019-11 - Resolution - Commerical Displacee Lease for 321 Tremont StreetIntroduced by: Gregory A. Jacoby
Requested by: Gregory A. Jacoby
Drafted by: Gregory A. Jacoby
Introduced: July 26, 2011
Adopted: July 26, 2011
RESOLUTION NO. 019-11
A RESOLUfiON OF THE CITY OF PORT ORCHARD,
WASHINGTON, APPROVING A COMMERCIAL DISPLACEE
LEASE BETWEEN THE CITY OF PORT ORCHARD AND
LAWRENCE AND DOLORES COPPOLA RELATING TO 321
TREMONT STREET
WHEREAS, the City of Port Orchard is undertaking the Tremont Street
Widening Project (the "Project") to widen Tremont Street to provide four continuous
lanes between Port Orchard Boulevard and SR 16, replace two existing signalized
intersections with roundabouts, and construct curb, gutter, sidewalk and other
improvements; and
WHEREAS, in order to construct the Project, the City must acquire right-of-way
along Tremont Street from certain property owners; and
WHEREAS, the City Council has approved a Possession and Use Agreement
between the City of Port Orchard and Lawrence and Dolores Coppola relating to a
portion of the real property and improvements located at 321 Tremont Street (the
"Right-of-Way Property"); and
WHEREAS, during the period when the City is completing the acquisition of
needed right-of-way and securing funds for the construction of the Project, the City does
not have an immediate need to possess and use the Right-of-Way Property; and
WHEREAS, Lawrence and Dolores Coppola currently operate a business at the
Right-of-Way Property and as part of the Possession and Use negotiations requested the
opportunity to lease back a portion of the Right-of-Way Property for the same purpose;
and
WHEREAS, the City's right-of-way agent, Universal Field Services, has
determined a fair rental value of $12 per square foot per year based on an independent
third party appraiser's determination of fair market value and also considering the two
year lease term and the City's right to terminate the lease upon 45 days written notice;
now, therefore;
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Resolution No. 019-11
Page 2 of2
THAT: The Commercial Displacee Lease between the City of Port
Orchard and Lawrence and Dolores Coppola is approved and the Mayor
Pro Tern is authorized to execute the Lease, a copy of which is attached
as Exhibit A.
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor Pro
Tern and attested by the Clerk in authentication of such passage this 26th day of July 2011.
Lease No.: 001
Tax Parcel No.: 342401-4-016-2001
Project Parcel No.: 1-012
Project: Tremont Street Widening Project
COMMERCIAL DISPLACEE LEASE
This Lease Agreement is entered into and effective this ~ay of ~ , 20 II
by and between the CITY OF PORT ORCHARD, a municipal corporation, (CITY) serving in
the capacity of landlord, and LAWRENCE F. and DOLORES B. COPPOLA, husband and wife,
(TENANT). CITY and TENANT are hereinafter collectively referred to as the Parties.
WHEREAS, the TENANT is the owner of certain commercial real estate consisting of an
office building with an approximate area of2,716 square feet, plus a garage/storage area located
on the land legally described on Exhibit A and commonly known as 321 Tremont Street situated
in Port Orchard, Kitsap County, Washington (the "Real Estate"); and
WHEREAS, the CITY is undertaking the Tremont Street Widening Project (the Project),
which will widen the existing Tremont Street to provide four continuous through lanes between
Port Orchard Boulevard and State Route 16; and
WHEREAS, the Real Estate is necessary for the public use of the City in connection with
the Project and the Parties have executed a Possession and Use Agreement whereby TENANT
has granted possession and use of the Real Estate to CITY but TENANT retains a fee title ·
interest in the Real Estate; and
WHEREAS, the Parties intend that after the Commencement Date (as defined below), the
Parties will agree on total just compensation for the Real Estate and TENANT will convey by
written deed a fee title interest in the Real Estate to CITY; and
WHEREAS, the Real Estate is not presently needed for highway purposes but it is
anticipated that it will be in the near future; and
WHEREAS, the TENANT desires to lease a portion of the Real Estate (hereafter, the
"Leased Premises"), consisting of an agreed area of 1,000 square feet within the office building
as delineated on Exhibit B, together with right to use the land for signage, ingress, egress,
parking, utilities and landscaping; and
WHEREAS, CITY is granted authority to lease property under RCW 35.23.440.
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7-26-11 Page 1 of 16
NOW, THEREFORE, in consideration of the terms, conditions , covenants, and
performances contained herein, including the recitals set forth above, IT IS MUTUALLY
AGREED AS FOLLOWS:
1. LEASE OF PREMISES AND TERM.
A. CITY agrees to lease to TENANT and TENANT agrees to lease from the
CITY the Leased Premises as described above. The term of this Lease shall commence at
12:01 a.m. on the date CITY is entitled to possession of the Leased Premises
(Commencement Date), which the Parties agree shall be ~-2 <g , 2011 and
shall terminate not later than 11:59 p.m., July 31, 2013 (Termination Date). For the
purposes of this Lease, "possession of the Leased Premises" shall mean that date on
which the property owner receives compensation for said Leased Premises .
