HomeMy WebLinkAboutAgreements/Contracts - BOCC (003).H L RY S,, FRANZ
COMMISSIONER OF PUBLIC LANDS
SPECIAL USE LEASE
Lease No. 60-B69048.
BY THIS LEASE ("Agreement"), the. STATE OF WASHINGTON, acting by' and through the
Department of Natural Resources, ("State") leases to GRANT COUNTY, a Government Agency,
("Lessee") the premises in Grant County, Washington, the legal description of which is set forth
in Exhibit A, upon the terms and conditions- and for the consideration enumerated herein. Said
premises and rights leased hereby are referred to as the "Premises".
SECTION 1 OCCUPANCY
1.01 Lease Tern,.. This Agreement shall commence on June 1, 2022 ("Commencement
Date") and expire on May 31, 2037.
1.02 No Warranty of Quiet Enjoyment. State makes no warranty of quiet enjoyment of the
Premises.
1.03 Condition of Premises. Lessee has had an opportunity to inspect Premises and enters
into this Agreement solely in reliance on Lessee's own.examination and not by reason of any
representation by State. Premises are accepted in its present condition "AS ISS'. No reliance
shall be placed on any opinion, material, or information provided by or through State, and Lessee
does so at its own risk, cost and expense.
1.04 Third Party Interests. This lease is subject to all valid interests of third parties noted in
the records of Grant County and on file with the Department of Natural Resources in Olympia,
Washington.
Special Use Lease 1 of 26 Lease No. 60-B69048
SECTION 2 USE OF PREMISES
2.01 Permitted Use. For this Agreement, only the following uses are permitted:
Permitted Use
Public Outdoor Recreation
Acres
570
In the event the Lessee desires a change in acreage or use, authorization must be obtained in
advance and in writing from the State. Approval may be conditioned upon adjustment of the
payment in accordance with changes in .acreage or use.
SECTION- 3 PAYMENT
3.01 Rent. In lieu of rent, the Lessee agrees to patrol the property to ensure that property is
being used as permitted by this Lease. The Lessee shall not pay any annual rent for the use of the
Premises, so long as these services are provided.
SECTION 4. RESERVATIONS
4..01 ' Compliance. The State shall have access to the Premises at all reasonable tunes to
determine and secure compliance with this Agreement. Failure to inspect or enforce compliance
shall not be construed as a waiver of the State's right to declare a breach, nor relieve Lessee of
any liability to the State for any breach of the terms, conditions, or requirements of this
Agreement.
4.02 Compatible Uses. State reserves for itself, its successors and assigns, the right at all
times for any purpose to cross and re -cross the Premises at any place or grade, to grant
easements/licenses over or leases to the Premises, to sell, or otherwise dispose of minerals, coal,
oil., timber, gas, or other valuable materials from the Premises insofar as the State's activities on
the Premises and any grant. of rights the State makes to any person or entity shall not
unreasonably interfere with the activities permitted hereunder.
4.03 Non -Default Termination. State reserves the right to terminate this Agreement upon 360
number days' written notice in the event the State includes the Premises in a -plan for higher and
better use, land exchange or sale.
Special Use Lease 2 of 26 Lease No. 60-B69048
SECTION 5 SPECIAL RESTRICTONS
5.01 Permits and Conformance with Laws.
(a) Lessee shall obtain all building permits and other required permits, licenses,
permissions, consents, and approvals from governmental agencies or thirdp arties in
connection with this Agreement and Lessee's permitted use including construction of any
improvements, changes, alterations, additions, repairs, maintenance to or replacement of
the Premises, or for the conduct of any business upon the Premises at the sole cost and
expense of Lessee. Copies of such permits, licenses, permissions, consents, and approvals
shall be supplied to State on request.
(b) Lessee shall conform to all applicable laws, regulations, permits, orders, or
requirements of any public authority affecting the Premises and use, and shall correct at
the Lessee's own cost and expense any failure of compliance created through the Lessee's
fault or by reason of the Lessee's use. In no event shall Lessee undertake or suffer any
activity to be conducted upon the Premises which constitutes a nuisance or which is a
threat to the health or welfare of the general public.
(c) Lessee shall cause all work on the Premises and all business conducted thereon.
during the term to be performed in accordance with all applicable laws and all directions
and regulations of all governmental agencies and the representatives of such agencies
having jurisdiction.
5.02 Other Restrictions on Use.
(a). Lessee shall cut no State timber or remove State-owned valuable material, without
prior written consent of the State. Prior to State's authorization for the cutting of timber,
or removal of valuable material, the Lessee must pay to the State the fair market value of
the timber or valuable material, as determined by the State.
