Loading...
HomeMy WebLinkAbout2021 Ag Lease Final DraftKITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 1 AGRICULTURAL L E A S E THIS LEASE is made and dated this 1st day of December, 2021, by and between KITTITAS COUNTY, a municipal corporation in the State of Washington, hereinafter referred to as the LESSOR, and __________________________, hereinafter referred to as the LESSEE. The LESSOR herewith agrees to let unto the LESSEE, and the LESSEE herewith agrees to lease from the LESSOR, the following described real property situated at the Kittitas County Airport (Bowers Field), Kittitas County, Washington, to-wit: (Insert Legal Description of Tract (s)) 1) TERM: That the term of this lease shall be for FIVE (5) years, and will commence on the 1st day of December, 2021, and shall terminate on the 30th day of November, 2026. 2) RENT: That as rental for said premises the LESSOR shall receive and the LESSEE shall pay for each lease year plus all applicable taxes, assessments, and utilities, payable as follows: TRACT (??) $__________, plus leasehold tax, is due on the execution of this lease. $ __________, plus leasehold tax, is due on or before the 1st day of December each year. 3) PAST DUE AMOUNTS: 3.1 Annual Rental Payments: If Lessee fails to pay the annual rent when due under this Lease, such unpaid amount shall bear interest at the rate of twelve percent (12%) per annum from the due date of such amount to the date of payment in full, with interest. 4) LEASE TERMINATION: It is understood and agreed that the real property, which is the subject matter of this lease, is presently zoned Agricultural – “Ag-20” – under the Kittitas County Zoning Code. It is also understood that Kittitas County is presently evaluating use of the subject land whether within the present or any revised zoning code and that such evaluation may determine a higher and better use for subject real property. Also, due to current airport environmental and flood management projects, construction and alteration of some parcels will take place during the term of this lease. Minimal to moderate impact could be seen, specifically on Tracts 2 & 6. In recognition of these facts, LESSEE and LESSOR agree that LESSOR may, at LESSOR’S sole option, modify the terms of this lease, in whole or in part, including but not limited to modifying the area of land covered by this lease, the rental due, the term of duration of this lease and/or any other term or condition of this lease, including canceling the unexpired portion of this lease and KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 2 re-letting the property to another tenant, all as LESSOR shall in L ESSOR’S sole discretion deem to be in the best interest of Kittitas County. In the event the LESSOR shall elect to modify or terminate this lease, the LESSOR shall do so only upon ninety (90) days written notice, notifying LESSEE, and Lessee’s address of record, that the lease to which this applied is being so modified or terminated. Upon receipt of such notification, and in the event that the notification specified modification of lease short of termination, LESSEE shall have thirty (30) days in which to notify Kittitas County Airport of LESSEE’S intention to continue the lease as modified or of LESSEE’S intention to treat the lease as terminated. In the event that LESSEE elected to treat the lease as terminated, all rents shall be pro-rated to the date LESSEE shall have restored the premises to the LESSOR in accordance with the terms of the lease agreement governing LESSEE’S duties to restore the premises to LESSOR upon expiration of the lease term. It is further agreed that either such modification or termination of this lease nor any subsequent re-letting of the premises, in whole or in part, shall give rise to any cause of action for damages or any other form or relief by LESSEE against LESSOR or any successor lessee. In the event of such modification or termination, LESSEE understands that other than a refund of any unearned rent pro-rated based on years of lease to the date LESSEE has restored the premises to LESSOR, LESSEE shall have no claim for compensation as occasioned by said modification or termination. 5) LEASEHOLD TAX: In addition to the above lease payment, the LESSEE shall pay to LESSOR the leasehold tax as set forth by RCW 82.29A or as amended thereafter. 6) UTILITIES: The LESSEE shall pay all utility services supplied to the premises. 