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HomeMy WebLinkAboutCOM 0339.000 1998-2000 ' t-G~. i ~1 L~J William G. Davis a,~,;; Stephen K. Yamashiro ~ n IU~ Managing Director Mayor JJ J 7 pm 1 O ' 71 1 8 1 6 Henry Cho his ~ ;Mr Deputy Managing Director OF H~W111 ~nixixtg of ~t~ft~ttii 25 Aupuni Stree[, Room 215 Hilo, Hawaii 96720-4252 (808) 961-8211 Aax (BOS) 961-6553 KONA: 75-5706 Kuakini Highway, Suite 103 Kailua-Kona, Hawaii 96740 (BOS) 329-5226 • Pax (808) 326-5663 June 8, 1999 The Honorable James Y. Arakaki, Chairperson and Members of the Council of the County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Chairperson Arakaki: Subject: Resolution of the Council of the County of Hawaii Authorizing the Issuance of a License over a Portion of the Former Hamakua Sugar Company, Inc. Lands now under County Ownership situate at Waikoekoe, Hamakua, Hawaii Tax Map Key: 3rd/4-8-03:05 (Portion) Enclosed please find the above titled resolution and a draft license document. The resolution will provide the Finance Director with the authority to issue a license to Winkler Wood Products, Inc. for the harvest of Cook Pine (Araucaria columnaris) and various Eucalyptus species (Eucalyptus spp.) from and for the replanting of Cook Pine on a 40.0 acre, more or less, portion of Tax Map Key: 3rd/4-8-03:05 situate at Waikoekoe, Hamakua, Hawaii. The harvesting and replanting activities on the premises shall be consistent with the methods and procedures described in the Informational Document which was prepared for this disposition. Should you or members of the Council have any questions on this resolution, please feel free to call on Executive Assistant Glenn Y. Taguchi at 961-8503. Sincerely, PHEN K. AMASHIRO ayo r G~ ~ ~ /c ~ / Comm. No. ~ ~ / File No.~- R,ei. Toy FG JUN 0 81999 DRAFT LICENSE NO. 001-99 THIS LICENSE, entered into this day of , 1999, by and between the COUNTY OF HAWAII (hereinafter called the "LICENSOR"), by its Director of Finance (hereinafter called the "Director"), and WINKLER WOOD PRODUCTS, INC., a corporation (hereinafter called the "LICENSEE"), whose mailing address is 261-A Kekuanaoa Street, Hilo, Hawaii 96720. WITNESSETH: THAT FOR AND IN CONSIDERATION of the payments, terms, covenants, conditions and agreements hereinafter set forth, the Licensor does hereby grant to the Licensee, a license to enter upon a 40.00 acre portion, more or less, of the County-owned lands situate at Waikoekoe, Hamakua, Hawaii (hereinafter called the "County lands") and more particularly identified as Tax Map Key: 3rd/4-8-03:05 (Portion) and delineated on the map attached hereto as Exhibit "A" and made a part hereof, and is further identified as GPS coordinates and to harvest from said County lands, Cook Pine (Araucaria columnaris), various Eucalyptus species (Eucalyptus spp.) and other tree species, to include non-timber forest products in such amounts as hereinafter provided and to re-plant said County lands with Cook Pine seedlings (Araucaria columnaris) for each tree harvested irrespective of the species harvested. I. HARVEST, TERM, AND PROCESSING A. Harvest. Replant, Reservations 1. Harvest. Products, Species. The Licensee shall be permitted to harvest and remove from the County lands as designated by the Logging Plan, which is required under Section 1.6.2 herein, so much Cook Pine (Araucaria columnaris) and various Eucalyptus species (Eucalyptus spp.) as needed; provided, that the harvesting of the Cook Pine shall be on a sustained yield basis to guarantee the continuous availability of Cook Pine from the County lands. 2. Prohibition. The harvesting of Koa (Acacia koa) and other native tree species is prohibited under this License. 3. Set Asides. The Licensor may, at its sole discretion, set aside certain areas within the County lands for timber research, experimental plantings, education, and government preserves upon written notice to the Licensee; provided, that the Licensor shall make available additional adjacent lands of equal acreage to the set asides reserved herein. Additional areas for other purposes may be set aside upon mutual consent between the Licensor and the Licensee. ~~?~FT 4. Replant. The Licensee shall replant the County lands with Cook Pine (Araucaria columnaris) seedlings for each tree harvested regardless of the tree specie harvested. 5. Leave or Residual Trees. The Licensor reserves the right to designate certain trees as leave or residual trees. The Licensee shall not harvest and shall avoid damage to those certain leave or residual trees designated herein. 6. Other Species. All other tree species, to include non-timber forest products, which are not identified at this time, will be negotiated on a case-by-case basis with the Licensee. 