EXHIBIT 10.1
S U B L E A S E
Between
THE STATE OF WASHINGTON
Represented by
DEPARTMENT OF ECOLOGY
and
US ECOLOGY WASHINGTON, INC.
===========================
I N D E X
Article Title Page
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ARTICLE I Leased Premises 1
ARTICLE II Relationship Between the Parties 1
ARTICLE III Term of This Sublease - Option to Renew 4
ARTICLE IV Rent 4
ARTICLE V Use of Premises 6
ARTICLE VI Access Rights of State 6
ARTICLE VII Perpetual Maintenance Fund 7
ARTICLE VIII State Inspection of Company Records 8
ARTICLE IX Termination of Sublease 9
ARTICLE X The Company's Withdrawal from Premises 10
ARTICLE XI Permits and Licenses 11
ARTICLE XII Protection Against Claims and Losses 11
ARTICLE XIII Casualty Destruction of Premises 13
ARTICLE XIV Taxes, Maintenance Costs 13
ARTICLE XV Nondiscrimination in Employment 14
ARTICLE XVI No Benefits for Officials 14
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ARTICLE XVII No Contingent Fees 14
ARTICLE XVIII No Waiver by the State 15
ARTICLE XIX Condition of Subleased Lands 15
ARTICLE XX Altering Premises 15
ARTICLE XXI Additional Reserved Rights of the U.S. Government 16
ARTICLE XXII Disputes With the U.S. Government 16
ARTICLE XXIII Disputes Between the Parties 17
ARTICLE XXIV Notices 17
ARTICLE XXV Closure Fund 18
ARTICLE XXVI Captions 19
ARTICLE XXVII Invalidity of Particular Provisions 19
ARTICLE XXVIII Governing Law 19
ARTICLE XXIX Time of Essence 20
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This sublease, dated the _____ day of_______________, _____, and entered
into pursuant to RCW 43.200.080(1), is between the State of Washington, acting
through the Department of Ecology, sublessor ("State"), and US Ecology
Washington, Inc., sublessee ("Company"), a Delaware corporation and licensed to
do business in Washington.
ARTICLE I
Leased Premises
---------------
The State hereby subleases to the Company that certain real property
situated in the County of Benton, State of Washington, within an area owned by
the United States and known as the Department of Energy Hanford Reservation,
more particularly described as follows:
One hundred (100) acres of land, more or less, in the east half of
Section 9, Township 12 North, Range 26 EWM, Benton County, Washington,
more particularly described as follows:
Beginning at the Southeast corner of said Section 9; thence North 0
degrees 53' 09" West along the East line of Section 9 a distance of
2942 feet;
thence South 88 degrees 50' 56" West 1480 feet; thence South 0 degrees
53' 09" East 2942 feet to the South line of said Section; thence North
88 degrees
50' 56' East along said South line of the Section 1480 feet to the
point of beginning.
ARTICLE II
Relationship Between the Parties
--------------------------------
1. The Company acknowledges that it has been furnished with a true and
correct copy of the lease between the United States Government ("U.S.
Government"), as represented by the Atomic Energy Commission (now succeeded by
the United States Department of Energy (" Energy") and the State, dated
September 10, 1964, as amended.
2. The Company agrees to assume, so far as the premises sublet are
concerned, all of the obligations and responsibilities which the State has
assumed toward the U.S. Government and/or Energy by the Prime Lease; and the
Company acknowledges its complete awareness of the considerations involving the
national defense and security set forth in the Prime Lease, which will, or may,
affect the Company's operations upon the subleased premises.
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3. The State and the Company agree that in the event there is a conflict
between the terms of this sublease and the terms of the Prime Lease, the latter
shall be controlling; and that nothing herein shall be deemed to affect any
right or rights that the U.S. Government and/or Energy have under the Prime
Lease.