7) KRD WATER ASSESSMENTS: (Tract #1 Only) The LESSEE shall pay all KRD water assessments for said premises. The LESSEE agrees that all KRD water that is designated to the airport will stay assigned to airport property. The LESSOR will submit bi-yearly billings to be included with the rent for KRD assessments. Copies of assessments for said premises will be included with billing. KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 3 7.1 Water Availability: Tracts 2,3,4,5,& 6 will not have KRD irrigation. Stock water will be provided by seasonal streams and creeks. Tract 4 will have limited to no stock water available. Tract 1 - LESSEE shall work with the Airport Staff as necessary to manage irrigation waters in a manner to eliminate ponding and standing water in non-designated drainage areas, thereby reducing potential wildlife hazards and environmental impacts on airport property. 8) USE OF PREMISES: It is understood that the LESSEE shall utilize the premises for the following purposes, to-wit: “Grazing only, calving is not permitted on airport property.” 9) GRAZING MANAGEMENT: SEE EXHIBIT B FOR TRACTS 2,3,4,5 & 6. SEE EXHIBIT C FOR TRACT 1. 9.1 Livestock Feeding / Mineral Blocks: If Lessee chooses to provide additional feed for their livestock, feeding should be done 300’ away from water sources and riparian areas. Where available they should be placed on hard surfaces or in higher elevations of surrounding land. 9.2 Weed Control: LESSEE shall comply with all the regulations of the weed district within which said leased property is included and shall use all reasonable effort to eradicate and preve nt the growth of noxious weeds. LESSEE shall control weeds on tilled lands by cultivation, clipping or spraying as recommended by the Kittitas County Agricultural Extension Agent. LESSEE shall control noxious weeds on the premises as directed by the Kittitas County Noxious Weed Board and/or Airport Department and shall be responsible for reimbursement to said authority and/or Airport Department, in the event that they undertake noxious weed control measures. 9.3 Cross Fencing: Lessee shall construct and maintain/maintain interior or cross fence in pasture to control livestock and improve pasture grazing rotation. 10) LEASEHOLD IMPROVEMENTS: All existing improvements currently on the lease premises belong to Kittitas County and are not to be removed. No improvements shall be placed on the leased premises without the prior consent of the County. If written authorization is received from the LESSOR, the LESSEE shall submit a written estimated cost of improvement, and upon completion of improvement all costs/receipts of said improvements to the County for record. The depreciation life of the improvement will be established at that time. KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 4 In the event of termination of lease or early termination of lease, all improvements placed on the premises by the LESSEE shall belong to the County, EXCEPT for those authorized by written consent from the County. In the event the improvements have been authorized in writing by the County, and the LESSEE is not issued a new lease at expiration, or the LESSOR chooses to terminate said lease, the LESSOR will determine a depreciated value of authorized improvements and purchase said authorized improvements from the LESSEE. 11) SUBLEASE ASSIGNMENT: The LESSEE herein shall not assign this lease nor any portion thereof without the written consent of the LESSOR. 12) HUNTING: Hunting or discharging of any firearms will not be permitted on the leased premises. 13) WASTE: The LESSEE shall not commit waste of the leased property. 13.1 Deceased Livestock: Lessee will bury any dead animal in accordance with "RCW 16.32.102, Duty to Bury Carcass of Diseased Livestock" and "WAC 246.203.121, Disposa l of Dead Animal". 13.2 On-Site Custom Farm Slaughter: If slaughter operations occur on airport leased property, Airport Staff must be notified of the date and time of the operations 48 hours prior. There will be no slaughter operations within 1000 feet of any airport runway, taxiway, or apron area. Additionally, there will be no slaughter operations allowed within any runway approach area. The following regulations will also apply: 13.2.1. Custom Farm Slaughterer means any person licensed by WSDA to engage in the business of slaughtering meat food animals only for the consumption of the owner through the use of an approved mobile unit. 13.2.2. The mobile custom farm slaughtering units must meet the requirements for sanitary operations under the provisions of Chapter 16-19-100 WAC. 14 HAZARDOUS SUBSTANCES: LESSEE shall not keep on or around the PREMISES for use, handling, transport, disposal, treatment, generation, storage or sale, any substances designated as, or containing components designated as hazardous, dangerous, toxic, harmful, medical or infectious (collectively referred to as “HAZARDOUS SUBSTANCE”), and/or is subject to regulation by any federal, state KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 5 or local law, regulation, statute, ordinance or management plan. With respect to any such HAZARDOUS SUBSTANCE, LESSEE shall: 14.1. Use on the PREMISES only reasonable quantities of such HAZARDOUS SUBSTANCES as are reasonably necessary, usual and appropriate for the routine maintenance and eradication of noxious weeds. 