPACTS: Revenues: Expenditures: 411 -WATER $ 59,300.00 411 —WATER $ 59,300.00 Other $ $ Total Funds Available $59,300.00 Total Est. Expenditures $ 59,300.00 CONTRACT EXPIRATION DATE: 12/31/2020 ❑ Council action needed for future renewal /A Project Manager Date ❑ Feder I debarment/suspension r uirem is met ❑ N/A ublic Works Director Date ❑ Contract language ❑ Insurance c*,erage reviewed ❑ Performance & payment bond approval ATTACHMENTS: Original Agreement & Exhibits Date last update 12/11/2018 Location: Engineering Working Folder>FORMS>Pasco Blue Sheet 12-11-2018 INSURANCE EXPIRATION DATE: l;� CIP Manager Date Finance Dir ctor Date ❑ Funding source approval DOCUMENT DISTRIBUTION AFTER SIGNED: • Original to City Clerk with copy of blue sheet • Original or Copy to vendor (their choice) • Copy to Public Works Department FARMING SERVICES AGREEMENT Between CITY OF PASCO and KIDWELL FARMS, INC. THIS FARMING SERVICES AGREEMENT is made and entered into this 15 f day of April 2020, by and between the City of Pasco, Washington, a Municipal Corporation, hereinafter referred to as "City", and Kidwell Farms, Inc, a Washington Corporation, hereinafter referred to as "Contractor." IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, the Parties agree to as follows: 1. Exhibits Incorporated into Agreement. City and Contractor agree that `Exhibit A' entitled "Land Use License Extension" between the City of Pasco and the Department of Natural Resources (DNR) of the State of Washington; and Exhibit B entitled "Land Use License" between the City of Pasco and Pasco Road 68, LLC, shall be and are hereby incorporated into this Agreement by reference. Contractor shall act as City's agent with respect to both Land Use Licenses, and Contractor shall comply with all said requirements and restrictions provided for therein. 2. Permission to Enter Premises. City has secured Land Use Licenses from the Department of Natural Resources (DNR) and Pasco Road 68, LLC, to perform certain farming operations upon Franklin County Parcel Nos. 117530015 and 117500118 (referred to cumulatively as "Premises"), as legally described in the exhibits to the Land Use Licenses attached hereto as Exhibits A and B. As such, City authorizes Contractor to enter Premises as the City's agent during the term of this Agreement for the purposes of permitted uses and activities outlined herein. 3. Use of Premises. City and Contractor agree that Contractor will perform certain farming operations as outlined in the Plan of Operations, incorporated into this Agreement as Exhibit C, and as provided for in Land Use Licenses in Exhibit A and Exhibit B. Contractor shall put the Premises to the full beneficial use in accordance with the Plan of Operations in Exhibit C and the Land Use Licenses in Exhibit A and B, in accordance with customary industry standards, permitted uses, acres, and crops designated herein. Said uses shall be further restricted by the terms of any federal, state, or local law or regulation applicable thereto, and the terms of City's Surface Water Permit S3-28876P(A) from the State of Washington, together with any other encumbrance of record or known use being exercised at the time of the execution of this Agreement. It is further understood and hereby acknowledged that the ultimate objective of the City, with respect to this property, is to perfect water rights under the same Surface Water Permit before December 31, 2020. Accordingly, throughout each crop year during the term of this Agreement, City reserves the right and shall be entitled to test, inspect, investigate, survey, excavate, construct, maintain, and otherwise utilize the property constituting the Premises preparatory to and/or as necessary to accomplish the stated objective in such a manner as City deems appropriate, including without limitation, by requiring Contractor to apply irrigation water upon the Premises in such quantities and at such times as determined by City. Contractor will cooperate with City to facilitate such activities and will not unreasonably hinder or delay any such activities. Farming Services Agreement - 1 4. Water and Irrigation System. Contractor shall be responsible for installation and operation of irrigation system on the Premises and all cost associated therewith. Contractor shall not be responsible for the cost of irrigation water applied to the Premises. Contractor is to furnish all necessary irrigation equipment needed to fulfill the requirements of this Agreement. All maintenance, repair, and replacement of parts of said irrigation system shall be the obligation of the Contractor, both as to performance and payment of costs, except those repairs and replacements as may be caused by the City, its agents or employee's negligent acts or omissions. Operation of the water and irrigation system shall be upon a schedule as approved by City. 5. Liens. A. Contractor shall pay as due all claims for work done on and for services rendered or materials furnished to the Premises which are done for the account of the Contractor as herein provided. Contractor shall keep the Premises free of any liens and indemnify, defend and hold the City harmless from all costs, damages, or charges, including attorney's fees, necessary to discharge such liens. City, at its option, may pay the amount of any claim or lien and add said amount as additional rent with interest at the rate of twelve percent (12%) per annum, or the maximum amount permitted by statute, on said amount paid from the date of payment. Payment of a claim or lien amount shall not constitute a waiver of any right or remedy which City would otherwise have on account of Contractor's default in this or any other term of the Lease. B. The City may file and maintain a landlord or crop lien in order to secure any payment or obligation required under this Lease. 6. Chemicals and Fertilizers. Contractor shall apply chemicals and fertilizers to the Premises according to standards applicable to the industry. City shall not incur any responsibility or liability to any third party for the negligent or wrongful acts of the Contractor related to the chemicals and/or fertilizers used or its application, and the Contractor shall defend, indemnify, and hold City harmless from any damages resulting from such negligent or wrongful act of the Contractor. 7. Erosion Control and Restoration of Premises. Contractor shall follow an effective program of soil erosion control, particularly against wind and water, per the Plan of Operations in Exhibit C. Contractor agrees to plant the Premises to a cover crop to the specifications of the City within fifteen (15) days after each harvest, as appropriate and consistent with the Restoration of Premises sections in Land Use Licenses in Exhibits A and B. 8. Premises Maintenance. Contractor shall not commit or permit to be committed any waste, strip, damage to, or misuse of the Premises. All farming operations shall be conducted in a husband -like manner according to standards of the industry. Any and all fences, gates, roads, field accesses, and other improvements to the property (including the irrigation system) shall be maintained by Contractor. Contractor shall eradicate weeds, particularly puncture -vine and prevent all noxious and other weeds from encroaching upon the Premises, utilizing practices approved by the local weed control authorities and to the reasonable satisfaction of the City and per the Land Use Licenses in Exhibits A and B. Farming Services Agreement - 2 9. Deleterious, Hazardous, Toxic, or Harmful Substances. A. Deleterious Material. The Contractor shall not make, or suffer to be made, any filling in of the lease Premises or any deposit of rock, earth, ballast, refuse, garbage, waste matter, chemical, biological or other wastes, hydrocarbons, any other pollutants, or other matter within or upon the lease Premises, except as approved in writing by the City. If the Contractor fails to remove all non -approved fill material, refuse, garbage, wastes or any other of the above materials from the lease Premises, the Contractor agrees that the City may, but is not obligated to, remove such materials and charge the Contractor for the cost of removal and disposal. B. Hazardous, Toxic, or Harmful Substances. The Contractor shall not keep on or about the Premises, any substances now or hereinafter designated as or containing components now or hereinafter designated as hazardous, toxic, dangerous, or harmful, and/or which are subject to regulation as hazardous, toxic, dangerous, or harmful by any federal, state or local law, regulation, statute or ordinance (hereinafter collectively referred to as "Hazardous Substances") unless such are necessary to carry out the Contractor's permitted use(s) under this Agreement, and unless the Contractor fully complies with all federal, state and local laws, regulations, statutes, and ordinances, now in existence or as subsequently enacted or amended. C. The Contractor shall: 1. Immediately notify the City of (i) all spills or releases of any Hazardous Substance affecting the lease Premises, (ii) all failures to comply with any federal, state, or local law, regulation or ordinance, as now enacted or as subsequently enacted or amended, (iii) all inspections of the lease Premises by, or any correspondence, orders, citations, or notifications from any regulatory entity concerning Hazardous Substances affecting the lease Premises, (iv) all regulatory orders or fines or all response or interim cleanup actions taken by or proposed to be taken by any government entity or private parry concerning the lease Premises. 