(b). Lessee shall take all reasonable .precautions to protect the land and improvements
on the Premises from fire, make every reasonable effort to report and suppress such fires
as may affect the Premises, and shall be subject to applicable fire laws affecting the
Premises..
(c) Lessee shall prevent accumulation of equipment parts or "bone yards" on the
Premises.
(d) This Agreement does not convey rights to media uses, communication sites, or
any use on the Premises other than those expressly stated in this Agreement.
Special Use Lease 3 of 26 Lease No. 60-B69048
SECTION 6 UTILITIES, TAXES, LIENS
6.01 Utilities and Maintenance. During the term of this Agreement., Lessee shall pay all
expenses incurred by Lessee in the use, enj oyment, and operation of the Premises, including, but
not limited to, utility charges and all costs of maintaining and repairing the Premises and all
improvements thereon whether now existing or hereafter installed. Lessee shall indemnify and
hold the State harmless against any loss, liability, or expense resulting from any failure of Lessee
to pay all such charges when due.
6.02 Taxes and Assessments.
(a) Lessee shall pay during the term of this Agreement all taxes and other
governmental charges of any kind applicable or attributable to the installation of Lessee
owned improvements on the Premises, Lessee's leasehold interest, and Lessee's use and
enjoyment.
(b) Lessee shall pay its prorated share of all assessments that are legally required. to
be paid now or may be charged during the Agreement term to the Premises or Lessee
owned improvements. Lessee shall not cause or suffer the imposition of any assessment
upon the Premises without the prior written consent of State. In the event any new
assessment is proposed which affects the Premises, Lessee shall immediately notify State
of such proposal after Lessee has knowledge or receives notice thereof. Any assessment
upon the Premises shall be made ' in compliance with all applicable, statutes, including, but
not limited to, Chapter 79.44 RCW.
6.03 Lessee Liens. Lessee shall not -suffer or permit any lien to be filed against the State's
interest in the Premises, or improvements thereon by reason of work, labor, or services
performed thereon or materials supplied to, by or through the Lessee. If any such lien is filed,
Lessee shall cause the same to be discharged of record within thirty (30) days after the date of
filing or creation of such lien unless other arrangements are authorized in writing by the State in
advance. Lesseeshall indemnify the State for any costs, damages or expenses (including
attorneys' fees and courts' costs) incurred as a result of such liens or in obtaining their discharge
whether such costs, damages or expenses. were incurred prior or subsequent to termination or
cancellation of this Agreement.
SECTION 7 LESSEES INDEMNITY; INSURANCE REQUIREMENTS
7.01 Indemnity. Lessee releases and shall indemnify and defend (with counsel acceptable to
State) State, its employees, officers, and agents from and against any and all claims arising out of
the use, occupation or control of the Premises by Lessee, its agents, and employees.
Special Use Lease 4 of 26 Lease No. 60-B69048
A "claim" as used in this subsection means any claim of any nature whatsoever for penalties,
financial loss, damages (including but not limited to bodily injury, sickness, disease or death, or
injury to or destruction of property, land and other natural resources including the loss of use
thereof), costs or expenses (including but not limited to attorney's fees), whether or not resulting
in a suit or action or reduced to judgment. This release and the obligation to indemnify shall not
be- eliminated or reduced by the concurrent negligence of the State, its officials, employees, or
agents, except as provided in this subsection. To the extent that RCW 4.24.115 applies, Lessee
shall not be required to indemnify State from State's sole or concurrent negligence. Lessee
waives its immunity under Title 51 to the extent it is required to indemnify the State herein.
7.02 Insurance Requirements. Lessee shall, at all times during the term of this contract at its
cost and expense, buy and maintain insurance of the types and amounts listed below. Failure to
buy and maintain the required insurance may result in the termination of the contract at State's
option.
All insurance and surety bonds should be issued by companies admitted to do business within the
State of Washington and have a rating of. A-, Class VII or better in the most recentlypublished
edition of Best's Reports. Any exception shall be reviewed and approved by the department's
risk manager before the contract is accepted. If an insurer is not admitted, all insuranceolicies
p
and procedures for issuing the insurance policies must comply with Chapter 48.15 RCW and
284-15 WAC.
State shall be provided written notice before cancellation' non -renewal of any insurance
referred to therein, in accord with the following specifications:
1. Insurers subject to Chapter 48.18 RCW (admitted and regulated by the Insurance
Commissioner): The insurer shall give the State 45 days advance notice of
cancellation or non -renewal. If cancellation is due to non-payment of premium,
the State shall be given ten (10) days advance notice of cancellation.
2. Insurers subject to Chapter 48.15 RCW (surplus lines): The State shall be given
twenty (20) days advance notice of cancellation. If cancellation is due to non-
payment ofpremium, the State shall be given ten (10) days advance notice of
cancellation.