14.2. Within five (5) days of LESSOR’s request, provide information to LESSOR regarding LESSEE’s use, handling, treatment, transportation, generation, or disposal of HAZARDOUS SUBSTANCES and provide evidence satisfactory to LESSOR of LESSEE’s compliance with the applicable government regulations. 14.3. Allow LESSOR or LESSOR’s agent, representative or consultant to come on the PREMISES as allowed in Section 17 to inspect LESSEE’s compliance with all applicable governmental regulations regarding HAZARDOUS SUBSTANCES and to assess the environmental condition of the PREMISES, including, but not limited to, the imposition of an environmental audit; 14.4. Comply with all applicable governmental statutes, ordinances, rules, regulations, management plans and requirements regarding the proper and lawful use, handling, disposition, transportation, generation, treatment, and disposal of HAZARDOUS SUBSTANCES. 14.1 Cleanup Costs, Default and Indemnification: LESSEE shall be fully and completely liable to LESSOR and shall indemnify, defend and save LESSOR harmless from any and all cleanup costs, and any and all other charges, fees, penalties (civil and criminal) imposed by any governmental authority with respect to LESSEE’s unauthorized, negligent or illegal use, handling, disposal, transportation, generation and/or disposal of HAZARDOUS SUBSTANCES, in or about the PREMISES. Upon LESSEE’s default under this Section 14, in addition to the rights and remedies set forth elsewhere in this LEASE, LESSOR shall be entitled to the following rights and remedies: 14.1.1 At LESSOR’s option, to exercise the remedies under the procedures set forth in Section 12; and 14.1.2 To recover any and all damages associated with the default, including, but not limited to cleanup costs and charges, civil and criminal penalties and fees, loss of AIRPORT KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 6 revenue by LESSOR, any and all damages and claims asserted by third parties and LESSOR’s attorneys’ and consultants’ fees and costs. 15) AIRPORT TRAFFIC: It is understood and agreed that the LESSEE’S use of the leased premises shall not in any manner interfere or restrict the use of aircraft landings, take-offs, or storage of aircraft as the airport is presently constructed. LESSEE shall comply with all rules and regulations of the Federal Aviation Administration and the Minimum Standards for Aeronautical Activities of Kittitas County. 16) WAIVER: No assent, express or implied, by LESSOR to any breach of any of LESSEE’S covenants, agreements, conditions or terms hereof shall be deem ed or taken to be a waiver of any succeeding breach of any covenant, agreement, condition or term hereof. 17) INSPECTION: At all times during the term of this lease, LESSOR shall have the right to enter into and upon the demised premises during reasonable business hours for the purpose of examining and inspecting the same and determining whether LESSEE shall have complied with all of its obligations hereunder in respect to the care and maintenance of the premises and all other terms and conditions hereof. 18) FENCES AND IRRIGATION DITCHES: Irrigation ditches shall not flow into the aeronautical area and useable taxiways or be rerouted without prior written approval from the Airport Department. It shall be the LESSEE’S responsibility to inspect and make any necessary repairs to the existing fences prior to allowing livestock to graze within the above-described tract. Fencing must be maintained to the extent that it will prohibit livestock from entering the aeronautical area. 19) ACCESS TO AIRPORT PROPERTY: Access to the tracts shall be at designated locations only. All access gates shall remain closed and locked at all times during the term of this lease. The LESSEE shall affix his/her own lock next to that of the LESSOR’S. 20) INSURANCE: The LESSEE shall provide proof of coverage thereof naming Kittitas County as co-insured (K.C.C. 19.04.190 (E)) as follows: NOT LESS THAN: $1,000,000.00 General Liability Coverage 21) PROPERTY DAMAGE AND BODILY INJURY: The LESSEE hereby indemnifies and agrees to hold Kittitas County harmless from any and all claims or demands of whatsoever nature arising out of loss, damage or injury to persons or property resulting from LESSEE’S use or occupancy KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 7 of the leased premises and areas adjacent thereto or caused by the acts or neglect of the LESSEE, its agents or representatives. 