2. On request, provide copies to the City of any and all correspondence, pleadings, and/or reports received by or required of the Contractor or issued or written by the Contractor, or on the Contractor's behalf with respect to the use, presence, transportation, or generation of Hazardous Substances related to the Leased Premises. D. The Contractor shall be fully and completely liable to the City, to DNR, and to Pasco RD 68, LLC, and shall indemnify, defend, and hold harmless the City and its agents and employees, with respect to any and all damages, costs, fees (including attorneys' fees and costs), penalties (civil and criminal), and cleanup costs assessed against or imposed as a result of the Contractor's use, disposal, transportation, generation, and/or sale of Hazardous Substances, or that of the Contractor's employees, agents, assigns, contractors, subcontractors, licensees, invitees, and for any breach of this subsection. Farming Services Agreement - 3 10. Consideration. Upon completion, Contractor shall invoice the City for items completed of the services agreed upon. City shall make payment to Contractor for said services rendered to the City within 30 (thirty) days of receipt of invoice. Payment to the Contractor shall not exceed the amount of $59,300.00 (FIFTY-NINE THOUSAND THREE HUNDRED DOLLARS and 00/100). A50% deposit shall be paid by the City upon execution of this agreement and presentation of invoice from the Contractor. Disbursement of final payment shall be upon completion of both harvests of crops in 2020 and upon Contractor's satisfaction of all requirements per the Plan of Operations in Exhibit C and Land Use Licenses in Exhibits A and B to this Agreement, including but not limited to, the "Restoration of Premises" sections in both Land Use Licenses. 11. Term. This Agreement shall commence on April 15, 2020 and terminate on December 31, 2020. 12. Revocation. City may terminate this Agreement at any time with twenty (20) days written notice, should the City receive termination notice for either Land Use License from DNR or Pasco Rd 68, LLC. Should City terminate this Agreement or a portion of this Agreement with respect to the services upon either Parcel as identified in Section 2 above, City shall still be obligated to make contractually agreed upon payment to Contractor, subject to fulfillment of Contractor's contractual obligations herein. Should Contractor choose to terminate this Agreement for any reason other than City's default, consideration under this Agreement shall be foregone. 13. Insurance. Contractor shall be required to obtain and maintain all types and amounts of insurance as listed in the Land Use Licenses and Exhibits A and B, and shall abide by all insurance requirements therein, including, but not limited to, naming the City of Pasco, the Department of Natural Resources of the State of Washington, and Pasco Road 68, LLC, as additional insureds, and shall submit proof of said insurance to the City of Pasco within thirty (30) days of the execution of this Agreement. 14. Indemnification. Contractor shall indemnify, defend and hold harmless the City, its employees, officers and agents, from any and all liability and damages, including, but not limited to, personal claims, costs, fees, penalties or judgments of any nature whatsoever arising out of the use or occupation of the premises by Contractor, its permittees, subcontractors, concessionaires, agents, employees, guests, invitees, customers, or affiliates except as may arise out of the negligent or willful act of the City or its officers, members, employees, or agents. 15. Notice. To City: Mr. Dave Zabell, City Manager CITY OF PASCO 525 North Yd Avenue Pasco, WA 99301 zabelldC&pasco-wa. gov (509) 545-3404 Farming Services Agreement - 4 To Contractor: Mr. Tom Kidwell 2420 West Court Street Pasco, WA 99301 milliekidwell(&msn.com (509) 521-8400 To Contractor: Mr. Todd Kidwell 811 Pasco Kahlotus Road Pasco, WA 99301 tskkidwellA gmail. com (509) 727-1374 16. Entirety of Agreement. This document and its exhibits incorporates the entire agreement of the parties. No prior representation, stipulation, agreement, or understanding will be valid or enforceable unless incorporated herein. Any changes or additions to this Agreement or its attached exhibits shall be in writing and executed by the parties hereto. This Agreement shall be construed as a whole. The captions and headings herein are for convenience only and shall not be relied upon or used to interpret/construe this Agreement or any portion thereof. Each party signing this Agreement acknowledges that they participated in the drafting of this Agreement and, as such, this Agreement shall not be presumptively interpreted/construed in favor of nor against any particular party, but rather this Agreement shall be given an objectively fair and reasonable interpretation and construction in light of and in accordance with its express terms and provisions. 17. Dispute Resolution. A. This Agreement has been and shall be construed as having been made and entered into and delivered within the State of Washington, and it is agreed by each party hereto that this Agreement shall be governed by the laws of the State of Washington. B. In the event of a dispute regarding the enforcement, breach, default, or interpretation of this Agreement, the parties or their designees, shall first meet in a good faith effort to resolve such dispute. In the event the dispute cannot be resolved by agreement of the parties, 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 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. 18. Nonwaiver. Waiver by the City of any provision of this Agreement shall not constitute a waiver of any other similar event or other provision of this Agreement. 19. General Provisions. For the purpose of this Agreement, time is of the essence. (Signature Page follows) Farming Services Agreement - 5 DATED this day of WA A 2020. CITY OF PASCO: By: Date: Z� SCJ ve abe ' M ager CONTRACTOR: Farming Services Agreement - 6 X17-� EXHIBIT A HILARY S. FRANZ Wft VSSIWIEF OF FUBuc int<95 December 5, 2019 Dan Ford, PE Citv of Pasco PO Box 293 Pasco, WA 99301-0293 Subject: One Year Extension of Land Use License No. 60 -SE 1807 Dear Mr. Ford: DEPARTMENT OF NATURAL RESOURCES SOUTHEAST REGION 713 BOWERS ROAD ELLENSBURG. WA 98925 509.925-8510 TRS 711 SOUTHEAST.R£GIONODNR.WA.GOV WWW DNR WA GOV Per your request on November 27, 2019, Land Use License 60 -SEI 807 is extended for one year with the same terms and conditions expiring December 31, 2020. Rent for the period of January 1, 2020 to December 31, 2020, will be as follows: Misc. Use Rent $2,500.00 Total $2,500.00 If you agree with this extension, sign both letters where indicated below and return one signed letter to DNR Southeast Region, 713 Bowers Road, Ellensburg, WA 98926, by December 26, 2019. Please also ensure payment of the enclosed invoice is received in Olympia within thirty days. Your prompt attention concerning this matter is appreciated. If you have any questions please contact me. Sincerely, Kathryn Mink Assistant Region Manager, Agriculture Enclosure: (1) I agree with the 1' nse extension. /a a 0 .,Er :''E1fl,i'AFF¢ E1.r -. tG,,A: -. !