7. Clearing, Grubbing, etc. The Licensee is also licensed to harvest or otherwise cut within the County lands so much of the tree and other vegetation growth, with the exceptions stated in Sections f.A.2, I.A.3 and I.A.5 herein, as shall be necessary for the purpose of clearing, grubbing and grading for the establishment of roads, landings and other installations required by the Licensee to conduct its operations under this License; provided, that no such clearing, grubbing or grading shall be undertaken except in accordance with an approved Logging Plan which is required under Section I.B.2 herein. 8. Force Maieure. In the event that all or part of the estimated volume within the County lands should be destroyed by fire or other destructive agent, not due to the negligence of or beyond the control of the Licensee, during the term of the License, the parties herein shall be released and relieved of their respective obligations under the License to the extent of the volume destroyed. B. Term and Scheduling 1. Term of License. The Licensee shall have the exclusive right and privilege for a term of one (1) year, commencing on and ending on ,both dates inclusive, or such shorter time as is necessary, within which to enter upon the County lands to harvest the tree species and other forest products, all in accordance with this License. This License may continue for a period not to exceed one year from the date of issuance; provided, that the Director may allow the license to continue on a month-to-month basis for additional one year periods. Further provided, that nothing contained herein shall restrict the Licensor from disposing of any and all of its interest in said County lands; provided, said disposition is approved by resolution by the Council of the County of Hawaii. 2 2. Determination of Harvest Schedule. The County lands where the Licensee shall conduct its operations is identified on the map attached hereto as Exhibit "A". Thirty (30) calendar days before the commencement of operations, the Licensee shall provide the Licensor with a Harvest Schedule for the complete term of this License and a Logging Plan for an initial period of at least three months, but not to exceed six months, of operation. The Harvest Schedule and the Logging Plan shall be consistent with the methods and procedures described in the Informational Document attached herewith as Exhibit "B". a. The Licensee shall commence harvest operations within 120 calendar days of the issuance of this License. If no tree harvesting is conducted within 120 calendar days after the License has been issued, the Director shall be entitled to terminate this License. b. The Harvest Schedule shall indicate on maps and through a narrative, the sequence of harvesting of the County lands, the principal road network to be used, and an anticipated time schedule. c. The Logging Plan shall provide such additional detail as to the scheduling of harvest, roads to be used, treatment of logging debris and other matters as may be required by the Licensor. d. Thirty (30) calendar days prior to the completion of each Logging Plan except the final plan, a new Logging Plan for the following three to six month period shall be submitted to the Licensor for approval. e. No Logging Plan will be implemented until approved in writing by the Licensor. C. Processing Within the State of Hawaii. Not less than 75 percent of all forest products harvested by the Licensee under this License shall be milled, or otherwise given primary processing within the State of Hawaii. The chain of custody of said forest products shall be supported by a log-to-mill transmission report. Said report shall be available for inspection in accordance with Section II.D.3 herein. II. MUTUAL COVENANTS AND AGREEMENTS The Licensor and Licensee do hereby mutually covenant and agree as follows: 3 C~i~FT A. Method and Rate of Payment 1. Payment for tree species harvested under this License shall be based on the scaled measurement of the harvested trees at the following rates using the International one-quarter inch (1/4") log rule: a. Cook Pine (Araucaria columnaris): $400.00 per one thousand board feet. b. Various Eucalyptus species (Eucalyptus spp.): $200.00 per one thousand board feet. 2. Payment for other tree species, to include non-timber forest products, will be negotiated on a case by case basis, and the terms and conditions of said agreement shall be made a part of this License through a Memorandum of Agreement. 3. Appropriate documentation of the units of tree species and non-timber forest ~roducts harvested shall be provided to the Director by the 10 n of the month following the harvest. 4. Advance Payment Fund: The Department of Finance, County of Hawaii shall establish an Advance Payment Fund to receive Advance Payment Deposits of the Licensee. a. The Licensee shall make an initial Advance Payment Deposit in the amount of one thousand and no/100 Dollars ($1.000.00) prior to commencing harvest operations. b. Upon receipt of the harvest summaries, the Director shall initiate the transfer of funds sufficient to pay for the forest products harvested from the Advance Payment Fund to the General Fund of the County of Hawaii. c. Before the Advance Payment Fund is depleted, the Director shall notify the Licensee to deposit in the Advance Payment Fund an amount sufficient to restore the fund to its initial amount, or to such larger amount as may be necessary for the forest products which are harvested in a month, or to such lesser amount that the Director may approve. If the deposit is not received within 15 days, the Director may suspend all or any part of the operations under this License until such deposit is received. 5. The Licensee shall make all payments to the Director of Finance, County of Hawaii, 25 Aupuni Street, Hilo, Hawaii 96720. 4 JUN 0 81999 ®R~4FT B. Conduct of Harvest Operations 1. Utilization Practices. All Cook Pine and Eucalyptus trees in the County land, whether standing, broken or windthrown, shall be utilized to a six inch (6") top diameter. All branch material greater than six inches (6") in diameter shall be harvested. All stumps shall be cut so as to cause the least waste practicable and shall not exceed, on the side adjacent to the highest ground, a height of 12 inches. Branches and treetops less than six inches (6") in diameter may be harvested or treated as logging debris. 2. Treatment of Looping Debris. The Licensee shall treat all logging debris by one of the following methods as designated in the approved Logging Plan. a. Lop all logging debris to cause it to lay within 36 inches of the ground surface and away from stumps. b. Smashing in place of all logging debris with a bulldozer. 3. Stumps. All harvest and logging debris treatment operations of the Licensee shall be so conducted as to minimize damage to stumps where coppice regrowth has been determined to be the only acceptable method to regenerate the forest stands in the County lands. In areas that will be replanted with Cook Pine seedlings, the stumps may be destroyed. 4. Damage to Stream Courses. All operations of the Licensee under this License shall be so conducted as to minimize damage to stream courses and streamsides within the County lands. Stream courses in the County lands shall be cleared of all logs, chunks, and logging debris resulting from operations under this License which may affect the natural flow of the stream. 5. Construction, Improvement and Use of Roads and Other Installations. The Licensee may construct and will maintain in the County lands, for the purpose of ingress and egress, all roads and other transportation facilities needed for the harvesting of the forest products included in this License. As used throughout this section, "construct" also means "reconstruct." a. Easement. It shall be the Licensee's sole responsibility to secure and pay for easements or rights-of-way on private lands across which it is necessary to build roads to transport the forest products included in this License. b. Location and Desion. Such roads and other facilities shall be located, constructed and maintained in accordance with an 5 JUN 0 8 1999 ®RAFT approved Logging Plan. c. Specifications. The Licensee shall construct all roads in accordance with the following specifications: 1) Where applicable, roads shall have culverts installed at points where drainage is blocked by fills. 2) One lane roads shall be provided with adequate turnouts as provided in the Logging Plan. 3) Clearance of trees and other vegetation on road rights-of-way providing access to the County lands shall be no wider than is necessary for the installation, improvement or sun drying of the road. 4) A radius of 80 feet shall be the minimum curvature allowed on permanent roads except in instances when the Director authorizes smaller curves in writing. d. Road Material. The Licensee shall be solely responsible for obtaining, purchasing, quarrying, loading, and hauling of all road material necessary for the construction, reconstruction, repair and maintenance of all roads needed for the harvesting of the trees, and other forest products. e. Use by Public Officials. Federal, State and County of Hawaii officers, employees and agents having official duties to perform in the area served by roads built by the Licensee in carrying out the provisions of this License, shall have the right to use the roads so built in carrying out such official duties. f. Use by Other Parties. All roads, existing or hereafter constructed within the County lands may be used by other parties when so authorized by the Director; provided, that such use shall not unduly interfere with the operations of the Licensee under this License. g. Maintenance. Any and all roads in the County lands used by the Licensee, whether constructed by the Licensee or not, shall be maintained by the Licensee at its own cost. 1) The Licensee shall maintain a cross section of permanent dirt or graveled roads by bading and shaping surface and shoulders. Banks shall not be undercut. Established berms shall be maintained and additional berms shall be placed where needed to protect fills. Established berms 6 ~~t~i4FT which hold water unnecessarily shall be eliminated. 2) Should the License expire, be terminated, revoked or cancelled by mutual agreement, and a permanent road is no longer to be used in harvesting operations authorized by this License, the Licensee shall shape and grade the crown, clean ditches, open culverts, provide cross-drainage and construct dips consistent with the design and/or specifications developed by the Licensee and agreed to by the Licensor prior to the expiration, termination, revocation or cancellation. 6. Soil Erosion and Damage to Soil a. The Licensee shall take all practical precautions to minimize soil erosion and damage to the soil during harvest operations including, but not limited to: 1) Prevention of Gullying. Prevention of gullying of roads, ditches and skid trails. 2) Protection of Natural Meadows. Protection of ground cover, and soil and water conditions in natural meadows, if any exist in the County lands. 3) Suspension of Operations to Avoid Damage. Refraining from operating any of its equipment when ground conditions are such that excessive damage will result to the soil. To avoid such damage the Director may suspend operations in whole or in part for such period or periods as are necessary. 4) Waste Disposal. The disposing of waste oil, other waste liquids, litter, scrap, abandoned equipment, and live materials within the County lands is strictly prohibited. 5) Offensive Use. The Licensee shall not make, permit, or suffer, any waste, strip, spoil, nuisance, or unlawful, improper or offensive use of the County lands. b. The Licensee shall perform the following soil erosion control work following harvest operations on the County lands: 1) Maintain all roads as required by this License. 2) Grade and construct cross drains and water spreading ditches on all landings and skid trails as necessary to 7 ~~°,~FT prevent soil erosion. c. When required in a Logging Plan, the Licensee shall sow grass or other specified seed on landings, skid trails, and fills for the purpose of soil stabilization. d. Soil erosion control work will be done concurrently and shall not be permitted to lag. 7. Fires. When so requested by the Director, the Licensee shall join with the Director or his authorized representative, in preparing a fire plan which shall set forth in detail the plan for fire prevention, control, and extinguishment of fires in the County lands and immediate vicinity. In the absence of such a plan, the Licensee will take all reasonable precautions to prevent fires by its operations, employees, sub-contractors and their employees. During the period of this License, the Licensee shall, both independently and in cooperation with the Division of Forestry and Wildlife and the Hawaii County Fire Department, take all reasonable and practicable actions to suppress fires caused by its operations, employees, subcontractors and their employees. Independent initial fire suppression action by the Licensee on such fires shall be immediate and shall include the use of all manpower and suitable equipment at its disposal. Such action shall continue until the fire is brought under control or the Licensee and its manpower and equipment are released by the Director. All roads and trails, designated by the Director as needed for fire protection or other purposes, shall be kept free of logs or logging debris resulting from operations under this License. All such roads and trails damaged by such operations shall be promptly restored or repaired. 8. Protection of Existing Improvements. In all phases of harvesting and other operations under this License, the Licensee shall take precautions to protect insofar as practicable all utility lines, ditches, fences and other improvements; and, if any such improvements are damaged by its operations, it shall restore or repair them or cause them to be restored or repaired, promptly and at the Licensee's expense. 9. Maior Improvements. The Licensee shall obtain the prior written consent of the Licensor before making any major improvements. 10. Conformity with Laws, Rules and Regulations, etc. The Licensee shall, during the whole of the term if this License, maintain all areas in which operations are conducted in a sanitary and orderly condition satisfactory to the Licensor and in conformity with the Public Health Regulations of the Department of Health and with the applicable laws, ordinances, rules and regulations of the Federal, 8 JUN 0 8 1999 ®R~?FT State and County of Hawaii governments. 11. Hazardous Materials. Licensee shall not cause or permit the escape, disposal or release of any hazardous materials except as permitted by law. Licensee shall not allow the storage or use of such materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such materials, nor allow to be brought onto the County lands any such materials except to use in the ordinary course of Licensee's business, and then only after written notice is given to the Licensor of the identity of such materials and upon the Licensor's consent which consent may be withheld at the Licensor's sole and absolute discretion. If any lender or governmental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials by Licensee, then the Licensee shall be responsible for the reasonable costs thereof. In addition, Licensee shall execute affidavits, representations and the like from time to time at the Licensor's request concerning Licensee's best knowledge and belief regarding the presence of hazardous materials on the premises placed or released by Licensee. Licensee agrees to indemnify, defend, and hold the Licensor harmless, from any damages and claims resulting from the release of hazardous materials on the County lands occurring while Licensee is in possession, or elsewhere if caused by Licensee or persons acting under Licensee. These covenants shall survive the expiration or earlier termination of the License. For the purpose of this License, "hazardous material" shall mean any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, or oil as defined in or pursuant to the Resource Conservation and Recovery Act, as amended, the Comprehensive Environmental Response, Compensation, and Liability Act, as amended, the Federal Clean Water Act, or any other Federal, State, or local environmental law, regulation, ordinance, rule, or by-law, whether existing as of the date hereof, previously enforced, or subsequently enacted. C. Suspension or Termination 1. Suspension of Contract. All or any part of the harvesting operations under this License may be suspended by the Director, by notice in writing, for violation of any of the terms, conditions and covenants herein contained, provided, that written notice was given the Licensee and fifteen (15) calendar days were given to correct such violation. 9 2. Breach. That if the Licensee shall fail to make the said payment or any part thereof at the times and in the manner aforesaid; if any violation, breach or default shall be committed or made by the Licensee of any term, covenant, restriction or condition herein; if the Licensee shall become bankrupt, or shall abandon the premises, and if any seen violation, breach or default is not cured or remedied within thirty (30) calendar days after written notice by personal service, registered or certified mail to Licensee and to all holders of security interest in the License, then in any such case, the Director shall be entitled to terminate said License without demand and without legal process and without prejudice to any other remedy or action. 3. Liquidated Damages. If the Licensee does not vacate the County lands upon the revocation of the License by the Licensor, the Licensee shall pay to the Licensor liquidated damages at the daily rate of $1,000 (One Thousand Dollars) for each day, or portion thereof, the Licensee remains on the County lands over the date of revocation. Further, the Licensee shall pay to the Licensor additional liquidated damages at the rate of $1,000 per tree cut down or harvested from the Premises after the date of revocation. The payment is in addition to any other rights or remedies the Licensor may be entitled to pursue for breach of contract, or for illegal occupancy, including the right to evict the Licensee without court action, and the cost thereof to be paid by the Licensee. 4. Cost of Removal and Disposal. If the Licensee fails to vacate the County lands upon the revocation of the License, the Licensor, it's agents and/or representatives may enter upon the County lands and remove and dispose of, at Licensee's cost and expenses, all vehicles, equipment, materials, and/or any personal property remaining on the County lands, and the Licensee agrees to pay for all costs and expenses of removal and disposition. 5. Acceptance of Payment. The acceptance of payment by the Licensor shall not be deemed a waiver of any breach by the Licensee of any term, covenant or condition of this License nor of the Licensor's right to declare and enforce a forfeiture for any breach, and the failure of the Licensor to insist upon strict performance of any term, covenant or condition, or to exercise any option herein conferred, in any one or more instances, shall not be construed as a waiver or relinquishment of any term, covenant, condition, or option. 6. Termination at Licensee Request. Should at any time during the term of this License, the Licensee request termination of the License and the Director agrees to terminate the License, the Licensee shall be liable for all damages and debts incurred up to 10 such time. D. Additional License Provisions 1. Compliance Bond or Other Suretv. A compliance bond or other form of security acceptable to the Director in the amount of five thousand dollars ($5,000.00) shall be furnished by the Licensee prior to the commencement of operations under this License; provided, however, that this requirement may be suspended, modified (but not to exceed the above amount), or reinstated at any time during the term of the License at the discretion of the Director. Said security shall be conditioned upon the full and faithful observance and performance by said Licensee of all the terms, conditions and covenants of this License. 2. Reforestation Bond. A reforestation bond in the amount of five thousand dollars ($5,000.00) shall be posted with the Director prior to the commencement of operations under this license. This reforestation bond shall survive by up to three (3) years, the expiration, earlier termination or mutual cancellation of the License to ensure that the County lands are reforested with Cook Pine (Araucaria columnaris) seedlings in a manner consistent with the methods and procedures outlined in the Informational Document, which is attached as Exhibit "B." 3. Record Shall be Made Available. At any time during the term of this License, the records pertaining to the Licensee's operations which are relevant to this License including the log-to-mill transmission report shall be open to inspection during regular business hours by any person authorized by the Director to make such inspection. Information so obtained shall be and remain confidential. 4. Indemni At all times with respect to the County lands, the Licensee shall use due care for public safety and agrees to indemnify, defend, and hold harmless the County of Hawaii, its officers, agents and employees from and against any claim or demand for loss, liability, or damage, including claims for bodily injury, wrongful death, or property damage, arising out of or resulting from (i) any act or omission on the part of the Licensee relating to the Licensee's use, occupancy, maintenance, or enjoyment of the County lands; (ii) any failure on the part of the Licensee to maintain the County lands, and roads and turnouts, trails, and parking areas adjacent thereto in the Licensee's exclusive use and control, including any accident, fire or nuisance, growing out of or caused by such failure; and (iii) all actions, suits, damages, and claims by whomsoever brought or made by reason of the Licensee's non-observance or non-performance of any of 11 C~~2~~1FT the terms, covenants, and conditions of the License or the rules, regulations, ordinances, and laws of the Federal, State, and County of Hawaii governments applicable to the Licensee's use of the County lands, provided, however, that the foregoing obligations of the Licensee shall not apply to any claim or demand for loss, liability, or damage where such loss, liability or damage is caused by the negligence or intentional acts of the County or the County's officers, agents or employees. 5. Insurance. The Licensee shall procure and maintain, at its cost and expense and acceptable to the Licensor, in full force and effect throughout the term of this License, commercial general liability insurance, in an amount of at least $500,000.00 for each occurrence and $1,000,000.00 aggregate, with an insurance company or companies licensed to do business in the State of Hawaii. The policy or policies of insurance shall name the County of Hawaii as an additional insured. The insurance shall cover the County lands under this License, including all buildings, improvements, and grounds and all roads and turnouts, trails and parking areas on or adjacent to the County lands in the use or control of the Licensee. The Licensee, prior to entry and use of the County lands or within fifteen (15) days from the effective date of this License, whichever is sooner, shall furnish the Licensor with a certificate(s) showing the policy(s) to be initially in force, keep the certificate(s) on deposit during the entire License term, and furnish a like certificate(s) upon each renewal of the policy(s). This insurance shall not be cancelled, limited in scope of coverage, or nonrenewed until after thirty (30) days written notice has been given to the Licensor. The procuring of the required policy(s) of insurance shall not be construed to limit Licensee's liability under this License nor to release or relieve the Licensee of the indemnification provisions and requirements of this License. Notwithstanding the policy(s) of insurance, Licensee shall be obligated for the full and total amount of any damage, injury, or loss caused by Licensee's negligence or neglect connected with this License. It is agreed that insurance maintained by the Licensor, if any, will apply in excess of, and not contribute with, insurance provided by Licensee's policy. 