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HomeMy WebLinkAbout008-99 - Port Orchard Industrial Park - ContractLEASE AGREEMENT LEASE AGREEMENT made and entered into as of the /.- .1 day of �% 7416e4 , 1999, by and between CITY OF PORT ORCHARD, a Washington municipal corporation (hereinafter "Landlord"), and PORT ORCHARD INDUSTRIAL PARK, a Washington limited partnership (hereinafter "Tenant"). WITNESSETH• WHEREAS, Landlord is the owner of that certain real property in Kitsap County, Washington, legally described as follows: FOR LEGAL DESCRIPTION SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE. WHEREAS, Tenant desires to lease a portion of the above - described property from Landlord legally described as follows: FOR LEGAL DESCRIPTION SEE EXHIBIT B ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE (hereinafter "the Premises"). WHEREAS, Landlord is willing to lease the Premises to Tenant upon the terms, conditions and provisions set forth below. NOW, THEREFORE, for and in consideration of the mutual covenants and promises set forth below, the mutual benefits to be derived herefrom, and other good and valuable consideration, the parties hereto agree as follows: 1. LEASE OF PREMISES: Landlord hereby leases to Tenant, and Tenant leases from Landlord, the Premises as legally described above, all upon the terms set forth below. A diagram of the Premises is attached hereto marked Exhibit C and made a part hereof. The diagram is for illustrative purposes, is not to scale, and depicts the Premises in cross -hatching. 2. TERM: The term of this Lease shall be for a period of ninety-nine (99) years, commencing on the 1st day of November, 1999 and ending on the 1st day of November, 2098. Provided, however, it is understood and agreed that this Lease is subject to the provisions of the City of Port Orchard's Stormwater Management Ordinance No. 1736 which provides, in part; for reversion of the retention pond to the City at some point in the future, at which time this Lease shall terminate. LEASE AGREEMENT - 1 3. RENTAL: The rental shall be considered non-refundable pre -paid as part of the consideration for the Landlord's acquisition of Tenant's real property known as Lot 15, Port Orchard Industrial Park Division 1. The rental rate annualized over the term of the Lease is the equivalent of Seven Hundred Fifty Seven and 58/100 Dollars ($757.58) per year. The Tenant shall be responsible ,for and pay before delinquency tax(es) or assessments, if any, and insurance premiums associated with the Premises, all as more particularly described below. 4. USE OF PREMISES: The Tenant shall use the premises for increasing the size of an existing 185,577 cubic foot stormwater retention pond on property owned by Tenant which is adjacent to the Premises by approximately 42,323 cubic feet. The construction, installation, maintenance and repair of all improvements to or on the Premises shall be in accordance with and Tenant shall at all times comply with all local, state and federal laws, rules and regulations applicable to the Premises. Tenant shall hold harmless, defend and indemnify Landlord from and against any and all damages, liability or claims therefor arising out of or in connection with Tenant's use of the Premises. 5. UTILITIES: The Tenant shall pay all utilities and services charged against the premises before delinquency, including, but not limited to, electrical, water, sewer, garbage, and telephone, if any. 6. OBLIGATIONS OF TENANT: During the term of this lease Tenant shall: (a) Keep the Premises and all improvements thereto in a clean and sanitary condition and refrain from the commission of any waste thereon; (b) Keep and maintain all improvements made to the Premises in good operating condition and repair pursuant to all governmental rules and regulations applicable thereto; (c) Properly dispose of all rubbish, garbage, and waste in a clean and sanitary manner at reasonable and regular intervals; (d) Not permit any nuisance or common waste on the Premises. 7. HAZARDOUS MATERIALS: LEASE AGREEMENT - 2 (a) Statement of General Intent: The parties hereto acknowledge that no environmental assessment has been done with regard to the Premises. In imposing the covenants and obligations of Tenant under this Section 7, it is the intent of the parties that Tenant shall be responsible and liable for the activities occurring on the Premises during its occupancy and its (or its affiliates) ownership/occupancy of property in the vicinity of the Premises, but not for past activities on the Premises or that which may be caused by owners of other property in the vicinity that are not affiliated with Tenant. (b) Covenants and Obligations: Tenant shall (a) comply with all Hazardous Materials Laws relating to any hazardous or toxic substance, material or waste, including but not limited to, those substances, materials, and wastes listed in the United States Department of Transportation Hazardous Material Table (49 C.F.R. 172.101) or by the United States Environmental Protection Agency as hazardous substances (40 C.F.R. Part 302 and amendments thereto), petroleum products and their derivatives, and such other substances, materials and wastes as become regulated or