>A=,.f.E= HILARY S. FIRANZ COMMISSIONER OF PUBLIC LANDS LAND USE LICENSE ("License") License No 60 -SE 1807 TRNS LICENSE is between the CITY OF PASCO, herein called the "Licensee" and the STATE OF WASHINGTON, acting by and through the Department of Natural resources, herein called the "State" dated as of /vi.,v a4 20_LL. tssusnce. For valuable consideration, the receipt of which is hereby acknowledged, State 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. Permitted Uses and Activities. Application of Irrigation W2ter. Licensee is hereby permitted to irrigate the Premises with water authorized under Surface Water Permit S3-28876P(A) and conduct the following releated 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 as alfalfa. The permitted uses and activities of this License shall not interfere with State land management activities, nor be changed or modified without the prior written consent of State, which shall be at its sole discretion. Any unauthorized use of the License may result in immediate suspension of the License followed by termination if the unauthorized use is not resolved to the satisfaction of State. Land Use License Page I_ of 12 license No. 60-SE1807 EMIE Prohibited Uses and Activities. Licensee will not engage in the following activities on State lands while performing work under this License: a. Clearing; b. Construction of new roads; c. Camping; d. Lighting any type of campfire, cookfire, or any other fire; and, e. Recreational activities. The preceding list of prohibited activities is not intended to be exhaustive, but is provided to illustrate the types of activities not permitted by this License. Access. Provisions for the use of rights of way across State land, including the Premises and adjacent land are as follows: a. Licensee may use the existing access roads on the Premises shown on the Plan of Operations and authorized by the Region Representative. Condition as Premises. Licensee accepts the Premises in its present condition. The State has no obligation to make any repairs, additions, or improvements thereto and expressly disclaims any warranty that the Premises are suitable for the intended use. Terns. This License is valid from May 1, 2018 through December 31, 2018. The Licensee may extend this License one additional year if weather prevents perfection of authorized water during the initial term of the License. The City shall provide the State written notice of its intent to exe7cise this option to extend at least 14 days prior to the expiration of the intitial one year term or by November 30, 2018. Revocation. This License may be revolved by State at will or upon material breach of any of the conditions herein. State may suspend but shall not revoke this License without providing Licensee prior notice and a reasonable opportunity to satisfy State's concem(s); provided however, State shall retain sole discretion over the decision to revoke this License. Pernnrttem 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. Resirictions or requirements placed on the Licensee herein shall apply equally to the Permittees. State Representative. State shall designate a representative from each applicable DNR Region who will authorize plans of operation, provide Licensee with the records or information Land Use License Page 2 of 12 License No 60-SE1807 referenced in this License, and resolve issues arising from this License (hereafter "Region Representative"). State may change the Region Representative by providing written notice to the Licensee. Licensee RepresentaUve. Licensee shall designate a representative who will have the authority to take any actions necessary to administer this License, to include executing a plan of operations and resolving issues arising from this License (hereafter "Project Representative"). The Licensee may change its Project Representative by providing written notice to State. Advertising. Licensee shall ensure any advertising related to the use of this License does not imply the endorsement by or affiliation with the Washington State Department of Natural Resources, the state or any other state entity. Licensee shall submit copies of all such advertising to the State's designated representative, prior to the publication of the advertising, to review for compliance with this requirement. Resta mflon of Premises. Licensee assumes responsibility for restoration of Premises to a condition equal to or better than its condition immediately prior to Licensee's use. Such restoration shall be completed prior to expiration of this License. Restoration includes repairing ground disturbance, re -seeding and revegetating, repairing facilities or improvements, cleaning up litter, filling test pits, and removing debris, All restoration is subject to the approval of the Region Representative, which will not be unreasonably withheld. License Inspection. A copy of this License must be available on the Premises at all times for inspection by the State or an authorized law enforcement agency during licensed activity. Prior Rights. This License is subject to any rights and valid claims previously granted or conveyed by State, and to any rights and valid claims pending on or encumbering the Premises. Licensee's rights herein are subject to all matters of public record, and to all prior unrecorded casements, permits, leases and agreements affecting the Premises that are filed with the Department of Natural Resources in Olympia, Washington and with its Region offices (copies of which will be provided upon request). Compliance with Laws. Licensee shall comply with ail applicable laws, including but not limited to all State (Department of Natural Resources) regulations, county and municipal laws, ordinances, or regulations. Required Permits and Ucenses. Licensee shall obtain and be in possession of all permits and licenses required for the permitted use, and shall provide proof of such permits and licenses upon request by State. PIon of Operations. For each applicable DNR Region, Licensee shall meet with the Region Representative and agree in writing to a plan of operations ("Plan of Operations") at least thirty (30) days prior to commencement of the activity on the Premises, including use of roads. State, at its sole discretion, may place restrictions on Licensee's use of the Premises that ensures Land Use License Page 3 of 12 License No, 60-SE1807 protection of the Premises and other uses. Any material breach of the Plan of Operations will be considered a material breach of this License. The Plan of Operations shall include, but not be limited to the following requirements as determined by State: a. access plan; b. noxious weed prevention and control; c, erosion control; d. work that must be performed on the Premises or roads prior to, during or upon completion of use under this License; e. fire prevention closures and restrictions; Fire Prevention. Licensee shall take all reasonable measures to prevent and minimize the start and spread of fire on or adjacent to Premises. Measures shall include ensuring all vehicles carry a fire extinguisher of at least a S B/C rating and a serviceable shovel, following State safety operating procedures which include compliance with Washington Administrative Code (WAC) 332-24-301 (Industrial restrictions) and WAC 332-24-405 (Spark emitting requirements) as now written or later amended. State shall have the right, but not the duty, to notify Licensee of fire hazards created by Licensee activities that need to be controlled on the 'remises and adjacent State 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. Roads. Roads may not be used when excessive damage due to weather or other conditions will result. During operations under this License, the Licensee shall take such precautions as necessary to minimize insofar as possible soil erosion, soil stream delivery, and damage to the soil as required under Washington State Forest Practices. Licensee shall not obstruct roads or take action that restricts the flow of traffic or use on roads without State's written permission. Repairs. Licensee shall repair damage to the roads, trails or facilities arising out of its use to a condition equal to or better than their condition immediately prior to such use with the exception of damage caused through normal and prudent usage. Read maintenance, During periods when a road, or portion thereof, is being used by the Licensee, that portion of the road so used shall be maintained by said party at its own expense and, at the termination of each period of such use, shall be left in a condition equal to or better than the condition of the road immediately prior to said use. Survey markers. Licensee shall not destroy any land survey corner monuments or reference points (including but not limited to corner markers, witness objects, or line markers) without prior written approval from State, which shall not be unreasonably withheld. Monuments or Land Use License Page 4 of 12 License No 6D -SE 1807 reference points that must necessarily be disturbed or destroyed during road construction or maintenance activities must be adequately referenced and replaced, at Licensee's cost, under the direction of a Professional Land Surveyor licensed in Washington, in accordance with all applicable state law in effect at the time of construction, including but not limited to RCW 58.24, and all state regulations pertaining to preservation of such monuments and reference points. Protection 0 Natural Resources and Improvements. Licensee shall take all reasonable precautions to prevent or minimize damage to natural resources (e.g., vegetation, wildlife, soil, water) and improvements (crops, buildings, roads, etc.) within the Premises. Licensee