4. The Company understands that the State is a member state and host
state under the Northwest Interstate Compact on Low-Level Radioactive Waste
Management (hereafter "the Compact"); and the Company therefore agrees that its
facilities and activities will be maintained and conducted so as not to
interfere with or endanger State policy with regard to the Compact. The Company
further agrees that it will operate and manage the subleased premises in support
of the Compact in accordance with the requirements of the Compact and in
accordance with applicable federal and state law, including the Low-Level
Radioactive Waste Act of 1980 (as amended by the Low-Level Radioactive Waste
Policy Amendments Act of 1985), 42 U.S.C. Sec. 2021b-2021j.
5. The State agrees that with respect to the subleased premises the
Company shall enjoy the benefits of the Prime Lease applicable thereto.
6. The State agrees to use its offices, in accordance with Articles VII
and XXII, to represent the Company in presenting matters to the U.S. Government
and/or Energy involving the Company's duties and obligations to the U.S.
Government and/or Energy under the Prime Lease.
7. Except as provided below, the Company agrees that it shall not,
without the State's prior written approval, which approval shall not be
unreasonably withheld, assign, hypothecate or transfer this sublease or any
interest thereunder. In granting any such consent the 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 the Company is a corporation,
partnership, or other association, (l) 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 the Company shall be deemed to constitute an
"assignment" of this Agreement which requires the consent of the State. The
consent of the State to any one assignment shall not constitute a waiver of the
State's right to consent to subsequent assignments, nor shall consent of the
State to any one assignment relieve any party previously liable as a sublessee
from any obligations under this Agreement, who shall remain joint and severally
liable as primary obligor and not as surety. The acceptance by the State of the
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payment of rent following an assignment shall not constitute consent to any
assignment and the State's consent shall be evidenced only in writing. The
sublease may be assigned, subject to all conditions of this sublease, for
performance by a wholly owned subsidiary of the Company organized under the laws
of the State of Washington, without prior written approval by the State, but the
Company must give thirty (30) days prior written notice to the State of any such
proposed transfer.
8. The Company agrees that it shall not, without the State's prior
written approval, sublet the premises or any part thereof, or permit the use of
the premises by any party other than the Company except that the premises may
be, subject to all conditions of this sublease, sublet to, or used by, a wholly
owned subsidiary of the Company organized under the laws of the State of
Washington without prior approval by the State, but the Company must give thirty
(30) days prior written notice to the State of any such proposed sublease.
9. Any transactions under sections 7 and 8 of this Article shall require
notice to and approval by Energy.
ARTICLE III
Term of This Sublease- Option to Renew
--------------------------------------
1. The term of this sublease shall be ten years commencing on the 29th
day of July, 2005.
2. The Company shall have the option to extend the term of this sublease
for four additional periods of ten years at rental rates to be agreed upon by
the parties. Upon the Company's exercise of such renewal option, the State
shall have the option to terminate the sublease if good cause exists, in the
State's determination of the best interests of the State, to terminate the
sublease. In the event the parties hereto fail to agree as to rental rates, the
parties may attempt to resolve the disagreement in accordance with the dispute
resolution provisions in Article XXIII. During the pendency of any negotiations
to extend a sublease term, the State may extend the Sublease under the existing
terms on a quarter-by-quarter basis.
3. In the event the Company desires to exercise said option, it shall
give notice thereof in writing to the State not less than six months prior to
the expiration of the Sublease term. In the event the Company chooses to not
exercise said option, the Company will remain subject to the obligations in
Article X. In the event the State desires to exercise its option to terminate
the sublease, it shall give notice thereof in writing not less than five months
prior to the expiration of the lease term.
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ARTICLE IV
Rent
----
1. The Company shall pay to the State as annual rent for the premises and
related rights obtained under this Sublease the sum, as of the effective date of
the initial Sublease term, of $63,170 as adjusted by the percentage increase, if
any, in the Consumer Price Index, calculated for all urban consumers, all items,
West, size class C over the previous three year period as last published by the
United States Department of Labor, Bureau of Labor Statistics, for each calendar
year of the remaining term of this Sublease. For the purposes of the initial
Sublease term, the first annual rent adjustment shall be effective January,
2008.
2. Payments of the rent shall be due quarterly, within fifteen (15) days
after the end of each calendar quarter. If any payment is not made when due
hereunder, a late payment penalty in an amount equal to one percent applied to
the amount of the late payment shall become immediately due and payable and
shall be applied for each month that any payment due hereunder remains unpaid.