subject to cleanup authority under any state or federal Environmental Laws; (b) without limiting the generality of clause (a), not install, use, generate, manufacture, store, release or dispose of, nor permit the installation, use generation, manufacture, storage, release or disposal of Hazardous Material on, under or about the Premises nor transport nor permit the transportation of Hazardous Material to or from the Premises; (c) submit during the term of the Lease, if requested by Landlord, at its own expense, a report or reports, satisfactory to Landlord in its sole and absolute discretion, prepared by a consultant or consultants approved by Landlord, certifying that the Premises are not then being used nor has been used during Tenant's occupancy of the Premises for any activities involving, directly or indirectly, the installation, use, generation, manufacture, storage, release or disposal of any Hazardous Material; (d) immediately advise Landlord in writing of (i) any and all Hazardous Material Claims, (ii) the presence of any Hazardous Material on, under or about the Premise, (iii) any remedial action taken by Tenant in response to any Hazardous Material on, under or about the Premises or to any Hazardous Material Claims, (iv) Tenant's discovery of the presence of any Hazardous Material on, under or about any real property adjoining or in the vicinity of the Premises, and (v) Tenant's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Premises that could cause the Premises or any part thereof to result in any liability or claims under Hazardous Material Laws, or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Premises under any LEASE AGREEMENT - 3 Hazardous Material Laws; (e) provide Landlord with copies of all reports, analyses, notices, licenses, approvals, orders, correspondences or other written materials relating to the environmental condition of the Premises or any Hazardous Material Claims immediately upon receipt, completion or delivery of such materials; (f) not install or allow to be installed any underground tanks on the Premises; (g) not create or permit to continue in existence any lien upon the Premises imposed pursuant to any Hazardous Material Laws; and (h) not change or alter the present use of the Premises unless Tenant shall have notified Landlord thereof in writing and Landlord shall have determined, in its sole and absolute discretion, that such change or modification will not result in the presence of any Hazardous Material on the Premises in such a level that would increase the potential liability for any Hazardous Material Claims. Tenant shall promptly take any and all necessary remedial work ("Remedial Work") in response to any Hazardous Material Claims or the installation, use, generation, manufacture, storage, release or disposal of any Hazardous Material on, under or about the Premises that occurred during Tenant's occupancy of the Premises. The Remedial Work shall be conducted (a) in a diligent and timely fashion by licensed contractors acting under the supervision of a consulting environmental engineer; (b) pursuant to a detailed written plan for the Remedial Work approved by any public or private agencies or persons with a legal or contractual right to such approval; (c) with such insurance coverage pertaining to liabilities arising out of the Remedial Work as is then customarily maintained with respect to such activities; and (d) only following receipt of any required permits, licenses or approvals. The selection of the Remedial Work contractors and consulting environmental engineer, the contracts entered into with such parties, any disclosures to or agreements with any public or private agencies or parties relating to Remedial Work and the written plan for the Remedial Work (and changes thereto) each shall, at Landlord's option, be subject to Landlord's prior written approval, which approval shall not be unreasonably withheld or delayed. In addition, Tenant shall submit to Landlord, promptly upon receipt or preparation, copies of any and all reports, studies, analyses, correspondence, or governmental comments or approvals, proposed removal or other Remedial Work contracts and similar information in connection with any Remedial Work or Hazardous Material relating to the Premises. All costs and expenses of such Remedial Work shall be paid by Tenant if such Remedial Work is required as a result of Tenant's actions or negligence during its occupancy of the Premises, including, without limitation, the charges of the Remedial Work contractors and the consulting environmental engineer, any taxes or penalties assessed in connection with the' Remedial Work and Landlord's LEASE AGREEMENT - 4 reasonable fees and costs incurred in connection with monitoring or review of such Remedial Work. Landlord shall have the right but no obligation to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Material Claims. Tenant shall defend (with counsel approved by Landlord), fully indemnify, and hold Landlord entirely free and harmless from and against all claims, judgments, damages, penalties, fines, costs, liabilities, or losses (including, without limitation, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) that are imposed on, paid by, or asserted against Landlord or Landlord's successors and assigns, by reason or on account of, or in connection with, or arising out of the presence or suspected presence of Hazardous Material in the soil, groundwater, or soil vapor on or about the Premises if such presence or suspected presence arose out of or was connected with Tenant's actions or negligence during its occupancy of the Premises. 