B. Early Termination. Either Party may terminate the Lease by providing
not less than 45 days' written notice of said early termination to the other Party. In the
event the early termination date is not the last day of the month, the rent shall be prorated
according! y.
2. BASE RENT.
A. TENANT covenants and agrees to pay base rent for the Leased Premises to
CITY from the date CITY takes possession of the Leased Premises (payment available
date), then in advance on or before the 1st day (due date) of each month.
1. During the first twelve months of this Lease, the base rental rate
will be One Thousand Dollars ($1,000.00) per month, payable at the address
designated by CITY. In no event shall the rent be less than this amount, except in
the event of early termination as provided in Section 1.B, above.
u. Commencing on the 1st day of the thirteenth month of the Lease
and continuing for the balance of the lease term, the base monthly rent shall
increase two percent (2%) or $20.00 to a total base rent of $1,020.00.
3. REFUND. If the TENANT gives five (5) days advance written notice of
termination and vacates the Leased Premises during the first thirty (30) days of this Lease, CITY
will refund all rent paid hereunder as long as the TENANT is in compliance with the terms of
this Lease including the following conditions:
A. All personal property must be removed from the property. Personal
property includes but is not limited to furniture, appliances, chemicals, paint, cleaning
products and all debris.
B. Property must be left clean, orderly and in a rentable condition.
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7-26-11 Page 2 of 16
4. RENT PAYMENTS PAYABLE TO: CITY OF PORT ORCHARD.
Rent payments shall be mailed or delivered to CITY at the following address on or before the
due date:
City of Port Orchard
Attention: City Clerk
216 Prospect Street
Port Orchard, W A 98366
5. CHARGE FOR LATE PAYMENT, NSF CHECKS.
A. If any payment of rent or if any other sum due CITY is not received by
CITY within five ( 5) business days after the due date, TENANT shall pay CITY in
addition to the amount due, a late charge of two percent (2%) of the total rent due and
unpaid plus a Twenty Five and no/1 00 Dollars ($25.00) administration fee shall be added
to the amount due, and the total sum shall become immediately due and payable to CITY.
Each additional month that the rent due goes unpaid shall be subject to a late charge of
two percent (2%) of the total rent due plus an administration fee of Twenty Five and
no/100 Dollars ($25.00). Also, there shall be a charge for any check returned
uncollectable in accordance with WAC 468-20-900. CITY and TENANT agree that such
charges represent a fair and reasonable estimate of the costs incurred by CITY by reason
of late payments and uncollectable checks.
B. When a delinquency exists, any subsequent payment received may be
applied first to the delinquency, including late payment fees, with the remainder applied
toward rent and LET, when applicable.
C. CITY's acceptance of less than the full amount of any payment due from
TENANT shall not be deemed an accord and satisfaction, waiver, or compromise of such
payment unless specifically agreed to in writing by CITY.
6. TAXES, ASSESSMENTS, AND UTILITIES.
A. During the period that TENANT continues to hold a fee title interest in the
Leased Premises, TENANT agrees to pay as additional rent all taxes and assessments
which are the result of TENANT's ownership and use or otherwise benefit the Leased
Premises and/or which may hereafter become a lien on the interest of the TENANT,
including but not limited to real property taxes.
B. Commencing in the first month after TENANT has conveyed fee title
interest in the Leased Premises to CITY, and continuing each month thereafter, TENANT
agrees to pay as additional monthly rent Washington Leasehold Excise Tax in an amount
calculated consistent with Chapter 82.29A RCW.
Rev. Lease No. 001
7-26-11 Page 3 of 16
C. During the entire term, TENANT is also responsible for and agrees to pay,
as additional rent, all utilities, including surcharges, fuel adjustments, rate adjustments
and taxes that serve the Leased Premises.
7. RELOCATION ASSISTANCE. TENANT and CITY acknowledge that
TENANT may be entitled to relocation assistance payments as authorized by Chapter 8.26
RCW.
8. ENCUMBRANCES. It is expressly understood that the TENANT shall not
encumber the Leased Premises.
9. USE OF PREMISES.
A. No use other than professional office and incidental uses associated with
TENANT's publishing business is permitted without the prior written approval of CITY.
In using the Leased Premises, the TENANT shall comply with all policies and
regulations heretofore or hereafter promulgated by CITY relative to the location,
operation, and maintenance of improvements located on the Leased Premises.
B. In using the Leased Premises, it is expressly agreed that 1) the TENANT
at all times must comply with all federal, state, and local laws, regulations, ordinances,
and environmental requirements that are in force or which may hereafter be in force
which affect the operations conducted on the Leased Premises, and 2) must secure all
necessary permits and licenses necessary and incidental to any operation under this Lease
and give all notices required by such permits and licenses. The TENANT hereby agrees
to hold harmless CITY from all claims or suits resulting from TENANT's failure to
comply with such requirements.