Payments shall be made in lawful money of the United States, at the office of
the State Department of Ecology, Olympia, Washington, or as otherwise directed
in writing by the State.
3. In addition, the Company agrees to pay as supplemental rent such
annual sum, determined after the fact by the Department of Ecology and approved
by the State Auditor, as will fairly and adequately reimburse the State for the
following unforeseen direct costs and unforeseen costs of administering this
sublease: (1) those expenses incurred by the State in considering those matters
brought before it by the Company for approval as provided in Articles V and XX
herein, excluding any matters relating to licensing activities, and (2) those
expenses incurred by the State in representing the Company, at the Company's
request, in accordance with Article II-6, Article VII, and Article XXII:
PROVIDED, that the State may request, and upon such request, the Company shall
provide, an acceptable financial assurance mechanism (e.g., a bond) assuring
payment of such supplemental rent prior to the State incurring said expenses.
Any dispute over the amount of a bond or other financial assurance requested by
the State shall be resolved in accordance with Article XXIII. No expenses
incurred by the State in collecting any fees, assessments, or other charges
associated with the low-level radioactive waste disposal site and no expense
incurred by the State for activities benefiting third parties shall be
reimbursable as supplemental rent. Supplemental rent so assessed for the
previous year shall be paid at the same
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time the quarterly rent for the next succeeding quarter is paid, except that the
supplemental rent for the last year of the term of this Sublease shall be paid
within fifteen (15) days of notice to Company. Reimbursable costs shall include
transportation costs, per diem expenses as authorized by state law for
department personnel and telephone expenses, but shall not include salaries,
secretarial services, or supplies, except where the State may undertake to use
its offices on behalf of the Company in accordance with Articles II.6 and XXII.
ARTICLE V
Use of Premises
---------------
The Company covenants and agrees that it will use the subleased premises
for the management of low-level radioactive waste and naturally occurring and
accelerator produced radioactive materials and wastes, but for no other purpose
except with the prior written approval of the State. The Company covenants and
agrees that it will use the premises in a manner consistent with the terms of
the license or licenses issued to the Company by the appropriate state or
federal agency authorizing and regulating the activities mentioned in this
article, and with all other applicable laws and regulations.
The Company shall publish and maintain a schedule of all rates and charges
for waste received under the Compact subject to approval by the Washington
Utility and Transportation Commission or its successors in interest, a copy of
which shall be furnished to the State and to any other person requesting the
same. The parties acknowledge that worker safety and health shall be regulated
by the State of Washington.
ARTICLE VI
Access Rights of State
----------------------
The State, or any person authorized by it, to the extent permitted by the
prime lease, shall at all times have access to the subleased premises for all
reasonable purposes, including, without limitation, the following:
1. For the protection of the health and safety of the public or of the
employees, other personnel, or contractors of the State; and
2. For taking readings or samples from or for servicing, maintaining,
repairing, or replacing environmental monitoring devices, other similar
instruments, or ground water monitoring wells located on the leased premises;
and for conducting any other remedial actions as defined by the Washington Model
Toxics Control Act, chapter 70.105D RCW.
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3. For inspecting the premises and determining if the Company is
complying with the obligations imposed by this sublease, including compliance
with all applicable laws.
ARTICLE VII
Perpetual Maintenance Fund
--------------------------
The Company agrees, pursuant to WAC 173-44-040, to pay to the State,
effective on the commencement of this sublease, One Dollar and Seventy-five
Cents ($1.75) for each cubic foot of radioactive materials and waste permanently
stored or buried at the commercial low-level radioactive waste disposal
facility. The payment by the Company of the One Dollar and Seventy-five Cents
($1.75) fee shall continue until such time as the State amends WAC 173-44-040,
at which time the new amount set forth in the amended regulation shall apply.
The State warrants that it will invest monies collected for perpetual care
and maintenance in the same manner as other monies and in accordance with state
law.