8. ASSIGNMENT AND SUBLETTING: The Tenant shall not have the right to assign or sublet this Lease without first obtaining the written consent of the Landlord, which consent shall not be unreasonably withheld. Further, the granting of said written permission by Landlord in a given instance shall not be interpreted so as to authorize any further assignment. 9. REPAIRS AND MAINTENANCE: Tenant shall maintain all aspects of the Premises in good operating condition and repair. The Tenant shall deliver possession of the Premises to the Landlord upon the termination of this Lease in a state of repair equal to or better than as of the effective date of this Lease. 10. INSURANCE AND BOND: Tenant shall at all times pertinent keep and maintain in full force and effect the liability insurance and bonds that are required by the City of Port Orchard's Ordinance No. 1736, as amended, naming the City of Port Orchard, its officers and employees, as additional insureds, or beneficiary, as the case may be. All insurance and bonds provided for herein shall be effected under standard form policies issued by insurers and sureties of recognized responsibility and which are acceptable to the Landlord. The Tenant shall provide Landlord with proof of such insurance policies and bonds acceptable to the Landlord. The Tenant shall pay all premiums therefor at least 30 days prior to expiration thereof and provide Landlord with proof of such payment. The Tenant shall, at all times, abide by the terms of the applicable policy(s) and bond(s) so as to be in good standing LEASE AGREEMENT - 5 with such insurers and sureties. In the event Landlord receives notice of cancellation, Landlord may pay such premium or otherwise effectuate similar coverage, and any amount so paid by Landlord shall be due from Tenant, plus interest thereon at the rate of 12% per annum until re -paid in full. 11. TAXES AND ASSESSMENTS: Tenant agrees to and shall pay before delinquency during the term hereof tax(es) and assessments, if any, attributable to the subject Premises, whether general or special. With respect to any period at the expiration of the term of this Lease which shall constitute a partial tax year, the amount due shall be pro -rated and survive the expiration of this Lease. 12. RIGHT OF INSPECTION: The Landlord, or its agents and representatives, shall have the right at any and all reasonable times during normal business hours and upon giving Tenant reasonable notice, except in the case of emergency, to enter into or upon the Premises, or any part thereof, for the purpose of examining the condition thereof, or for any other lawful purpose. 13. LIENS: The Tenant shall not permit any lien or any other type of encumbrance to be placed on or imposed upon the Premises without the express, prior written consent of the Landlord. Tenant shall cause any lien placed against the Premises to be removed within twenty (20) days, at its sole cost and expense, and Tenant shall hold harmless, defend and indemnify Landlord from and against any and all liability, damages or claims relating thereto. 14. CONDEMNATION: If the whole of the Premises, or such portion thereof as will make the Premises unsuitable for the purposes herein leased and the uses to which said Premises are being made, is condemned, or transferred under threat of condemnation, for any public use or purpose by any legally constituted authority, then in either of such events the Lease shall cease from the time when possession is taken by such public authority and the rental shall be accounted for between the parties hereto as of the date of the surrender of possession. If only a portion of the premises are so taken such that the Premises can continue to be used for Tenant's purposes hereunder, this Lease shall continue in full force and effect but rent shall be adjusted to reflect any diminution of the Premises' value to Tenant. Landlord shall be entitled to the entire condemnation award except as to such amount that Tenant may separately negotiate or be entitled to receive from such condemning authority. 15. IMPROVEMENTS: Tenant is authorized to construct on the LEASE AGREEMENT - 6 Premises an approximately 42,323 cubic foot extension of the adjacent 185,577 cubic foot stormwater retention pond. Tenant shall be solely responsible for all costs and expenses associated with the design, construction, maintenance and repair of said pond extension, including engineering services, surveying services, and permit fees necessary to construct the pond extension improvements in compliance with all applicable ordinances, regulations and laws. 16. ALTERATIONS: The Tenant shall not make any alterations or improvements to the Premises except as provided for herein without the express, prior written consent of the Landlord, which consent shall not be unreasonably withheld. The alterations shall become the property of the Landlord upon the termination of this Lease. If the Tenant intends to make changes in the Premises, Tenant shall submit plans to the Landlord, not less than 30 days before the commencement of such changes. Such plans shall become the property of Landlord. Any such alterations shall be made pursuant to any and all applicable codes or regulations of the governmental authorities having jurisdiction over the same and Tenant shall secure the appropriate permits and approvals therefor, all at Tenant's sole cost and expense. 