shall cut no State timber, remove no State-owned valuable materials (as defined in RCW 79.02.010), in addition to coal, minerals, oil or gas, not disturb or remove any cultural, historical or paleontological (fossil) resources, without the prior written consent of the State. All ground disturbance shall be kept within the Premises unless otherwise approved by State in advance. Survey and transportation equipment shall be set back from the stream, lake, pond and wetland bank so surveying activities will not damage or encroach on riparian or wetland areas. Waste Licensee shall not cause or permit any filling activity to occur in or on the Premises, except as approved by State. Licensee shall not deposit refuse, garbage, or other waste matter or use, store, generate, process, transport, handle, release, or dispose of any hazardous substance, or other pollutants in or on the Premises except in accordance with all applicable laws. The term hazardous substance means any substance or material as those terms are now or are hereafter defined or regulated under any federal, state, or local law including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA 42 USC 9601 et seq.) as administered by the U.S. Environmental Protection Agency, or the Washington Model Toxic Control Act (MTCA RCW 70.105D) as administered by the State Department. of Ecology. Licensee shall immediately assume responsibility for a hazardous substance release (spill) caused by Licensee or its Permittees on or adjoining the Premises. As responsible party, Licensee shall; • Immediately notify all necessary emergency response agencies, as required under federal, state and local laws, regulations, or policies. • After emergency response agency notifications are completed, notify State (Department of Natural Resources) of all spill releases, Licensee actions completed for spill reporting, and actions planned or completed toward spill cleanup. State notification requirements are "same business day" notification for normal state work days and "next available business day" notification for weekends and holidays. • At Licensee's sole expense, conduct all actions necessary to mitigate the spill release. Mitigation response actions may include, but are not necessarily limited to, initial release containment, follow-up site cleanup and monitoring actions, and continued contact and Land Use License Page 5 or 12 License No. 60 -SE 1907 coordination with regulators and State, as defined under the aforementioned laws, regulations, policies and this License. Other than performing initial emergency response cleanup/containment actions, obtain approvals in advance of all site cleanup actions (e.g. site characterisation investigations, feasibility studies, site cleanup and confirmation sampling, and groundwater monitoring) conducted on State lands, in coordination with regulatory agencies and State. Obtain and understand all necessary hazardous substance spill release notification and response mitigation requirements, in advance of conducting Licensee operations on State Land. Clewes Water Acct. Licensee is subject to the federal Clean Water Act (CWA) enforced by the Washington State Department of Ecology (DOE) through its delegated authority. Licensee shall perform its activities on State lands in a manner to prevent entry, or spillage of solid matter, contaminants, debris, and other pollutants and wastes into flowing water, dry watercourses, lakes, ponds, and underground water sources. Activities near streams or other bodies of water shall not cause the water turbidity to exceed State DOE water quality standards for the stream. Licensee shall not block or divert water courses unless by permit. When State is aware of actual or potential noncompliance with applicable CWA requirements by Licensee that affect water quality, State will notify Licensee and DOE. Licensee shall work with DOE and notify State of any remedial actions or mitigation measures required by DOE or Licensee to cure the problem. Noxious Weed Control. Licensee shall control, at its own cost, all noxious weeds on any portion of the Premises where Licensee's activities may have caused or aggravated an infestation of noxious weeds, unless otherwise agreed upon. Licensee shall be responsible for its proportional cost for noxious weed control where Licensee's activities may have caused or aggravated an infestation of noxious weeds on adjacent land. Payment for noxious weed control may include in-kind services or materials. Licensee is responsible for notifying State of noxious weed problems and mitigating noxious weed problems attributable to Licensee's activities. llnsuirance. Before using any of said rights granted herein and at its own expense, the Licensee shall obtain and keep in force during the term of this License and require its contractors and sub- contractors, to obtain while operating on the Premises, the following liability insurance policies, insuring Licensee against liability arising out of its operations, including use of vehicles. Additionally, insurance must cover permittees for claims arising out of or resulting from the event or activity. Failure to buy and maintain the required insurance shall result in the termination of the License. The limits of insurance, which may be increased by State, as deemed necessary, shalt not be less than as follows: (a) Commercial General Liability (CGL) insurance with a limit of not less than $1,000,000. if such CGL insurance contains aggregate limits, the general aggregate limits shatl be at (east twice the "each occurrence" limit, and the products -completed operations aggregate limit shall be at least twice the "each occurrence" limit. Land Use License Page 6 of 12 License No. 60 -SE 1807 (b) Business Auto Policy (BAP) insurance, and i; necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 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 form providing equivalent coverage. If necessary the policy shall be endorsed to provide contractual liability coverage and cover a "covered pollution cost or expense" as provided in the 1990 or later versions of CA 00 01. Licensee waives all rights against State for the recovery of damages to the extent they are covered by business auto liability or commercial umbrella liability insurance. (c) Employer's liability ("Stop Gap") insurance, and if necessary, commercial umbrella liability insurance with limits not less than $1,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease. (d) Licensee shall comply with all State of Washington workers compensation statutes and regulations. Workers compensation coverage shall be provided for all volunteers, employees of Licensee and employees of any contractors or sub- contractors. Except as prohibited by law, Licensee waives all rights of subrogation against State for recovery of damages to the extent they are covered by workers compensation, employer's liability, commercial general liability or commercial umbrella liability insurance. All insurance must be purchased on an occurrence basis and must be issued by companies admitted to do business within the State of Washington and have a rating of A- or better in the most recently published edition of Best's Reports. Any exception shall be reviewed and approved, at the State's sole discretion, in advance by the Risk Manager for the Department of Natural Resources. If an insurer is not admitted, all insurance polices and procedures for issuing the insurance policies must comply with Chapter 48,15 RCW and Chapter 284-15 WAC. The State of Washington, Department of Natural Resources, its elected and appointed officials, agents and employees shall be named as additional insureds on all general liability, excess, and umbrella insurance policies. Before using any said rights granted herein, Licensee shall furnish State with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements specified above. Certificate(s) must reference the State's Land Use License number. State shall be provided written notice before cancellation or non -renewal of any insurance referred to herein, as prescribed in statute (Chapter 48.18 RCW or Chapter 48.15 RCW). Licensee shall include all contractors, sub -contractors and other Permittees as insureds under all required insurance policies, or shall furnish separate certificates of insurance and endorsements for each. Contractors and sub -contractors must comply with all Land Use License Page 7 of 12 License No. 60•SE1907 insurance requirements stated herein. Failure of contractors, sub -contractors to comply with insurance requirements does not limit Licensee's liability or responsibility. All insurance provided in compliance with this License shall be primary as to any other insurance or self-insurance programs afforded to or maintained by State. Licensee waives all rights against State for recovery