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LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made by and between BIF III HOLTWOOD, LLC, a Delaware limited liability company having an address of PO Box 122, 126 Lamberton Lane, Hawley, PA 18428, hereinafter called “Licensor,” and Rockledge Community Association c/o Steve Goldfarb, President, having an address of 103 Ledge Drive, Lakeville, PA 18438, hereinafter called “Licensee.” RECITALS:
WHEREAS, Licensor operates the 44-megawatt Wallenpaupack Hydroelectric Project (“the Project”) located within the Delaware River Basin on Lake Wallenpaupack Creek and the Lackawaxen River in Pike County and Wayne County, Pennsylvania; and
WHEREAS, pursuant to the license issued to Licensor by the Federal Energy Regulatory Commission (“FERC”) for its hydroelectric project, Licensor is obligated to, among other things, formulate and implement a Public Lake Use and Shoreline Use Permitting Policy (“Shoreline Policy”); and
WHEREAS, pursuant to its FERC License, Licensor has the authority to grant permission for certain types of uses and occupancies of Lake Wallenpaupack and the surrounding lands, including commercial uses, provided such uses and occupancies are consistent with the provisions of its FERC license, including but not limited to protecting and enhancing the scenic, recreational and other environmental values of the Project; and
WHEREAS, Licensee is the owner of property located in Paupack Township, Wayne County, Pennsylvania, identified as Control Number 057015, 052157 and 057028, which property is more fully described in the deed recorded at Deed Book 348, Page 109 in the Wayne County Recorder of Deeds office, which Deed is attached hereto as Exhibit “A”; and
WHEREAS, Licensee’s property is adjacent to Licensor’s property, and Licensee desires to use certain property owned by Licensor (the “licensed area”); and
WHEREAS, pursuant to its FERC License, Licensor is entering into this License Agreement with Licensee to allow Licensee’s proposed use and operation of the licensed area subject to the terms and conditions herein.
WITNESSETH THAT, for and in consideration of the mutual covenants, conditions and other promises set forth herein, the sufficiency and adequacy of which being acknowledged by the parties, Licensor hereby grants to Licensee the right to use, maintain, and operate a commercial enterprise as described below, under the following terms and conditions:
1. The annual license fee due to Licensor from Licensee shall be $2,891.00. The license fee shall be due within thirty (30) days of the date of yearly invoice sent to Licensee from Licensor. Licensor may increase the annual license fee for any renewal term at Licensor’s sole discretion without prior notice at not more than (10%) per year, provided that any increase of the annual license fee shall be made by November 1st for the following lake use season and Licensor shall notify Licensee of such fee increase by November 15th prior to such lake use season.
2. (a) The initial term of this license shall be five (5) years commencing on April 1, 2017 and ending on April 1, 2022. After the expiration of the initial term, the License shall automatically continue on a year-to-year basis unless it is replaced by a new License Agreement approved by both parties or is otherwise terminated or revoked pursuant to the terms and conditions set forth herein. Nothing herein shall preclude Licensor from suspending or terminating this license pursuant to Section 16 below. Any prior permits, license or other agreement between Licensor and Licensee are hereby terminated. (b) This License may not be assigned, transferred, subleased or sublicensed by Licensee without Licensor’s prior written consent. Licensor will not allow any assignment, transfer, sublease or sublicense unless (1) the Licensee is in compliance with this License Agreement; (2) all annual fees have been fully paid; and (3) Licensor receives written notice by the assignee, transferee, sublessee of sublicensee that he/she accepts all liabilities and responsibilities under the License Agreement. Until and unless the license is transferred upon Licensor’s written approval, all liabilities and responsibilities remain with Licensee.