17. RIGHTS AND REMEDIES OF THE PARTIES: In the event that the Tenant shall, at any time, be in default in the performance of any of its obligations under this Lease, and the Tenant shall fail to remedy such matters within ten (10) days following the mailing of written notice from the Landlord to the Tenant, or in the event that the Tenant shall be adjudged a bankrupt, or shall make an assignment for the benefit of creditors or in the event that a receiver of any property of the Tenant in or about the Premises involved herein shall be attached in any action, suit, or other proceeding, or in the event that the interests of the Tenant in the Premises shall be sold under execution or other legal process, it shall be lawful for the Landlord to enter upon the Premises and again have, repossess, and enjoy the said Premises as if this Lease had not been made, and thereupon this Lease and everything herein required to be done or performed by the Landlord shall cease and terminate, without prejudice, however, to the right of the Landlord to recover from the Tenant obligations due and owing to the time of such entry. The remedies herein provided shall be cumulative and shall be in addition to any and all other remedies available to the Landlord in law or in equity. In no event shall this Lease be considered an asset of Tenant in any bankruptcy or other insolvency proceeding. 18. CONDITION OF PREMISES: The Premises are recognized by the Landlord and the Tenant to be in "as is" condition, with no warranties of any type or nature whatsoever by the Landlord to the LEASE AGREEMENT - 7 Tenant including, but not limited to, fitness of the Premises for the use intended by Tenant. The Landlord 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 Landlord's negligence or failure to perform the terms and conditions of this Lease. The Tenant hereby acknowledges that it has had ample opportunity to inspect the Premises. 19. ATTORNEY'S 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 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. 20. ARBITRATION: In the event that there is a dispute arising out of any of the terms or conditions provided in this Lease, said dispute shall be referred to arbitration. The Landlord shall appoint an arbitrator and the Tenant 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 Landlord and the Tenant. The three arbitrators shall then resolve the dispute between the Landlord and the Tenant 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. 21. HOLDING OVER: In the event that the Tenant, for any reason, shall hold over in possession of the Premises following the expiration of this Lease, or any extensions hereof, such holding over shall not be deemed to operate as a renewal or extension of this Lease, but shall only create a tenancy from month -to -month which may be terminated at will at any time by the Landlord. 22. NOTICES: All written notice required to be given hereunder shall be personally served or sent by certified mail, return receipt requested, postage prepaid, to the Landlord at: City of Port Orchard, 216 Prospect, Port Orchard 98366, and shall be personally served or sent by certified mail, return receipt requested, postage prepaid, to the Tenant at: 400SE Lider Road, Port Orchard, WA 98367; or to such other addresses as the parties may hereinafter designate in writing to the other from time to time hereafter. LEASE AGREEMENT - 8 23. REMOVAL OF PERSONAL PROPERTY: Upon the termination of this Lease, the Tenant shall promptly remove all personal property on the Premises. Further, the Tenant shall repair any and all damage occasioned by such removal. Fixtures on the Premises shall become the property of Landlord. 24. COVENANT OF QUIET ENJOYMENT: The Tenant, upon the performance of the terms and covenants of this Lease, shall at all times during the Lease term, and during any extension or renewal term, peaceably and quietly enjoy the lease Premises without any disturbance from the Landlord or from any other person claiming through the Landlord. Landlord covenants and warrants that it has the right, title and authority to enter into this Lease with the Tenant. It is understood and agreed that the original of this Lease Agreement shall not be recorded but a memorandum thereof may be recorded with the Kitsap County Auditor, at Tenant's expense. 25. WAIVER: The failure of the Landlord to strictly enforce any of the terms or conditions of this Lease, or to exercise any option herein conferred upon it in any one or more instances, shall not be construed so as to constitute a waiver or relinquishment of any of its rights hereunder. 