Document Pasco_doc_0603750053

NO. W912EF-1-08-07 DEPARTMENT OF THE ARMY LEASE TO NON-STATE GOVERNMENTAL AGENCIES FOR PUBLIC PARK AND RECREATIONAL PURPOSES Chiawana Park & Columbia River Shoreline McNary Lock and Dam Project Franklin County, Washington Tracts XX-3561, XX-3500, XX-3559, XX-3558, XX-3557, XX-3554, XX-3552, XX-3551, XX-3549, XX-3548, XX-3547, XX-3546, XX-3544, XX-3543, XX-3542, XX-3541, XX-3539, XX-3538, XX-3537, XX-3536, XX-3534, XX-3533, XX-3532, XX-3531, XX-3529 THIS LEASE is made on behalf of the United States and the SECRETARY OF THE ARMY, hereinafter referred to as the Secretary, and THE CITY OF PASCO, WASHINGTON, hereinafter referred to as the Lessee, WITNESSETH: That the Secretary, by authority of Title 16, United States Code, Section 460d, and for the consideration hereinafter set forth, hereby leases to the Lessee, the property identified in tan in Exhibits A1, A2 & B, attached hereto and made a part hereof, hereinafter referred to as the premises, for pUblic park and recreational purposes. The premises are further defined as follows: In portions of the premises where levees are located, the premises shall be from the shoreline of the Columbia River landward to the Non-State Park Lease 1 July 1997 ---PAGE BREAK--- landward toe of the levee. In portions where no levees exist, the premises shall be the entire tract to the landward public property boundary except in Tracts XX-3559, XX-3500 and XX-3561 where the approximate limits of the premises are shown in tan. THIS LEASE is granted subject to the following conditions: 1. TERM Said premises are hereby leased for a term of 25 years, beginning December 1, 2007 and ending November 30, 2032. 2. CONSIDERATION The consideration for this lease is the operation and maintenance of the premises by the Lessee for the benefit of the United States and the general public in accordance with the conditions herein set forth. 3. NOTICES All correspondence and notices to be given pursuant to this lease shall be addressed, if to the Lessee to the City Manager, City of Pasco; 525 N. 3rd Avenue; PO Box 293; Pasco, WA 99301; and if to the United States, to the District Engineer, ATTN: Chief, Real Estate Division, Walla Walla District; 201 N. Third Avenue, Walla Walla, WA 99362-1876 or as may from time to time otherwise be directed by the parties. Notice shall be deemed to have been duly given if and when enclosed in a properly sealed envelope, or wrapper, addressed as aforesaid, and deposited, postage prepaid, in a post office regularly maintained by the United States Postal Service. 4. AUTHORIZED REPRESENTATIVES Except as otherwise specifically provided, any reference herein to "Secretary of the Army," "District Engineer," "said officer" or "Lessor" shall include their duly authorized representatives. Any reference to "Lessee" shall include sublessees, assignees, transferees, concessionaires, and its duly authorized representatives. 5. DEVELOPMENT PLANS The Lessee shall be guided by an annual Plan of Operation and Maintenance (Annual Management Plan or "AMP") in furtherance of the Lessee's implementing Plan of Recreation Development and Management (Development Plan) attached as Exhibit C which shows the facilities and services necessary to meet the current and potential public demand and the management and development activities to be undertaken by the Lessee and any sublessees. No later than January 1 of each year the Lessee will submit the AMP to be mutually agreed on between the Lessee and the District Engineer. Such AMP shall include but is not limited to the following: Non-State Park Lease 2 1 July 1997 ---PAGE BREAK--- a. Plans for management, maintenance and development activities to be undertaken by the Lessee and any sublessees. b. Report of the management, maintenance and development accomplishments of the Lessee for the preceding year. c. Report on any significant modification of policies or procedures which are planned for the following year as well as those implemented in the preceding year. d. Minor modifications to the Development Plan. Major modifications are to be accomplished by amendment to the Plan before proceeding to implement any changes in the development or management of the leased premises. e. Budget of the Lessee for carrying out all activities for the upcoming year. f. Personnel to be used in the management of the leased premises. g. Annual certification that all water and sanitary systems on the premises have been inspected and comply with Federal. state and local standards. Lessee will also provide a statement of compliance with the Rehabilitation Act and the Americans with Disabilities Act, as required in the condition on NON-DISCRIMINATION, noting any deficiencies and providing a schedule for correction. The use and occupation of the premises shall be subject to the general supervision and approval of the District Engineer. During the term of the lease, the District Engineer will notify the Lessee of any updates to the existing project Master Plan affecting the premises and the Lessee may provide comments. 6. STRUCTURES AND EQUIPMENT The Lessee shall have the right, during the term of the lease, to erect such structures and to provide such equipment upon the premises as may be necessary to furnish the facilities and services authorized. Those structures and equipment shall be and remain the property of the Lessee, except as otherwise provided in the Condition on RESTORATION. However, no structures may be erected or altered upon the premises unless and until the type of use. design. and proposed location or alteration thereof shall have been approved in writing by the District Engineer. The District Engineer may reqUire the Lessee, upon the completion of each of the proposed developments to furnish complete "as built" construction plans for all facilities. Non-State Park Lease 3 1 July 1997 ---PAGE BREAK--- 7. APPLICABLE LAWS AND REGULA"nONS a. The Lessee shall comply with all applicable Federal laws and regulations and with all applicable laws, ordinances, and regulations of the state, county, and municipality wherein the premises are located, including, but not limited to, those regarding construction, health, safety, food service, water supply, sanitation, use of pesticides, and licenses or permits to do business. The Lessee shall make and enforce such regulations as are necessary and within its legal authority in exercising the privileges granted in this lease, provided that such regulations are not inconsistent with those issued by the Secretary of the Army or with the provisions of 16 U.S.C. § 460d. b. The Lessee will provide an annual certification that all water and sanitary systems on the premises, have been inspected and comply with Federal, state and local standards. The Lessee will also provide a statement of compliance with the Rehabilitation Act and the Americans with Disabilities Act, as required in the Condition on NON~DISCRIMINATION, noting any deficiencies and providing a schedule for correction. 