of damages to the extent these damages are covered by general liability or umbrella insurance maintained pursuant to this License, By requiring insurance herein, State does not represent that coverage and limits will be adequate to protect Licensee and such coverage and limits shall not limit Licensee's liability under the indemnities and reimbursements granted to State in this License. If Licensee is self-insured, evidence of its status as a self-insured entity shall be provided to State. If requested by State, Licensee must describe its financial condition and the self- insured funding mechanism. Indemne ecailon. Licensee shall indemnify, defend (with counsel acceptable to State) and hold harmless State, its employees, officers and agents from any and all liability, damages (including, but not limited to, personal injury and damages to land and other natural resources), expenses, causes of action, suits, claims, costs, fees (including, but not limited to, attorneys' fees), penalties, or judgments, of any nature whatsoever, arising out of the use or occupation of the Premises by Licensee, its Permittees, contractors, concessionaires, agents, employees, guests, invitees, customers or affiliates, except as may arise solely out of the willful act of State or State's elected officials, employees, or agents. To the extent that RCW 4.24.115 applies, Licensee shall not be required to indemnify, defend, and hold State harmless from State's sole or concurrent negligence. Notice. Unless otherwise specified herein, any notices required or permitted under this License may be delivered personally, sent by facsimile machine, emailed with acknowledgment of receipt, or mailed certified, return receipt requested, to the following addresses or to such other place as the parties hereafter direct. Notice will be deemed given upon delivery or upon confirmation of facsimile, whichever is applicable. To State: Southeast Region Department of Natural Resources 713 Sowers Road Ellensburg, WA 95926 509-925-8510 southeast.region@dnr.wa.gov To Licensee: City of Pasco Dave Zabell, City Manager 525 N. 3" 1 Ave Pasco, WA 99301 509-545-3404 zabeild@pasco-wa.gov Temporary Markem. Unless otherwise agreed upon, State shall not be responsible for preserving any temporary markers such as stakes, flags, paint, tags or signs used by Licensee for purposes consistent with this License ("Temporary Markers"). State shall take reasonable Land Use License Page 8 of 12 License No 60-SE1807 precautions to avoid damage to Temporary Markers placed by Licensee, but State is not liable for third party damage to same. Prior to placing Temporary Markers on Premises, Licensee shall inform State in writing of location and provide a general description of such Temporary Markers. Licensee shall remove all Temporary Markers from Premises upon completion of operation or termination of License, whichever occurs first. Billing and. Payment. When Licensee is required to pay State under this License, State shall use its standard billing practices and invoice Licensee with reference to the State License number and Licensee Lead Tract Number. The invoice shall include an explanation for the billing, how the costs were calculated and any supporting documentation. Licensee shall pay State any undisputed amount within thirty (30) days receipt of a proper invoice or pay interest at a rate of one percent per month until such time as the amount due is paid in full. integmted'Agreement; Modification. This License, including appendices and attachments, constitutes the entire agreement and understanding of the parties with respect to the subject matter of the License and supersedes all prior negotiations and representations. This License may not be modified except in writing signed by the parties. The parties agree to execute any additional documents reasonably necessary to effectuate the provisions and purposes of this License. Severability. If any provision of this License is held to be invalid or unenforceable, this provision shall not affect or invalidate the remainder of this License, and to this end, the provisions of this License are declared to be severable. If any such invalidity becomes known or apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be consistent with the intent of this License. Non -waiver. The waiver by State of any breach or the failure of State to require strict compliance with any term herein shall not be deemed a waiver of any subsequent breach. ssigntneret. This License, and any of the rights granted herein, shall not be assigned. Construction. The terms of this License shall be given their ordinary meaning unless defined herein and shall not be presumed construed against the drafter. Exhibits, All exhibits referred to in this License arc deemed to be incorporated in this License in their entirety. Hea&ngs. 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. Survtva9. All obligations of Licensee to be performed prior to the expiration or earlier termination shall not cease upon the termination or expiration of this License, and shall continue Land Use License Page 9 of 12 Liunsc No 64-SE1807 as obligations until fully performed. All clauses of this License which require performance beyond the termination or expiration date shall survive the termination or expiration date of this License. Counterparts. This License may be executed in one or more counterparts, each of which shall be deemed an original, and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpart. Execution of this License at different times and places by the parties shall not affect its validity so long as both parties execute a counterpart of this License. WITNESS WHEREOF, the parties hereto have caused this License to be executed as below subscribed. CITY OF PASCO Dated: DAVE Z ALL, ity Manager Address: 525 North 3'd Ave Pasco, WA 99301 «u Phone: 509-545-3404 STATE Of WASHINGTON a DEPARTMENT OF NATURAL RESOURCES isAlj 2Y TODD WELKER, Southeast Region Manager Approved as to form May 25, 2016 by Mike Railinger Assistant Attorney General for the State of Washington Land Use License Page l0 of 12 License No 64-SE1807 Exhibit A Legal Description of Premises That protion of the N11/2 of Section 16, Township 9 North, Runge 29 Fast, Willamette Meridian, Franklin County, Washington, lying northerly of the northerly margin of State Route No. 182, as describved by that document recorded May 21, 2007, under Auditor's File No. 1702317. Franklin County Recordes, and lying westerly of Lots 7, 8, and 9, and westerly and southerly of Burden Road, as shown on Binding Site Plan No. 2001-04, recoded July 11, 2001 under Auditor's File No. 1592535, Franklin County Records containing 20.02 acres. Land Use License Page 1 I of 12 Licensc No. 60 -SE 1807 Exhibit B Access/Map N Cat= wk= �I*mm . us w .._. Nm Lo r ._. Low s a�n� Land Use License Page 12 of 12 Umnse No 60 -SEI 807 EXHIBIT B LAND USE LICENSE (" Liccose") THIS LICENSE is between the CITYOP PASCO, WASHINGTON, hereinnlicrreferred to as "Licensee", and PASCO ROAD 68, LLC. heminafier referred to its "Licensor' dated as of ZO . Upon approval of the State of Washingon, acting by and through the State l)cpartrnent ofNatural Resources, h=inafter referred to ns "State." I. Imusince. For valuable consideration, the receipt or which is hereby acknowledged, Licensor hereby issues to Licrastre a non-exclusive, revocable license ("License") over a parcel or land Frani iin County legally described tis set forth in Exhibit A, ("Premises") subject to the applicable terms and conditions herein. 2. Permitted Uses and Activities. Anrilieatian of Irrieetion Water. Licensee is hereby permitted to irrigate the Premises with water authorized under Surface Water Pcrmit S3- 28876P(A) and conduct the following relcated activities A. Install necessary irrigation system consisting of mainline. electrical system and essaclated above ground sprinklers such as it center pivot, and H. Grow and harvest an irrigated crop such as alfalfa. The permitted uses and ecti vides orthis License shall not interfere with Licensorand State land management activities, nos be changed or modified without the prior written consent of Licensor and State, which shalt be at its sole discretion, Any unauthorized use of the: Liceasc tnity result in immediate suspension of the License followed by termination if the unauthorized use Is not resotvcd to the .satisfaction of Liccnsorand State. 3. PrghVtcd Uses rued Activities. The Licensee will not cngabc in the following activities on State lands while performing wort; under this License except that these activities shat) 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, cookAre, or any other ftrc; and, E. Recreational activities. The preceding list orprohibited activities is not intended to be exhaustive, but is provided to illustrate the types of activities not permitted by this Licenses Land Usc Litcnir- t I EXHIBIT 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. CogOtion oTPremises. 