22) PRESERVATION OF MARKERS: Any legal land subdivision survey corners, reference points of monuments are to be preserved. If such are destroyed or disturbed, the LESSEE shall be required to re-establish the destroyed or disturbed monuments by a licensed land surveyor in accordance with the U.S. General Land Office standards at his own expense. Corners and/or reference points or monuments which are disturbed or destroyed in the process of carrying out the operation allowed by this lease must be adequately referenced and/or replaced in accordance with RCW 58.24.040. Such references must be approved by the State prior to removal of corners, reference points, or monuments. 23) MILITARY EXERCISES: From time to time the military conducts exercises at the Kittitas County Airport. The LESSEE will be requested to enter into a sublease agreement to authorize the use of the tracts for military purposes only. Reimbursement for temporary use will be negotiated between the U.S. Government, Kittitas County, and the LESSEE. 24) BANKRUPTCY: It is further agreed and understood that in case of the insolvency or bankruptcy of the LESSEE or any assignment for the benefit of creditors of the appointment of a receiver for the LESSEE, this lease shall be immediately forfeited and shall be of no further force and effect, and that the Trustee in Bankruptcy, Receiver or Assignee for the benefit of creditors shall not have any rights whatsoever in the demised premises. 25) RIGHTS OF U.S. GOVERNMENT: It is understood and agreed that this lease shall be subject to all prior covenants and agreements, which grant to the United States Government rights and privileges in the event of war or national emergency. 26) DEFAULT. In the event that the Lessee shall violate this lease, or any of its conditions or terms as herein stated, the Lessor may terminate this lease by giving thirty (30) days written notice of the conditions or terms being violated and if said violations are not corrected within the thirty-day period, the lease may be canceled, and the County shall be entitled to peaceably retake possession of the premises, provided the Lessee shall have the right to remove improvements as herein provided. 26.1 Remedies: Upon any default by Lessee under this Lease and subject to Section 26, Lessor may at any time pursue any or all remedies available to Lessor, including, but not limi ted to, the following: (i) perform in Lessee's stead any obligation that Lessee has failed to perform, KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 8 and Lessee shall promptly pay to Lessor all costs incurred by Lessor for such performance, together with interest and service fees for any past due amounts (as provided in Section 3) and an administrative charge equal to twelve percent (12%) of the cost incurred by Lessor which the parties agree is a reasonable estimate of and liquidated damages for Lessor’s overhead expenses associated with such performance; (ii) terminate Lessee's rights under this Lease upon delivering a written notice of termination; and (iii) re-enter and take possession of the Premises by any lawful means with or without terminating this Lease. Lessee shall pay all costs and damages arising out of Lessee’s default, including, but not limited to, the cost of recovering possession of the Premises, the cost of improving and reletting the Premises, including, but not limited to, any real estate broker fees or marketing costs, and attorneys’ fees and costs regardless of whether formal action is commenced or concluded. No action by Lessor or Lessor’s Associates shall be construed as an election by Lessor to terminate this Lease or accept any surrender of the Premises unless Lessor provides Lessee with a written notice expressly stating that Lessor has terminated this Lease or accepted a surrender of the Premises. Following a default by Lessee under this Lease, Lessor shall exercise commercially reasonable, good faith efforts to mitigate its damages as required by applicable law. 27.) NOTICES: Any notice given by one party to the other in connection with this agreement shall be in writing and shall be sent by certified or registered mail, return receipt requested, as follows: 1. If to Lessor, addressed to: Kittitas County Airport Department, 3110 N. Airport Rd. Suite 1, Ellensburg, WA 98926. 