8. CONDrnON OF PREMISES a. The Lessee acknowledges that it has inspected the premises, knows its condition, and understands that the same is leased without any representations or warranties whatsoever and without obligation on the part of the United States to make any alterations, repairs, or additions thereto. b. As of the date of this lease, an inventory and condition report of all personal property and improvements of the United States included in this lease shall be made by the District Engineer and the Lessee to re'flect the condition of said property and said improvements. A copy of said report is attached hereto as Exhibit D and made a part hereof. Upon the expiration, revocation, or termination of this lease, another inventory and condition report shall be similarly prepared. This report shall constitute the basis for settlement for property damaged or destroyed. Any such property must be either replaced or restored to the condition required by the Condition on PROTEC1"ION OF PROPERTY. 9. FACILITIES AND SERVICES The Lessee shall provide the facilities and services as agreed upon in the Development Plan referred to in the Condition on DEVELOPMENT PLANS either directly or through subleases or concession agreements that have been reviewed and accepted by the District Engineer. These subleases or agreements shall state: that they are granted subject to the provisions of this lease; and that the agreement will not be effective until the third party activities have been approved by the District Engineer. The Lessee will not allow any third party activities with a rental to the Lessee or prices to the public which would give the third party an undue economic advantage or Non-State Park Lease 4 1 July 1997 ---PAGE BREAK--- circumvent the intent of the Development Plan. The rates and prices charged by the Lessee or its sub-lessees or concessionaires shall be reasonable and comparable to rates charged for similar goods and services by others in the area. The use of sub­ lessees and concessionaires will not relieve the Lessee from the primary responsibility for ensuring compliance with all of the terms and conditions of this lease. 10. TRANSFERS, ASSIGNMENTS, SUBLEASES 8. Without prior written approval of the District Engineer, the Lessee shall neither transfer nor assign this lease nor sublet the premises or any part thereof, nor grant any interest, privilege, or license whatsoever in connection with this lease. b. The Lessee will not sponsor or participate in timeshare ownership of any structures, facilities, accommodations, or personal property on the premises. The Lessee will not subdivide nor develop the premises into private residential development. 11. FEES Fees may be charged by the Lessee for the entrance to or use of the premises or any facilities, however, no user fees may be charged by the Lessee or its sub-lessees for use of facilities developed in whole or part with federal funds if a user charge by the Corps of Engineers for the facility would be prohibited under law. 12. ACCOUNTS, RECORDS AND RECEIPTS All monies received by the Lessee from operations conducted on the premises, including, but not limited to, entrance, admission and user fees and rental or other consideration received from its concessionaires, may be utilized by the Lessee for the administration, maintenance, operation and development of the premises. Beginning 5 years from the date of this lease and continuing at 5-year intervals, any such monies not so utilized or programmed for utilization within a reasonable time shall be paid to the District Engineer. The Lessee shall establish and maintain accurate records and accounts and provide an annual statement of receipts and expenditures to the District Engineer. Annual or weekly entrance fees not collected on the Project, which also are honored at other recreational areas operated by the Lessee, are excluded from this requirement. The District Engineer shall have the right to perform audits or to require the Lessee to audit the records and accounts of the Lessee, third party concessionaires and sub-lessees, in accordance with auditing standards and procedures promulgated by the American Institute of Certified Public Accountants or by the state, and furnish the District Engineer with the results of such an audit. 13. PROTECTION OF PROPERTY The Lessee shall be responsible for any damage that may be caused to property of the United States by the activities of the Lessee under this lease and shall exercise Non-State Park Lease 5 1 July 1997 ---PAGE BREAK--- due diligence in the protection of all property located on the premises against fire or damage from any and all other causes. Any property of the United States damaged or destroyed by the Lessee incident to the exercise of the privileges herein granted shall be repaired or replaced by the Lessee to the satisfaction of the District Engineer, or, at the election of the District Engineer, reimbursement may be made therefore by the Lessee in an amount necessary to restore or replace the property to a condition satisfactory to the District Engineer. 14. RIGHT TO ENTER AND FLOOD The right is reserved to the United States, its officers, agents, and employees to enter upon the premises at any time and for any purpose necessary or convenient in connection with Government purposes; to make inspections; to remove timber or other material, except property of the Lessee; to flood the premises; to manipulate the level of the lake or pool in any manner whatsoever; and/or to make any other use of the land as may be necessary in connection with project purposes, and the Lessee shall have no claim for damages on account thereof against the United States or any officer, agent, or employee thereof. 