3. Licensee’s right to utilize the licensed area and to place improvements and structures, including docks, on the licensed area shall be expressly limited to the uses, improvements and structures set forth on Exhibit “B” attached hereto. Licensee shall construct and maintain all structures and facilities in good repair. If Licensee’s use exceeds the uses, improvements and/or structures set forth on Exhibit “B”, Licensee shall be considered to be in breach of this License Agreement. If Licensee desires to expand its use and operation or increase the number of structures and/or improvements, or if Licensee desires to do any additional work on the licensed area, including but not limited to earthmoving activities, vegetation removal, etc. Licensee shall be required to first obtain the written approval of Licensor, and in such case, Licensee understands that Licensee may be required to obtain additional permits and/or other approvals from Licensor. Additionally, Licensee understands that any expansion or change in its operations or increase in the number of structures and improvements may require Licensor to obtain approval from FERC. Licensor may add conditions and/or restrictions at any time on the Licensee’s use and operation if necessary to comply with its Shoreline Policy and/or FERC License or any amendments, renewals or supplements thereto. Provided, however, that Licensor shall give Licensee notice of the additional conditions and/or restrictions by November 1st for Licensee to meet such additional conditions and/or restrictions for the following lake season. Furthermore, if a restriction is proposed that would result in the reduction in the number of Licensee’s dock slips, it shall not be added to this License unless it is necessary to protect public safety or is necessary to comply with any federal, state or local law, ordinances or regulations or to comply with any regulations, laws or rulings of FERC or other governmental agency or to comply with any order of court. Nothing
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herein shall obligate or require Licensor to allow any use beyond those set forth on Exhibit “B” or seek FERC approval for any additional or expanded use beyond that set forth on Exhibit “B”.
4. Licensee agrees that its use and occupancy of the licensed area and Lake Wallenpaupack in general shall not endanger health, create a nuisance, or otherwise be incompatible with overall Project recreational use.
5. The Licensee is responsible for proper design, engineering, construction, installation and maintenance of all structures and facilities Licensee may install in the licensed area. Neither Licensor’s review nor approval of the license application nor any inspection by Licensor is any guarantee or assurance that the Licensee’s plans or facilities are safe, proper or adequate for the purposes intended. Licensee agrees that it shall take all reasonable precautions so that the construction, operation, and maintenance of the permitted facilities will occur in a manner that protects the scenic, recreational, and other environmental values of the Project. 6. All expenses and responsibilities for the construction, installation, operation and maintenance of any facilities in the licensed area, including the expenses of obtaining all necessary federal, state, and local permits or approvals, shall be borne solely by the Licensee. 7. Licensee agrees to keep the project lands and waters occupied by, and surrounding, the licensed facilities free of all waste, garbage and other unsightly debris and materials. 8. Licensee agrees that any use of portable toilets on licensed area will be for seasonal use only and all portable toilet facilities must be removed at the close of the season. 9. Licensee agrees that its use of the licensed area and its exercise of its rights pursuant to this License Agreement shall at all times be in compliance with all federal, state and local statutes, laws, ordinances and regulations, as well as with any and all regulations promulgated by any municipal, state, federal or other governmental agencies. Additionally, Licensee’s use of the licensed area shall comply with Licensor’s FERC license, the Relicensing Settlement Agreement, the Shoreline Policy and any amendments, renewals or supplements of or to the FERC License, the Relicensing Settlement Agreement or the Shoreline Policy.
10. The Licensee agrees that if the operations of Licensor require an alteration in the location of any structures or facilities in the licensed area, or, if in the opinion of Licensor, any such facilities or structures shall cause unreasonable obstruction to navigation, which does not result in the reduction or elimination of dock slips, then Licensee shall be required, upon written notice from Licensor, to remove, alter, or relocate such structures or facilities at Licensee’s sole cost and expense and without expense to Licensor. Notwithstanding the foregoing, Licensor may require the reduction or elimination of dock slips if such reduction or elimination is required by or results from any decision or ruling of a court of competent jurisdiction or governmental agency, or if such reduction is required by any federal, state or local law, regulation or ordinance. Licensor shall notify Licensee by November 1st for Licensee to make such required changes by the following lake use season. 11. In connection with the ownership, construction, operation or maintenance of any structures or facilities in the licensed area, Licensee shall take no action to forbid the full
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and free use by the public of Licensor’s lands or any project waters, or to unreasonably interfere with land or water-based recreation.
12. Licensee agrees that if a previously undiscovered cultural resource site is discovered during any construction, operation, and/or maintenance of the facilities on the licensed area, it will cease all activity at the licensed area immediately and immediately contact the Licensor.
13. Licensor may, at its discretion, conduct inspections of the licensed area and any structures or equipment placed thereon or may require documentation from Licensee (including photographs, invoices, construction records, etc.) demonstrating compliance with this License Agreement, Licensor’s Shoreline Policy and/or Licensor’s FERC license. Licensee hereby grants Licensor access to Licensee’s property to conduct such inspections and take such actions as are set forth herein.
14. Licensee agrees to reimburse Licensor for any costs (including reasonable attorney’s fees and costs of suit) that Licensor may incur in enforcing this License Agreement or Licensor’s Shoreline Policy. Licensee shall reimburse Licensor for all damages to Licensor’s property resulting from any violation of the License Agreement, the Shoreline Policy and/or Licensor’s FERC license.