2. If to Lessee, addressed to: _____________________________________________ Notice shall be deemed to have been received three days after having been sent as above described whether actually received or not. 28) JURISDICTION & VENUE: Avenue for any action to enforce lawsuit will be held in either Kittitas County or Yakima County. KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 9 IN WITNESS WHEREOF, LESSOR AND LESSEE have signed their names and affixed their seals the day and year first above written. LESSEE: LESSOR: BOARD OF COUNTY COMMISSIONERS __________________________________ _________________________________ (Company Name ) , Lessee Chair _________________________________ Vice-Chair _________________________________ Commissioner ATTEST: __________________________________ Clerk of the Board Approved as to Form: __________________________________ Neil Caulkins, Deputy Prosecutor WSBA# __________ KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 10 KITTITAS COUNTY NOTICE OF NOTARY BOWERS FIELD AIRPORT LESSEE: __ ________________________________ DATE:________ __ ________________________________ DATE:________ STATE OF WASHINGTON COUNTY OF KITTITAS On this day of , 2021 before me personally appeared to me ______________________ and _________________, who executed the within and foregoing instrument and acknowledged said instrument to be their free and voluntary act. Given under my hand and official seal the day and year last above written. Notary Public in and for the State of Washington Residing at My Appointment Expires KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 11 KITTITAS COUNTY NOTICE OF NOTARY BOWERS FIELD AIRPORT LESSOR: THE KITTITAS COUNTY BOARD OF COUNTY COMMISSIONERS CHAIRPERSON VICE-CHAIRPERSON COMMISSIONER STATE OF WASHINGTON COUNTY OF KITTITAS On this day of , 2011 before me personally appeared to me _______________________, _______________________ and ______________________, known to be the duly elected, qualified and acting County Commissioners of Kittitas County, Washington, who executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said County, for the uses and purposes therein mentioned, and each on oath stated that they were authorized to execute said instrument by resolution of the Board of County Commissioners of said county, and that the seal affixed is the official seal of said County. Given under my hand and official seal the day and year last above written. Notary Public in and for the State of Washington Residing at My Appointment Expires KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 12 EXHIBIT A KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 13 EXHIBIT B Tracts 2,3,4,5&6. This Resource Management Plan (RMP) describes the management objectives and practices agreed upon by Kittitas County and Lessee to manage agricultural and grazing production on Airport property. Failure to comply with these regulations may result in default of your lease. If the management requirements of this RMP cannot be followed due to climatic variations or unforeseen events, Lessee shall consult with airport staff regarding any proposed changes to the RMP Annual Rangeland Management: The Lessee’s grazing management of annual rangeland must meet the following requirements to protect the soil and maintain plant vigor. 1. Leave enough plant material to cover 30% of the soil surface. 2. Livestock grazing can occur at any time. KITTITAS COUNTY AIRPORT AGRICULTURAL LEASE PAGE 14 EXHIBIT C Tract 1 Only This Resource Management Plan (RMP) describes the management objectives and practices agreed upon by Kittitas County and Lessee to manage agricultural and grazing production on Airport property. Failure to comply with these regulations may result in default of your lease. If the management requirements of this RMP cannot be followed due to climatic variations or unforeseen events, Lessee shall consult with airport staff regarding any proposed changes to the RMP The Lessee’s grazing management must meet the following requirements to maintain the vigor, condition, and productive potential of these areas. These grasses are more resistant to grazing impact than the native species. 1. Graze each pasture no more frequently than two out of three years during the Critical Growth Period for primary forage species. 2. Forage Use is restricted to grazing no more than 60% of current available growth during the Active Growth Period. 3. Forage Use is restricted to grazing no more than 70% of current available growth during the Dormant Period. Definitions of words mentioned in italics above: Active Growth Period: The start of forage plant growth in the Spring to seed maturity in early summer (approximately March 1 to June 15). Critical Growth Period: The last half of the Active Growth Period (approximately mid April to mid June). At this time, grass plants are committed to seed production and the growing points are elevated and vulnerable. Frequent grazing during this period reduces plant vigor. Dormant Period: The period after seed maturity until the next spring (approximately from late June until March 1 the following year). Plants may have some green-up but are not actively growing. Forage Use: Utilization is measured in key areas, located at a moderate distance from a watering site, which represent average use of the entire unit. The following calendar illustrates the three periods described above. These periods will vary based on the elevation of the pasture and annual climatic variations.