15. LIGHTS, SIGNALS AND NAVIGATION There shall be no unreasonable interference with navigation by the exercise of the priVileges granted by this lease. If the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the Coast Guard or by the District Engineer shall be installed and maintained by and at the expense of the Lessee. 16. INSURANCE a. At the commencement of this lease, the Lessee, unless self-insured, and its sub-lessees and concessionaires at the commencement of operating under the terms of this lease as third parties, shall obtain from a reputable insurance company or companies contracts of liability insurance. The insurance shall provide. an amount not less than that which is prudent, reasonable and consistent with sound business practices, or a minimum combined Single Limit of $1,000,000, whichever is greater, for any number of persons or claims arising from anyone incident with respect to bodily injuries or death resulting therefrom, property damage; or both, suffered or alleged to have been suffered by any person or persons, resulting from the operations of the Lessee, sub-lessees and concessionaires under the terms of this lease. The Lessee shall require its insurance company to furnish to the District Engineer a copy of the policy or policies or, if acceptable to the District Engineer, certificates of insurance evidencing the purchase of such insurance. The minimum amount of liability insurance coverage is subject to revision by the District Engineer every three years or upon renewal or modification of this lease. Non-State Park Lease 6 1 July 1997 ---PAGE BREAK--- b. The insurance policy or policies shall specifically provide protection appropriate for the types of facilities, services and products involved; and shall provide that the District Engineer be given thirty (30) days notice of any cancellation or change in such insurance. c. In the event the Lessee is self-insured, the Lessee shall certify such self­ insurance in writing in the minimum amount specified above to the District Engineer. The Lessee's insurance status shall not eliminate the requirement for its sub-lessees and concessionaires to have insurance from a reputable insurance carrier as set out above. d. The District Engineer may require closure of any or all of the premises during any period for which the Lessee and/or its sub-lessees and concessionaires do not have the required insurance coverage. 17. RESTORA'"ION On or before the expiration of this lease or its termination by the Lessee, the Lessee shall vacate the premises, remove the property of the Lessee, and restore the premises to a condition satisfactory to the District Engineer. If, however, this lease is revoked, the Lessee shall vacate the premises, remove said property therefrom, and restore the premises to the aforesaid condition within such time as the District Engineer may designate. In either event, if the Lessee shall fail or neglect to remove said property and restore the premises, then, at the option of the District Engineer, said property shall either become the property of the United States without compensation therefore, or the District Engineer may cause the property to be removed and no claim for damages against the United States or its officers or agents shall be created by or made on account of such removal and restoration work. The Lessee shall also pay the United States on demand any sum which may be expended by the United States after the expiration, revocation or termination of this lease in restoring the premises. 18. NON-DISCRIMINATION a. The Lessee shall not discriminate against any person or persons or exclude them from participation in the Lessee's operations, programs or activities conducted on the leased premises, because of race, color, religion, sex, age, handicap, or national origin. The Lessee will comply with the Americans with Disabilities Act and attendant Americans with Disabilities Act Accessibility Guidelines (ADAAG) published by the Architectural and Transportation Barriers Compliance Board. b. The Lessee, by acceptance of this lease, is receiving a type of Federal assistance and, therefore, hereby gives assurance that it will comply with the provisions of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000d); the Age Discrimination Act of 1975 (42 U.S.C. § 6102); the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); and all requirements imposed by or pursuant to the Non-State Park Lease 7 1 July 1997 ---PAGE BREAK--- Directive of the Department of Defense (32 CFR Part 195) issued as Department of Defense Directive 5500.11 and 1020.1, and Army Regulation 600-7. This assurance shall be binding on the Lessee, its agents, successors, transferees, sub-lessees and assigns. 19. SUBJECT TO EASEMENTS This lease is subject to all existing easements, easements subsequently granted, and established access routes for roadways and utilities located, or to be located, on the premises, provided that the proposed grant of any new easement or route will be coordinated witl, the Lessee, and easements will not be granted which will, in the opinion of the District Engineer, interfere with developments, present or proposed, by the Lessee. The Lessee will not close any established access routes without written permission of the District Engineer. 