Before starting work, Lessee shall furnish with a certificate(s) of insurance, executed by a duly
authorized representative of each insurer, showing compliance with the insurance requirements
specified in the contract and, if requested, copies of polices to State. The certificate of insurance
shall reference the State of Washington, Department of Natural Resources, and the lease number.
Lessee shall include all subcontractors as insured under all required insurance policies, -.or shall
furnish separate certificates of insurance and endorsements for each subcontractor.
Subcontractor(s) must comply fully with all insurance requirements stated herein. Failure of
subcontractors) to comply with insurance requirements does not limit Lessee's liability or
responsibility.
Special Use Lease 5 of 26 Lease No. 60-B69048
The State, its elected and appointed officials, agents and employees shall be named as an
additional insured on all general liability, excess, umbrella, and property insurance policies.
All insurance provided in compliance with this contract 'shall be primary as to any other
insurance or self-insurance programs afforded to or maintained by State.
Lessee 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 contract. All
insurance policies must expressly waive any right of subrogation by the insurance company
against the State and the State's officials, employees, and agents.
If Lessee is self-insured, evidence of its status as a self-insured entity shall be provided to State.
If requested by State,. Lessee must describe its financial condition and the self-insured funding
mechanism.
By requiring insurance herein, State does not represent that coverage and limits will be adequate
to protect Lessee, and such coverage and limits shall not limit Lessee's liability under the
indemnities and reimbursements granted to State in this contract.
The limits of insurance,. which may be increased by State, as deemed necessary, shall not be less
than as follows:
Commercial General Liability (CGL) Insurance. Lessee shall maintain general
liability (CGL) insurance covering claims for bodily injury',personal injury, or property damage
arising on the property and/or out of Lessee's operations and, if necessary, commercial umbrella
insurance with a limit of not less than $1,000,000 per each occurrence. If such CGL insurance
contains aggregate limits, the General Aggregate limit shall be at least twice the "each
occurrence" limit. CGL insurance shall have products -completed operations aggregate limit of
at least two times the ."each occurrence" limit.
CGL insurance shall be written on Insurance Services Office (ISO) occurrence form CG 00 01
(or a substitute form providing equivalent coverage). All insurance shall cover liability arising
out of premises, operations, independent contractors, products -completed operations, personal
injury and advertising injury, and liability assumed under an insured contract (including the tort
liability of another party assumed in a business contract),'and contain -separation of insured
(cross liability) condition.
Employer's Liability ("Stopes") Insurance. Lessee shall buy employers liability
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.
Special Use Lease . 6 of 26 Lease No. 60-B69048
Workers' Compensation Coverage. Lessee shall comply with all State of Washington
workers' compensation statutes and regulations. Workers' compensation coverage shall be
provided for all employees of Lessee and employees of any subcontractor or sub -subcontractor.
Coverage shall include bodily injury (including death) by accident or disease, which exists out of
or in connection with the performance of this contract. Except as prohibited by law, Lessee
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.
If Lessee, subcontractor or sub -subcontractor fails to comply with all State of Washington
workers' compensation statutes and regulations and State incurs fines or is required by law to
provide benefits to or obtain coverage for such employees, Lessee shall indemnify State.
Indemnity shall include all fines, payment of benefits to Lessee or subcontractor or sub -
subcontractor employees, or their heirs or legal representatives, and the cost of effecting
coverage on behalf of such employees.
Business Auto Policy (BAP). The Lessee shall maintain business auto liability and, if
necessary, commercial umbrella liability insurance with a limit not less than $1,000,000 per
accident. Such insurance shall cover 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 editions of CA 00 01.
The Lessee waives all rights against the State for,the recovery of damages to the extent they are
covered by business auto liability or commercial umbrella. liability insurance.
Insurance described above shall be written to cover all risks of physical loss except those
specifically excluded in the policy, including loss or damage caused by collapse. Insurance
described above shall cover the entire work at the site including reasonable compensation for
architect's services .and expenses made necessary by an insured loss. Insured property shall
include portions of the work located away from the site but intended for use at the site, and shall
also cover portions of the work in transit. The policy shall include as insured property
scaffolding, falsework, and temporary buildings located at the site. The policy shall cover the
cost of removing debris, including demolition as made legally 'necessary by the operation of any
law, ordinance or regulation.
Any deductible applicable to the insurance bought in compliance with the policy described above
shall be identified in the contract documents and the responsibility for paying the part of any loss
not covered because of application of deductible(s) shall be the responsibility of the Lessee. If
any part of any loss is not covered because of the application of a deductible amount not
identified in the contract documents, Lessee will day such loss. Lessee shall buy, and maintain
2.
boiler and machinery insurance required by contract documents or by law, covering insured
objects during installation and until final acceptance by State.