The One Dollar and Seventy-five Cent ($1.75) perpetual care and maintenance
fee shall be paid to the State on a quarterly basis for the quarters ending
March 31, June 30, September 30 and December 31, provided, however, that the
Company shall have up to forty-five (45) days from the end of each quarter to
make payment to the State. In the event the State makes a determination that
additional perpetual care and maintenance fees in excess of the One Dollar and
Seventy-five Cents ($1.75) set forth herein are necessary as a result of a
request made by the United States to the State of Washington for the deposit of
additional amounts pursuant to the Perpetual Care Agreement dated July 29, 1965,
between the State of Washington and the United States, the State shall give
reasonable notice to the Company of such determination and shall not oppose a
request by the Company to participate in proceedings between the State and the
United States under Article 10 of such Perpetual Care Agreement or Article 19 of
the Prime Lease between the United States of America and the State of Washington
dated September 10, 1964. In the event the Company is precluded from such
participation, the State shall use its best efforts to represent the Company's
position on such proposed fee increase and to present such facts and
circumstances on behalf of the Company as it may reasonably request. Any
adjustments to the fee shall be made by rule adopted pursuant to Chapter 34.05
RCW.
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All payments to the State shall be made in lawful money of the United
States at the Department of Ecology, Olympia, Washington, or as otherwise
designated in writing by the State, without notice of demand by the State. The
State shall maintain a segregated account of perpetual care and maintenance fee
payments which are deposited in the Perpetual Maintenance Fund, which includes
both a Perpetual Surveillance and Maintenance Account and a Closure Account.
The Company shall identify payments made for perpetual care and maintenance
separately from any payments made for closure.
ARTICLE VIII
State Inspection of Company Records
-----------------------------------
The Company agrees that in order for the State to determine the proper
payments of the Company into the Perpetual Maintenance Fund and to determine
compliance with this sublease, the State and its duly authorized representatives
shall have access to and the right to examine and copy any directly pertinent
books, documents, papers, accounts, and records of the Company involving
operations on the subleased premises. Access to such books, documents, papers,
accounts, and records shall be provided at a location within the state of
Washington or at the offices of the Company in Boise, Idaho. Said right shall
continue for three years after the termination of this sublease and any option,
if exercised.
ARTICLE IX
Termination of Sublease
-----------------------
1. Default. The Company agrees that it shall not violate any of the
terms or conditions of this sublease, or violate the terms of authorizing
licenses issued by the State or other appropriate authority, or use any part of
the subleased premises in a manner not in substantial compliance with the
covenants and purposes of this sublease, or fail to comply with any applicable
laws, regulations and ordinances of the United States and the state, territory,
or political subdivision in which the subleased premises are located. If such
substantial violation, misuse or noncompliance occurs, the State may, at its
sole option, have the right upon giving the Company sixty days' written notice,
to terminate this sublease and reenter and take possession of the premises,
provided that such violation, misuse or noncompliance continues sixty days after
the written notice is provided by the State. Upon any subsequent violation of
the same nature after such written notice has been provided, the State may
immediately terminate the sublease and re-enter and take possession of the
premises. Notwithstanding any of the
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foregoing, if such violation, misuse or noncompliance involves a nuclear
incident as defined in the U.S. Atomic Energy Act of 1954, as amended, 42 U.S.C.
Sec. 2014(q), the State may immediately terminate this sublease and reenter and
take possession of the premises.
2. Non-default termination. Furthermore, the State reserves the right to
terminate the sublease upon: (a) sixty days' written notice should the Company's
authorizing license issued by the State be terminated or expire without renewal,
unless the Company has secured a stay of such termination in an administrative
or judicial proceeding contesting a decision by the State Department of Health
or that agency of the state with responsibility for the facility operating
license, or unless the Company has timely submitted an application for license
renewal; or (b) five months' notice should the Compact lose the authority
provided by federal law as of the time of entry of this sublease (Low-Level
Radioactive Waste Act of 1980 [as amended by the Low-Level Radioactive Waste
Policy Amendments Act of 1985], 42 U.S.C. Sec. 2021b-2021j) to exclude access to
the subleased premises for the disposal of out-of-compact region low-level
radioactive waste. Termination as provided in this paragraph does not, at the
State's discretion, relieve the Company of any outstanding obligations or its
obligations under Article X.