26. GOVERNING LAW: The place of making of this Lease shall be deemed to be Silverdale, Kitsap County, Washington, and the legal rights and obligations of the Landlord and the Tenant shall be determined by the laws of the State of Washington. 27. JURISDICTION AND VENUE: In the event any suit, action or proceeding shall be brought in connection with any of the terms or conditions of this Lease, the Landlord and the Tenant hereby stipulate that jurisdiction and venue of such suit, action or proceeding shall be in Kitsap County. 28. HEIRS AND ASSIGNS: All rights, remedies, and liabilities herein given to or imposed upon the Landlord and the Tenant shall extend to, inure to the benefit of, and bind, as the circumstances may require, the heirs, executors, administrators, successors, and, so far as this Lease is assignable by the terms hereof, to the assigns of the Landlord and the Tenant. 29. SEVERABILITY: In the event that any section, or any part of any section, of this Lease shall be declared invalid by a court of competent jurisdiction said holding shall have no effect upon the remaining section of this Lease, which remain in full force and effect. 30. ENTIRETY: The Lease constitutes the entire agreement and understanding between the Landlord and the Tenant. There are LEASE AGREEMENT - 9 no other agreements or representations, either written or oral, which modify or have any effect upon this Lease. IN WITNESS WHEREOF, this document has been duly executed by the parties hereto, to be effective as of the day and year first above written. TENANT: CITY F PORT ORCHARD PORT ORCHARD INDUSTRIAL PARK, LP LESLIE J. EATHERILL WARREN E. LUMSDEN Mayor, City of Port Orchard General Partner STATE OF WASHINGTON ) ) ss . County of Kitsap ) On this 1 day ofCJ�i� 1999, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared LESLIE J. WEATHERILL, to me known to be the Mayor of the City of Port Orchard, a Washington municipal corporation, and that he executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of the said corporation, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. PRINT NAME: Notary Public in and r the State of Washingt 9 Residing at My commission LEASE AGREEMENT - 10 expires r-_l STATE OF WASHINGTON ) )ss. County of Kitsap ) On this 15TH day of OCTOBER , 1999, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared WARREN D. LUMSDEN, to me known to be the General Partner of the Port Orchard Industrial a Washington limited partnership, and that he executed the foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of the said corporation, for the uses and purposes therein mentioned, and on oath stated that they are authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. F�G���opOOOpOo��k� 0 o ° NOTly� PUBLIC f. ° cP3 r. O ® Yy o state of ° ° ` Wasl2ington LEASE AGREEMENT - 11 a6 GLG A& 4 PRINT NAME: ARLE34 M. CLAYTON Notary Public in nd for the State of Washington Residing at PORT ORCHARD My commission expires 5-16-01 EXHIBIT "A" CITY OF PORT ORCHARD PROPERTY Legal Description: That portion of Section 34, Township 24 North, Range 1 East, W.M., described as follows: Lot A and Lot B of City of Port Orchard Short Plat No. 1062R-1, recorded under Kitsap County Auditor's File No. 9504240164, which is an amendment of Kitsap County Auditor's File No. 9108050015 (PO-56R-1). Situate in Kitsap County, Washington EXCEPT the following: That portion of Lot B, City of Port Orchard"Short Plat S-1062-R1, recorded under Auditor's File No. 9504240.164, being an amendment of Short Plat recorded under Auditor's File No. 9108050015, being a portion of the South half of the Southwest Quarter, Section 34, Township 24 North, Range 1 East, W.M., in Kitsap County, Washington, lying northerly of Southwest Old Clifton Road, (formerly known as Alder Road) and lying easterly of Lloyd Parkway as described in an instrument recorded under Auditor's File No. 9306180103, records of Kitsap County, Washington; (As described and delineated in survey recorded January 26, 1999 under Auditor's File No. 3150567). r Exhibit B Legal Description of Leased Premises The Easterly 250 feet of the following described property: That portion of Section 34, Township 24 North, Range 1 as follows: East, W.M ,,described A portion of Lots A & B of City of Port Orchard Short Plat, recorded under Auditors File No. 9504240164, which is an amendment of Auditors 91080SM15 (PO-56R.1), descdbed as follows: at the comer of said Section 34, thence North along the W� Me of saidSouFile NVa o. Section 34 the Northwest comer of the Southwest quarter of the Southwest to Section 34: thence Easterly along the North a of said quarter of said Southwest quarter 165.01 feet to the Southwest quarter of the the True Point of 8egloning; thence � comer Easterlyof Shawn Road NW and distance of 894.79 feet; Utenoe9 said North �e a of the above referenced Smart Paotherly 50 � to the Northwest comer of Lot D Lot D 150 feet; thence W ence =*wing the West line of said quarter of the Southwest esterfy PaMM to the North line of said Southwest True Point the quarter 894.79 feet., thence Northerly 200 feet to the Begarning. Situate in Kitsap County, Washington SUBJECT TO Slope Easement. . EXHIBIT C Diagram of Leased Premises 8 — gat r•� ...Q .... .