Special Use Lease 1 7 of 26 Lease No: 60-B69048
If testing is being performed, such insurance shall cover such operations. This insurance shall
name as insureds State, Lessee, and all subcontractors and sub -subcontractors in the work.
SECTION S INTENTIONALLY OMITTED
SECTION 9 WEEDS, HARMFUL SUBSTANCES
9.01 Weed. Control. Lessee shall control weeds on the Premises. Lessee shall be responsible
for, or shall immediately reimburse State for, any weed control cost incurred, as a result of
Lessee's failure to control weeds on said Premises. .
Lessee shall prevent weed infestations by applying management practices which discourage their
establishment or spread. The Lessee shall detect and control the invasion of new weeds. Weeds
will be controlled using appropriate mechanical, biological and chemical treatments that meet the
requirements of Washington State and Federal law.
Lessee shall use Integrated Pest Management (IPM) to control weeds.. This means using a
coordinated decision-making and action process that considers all weed management methods
and strategies, and applies them in an environmentally and economically sound manner to meet
weed management objectives. The elements of integrated pest management for weeds include:
a. Preventing weed problems;
b. Monitoring for the presence of weed species;
C. Establishing the density of the weed population (which maybe zero) that can be
tolerated;
d..' Treating weed problems to reduce their populations below the tolerable threshold,
using strategies that may include biological, cultural, mechanical, and chemical control
methods, and that consider human health, ecological impact, feasibility and cost-
effectiveness;
ost-effectiveness; -and
e. Evaluating the effects and efficacy of weed control treatments.
9.02 Hazardous, Toxic, or Harmful Substances.
(1) Hazardous Substances) are any substance subject to regulation under the
Washington Hazardous Waste Management Act (Ch. 70.105 RCW) and implementing
regulations; and any hazardous substance under the Washington Model Toxics Control
Act (Ch.70.105D RCW) and implementing regulations; and any hazardous substance or
hazardous waste as defined by the Comprehensive Environmental Response,
Special Use Lease 8 of 26 Lease No. 60-B69048
Compensation and Liability Act of 1980 (42 U.S.C. §§ 9602 et seq.) and. implementing
regulations, as these laws are amended from time to time; underground storage tanks,
whether empty, filled, or partially filled with any substance; asbestos; urea formaldehyde
foam insulation; PCBs; and any other substance, waste, material, or chemical- deemed or
defined as hazardous, toxic, a pollutant, contaminant, dangerous or potentially dangerous,
noxious, flamthable, explosive, or radioactive, the removal of which is required or the
manufacture, preparation, production, generation, use, maintenance, treatment, storage,
transfer, handling, or shipment of which is restricted, prohibited, regulated or penalized
by any federal, state, county, municipal or other local governmental statute, regulation,
ordinance, or resolution as these laws are amended from time to time.
(2) Prohibited Activities. Lessee shall not keep on or about Premises any Hazardous
Substances unless both of the following applies:
(a) The Hazardous Substance is necessary to carry out Lessee's permitted use
under this Agreement; and
(b). Lessee fully complies with all federal, state, and local laws, regulations,
statutes, and ordinances now in existence -or as subsequently enacted or
amended pertaining to the use, presence, transportation, or generation of
Hazardous Substances.
(3) Lessee shall immediately assume responsibility for a Hazardous Substance release
(spill) caused by Lessee on or adjoining Premises. Responsibility includes, but is not
limited to the following:
(a) Immediately notify all necessary emergency response agencies, as
required under federal, state, and local laws, regulations, or policies.
(b) Follow emergency response agency notifications and notify State of all
spill releases, and Lessee actions completed for spill reporting, and
Lessee's actions planned or.completed toward spill cleanup as provided in
this Lease for Non -Fire Emergencies. At Lessee's sole expense, conduct
all actions necessary to mitigate the spill release.
(c) other than performing initial emergency response cleanup and
containment actions, obtain approvals in -advance of all site cleanup
actions (e.g., site characterization investigations, feasibility studies, site
cleanup and confirmation sampling, and groundwater monitoring)
g
conducted on Premises, in coordination with regulatory agencies and
State.'
(d) Be familiar with all necessary Hazardous Substance spill release
notification and response mitigation requirements in advance of
conducting Lessee operations on Premises.
Special Use Lease 9 of 26 Lease No. 60-B69048
(4) Lessee shah immediately notify State when Lessee has actual knowledge of any
of the following:
(a) All failures to comply with any federal, state, or local law, regulation, or
ordinance, as now enacted or as subsequently enacted- or amended with
respect to the use, presence,- transportation, or generation of Hazardous
Substances in, on, about, or adjacent to Premises;
(b) All inspections of Premises by, or any correspondence, orders, citations, or
notifications from, any, regulatory entity concerning Hazardous Substances
affecting Premises;
(c) 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 party
concerning the use, presence, transportation, or generation of Hazardous
Substances in, on, about, or adjacent to Premises;
(d) on request, Lessee shall provide copies to State of any and all
correspondence, pleadings, and/or reports received by or required of
Lessee or issued or written by Lessee or on Lessee's behalf with.respect to
the use, presence, transportation, or generation of Hazardous Substances
in, on, about, or adjacent to Premises.
(5) Lessee's Indemnity. Lessee shall be fullyand completely liable to State, and, to
the extent permitted by law,' shall indemnify, defend (with counsel acceptable to State,
which consent shall not be unreasonably withheld), and save harmless State and its
employees, officers, and agents _from any and all damages, costs, fees (including
attorneys' fees and costs), penalties, and oversight costs arising from Lessee's or
Permittees' use, disposal, transportation, generation, and/or sale of Hazardous Substances
and for any breach of this Section, except to the extent (i) there was a pre-existing
condition and contamination on Premises and/or State-owned Improvements, or (ii)
caused by (1) State, its employees, officers or agents, (2) another State tenant, its
employees or agents, or (3) a third party. Notwithstanding any other provision of this
Lease to the contrary, Lessee shall not be liable for any claims, damages, costs, fees, or
penalties arising out of any contamination that may exist on Premises, and State-owned
Improvements prior to Lessee's use or occupancy thereof pursuant to this Lease.
(6) State agrees that they will not, and will not permit any third party, to place,
dispose of, or store any Hazardous Substance on State Land in violation of applicable
laws.
Special Use Lease 10 of 26 Lease No. 60-B69048
SECTION 10 ASSIGNMENTS
10.01 Assignment. Lessee shall not hypothecate, mortgage, assign, sublease, transfer, or
otherwise alienate this Agreement ("Assignment"), or any interest, without the prior written
consent of State, which consent shall not be unreasonably withheld. In granting any such consent
under this Clause State shall be entitled to consider, among other items, the proposed assignee's,
sublessee's or transferee's financial condition, business reputation, business, and such other
factors as may reasonably bear upon the suitability of the assignee, sublessee, or transferee as
lessee of the Premises. If Lessee is a corporation, partnership, or other association, (1) the
transfer of more than fifty percent (50%) of the ownership interest in such entity, or (2) the sale
of all or substantially all of the assets of Lessee shall be deemed to constitute an "assignment" of
this Agreement which .requires consent of State. The consent of State to any one assignment
shall not constitute a waiver of State's right to consent to subsequent assignments, nor shall
. q g
consent of State to any one assignment relieve any party previously liable as Lessee from any
obligations under this Agreement, who shall remain joint and severally liable as primary obligor
and not as surety. The acceptance by State of the payment of rent following an assignment shall
not constitute consent to any assignment and State's consent shall be evidenced only in writing.
The State may require reimbursement for any additional administrative costs resulting from the
assignment.
10.02 Name Change. If during the term of this Agreement Lessee changes its name, Lessee
shall. provide State with documentation legally supporting the name change within sixty
days of the effective date of the change. Lessee may contact State's Southeast Region office in
Ellensburg Washington for a list of acceptable documentation..
SECTION 11 IMPROVEMENTS
11.01 Authorized Improvements. No improvement shall be laced on the Premises without
.p p
the prior written consent of -the State. Consent may be granted through this Agreement resulting
in the State's approval of the authorized improvements listed herein as Exhibit B, or by written
Letter of Authorization issued by the State.
11.02 Plan Approval. The plans or specifications for the construction of the authorized
improvements listed on Exhibit B or authorized by Letter of Authorization issued by State, and
for such changes or alterations, including amendments of such plans or specifications, shall be
submitted to State for its approval.
11.03 Ownership of Improvements. During the Term of this Agreement, the improvements
constructed by Lessee, including without limitation all additions, alterations and improvement s*
thereto or replacements thereof and all appurtenant fixtures, machinery and equipment installed
therein, shall be the property of Lessee.
Special Use Lease 11 of 26 Lease No. 60-B69048
Throughout the term of this Agreement, Lessee shall not permit any claim of lien made by any
mechanic, materialman, laborer, or other similar liens to stand against the Premises for work or
labor done, services performed, or materials used or furnished to be used in or about the
Premises for or in connection with any construction, improvements or maintenance or repair
thereon made or permitted to be made by Lessee, its agents, or sublessees. Any liens,
encumbrances or claims of third parties with respect to any of the foregoing, shall be expressly
subordinate and subject to the rights of State under this Agreement.