15. Licensor shall retain the full, unconditional, unrestricted and complete right and privilege to raise or lower, restrict, control, store, retain, withhold, increase, decrease, retard, stop, obstruct, divert or use the waters of Lake Wallenpaupack in any manner that Licensor, its successors and assigns, may deem appropriate. The erection, operation and maintenance by the Licensee of any structures or facilities in the licensed area shall in no way interfere with such aforementioned uses, regulations, or control of the lake or its water by Licensor.
16. (a) Except as stated in (c) below, by giving thirty (30) days’ written notice mailed to the Licensee by registered or certified letter, Licensor may suspend this license whenever it determines that the Licensee has failed to comply with the conditions of this License Agreement, Licensor’s Shoreline Policy and/or Licensor’s FERC license, including the payment of any fee, failure to comply with any additional conditions imposed by Licensor or by any federal, state or local agency; or is in violation of any federal, state or local law, regulation or ordinance. The suspension notice shall state that the License is suspended and specify the reasons for such action. Provided, however that Licensee shall have the opportunity to cure any violation prior to revocation/termination during the thirty (30) days suspension period, or if it is not possible to make the cure within the thirty (30) day period because it requires closing down some or all of the licensed use, shall propose in writing, within such thirty (30) days, a plan for curing the violation prior to the next lake use season and the suspension period shall be so extended.
(i) Licensee may request a review of the suspension notice by a review board, which review board shall be the Lake Advisory Committee or a subcommittee thereof, by submitting a written notice to the Licensor prior to the
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expiration of the thirty (30) day suspension period. Licensee’s suspension shall remain in full force and affect during the time that the period of time the review board reviews the suspension. The review board shall hold a hearing to review the facts and circumstances surrounding the suspension, and shall make a recommendation to Licensor as to a proposed resolution. Once a request is made by Licensee, no revocation shall be made by Licensor until the review has been completed and a recommendation issued by the review board. The recommendation of the review board shall be advisory in nature and shall not be binding on Licensor.
(b) In the event that Licensee fails or refuses to cure the violation during the suspension period, then Licensor shall revoke this license and this License Agreement shall be terminated.
(c) Notwithstanding (a) above, if the violation involves a threat to public safety and/or the environment or if the Licensee fails to maintain the required insurance coverage, Licensor may summarily revoke this license with less than 30 days notice. Violations involving environmental concerns or violations of federal, state or local laws, regulations or ordinances or rulings of court or other governmental agency determinations or lapse of insurance coverage shall not be subject to review by the review board.
(d) If Licensee ceases to operate and maintain the licensed area or the facilities located thereon, or upon expiration of this License Agreement, or termination of this License Agreement, the Licensee shall within ten (10) days, at Licensee’s expense, surrender the licensed area to Licensor, remove all structures and equipment owned by Licensee or authorized by Licensor to be placed on the licensed area, and return the licensed area to Licensor in its present condition, normal wear and tear excepted. If the Licensee fails to complete removal and restoration to the satisfaction of Licensor, Licensee agrees that Licensor may do so and that Licensor may recover all costs and expenses incurred by Licensor from the Licensee.
17. Licensor shall not be liable for any damage or injury to any of Licensee’s facilities which may be caused by, or result from, the operations of Licensor, or any federal, state or local agency of the government, for the improvement of navigation or for other lawful purposes, and no claims or right to compensation shall accrue from any such damage.
18. Licensee shall release, quitclaim, discharge, indemnify, defend and hold harmless Licensor and its affiliated companies, their officers, directors, employees, agents, successors and assigns, from and against any and all loss, liability, damage, demands, claims, suits, fines, penalties or causes of action whatsoever, for damage to personal property or for personal injury, under any theory, including but not limited to contract or tort claims (including claims alleging the negligence of Licensor or its affiliated companies), caused by, resulting from, or in any way related to or arising from this License Agreement or the terms thereof and/or the use, operation, maintenance or repair of the licensed area or Lake Wallenpaupack by Licensee or by Licensee’s agents, employees, invitees, guests, contractors, successors and/or assigns. The indemnification obligations included herein shall include Licensee’s indemnification of Licensor with respect to any third-party or environmental claims.
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19. Licensee shall not store any hazardous substances in or on the licensed
area. 20. Licensee shall maintain insurance coverage as set forth in Exhibit “C” attached hereto and shall furnish Licensor with an insurance certificate as proof of such coverage.