20. SUBJECT TO MINERAL INTERESTS This lease is subject to all outstanding mineral interests. As to federally owned mineral interests, it is understood that they may be included in present or future mineral leases issued by the Bureau of Land Management (BLM), which has responsibility for mineral development on Federal lands. The Secretary will provide lease stipulations to BLM for inclusion in such mineral leases that are designed to protect the premises from activities that would interfere with the Lessee's operations or would be contrary to local laws. 21. COMPLIANCE, CLOSURE, REVOCATION AND RELINQUISHMENT a. The Lessee and/or any sub-lessees or licensees are charged at all times with full knowledge of all the limitations and requirements of this lease, and the necessity for correction of deficiencies, and with compliance with reasonable requests by the District Engineer. This lease may be revoked in the event that the Lessee violates any of the terms and conditions and continues and persists in such non­ compliance, or fails to obtain correction of deficiencies by sub-lessees or licensees. The Lessee will be notified of any non-compliance, which notice shall be in writing or shall be confirmed in writing, giving a period of time in which to correct the non­ compliance. Failure to satisfactorily correct any substantial or persistent non­ compliance within the specified time is grounds for closure of all or part of the premises, temporary suspension of operation, or revocation of the lease, after notice in writing of such intent. Future requests by the Lessee to extend the lease, expand the premises, modify authorized activities, or assign the lease shall take into consideration the Lessee's past performance and compliance with the lease terms. b. This lease may be relinquished by the Lessee by giving one year prior written notice to the District Engineer in the manner prescribed in the Condition on NOTICES. Non-State Park Lease 8 1 July 1997 ---PAGE BREAK--- 22. HEALTH AND SAFETY a. The Lessee shall keep the premises in good order and in a clean, sanitary, and safe condition and shall have the primary responsibility for ensuring that any sub­ lessees and concessionaires operate and maintain the premises in such a manner. b. In addition to the rights of revocation for non-compliance, the District Engineer, upon discovery of any hazardous conditions on the premises that presents an immediate threat to health and/or danger to life or property, will so notify the Lessee and will require that the affected part or all of the premises be closed to the public until such condition is corrected and the danger to the public eliminated. If the condition is not corrected within the time specified, the District Engineer will have the option to revoke the lease. The Lessee and its assignees or sub-lessees shall have no claim for damages against the United States, or any officer, agent, or employee thereof on account of action taken pursuant to this condition. 23. PUBLIC USE No attempt shall be made by the Lessee, or any of its sub-lessees or concessionaires, to forbid the full use by the public of the premises and of the water areas of the project, subject, however, to the authority and responsibility of the Lessee to manage the premises and provide safety and security to the visiting public. 24. PROHIBITED USES a. The Lessee shall not permit gambling on the premises. Specifically prohibited is the use of gambling devices, such as slot machines, video gambling machines, or other casino type devices that would detract from the family atmosphere. District Engineers may allow the sale of state lottery tickets, in accordance with state and local laws and regulations, as long as the sale of tickets constitutes a collateral activity, rather than primary activity, of the Lessee. The Lessee shall not install or operate, or permit to be installed or operated thereon, any device which is illegal; or use the premises or permit them to be used for any illegal business or purpose. There shall not be conducted on or permitted upon the premises any activity which would constitute a nuisance. b. As an exception, some games of chance, such as raffles, games and sporting events, may be conducted by nonprofit organizations under special permits issued in conjunction with special events, if permissible by state and local law. Any request to conduct such activities must be submitted in writing to the District Engineer. c. In accordance with state and local laws and regulations, the Lessee may sell, store, or dispense or permit the sale, storage, or dispensing of beer, malt beverages, light wines or other intoxicating beverages on the premises in those facilities where such service is customarily found. Bar facilities will only be permitted if offered in Non-State Park Lease 9 1 July 1997 ---PAGE BREAK--- connection with other approved activities. Advertising of such beverages outside of bUildings is not permitted. Carry out package sales of hard liquor is prohibited. 25. NATURAL RESOURCES The Lessee shall cut no timber, conduct no mining operations, remove no sand, gravel, or kindred substances from the ground, commit no waste of any kind, nor in any manner substantially change the contour or condition of the premises, except as may be authorized under and pursuant to the Development Plan described in the Condition on DEVELOPMENT PLANS herein. The Lessee may salvage fallen or dead timber; however, no commercial use shall be made of such timber. Except for timber salvaged by the Lessee when in the way of construction of irnprovements or other facilities, all sales of forest products will be conducted by the United States and the proceeds therefrom shall not be available to the Lessee under the provisions of this lease. 26. DISPUTES CLAUSE a. Except as provided in the Contract Disputes Act of 1978 (41 U.S.C. § 601­ 613) (the Act), all disputes arising under or relating to this lease shall be resolved under this clause and the provisions of the Act. b. "Claim," as used in this clause, means a written demand or written assertion by the Lessee seeking, as a matter of right, the payment of money in a sum certain, the adjustment of interpretation of lease terms, or other relief arising under or relating to this lease. A claim arising under this lease, unlike a claim relating to the lease, is a claim that can be resolved under a lease clause that provides for the relief sought by the Lessee. However, a written demand or written assertion by the Lessee seeking the payment of money exceeding $100,000 is not a claim under the Act until certi'fied as required by subparagraph c.