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 PINK 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 ofthe Perminees 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. to. State RetaresefaEative. State shall designate a representative from each applicable D -NR 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. Liceasee RepreLeptvtive. 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 rand Use License - 2 the State's designated repr=ntutive, prior to the publication of the advertising to review for compliance with this requirement. 13. RMtoration orpmrnlses Licensee assurmts responsibility forrestoration ofPremism to a condition equal to or baler than its condition immediately prior to Licensee's use. Such restoration shall be completed prior to expiration of this License, itestoration includes repairing ground disturbance, re -seeding and revegciating, repairing facilities or improvements. cleaning up litter, filling test pits, and removing dtbris. All restoration is subject to the approval of the Region Representative, which will not be unreasonably withheld. N. Licensc Irrsy"Aloo. A copy orthis License must be available on the Premises Dial] times for inspection by the State or in authorized law enforcement agency during licensed activity. 15, prior ftiabts This License is subject to any rights and valid claims previously granted or convoyed by State, and to any rights and valid claims pending; on or encumbering the Ptemises. Licensee's rights herein are subject to all matters of public record. and to all prior unrecorded easements, permits. leases and egrcements affecting the Premises that we filed with the Department orNatural Resources in Olympia, %Vaahington and with its Region affecs (copies of which will be provided upon request). 16. ComntWnce with Laws. Liccnsce sha11 comply with all applicable laws, Including but not limited to all State (Department of Natural Resources) regulations, county and municipal laws, ordinances, or regulations. 17. Required Permits and Licenses. Licensee shall obi, in and be in possession ora11 permits and licenses required far the permitted use, and shall provide proof of such pemits and licenses upon request by Licensor and State. Is. Plan or Onrratiams. The permitted uses and activities under this License shall be governed by a plan ofaperaticns ("Plan of Operations") agreed to bythe Region Reprensentative and Licensee. Mate, at its sole discretion, rrray place restrictions on Licensee's use ofthe Premises that cnsums protection of the Premises and other uses. Any material breach of the Plan ofoperations will be considered a material breach ofthis License. 19. Fire Prevention. Licensee stroll take all reasonable measures to prevent and minimize the start and spread of fire on uradjaccut to Premises. Measures shall include ensuring all vehicles carry afire extinguisher of at least a 5 BIC rating and a sert'iccablc shovel, following Stare surety operating procedures which include compliance wish Vdashinglon Administrative Code (NAC) 332-24-301 (Industrial restrictions) and %VAC 332-24405 (Spark emitting requirements) as now wrinen or later amended Both Licensor and State shall hove the right, but not the darty. to notify Licensee ar fire hazards crcetcd by Licensee activities that treed to be controlled on the Premises and adjacent State Land V%* Licensc-3 land. As soon as possible but no fatcr t}tcn Iwo weeks unless otherwise agreed upon, Licensee shall remediate the fire hazard created by Licensee, or provide an neceptnble plan for such fire hazard remediation. 20. Roads. Roads may not be used uvhen excessive change due to uTather or other conditions %sill result. During operations under this License, the Licensee shall trl;e such precautions as necessary to minimize insofar as possible soil erosion, soil dream delivery, and damage to the soil as required under Washington Suite Forest Pnictires. Licensee shall not obstruct roads ortake action that restricts the Slow of traffic or use on roads without State's Alitten permission, 21. Ytanalrs. Licensee sturll repair damage to the roads, trails or facilities arising out of its use to a condition equal to or better than their condition immediately prior to such use with the exception of damage caused through normal and prudent usage. 22. RondMcintenaner. During periods when a mod, or port ion thereof, is being used by the Licensee, that portion of the road so used shall be maintained by said party ni its own expense and, zt the termination ofeach period ofsuch use, shall be tcti in n condition equal to or better than the condition of the road immediately prior to said use. 23. Syrvev Markers. Licensee shall not destroy any land survey comer monuments or refcrencr points (including but not limited to comer mariners, tivitness objects, or line markers) without prior written appro%zl from Licensor and 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, utnderthe direction ofe Professional land Surveyorliceased in Washington, irrcccordance with all applicable state law in efreetsit the time ofconstruction, including but not limited to RCNV 58.24, and all state regulations pertaining to preservation of such monuments and reference points. 24. Protection of Nat s'aa� f Resources and itnergverrtents. Liccnuee shall tate all reasonable precautions to prevent orminimize damage to natural msources (e.g., vegetbtion, KiIdlife, soil, water) and improvements (crops, buildings, roads, ctc.) within the Premises. Licence stall cut no State timber, remove no State-owned valuable materials (as defined in RCW 79.02.0W), in addition to coa3, minerals, oil or gas, not disturb or remove any cultural, historical or paletrntological (fossil) resources, without 1he prior wrinen consent ofthe Stott. All ground disturbance shall be kept within the Premises unless otherwise approved by State in advance. Survey end transportation equipment shall be set back from the stream, lake, pond and wetland band: so surveying activities will not dtunage or encroach on riparian or wetland areas. 75. NVaste. Licensee shall not cause or permit any filling activity to occur in or on 1h.- Premises, hePremises, except as approved by Licensor and Stale. Licensee shall not deposit rctiuse, garbage, or other waste smatter or use, store, generate, process, transport, handle, release, or dispose of my hazardous substance, or other pollutants in or on the Premises except in accordance with Ell applicable laws. Lwd Use License • 4 The term hazardous substance means any substance or material ns those tames arc now oram hereafter defend or regulated under any federal, state, or local law including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA 42 USC 9601 et seg.) as administered by the U.S. Environmental protection Agency, or the Washington Model Toxic Control Act (MTCA RCW 70.10513) as administered by the State Depariment. of Ecology, Licensee shall immediately Rssumc responsibility for a hazardous substance release (spill) unused by Licensee or its Pcrmiltecs an or adjoining the Premism As responsible party, Licensee shall: A. Immediately notify all necessary emergency response agencies, as required tinder federal, state and local lams, regulations, or policies, B. Afitr emergenqvresponse agency notifications arccompleted, notify Licensor and State (Depariment ofNatural Resources) ofell spill releases, Licensee actions completed for spill reporting, and actions planned or completed toward spill cleanup. Notification requirements we "same business day" notification far normal state work Mays and "next available business day" notification for weekends and holidays. C. At Licensee's sole expense, conduct nil actions necrsswy to mitigete the spill release, blitigatian 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 afarementionied latus, regulations, policies and this License. D. Other than perforating initial emergency response cleanupkantainmeni actions, obtain approvals in ndvancc of all site cleanup Actions (e,g. site characterization investigations, feasibility studies, site cleanup and confirmation sampling, and groundwater monitoring) conducted on State lands, in coordination with regulatory agencies and State. E. Obtain and understand all necessary hazardous substivice spill release notification and response mitigation requirements, in advance of conducting Licensee operations on State Land. 26. Qcsn 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, contaminants, debris, and other pollutants and wastes into flowing water, dry watercourses, lakes, ponds, and underground water sources. Activities near streams or other bodies orwnter shall Land Lair Llemse • S not cause the wilier turbidity