21. This License Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, except as specifically limited herein.
22. Licensor shall have the right to unilaterally modify, alter or amend the terms of this License Agreement if required to do so by FERC, or if in the judgment of Licensor such amendment, alteration or modification is required to comply with Licensor’s FERC license, the Relicensing Settlement Agreement or the Shoreline Policy and any amendments, renewals or supplements of or to the FERC license, the Relicensing Settlement Agreement or the Shoreline Policy. Except as otherwise set forth in the preceding sentence or as provided otherwise in another provision of this License Agreement, this License Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by both parties. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this License Agreement.
23. No failure or delay on the part of Licensor hereto in exercising any right, power or privilege herein granted shall operate as a waiver thereof, and no course of dealing between the parties shall operate as a waiver of any right, power or privilege granted herein; nor shall any single or partial exercise of any right, power or privilege herein by Licensor preclude any other or further exercise thereof or the exercise of any other right, power or privilege by Licensor.
24. If any part or provision of this License Agreement shall be determined to be invalid by a court of competent jurisdiction, said part shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of said provision or the remaining provisions of this License Agreement.
25. Time is and shall be deemed of the essence with respect to the performance of each provision of this License Agreement.
26. This License Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania excluding its choice of laws rules. The parties hereto waive any and all rights they may have to a jury trial.
27. If Licensor commences legal action against Licensee arising out of or in connection with this License Agreement, Licensor shall be entitled to recover from Licensee
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attorneys’ fees, costs of suit, investigation expenses, and discovery costs, and including costs of appeal.
28. In no event shall licensor be liable for (a) any direct damages arising from any loss or liability incurred in connection with this agreement except for actual damages to the extent arising from licensor’s acts of willful misconduct or fraud or (b) consequential, special, incidental, loss of revenue, loss of use or other indirect damages.
29. This License Agreement has been duly authorized by all required corporate or other necessary action of both parties and, upon execution hereof, this License Agreement shall constitute a valid and binding obligation of both parties, enforceable in accordance with its terms.
30. This License Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and it supersedes any and all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this License Agreement as of the day and year written below.
LICENSOR:
WITNESS: BIF III HOLTWOOD, LLC
BY: Heather L. Hopkins, Land Use Specialist
DATE:
LICENSEE:
WITNESS: ROCKLEDGE COMMUNITY ASSOCIATION
BY: Steve Goldfarb, President
DATE:
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Exhibit “A” Deed
LAKE WALLENPAUPACK F.E.R.C. Licensed Project No. 487 BIF III Holtwood, LLC Lake Office PO Box 122 Hawley, PA 18428-0122
EXHIBIT “B”
License Status: COMMUNITY ACCESS/COMMERCIAL
Permission is hereby granted to Rockledge Community Association, to use and maintain the following facilities on project lands of BIF III Holtwood, LLC at Lake Wallenpaupack:
LAND USE FACILITIES
Fronting Lot #60 – “Community Landing” – Property ID#04900* ANNUAL FEE
Standard Land Uses: $ 44.00
• One (1) Concrete Boat Ramp – 14 feet wide; • One (1) Gravel Launch Road – 14 feet wide; • One (1) Gravel Parking Area; • Three (3) Gravel or Loose Stone Paths – 5 feet wide; • Three (3) Sets of Wooden Steps – 5 feet wide; • One (1) Loose Stone Fire Pit or Circle – 4 feet wide by 4 feet long; • Underground Drainage Pipes/Culverts; • Electric Wiring, Lighting Fixtures & Utility Poles for Shoreline Lighting; • Lawn Furniture;
Nonstandard Land Uses:
• Two (2) Gravel Paths Below the Normal High Water Mark of Lake (PPL Nonstandard Permit Acquired) – 5 feet wide;
Fronting “Boat Road” (Between Lot 35 and Lot 50) - Property ID#04926* ANNUAL FEE
Standard Land Uses: $ 44.00
• One (1) Gravel Launch Road – 14 feet wide; • One (1) Loose Stone Fire Pit or Circle – 4 feet wide by 4 feet long; • Electric Wiring, Lighting Fixtures & Utility Poles for Shoreline Lighting; • Lawn Furniture;
License Agreement Page 1 of 3 2/20/2017
Fronting “Community Lake Access Area” (Adj. to Lot 36) - Property ID#04914* ANNUAL FEE
Standard Land Uses: $ 44.00
• One (1) Gravel Path – 5 feet wide; • One (1) Sand Box w/Stone Wall – 25 feet wide by 28 feet long; • One (1) Loose Stone Patio – 40 feet wide by 18 feet long*; • One (1) Loose Stone Fire Pit or Circle – 4 feet wide by 4 feet long; • Electric Wiring, Lighting Fixtures & Utility Poles for Shoreline Lighting; • Lawn Furniture;
Nonstandard Land Uses:
• One (1) Loose Stone Wall at the Normal High Water Mark;
WATER USE FACILITIES
Fronting Lot #60 (Community Landing) - Property ID#04900* ANNUAL FEE
• Dock “A” One (1) Dock 45 feet wide by 230 feet long $ 33.00 30 Watercrafts @ $33.00/watercraft $ 990.00
CLAUSE: No watercrafts are to be moored on end of dock.