(2) below. c. A claim by the Lessee shall be made in writing and submitted to the said officer for a written decision. A claim by the Government against the Lessee shall be subject to written decision by the said officer. For Lessee claims exceeding $100,000, the Lessee shall submit with the claim a certification that: The claim is made in good faith; (ii) Supporting data are accurate and complete to the best of the Lessee's knowledge and belief; (iii) and the amount requested accurately reflects the lease adjustment for which the Lessee believes the Government is liable. Non-State Park Lease 10 1 July 1997 ---PAGE BREAK--- If the Lessee is an individual, the certificate shall be executed by that individual. (ii) If the Lessee is not an individual, the certification shall be executed by: A senior company official in charge at the Lessee's location involved; or An officer or general partner of the Lessee having overall responsibility of the conduct of the lessee's affairs. d. For Lessee claims of $100,000 or less, the said officer must, if requested in writing by the Lessee, render a decision within 60 days of the request. For Lessee­ certified claims over $100,000, the said officer must, within 60 days, decide the claim or notify the Lessee of the date by which the decision will be made. e. The said officer's decision shall be final unless the Lessee appeals or files a suit as provided in the Act. f. At the time a claim by the Lessee is submitted to the said officer or a claim by the Government is presented to the Lessee, the parties, by mutual consent, may agree to use alternative means of dispute resolution. When using alternate dispute resolution procedures, any claim, regardless of amount, shall be accompanied by the certificate described in paragraph c.(2) of this clause, and executed in accordance with paragraph c.(3) of this clause. g. The Government shall pay interest on the amount found due and unpaid by the Government from the date the said officer received the claim (properly certified if required), or the date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the said officer receives the claim and then at the rate applicable for each 6­ month period as fixed by the Treasury Secretary during the pendency of the claim. Rental amounts due to the Government by the Lessee will have interest and penalties as set out in the condition on CONSIDERATION. h. The Lessee shall proceed diligently with the performance of the lease, pending final resolution of any request for relief, claim, appeal or action arising under the lease, and comply with any decision of the said officer. Non-State Park Lease 11 1 July 1997 ---PAGE BREAK--- 27. ENVIRONMENTAL PROTECTION a. Within the limits of their respective legal powers, the parties to this lease shall protect the project against pollution of its air, ground, and water. The Lessee shall comply with any laws, regulations, conditions or instructions affecting the activity hereby authorized, if and when issued by the Environmental Protection Agency, or any Federal, state, interstate or local governmental agency having jurisdiction to abate or prevent pollution. The disposal of any toxic or hazardous materials within the leased area is specifically prohibited. Such regulations, conditions, or instructions in effect or prescribed by the Environmental Protection Agency, or any Federal, state, interstate or local governmental agency, are hereby made a condition of this lease. The Lessee shall require all sanitation facilities on boats moored at the Lessee's facilities, including rental boats, to be sealed against any discharge into the lake. Services for waste disposal, include sewage pump-out of watercraft, shall be provided by the Lessee as appropriate. The Lessee shall not discharge waste or effluent from the premises in such a manner that the discharge will contaminate streams or other bodies of water or otherwise become a public nuisance. b. The Lessee will use all reasonable means available to protect the environment and natural resources, and where damage nonetheless occurs from the Lessee's activities, the Lessee shall be liable to restore the damaged resources. c. The Lessee must obtain approval in writing from the District Engineer before any pesticides or herbicides are applied to the premises. 28. ENVIRONMENTAL BASELINE STUDY An Environmental Baseline Study (EBS) documenting the known history of the property with regard to the storage, release or disposal of hazardous substances thereon is attached hereto and made a part hereof as Exhibit E. Upon expiration, revocation or termination of this lease, another EBS shall be prepared which will document the environmental condition of the property at that time. A comparison of the two assessments will assist the District Engineer in determining any environmental restoration requirements. Any such requirements will be completed by the Lessee in accordance with the condition on RESTORATION. 29. HISTORIC PRESERVATION The Lessee shall not remove or disturb, or cause or permit to be removed or disturbed, any historical, archaeological, architectural or other cultural artifacts, relics, remains, or objects of antiquity. In the event such items are discovered on the premises, the Lessee shall immediately notify the District Engineer and protect the site and the material from further disturbance until the District Engineer gives clearance to proceed. Non·State Park Lease 12 1 July 1997 ---PAGE BREAK--- 30. SOIL AND WATER CONSERVA'r10N The Lessee shall maintain, in a manner satisfactory to the District Engineer, all soil and water conservation structures that may be in existence upon said premises at the beginning of, or that may be constructed by the Lessee during the term of, this lease, and the Lessee shall take appropriate measures to prevent or control soil erosion within the premises. Any soil erosion occurring outside the premises resulting from the activities of the Lessee shall be corrected by the Lessee as directed by the District Engineer. 31. TRANSIENT USE a. Camping, including transient trailers or recreational vehicles, at one or more campsites for a period longer than thirty (30) days during any sixty (60) consecutive day period is prohibited. The Lessee will maintain a ledger and reservation system for the use of any such campsites. b. Occupying any lands, buildings, vessels or other facilities within the premises for the purpose of maintaining a full- or part-time residence is prohibited, except for employees residing on the premises for security purposes, if authorized by the District Engineer. 