to exceed State DOE water quality slandards for the stream. Licensee shall not block ordiveri watercourses unless by permit. When State is aware of actual or potentia noncompliance with applicable CWA requirements by Licensee that affect %vwcr quality, State will notify Licensee and DOE. Licensee shall work with DOE and notify State ofanyremedirl actions or mitigation measures required by DOE or Licensee to cure the problem 27. Noxinus Weed Coniml. Licensershall conttnl,at its own cost, oil noxious weedson any portion of the Premises when: Licensee's activities tray have caused oraligravatcd 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 infastation of noxious weeds on adjacent land. Payment for noxious weed control may include in- kind services or materials. Licensee is responsible far notifying State ofnoxiours weed problems and mitigating noxious weed problems auributable to Licensee's activities, 29, Insurance Before using any ofsaid rights granted herein and at its own expense, the Licensee shall obtain and keep in force during the term ofthis License and require its contractors and sub -contractors, to obtain while operating an 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 ofor regretting from the event or activity. Failure to buy and maintain the required Insurance shall result in the termination of the License. The limits of insurance, which may be incrzmsed by State, as deemed necessary, shall not be less than as follows: A. Cnmmercial General LiabiliDl1COLI insurance with a limit of not less than Si,W0,000. Ifsuch CGL insurutce contains aggregate limits, the general aggregate limits shall be at least nvier the "each occurrence" limit, and the products -completed operations aggregate limit shall be al least tivice the "each occurrence" limit. B. Rulings Auto Policv (PAP) insurance, and ifneccssrry, commercial umbrelto liability insurance with a limit of not less than S1,00,000 whh such insurance covering liability arising out of"Any Auto". Business auto coverage shell be writlen on ISO form CA 0001, orsubstituteliabiliry form providingequivalcntcnvercge. ifneassarylhepalicyshali be endorsed to provide contractual liability covemac and cover o "covered pollution cost or expense" its provided in the 1990 or later versions of CA 00 01. Licensee waives all rights against Stoic for the recovery of damnges to the extent they are covered by business auto liability or commercial umbrella liability insurattcc. C. 1~mrrlover's liability ("Ston Gap"l insurance, and if necessary, commercial umbrella liability insurance with limits not less than 51,000,1100 each accident for bodily injury by accident or 51,000,000 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 volu Leers, employees of Licensee and employees of any contractors or sub -contractors. Lend Use t.leense - 6 Except as prohibited bylaw, Licenser waives oil rights of subrogation against Licensor and State for recovery of damages to the extent they are covered by workers compensation, employer's liability, commercial General liabilityorcommercial umbrella liability insurance. All insurance must be purchased on art occurrence basis and must be issued by companies admitted to do business 16thin the Stale of Washington and have a rating of A- or better in the most recently published edition of Best's Reports. Any exception shall be revic,ved and approved, at the State's sole discretion, in advance by the Risk -Manager for the Department ofNaturnl Resources. hf an insurer Is not admined, ail insurmmnce polices and procedures for issuing the Insurance policies must comply with Chapter 48.15 RCW and Chapter 284-15 WAC. The State of Washington, Department of Natuml Resources, its elected and appoinicd officials, opents and employees and Licensor shall be named as addhional insureds on all general liebiliry, excess, and umbrella insuruice policies. Before using any said rights granted herein, Licensee shall famish Licensor and State with a certificates) of insurance, exetuted by a duly authorized representative ofcoch insurer, showing compliance with the insurance requiremews specified above. Cenifieate(s) must refercnce the Stoic's Land Use License number. Licensoratnd State shall be provided written notice before cancellation or nonrenewal ofany insurarim referred to herein, as prescribed in statute (Chapter48.18 RCW or Chapter 49.15 RCW). Limmee shall include alt coamclors, sub-contractorsand other Petmitiersas insureds under all required insurance policies, or shall fumish separate certificates of insurance and endorsements for each. Contractors and sub -contractors must comply with all insurance requirements staled herein. Failure of contractors, sub-centrctors to comply with Insurance requirements does not limit Liccnsre's liability or responsibility. All imur nce provided in compliance with this License shall be primary as to any other insumncc orself-insurance programs afforded to or maintained by Stars. 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 Wal be adequate to protect Licensee and such coverageand limits shall not limit Licensee's liability under the indemnities and reimbur-tzmt nts grartled to Licensor and State in this License. if Licensee is self insured, evidence of its status as a self-insured entity shall be provided to LicemsorAnd State. lfrcqucsted by State, Licensee must describe its financial condition and the self insumd funding mechanism. Land Use Litems - 7 29. Indemnification. A. Licensee shall indemnify, defend, and hold harmless Licensor, its employees, ofiicum and agents from any and ail liability and damages (including, but limited to personal injury and damage to land and other noiural resources) expenses, causes of action, suits, claims, costs, fees (including, but limited to attorneys` fees), penalties, or judgments, of any nntumx whatsoever, arising out of the use or occupation of the Premises by Licensee, its Permittees, contractors, concessionaires, agents, employees, guests, invitees, customers or affiliiales, except as may arise out of the negligent or willful act of Licensor, or its officers, members, employees, or agents, B. Licensee shelf Indemnify, defend (with counsel acceptable to State) and hold harmless State, its employees, officers and &vents from any and all liability, damages (including, but not limited to, personal injury and damages to land and other natural resources), expenses, causes ofacdon, suits, claims, costs, ices (including, but not limited to, attorneys' fees), penalties, or judgments, of any mature whatsoever, arising out of lite use or occupation of the Premises by Licensee, its Pcrtrtittecs, eonimetors, concessionaires, agents, employees, guz sts, invitees, customers or afCliates, except as may arise solely out of the willful act of 5taleor5tatc5 elected officials, employees, or agents. To the extent that RCW 4.24.115 applies, Licensee shall not be required to indemnify, defend, and hold Stoic hannlcss from State'$ sole or concurrent negligence. 30. Nonce. Unless otherwise specified herein, any notices required or p--rmitled Lnder this License may bedelivered personally, sent by facsimile machine, emailed with ocknowiedgmcni of receipt, or mailed certified, return receipt requested, to the following addresses or to such other place as the parties hereafter direct. Notice will tie deemed given upon delivery or upon confirmation of facsimile, whichever is applicabie. 12 icenset: Mr. Dave Zabell, City Manager City of Pasco 525 North T'J Avenue Pasco WA 99301 (509) 515-3404 za baAIdQtsacca•wa,Aov rtf. !fly" Mr. David Slack. CEO Pasco Road 68, LLC 107 South Howard Street, Suite 600 Spokane WA 99701 (509) 623-1000 Land Use Urmse - To Sim : Southwest Region Department ofNatuml Resources 713 Bower` Rand Ellensburg- WA 98926 (509)935-8310 Snuihmi.region@dnr.tva.gov 31. Temporo ry Markers. Unless oihenvise agreed upon, State shall not be responsible for preserving any temporary markers such as stakes, flags, paint, tags or signs used by Licensee for purposes consistent with this License ("Temporary Mn&crs"). State shall take reasonable precautions to avoid dernage to Temporary ?Markers placed by Licensee, but State is not liable for third party damage 10 s..mc. Prior to placing Temporary Maskers on Premises, Licensee shall inform State in writing oflocation and provide a gentrai description of such Temporary Markers. Licensee shall remove al l Temporary Markers from Premises upon completion oropemiian or termination of License, whichever occurs rust. 32. lntmrated Aitreemcnt- Modifiolion. Tl»s License, including appendices and attachments, constitutes the entire agreement and understanding of the parties with respect to the subject matter orthe License and supersedes all prior negotiations and repttwniations. `Chis License may not be modified except in writing signed by the parties. The panics agree to execute: --.