ARTICLE X
The Company's Withdrawal from Premises
--------------------------------------
1. The Company agrees that it shall, either before or within forty
working days after the expiration or termination of the sublease, remove from
the premises at its own expense, all of its personal property not affixed to the
land: PROVIDED, that if the Company fails to so remove its personal property,
the State may, at its option, (1) take title to such property without cost or
liability of any kind or (2) remove the personal property and have it stored on
behalf of the Company and at the sole expense of the Company, subject to any
storage liens and right of sale provided by law.
2. All fixtures and improvements on the subleased premises made by the
Company shall remain the property of the Company during the term of this
sublease no matter how they are attached to the land. Upon the termination for
default of this sublease, all fixtures and improvements shall be forfeited and
become the property of the State unless the State elects in writing within
ninety days of termination to have Company remove fixtures and improvements to
which the State does not intend to take title. If the State elects to have the
some or
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all of fixtures and improvements removed by Company, the Company agrees to
remove such fixtures and improvements identified in the notice, at Company's own
expense and within forty working days after notice of the State's election.
3. Upon the expiration or termination of this sublease, the subleased
premises and all personal property, alterations, additions, and improvements
remaining thereon and not removed (if removal is permitted under the above
sections of this article), shall be returned to the State with radioactive
contamination and the release of any other hazardous substances resulting from
the Company's activities reduced to a level and remediated in accordance with
the Site Stabilization and Closure Plan ("Closure Plan"), an agreed order or
consent decree entered into between the State and the Company pursuant to
Chapter 70.105D RCW, or an enforcement order issued by the State pursuant to
Chapter 70.105D RCW. The Company shall, at its own expense and to the extent
directed to do so by the State, implement the Closure Plan and any agreed order,
consent decree, or enforcement order, or at the option of the State, the State,
its contractors or other representatives may undertake compliance with the
Closure Plan and any agreed order and consent decree, and the Company shall
reimburse the State for the costs actually incurred for such compliance. The
provisions of this Article shall not apply to the costs of compliance with the
Closure Plan or any agreed order, consent decree, or enforcement order as
related to decontamination of any land used as a burial or storage site for
radioactive materials and wastes where appropriate payments have been made to
the State's Perpetual Maintenance Fund in accordance with Article VII.
4. The Company shall have a limited license after expiration or
termination of the sublease to enter the subleased premises for the purposes of
carrying out the provisions of this Article.
ARTICLE XI
Permits and Licenses
--------------------
The Company shall procure all necessary permits or licenses and abide by
all applicable laws, regulations and ordinances of the United States and of the
state, territory, and political subdivision in which the subleased premises are
located.
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ARTICLE XII
Protection Against Claims and Losses
------------------------------------
1. The Company shall indemnify and save harmless the State, the U.S.
Government and its agencies, contractors of the U.S. Government, and the
officers, employees and representatives of any of them, from any and all
liability, loss, damage or costs (including attorney's fees) incurred in or
arising out of any: (a) claim, suit, action or other legal proceedings arising
from, related to, or otherwise associated with the company's use of the
subleased premises, including the Company's erection or removal of any
equipment, building or part thereof or the making of any repairs, alterations,
additions or improvements upon the subleased premises; or (b) any default or
negligence in the performance of any covenant or obligation of the Company
hereunder: PROVIDED, That the foregoing shall not apply to any injury,
destruction or death as may be caused by the negligence or fault of the State,
the U.S. Government, contractors of the U.S. Government, or the officers,
employees or representatives of any of them; or (c) application of any law,
regulation, or other regulatory requirement as a consequence of the Company's
rights as a sublessee or the Company's use of the subleased premises.
2. For purposes of providing protection against the claims specified in
paragraph XII(l)(a) above, whether such activities be those of the Company, or
any of its contractors, or the officers, employees, agents or subsidiaries of
the Company, the Company maintain insurance in such amount as required by the
State pursuant to RCW 43.200.200, RCW 43.200.210, and this sublease, and Energy
as required through the Prime Lease, by notice to the Company in writing. As of
the initial term of this sublease, such insurance requirements shall be as
follows. Combined coverage of $20,000,000 on a claims made basis for (a) bodily
injury and property damage to third parties caused by sudden accidental
occurrences arising from operations of the subleased premises and (b) bodily
injury and property damage to third parties caused by non-sudden accidental
occurrences arising from operations of the subleased premises. The policy
providing coverage shall be consistent with the requirements of WAC
173-303-620(8)(b) (incorporating by reference 40 C.F.R. Sec. 264.147 (a), (b),
(f), (g), (h), (i), and (j)). The Company shall also maintain nuclear energy
liability insurance (facility form) in the amount of $10,000,000; and (d)
nuclear energy liability insurance (facility worker form) in the amount of
$300,000,000. The Company shall name the state government, and the federal
government, as additional insureds in any insurance policies obtained
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in compliance herewith. Copies of all insurance policies shall be filed with
the State and Energy and the insurance contracts shall provide that the State
and Energy shall be given ten days' advance notice by mail of changes in or
cancellation of any such insurance.
3. Notwithstanding any other provisions of this sublease, nothing
contained herein shall be construed to be a waiver on the part of the Company of
any financial protection or indemnity which might be afforded it under an
applicable nuclear hazards indemnity agreement executed either under provisions
of future state legislation or under the provisions of Sec. 170 of the Atomic
Energy Act of 1954, as amended, or other contractual authority of the State or
Energy.
4. The Company and the State agree that the insurance amount required
under paragraph XII.2 is subject to renegotiation at the request of either party
at five year intervals from the effective date of this sublease to ensure that
the amounts adequately cover the risk and keep pace with inflation. If the
parties fail to agree during any such renegotiations, the matter will be
resolved pursuant Article XXIII.
ARTICLE XIII
Casualty Destruction of Premises
--------------------------------
In the event the premises are destroyed, damaged or made unusable by fire,
flood, earthquake or other casualty, the State shall not be under obligation,
unless it consents, to restore or repair the premises in any way. If the State
elects not to restore or repair the premises, the Company shall have the right
(1) to restore or repair the premises at no cost to the sublessor (2) to
terminate the sublease upon curing any existing defaults and satisfying
Company's obligations under Article X.
ARTICLE XIV
Taxes, Maintenance Costs
------------------------
The Company agrees to pay all legally imposed taxes, assessments and
similar charges which may be levied by the duly constituted authority of the
State, or any political subdivision of the State upon the subleased premises and
upon any improvements now or hereafter upon the subleased premises.
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ARTICLE XV
Nondiscrimination in Employment
-------------------------------
The Company covenants and agrees that in all matters pertaining to the
performance of this lease, the Company shall at all times conduct its business
in a manner which assures fair, equal and nondiscriminatory treatment of all
persons without respect to race, sex, age, color, creed or national origin and,
in particular:
1. The Company will maintain open hiring and employment practices and
will welcome applications for employment in all positions from qualified
individuals who are members of racial or other minorities, and
2. The Company will comply strictly with all requirements of applicable
federal, state and local laws or regulations issued pursuant thereto relating to
the establishment of nondiscriminatory requirements in hiring and employment
practices and assuring the service of all patrons or customers without
discrimination as to any person's race, sex, age, creed, color or national
origin.
ARTICLE XVI
No Benefits for Officials
-------------------------
No member of Congress or the state legislature, or federal or state
government official shall be admitted to any share or part of this sublease, or
to any benefit which may arise therefrom.
ARTICLE XVII
No Contingent Fees
------------------
The Company warrants that no person or selling agency has been employed or
retained to solicit or secure this sublease upon an agreement or understanding
for a commission, percentage, brokerage, or contingent fee.
ARTICLE XVIII
No Waiver by the State
----------------------
The Company agrees that the State's failure to insist upon the strict
performance of any provision of this sublease or to exercise any right based
upon a breach thereof, or the acceptance by the State of any rent during such
breach, shall not waive any of the State's rights under this sublease.
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ARTICLE XIX
Condition of Subleased Lands
----------------------------
The Company warrants that it has inspected and is fully familiar with the
physical condition of the subleased lands. It is further understood that the
State has made no representations, warranties or undertakings as to such
condition, or as to the fitness or availability of the subleased land for any
particular use, or that the subleased land is free and clear of all
contamination and hidden hazards.
ARTICLE XX
Altering Premises
-----------------
The Company agrees that it will not make any substantial enlargement or
substantially change its facilities or operations without the prior written
approval of the State. For the purpose of obtaining State approval of either a
new facility or operation or enlargement or change of a facility or activity or
the operation thereof, the Company shall give to the State such information as
the State may request and will not interfere with, or endanger the same. If the
State approves an enlargement or change of a facility, it may impose conditions
and restrictions necessary to carry out the purposes of this article. This
article's requirements in no way affect the need for obtaining any license now
or hereafter required by any applicable law or regulation, either federal or
state, or the terms and conditions of any such license.
ARTICLE XXI
Additional Reserved Rights of the United States Department of Energy
--------------------------------------------------------------------
The United States Department of Energy has reserved from those lands
subleased to the Company the following rights in addition to the rights
otherwise provided for in this sublease:
1. The right to construct on the subleased land and to maintain, repair
and replace utility lines as may be necessary to provide electricity, heat,
water, steam; power, protective, gas, telephone and other communication
services, to the extent necessary for Energy, provided that such lines will not
unreasonably interfere with any of the Company's operations;
2. The right to construct on the subleased land and to maintain, repair
and replace drainage facilities, including sanitary sewers, storm sewers, and
other piping and conduits to the extent necessary for Energy;
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3. The right to place monitoring facilities, fire control and alarm
facilities on the subleased land to the extent necessary for Energy, and to use,
repair and maintain the same; and
4. The right to construct access roads and railway facilities on the
subleased land to the extent necessary for Energy, and to maintain, replace, and
repair the same provided such roads and facilities will not unreasonably
interfere with any of the Company's operations.
ARTICLE XXII
Disputes with the U.S. Government
---------------------------------
The Company recognizes that under Article 19 of the Prime Lease, the State
is obligated to exhaust its remedies under federal administrative disputes
procedures, and that the rights of the Company as sublessee, derived through the
State, are subject to the same obligation. In the event of a dispute with
Energy in which the Company has an interest, the State agrees to present the
Company's claim in good faith and with reasonable diligence, and shall not
oppose the intervention by the Company as may be permitted under federal or
state law, or by the action of any such federal agency, for the purposes of
representing its own interests in all such controversies. The Company agrees to
accept the outcome of such controversy without recourse against the State for
the manner in which the State shall have presented the Company's claim,
provided, however, that the Company shall not be bound by this Article from
pursuing any other administrative remedy authorized by statute, regulation or
law. In the event that the Company is the real party in interest in any such
claim and requests in writing that the State represents its interests, it will
reimburse the State for its reasonable costs in presenting the case; and if the
State, or others, is likewise interested therein, the Company will pay its fair
share of the expenses.
ARTICLE XXIII
Disputes between the Parties
----------------------------
Any dispute under Article IV, Article XII, or Article XXV between the
Company and the State concerning a question under this sublease which is not
disposed of by agreement, shall be decided by arbitration in each instance in
the following manner: Within fourteen days of either party invoking the dispute
resolution process of this Article, each of the parties shall name and pay the
cost of one arbiter, and the two persons thus designated shall appoint a third
whose cost shared by shared equally by the parties, the said three persons to
constitute a board of arbitration whose decision shall be final and conclusive
upon the parties.
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ARTICLE XXIV
Notices
-------
All notices, demands, requests, consents, approvals, and other
communications which may or are required to be given by either party to the
other under this sublease shall be in writing and shall be deemed to have been
sufficiently given for all purposes when delivered or mailed by first class
registered or certified mail, postage prepaid.
1. Notice to the State: To the Director, Department of Ecology, Olympia,
---------------------
Washington 98504 or at such other address as the State shall have furnished to
the Company in writing.