• Dock “B” One (1) Dock 45 feet wide by 230 feet long $ 33.00 30 Watercrafts @ $33.00/watercraft $ 990.00
CLAUSE: No watercrafts are to be moored on end of dock.
• Dock “C” One (1) Dock 25 feet wide by 230 feet long $ 33.00 15 Watercrafts @ $33.00/watercraft $ 495.00
CLAUSE: No watercrafts are to be moored on end of dock.
Fronting “Boat Road” (Between Lot 35 and Lot 50) - Property ID#04926* ANNUAL FEE
• One (1) Dock 4 feet wide by 50 feet long $ 33.00 2 Watercrafts @ $33.00/watercraft $ 66.00
CLAUSE: No watercrafts are to be moored on end of dock.
Fronting “Community Lake Access Area” (Adj. to Lot 36) - Property ID#04914* ANNUAL FEE
• One (1) Dock 12 feet wide by 55 feet long $ 33.00
CLAUSE: No watercrafts are to be moored on this dock.
• One (1) Dock 24 feet wide by 30 feet long $ 33.00
CLAUSE: No watercrafts are to be moored on this dock.
License Agreement Page 2 of 3 2/20/2017
• One (1) Swim Float 10 feet wide by 13 feet long $ 20.00
CLAUSE: No watercrafts are to be moored on this dock.
SUBTOTAL: $ 2,759.00
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ANNUAL LAND USE FEES: $ 132.00 ANNUAL WATER USE FEES: $ 2,759.00
Total for Season: $ 2,891.00
* License tag number (property identification) which corresponds with this License Agreement must be displayed on the front of each permissible dock, if applicable, so as to be seen by a boat on the lake. Additionally, all additional sections of each dock must have this property identification number displayed. It is the front lot owner’s responsibility to find a means by which to mark each section of their dock with this property identification number.
License Agreement Page 3 of 3 2/20/2017
Exhibit C – INSURANCE REQUIREMENTS
Licensee shall, without additional cost to Company, maintain with insurance companies rated A- or better, and financial strength of VII or higher by A.M. Best, the minimum insurance coverages, hereinafter referred to as the “Required Coverages”, as set forth below. The Commercial General Liability coverage required of Licensee shall be written on an occurrence basis and all required coverages shall be in full force and effect during the contract term.
Evidence of Required Coverages is required and a certificate of insurance acceptable to Company shall be furnished to Company’s Authorized Representative within ten (10) days of the execution of this contract and within ten (10) days of each insurance renewal term. Certificates should provide at least 30 days’ notice to BIF III Holtwood, LLC of any cancellation, non-renewal or adverse change in policy terms and conditions.
Policies shall contain endorsement (if terminology is not in printed form) that Licensee’s policy shall be primary in all instances regardless what, if any, like coverages are carried by Company. Certificate of insurance must show the NAIC # of the insurer(s). Policies shall include Licensor as an Additional Insured with the following address: BIF Holtwood LLC, 126 Lamberton Lane (P.O. Box 122), Hawley PA 18428.
Licensee’s liability under this Contract shall not be limited to the Required Coverages.
MINIMUM INSURANCE TYPE OF COVERAGE COVERAGE REQUIRED
1. Commercial General Liability or Excess Liability Form
Bodily Injury and Property Damage $3,000,000 General Aggregate Including, but not limited to, the following with the same above limit of liability for Bodily Injury and Property Damage:
(a) Contractual Liability (b) Personal Injury (Delete Employee Exclusion) (c) Products and Completed Operations (d) Broad Form Property Damage (e) Explosion, Collapse and Underground
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