-iy additional documents reasonably necessary to effectuate the provisions and purposes ofthis License. 33. Scvcrabilitg•. If any provision of this License is held to be invalid or untnforceeblc, this provision shall not affett or invalidate the remainder of this Licenss, and to this end, the pro%isions of this License arc declared to be severable, t any such invalidity becomes Down or apparent to the parties, the ponies agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be consistent with the Intent or this License. 34, Idon-waiver. The waiver by Licensor and Stoic ormny breach or the failure of State to require strict compliance %vith any term herein shall not be deemed a waiver ofany subsequent breach. 33. As lleornerit. This License, and any of the rights granted herein, shall not be assigned. 36. C;onstructioa. The terms ofthisLicense shall begiven their ordinary meaning unless defined herein and shall not be presumed construed against the drafter. 37. Exhibits. All exhibits referred to in this License are deemed to be incorporated in this License in their entirety. Land Use Llrrnrt • 9 38. I-leadines. the beadings in this LicenEz are for convenience only and are tint intended to, and shall not be construed to, limit, enlarge, oraf ect the scope nr intent of this License nor the meaning of any of its provisions. 39. Survival. All obligations of Licensee to he performcd prior to lite "piratinn or earlier terminntion shall not cease upon the termination or expiration of this License, And shall continue ns obligations until fully performed. All clauses ofthis License which require performance beyond the termination or expiration date small survive the termination or expiration date of this License. 40. Counternnris. This License may be executed in one or more counterparts, each of which shall be deemed an original, and all or which counterparts together shall constitute ilia same instrument which may be sufficiently evidenced by one counterpart. Execution of this License at different times and places by the parties shall not uffecl its validityso long as both parties execute a counterpart of this License. CM' OF PASCO: B — Dated: �S`- r —! to-� avc Znb ) ,%� Manager PASCO t8 LLC; B . Dated:' �d Black, CEO Anprovnl ror this Assienment/Suhlease s'rATE OF WASHINGTON DEPART NT O NA L RESOMCES 8y: L a----- arin Cramer. Division tvtanagcr Lind Use t_tccnx- 10 Dated: S !g EXHIBIT A Tax Parcel No. 117500118 Parcel 4 of Binding Site Plan 2006-04 THAT PORTION OF THE NORTHEAST QUARTER OF SECTION 16, TOWNSHIP 9 NORTH, RANGE 29 EAST. W. hi., PASCO, FRANKLIN COUNTY. WASHINGTON. DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTH WME CORNER OF SAID NORTHEAST QUARTER OF SECTION 16; THENCE N 89113'46" E ALONG THE 14ORT14 LINE- OF SAID NORTHEAST QUARTER FOR A DISTANCE OF 168.51 FEET; THENCE S OD°44' I8" E FOR A DISTANCE OF 40.00 FEET TO THE TRUE PONT OF BEGINNING; THENCE N 89"15'46" E PARALLEL. WITH AND 40.00 FEET SOUTHERLY OF THE- NORTH LINE OF SAID NORTHEAST QUARTER, AS MEASURED AT RIGHT ANGLES TO SAIA NORTH LNE, FOR A DISTANCE OF sum FEET; THENCE S 00°4S' 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 356.00 FEET; THENCE SOUTHERLY AND EASTERLY ALONG SAID CURVE FOR AN ARC LENGTH DISTANCE OF 64.71 FLET THROUGH A CENT IAL ANGLE OF 14028'36"; THENCE S 15014'10" E FOR A DISTANCE OF 56.74 MET; THENCE 5 00°45.00" 1: FOR A DISTANCE OF 754.37 FEET TO INTERSECT THE NORTHERLY RIG}Ti 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; T14ENCE WF..STERLY 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'; THEVCE N 70°32'38" W ALONG SAID :NORTHERLY RIGHT OF WAY LINE FOR A DISTANCE OF 159.59 FEET: THENCE N 67055'00" W ALONG SAID NORTHERLY RIGHT OF WAY LINE FOR A DISTANCE OF 269.93 FEET; THENCE N 00"44'19" W FOR A DISTANCE OF 786.01 FEET TO THE TRUE POINT OF BEGIMING. Lend Uss U=nsr- I I I . i:11 li .44 . i:11 li Janette Romero E-mail showing Dave Black's Consent to extend his Land use License Agreement (EXHIBIT B). From: Steve Worley Sent: Monday, April 27, 2020 8:47 AM To: Janette Romero Subject: FW: DNR Lease for 2020 ONLY FYI We are good to go with routing the agreement to Dave for signature. Steve M. Worley, PE Public Works Director From: Dan Ford <fordd@pasco-wa.gov> Sent: Monday, April 27, 2020 8:30 AM To: Steve Worley <worleys@pasco-wa.gov> Cc: Rick White <WHITER@pasco-wa.gov> Subject: FW: DNR Lease for 2020 ONLY FYI Please see _ below. Dan Ford, P.E. City Engineer "Engineering isn't about perfect solutions, it's about doing the best you can witli limited resources" PO Box 293.525 N. Third Ave. + Pasco, WA 99301 P: (509) 545-3444 www.pasccrwa.gov • f(_rdd((*pasco-wa. 77¢is email and your response are considered a public record and will be subject to disclosure under Washington's Public Records Disclosure Act. From: Dave Black <dblack@naiblack.com> Sent: Friday, April 24, 2020 4:43 PM To: Dan Ford <fordd@pa5cp-wa.eov> Subject: Re: DNR Lease for 2020 ONLY This email has originated from outside of the City of Pasco. Do not click links or open attachments unless you recognize the sender and know the content is safe. Explain to me one more time why Pasco is doing this? To preserve water rights? Is there a well out there? Sent from my Wad On Apr 23, 2020, at 9:41 AM, Dan Ford <fordd asco-wa. ov> wrote: Hi Dave, Just wanted to make sure you received this and I typed the right email address? Thank you. Dan Ford, P.E. C1hj Engineer EXHIBIT C Plan of Operations Access Plan Access for work on this site will be from Burden Boulevard at Road 76 intersection. No other access is available. Noxious Weed Prevention and Control Kidwell Farms will use certified weed free seed for this effort. Kidwell Farms will also spray and control for noxious weeds. Erosion Control Customary measures will be implemented associated with standard farming operations to ensure that excess water will not induce on site erosion nor impact surrounding properties and; or Right -of -Ways. Work to be Performed Tom and Todd Kidwell, Kidwell Farms Inc., will begin farming operations to this parcel in April of 2020, Tom Kidwell 2420 West Court Street Pasco, WA 99301 mtllrcl:rd��cllru.msn.c.om (509) 521-8400 Todd Kidwell 811 Pasco Kahlotus Road Pasco, WA 99301 tskkidwell<ci L,marl.cotn (509) 727-1374 Kidwell Farms intend to utilize pivot style irrigation system(s) for this area as indicated in Figure A. The cost associated with the mobilization of the pivots, hardware, as well as that related to the rent and use of that equipment, seed. fertilizer, maintenance, trucking etc... for 2020 is identified in Section 10 of Farming Agreement. Fire Prevention Closures and Restrictions Customary measures will be implemented associated with standard farming operations to ensure adequate fire prevention andtor control. EXHEEtT i KInwF-i np In. r_n ACORN' CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)05/12/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 509-234-2421 Ed Poe Agency LLC PO Drawer C ACT PHONE509-234-2421 FAX 509-234-2405 (A/C, No, Ext): (A/C, No IF s . Connell, WA 99326 INSURER(S) AFFORDING COVERAGE NAIL # 02/02/2021 INSURER A: Mutual of Enumclaw 14761 DAMAG ESO . occu e $ 100,000 I SUR Farms Inc INSURER B : INSURER C : Idwe 811 Pasco-Kahlotus Rd Pasco, WA 99301 GENERAL AGGREGATE $ '000'000 PRODUCTS -COMP/OP AGG $ 2,000,000 INSURER D INSURER E: AUTOMOBILE LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS VyN AUTOS ONLY AUOTOS ONLY INSURER F : f%n%/00A/^-CC f`COTICI'"ATC til RARCI?• RFVICI(1NI NI IMRFR- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE DDL UBR POLICY NUMBER POLICY EFF POLICY EXPLTIR LIMITS A COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR FPP0007874 07 02/02/2020 02/02/2021 EACH OCCURRENCE $ 1'000'000 DAMAG ESO . occu e $ 100,000 MED EXP (Any one on $ 10'000 PERSONAL & ADV INJURY $ 1'000'060 GENT AGGREGATE LIMIT APPLIES PER: POLICY El jELQT F] LOC OTHER: GENERAL AGGREGATE $ '000'000 PRODUCTS -COMP/OP AGG $ 2,000,000 AUTOMOBILE LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS VyN AUTOS ONLY AUOTOS ONLY / C a egIlcl n SINGLE LIMIT $ BODILY INJURY Perperson) $ BODILY INJURY Per accident $ PPeOr ac gt AMAGE $ UMBRELLA LIAB EXCESS LIAB HOCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DED RETENTION $ WORKERS COMPENSATION EMPLOYERS' LIABILITY Y / N ANY PROFFICE0 M E EXCLUDED? ECUTIVE ❑ (MMandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below N / A PEAR E ORH- AND E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISrA E - POLICY LIMIT $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached U more space is required) Evidence of liability w/regards to location #2 (Sec 16, Twp 9, Rge 20) Pasco, WA 99301 and includes a Valley 4 -tower circle valued at $40,600. City of Pasco 525 N. Third Ave Pasco, WA 99301 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD