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029-11 - Key Bank - Contract 2001 LeaseCity of Port Orchard 216 Prospect Street Port Orchard, WA 98366 Grantor (Lessor): City of Port Orchard, Washington Grantee (Lessee): KeyBank National Association Legal Description: SW '/4, SW '/4, Section 25, Township 24 N, Range 1 East. Complete legal description set forth below. Tax Parcel No.: Public Right -of -Way, no tax parcel assigned. LEASE This Lease is made and entered into this day by and between City of Port Orchard, a Washington municipal corporation, hereinafter called "Lessor," and KeyBank National Association, a national banking association, hereinafter called "Lessee": WITNESSETH: 1. Premises and Term. In consideration of the covenants and agreements hereinafter set forth and other good and valuable consideration, Lessor hereby leases unto Lessee the following described property situated in Kitsap County, Washington (the "Premises"): Section 25, Township 24 N, Range 1 E., W.M., Point of beginning; Intersection of the easterly boundary of the Maple Street Waterway and the northerly boundary of SR166 right-of-way (formerly known as SR160), thence northwesterly a distance of 165 ft. along the easterly boundary of the Maple Street Waterway, thence perpendicular and westerly a distance of 50 ft., thence southeasterly a distance of 165 ft. along a line parallel to the easterly boundary of the Maple Street Waterway, to the northerly right-of-way line of SR166 (formerly known as SR160), thence easterly along the northerly right-of-way line of SR166 (formerly known as SR160) :to the point of beginning. The term of this lease shall be for five (5) years commencing on October 1, 2001, and ending on September 30, 2006. -1- 2. Rent. Lessee agrees to pay to Lessor the sum of Two Hundred Fifty and 00/100 Dollars ($250.00) per month plus leasehold tax for the monthly rental, due and payable to the City of Port Orchard, located at 216 Prospect, Port Orchard, WA, on or before the first day of each month during the term of the lease beginning October 1, 2001. The parties agree that the rent amount represents the true and fair market value of the leased Premises. In the event payment of the monthly rental is more than ten (10) days late, there shall be added to the rent the amount equal to 10% of the rental payment then due for each such delinquent payment. 3. Option to Renew: So long as Lessee is not in default hereunder, Lessee shall have the option to renew this lease for an additional five (5) year period upon the same terms and conditions as set forth herein, except as to rent, upon written notice by Lessee to Lessor of such election at least 90 days prior to the expiration of the original lease term. The annual rental rate to be charged and paid during the renewed lease term shall be renegotiated by the parties prior to the expiration of the original lease term. In the event the parties are not successful in arriving at a mutually agreeable rate by that time, the issue shall be submitted to arbitration for resolution, in the manner provided for arbitrations as set forth below. Provided further, however, in no event shall the rental rate be less than the rental amount charged in the original lease. 4. Taxes. In addition to the rental amount, the Lessee will be responsible to pay before delinquency any real estate taxes and assessments or any leasehold taxes, if any, related to the Premises. Lessee shall have the right to contest any such taxes. Lessor shall reasonably cooperate with Lessee in connection with any such contest. 5. Reservation of Lessor's Rights. Lessor reserves the right to modify the Lease at any time to remove from the Lease a portion of the Premises adjacent to Blackjack Creek, if such portion is required for park purposes, subject to the conditions described in this Section 5. That portion of the Premises that may be removed is depicted on Exhibit A attached hereto. Such modification shall be effective upon 90 days written notice to Lessee, and shall not interfere with Lessee's right to vehicular and pedestrian ingress and egress from Lessee's owned property located adjacent to the Premises. Such modification shall change the description of the Premises only, all other provisions of the Lease shall remain in full force and effect. & Maintenance and Repair. Lessee, at Lessee's sole expense, shall keep in good condition and repair all portions of the Premises. Lessee agrees to keep the Premises neat and clean and in a sanitary condition; and upon surrendering possession, to leave the Premises in condition equal to or better than as of the effective date of this Lease subject to ordinary wear and tear and damage caused solely by Lessor and Lessor's employees. The Lessee will not make any alterations, additions, or improvements without the prior written consent of the Lessor. 7. Indemnification and Liability. Lessee agrees to save harmless and indemnify Lessor against and from all demands, claims, causes of action, or judgments, and all reasonable expenses incurred in investigating or resisting the same for injury to person, loss of life, or damage to property occurring on the Premises and arising out of Lessee's use and occupancy (unless due solely to Lessor's negligence or willful misconduct); and Lessee agrees to carry liability insurance to protect Lessor with insurance limits to be reasonably approved by Lessor. 8. Holding Over. If Lessee remains in possession of the Premises after the expiration of this Lease, such possession shall, if rent is accepted by Lessor, create a month -to -month -2- tenancy on the terms herein specified, and said tenancy may be terminated at any time by either party by thirty (30) days' notice to the other party of such termination. 9. Assignment and Subletting. Lessee shall not assign this Lease nor sublet the Premises without Lessor's written consent, which written consent shall not be unreasonably withheld. Notwithstanding anything contained in this Lease to the contrary, Lessee shall have the right to assign this Lease or sublet all or any part of the Premises without the consent of Lessor to (1) any entity resulting from a merger or consolidation with Lessee or any organization purchasing substantially all of Lessee's assets, (2) any entity succeeding to substantially all the business and assets of Lessee, (3) any subsidiary, affiliate or parent of Lessee, (4) any entity controlling, controlled by or under common control with Lessee, or (5) any entity resulting from the reorganization of Lessee outside of a bankruptcy organization. In such event, Lessee shall notify Lessor of such transfer within fifteen (15) days after such transfer. 10. Insolvency. In the event the Lessee is adjudicated bankrupt or insolvent, or a Receiver or Trustee is appointed for the Lessee, either voluntarily or involuntarily, or if the Lessee makes an assignment for the benefit of creditors, this Lease shall immediately terminate without further action on the part of Lessor or Lessee. 11. Waivers. One or more waivers of any covenants or conditions by Lessor shall not be construed as a waiver of a subsequent breach of the same covenant or condition or agreement. 12. Use of Premises. Lessee will use and occupy the Premises throughout the entire term hereof for purpose of vehicular and pedestrian ingress, egress, and parking and no other purpose. Lessee agrees not to violate any law, ordinance, rule, or regulations of any governmental authority having jurisdiction of the Premises. Lessee shall not obstruct ingress or egress on the Premises without the prior written consent of Lessor. 13. Condition of Premises: The Premises are recognized by the Lessor and the Lessee to be in "as is" condition, with no warranties of any type or nature whatsoever by the Lessor to the Lessee. The Lessor will not incur liability or injuries or property damage suffered because of defects in the Premises at the time of renting or occurring thereafter except as may be caused by breach of warranties expressly set forth herein or Lessor's negligence or failure to perform the terms and conditions of this lease. The Lessee hereby acknowledges that it has had ample opportunity to inspect the Premises. 14. Default. It is agreed that if Lessee shall abandon the Premises before the end of the term, or if any rent shall be due and unpaid and such failure continues for ten days after Lessee's receipt of notice describing Lessee's failure to pay such rent when due, or if default is made of any of the covenants and agreements to be performed by Lessee as set forth herein and such failure continues for thirty days after Lessee's receipt of notice describing Lessee's failure, then the Lessor may, at its option, enter upon the Premises and re -let the same for such rent and upon such terms as Lessor may see fit; and if the full rental herein shall not be realized by Lessor over and above any expense to Lessor in such re -letting, Lessee will pay all deficiency promptly upon demand, or the Lessor may declare this Lease terminated and forfeited and take possession of the Premises, and Lessee agrees to pay a reasonable attorney fee and the costs of any Court action should it be necessary to enforce any of Lessor's remedies in this paragraph contained if Lessor is the prevailing party. Lessor agrees to pay a reasonable attorney fee and the costs of any Court action if Lessee should be the prevailing party. -3- 15. Attorneys Fees and Court Costs: In the event that any suit, action, or proceeding, including arbitration as hereinafter set forth, shall be instituted to enforce compliance with any of the terms or conditions of this lease, there shall be paid to the substantially prevailing party in such suit, action or proceeding such sums as the court or arbitrator may adjudge and determine to be a reasonable attorney's fee and reasonable costs, with the foregoing applicable to proceedings both in the trial and appellate court levels. 16. Arbitration: In the event that there is a dispute arising out of any of the terms or conditions or the amount of rent payable as provided in this lease, said dispute shall be referred to arbitration. The Lessor shall appoint an arbitrator and the Lessee shall appoint an arbitrator. The two arbitrators shall then select a third independent arbitrator. The costs of the third arbitrator shall be divided equally between the Lessor and the Lessee. The three arbitrators shall then resolve the dispute between the Lessor and the Lessee by a majority thereof and the decision shall be reduced to writing. Said arbitration award may then be reduced to judgment by entry in the Kitsap County Superior Court. IN WITNESS WHEREOF, the parties hereto have signed and sealed this lease the day and year first above written. LESSOR: CITY OF PORT ORCHARD LESLIE J. WEATHERILL, Mayor ATTEST: Patricia Parks, City Clerk -4- LESSEE: KEYBANKNATIONAL ASSOCIATION By. �tiG DENI SE OBLOCKI ASSISTANT VICE PRESIDENT