11.04 Condition at End of Lease. Upon vacating the Premises on the termination date, Lessee
shall leave the Premises in the state of repair and cleanliness required to be maintained by Lessee
during the Term of this Agreement and shall peaceably surrender the same to State.
11.05 Disposition of Lessee -Owned Improvements at End of Lease. Upon expiration or
earlier non -default termination of this Lease and as provided by RCW 79.13.050, State may
require that Lessee perform one of the following options regarding Lessee -owned improvements
remaining on State land;
(a) Lessee shall remove all Lessee -owned improvements prior to the Termination
Date.
(b) Lessee -owned improvements remaining on the Premises. on the Termination Date
shall become State-owned Improvements without payment by State. If State
chooses to remove Lessee -owned improvements, Lessee shall pay State's
reasonable costs.
(c) If Lessee re -leases the Premises, State may allow Lessee -owned improvements to
continue as Lessee -owned improvements under the new lease.
State shall notify Lessee in writing and no less than forty-five .(45) days prior to termination of
this Lease, of State's determination regarding the disposition of Lessee -owned improvements.
11.06 Construction ]gond.. A construction, bond, certificate of deposit assignment, or letter of
credit or lender's guaranty of completion may be required by State to assure completion of
construction or development of any improvements costing in excess of $2,500. The construction
bond, certificate of deposit, or letter of credit or lenders guaranty of completion applies to all
construction done by Lessee and occurring at any time during the term of the Agreement.
11.07 Hold Harmless. Lessee shall indemnify, defend and hold harmless State and the
Premises from and against all claims and liabilities arising by virtue of or relating to construction
of the authorized improvements or repairs made at any time to the authorized improvements
(including repairs, restoration and rebuilding). Lessee shall regularly and timely pay any and all
amounts properly payable to third parties with respect to such work and will maintain its books
and records in the State of Washington, with respect to all aspects of such work and materials
therefore, and will make them available for inspection by State or its representatives as
requested.
Special Use Lease 12 of 26 Lease No. 60-B69048
11.08 Permits; Compliance with Codes. Lessee shall cause all work on the Premises during
the Term to be performed in accordance with all applicable laws and all directions and
regulations of all governmental agencies and the representatives of such agencies having
jurisdiction. Lessee is responsible, at Lessee's sole cost and expense, to cause the authorized
improvements and the Premises to comply with all applicable governmental laws, statutes, rules,
regulations and/or ordinances that apply to the Premises during the Agreement Term, whether
now in effect, or hereinafter adopted or enacted.
11.09 State's -Repairs. State shall not be required or obligated to make any changes,
alterations, additions, improvements, or repairs in, on, or about the Premises, or any part thereof,
during the term of this Agreement.
11.10 Lessee's. Repairs, Alteration, and Maintenance. Lessee shall, at its sole cost and
expense, keep and maintain the Premises and all improvements " thereon and all facilities
appurtenant (regardless of ownership) in good order and repair and safe condition for the safe
conduct of any activities or enterprises conducted on the Premises pursuant to this Agreement,
and keep and maintain the whole of the premise, including all improvements in a clean, sanitary
and attractive condition.
SECTI®N 12 ROADS
12.01 Access to Premises.
No Access. State has; no legal access to the Premises. Lessee is solely responsible for
obtaining legal access to Premises. Such access must contain a provision that- entitles
State to use the access as a licensee to the extent necessary to administer this Agreement.
SECTION 13 DEFAULT AND REMEDIES
1101 Default. In the event of any material breach of .any provision of this Agreement by
Lessee, the breach, after expiration of any grace period as provided in this subsection, shall be
deemed a default entitling State to _cancel this Agreement and seek any other remedies set forth
in this Agreement or otherwise available at law or equity. State shall deliver to Lessee notice of
the breach and a demand that the same be remedied immediately. Lessee shall not be in default if
the breach pertains to the payment of money and Lessee cures the breach within thirty (30) days
Y
of receipt of the notice, or if the breach pertains to a matter other than the payment of any monies
due under this agreement, Lessee shall after receipt of the notice promptly commence to cure the
breach and shall cure the breach within forty-five (45) days after receipt of the notice. If such
breach is non -monetary in nature, and, as determined by State, is not reasonably susceptible of
being cured in said forty-five (45) days (provided that the lack of funds, or the failure or refusal
to spend- funds, shall not be an excuse for a failure to cure), Lessee shall commence to cure such
breach within said period and diligently pursue such action with continuity to completion.
Special Use Lease 13 of 26 Lease No. 60-B69048
If Lessee fails to cure a default, all Lessee owned improvements shall at,the option of State, be
removed by Lessee, be removed by State at the cost to Lessee, or become the property of State.