2. Notice to the Company: US Ecology Washington, Inc., Lakepointe Centre
-----------------------
I, 300 E. Mallard Drive, Suite 300, Boise, Idaho, 83706, or at such other
address as the Company shall have furnished to the State in writing.
ARTICLE XXV
Closure Fund
------------
In order to assure the proper and expeditious closure of the facility after
the cessation of waste disposal activities of the facility, the State may
require additional closure fees to be deposited in the Perpetual Maintenance
Fund. The State shall maintain a segregated account of closure fee payments
which are deposited in the Closure Fund which shall be utilized in paying all
reasonable costs of closure, including approved closure related work prior to
the cessation of waste disposal activities, required pursuant to the provisions
of the facility license and Article X.
Prior to re-imposing closure fee requirements, the State shall provide
reasonable notice to the Company of such determination and shall afford the
Company an opportunity to be heard. Upon failure of the Company and the State
to agree on an increased amount, the issue shall be submitted to arbitration
under Article XXIII. The State warrants that it will invest monies collected
for closure in the same manner as other state monies and in accordance with
state law.
Any required closure fee shall be paid to the State on a quarterly basis
for the quarters ending January 15, April 15, July 15, and October 15, provided,
however, that the Company shall have up to forty-five (45) days from the end of
each quarter to secure collection of the fees from its customers and
subsequently make payment
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to the State. In the event that the Company performs approved closure
activities at the facility, the State warrants that the Company shall be
reimbursed for its costs plus a reasonable profit as shall be agreed to by the
parties from those monies collected for closure. The State, subsequent to
satisfactory performance of closure by the Company or any other entity
acceptable to the parties (provided that the Company shall not unreasonably
withhold its approval of a duly qualified entity) shall transfer any unexpended
monies from the closure account to the perpetual maintenance account.
All payments to the State shall be made in lawful money of the United
States at the Department of Ecology, Olympia, Washington, or as otherwise
designated in writing by the State, without notice or demand by the State. The
State shall maintain a segregated account of closure fee payments which are
deposited in the Perpetual Maintenance Fund. The Company shall identify
payments made for closure separately from payments made for Perpetual Care and
Maintenance.
ARTICLE XXVI
Captions
--------
The captions in this lease are for convenience only and do not in any way
limit or amplify the provisions of this lease.
ARTICLE XXVII
Invalidity of Particular Provisions
-----------------------------------
If any term or provision of this lease or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this lease or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby and shall continue in full force and
effect.
ARTICLE XXVIII
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.
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ARTICLE XXIX
Time of Essence
---------------
Time is expressly declared to be of the essence of this agreement and each
and every covenant of the Company and the State hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this sublease.
STATE OF WASHINGTON
---------------------------------------------
JAY MANNING, Director
Department of Ecology
US ECOLOGY WASHINGTON, INC.
By:
------------------------------------------
STEPHEN ROMANO, President and Chief Executive
Officer
Approved as to form only this _______ day of _____________________, 2005.
ROB McKENNA
Attorney General
----------------------------------------
ANDREW A. FITZ
Assistant Attorney General
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(FOR SUBLESSEE)
STATE OF__________________ )
) ss.
County of ________________ )
On this ______ day of __________________, ______, before me personally
appeared _________________________________, to me known to be President of US
Ecology Washington, Inc., Lakepointe Centre I, 300 E. Mallard Drive, Suite 300,
Boise, Idaho, 83706 and executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
corporation, for the uses and purpose therein mentioned, and on oath stated that
he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
_____________________________________
Printed Name:__________________________
NOTARY PUBLIC in and for the State of
________________, residing at __________.
My Commission Expires: _________________.
(FOR SUBLESSOR)
STATE OF__________________ )
) ss.
County of ________________ )
On this ______ day of __________________, ______, before me personally
appeared _________________________________, to me known to be Director,
Department of Ecology, of the State of Washington, and executed the within and
foregoing instrument, and acknowledged said instrument to be the free and
voluntary act and deed of said State, for the uses and purposes therein
mentioned, and on oath stated that he was authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year first above written.
______________________________________
Printed Name: _______________________
NOTARY PUBLIC in and for the State of
_______________, residing at _________.
My Commission Expires: _______________.
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