C. The TENANT shall perform or cause to be performed at its expense all
maintenance of the Leased Premises that will include, but not be limited to, keeping the
Leased Premises in good condition, both as to safety and appearance, to the satisfaction
of CITY.
D. CITY shall bear no expense in connection with any requirement of law,
ordinance, or regulation and the TENANT shall indemnify and hold harmless CITY, any
agents, officers, or employees thereof against any claims arising from any violations of
any such laws, ordinances, or regulations.
10. ENVIRONMENTAL REQUIREMENTS.
A. TENANT represents, warrants, and agrees that it will conduct its activities
on the Leased Premises in compliance with all applicable environmental laws. As used
in this Lease, the term "Environmental Laws" means all federal, state and local
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environmental laws, rules, regulations, ordinances, judicial or administrative decrees,
orders, decisions, authorizations or permits, including, but not limited to, the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901, et. seq., the Clean Air Act, 42 U.S.C.
§ 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., the
Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11001, et seq., the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §
9601, et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq., the Oil
Pollution Control Act, 33 U.S.C. § 2701, et seq., and Washington or any other
comparable local, state, or federal statute or ordinance pertaining to the environment or
natural resources and all regulations pertaining thereto, including all amendments and/or
revisions to said laws and regulations.
B. Toxic or hazardous substances are not allowed on the Leased Premises
without the express written permission of CITY and under such terms and conditions as
may be specified by CITY. For the purposes of this Lease, "Hazardous Substances,"
shall include all those substances identified as hazardous under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq.,
and the Washington Model Toxics Control Act, RCW 70.105D et seq., including all
amendments and/or revisions to said laws and regulations, and shall include gasoline and
other petroleum products. In the event such permission is granted, the use and disposal
of such materials must be done in a legal manner by the TENANT. For purposes of this
Lease, "hazardous substances" shall exclude substances commonly used in office and
publishing businesses, including ink, toner and cleaning supplies, so long as used in
conformance with the manufacturer's directions.
C. TENANT agrees to cooperate in any environmental investigations
conducted by CITY staff or independent third parties where there is evidence of
contamination on the Leased Premises, or where CITY is directed to conduct such audit
by an agency or agencies having jurisdiction. TENANT will reimburse CITY for the cost
of such investigations, where the need for said investigation is determined to be caused
by the TENANT's operations. TENANT will provide CITY with notice of any
inspections of the Leased Premises, notices of violations, and orders to clean up
contamination. TENANT will permit CITY to participate in all settlement or abatement
discussions. In the event that the TENANT fails to take remedial measures as duly
directed by a state, federal, or local regulatory agency within Ninety (90) days of such
notice, CITY may elect to perform such work, and the TENANT covenants and agrees to
reimburse CITY for all direct and indirect costs associated with CITY's work where those
costs are determined to have resulted from the TENANT's use of the Leased Premises.
D. For the purposes of this Lease, "Costs" shall include, but not be limited to,
all response costs, disposal fees, investigatory costs, monitoring costs, civil or criminal
penalties, and attorney fees and other litigation costs incurred in complying with state or
federal environmental laws, which shall include, but not be limited to, the
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Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §
9601, et. seq.; the Clean Water Act, 33 U.S. C.§ 1251 et. seq.; the Clean Air Act, 42
U.S.C.§ 7401 et. seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et.
seq.; and the Washington Model Toxics Control Act, Ch. 70.105D RCW, et. seq.,
including all amendments and/or revisions to said laws and regulations.
E. TENANT agrees to defend, indemnify and hold harmless CITY from and
against any and all claims, causes of action, demands and liability including, but not
limited to, any costs, liabilities, damages, expenses, assessments, penalties, fines, losses,
judgments and attorneys' fees associated with the existence of, and/or removal or
remediation of any Hazardous Substances that have been released, or otherwise come to
be located on the Leased Premises, during the period in which the TENANT owned or
occupied the Leased Premises, by means other than the activities of CITY, including
those that may have migrated from the Leased Premises through water or soil to other
properties, including without limitation, the adjacent CITY property and which are
caused by or result from the TENANT's activities on the Leased Premises. TENANT
further agrees to retain, defend and indemnify and hold CITY harmless from any and all
liability arising from the offsite disposal, handling, treatment, storage, or transportation of
any Hazardous Substances removed from the Leased Premises.
F. The provisions of this paragraph shall survive the termination of this
Lease.
11. FIXTURES AND IMPROVEMENTS. TENANT shall not remove any real
property fixtures or improvements, alter or make improvements to the Real Estate unless agreed
to by CITY in advance and in writing, and any such real property fixtures and improvements not
sold to TENANT by CITY shall remain upon and be surrendered with the Leased Premises at the
termination of this Lease, provided that TENANT's ownership of any improvements allowed by
CITY will be subject to the terms and conditions of the agreement allowing the improvements.