13.02 Reentry. In the event of any default by Lessee, State shall have the right, with or without
canceling the Agreement, to reenter the Premises and remove. all persons and property from
Premises and take whatever actions may be necessary or advisable to relet, protect or preserve
the Premises. Any property so removed may be stored in a public warehouse or other suitable
place or otherwise disposed of in State's discretion at the expense and for the account of Lessee.
State shall not be responsible for any damages or losses suffered by Lessee as a result of such
reentry, removal, storage or other disposition, and no such action shall be construed as an
election. to terminate this Agreement unless a written notice of termination is given to Lessee.
13.03 Termination of Agreements. Whether or not State elects to terminate this Agreement
on account of any default by Lessee and subject to any non -disturbance and attorriment
agreements, if any, State shall have a right to terminate any and all subleases, licenses,
concessions or other arrangement for possession affecting Premises. Alternatively, State, in its
sole discretion, may succeed to Lessee's interest, in such sublease, license, concession or
arrangement, and Lessee shall have no further right to or interest in the rent or other
consideration receivable thereunder.
13.04 Survival. All obligations of Lessee to- be performed prior to the expiration or earlier
termination shall not cease upon the termination or expiration of this Agreement and shall
continue as obligations until fully performed. All clauses of this Agreement that require
performance beyond the termination -or expiration date shall survive the termination or expiration
date of this Agreement. Upon expiration or earlier termination of this Agreement, the rights of
Lessee and of all persons, firms, corporations, and entities claiming under Lessee in and to the
Premises and. all improvements hereon, unless specified otherwise in this Agreement, shall cease.
13.05 State's Right to Cure ]Defaults. If Lessee fails to perform and is in default of any
undertaking or promise contained herein, the State shall have the option, but is not obligated, to
make such performance after giving ten (10) days written notice to the Lessee. The State's costs
and expense to correct Lessee's failure to perform shall be reimbursed by Lessee and shall be
immediately due and payable, together with interest accruing from the date such cost or expense
is incurred.
13.06 Remedies Cumulative. The specified remedies to which the State may resort under the
terms of this Agreement are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which State may lawfully be entitled in case of any breach or
threatened breach by Lessee of any provision of this Agreement.
13.07 Nonwaiver. Waiver by the State of strict performance of any provision of this
Agreement shall not be a waiver of nor prejudice the State's right to require strict performance of
the same provision in the future or of any other provision.
Special Use Lease 14 of 26 Lease No. 60-B69048
The acceptance of performance, rent, or any other sum owing, by State following a breach by the
Lessee of any provision of this Agreement shall not constitute a waiver of any right of the State
with respect to such breach and State shall be deemed to have waived any right hereunder only if
State shall expressly do so in writing.
13.08 Force Majeure. The Lessee's failure to comply with any of the obligations under this
Agreement shall be excused only if due to causes beyond Lessee's control and without the fault
or negligence of the Lessee, including acts of God, acts of the public enemy, acts of any
government, fires, floods, epidemics and strikes.
13.09 Insolvency of Lessee. If 'the Lessee becomes insolvent, a receiver is appointed, or
Lessee's interest is transferred by operation of law by reason of insolvency, the State may
terminate this Agreement at its option. Insolvency as used herein will mean the inability of the
Lessee to meet its monetary obligations under this Agreement as they come due.
SECTION 14 GENERAL PROVISIONS
14.01 Governing Law: This Agreement shall be construed, interpreted and enforced pursuant
to the laws of the State of Washington. Venue shall be in Thurston County. The terms of this
Agreement shall be given their ordinary meaning and shall not be presumed construed in favor of
or against either party hereto.
14.02 No Partnership. The State is not a partner'
or a joint venturer with the Lessee in
connection with the activities conducted and business carried on under this Agreement, and the
State shall have no obligation with respect to the Lessee's debts or other liabilities.
14.03 Lessee's Authority. Persons executing this Agreement. on behalf of Lessee represent
that they are authorized -to do so and represent and warrant that this Agreement is a legal, valid,
and binding obligation on behalf of Lessee, and is enforceable in accordance with its terms.
14.04 State's Authority. This Agreement is entered into by State pursuant to the authority
granted by statute and the Constitution of- the State of 'Washington. The terms and conditions
hereof are subject to such statutory and constitutional provisions as may be now in effect and
such provisions which do not impair the contractual rights of Lessee under this Agreement which
may lawfully be enacted subsequent to the date of this Agreement.
14.05 Preservation of Markers. Lessee shall not "destroy any land survey corner monuments
and reference points (including but not limited to corner markers, witness objects, or line
markers) without prior written approval from the State, which shall not be unreasonably
withheld. Monuments or reference points that must necessarily be disturbed or destroyed during
construction or operations must be adequately referenced and replaced, at the Lessee's cost,
under the direction of a State of Washington Professional Land Surveyor, in accordance with all
applicable laws of the State of Washington, including but not limited to RCW 58.24, and all
relevant Department of natural Resources regulations.