32. COVENANT AGAINST CONTINGENT FEES The Lessee warrants that no person or selling agency has been employed or retained to solicit or secure this lease upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Lessee for the purpose of securing business. For breach or violation of this warranty, the United States shall have the right to annul this lease without liability or, in its discretion, to require the Lessee to pay, in addition to the lease rental or consideration, the full amount of such commission, percentage, brokerage, or contingent fee. 33. OFFICIALS NOT TO BENEFIT No Member of or Delegate to Congress or Resident Commissioner shall be admitted to any share or part of this lease or to any benefits to arise therefrom. However, nothing herein contained shall be construed to extend to any incorporated company if the lease be for the general benefit of such corporation or company. 34. SITE-SPECIFIC CONDITION ON GROUND DISTURBANCE Except as authorized herein, the Lessee shall not engage in any construction, alteration, demolition, or ground disturbing activities on the premises, unless such activities have been reviewed and approved by the District Engineer in accordance with Non-State Park Lease 13 1 July 1997 ---PAGE BREAK--- the requirements of the National Historic Preservation Act of 1966 (16 USC 470, et seq.). The Lessee shall be responsible for all costs, and any actions directed or required by the District Engineer, which are associated with the National Historic Preservation Act review process, or other applicable law. 35. SITE-SPECIFIC CONDITION ON CULTURAL RESOURCE STIPULATIONS Cultural Resources Stipulations (the Stipulations) are attached to this Lease as Exhibit F and incorporated herein by reference. The Lessee's cultural resources roles and responsibilities under this Lease shall be governed by the Stipulations and applicable laws or regulations. The Stipulations may be amended by the District Engineer, after consultation with the Lessee, if necessary to comply with applicable laws or regulations. 36. SITE-SPECIFIC CONDITION ON PESTICIDES a. The use of any pesticides (insecticide, herbicide, fungicide or rodenticide) on outgranted lands or waters shall be in accordance with all applicable Federal, state, and local laws, rules and regulations. The Lessee must obtain approval from the District Engineer before any pesticides are applied to the premises. The Lessee shall report actual usage of pesticides in the previous year and anticipated usage of pesticides in the upcoming year on the Pest Control Plan attached as Exhibit G-1 and G-2. The reports will be forwarded not later than January 10 of each year to the address identified below. Usage reports will be reviewed by the District Pesticide Coordinator and shall be considered approved unless the Lessee is notified otherwise. The form may be reproduced as needed. b. The Lessee shall be responsible for the control of all noxious weeds within the outgranted area in accordance with all applicable Federal, state, county and local laws, rules and regulations. Within seven days after each application or treatment with any approved pesticide, the Lessee shall complete a pesticide application record (NPW Form 178). A copy of NPW Form 178 is attached as Exhibit H and may be reproduced when needed. The form shall be mailed or delivered to: Natural Resources Manager Ice Harbor Lock and Dam Project 2763 Monument Drive Burbank, Washington 99323 37. SITE-SPECIFIC CONDITION ON ENVIRONMENTAL COMPLIANCE a. The District Engineer agrees to provide funding LIp to a maximum of $30,000 toward environmental compliance costs associated with the proposed renovation project for playground equipment replacement. The funding is subject to availability of funds Non-State Park Lease 14 1 July 1997 ---PAGE BREAK--- and is subject to the work being accomplished within 5 years from the date of lease execution by the government. b. The District Engineer agrees to provide funding up to a maximum of $30,000 toward environmental compliance costs associated with the proposed renovation or replacement of the existing east end park restroom facilities. The funding is subject to availability of funds and is subject to the work being accomplished within 5 years from the date of lease execution by the government. c. If the Lessee chooses to submit the renovation projects as a combined project for the playground equipment replacement and the replacement of east end park restroom facilities rather than as outlined in 37.a. and 37.b. above, the District Engineer agrees to provide funding up to a maximum of $60,000 toward environmental compliance costs associated with the combined projects. The funding is subject to availability of funds and is subject to the environmental work being accomplished within 5 years from the date of lease execution by the government. d. The Lessee will notify the District Engineer in writing when beginning preparation of plans and specifications for the playground and restroom projects. Upon receipt of notice from the Lessee, the District Engineer will begin to schedule the compliance work required for the project, subject to the availability of funds. The Lessee will provide a scope for each project in sufficient detail to enable the Corps to begin the compliance work. Lessee understands that any changes in scope may result in delay and increased cost to complete the compliance work. Lessee shall be responsible for all compliance work required by state and local laws or regulations, in accordance with Condition 7a of this lease. 38. SrrE-SPECIFIC CONDrnON ON TRESPASS AND ENCROACHMENT In accordance with the Condition on PROTECTION OF PROPERTY, the Lessee will use its best efforts to prevent and resolve trespasses and encroachments which occur on the premises on or after the date this lease is signed by the District Engineer. The Lessee shall report all encroachments to the District Engineer. If, after exercising available administrative remedies. the Lessee is unable to resolve the trespass or encroachment, the Lessee shall contact the District Engineer and provide complete information on its efforts to resolve the trespass or encroachment. Thereafter, the District Engineer sl1all have the primary responsibility to resolve the matter. 