12. PERSONAL PROPERTY. CITY shall not be liable in any manner for or on
account of any loss or damage sustained to any property of whatsoever kind stored, kept, or
maintained on or about the Leased Premises, except for such claims or losses which may be
caused by CITY or its authorized agents or employees. Upon termination of this Lease or upon
abandonment of the Leased Premises by the TENANT, and if after receiving 5 days' written
notice TENANT has not removed all personal property, CITY or its agent may remove all
personal property of the TENANT from the Leased Premises at the TENANT's expense and
dispose of it in any manner CITY deems appropriate. Any costs incurred by the CITY in such
removal and disposal shall be deducted from the relocation payment owed TENANT.
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7-26-11 Page 6 of 16
13. TENANT'S ACCEPTANCE OF PREMISES AND MAINTENANCE
OBLIGATIONSe
A. TENANT has examined the Leased Premises, including the buildings and
all furnishings, and accepts them in their present condition and state of repair as part of
the consideration of this Lease. TENANT agrees to maintain the Leased Premises,
including the land, driveways, parking areas, buildings, landscaping, furniture, fixtures,
and appurtenances, in a neat, clean, and sanitary condition, and, where needed, provide
for snow removal. The TENANT shall perform or cause to be performed at TENANT's
expense all routine maintenance and day-to-day upkeep of the Leased Premises.
B. Prior to the expiration of the Lease, the Leased Premises shall be cleared
of all rubbish, debris, temporary structures, and equipment, and shall be left in a
condition satisfactory to CITY. The cost to CITY for correcting damages caused by the
TENANT shall be paid by the TENANT.
14. CITY'S RESERVATION OF RIGHT TO MAINTAIN AND GRANT
UTILITY FRANCHISES AND PERMITS.
A. CITY reserves the right for utility franchise and permit holders to enter
upon the Leased Premises to maintain, repair and enhance existing facilities and install
new utilities and, for itself, to grant utility franchises and/or permits across the Leased
Premises. Such installation will be accomplished in such a manner as to minimize any
disruption to the TENANT. The franchise/permit holder will be required to restore
paving and grading damaged by the installation.
B. TENANT will not disturb markers installed by a franchise/permit holder
and will contact and provide notice to any franchise/permit holder and all owners of
underground facilities prior to any excavation. TENANT shall contact CITY and call the
Underground Utility Locating Service, or its successor organization as part of its efforts
to ascertain any and all owners of underground utility facilities and to locate the utility.
The TENANT shall not damage legally installed underground utilities. TENANT shall
comply with all applicable provisions ofCh. 19.122 RCW relating to underground
facilities.
15. CONSTRUCTION, REPAIR, ALTERATION.
A. No new construction, repair or improvement of the Leased Premises is
authorized or allowed by this Lease without the prior consent of CITY. Nothing in this
Lease shall be deemed to make the TENANT the agent of CITY for such work. The
TENANT acknowledges that CITY may not, and shall not, be subject to claims or liens
for labor or materials in connection with such activities by the TENANT.
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B. TENANT shall at all times indemnify and hold harmless CITY from all
claims for labor or materials in connection with construction, repair, alteration, or
installation of structures, improvements, equipment, or facilities within the Leased
Premises, and from the cost of defending against such claims, including attorney fees.
C. In the event a lien is filed upon the leased premises, TENANT shall either:
1. Record a valid Release of Lien, or
2. Deposit sufficient cash with CITY to cover the amount of the
claim on the lien in question and authorize payment to the extent of said deposit
to any subsequent judgment holder that may arise as a matter of public record
from litigation with regard to lien holder claim, or
3. Procure and record a bond which releases the Leased Premises
from the claim of the lien and from any action brought to foreclose the lien.
D. Should the TENANT fail to accomplish one (1), two (2), or three (3)
above within fifteen (15) days after the filing of such a lien, the lease shall be in default.
16. CITY RIGHT OF ENTRY AND INSPECTION. CITY, for itself, its agents
and contractors, and for the Washington State Department of Transportation (WSDOT) and the
Federal Highway Administration, reserves the right to enter upon the land at any time without
notice to the TENANT for the purpose of inspection, maintenance, construction, or
reconstruction associated with the Project or any element thereof. Any loss of the use of the
Leased Premises due to CITY's exercise of such right will be compensated for solely by a pro
rata reduction of rent. CITY shall in no way be responsible for any incidental or consequential
damages due to such loss of use by TENANT. CITY, WSDOT, or the Federal Highway
Administration may from time to time go upon the Leased Premises for the purpose of inspecting
any construction, or maintenance work being done by the TENANT. Entry upon the Leased
Premises for any other purpose by CITY, WSDOT, or the Federal Highway Administration shall
be conducted with reasonable notice to the TENANT and during the hours of8:00 a.m. to 5:00
p.m. (except in cases of emergency where no notice shall be required).