Special Use Lease 15 of 26 Lease No. 60-B69048
14.06 Condemnation. If all of the Premises are taken by any lawful authority under the power
of eminent domain for a period which will end on or extend beyond the expiration of the term of
this Agreement, this Agreement terminates as of the date the condemner takes possession. If part
of the Premises is taken by any lawful authority under the power of eminent domain for a period
which will end on or extend beyond the expiration of the term of this Agreement, the State or
Lessee may choose to terminate this Agreement as of the date the condemner takes possession.
If either the State or Lessee elects to terminate this Agreement, the rents or other charges. to be
paid by Lessee .will be apportioned by the State and paid by the Lessee to the date of taking. If
neither the State nor Lessee elects to terminate this Agreement, the rent will be reduced in the
same proportion that the value of the portions of the site to be taken bears to the value of the
entire site as of the date condemner takes possession.
If the taking is for a period which will end on or extend beyond the expiration of the term of this
Agreement, Lessee will have no claim or interest in or to any award of damages for the whole or
partial taking of the site, except that the Lessee will be entitled to an amount equal to "the fair
market value of any improvements as of the date of taking (except trade fixtures) considered by
this Agreement to be owned by the Lessee taken by the ,condemner.
If temporary use of all or part of the site is taken by any lawful authority under the power of
eminent- domain for a period ending before the expiration, of the term, this Agreement will
continue in full force and'Lessee will be entitled to receive any award from the condemner for
the use of all or part of the Premises.
The State and Lessee will give to the other immediate written notice of any proceedings with
respect to a condemnation and of any intentions of any authority to exercise the power of
eminent domain..
14.07 Interpretation and Numbering. This Agreement has been submitted to the scrutiny of
all parties hereto and their counsel if desired, and shall be given a fair and reasonable
interpretation in accordance with the words hereof, without consideration or weight given to it
being drafted by any party hereto or their counsel. Section and subsection numbers, headings, or
titles are for. convenience only and are not to be construed to limit or to extend the meaning of
any part of this Agreement.
Section and subsection numbers may be omitted or out of sequence because of inclusion or
exclusion of sections or subsections in this Agreement at the option of the State. Cross references
to sections or subsections that are not included in this Agreement should not be construed as
material references.
14.08 Time of Essence. Time is expressly declared to be of the essence of this Agreement and
each and every covenant of Lessee and the State hereunder.
14.09 Amendments. Any amendments, revisions, supplements, or additions to this Agreement
or the attached exhibits shall be made in writing executed by the parties hereto, and neither State
nor Lessee shall be bound by verbal or implied agreements.
Special Use Lease 16 of 26 Lease No. 60-B69048
Such changes may be made by re-execution of the signature page and the deletion and addition
of the appropriate new effective pages or exhibits governing the change, if any.
14.10 Entire Agreement. This written Agreement or its successor or replacement contains the
entire agreement of the parties hereto with respect to the matters covered hereby, and no other
agreement, statement or promise made by any party hereto, or to any employee, officer or' agent
of any party hereto, which is not contained herein, shall be binding or valid.
14.11 Invalidity. If any term or provision of this Agreement or the application thereof to any
person or circumstance shall to any extent prove to be invalid, unenforceable, void, or illegal, the
remainder of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall be not affected
thereby, and each term and provision of this Agreement shall be valid and. be enforced as written
to the fullest extent permitted by law.
14.12 Attorney Fees. If either party brings suit or submits to an alternative dispute process to
interpret or enforce any provision of the agreement, the prevailing party shall be entitled to
reasonable attorney fees, paralegal fees, accountant .and other expert witness fees and all other
fees, costs and expenses actually incurred in connection therewith, including those incurred on
appeal, in addition to all other amounts provided by law, regardless of whether the matter
proceeds to judgment or is resolved by the defaulting party curing the default.
14.13 Notices and Submittals. Any notice or submittal given under this Agreement shall be
deemed as received when delivered by hand or five (5) days after deposit in the United States
mail with first-class postage affixed, addressed as noted. Changes of address maybe given in
accordance with this section. Any notice or submittal given under this Agreement shall be:
To the State:
Where Agreement provisions require submittal to State office:
Department of Natural Resources
Upland Leasing
PO Box 47014
Olympia, WA 98504-7014
Where Agreement provisions require submittal to the State at its Region office:
Department of Natural Resources
Southeast Region
713 Bowers Road
Ellensburg, WA 98926
To the Lessee at the address affixed with signature or Lessee's last known address.
Special Use Lease 17 of 26 Lease No. 60-B69048