6. Litigation. In case the Licensor shall, without any fault on its part, be made a party to any litigation commenced by or against the Licensee (other than condemnation proceedings), the Licensee shall pay all costs, including reasonable attorney's fees, and 12 ~~H~~ expenses incurred by or imposed on the Licensor; furthermore, the Licensee shall pay all costs, including reasonable attorney's fees, and expenses which may be incurred by or paid by the Licensor in enforcing the covenants and agreements of this License, in recovering possession of the County lands, or in the collection of delinquent rental, taxes, and any and all other charges. 7. Covenant Against Discrimination. The Licensee covenants that the enjoyment of the privilege granted hereunder shall not be in support of any policy which discriminates against anyone based upon race, creed, color, national origin, sex, or physical handicap. 8. Assignment. This License or any rights hereunder shall not be sold, assigned, conveyed, leased, mortgaged, or otherwise transferred or disposed of. 9. Entire Agreement. This written agreement constitutes the entire agreement of the parties and all covenants, promises, representations and agreements existing are contained herein, and shall be binding upon, apply and inure to the benefit of the successors and assigns respectively of the Licensee and the Licensor; provided, that in accordance with Section II.A2., mutually agreed to Memorandum of Agreements may be made a part of this License. 10. Representations. Licensee agrees that it has executed this License as a result of its own inspection of the forest products the subject hereof, and the County lands herein described and not as a result of any representation made by the Licensor or its employees or agents, as to absolute quantity, quality, value or accessibility of timber or logging conditions on any of the areas covered by this License or the commercial feasibility of such timber cutting operations or otherwise. E. Definitions: The words and terms as used in this License shall be defined and interpreted, unless a different meaning clearly appears from the context, as follows: 1. Agreement -Same as Timber Land License or License. 2. County lands -Former Hamakua Sugar Company, Inc., lands now owned by the County of Hawaii situate at Waikoekoe, Hamakua, Hawaii and identified as Tax Map Key: 3rd/4-8-03:05 (Portion), having an area of 40.000 acres, more or less. 3. Director -Director of Finance, County of Hawaii. 13 ~~~FT 4. Forest Products -Tree volume of Cook Pine and Eucalyptus species, branches and tree tops which are harvested, and other forest products, including but not limited to species other than Cook Pine and Eucalyptus species. 5. Harvest - To cut standing live trees, broken trees, windthrown trees and other non-timber forest products and to remove wood, bark, and other forest product material from a forest. 6. Licensee -Winkler Wood Products, Inc. 7. Licensor -The County of Hawaii. 8. Lopping Plan - A plan that shows the sequence of sites to be harvested along with roads, harvesting practices, landings, skid trails, and slash treatment at a minimum. Same as Harvest Plan. 9. Primary Processing -The reduction of harvested material by sawmilling, chipping, peeling or other cutting action to round and squared timbers, boards or chunks. 10. Tree Volume -Total main stem volume to a six inch (6") top diameter. F. Unless the text clearly indicates otherwise, the use of any gender shall include all genders. If the singular is used herein when it applies to the plural, the singular shall signify the plural and the liabilities shall then be joint and several. If the plural is used when the singular is proper, the plural shall signify the singular. G. The County of Hawaii reserves and saves unto itself, in perpetuity, all historic property, minerals, and surface and ground waters appurtenant to the premises herein described and that in connection therewith, the County of Hawaii shall have the right to enter said premises, protect or recover historic property, sever and remove minerals, or to develop, capture, divert, and impound water. H. Any and all disputes and/or questions arising under this License shall be referred to the Director whose determination of these disputes or questions shall be final and binding on the parties. 14 [~RA~FT IN WITNESS WHEREOF, the parties hereto have executed this License as of the day of , 1999. COUNTY OF HAWAII By Its: WINKLER WOOD PRODUCTS, INC. By Its: APPROVED AS TO FORM: Corporation Counsel Dated Attachments Exhibit "A" -Map Exhibit "B" -Informational Document 15