17. INSURANCE.
A. At its sole expense, and as additional rent, the TENANT shall secure and
maintain in effect a policy providing public liability insurance issued by an insurer
licensed to conduct business in the State of Washington. The insurance policy shall
provide liability coverage for any and all claims of bodily injury, property damage, and
personal injury arising from the TENANT's use of the Leased Premises, which is the
subject of this Lease. The insurance policy required by this section shall provide
coverage as follows: if the Leased Premises are to be used for commercial purposes, no
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less than One Million and noll 00 Dollars ($1 ,000,000.00) bodily injury and property
damage or combined single limit of liability per occurrence per policy period. Coverage
under said policy shall be triggered on an "occurrence basis", not a "claims made" basis.
B. If the Leased Premises are to be used for commercial purposes, the
coverage required by this section shall be at least as broad as that provided by the most
current Commercial General Liability Policy form ISO (Insurance Services Office, Inc.)
policy form CG 00 01 12 04 or later.
C. CITY shall be named as an additional insured by endorsement of the
liability policy required by this section utilizing ISO Form 2026 (Additional Insured-
Designated Person or Organization) or its equivalent without modification. The
endorsement shall require the insurer to provide CITY with not less than Thirty (30) days
written notice before any cancellation of the coverage required by this section.
D. No changes whatsoever shall be initiated as to the coverage without prior
written approval by CITY.
E. Unless approved by CITY in advance in writing, the liability coverage
required by this section shall not be subject to any deductible or self-insured retentions of
liability greater than: Ten Thousand and no/1 00 Dollars ($1 0,000.00) per occurrence if
the Leased Premises are to be used for commercial purposes. The payment of any such
deductible or self-insured retention of liability amounts remains the sole responsibility of
the TENANT.
F. TENANT assumes all obligations for premium payment, and in the event
of nonpayment, is obligated to reimburse CITY the cost of maintaining the insurance
coverage and any legal fees incurred in enforcing such reimbursement in the event the
TENANT fails to pay the policy premiums.
G. Coverage, if obtained by the TENANT in compliance with this section,
shall not be deemed as having relieved the TENANT of any liability in excess of such
coverage.
H. TENANT shall provide CITY with a certificate of insurance reflecting the
insurance coverage required by this section within Ten (1 0) calendar days of the
execution of this Lease. Such certificates shall also be provided upon renewal of said
policies and changes in carriers.
18. CASUALTY. Should any CITY owned improvement located on said Leased
Premises be substantially damaged or totally destroyed by fire, lightning, earthquake, or any
other casualty or peril, this Lease shall be deemed terminated immediately. Should fire,
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lightning, earthquake, or any other casualty or peril partially damage any improvements that are
owned by CITY and subject to this Lease, CITY may elect to terminate this Lease.
19. HOLD HARMLESS/INDEMNIFICATION CLAUSE.
A. TENANT, its successors or assigns, will protect, save and hold harmless
CITY, its authorized agents and employees, from all claims, actions, costs, damages or
expenses of any nature whatsoever by reason of the acts or omissions of the TENANT, its
assigns, agents, contractors, licensees, invitees, employees or any person whomsoever
arising out of or in connection with any acts or activities related to this Lease, whether
those claims, actions, costs, damages, or expenses result from acts or activities occurring
on or off the Leased Premises. The TENANT further agrees to defend CITY, its agents
or employees, in any litigation, including payment of any costs or attorney's fees, for any
claims or actions commenced thereon arising out of or in connection with acts or
activities related to this Lease, whether those claims, actions, costs, damages, or expenses
result from acts or activities occurring on or off the Leased Premises. This obligation
shall not include such claims, costs, damages or expenses which may be caused by the
sole negligence of CITY or its authorized agents, employees, contractors, officers and/or
licensees.
B. CITY shall defend, indemnify, and hold TENANT harmless against all
liabilities, damages, costs, and expenses, including attorney's fees, for personal injury,
bodily injury (including death), or property damage arising from any negligent or
wrongful act or omission of CITY or CITY's officers, contractors, licensees, agents, or
employees on or around the Leased Premises, or arising from any breach of this Lease by
CITY.
C. Provided, that if the claims or damages are caused by or result from the
concurrent negligence of(a) CITY, its agents or employees, and (b) the TENANT, its
agents or employees, or involves those actions covered by RCW 4.24.115, this indemnity
provision shall be valid and enforceable only to the extent of the Parties' negligence.
D. The provisions of this paragraph shall survive the termination of this
Lease.
20. NO ASSIGNMENT OR SUBLETTING. TENANT shall not assign, sublet,
mortgage, encumber or otherwise transfer any interest in this Lease (collectively referred to as
Transfer) or any part of the Leased Premises, without first obtaining CITY's written consent,
which CITY may withhold in its sole discretion. No Transfer shall relieve TENANT of any
liability under this Lease notwithstanding CITY's consent to a Transfer. As a condition to
CITY's approval, if given, any potential assignee or sublessee otherwise approved by CITY shall
assume all obligations of TENANT under this Lease and shall be jointly and severally liable with
TENANT for the payment of rent and performance of all terms of this Lease. In connection with
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any Transfer, TENANT shall provide CITY with copies of all assignments, subleases and
assumption instruments.