39. MODIFICATIONS This lease contains the entire agreement between the parties hereto, and no modification of this agreement, or waiver, or consent hereunder shall be valid unless the same be in writing, signed by the parties to be bound or by a duly authorized representative; and this provision shall apply to this clause as well as all other conditions of this lease. Non-State Park Lease 15 1 July 1997 ---PAGE BREAK--- 40. DISCLAIMER This lease is effective only insofar as the rights of the United States in the premises are concerned; and the Lessee shall obtain such permission as may be required on account of any other existing rights. It is understood that the granting of this lease does not eliminate the necessity of obtaining any Department of the Army permit which may be required pursuant to the provisions of Section 10 of the Rivers and Harbors Act of 3 March 1899 (30 Stat.1151; 33 U.S.C. § 403), or Section 404 of the Clean Water Act (33 U.S.C. § 1344). IN WITNESS WHEREOF I have hereunto set my hand by authority/direction of the Secretary of the Army this lOW day of .J 0 £ . THIS LEASE is also executed by the Lessee this day of ::Y\wvvMe1 ' d C'DtJ _~Ck~ JOYCE 0 Mayor City of Pasco, Washington Non-State Park Lease 16 1 July 1997 ---PAGE BREAK--- CER"rIFICA"rE OF AUTHORITY I, ~ 1\ L , certify that I am the C,Jr, C'-.bfIA( of the CITY OF PASCO, WASHINGTON, that MA'IOil ~lSOy , who signed the foregoing instrument on behalf of the lessee was then U:9YoR of (lr, r?l p" $ ( I further certify that the said officer was acting within the scope of powers delegated to this officer by the governing body of the grantee in executing said instrument. Date J/'0 k ~6ttQQ.. 006 Clerk or Appropriate<5fficial ACKNOWLEDGMENT STATE OF WASHINGTON ) : 55 COUNTY OF WALLA WALLA) On this /6 day of ~t1V'Ul..I1.!?2r before me the undersigned Notary Public, personally appeared AN"rHONY J. HOFMANN, District Commander, U.S. Army Engineer District, Walla Walla, Washington, known to me to be the person described in the foregoing instrument, who acknowledged that he executed the same in the capacity therein stated and for the purposes therein contained. IN WrrNESS WHEREOF, I have hereunto set my hand and official seal. My Commission E Notary Public Non-State Park Lease 17 1 July 1997 ---PAGE BREAK--- THIS INSTRUMENT PREPARED BY: REVIEWED FOR LEGAL SUFFICIENCY BY: Non-State Park Lease 1 July 1997 18 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ADMINISTRATIVE AND COMMUNITY SERVICES DEPARTMENT P.O. BOX 293, 525 NORTH THIRD AVENUE, PASCO, WASHINGTON 99301 November 20, 2007 Paul Shampine Realty Specialist Walla Walla Dist. Corps of Engineers 201 North Third Ave. Walla Walla WA 98362-1876 Dear Mr. Shampine: In response to your requ~st for the City's plans regarding Chiawana Park, I submit the following. Assuming the City and COE enter into a lease agreement for the park, the City would plan to complete the proposed projects, subject to funding, within the approximate timetables as follows: 2008 - 2009 Pruning. There are a number oftrees in the park that are in need of substantial pruning to remove dead and dying material. The City will attempt to do this work in the next 2 years. Convert Hand Line Irrigation. There is a section ofthe eastern portion ofthe park along the trail near the river that is irrigated with moveable pipe. The City proposes to bring in fill material sufficient to cover lines for a ftxed underground system for this area. Installation of Milepost Markers. As part of its efforts to complete elements of the Sacagawea Heritage Trail in the Tri-Cities, the City proposes to complete installation of milepost markers along the trail portion along the levee from Road 54 to the West end of Chiawana Park. 2010 - 2012 Playground. The City proposes to replace the old playground equipment at the east end ofthe park. Restroom. The east end restroom structure is not functional and needs to be replaced and, ideally, connected to the sewer. The City proposes to undertake this work. Parking Lots, Roadways. Most ofthese facilities are in need of resurfacing. Thank you for this opportunity to provide this information. Sincerely, ~ DIVISIONS ADMINISTRATIVE SERVICES (509) 544.3096 FAX 543·5727 CITY CLERK (509) 545.3402 FAX 543-5727 FACILfTIES SERVICES (509) 543-5757 FAX543·5758 FINANCE SERVICES (509) 545.3401 FAX 544-3082 INFORMATION SERVICES (509) 545·3419 FAX 543-5758 RECREATION SERVICES (509) 545-3456 FAX 545-3455 Stan Strebel Administrative and Community Services Director ( Exhibit c ) ---PAGE BREAK--- INVENTORY AND CONDITION REPORT CHIAWANA PARK & COLUMBIA RIVER SHORELINE CITY OF PASCO LEASE NO. W912EF-1-08-07 QUANTITY ITEM AND DESCRIPTION CONDITION 10# MCN­ 1 Modular Residence (East end) 1950 sq. feet; wood-framed; concrete foundation; carport; patio Good 10040 1 Boat Ramp w/parking area Ramp - 35' wide Parking area - 168' x 48' (East end) Good Fair 8939 1 Boat Dock (East end) Wood; concrete; 95' long Fair 9478 1 Underground Irrigation System (East end) Poor 8.5 acres of 9,600 LF PVC pipe and fittings; pop-up sprinkler heads; solenoid valves; 8-circuit automatic controller 4547 1 Pavement (Bike Path) (East end) 9' wide; asphalt; (older path, away from the river) Fair 4549 1 Pumphouse (East end) 8' x 20'; concrete Poor 4551 1 Shop (East end) Good 30' x 70'; metal with insulation; restroom; (wiring suspect in building) 5606 1 Comfort Station (East end) 29' x 24'; concrete block Poor 4554 1 Parking Lot (East end) 75' x 210'; asphalt; w/gate Fair 8900 1 Road (East end to West end) 5280'; 2-lane; asphalt; w/gate Poor 8958 1 Playground Equipment (East end) Metal; two slides; swings; climbing apparatus Poor 8899 1 ( Exhibit D ) ---PAGE BREAK--- INVENTORY AND CONDITIONS REPORT (CONT) CHIAWANA PARK CITY OF PASCO LEASE NO. W912EF-1-08-07 QUANTITY ITEM AND CONDITION 10# MCN­ 1 Entrance Sign (East end) Concrete; metal Poor 8901 1 Fence (East end) 415' long; 6' tall; chain link; three gates Good 8938 1 Storage Building (East end) 24' x 30'; concrete block Poor 8918 1 Storage Building (East end) 15' x 12'; wood w/metal roof Poor 8902 1 Comfort Station (West end) 30' x 15'; concrete block Good 9018 1 Fence (West end) Newer section: 600' long; 6' high; w/seven 3' gates; one double gate, 14' long Older section: 600' long; 6' high (poor condition) Fair 9042 1 Boat Dock (West end) Poor Includes gangway; total of 175' x wood; metal; concrete 9039 1 Bike Path (West end) Good 6' wide; asphalt; (runs next to the river the whole length of the park before connecting with the older bike path on east end) 9041 1 Pumphouse (West end) 9' x concrete block Poor 4553 1 Parking Lot (West end) 525' x 75'; L-shaped; asphalt Poor 8978 3 Picnic Shelters (West end) Metal; wood; concrete base 25' x 35' Good 9038 2 ---PAGE BREAK--- INVENTORY AND CONDITIONS REPORT (CONT) CHIAWANA PARK CITY OF PASCO LEASE W912EF-1-08-07 QUANTITY ITEM AND DESCRIPTION 10# MCN­ 1 Picnic Shelter (West end) Fair 9040 30' x 30'; pumice block; concrete base; Wood top; wi rock and tar roof 1 Playground Equipment (West end) Good 8998 Plastic; slides; climbing apparatus; (area around playground is enclosed with a concrete perimeter); horseshoe pits; volleyball court area We, the undersigned, agree that at as of the date of this document the above listed property is owned by the Govemment and is in the condition as indicated. Corps of Engineers City of P7'0l~ By: 9rv10\""~ Stan Strebel, Director Paul Shampine Administrative and Community Realty Specialist Services Date: 10 2008 (T ) 3 ---PAGE BREAK--- Project Property Book Page 5 ofl6 Project Property Book Page 6 ofl6 Project 10: MCN Property 10 Code: MCN-4547 Project 10: MCN Property 10 Code: MCN-4549 46.24516566 "'19.2076306 [PHONE REDACTED] I 9.2052749 stNc1ure No.: P0097 Lalltude: Longitude: Location: CHIAWANA PARK· EAST END Structure Type: UNDERGROUND IRRIGATION SYSTEM· LABELED ON INSIDE EAVE, EAST END Remarks: a.5 ACRES OF 9,600 LF pvc PIPE & FITTINGS, 2'5 EA POP·UP SPRINKLER HEADS, 5 EA ELECT SOLENOID VALVES' EA 6 CIRCUIT AUTOMATIC CONTROLLER (RAINBIRD), NEXT TO RIVER 8/11'2007 Project Property /look Pag. 7 ofl6 Project 10: MCN Property 10 Code: , &40 Structure NO.: PO'OO Latitude: 46.24599627 Longitude: -'19.2079578 Location: CHIAWANA PARK - EAST END structure Type: FRAME DWELUNG - LABELED ON CRAWL SPACE IN CARPORT, OUTSIDE, METAL SIDE Remarks: FRAME DWEL.LING;W/CARPORT AND PRIVACY FENCE No.: P0099 latitude: Longitude: Location: CHIAWANA PARK· EAST END Type: PAVEMENT (BIKE PATH)· LABELED ON METAL POST, CENTER OF BIKE PATH. NE CORNER INTERSECTION, AT ENTRANCE TO PARK Remarks: 9-FOOT WIDE ASPHALT BICYCLE PATH (OLDER, AWAY FROM THE RIVER) 8/11'2007 Project Property Book Pag.8ofl6 Project 10: MCN Property 10 Code: MCN-4551 No.: POlO' latitude: Longitude: Location: CHIAWANA PARK· EAST END 46.24545164 19.2059712 structure Type: PUMP HOUSE • LABELED ON ENTRY BOX ON ROOF Remarks: CONCRETE PUMPHOUSE 8/112007 8/112007 ---PAGE BREAK--- Proj«t Propetty !look Page 9 of16 Project Propetty Book Page 10 of 16 Project 10; MCN Property 10 Code: MCN-S606 Project 10: MCN Property 10 Code; MCN-4SS4 Sllucture No.: P0102A Latitude: 46.24626548 Longitude: -119.20n336 Location: CHIAWANA PARK - EAST END Structure Type: SHOP - LABELED ON ELECTRICAL BOI( BElWEEN DOORS Rems",",: METAL WITH INSULATION; RESTROOM INSIDE; WIRING SUSPECT 8/112007 Project Propetty Book Page 11 of 16 Project 10: MCN Property ID Code: MCN-8900 Structure No.: P040S Latitude: Longitude: Location; CHIAWANA PARK· EAST END Structure Type: PARKING LOT· LABEL IS ON FLAG POLE Rams",",: 25 I( 70 YAROS; ASPHALT: W/GATE ~ Structure NO.: P0104 Latitude: Longitude: Location: CHIAWANA PARK - EAST END Structure Type: COMFORT STATION· LABELED UNDER PATIO COVER MEN'S SIDE Rema",",: CONCRETE BLOCK COMFORT STATION 4S.24-493474 ·[PHONE REDACTED] Project Propetty Book Page 12 of 16 Project 10: MCN Property 10 Code: MCN.a958 Stl\lcture No.: P0407 Latitude: Longitude: Location: CHIAWANA PARK· EAST END Structure Type: ROAD - LABEL ON GATE POST ON NORTH SIDE OF ROAD Remarks: 2 LANE; ASPHALT; W/GATE (GOES FROM THE EAST END OF PARK TO THE WEST END OF THE PARK) 8/112007 81112007 81112007 ---PAGE BREAK--- Proj acl Property Book P28a I3 of 16 Proje", Properly Book P28a 14 of 16 Project 10: MCN Property 10 Code: MCN-8902 Project 10: MCN Property 10 Code: MCN-8899 Structure No.: SClO02 latitude: No.: TOOO1 Latitude: Longitude: longitude: Location: C>iIAWANA PARK - EAST ~NO C>iIAWANA PARK· EAST ~NO Structure Type: Structure Type: STORAG~ aUIWING -LAa~L ON F~NC~ POST AT NORT>-! ~NO OF aUILOING PLAVGROUNO ~QUIPM~NT • LABEL ON FLAG POLE Remarks: Remal1ookasp 8/112007 ---PAGE BREAK--- Project Property Book Page 9 of 10 Project Property Book Page 10oflO Project 10: MCN Property 10 Code: MCN-8998 No.: TODD2 Latitude: Longitude: location: CHIAWANA PARK - WEST END Structure Type: PLAYGROUND EQUIPMENT -LABELED ON KlOSK OF CONCRETE SHELTER Remarka: PLASTIC, SLIDES, ClJM81NG APPARATUS, AREA AROUND PLAYGROUND ENCLOSED WITH A CONCRETE PERIMETER; HORSESHOE PITS; VOllEY8All COuRT Bll12D07 hnps:llw3.nww.us""".army.mil/appsiremisrepOlts/projeelbook.asp 8/112007 ---PAGE BREAK--- Project Property Book Pagelofl6 Project Property Book Page 2 of 16 Project 10: MCN Property 10 Code: MCN-8939 Project 10: MCN Property 10 Code: MCN-S93S Structure No.: BOOOl Latitude: Longitude: location: CHIAWANA PARK - EAST END S1l'\lcture Type: BOAT RAMP - LABEL IS ON ENTRANCE SIGN Remar1lUln' P;tc) N c:J.­ .a 1&1 ---PAGE BREAK--- NPWOP PESTICIDE APPLICATION RECORD Operator: Project: Certification: Date: Pest Treated: _ Site Treated: Purpose: Conditions During Treatment: . Air Temp: _ V'Jater Temp: Overcast: Wind Dir.: Vel.: _ Pesticide Record: Common Name: % Active Ingredient: Manufacturer: E.PA Reg.: Registered Use: Mixture or Form Applied: Application Rate GallAc: Lbs/Ac: Method: Special Precautions: _ Accumulative Treatment: (Quantity of pesticide applied to a given area) TREATMENT TALLY WORK TALLY Units Treated Quantity Used Survey Labor Supervision Previous Present Total COOPERATI NG AGENCI ES: MONITORING: REMARKS: I hereby certify that this information is a true and correct record of pesticide application as required by the state in which this application was made. (Signature of Operator) . NPW Form 178e May 1979 ( Exhibit H)