21. DEFAULT. The following occurrences shall each be deemed an Event of
Default by TENANT. Any notice periods granted herein shall be deemed to run concurrently
with and no in addition to any default notice periods required by law.
A. Failure to pay. TENANT fails to pay any sum, including Rent, due under
this Lease following five ( 5) days written notice from CITY of the failure to pay.
B. Vacation/abandonment. TENANT vacates the Leased Premises (defined
as an absence for at least 15 consecutive days without prior notice to CITY) or TENANT
abandons the Leased Premises (defined as an absence of 5 days or more while TENANT
is in breach of some other terms of this Lease). TENANT's vacation or abandonment of
the Leased Premises shall not be subject to any notice or right to cure.
C. Insolvency. TENANT becomes insolvent, voluntarily or involatrily
bankrupt, or a receiver, assignee or other liquidating officer is appointed for TENANT's
business, provided that in the event any involuntary bankruptcy or other insolvency
proceeding, the existence of such proceeding shall constitute an Event of Default only if
such proceeding is not dismissed or vacated within 60 days after its institution or
commencement.
D. Levy or execution. TENANT's interest in this Lease or the Leased
Premises, or any part th4ereof, is taken by execution or other process of law directed
against TENANT, or is taken upon or subjected to any attachment by any creditor of
TENANT, if such attachment is not discharged within 15 days after being levied.
E. Other non-monetary defaults. TENANT breaches any agreement, term or
covenant of this Lease other than one requiring the payment of money and not otherwise
enumerated in this Section or elsewhere in this Lease, and the breach continues for a
period of 30 days after notice by CITY to TENANT of the breach.
CITY shall not be in default unless CITY fails to perform obligations required of CITY
within a reasonable time, but in no event less than thirty (30) days after written notice by
TENANT to CITY. If CITY fails to cure any such default within the allotted time,
TENANT's sole remedy shall be to seek actual money damages (but not consequential or
punitive damages) for loss arising from CITY's failure to discharge its obligations under
this Lease. Nothing herein contained shall relieve CITY from its duty to perform any of
its obligations to the standard prescribed in this Lease.
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22. REMEDIES. CITY shall have the following remedies upon an Event of Default.
CITY's rights and remedies under this Lease shall be cumulative, and none shall exclude any
other right or remedy allowed by law.
A. Termination of Lease. CITY may terminate TENANT's interest under the
Lease, but no act by CITY other than written notice of termination from CITY to
TENANT shall terminate this Lease. The Lease shall terminate on the date specified in
the notice of termination. Upon termination of the Lease, TENANT shall remain liable to
CITY for damages in an amount equal to the rent and other sums that would have been
due and owing by TENANT under this Lease for the balance of the Lease term, less the
net proceeds, if any, of any reletting of the Leased Premises by CITY subsequent to the
termination, after deducting all of CITY's reletting expenses. CITY shall be entitled to
either collect damages from TENANT monthly on the days n which rent or other
amounts would have been payable under the Lease, or alternatively, CITY may accelerate
TENANT's obligations under the Lease.
B. Re-entry and reletting. CITY may continue this Lease in full force and
effect, and without demand or notice, re-enter and take possession of the Leased Premises
or any part thereof, expel the TENANT from the Leased Premises anyone claiming
through or under the TENANT, and remove the personal property of either. CITY may
relet the Leased Premises, or any part of them, in CITY's or TENANT's name for the
account of TENANT, for such period of time and at such other terms and conditions, as
CITY, in its discretion, may determine. CITY may collect and receive the rents for the
Leased Premises.
C. Nonpayment of additional rent. All costs which TENANT is obligated to
pay to CITY pursuant to this Lease shall in the event of nonpayment be treated as if they
were payments of rent, and CITY shall have all the rights herein provided for in case of
nonpayment of rent.
D. Failure to remove property. If TENANT fails to remove any of its
property from the Leased Premises at CITY's request following an uncured event of
default, CITY may, at its option, remove and store the property at TENANT's sole
expense and risk.
23. NONDISCRIMINATION. TENANT, for itself, its successors, and assigns as a
part of the consideration hereof, does hereby covenant and agree to comply with all civil rights
and antidiscrimination requirements of Chapter 49.60 RCW.
24. MODIFICATIONS. This instrument contains all the agreements and conditions
made between the parties hereto pertaining to the rental of the Leased Premises herein described
and may not be modified orally or in any manner other than by an agreement in writing signed
by all parties thereto. The receipt of rent by CITY, with knowledge of any breach of this Lease
Rev. Lease No. 001
7-26-11 Page 12 of 16
by the TENANT, or of any default on the part of the TENANT in the observance or performance
of any of the conditions or covenants or this Lease, shall not be deemed to be a waiver of any
provision of this Lease. No failure on the part of CITY to enforce any covenant or provision
herein contained, nor any waiver of any right thereunder by CITY, unless in writing, shall
discharge or invalidate such covenant or provision or affect the right of CITY to enforce the
same in the event of any subsequent breach or default.
25. TOTALITY OF AGREEMENT. It is understood that no guarantees,
representations, promises, or statements expressed or implied have been made by CITY except to
the extent that the same are expressed in this Lease.
26. BINDING CONTRACT. It is understood that this Lease shall not be valid and
binding upon CITY unless and until accepted and approved by the Port Orchard City Council.
27. INTERPRETATION. This Lease shall be governed by and interpreted in
accordance with the laws of the State of Washington. The titles to paragraphs or sections of this
Lease are for convenience only and shall have no effect on the construction or interpretation of
any part hereof.
28. SEVERABILITY. In case any one or more of the provisions contained in this
Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this
Lease shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
29. VENUE. TENANT agrees that the venue of any action or suit concerning this
Lease shall be in the Kitsap County Superior Court, and all actions or suits thereon shall be
brought therein, unless applicable law provides otherwise.
30. ATTORNEY FEES. In the event of any controversy, claim, or dispute arising
out of this Lease, each party shall be solely responsible for the payment of its own legal
expenses, including but not limited to, attorney's fees and costs.
31. NOTICES. Wherever in this Lease written notices are to be given or made, they
will be served, personally delivered or sent by certified or overnight mail addressed to the parties
at the address listed below unless a different address has been designated in writing and
delivered to the other party. The TENANT agrees to accept service of process at said address.
Rev. Lease No. 001
7-26-11 Page 13 of 16
CITY:
TENANT:
CITY OF PORT ORCHARD
Attn.: City Clerk
216 Prospect Street
Port Orchard, W A 98366
360-876-7024
Lary F. and Dolores B. Coppola
321 Tremont Street
Port Orchard, WA 98366
360-731-2222
32. HOLDOVER. If TENANT shall, without the written consent of CITY, hold
over after the expiration or termination of the term, such tenancy shall be deemed to be on a
month-to-month basis and may be terminated according to Washington law. During such
tenancy, TENANT agrees to pay to CITY 150% the rate of rental last payable under this Lease.
All other terms of this Lease shall remain in effect. TENANT acknowledges and agrees that this
Section does not grant any right to TENANT to holdover, and that TENANT may also be liable
to CITY for any and all damages or expenses which CITY may have to incur as a result of
TENANT's holdover.
33. AUTHORITY. Each party signing this Lease represents and warrants to the
other that it has the authority to enter into this Lease, that the execution and delivery of this
Lease has been duly authorized, and that upon such execution and delivery this Lease shall be
binding and enforceable against the party signing it.
In witness whereof, this Lease has been executed the date and year first written above.
Approved as to form:
Rev. Lease No. 001
7-26-11 Page 14 of 16
INDIVIDUAL ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
COUNTY OF KITSAP )
On this ;l)? day of 'T LA--lli , 2011 before me personally appeared
LAWRENCE F. and DOLORES B. COPPOLA, to me known to be the individuals described in
and who executed the foregoing instrument, and acknowledged that they signed and sealed the
same as their free and voluntary act and deed, for the uses and purposes therein mentioned.
GIVEN under my hand and official seal the day and year last above written.
Rev . Lease No. 001
7-26-11
Notary Public in and for the State of Washington,
residing at P 0 ~b 0
My commission expires LJ .... tq-\ t{
Page 15 of16
CITY ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss
COUNTY OF KITSAP )
On this ~ day of " , 2011 before me personally appeared
JOHN CLAUSON, to me known t e the duly appointed Mayor Pro Tern of the City of Port
Orchard, and that he executed the within and foregoing instrument and acknowledged the said
instrument to be the free and voluntary act and deed of said City of Port Orchard, for the uses
and purposes therein set forth, and on oath states that she is authorized to execute said
instrument.
IN WITNESS WHERE I have hereunto set my hand and affixed my official seal the
c2(o'-fh day of -----"""=.;:..__=+------' 20 4----·
Rev. Lease No. 001
7-26-11 Page 16 of 16
residing at klJJa 1, u.ij--qJ'Jlt tJ
My commission expires '1/Jtj/J@.,
TREMONT STREET WIDENING
PARCEL NO. 1-012
TAX PARCEL 34240140162001
KITSAP COUNTY
EXHIBIT
RIGHT -OF-WAY ACQUISITION
RIGHT-OF-WAY ACQUISITION DESCRIPTION:
A
THAT PORTION OF TRACT "X" LYING NORTHERLY OF TREMONT STREET, LOCATED IN THE
NORTHJ;AST QUARTER Qf THE SOUTHEAST QUARTER, SECTION 34, TOWNSHIP 24 NORTH, RANGE
1 EAST, WILLAMETIE MERIDIAN, IN KITSAP COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 30.00 FEET LEFT OF STATION 82+95.95 WHEN MEASURED AT RIGHT
ANGLES FROM THE TREMONT STREETRIGHT.:.QF-WA Y REFERENCE LINE KNOWN AS THE RwT-
LINlfSAID POINT BEING THE SOUTHEAST ~ORNER OF SAID TRACT "X", AND THE TRUE POINT OF
BEGINNING;
THENCE NORTH 89°42'07" WEST A DISTANCE OF 213.11 FEET ALONG mE SOUTH BOUNDARY LINE
OF SAID TRACf "X", TO THE BEGINNING OF AT ANGENT CURVE TO THE LEFT, HAVING A RADIUS
OF 146.20 FEET AND WHOSE CENTER BEARS SOUTH 00'17'53" WEST; THENCE SOtJTHWESTERL Y
ALONG SAID CURVJE A DISTANC~ OF 155.25 FEET THROUGH A CENTRAL ANGLE OF 11°55' 15", TO
THE SOUTHWEST CORNER OF SAID TRAer "X" LOCATED 30.00 FEET LEFI' OF STATION 79+33.84
WHEN MEASURED AT RIGHT ANGLES FROM THE R wT-LINE; THENCE NORTH 00050' 40" EAST A
DISTANCE OF 16.82 FEET ALONG THE EAST BOUNDARY LINE, TO AN ANGLE POINT ALONG THE
EAST BOUNDJ\RY LINE LOCATED 46.43 FEET LEFT OF STATION 79+37 .25 WHEN MEASURED AT
RIGHT ANGLES FROM THE RwT-LINE; THENCE NORTH 43°50'40" EAST A DISTANCE OF 26.20 FEET
ALONG THE EASTERLY BOUNDARY LINE, TO THE BEGINNING OF A NON-TANGENT CURVE TO THE
RIGHT, HAVING A RADIUS OF 2058.50 FEET AND WHOSE CENTER BEARS SOuTH 16°43'31" EAST;
THENCE NORTHEASTERLY .ALONG SAID CURVE A DISTANCE OF 108~98 FEET THROUGH A
CENTRAL ANGLE 0F()3002'00~'. THENCE NORTH 780J7'57" EAST A DISTANCE OF 148.96FEET, TO A
POINT ALONG THE NOR~RL Y PROPERTY LINE; THENCE SOUTH 8~41 '32" EAST A DISTANCE OF
98.86 FEET ALONG THE NORTHERLY PROPERTY LINE, TO THE NORTHEAST CORNER OF SAID
TRACf "X", LOCATED lO.OO'FEET LEFr OF STATION 16+08.86 WHEN MEASURED AT RIGHT ANGLES
FROM THE POTIERY A VENUE· RIGHT -OF-WAY REFERENCE LINE KNOWN AS THE RwP-LINE;
THENCE S0UTH00048'35" wEST A DISTANCE OF. 78.95 FEET ALONG 'FHE EAST BOUNDARY UNE, TO
THE TRUE POINT OF BEGINNING. . .
TRACf"X''
A PORTION OF THE NORTHEAST QUARTER OF tHE SOUTHEAST QUARTER OF SECTION 34,
TOWNSHIP 24 NORTH, RANGE I EAST, W.M., IN KITSAP "cOuNtY, WASHINGTON,
DESCRIBED AS FOLLOWS: COMMENCING AT THE ONE-QUARTER CORNER BETWEEN
SECTIONS 34 AND 35, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M.; THENCE SOUTH ALONG
THE EAST LINE OF SAID SECilON 34, A DISTANCE OF 544.99 FEET; THENCE SOUTH. 89Y28' 48"
WEST 10.00 FEET TO THE WEST MARGIN OF POTIERY HILL ROAD AND THE TRUE POINT OF
BEGINNING; THENCE SOUTH 89°28' 48" WEST 160.00 FEET; THENCE NORTH 163.42 FEET;
THENCE SOUTH 43°00' WEST 303.07 FEET; THENCE SOUTH 38.81 FEET TO A POINT ON A
CURVE, ON THE NORTH MARGIN OF THE COUNTY ROAD, WHOSE RADIUS POINT BEARS
SOUTH 12°8'05" EAST 746.20 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID
CURVE 151.27 FEET; THENCE NORTH 89°28'48" EAST 216.57 FEET TO THE WEST MARGIN OF
POTTERY HILL ROAD; THENCE NORTH 80.00 FEET TO THE TRUE POINT OF BEGINNING;
EXCEPT PROPERTY IN COUNTY ROAD NO. 132.
TOTAL AREA OF SAID ACQUISITION CONTAINING 21 ,757 SQUARE FEET, MORE OR LESS.
EXHIBIT
BUILDING SKETCH-MAIN FLOOR
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